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Montgomery, J.
The bill in this case was filed to foreclose a mortgage on the undivided one-fourth of certain lands in the county of Ontonagon, given on the 1st day of November, 1872, by George W. Knowlton to one James O'Brien, which mortgage was assigned to complainant in December, 1873. The defense is:
1. That the assignment from O'Brien to complainant was made in payment of a gaming debt.
2. That, at the time of the execution of the mortgage by Knowlton, his interest in the property was that of a-mortgagee only, and that, therefore, the mortgage by Knowlton was, in effect, a mortgage of a mortgage. This determined, it is claimed that the statute of limitations has run against the Knowlton deed considered as a mortgage, and hence that the complainant is not entitled to relief.
The defendants ask for. affirmative relief, and that the-cloud upon their title be removed.
1. The gaming contract is fully executed, and where this is so the court will -usually leave the parties where it finds them. Whatever remedy the assignor may have does not- concern the defendants. They are fully protected by the assignment to the complainant. Bagg v. Jerome, 7 Mich. 145.
2. A question of greater difficulty is that of whether the instrument under which Knowlton derived his title is to be treated as an absolute conveyance with an option to repurchase, or, in legal effect, a mortgage. The instrument, in its material parts, is as follows:
“ This indenture, made the 7th day of June, in the year 1859, between William A. Pratt, of the city, county, and state of New York, party of the first part, and George W. Knowlton, of the same place, party of the second part:
“ Witnesseth, that the said party of the first part, for and in consideration of the sum of $2,738, lawful money of the United States of America, to him in hand paid by the said party of the second 'part at or before the ensealing and delivering of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents doth grant, bargain, sell, alien, remise, release, convey, and confirm, unto the said party of the second part, and to his heirs and assigns, forever, all his right, title, and interest in and to all the undivided one-fourth part of those certain lands and premises situate in the State of Michigan.”
Here follows a full description, and the habendum clause, as follows:
“ To have and to hold, all and singular, the above mentioned and described premises, and every part and parcel thereof, with the appurtenances, unto the said party of the second part, his heirs and assigns, forever.”
This is followed with the covenants ofwarranty, concluding:
“And that the said party of the second part, his heirs ■and assigns, shall and may at all times hereafter peaceably hold, use, and possess and enjoy the same without any let, .suit, trouble, or disturbance of said party of the first part, his heirs or assigns, or any other person lawfully claiming or ■to claim tlie same, except under and in pursuance of the agreement for the repurchase of the same, hereinafter con.tained.”
The agreement contains this further provision:
“Whereas, this conveyance is made by the said Pratt to said Knowlton on account of the said Pratt’s indebtedness to ■said Knowlton, and no searches against the property above described have yet been made by said Knowlton as to the title or the'incumbrances thereon:
“It is therefore further hereby agreed that said Knowl"ton have six weeks from the date hereof to make such .searches, and that, if no deed, mortgage, attachment, or ■ execution against said Pratt, or incumbrance of any kind, exists or is to be found thereon, the above conveyance shall be in full of all claims, demands, and causes of action of every kind whatever between the parties hereto, except the agreement for the said Pratt’s right to repurchase said property within fourteen months from May 9, 1859, hereinafter mentioned. * * * * * * *
“On the payment of the price of $2,738, and interest from May 9, 1859, to the time of reconveyance, at seven per cent, per annum, and all taxes and necessary charges on said property incurred and paid for by said Knowlton, •said Knowlton agrees to sell and convey to said Pratt, his heirs, executors, administrators, and assigns, at any time ■within fourteen months from May 9, 1859, all his equitable or legal claim and interest in said property, with the same title as he obtained by this deed, and with all the title which he may be entitled to obtain by virtue of this ■agreement, free from incumbrances on said property by him made or suffered, and to give a deed thereof with covenants against the acts of said Knowlton; and said Pratt or his said representatives have the right to repurchase said property on those terms within that time, but not otherwise.”
There are no extraneous or attendant facts which throw 'light on the intention of the parties. It appears that the ■.grantor and Knowlton had been in litigation before the making of this deed, and had agreed upon a settlement •at the sum stated in the deed as the consideration. Neither party was at the time in possession, so that there is no inference to be drawn from a change in possession, or,, on the other hand, from a continuance in possession.
As to Avhether an instrument in the form of a conveyance, with an agreement back to resell, is to be deemed a mortgage, is often a question difficult of solution, and is frequently made to depend upon the peculiar circumstances of the case. It is usual that in the instrument itself, or in the attendant circumstances, facts which clearly indicate-the intention of the parties appear, and when this is so the court will carry such intention into effect. Where this is done by declaring a deed and agreement to reconvey a mortgage, it has most usually been in recognition of the right of the parties to contract as they saw fit, unless there is some additional principle of equity to control the decision, — as, for instance, the principle, “once a mortgage, ahvays a mortgage;” but where the question is to be determined upon the naked agreement, the question, as in all cases involving a construction of an agreement in writing, is, Avhat is the engagement on either hand? Avhat did the parties intend by their agreement? In the jaresent ease-the deed was given for a present consideration, and, as the grantee had not then examined the title, it was declared that, if the title was found satisfactory, “the above conveyance shall be in full of all claims, demands, and causes of action of every kind whatever between the parties,”' except the agreement to repurchase. By a subsequent clause Pratt is given the right to repurchase within 14 months, and Knowlton agrees to sell within that time at, the consideration price and interest.
Tavo things are apparent:
(1) That the intention was that the debt from Pratt to • KnoAvlton should be extinguished by the conveyance; (2) that it was optional Avith Pratt whether he purchased or not, and hence that no neAV debt was created from Pratt-to Knowlton.
In 1 Jones, Mortg., at section 264, it is said:
“The rights of the parties to the conveyance must be reciprocal. If the transaction be in the nature of a mortgage, so that the grantor may insist upon' a reconveyance, the grantee at the same time may insist upon repayment; but if it be a conditional sale, so that the grantor need, not repurchase, except at his option, the grantee cannot insist upon repayment.”
And at section 265 it is said:
“If an absolute conveyance be made and accepted in payment of an existing debt, and not merely as security for it, an agreement by the grantee to reconvey the land to the grantor upon receiving a certain sum within a specified time does not create a mortgage, but a conditional sale, and the grantee holds the premises subject only to the right of the grantor to demand a reconveyance according to the terms of the agreement. A debt, either preexisting or created at the time, or contracted to be created, is an essential requisite of a mortgage. * * * *
'Where there is no debt and no loan it is impossible to say that an agreement to resell will change an absolute deed into a mortgage.'’ The debt may not be evidenced by any bond or note, or covenant to pay it; so that the facts and circumstances of the transaction must be inquired into in order to ascertain whether the consideration of the deed was really a debt or loan. If not one or the other, the deed can hardly be a mortgage.”
This text is supported by abundant authority, and is in line with the decisions of our own State. See Swetland v. Swetland, 3 Mich. 482; Cornell v. Hall, 22 Id. 377. It was said in Jeffery v. Hursh, 58 Mich. 257:
“It is now settled, as well as any principle of law can be, that an absolute deed, with a bond or separate defeasance or agreement, executed at the same time, to reconvey the estate upon payment of a certain sum of money, constitute a mortgage, if the instruments are of the same date, or are executed and delivered at the same time, and as one transaction; and when this is the case it is a conclusion of law that they constitute a legal mortgage.”
This case is cited with approval in Clark v. Landon, 90 Mich. 83. In each of the cases cited, however, there was extraneous evidence making the intent of the parties that the transaction should amount to a mortgage apparent.
If it be assumed that the prima facie intent is that a deed with a defeasance back amounts, in effect, to a mortgage, and that the engagement on the part of the grantor to pay the debt will be implied, it still does not follow that in the present ease this instrument should be held to be a mortgage; for the question of whether there should be an indebtedness is not left to inference, but is determined by the instrument itself, which provides in plain language that the indebtedness should be discharged upon acceptance of the deed, and that the repurchase should be optional with the grantor.
In Swetland v. Swetland, supra, the Court say, in discussing this question:
“ If the debt which formed the consideration of the deed was extinguished at the time by the express agreement of the parties, * * * it must be deemed purchase money, and the transaction will be a sale upon condition.”
In Cornell v. Hall it was said:
“ Courts do not presume to change the contracts which the parties have made. * * * While these principles will not permit a transaction which, in substance, is a mortgage, to have the effect of a sale, there is no principle or maxim of policy which forbids the making of a conditional sale, or which will allow the court to interpose and convert one into a mortgage.”
In Martind. Conv. § 417, it is said:
“If the debt is extinguished at the time by the express agreement of the parties, * * * then it must be regarded as purchase money, and the transaction will be a conditional sale1”
See, also, Conway’s Ex’rs v. Alexander, 7 Cranch, 218; 1 Jones, Mortg. §§ 260, 267, and cases cited; Henley v. Hotaling, 41 Cal. 22. Such, we think, is the effect of the agreement in this case.
The decree will be affirmed, with costs.
The other Justices concurred. | [
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McGrath, J.
Plaintiffs bring assumpsit on the common counts for a bill of lumber used in the construction of a house OAvned by defendant.
The house Avas built under a contract with one Cultice, who agreed to furnish all the materials. Some time prior to the letting of the contract, one Quackenbush, who had been in the lumber business on his own account, met defendant on the street, and asked him if he intended to build any houses during that summer. Defendant replied that he did, whereupon Quackenbush asked if he could not furnish him the lumber. The conversation was then interrupted. At another interview, Quackenbush called upon defendant, and asked if he was ready to place that lumber order, and defendant replied that he had not yet let the contract. Quackenbush testifies that—
“ He said he Avould let the contracts for the buildings, and I would have to figure AA'ith the contractor, and if I could figure low enough, which he hoped I could, he would be glad to have me get it. He said — well, in the beginning, he said he let the contracts, and, as the lumber was being delivered, where the contractor 0. K/d the bills, he paid them.”
Afterwards, Quackenbush called again, and defendant told him that Harry Cultice had the contract, and he said:
“ I would figure it reasonable, because he was a good fellow, — a hard worker; and I told him, if I could not figure it as low or lower than anybody else, I did not propose to have any preference over any one else. If I could figure it as cheap, I would like to have him use his influence to let me have the job.”
Quackenbush then found Cultice, got from him a bill of the lumber, gave to Cultice a figure for it, and Cultice awarded the contract to Quackenbush.
“ Q. (to Quackenbush). What did Mr. Closterhouse say about the payment of this lumber?
“ A. He said, as fast as the lumber was being delivered there, and the contractor 0. K.'d the bills he would pay them.
“ Q. When was that?
“A. That was when I first saw him; that is, not when I first saw him, but before that, — this talk.”
Quackenbush further testifies that he went over to plaintiffs, handed the bill to one of the firm, and asked him what he would furnish that bill for, and—
“He told me he would figure it or furnish it for so many dollars and cents, and I told him that is just what I had agreed to.”
“Q. Who were you working for at the time you came in the office, and talked with Mr. Closterhouse?
“A. Well, I was working for different lumber firms, and I was also working for myself. *******
“Q. And then you figured on it, and handed in your bid?
“A. Yes, sir.
“Q. Who did you hand your bid in to?
“A. Mr. Ciiltice.
“Q. Did you tell him where you were going to get the lumber at that time?
“A. No, I did not.
“Q. Didn't you state to him that you were going to get the lumber from Muskegon?
“A. I said I could get it in Muskegon, I could get it in Cadillac, and get it from the lumber firms here in the city. ******** * * * *
“Q. Who were you working for at that time? Were you working for Peirce & Co. at that time? .
“A. I placed the order—
“Q. Just answer my question. "Were you working for Peirce & Co. at that time?
“A. Why, certainly, I supposed I was.
Weren't you doing a commission business, — taking orders, and placing them with different people, — either in Cadillac or Muskegon or Grand Eapids, wherever you could do the best, and make the most money? Is not that a fact? Weren't you working for yourself?
“A. I suppose I was working for myself. That same time I had an understanding with Peirce & Co. * *
“Q. Was it not your intention to get it from Muskegon, and he was in such a hurry that you had not time?
“A. Yes.
“Q. You told Mr. Cultice you were going to send to Muskegon and get this, didn't you?
“A. When I first talked with him, — Muskegon or Cadillac. I would not say that I said Muskegon, particularly. I might have mentioned Muskegon, and I might have said Muskegon alone.”
Neither Quackenbush nor plaintiffs had any further conversation with defendant until after the lumber was furnished, and a bill therefor was sent to defendant in May following, when defendant at once repudiated it.
1. Plaintiffs could not recover as assignees of Quaekenbush, under the declaration. Blackwood v. Brown, 32 Mich. 104; Rose v. Jackson, 40 Id. 29; Cilley v. Van Patten, 58 Id. 404.
2. Quackenbush cannot be said to have made the contract in behalf of, or as the agent of, plaintiffs. He made the proposition to Cultice in his own name, and not for plaintiffs. He had no authority to make a contract which would bind plaintiffs. He fixed the rates, and after he had made the contract with Cultice he went to plaintiffs, and inquired what they would furnish the bill for. In any view, he was only to receive commissions on such orders as plaintiffs accepted. They were not bound by his rates. ■ When he closed the contract with Cultice he intended, as he says, to get the lumber at Muskegon or Cadillac. He bad tbe option to place the order or get-the lumber wherever he chose. He was under no obligation to get it from plaintiffs. If he had afterwards refused to-perform, neither Cultice nor defendant could have looked beyond him.
The judgment is reversed, and a new trial granted.
Hooker, C. J., Long and Grant, JJ., concurred-Montgomery, J., took no part in the decision. | [
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] |
Montgomery, J.
The plaintiffs sued the defendant, counting upon a breach of an agreement given on the occasion, and in consideration, of the ■ purchase by the plaintiffs from the defendant of a stock of goods and a quantity of notes and accounts. That portion of the agreement material to be considered in determining the questions involved reads as follows:
“The said party of the first part * * * does covenant and agree * * * that the annexed invoice is a true statement of the amount and value of stock, merchandise, and property, and also guarantee, represent, and warrant that there is in said stock goods to the value of $14,709.68; also that the amount of $29,702.54 net shall be realized, without charging for the personal services of the parties of the second part, nor other charges of second parties, except incurred in suits, by the parties of the second part upon the accounts and notes herein conveyed. The parties of the second part shall use due diligence in their collection.”
The declaration counted upon this agreement, and set out no subsequent modification or waiver of its terms. On the trial the plaintiffs sought to recover by showing that they had dealt with the accounts as men of ordinary business judgment would, and also sought to show that the defendant had, as to a large portion of the accounts, directed the plaintiffs as to what he would require as evidence of due diligence, and that' plaintiffs had complied with the demands of the defendant in this regard..
1. The circuit judge construed the original contract as amounting to a guaranty of collection, and held that no showing of diligence was sufficient which did not include proof that the accounts had each been put in judgment, and execution had been taken out, and returned unsatisfied. This ruling was unquestionably right, if the proper construction was placed on the contract. Bosman v. Akeley, 39 Mich. 710; Schermerhorn v. Conner, 41 Id. 374.
It is contended, however, 'that the contract in question should not be construed as a guaranty of collection of each individual account, requiring resort to legal process in the collection of each, but amounted to a warranty and representation that there should be realized $29,702.54 from the total of the accounts; and that the fact that the amount guaranteed to be realized was much less than the face of the accounts negatives the idea that resort should be had to suit upon each account. The infirmity of this construction is that it ignores the subsequent language, “ The parties of the second part shall use due diligence in their collection,” or accords to this language a meaning at variance with the settled significance of the terms employed. What constitutes due diligence is settled by the cases of Bosman v. Akeley and Schermerhorn v. Conner, supra.
In the case of Ralph v. Eldredge, 58 Hun, 203, a similar-question was presented. Plaintiff and defendant were copartners. Defendant conveyed his interest to the plaintiff in the notes, accounts, and demands owing to the firm. The defendant at the same time executed to the plaintiff a bond with the condition that defendant should pay to the plaintiff one-half of the amount of the notes, accounts, and claims of the late firm assigned by defendant to plaintiff that should prove to be uncollectible, if any such there should he. The court say:
“It seems to be settled in this state that a guaranty of collection is an undertaking to pay the sum of money guaranteed, provided the principal debtor is prosecuted to judgment and execution with due diligence, and the same cannot be collected of him. * * * The plaintiff: urges that* the bond does not guarantee the collection of these claims, but is only a contract to pay plaintiff one-half of the amount of those which should turn out bad. But the bond uses the word 'uncollectible,5 and the question must be,' what is the legal meaning of that word ? That word has a definite meaning, as decided -in the cases above cited; and that meaning should be here enforced.55
The legal signification of the term "due diligence,55 as applied to a guaranteed note or account, is well understood, and the parties must be assumed to have contracted with reference to that meaning.
2. The court rightly held that the alleged subsequent waiver could not be shown under the pleadings in this cause. The contract itself having fixed upon the plaintiffs a specific duty, the averment in the declaration that the plaintiffs did use due diligence amounted, in effect, to an averment that they had pursued the course which the law imposes upon them in order to charge the guarantor. If they relied on any excuse for failing to use due diligence, this should have been counted upon in the declaration. Aldrich v. Chubb, 35 Mich. 350.
Judgment affirmed, with costs.
The other Justices concurred.
Counsel cited Taylor v. Soper, 53 Mich. 96; Koch v. Melhorn, 25 Penn. St. 89; Struthers v. Clark, 30 Id. 210. | [
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Long, J.
This is an action for malicious prosecution, and on the trial in the court below plaintiff had verdict and judgment for $150.
The facts may be briefly stated: Plaintiff and defendant are both residents of the township of Springwells, "Wayne county, and are near neighbors. They were born and reared in the same neighborhood, went to the same school, and, up to the fall of 1891, were always friends. In the spring of that year, defendant was elected overseer of highways, and had in his possession a road scraper belonging to his district. In November the plaintiff, who was working for his father, took his team, drove to defendant’s place, entered his yard, and inquired of defendant’s men where the scraper was, and, in plain view of the defendant, hitched to it, and drove away, to use it upon the highway. He used it for one or two weeks, when defendant told plaintiff’s father that the scraper must be returned, or there would be trouble. On the same day defendant ordered the scraper returned he visited a justice of the peace, and told him what the plaintiff had done, and wanted a warrant for larceny of the scraper. The justice remonstrated with him, and suggested some other course to get it back. He returned the next day to the justice’s office, made a complaint in writing against the plaintiff for larceny, setting forth in the complaint the value of the scraper at §49. The warrant was issued by the justice, and the plaintiff was arrested. The justice’s docket shows that, upon the plaintiff’s being brought before him, he found plaintiff guilty upon his plea, and suspended sentence. The plaintiff appealed the case to the circuit court, where he was discharged by order, of the court, on the ground that the justice had no jurisdiction to try the cause. After the trial of the present case had been commenced, it was ascertained by counsel for plaintiff that the judgment in the case of the people against plaintiff had never been entered in the circuit. Plaintiff, by his counsel, appeared in the circuit court in that cause, and moved the court for entry of the judgment discharging plaintiff nunc pro tunc. This motion was granted, and the judgment of discharge entered as of February 8, 1892, that date being prior to the time of the commencement of the present suit. On the trial plaintiff offered this judgment entry in evidence, for the purpose of showing his discharge under the criminal prosecution before the commencement of this suit. This was objected to, on the ground that it did not establish the fact of the discharge from arrest prior to the beginning of the action.
It is a general rule that a conviction before a justice of the peace is a bar to an action for malicious prosecution, and, if the party bringing the action relies upon an exception to it, he must allege the facts which create the exception, and prove them, or the conviction will be conclusive of probable cause. Phillips v. Village of Kalamazoo, 53 Mich. 33. It appeared upon the face of the complaint and warrant before the justice, however, that the justice had no jurisdiction to try the cause set out in the. complaint, as the value of the property was alleged at a sum exceeding $25, and the circuit court very properly ordered the discharge from the facts appearing on the face of the papers. The plaintiff, after appealing his case to the circuit, appeared therein, and was actually discharged by the court, but the clerk failed to enter the judgment of discharge of record. The question is therefore presented whether the judgment of discharge entered nunc pro tunc is evidence of the actual termination of the criminal prosecution before commencement of suit. Counsel for defendant contends that the judgment so entered is not evidence of ‘this fact, and cites Whitwell v. Emory, 3 Mich. 84. That was an action of ejectment. To rebut the plaintiffs’' case, the defendant attempted to show title in himself, acquired under a judgment and execution against Reuben Abbott, the common source. To prove the judgment, be introduced a journal entry of the same court, which entry was originally in form as follows:
“December 6, 1841.
“ On hearing counsel in this cause, on motion of George Woodruff, plaintiffs5 attorney, judgment for plaintiffs on demurrer, and that it be referred to the clerk to compute the amount due on the bond mentioned in the plaintiffs5 declaration, and the clerk having computed the amount due on said bond at $800, the penalty thereof, to be discharged on the payment of $624.11, and costs to be taxed.55
By virtue of this entry, and the proceedings thereunder, defendant claimed title to the land in question. This entry remained on the journal without amendment, no steps being taken respecting it, until after the commencment of the ejectment suit, and up to the day of the trial thereof, June 19, 1851, when, upon ex parte application of the defendant, an order was made for the amendment of the foregoing entry by the insertion between the words “at55 and “$800 55 of the words “$624.11, ordered final judgment for.55 To the admission of the entry plaintiffs5 counsel objected, and the same was received in evidence subject to the objection. It was said by this Court:
“To the admission of the journal entry of December 6, 1841, and the amendment made June 19, 1851, the plaintiffs5 counsel objected. * * * Before this amendment was made, there was clearly no final judgment entered in the cause. * * * From the subsequent action of the court, it would seem that the omission was thought to embrace the assessment of the amount due upon the bond, and that which it was conceived went to constitute a judgment, viz., the words c ordered final judgment for,5 and without which there was no evidence of an adjudication by the court. * * * The entry, with the amendment, then, comes far short of evidence of a judgment, but is rather in the form and nature of an interlocutory order or a common rule, which, by some accident, had found its way into the journal of the court.
“But the amendment was void because without the jurisdiction of the court. At the common law, while the proceedings are in paper an amendment can be allowed, or a judgment could be set aside before the adjournment of the term at which it was rendered; but at a subsequent term the court had no power to change the record of a previous term. By various statutes, both in England and this country, power is given to courts to amend in many cases, which they could not exercise at common law. Under our statute the court may, at the time, amend clerical errors; but that which enters into the consideration of the court, and constitutes a part of the judgment, cannot be changed after the term. Much less has a court power, under the form of an amendment, to render a judgment.”
It was further said by the Court in that case that, were this error susceptible of correction by amendment, it would be necessary that the parties to be affected by it be cited before the court, especially where the matter had slept for 10 years, as any other course might work irreparable mischief to parties wholly unconscious of their situation, and jeopardize rights fairly and honestly acquired; and that, before any judgment could be perfected in the cause, it was certainly necessary that the parties to be affected should have an opportunity to be heard.
Our attention has also been called to Ninde v. Clark, 63 Mich. 134. That was an action of ejectment also. Plaintiff claimed title under an execution sale. It appeared that on September 39, 1866, the jury rendered a verdict in an action of assumpsit in the circuit court, and, without any entry of judgment, the execution was issued and levied, and the property in dispute sold thereunder. October 37, 1883, and nearly 16 years after the sale under the execution levy, the plaintiff procured a judgment to be entered on the verdict. The circuit court found against the plaintiff in the ejectment suit upon that record. It was shown upon the trial that the defendants in the ejectment suit never had any actual notice of the rendition of any judgment in the suit in which the execution issued, and it was admitted that the judgment was imperfect and inoperative until cured by order of tbe court. It was said by this Court that the defendants were not bound to take notice that this correction might be made; that there might have been valid reasons in the mind of the circuit judge who tried the cause in which the judgment was rendered nunc pro tunc why he did not order a judgment entered upon the verdict of the jury at the time, but that there was nothing whatever appearing why he did not do so; that defendants in the ejectment suit, having neither actual nor constructive notice of any judgment upon which the execution was issued, could not be affected in their holding of the premises by the subsequent entry of a judgment nunc pro tunc, and, having acquired their title in good faith and for value, were entitled to the possession of the premises.
The principle in these cases is not applicable to the present. In those cases the parties were attempting to establish title through execution sales, where no judgment in fact had ever been entered, and by reason of which no execution could legally issue. The right which they asserted to the premises was dependent upon the validity of the proceedings, and no valid sale could be made except under an execution issued upon a valid judgment rendered prior to the time execution was issued. In the present case the gist of the action was the arrest and imprisonment of the plaintiff without probable cause. It is true that, under the rules of law, no action could be maintained for malicious prosecution until after the plaintiff had been legally discharged by the court. It was shown upon the trial that the plaintiff was discharged by the circuit court prior to the time he commenced this action, but, through negligence of the clerk, the judgment of discharge had not been entered. The judgment was subsequently entered of record in the circuit court, and the plaintiff was permitted to use that judgment entry in this, case as evidence of his discharge prior to the time he commenced his action. The court below very properly permitted this evidence of his discharge to be introduced on the trial of the case. It also appears from the proceedings had before the justice that he had no jurisdiction to enter a judgment of conviction under the complaint and warrant.
It is further contended that, inasmuch as the defendant stated all the facts within his knowledge to the justice which he claimed constituted the offense, and took the justice's advice whether they constituted probable cause, he was justified in making the complaint, and was not responsible thereafter for the proceedings which were subsequently taken. The court charged the jury upon that question:
"If the defendant went to the justice of the peace, and stated to him all of the facts within his knowledge, and merely followed the advice of the justice, then he cannot be held liable in this action; but it must appear from the evidence in the case that all of the facts concerning the taking of this scraper were laid before the justice, so that the conclusion that Holmes was liable for criminal prosecution was the operation of the mind of the justice based upon Mr. Horger's full statement to him, and not merely the operation of the mind of Mr. Horger.''
The testimony in the case fully justified this charge, and of which the defendant has no right to complain. No one can read this record without arriving at the conclusion that the defendant, Horger, persistently urged upon the justice that a warrant issue, and that he was actuated by a feeling of hatred against Holmes, and sought his arrest to gratify his revenge. He must have known that when the plaintiff took the scraper he did not intend to steal it, but that he was to use it upon the highway upon the public work.
Some other errors are claimed. We have examined them, hut do not consider them worthy oí notice.
Judgment must be affirmed.
The other Justices concurred. | [
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] |
Grant, J.
The relator is a stockholder in the St. Mary’s Falls Water-Power Company, a corporation organized under the laws of this State. He petitions for the writ of m.andamus to compel respondent to vacate an order denying him leave to intervene in a suit in equity wherein Amos J. McOlung, as trustee, is complainant, and said water-power company is defendant.
The company issued bonds to the amount of $11,000 and executed a mortgage, to secure them, to Mr. McOlung, as trustee. The company defaulted in its payments, and Mr. McOlung, at the request of the bondholders, filed a bill in equity to foreclose the mortgage. The bill was filed October 2, 1891. The company made no defense, and an order pro confesso was duly entered March 15, 1892. June 18, 1892, the relator filed a petition in the circuit court,, praying that said order pro confesso be set aside, and that he be allowed to intervene and answer the bill of complaint filed therein. At the same time he tendered an unsworn answer, charging fraud and collusion between the bondholders and the directors of the company, and that the bonds were fraudulently issued. His petition to intervene was duly sworn to, but in it his .charges of fraud and collusion are based entirely upon information and belief, and it contains no facts upon which his charges are made. In his proposed answer he denies that the bonds were issued for the purpose of purchasing or paying for any right of way, or in pursuance of any resolution of the company; alleges that they were issued for the fraudulent purpose of creating a debt against said company; that the money obtained for said bonds was. not used for the purpose of buying right of way, and that the secretary of the company was not a stockholder at the time he signed the bonds; that the purchase of an additional right of way was not authorized by a vote of the stockholders or directors, nor were the bonds so authorized. He also alleges that the banks, who are holders of some of said bonds, are not Iona fide innocent, purchasers and holders; that the chief officers of the banks, were stockholders in the company; and that some of tho officers of the banks were also directors in the company. The answer then proceeds to allege misconduct, mismanagement, and misappropriation of the fund on the part of the directors of the company.
To this petition to intervene, Mr. McOlung filed a sworn answer, to which were attached copies of the proceedings of the meetings of the stockholders and directors at which the mortgage and bonds were authorized, and also a sworn statement of the expenditures of the money received on the bonds, and a copy of the certificate of the stock of the secretary, showing that he was a director of the company.
The respondent returns that it was admitted by petitioner’s solicitor, in open court, upon the hearing of the petition* that the water-power company actually sold the bonds in question, and received the money therefor. He also returns that he became satisfied, from an examination of the petition and answer, and the papers filed in connection therewith, that the mortgage and bonds were valid, and in every way lawful, regular, and duly authorized; that their issue was ratified by the stockholders May 20, 1890; and that they were given, sold, and bought in good faith, for a valuable consideration, and that the proceeds thereof were received, and applied to the purposes authorized in the issue thereof. The record evidence produced at the hearing of the petition was directly contradictory of many of the assertions made in the proposed answer. The respondent also says, in his return, that he denied the application because it appeared from the evidence that justice would be promoted by so doing.
The relator, during all this time, was a resident at Sault Ste. Marie. He was a director in one of the banks which purchased $5,000 of the bonds. He was editor or proprietor of a newspaper in which the notices of the various proceedings were published. Previous to filing the petition in this case, he had filed a bill in chancery charging the directors with the mismanagement, etc., above referred to. That suit is still pending. Of course the misappropriation of the funds would not affect' the validity of the bonds, unless the bondholders were parties to such misappropriation.
In cases of this character the facts claimed as a basis of a charge of fraud should be specifically and fully set forth in the pleadings. Legal proceedings will not be restrained upon statements made upon information and belief. When a party desires to restrain such proceedings, and especially after a delay, when he appeals to the conscience and discretion of the court, he should place before it the sworn statements of those who are cognizant of the facts, and make their affidavits upon actual knowledge. If it be said that the case involves large interests, it will be replied that all the more is it the duty of . the party applying to be heard, and to secure the delay and stay of the proceedings, to state facts which will convince the ■court that he has a meritorious case, and that his delay is excused.
We do not think that the respondent abused the discretion reposed in him by the law, and the writ must be denied, with costs.
The other Justices concurred. | [
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] |
McGrath, J.
This is a bill filed to set aside a deed ■ given by complainant to defendant. The parties are brother and sister. Complainant is 68 years of age, and defendant 65. He is an only brother, and she an only sister. They ,came to this country in 1849, and settled in Nottawa township, St. Joseph county. They had $1,000, which was derived from their father’s estate, which sum he invested in his own name in farm lands, upon which they lived together 10 or 11 years, at the end of which time complainant married one Brown, and went to "Wayland, Allegan county. Her husband acquired the land in controversy, and died without issue some 15 or 20 year's ago. Prior to his death, he conveyed this land to complainant, and she has ever since' continued to live thereon. In December, 1888, complainant married Alonzo Smith, who lived with her on the farm until December, 1890, at which time they separated. The immediate cause of the separation was Smith’s anxiety to visit some relatives in the West. He claimed that at the time of their marriage it was understood that he should make this visit. lie had been at work upon the farm since their marriage, but had had very little money. She was penurious, and objected strenuously to his going. He was determined, and she said that if he went he need not return. Defendant was called in, articles of separation were executed, and Smith went west, remaining absent about three months. While there he wrote a letter .to defendant and one to his wife. Neither was answered. Complainant informed her brother of the receipt of the letter to her. He advised her not to reply, and she acted on his advice. On December 26, 1890, defendant wrote to complainant as follows:
“Dear Sister: I received your letter a few days ago. Were glad to hear that yon were well. I was surprised that you got a letter from Alonzo. I hope you will be careful enough not to answer it, or give him any encouragement to think that you have any respect for him. I consider him a regular sponge, that intends to beat his way if he possibly can. Little by little- he will encroach on you, until yon get tired or ashamed, and then he will think he has done something smart. Return his letter, or in some way give him to understand that he cannot impose on you any longer.”
Smith returned to Wayland, March 7, 1891. On that day defendant was at his sister’s house, and while there some person stopped at the gate and reported Smith’s return. Defendant says that he informed his sister of the fact; that she manifested some surprise; that he said to her: “You need not worry -about it or feel bad. If you don’t want to see him, you can fasten the door.” Complainant says that he told her that, if Smith came there, to lock the door, and not let him -in. On the same day, while defendant was on his way to the depot, he met Smith on the road, asked him where he was going, and Smith said he was going to see his wife. Defendant told Smith that according to the papers which had been prepared he had no wife; “ I says, c I forbid you going there to disturb that woman.’” After leaving Smith, defendant told Spielmacher, who was employed on the farm, and who was taking defendant to the depot, that if Smith came to the house, and Mrs. Smith did not want him there, to put him out, and he would pay all it cost. Smith called at the house twice that day, but found the door locked.
The deed in question was executed March 13, 1891. On the next day after the execution of the deed, Smith called at liis wife’s house, and found defendant there. Defendant says of this interview:
"I heard talk in the other room, and after I got through eating breakfast I went in there. Mr. Smith was there, and he said to me: ‘I come here to see Jane, whether she wanted me to come back. I feel as though I have an obligation resting on me without I hear from her own hand and her own mouth that she don’t want me back any more. I feel guilty, and I would like to see her.’ I said, ‘All right, I will ask her to come in here.’ I went to the barn, and asked Mr. Morris to come to the house and hear what would be said and done. So he came to the house, and opened the door between the two rooms. I said to sister, ‘Mr. Smith is here, and would like to talk with you.’ She came into the room, and he said, ‘Jane, I come to see if you wanted me to came back and live with you.’ ‘Well,’ she said, ‘I guess not. It would not be long before the same old trouble would be up again.’”
Smith left the house, and did not appear there again until March 20, 1891, when complainant went to the house where he was staying, about a mile and half distant, told him that her brother had been defrauding her, and solicited him to return and live Avith her; and they together returned to the farm, where they have since lived. Except as stated, from the time of his return to Wayland, Smith had not seen his wife, nor had they communicated with each other, until March 20, the date of his return to the farm. Within a very few days after the execution of the deed; and before complainant had seen her husband, except at the interview Avhen defendant was present, she learned of the nature of the paper executed, repudiated it, and declared that she had been deceived.
It is evident from this record that the deed was executed in consequence of Smith’s reappearance. Complainant insists that she had been informed by her brother that the purpose of Smith’s return was to get her property, and that the object of the paper was simply to protect her; that she was advised by her brother to have papers drawn up giving him control of the place, so, that he could keep Smith off; that she acted upon his advice; that she did not understand what kind of a paper her brother wanted for the purpose stated, but left it with him to determine, and that she did not understand that she was parting with the power of control over the property. Defendant insists that his sister had on several occasions expressed the intention that he should have her property upon her death; that the first conversation with her with reference to the execution of the deed was on the forenoon of the day upon which it is dated; that two days before that time he received a letter from her, which letter is alleged to have been lost, in which she stated that she had heard from her neighbors that there was a new law whereby a husband inherits half of the property of his wife dying without issue; that he called upon the judge of probate, who informed him that the statute did not interfere with the right of the wife to dispose of the property as she wished; that he then visited his sister, told her what the judge of probate had said, and they together went to the village, and the deed was executed and delivered.
The allegation of the answer that the conveyance was made in consideration of an indebtedness is wholly without support in the proofs.
There was nothing said in the interview with the scrivener who prepared the deed as to a purpose on her part to make a final disposition of the property, nor any expression of a desire to make her brother her beneficiary. She did, however, refer to Smith, and her troubles with him, and in the course of the conversation said that “ if she could not trust it to her brother, she could not trust anybody.” Some of the language which the scrivener says he used in explaining the instrument to her was calculated to convey the impression that the paper was what she supposed it to be. While he. says that he told her that she would have the use of the farm during her life, and at her death it would be the property of her brother, in the same connection he told her that “she could do as she pleased with it," and that “it would interfere in no way in her managing the property and controlling it during her life." He says that Cuddy “was the one that did the heft of the talking.”
The language of Mr. Justice Cooley in Duncombe v. Richards, 46 Mich. 166, 171, is applicable here. Referring to thé magistrate who prepared the paper, he says:
“His evidence shows clearly that defendant was the principal actor in procuring the assignments to be made, but- it also shows that the magistrate believed the intestate knew at the time what he was doing. But if, the magistrate suspected no wrong, — and apparently this was the fact, — he might easily have supposed he saw evidences of intelligence which were only apparent, not real.”
The question in the case is not whether complainant was mentally competent to execute a deed, but it is rather whether she intended at that time to make a final disposition of this property; whether she fully understood the-import and effect of the instrument which she did execute.. Until after the execution of this deed the relations between-the parties were most amicable. Her brother had always been her confidential adviser. She had the utmost confidence in him. After the death of her first husband, and until this time, her brother had directed her affairs and the conduct of the farm, even to the smallest details. It was her brother who selected not only her tenants, but her employés, who made the terms and directed what should be done, even as to what crops should be raised upon the different parcels of land. He had possession of whatever notes she held, and looked after her collections generally. He visited the farm frequently, every month, as was admitted, and gave directions. She relied implicitly upon him, and invariably replied with reference even to matters relating to the conduct of the farm that it “would be as Tom said.” She was penurious, and grew more so as she advanced in years. She was unacquainted with business,, was erratic, excitable, and not strong mentally. Her brother knew this. Spielmacher says that defendant “told me when I went there I should not pay much attention to her; I should go on and do what was right; and keep on ■doing so. He said if she said anything out of the way, or would offend me, to pay no attention to it.” When complainant demanded a reconveyance from defendant he refused to give it, giving as a reason, “because as a broth•er I cannot see you robbed.” She replied, “ ‘Well, I will ¡make you do it/ and I said, ‘Well, perhaps you will, but if you attempt to act very foolish it may be necessary to have a guardian appointed for you/” She had absolutely refused to let Smith have the money with which to go west, but it was her brother who suggested letting him go, .giving him $300 in consideration of his work upon the farm, and the preparation of the articles of separation, •and she at once consented. After Smith’s departure she went to the village, to have prepared a lease of the farm to W. Spielmacher had telegraphed to defendant of Iher intentions, and defendant met her at the village, objected to a lease to W., suggested a lease to M., and the same was executed. In every instance his will dominated hers. She was doggedly obstinate with others, but in his presence she had on all occasions acted on his suggestion. No instance is mentioned in which his wishes and directions were not acceded to. There is no room for the suggestion that Smith had induced her to regret the]disposition of her property, and change her mind. She repudiated the transaction before any conference with Smith, ,aDd as soon as she learned that the paper executed was irrevocable, and vested the title in her brother absolutely.
Hnder th°e circumstances of this case, the burden was upon the defendant to show not only that complainant fully understood the terms, import, and effect of the instrument executed, but, if her intent was as expressed by that instrument, to show that such intention was not produced by undue influence exerted by himself. Gibson v. Jeyes, 6 Ves. 266; Huguenin v. Baseley, 14 Id. 273; Hoghton v. Hoghton, 11 Eng. Law & Eq. 134. Defendant's testimony fails to satisfy us upon either, point. Transactions of this nature are regarded by courts of equity with suspicion, and scrutinized with vigilance. The presumption is against the propriety of the transaction, and, as has been frequently said in our own cases, the duty of courts is to refuse judicial sanction to such an instrument until fully satisfied of the fairness of the transaction, and that the instrument is the intelligent act of the person executing it. Seeley v. Price, 14 Mich. 541; Witbeck v. Witbeck, 25 Id. 439; Wartemberg v. Spiegel, 31 Id. 400; Barnes v. Brown, 33 Id. 146; Duncombe v. Richards, 46 Id. 166; Jacox v. Jacox, 40 Id. 473; Finegan v. Theisen, 93 Id. 173.
In Jacox v. Jacox, Mr. Justice Graves says:
‘'The actual conduct of relatives and others at the time in question towards the individual is generally of much greater value as proof of their conception of his mind or capacity than any term they may employ on the stand to express it."
In the present case, the best evidence of the incapacity of the complainant in matters of business was the almost absolute control which defendant assumed and exercised over her business affairs. Continuing, Mr. Justice Graves says:
“ In case it appears from the facts that there was mental disorder, but not of a high degree or far advanced, it then becomes material to inquire into the nature of the transaction, and the influences leading to it; and if the circumstances disclose that the person under the infirmity, whether through choice, accident, or otherwise, was as matter of fact for the time being in the place of ward of the other party, or was by his own consent, however brought about, in a state of submission to the judgment or opinion of the other, a presumption will arise adverse to the justice and equity of the bargain, and the bargainee will be required to show that no advantage was taken, and that in itself the arrangement was not only suitable, fair, and conscientious, but one expedient under the circumstances, and conducive to the interests of the other."
The decree below must therefore be reversed, and a decree entered here for complainant, ordering a reconveyance, the decree to stand in lieu of such reconveyance until the same is made, with costs of both courts to complainant.
Hooker, C. J., Long and Montgomery, JJ., concurred with McGrath, J. | [
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] |
McGrath, J.
Plaintiff’s intestate, a boy 6 years, 11 months, and 10 days old, was run over and killed by one of defendant’s cars. Defendant operated a street railway -on Trumbull avenue, Howard, Seventh, and Congress streets, in the city of Detroit. A one-horse car was being driven east on Howard street, between Eighth and Seventh streets. The Seventh street track is used in common by the Baker street line. The driver stopped his car before reaching Seventh, and ran forward to see if there was a Baker street car coming north, and, finding none, returned to his car, and found the boy' on the front platform of the car. The driver started his car, turned south on Seventh,, and the boy was run over just south of Lafayette avenue, a little over one block from Howard street.
The driver, upon his direct examination, stated that, when he returned to his car, on Howard- street, he told the boy to get off; that the boy said he would get off' when he got around the curve, meaning the curve at the corner of Howard and Seventh; that the boy did not get off when the car had passed the curve; that when the car reached the south crossing he slackened the car very near a stop, and told the boy to get off, but the boy made no-move, and,—
“ When I got over the crossing a little ways, I stopped the car to a dead, and told him he must get off. At that he stepped off. ’ I started the car off, letting the brake off, and it didn’t go more than four feet before I felt a jar, or the car going over something. I stopped immediately, and the boy was under it. I don’t think I was over a-car-length, or a car and a half, over the Lafayette crossing, when I stopped the car.”
On cross-examination the attention of the witness was called to his testimony taken at the coroner’s inquest, in which he stated that—
“He didn’t get off that time, and waited until I got over the crossing, and I slackened down again, going very slow; and I told him he would have to get off, or get me-into trouble. So I stopped the car, but he got off before I could stop it. The car was then going very slow, nearly at a stop, when he got off, and got on his feet backwards,, and let go.”
Other testimony tended to show that Fort street is considerably lower than Lafayette; that the accident occurred near the alley south of Lafayette, or about 60 feet south of Lafayette. A passenger upon the car testified that the car did not stop after leaving Howard street, until after the accident; that he saw the boy get off the car; that just after the boy stepped off the car he noticed the car going •■over something; that he heard “them speaking” just as the boy got off, but could not tell what was said. Another witness stated that she saw the accident; that she heard the driver tell the boy to get off; that the car was going at the time he told the boy to get off, and when the boy got off.
The boy did not fall off because allowed to remain on the platform. There was no evidence tending to show that he was merely permitted to get off the car, or that ■the driver was guilty of only a careless disregard of the boy's presence on the car. Even if it were true that the •driver was applying the brake to stop the car so as to allow the boy to get off, and the boy, without being ■ordered so to do, and without waiting for the car to stop, jumped off, the driver having no reason to expect that he would do so, it does not. follow that the driver was guilty of negligence. The same result might have followed if he had been riding in the car box.
This boy was less than seven years of age. He had not jumped upon the car while it was in motion. He was on the front platform of the car, beside the driver, to the driver's knowledge, when the car started. He had been permitted to ride for some distance. Having permitted him to remain upon the car, the driver had no right to ■expect him to get off, or to compel him to get off, or to •order him to get off, without giving him an opportunity .so to do with safety. Even the refusal of an adult to pay his fare would not authorize the conductor to eject him from a moving car. Here, the permission extended to a mere child must be held equivalent to an invitation, .so far as the degree of care which defendant was bound to exercise was concerned. As is said in Powers v. Harlow, 53 Mich. 507, 515:
“ Children, wherever they go, must be expected to act ■upon childish instincts and impulses; and others, who are ■chargeable with a duty of care and caution towards them, must calculate upon this, and take precautions accordingly.”
Even upon the driver’s own testimony, he had ordered the boy from the car three times: First, before the car started, when the boy told him he would “jump off” after the car passed the curve; second, at the south side of Lafayette, while the car was moving; and, third, at the time that the boy did jump off. There was testimony tending to show that when he was ordered off the third time the car was at a standstill; but a passenger upon the •car, and a witness who was upon the sidewalk, and who saw the boy, and heard the driver order him off, say that the car was moving. The question of merely permitting the boy to get off was not the negligence which plaintiff’s proofs tended to disclose. The second count of the declaration alleged that the boy had been put off, or ordered off, while the car was in motion, and there wras proof tending to establish that allegation. The jury should have been directed to that question.
The charge of the court that, “if the boy knew what his father meant when he warned him not to go on the car, then he was not entitled to the same degree of care .as an innocent child, \vho gets onto a car without any' warning,” was clearly erroneous. -The father of the boy testified that he had “warned the boy not to be jumping •on the cars; to keep off the cars, and away from them; and that he punished him when he found that he did go there.” There was no testimony tending to show that he ■explained the danger and risk to the boy. He simply threatened to punish him if he did it, and he probably .meant what he said.
It was a question for the 'jury whether the driver was negligent if he ordered the boy to get off while the car was in motion, or whether he should have first stopped the car, and then ordered the boy to get off.
While plaintiff was upon the stand the court said:
“1 don't see what damages the parents would suffer for the death of a child six years of age. You are entitled to their services until they are 21, but it costs a great deal, more to raise them than they can suffer."
The questions of plaintiff's damage, and the value off decedent's services less the expenses of care and support,, were questions for the jury, and not for the court.
It was suggested upon the hearing that judgment had not been entered when the writ of error was sued out. The' writ issued February 24, 1892, returnable March 29,. 1892. The bill of exceptions was settled in March-Judgment was entered April 8, 1892. The time for the' return to the writ of error was extended to May 5, 1892,. and the return was filed here April .21, 1892. Two full terms had intervened before the hearing, and no motion to dismiss was made. The objection comes too late. Tha judgment affected is that appearing in the return.
The judgment is reversed, and a new trial awarded*
The other Justices concurred. | [
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] |
McGrath, J.
Plaintiff had been for some five days at Muskegon, engaged in soliciting orders for trees or shrubbery, and had taken several orders. He boarded at a private house, at which several other persons were at the time boarding. Defendant, who is the sheriff of Muskegon county, on the 14th of December, 1891, received from one Cane, the sheriff of Isabella county, by letter, information that in August, 1891, one Reynolds had eloped from Mt. Pleasant with a Mrs. Nichols, the pair taking with them the five children of the latter. The letter contained a description of Reynolds and Mrs. Nichols, and a photograph of the former. On receipt of this information, defendant telegraphed to Cane that he thought his man was at Muskegon. Cane replied, stating that he had a warrant for Reynold's arrest, and requested that he be arrested and held. Plaintiff was arrested accordingly. Cane arrived the next day, and declared that plaintiff was not the man, and plaintiff was discharged, and he now brings suit for false imprisonment.
The defense was that defendant acted in good faith; that there was a striking resemblance between the photograph and plaintiff; that on the 11th of December a woman who had been boarding at the same place had been arrested-for larceny; that this woman had at first given her name as Campbell, and again as Nichols.
The court instructed the jury that—
“In all cases of felony an officer has a right to arrest without a warrant, and may arrest on suspicion alone, and may justify such arrest by showing facts and circumstances upon which, in good faith, he had the suspicion of the guilt of the party arrested, and such suspicion, if well grounded, may be a complete justification of the arrest of the party charged; so that, in this case, if you find that the defendant had good reason to believe, and in good faith did believe, that the plaintiff, Filer, was guilty of the crime of adultery, then defendant would be warranted in making the arrest upon such charge, and holding him therefor."
This instruction could not fail to mislead the jury, under the circumstances of this case. A prosecution for adultery can only be instituted in this State by the husband or wife of one of the parties to the crime. Whatever suspicions an officer may have, he has no right to make an arrest for adultery, of his own motion. There was no charge of adultery against Filer, and no ground for suspecting him guilty of that offense.
If a warrant was in fact issued, defendant would have had an undoubted right to arrest Reynolds. Brennan v. People, 10 Mich. 169. The question here is, was defendant justified in arresting plaintiff, under 'the circumstances detailed by him? He claims to have relied, first, on the resemblance indicated by the photograph; and, second, upon the fact that the woman arrested December 11 gave her name, on one occasion, as “Nichols.” Eeynolds was described in the letter as 50 years of age; plaintiff was 38. This woman had two children; the fugitive had five. There was nothing suspicious about plaintiff’s conduct. Defendant had seen him several times before the arrest under circumstances which indicated that plaintiff knew that he was the sheriff. Plaintiff was present at the house when the sheriff was there with Mrs. Campbell in his custody. Plaintiff knew of her arrest, and the sheriff knew that he was aware of the fact of her arrest. Plaintiff evinced no uneasiness because of her arrest, nor had he manifested any concern regarding it, more than might have been manifested by any one of the boarders at the house. He continued to remain there for several days after her arrest. Mt. Pleasant was but about 100 miles away. It appears that, at the boarding-house, plaintiff was known as Mr. Filer, and the woman as Mrs. Campbell. There was no testimony that defendant had at any time before the arrest made any inquiry, at the boarding-house or elsewhere, as to the nature of plaintiff’s business, his name, the length of his stay at Muskegon, what his relations were with Mrs. Campbell or Mrs. Nichols, or as to how long Mrs. Campbell had been in the city; nor was there any evidence of any improper relations between plaintiff and Mrs. Campbell, or that there had been any intimacy between the two, or that there was. anything ’more than a boarding-house acquaintance between them. When plaintiff was arrested, he protested against his arrest; insisted that his name was not Eeynolds, but that it was Filer; exhibited his memorandum-book, with the name “A. C. Filer” printed in gilt letters upon the back; took from his pocket certain letters that he had received at Muskegon, addressed to A. C. Filer, and showed the postmark thereon; exhibited a tax receipt for taxes paid at Battle Creek; and later gave the name of the cashier of ■one - of the banks at Kalamazoo, and desired that he be telegraphed to; but, notwithstanding, he was locked up at 1 o'clock in the daytime, and kept in jail, in the ward with other prisoners, for 30 hours.
It is undoubtedly true that an officer is justified in making the arrest of a person formally charged with an offense, though it turns out that the person so charged is innocent; 'so, if he makes an arrest for a felony without a warrant, ■although he has no personal knowledge, but acts upon information received from one whom he has reason to rely upon, and although it may be that the person so charged is not guilty, or no felony in fact has been committed. Samuel v. Payne, 1 Doug. 359; Hobbs v. Branscomb, 3 Camp. 420; Holley v. Mix, 3 Wend. 350; Burns v. Erben, 40 N. Y. 463; Cahill v. People, 106 Ill. 621; Crock. Sher. § 49; 1 Chit. Crim. Law, 22. In Williams v. Dawson, referred to in Hobbs v. Branscomb, supra, Buller, J., laid down the rule “ that if a peace officer, of his own head, takes a person into custody on suspicion, he must prove that there was such a crime committed.”
The rule is laid down by Mr. Bigelow, in his work on Torts (4th ed. p. 140), that—
“The officer, in executing his process, must arrest the person named in it. If he do not, though the arrest of the wrong person was made through mere mistake, it may be a case of false imprisonment.”
Citing Coote v. Lighworth, F. Moore, 457; Dunston v. Paterson, 2 C. B. N. S. 495. A number of authorities may be cited in support of this rule: Add. Torts, § 805; Davies v. Jenkins, 11 Mees. & W. 754; Gwynne, Sher. 99; Griswold v. Sedgwick, 6 Cow. 460; Lavina v. State, 63 Ga. 513; Hays v. Creary, 60 Tex. 445; Comer v. Knowles, 17 Kan. 436. I do not think, however, that an officer who, through an honest mistake, and after such an investigation into the facts and circumstances as the particular case enables him to make, upon a charge of felonjr, arrests a party, having reasonable grounds to suppose him to be the _ guilty party, and the one named in his 'warrant, is liable to the arrested party, who turns out to be innocent, for whatever damages he may suffer in consequence of'the arrest. Such a rule would materially interfere with the apprehension of fugitives from justice. Probable cause is a justification for criminal proceedings. Criminals who seek safety in flight are usually apprehended through officers in other localities, and by means of photographs and descriptions of the person. As is said in Brockway v. Crawford, 3 Jones (N. C.), 433,—
“The law encourages every one, as well private citizens as officers, to keep a sharp lookout for the apprehension of felons, by holding them exempt from responsibility for an arrest or prosecution, although the party charged turns out not to be guilty, unless the arrest is made, or the prosecution is instituted, without probable cause, and from malice.'”
In Eanes v. State, 6 Humph. 53, a murder had been committed in Franklin county by one Payne, who made his escape, and the governor issued a proclamation offering a reward for the apprehension of the criminal. One Martin was arrested in Sullivan county. The particulars of personal description annexed to the governor’s proclamation applied in some respects to Martin, and in others did not. The court say:
“The liberty of the citizen is so highly regarded that the officer arresting a supposed felon without warrant must act in good faith, and upon grounds of probable suspicion that the person to be arrested is the actual felon. If he may not, under such circumstances, make an arrest, the escape of criminals would be but little obstructed by the official proclamation of the governor, and the police of the state, instead of being, as public policy urgently requires, vigilant and effective, would be altogether the contrary.”
The rule was laid down in Maliniemi v. Gronlund, 92 Mich. 222, that a private person has a right to arrest a man on suspicion of felony, without a warrant, but if he does, and it turns out .that the wrong man is imprisoned, he must be prepared to show, in justification, first, that a felony has been committed; and, second, that the circumstances under which he acted were such that any reasonable person, acting without passion or prejudice, would have fairly suspected that the plaintiff committed it, or was implicated in it. This rule is supported by a long line of authorities. Cooley, Torts (2d ed.), p. 202, and cases cited. But, as Mr. Cooley says,—
“A peace officer may properly be treated with more indulgence, because he is specially charged with a duty in the enforcement of the laws. If by him an arrest is made on reasonable grounds of belief, he will be excused, even though it appear afterwards that in fact no felony had been committed.” 7 Amer. & Eng. Enc. Law, p. 675, and cases cited.
In Rohan v. Sawin, 5 Cush. 281, the court say:
“The public safety, and the due apprehension of criminals charged with heinous offences, imperiously require that such arrests should be made without warrant by officers of the law. * * * As to constables and other peace officers, acting officially, the law clothes them with greater authority [than private persons], and they are held to be justified if they.act, in making the arrest, upon probable and reasonable grounds for believing the party guilty of a felony; and this is all that is necessary for them to show in order to sustain a justification of an arrest for the purpose of detaining the party to await further proceedings, under a complaint on oath, and a warrant thereon.”
Upon the same principle, and for the same reason, an officer making an arrest upon a warrant, or upon knowl edge that a warrant is out, of one whose person is unknown to him, who can, under the circumstances, only act, if he act at all, upon photograph or description, or both, should be excused, if he acts honestly and prudently, making such inquiry and examination as the circumstances of each particular case afford him an opportunity to make. It is practically impossible to apprehend runaways in any other way, and the protection of society from these major crimes demands that some latitude be given to these officers of the law, who are separated from local influences and clamor, and must be presumed to act fairly and honestly.
But in all such cases, where the facts are not disputed, the question of probable cause is one of law, for the' court. Hamilton v. Smith, 39 Mich. 222, 227; Burns v. Erben, 40 N. Y. 463; McCarthy v. DeArmit, 99 Penn. St. 63. To afford a justification, there must be not only a real belief, and reasonable grounds for it (1 Chit. Or. Law, 15), but, where there is an opportunity for inquiry and investigation, inquiry and investigation should be made. Iff Holley v. Mix, 3 Wend. 350, the court, referring to an arrest made upon information received, say:
“ The officer should not, however, receive every idle rumor, but should make such diligent inquiry touching the truth of the charge as the circumstances will permit, before he assumes to arrest one upon the information of •another.”
Defendant was bound to use all reasonable means to avoid possible mistake, and the arrest of an innocent man. Stanton v. Hart, 27 Mich. 539, 541. He was not justified in relying upon a personal resemblance, as indicated by a comparison with a photograph (Sugg v. Pool, 2 Stew. & P. 196), especially as there was, within easy reach, means of identification. He says he did not know, and did not ask, plaintiffs name or business, until after the arrest. A few moments devoted to inquiry at the boarding-house would have revealed the situation, and would have shown that there was no reason for associating him with the woman in. question. An officer is not warranted in relying upon circumstances deemed by him suspicious, when the' means are at hand of either verifying or dissipating those suspicions without risk; and he neglects to avail himself of those means. The case made by defendant did not justify the arrest, and the jury should have been so instructed.
The court erred in admitting the testimony of defendant as to the opinion of Hunsberger and Johnson, given after the arrest, as to the resemblance between the photograph and plaintiff. Both plaintiff and photograph were in court, and before the jury.
The testimony of the attorneys as to the advice given to defendant was clearly inadmissible. It did not appear just what facts were stated upon which the advice was predicated. In no event could advice given after the arrest was made justify the arrest. Even though admissible as bearing upon the question of subsequent detention, it should appear that it was predicated upon a full disclosure of all the facts, an examination of all the evidences of identification offered by plaintiff, and a disclosure of whatever suggestions had been made by plaintiff regarding his identity. The opinions of these witnesses as to the resemblance between plaintiff and the photograph were likewise inadmissible.
The fact of the publication in a newspaper of the fact of plaintiffs arrest was set up in the declaration; and as tending to show the publicity given to that fact, and consequent injury, the publication should have been admitted. It was a plain, unvarnished account. Its publication was privileged. The general rule of law is that whoever does an illegal or wrongful act is answerable for all the consequences that ensue in the ordinary and natural course of events, though those consequences be immediately brought about by intervening agents, provided such agents were set in motion by tbe primary wrong-doer, or provided those acts causing the damage were the necessary or legal and natural consequence of the wrongful act. The publication was such a natural, usual, and ordinary consequence of defendant’s act that it must be deemed to have been contemplated.
It follows that the judgment must be reversed, and a new trial ordered.
Grant, J., concurred with McGrath, J.
Montgomery, J.
I agree with my Brother McGrath that it is generally a question of law as to what constitutes probable cause to justify an arrest without warrant. But it is apparent at a glance that the rule is not one susceptible of establishing a general test, by which the question may be determined in all cases. Generally, it is a justification if sufficient facts are known to the officer to justify a reasonable belief that a crime has been committed, and that the party arrested is the guilty party. I am not prepared to say, however, that it should be held, as matter of law, in the present case, that the resemblance of the plaintiff to the photograph of the person alleged to have committed the offense is not, when coupled with the other facts proven, sufficient to justify the officer, but whether there Avas justification must depend upon the closeness of the resemblance betAveen the photograph and the person arrested. It is manifest that this precise question is one that cannot be determined as matter of law, and should, therefore, be submitted to the jury. The language of the court in Cochran v. Toher, 14 Minn. 385, is peculiarly applicable to this case:
“It is manifest that no finding of specific facts could be made by the jury, not embracing a conclusion as to the reasonable effect of the same in fact, from which, under any rule of law, the court could pronounce the con elusion, as a legal inference, that they did or did not constitute reasonable cause."
In the present case it would seem that the party arrested had recently come to the county of his arrest; that he was boarding at the same house with a woman who was believed to answer somewhat to the description of the woman with whom the party accused had eloped. The officer, at the time of the arrest, had in his possession a photograph of the accused party, and had information that a warrant was issued for his arrest, and, upon discovering a resemblance between the present plaintiff and such accused party, caused the plaintiffs arrest. In my judgment, whether the arrest was justified under these circumstances depended upon whether the resemblance was so striking as to be convincing to a man of ordinary prudence and good judgment, and this question should have gone to the jury.
I concur with my Brother McGrath on the other-grounds.
The judgment should be reversed, and a new trial ordered.
Hooker, C. J., and Long, J., concurred with Montgomery, J. | [
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Montgomery, J.
On the 12th day of October, 1891, one-Dennis McCarty, who was engaged in business at Ishpeming,. gave a chattel mortgage to plaintiff, in the sum of $3,500,. covering the stock then in his store, and all additions to-the stock. The mortgage was withheld from record until December 22,1891, when it was duly filed. January 25, 1892, McCarty made a general assignment to the defendant, who took possession, and advertised the stock for sale. February 18, 1892, Kennedy demanded possession, and, on the refusal of the assignee to deliver the goods into his possession, brought the present action of replevin, claiming the right to possession under the insecurity clause of his mortgage. It appears that McCarty continued to buy goods, and made purchases to the amount of $1,057.87, after the giving of the mortgage, and prior to its filing. On the trial the jury found that there was no fraud in fact in the making of this mortgage; that the value of the goods replevied was $3,936.53; that the amount of plaintiffs mortgage was $3,633.58; that creditors for goods sold the mortgagor after the making of the mortgage, and before its filing, held claims to the amount- of $1,057.87; and thereupon the circuit judge ordered judgment to be entered for 6 cents damages and costs in favor of plaintiff, and for the defendant, for a special lien for the amount of $1,057.87. Both parties bring errpr.
The plaintiff contends that the lien of the creditors cannot be greater than is necessary for the protection of those who sold goods to McCarty after the making of the mortgage, and before it was filed, and whose debts remained unpaid; and it is claimed that the evidence shows that a portion of these goods were paid for by. plaintiff, or purchased by him, before the trial of this case. On the part of the defendant it is contended that the rights of the parties cannot be worked out in this proceeding; that under the general assignment law, there being no action permitted on the part of individual creditors to attain or assert their rights in preference to other creditors equally unsecured, the general assignee must hold the goods which have come into his possession until such rights have been determined in proceedings taken under the assignment law itself, and that otherwise such creditors would be without remedy. In part, this contention is correct. But we think there is no difficulty in holding that there is a party before the court who. can amply protect the rights of all the creditors. The assignee is the representative of all the creditors, including those whose rights were injuriously affected by withholding the mortgage from record. As a representative of such creditors, he had the right to retain possession for their protection. "We find, on examination of the record, that there was evidence tending to show that a portion of the indebtedness for which the defendant was given a lien had become the property of the plaintiff. This 'evidence was doubtless overlooked by the circuit judge, as it cannot be that the defendant can enforce against the plaintiff a lien on account of a debt due the plaintiff himself. We think, however, the defendant is right in his contention that when this suit was instituted he was entitled to possession, as against the plaintiff, as a representative of the creditors as to whose claims the mortgage was void, and that, -therefore, the general verdict should not have been for the plaintiff, - but for the defendant.
Can the rights of the parties be worked out in this replevin suit? And, if so, what should be the form of the judgment? The deed of assignment transferred to the defendant the general title of the goods, subject to the plaintiff’s lien, and, in addition to this, a lien on the property, as a representative of the special class of creditors, which lien was entitled to precedence over that of the plaintiff. Furthermore, this right of these creditors extends further than this. It -is clear that they may elect to proceed against that part of the property which would be essential to satisfy the plaintiff’s debt, and the result must be, therefore, the reduction of the plaintiff’s lien by ■so much as their claims entitled to priority amount to. If this were not so, then the general creditors would find their funds reduced by the amount of the newly-established lien in favor of these special creditors. This would be manifestly unjust to the unsecured creditors, and should not be permitted. The mortgagee, being in fault, must bear the loss. In Root & Co. v. Harl, 62 Mich. 423, the rule of distribution was established. It was there held that "the special class of creditors, standing in the relation occupied by the special creditors whose rights are involved in this case, were entitled to take the place of the mortgagee to the extent of the amount of- their claims, and that the mortgage was therefore entitled to preference only to the amount of the balance due after deducting the claim allowed to the preferred creditors. This being so, the rights of the parties to this suit are these;
1. The plaintiff having failed to tender the amount of the special lien for the protection of which the assignee, as a representative of the special creditors, was entitled to hold possession of the property, the defendant is entitled to a general verdict, and to costs of the court below.
2. The defendant, having waived a return of the goods, is entitled to a verdict for the value of the property, less the plaintiff’s lien, which is entitled to priority over the general creditors.
3. The amount of the plaintiff’s lien which is entitled to priority over the general creditors will be ascertained by deducting the amount of the claims due the creditors who have either extended credit, or the term of credit, after the making of the mortgage, and before the filing, as well .as the claims of any others who have been prejudiced by the delay, from the amount found due on his mortgage.
It may be added, while not necessary for a determination of this case, that, as to any indebtedness due to the plaintiff not realized by these proceedings, he would be •entitled to seek, and may have, his remedy on the general •distribution of the funds by the assignee.
The judgment will be reversed, and a ■ new trial ordered. Neither party will recover costs in this Court.
The other Justices concurred. | [
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Moore, J.
Plaintiff brought this suit against the defendant for damages to his interests in certain crops on what is known as the Pelkey farm of 200 acres. The main line of the Detroit & Mackinac Rail way Company was built across the farm, which is and always has been low and comparatively level land. In a -state of nature there was a creek running in a northeasterly course and then in a northwesterly course across this farm. The defendant in order to take care of the water which flowed through this creek constructed at the time the railroad was built two culverts under the railroad track. These culverts were about 800 feet apart. About 1909 the defendant took out these culverts and dug a ditch along the west side of its track to carry off the water. It also put in a new culvert in the place of the northerly one. It is the claim of the plaintiff that the northerly culvert which was built of wood was at least three by five feet in size, and that it was replaced by an iron pipe only two feet in diameter, and that as a result of these changes his crops were greatly damaged because of an excess of water.
It is the claim of the defendant that after the changes were made the water would flow away from the crops of plaintiff as freely as before, and that if they suffered from too much water it was because the seasons were unusually wet and because the plaintiff did not keep his own ditches in condition so the water could escape.
The case was bitterly contested. The plaintiff swore in his behalf 9 witnesses besides himself, one of whom was an engineer, the others of whom were farmers and all of whom testified to their personal observations of the farm. The defendant swore on its behalf 14 witnesses, many of whom were engineers who testified as to measurements made by them. The defendant requested a directed verdict. This was refused. The plaintiff sued to recover $8,630. The jury returned a verdict in his favor for $1,236.67. A motion was made for a new trial, counsel claiming many errors were committed and requested the court in case it denied the motion to file his reasons in writing for so doing. The motion was overruled, the judge saying:
“In this cause the motion for a new trial is hereby denied. Under the testimony it is a question of fact whether the ditch along the defendant’s right of way furnished as free an outlet for the water as did culvert No. 2 prior to its being closed by defendant.”
A motion was made for further findings and the filing of additional reasons. This motion was overruled. The judge expressed himself as follows:
“In this cause, the court having stated the reasons for denying defendant’s motion for a new trial as far as deemed necessary for a correct understanding, under the pleadings and evidence, of the action of the court, the request for additional reasons is hereby denied, and the reasons assigned in the original order denying the motion for a new trial are hereby repeated.”
Exceptions were duly taken and the case is brought here by writ of error.
As there are upwards of 50 assignments of error, it is manifestly impossible to discuss each of them without making this opinion quite too long. It is urged strongly that the court should have directed a verdict. We quote from the brief of counsel:
“There is a decided distinction between expert testimony as to facts which can be determined to a moral certainty, and expert evidence incapable of definite determination. To illustrate: A physician may testify as an expert concerning the physical condition of a person, which goes no further than his opinion based upon his knowledge, education, experience and skill. While on the other hand a carpenter and joiner, or a civil engineer can testify to measurements and conditions which are not opinions, but are the results of correct calculations. * * *
“There was abundant evidence in the case that the land was not reasonably drained. There was no evidence in the case from start to finish indicating that the draining facilities on defendant’s right of way did not carry off reasonably all water that came to such right of way from the old creek which meandered over the land. Why conjecture and speculate respecting the inefficiency of the drains on the defendant’s right of way.
“For the sake of argument, if we should assume that there was evidence in the case that the right of way drain was insufficient, where is the evidence indicating to what extent it was inefficient? Nor was there evidence that lack of drainage on the land didn’t contribute to the damages.
“If by lack of proper ditches on the land nine-tenths of the damage accrued, and by lack of proper outlet on the right of way one-tenth of the damage accrued, how could a jury reasonably and fairly determine such facts on the evidence submitted?”
We think this contention overlooks the respective duties of the trial judge and the jury. While the defendant claimed the ditch built when the southerly culvert was filled was adequate to carry away the water, there was testimony that near the middle of the ditch it was 1.4 feet higher than at the ends and that it would not carry away the water as had been done previously. There was also testimony that the northerly culvert as reconstructed had only about one-fourth of the capacity of the old culvert and did not relieve the land of water as was done under the old conditions. The testimony was in sharp conflict and presented questions of fact for the jury.
Mr. Clark made use of a memorandum called Exhibit A. Mr. Clark used this paper to refresh his recollection for a time without objection, upon the theory that he helped prepare it. Later it turned out it was not the paper he helped prepare, and a motion was made in relation to its use. The trial judge charged the jury as to it in part:
“Considerable has been said concerning the testimony of plaintiff. When he appeared upon the wit ness stand in the first instance Mr. Clark made use of a paper from which to refresh his recollection, his memory. His statement and the use of this paper presented a question that later was referred to the court, presented a legal question, and the court admitted it or at least did not reject it, but allowed it to go to the jury. Later Mr. Clark came upon the witness stand and testified concerning this paper. Under his explanations made on ,his second appearance as a witness it became clearly apparent that the paper or memorandum from which he refreshed his recollection on his previous appearance was not such a paper as he was entitled to make use of, and all his testimony that you find in this case based upon that paper, that memorandum in writing, is withdrawn from your consideration. It was based largely upon statements and information made by one Pelkey, former owner of the premises who is since deceased. For that and other reasons the paper was not one with which any witness would be permitted to refresh his recollection. Later Mr. Clark appeared and gave testimony which he claimed to be on his own independent knowledge. He said he had reflected, thought the matter over, and that he remembered certain things independent of the former memorandum. Such testimony of Mr. Clark’s as you find based upon his knowledge, upon his. own memory and recollection, you are entitled to receive, and to give it such weight as you deem it worth. Any testimony of Mr. Clark or any other witness which is based upon statements made by Mr. Pelkey during his lifetime are withdrawn from your consideration * * * and all testimony based upon it, all testimony of any witness not within his own knowledge based on the testimony of Mr. Pelkey is withdrawn.
“The statements made by Mr. Clark and by other witnesses as upon their knowledge are to. be received by you and given such weight as you deem it worthy of receiving; you are to accept or reject it as you consider it worthy of belief; if,, however, in the first instance he stated his inability to testify as to those facts excepting as he refreshed his memory you should closely scan his testimony when he later appears on the witness stand and testified as to his own knowl edge; that is one of the things you should consider as causing you to question his actual knowledge.
“That is one of the things in the case that tends to raise the question of the credibility of a witness, and that he has wilfully possibly testified falsely, and as to whether he actually did know the facts concerning which he testified upon his second appearance. Now that is an issue in this case, and as I say, you have a right to believe his second statements or disbelieve them, as you consider he was actually possessed of the knowledge or not concerning which he testified.”
The trial judge charged the jury more in detail in relation to this phase of the case and we do not think the jury was in doubt as to its duty in relation to this testimony.
The plaintiff’s case' did not depend entirely upon the testimony of Mr. Clark, but was established in its essentials by the testimony of other witnesses if the jury believed them.
The jury was instructed:
“All the duty that rested upon the defendant Fas to provide a means of escape for the water equal to the natural flow from these premises, and the damages if any must be upon the theory that they impounded or held back the water, and that the plaintiff suffered damages in excess of what he would have sustained by the overflowing of his lands if the water had not been impounded and held back. If there was too much water on the premises in question plaintiff would have suffered something to some extent. Now in what proportion has he suffered more than he would have suffered had culvert No. 2 been left as it was, he is entitled to recover damages. It is the excess damages that he has sustained or lost for which this action is brought. The water was there anyway, and the question is, Was it held there longer by reason of the act of defendant than it would have been otherwise? In other words, Did the closing of this culvert and the opening up of this ditch keep the water longer on plaintiff's premises than it would have been detained there had the change not been made? If it did then defendant is liable for the damages which actually occurred to plaintiff on the west side of the railroad by reason of the changes which they made. The damages allowed could not exceed the value of the crops less the expense of harvesting them and marketing them. * * *
“Plaintiff can only recover for the money which he would have had after he had harvested his crops and paid all the expenses of taking care of the marketing. The net profits are all that go to make up the damages, provided you find plaintiff entitled to recover.
“That covers the years 1910, 1911, and 1914 on the west side.
“The same law applies to the premises lying east of the right of way, but there is only one year there on the east side, and on the west side he was a tenant and only entitled to one-half the crops, only one-half of the entire crops; Mr. Pelkey owned one-half of the crops, and in this action it is not proper to recover anything for the Pelkey interest but merely the interest of the plaintiff himself.
“The plaintiff did own the land on the east side, and is entitled to recover for the entire loss sustained; if you find there is a liability on the part of the defendant the same law applies.”
We have quoted only a portion of the charge upon this phase of the case, but the jury were told over and over again that unless the changes made damaged plaintiff’s crops he could not recover, that if they did he could recover. The deciding questions were questions of fact about which the testimony was in conflict. These questions were fairly submitted.
It is said that upon the question of damages the testimony offered on the part of the plaintiff is so conjectural and speculative as not to offer a basis for an intelligent verdict, counsel citing Patrick v. Howard, 47 Mich. 40, and People v. Thompson, 122 Mich. 480. An examination of the opinions in the cases cited show them easily distinguishable from the instant case. The witnesses in this case testified to the ca pacity of the land to grow crops before the change, and to its diminished capacity after the change, going into details as to what they had observed. The case is more like Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308, and Witheral v. Booming Co., 68 Mich. 48. There was abundance of evidence, if believed, to justify the verdict.
One other question calls for discussion, and that is the claim that the failure of the trial judge to file a fuller statement of his reasons for overruling the motion for a new trial is reversible error. A similar situation is disclosed in the case of Clark v. Telephone Co., 196 Mich. 168. In that case it was held the moving party should not lose the right to assign error because the trial judge failed to file his reasons in writing. In that case it was held upon the showing made that an order granting a new trial should have been granted, and the case was reversed. In this case we have examined with care the showing made for a new trial and agree with the trial judge that none should have been granted.
Judgment is affirmed, with costs to the plaintiff.
Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Fellows, J.
(after stating the facts). We do not understand it to be claimed, at least it cannot be successfully claimed,- that upon this record there was no evidence that the hoops were defective, of an inferior grade, and did not comply with the contract in the particulars claimed by the defendant in his correspondence and testimony. But it is claimed that, so far as the question of recovery for the loss on the staves is concerned, two reversible errors were com mitted. As we understand, it is counsel’s claim that the court erred in the admission of evidence that the staves did not comply with the contract and that’ the court should have directed a verdict for the loss on the staves.
Under the first of these propositions, it is pointed out by counsel that specific defects in the hoops were enumerated, and it is urged that having given as reason for declining to accept the stock specific objection to the hoops, defendant cannot show that the staves were not in accordance with the contract, and Ginn v. W. C. Clark Coal Co., 143 Mich. 84, and Providence Jewelry Co. v. Bailey, 159 Mich. 285, are cited. There should be no doubt as to the correctness of the rule laid down in these decisions, that where one, after having full opportunity to examine the article shipped, rejects the same on specific grounds, the other party has the right to act upon the assumption that it is upon these grounds alone that the party relies. The difficulty with the application of that rule to the instant case grows out of the fact that defendant’s refusal to accept the stock, as appears by the correspondence, was based upon more than one reason. It included as one of the reasons that the stock was not as plaintiff had guaranteed, a claim that the stock did not comply with the contract. Having based his refusal, in part at least, on the ground that the stock did not comply with the contract, we think it was admissible for him to prove that it did not comply with the contract. Plaintiff could not have been misled in any way. When he sent his telegram in reply to the one received from defendant, he asserted that “quality both staves and hoops all right.”
It is insisted by plaintiff’s counsel upon the second proposition that “red gum fruit barrel staves” has a specific meaning to the trade and includes not only staves manufactured from red gum, but also staves manufactured from timber growing in the same locality. They insist that this is conclusively proven, and that it is also conclusively proven that the staves furnished complied with the term “red gum fruit barrel staves” as understood by the trade; hence, they urge the court should have directed a verdict. There was testimony to support the plaintiff’s claim just mentioned, but it was not undisputed. Upon a motion to direct a verdict, the testimony most favorable to the other party, together with such legitimate inferences as may be drawn from the established facts, must be accepted. A few excerpts from the testimony will be sufficient. Mr. Hampton, a manufacturer of cooperage stock and barrels, was called as a witness by the plaintiff. On cross-examination he testified as follows:
“Q. What do you understand to be the meaning of red gum fruit barrel staves? What would you expect in a car ordered under specifications of that sort?
“A. Red gum is a kind of timber grows in the south and southwest.
“Q. Would you expect any other timbers in there other than red gum? *
“A. Well I wouldn’t expect any other timber that was not equally as good.
“Q. Well it wouldn’t be a carload of red gum fruit barrel staves if it had other timber in there, would it?
“A. Well, not entirely, no.”
The staves in question were afterwards sold to L. J. Eckler, who manufactured them into barrels. He testified:
“I examined it myself and worked on it for two weeks myself. This car contained red gum and mixed timber staves other than red gum. It is a usage in the trade that we get the kind of timber we pay for. When we order red gum we expect red gum and no other kind of. timber.”
Mr. Lester Le Fever examined the car of staves at Newfane, New York. He testified:
“Q. State what you found when you inspected this car?
“A. Would say they were a mixed car.
“Q. What further did you find?
“A. I thought they were bastard staves.”
There was other testimony in the case tending to dispute plaintiff’s claim and to support the claim of defendant. It was not error to refuse, to direct a verdict foi the plaintiff for the amount of his loss on the staves.
The judgment is affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. | [
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Fellows, J.
Defendant was charged in the information with the larceny in the daytime in the store of the Herpolsheimer Company of enumerated personal property of the Herpolsheimer Company of the value of $267.50. It was alleged in the information that the Herpolsheimer Company was a corporation. Upon the trial it developed that the Herpolsheimer Company was a copartnership, composed of William G. Herpolsheimer and Henry B. Herpolsheimer, as trustee. The trial court, over defendant’s objection, permitted the prosecuting attorney to amend the information by alleging the ownership of the property to be in William G. and Henry B. Herpolsheimer as copartners. By seasonable objection, motion for directed verdict and motion in arrest of judgment, defendant questions the validity of this action. It is the only question raised.
The information on its face was in no way defective. The property stolen was the property of the Herpolsheimer Company and was so alleged. The variance between the allegation of the information and the proof consisted in the fact that the Herpolsheimer Company was a copartnership, not a corporation. The variance therefore consisted in the description of the person or body stated to be the owner of the property stolen. Section 15749, 3 Comp. Laws 1915, provides:
“Any court of record in which the trial of an indictment is had, may forthwith allow amendment in case of variance between the statement in the indictment on which the trial is had, and the proof in the following cases: In the names of any county or place stated in the indictment, in the name or description of any person or body stated to be the owner of any property which is the subject of the offense charged, or alleged to have been injured by the commission of the offense, or the Christian or surname of any person, the name or description of any thing, the name or description of any writing, as well records as others, or the ownership of any property described in the indictment, and in all cases whenever the variance between the facts alleged in the indictment, and those proved by the evidence, are not material to the merits of the case.”
The language of the statute is unambiguous and under it the amendment was properly allowed. People v. Courtney, 178 Mich. 137; People v. Brown, 110 Mich. 168; People v. Price, 74 Mich. 37. We can conceive of no case more appropriate for the application of this statute than the instant one. Defendant was in no way prejudiced by the amendment; he claimed no surprise or unpreparedness to meet the case made by the amendment; asked no continuance, and relies solely upon this objection to escape a merited conviction.
Nor are we able to perceive in what manner section 19, article 2, of the Constitution, guaranteeing to the aceused the right to be informed of the nature of the accusation against him, has been offended by this statute of amendments — a procedural statute, a statute enacted in the furtherance of the due administration of the criminal law.
The conviction is affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. | [
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Steere, J.
Plaintiff as administratrix recovered a verdict and judgment against defendant under the so-called “death act” (section 14577, 3 Comp. Laws 1915), in the circuit court of Jackson county in the sum of $545 and costs, for fatal injuries sustained by her father, George F. Patterson, at the intersection of East Main and VanDorn streets in the city of Jackson on the evening of May 27, 1916, caused by the right front fender of defendant’s automobile striking him.
Defendant brings error and asks reversal on the three grounds of failure to prove defendant negligent, contributory negligence of plaintiff’s intestate, and that even if actionable negligence by defendant and freedom from contributory negligence by decedent were shown there is no proof of any damages as contemplated by the death act nor any basis shown from which the amount of damages, if any, could be ascertained.
At the time of his injury and death deceased was over 59 years of age, a widower, living near the scene of the fatal accident, oh the east side of VanDorn street in the second block north of Main street with his two daughters Edna and Irene, the three constituting the family, he being employed as an assistant section foreman by the Lake Shore division of the New York Central Railroad Co. His daughter Edna, since married, was then 26 years of age and self-supporting. She and her father worked and earned wages, while Irene, then 18 years of age, kept house under the older sister’s direction and assistance, also working out at times, and had worked a week in the telephone office during the month of the accident. Deceased was in normal health and condition for his age except, as his daughter Edna testified:
“There was a peculiarity about my father’s walk. My father was hurt in a railroad wreck ten years ago. On one foot there was no toes. The toes settled down into the bottom of his foot and he wore a shoe — an inch sole on his shoe and he reeled when he walked because he had to protect that foot. There was no power in that foot, and that is the reason it made him stagger. The toes were off his left foot. * * * My father did reel when he walked — when he walked any place where the sidewalk or road was bad.”
Her testimony on his subject was given on rebuttal to meet, or explain, that given by certain of defendant’s witnesses who noticed deceased just as the accident was about to occur, and testified that he staggered, as though intoxicated, apparently from his course against or in front of the right fender of the car which struck him.
Main street in the city of Jackson runs east and west, intersected by VanDorn, running north and south, Park avenue being the next intersecting street to the west, near the Michigan Central railroad cross ing, with a slight up-grade from there to VanDorn. The accident occurred near the southwest corner of Main and VanDorn streets at about 8 o’clock in the evening or a little after, witnesses variously characterizing the visibility as between daylight and darkness, quite dusk, dark, and practically dark except for the street lights which were on. A double-track street car line extends along Main street at that point which is a business portion of the city just to the east of the union railroad passenger station.
Defendant was a business man about 55 years of age, his vision and other faculties normal, and accustomed to driving a car. He had owned and driven the car he was using that evening, a “Buick 37,” since September, 1914, and was familiar with its operation. He had “just got the car out,” as he states, and was driving down to a station on the south side of Main street in the next block east of VanDorn to get some gasoline. There were three persons in the car, defendant and Mrs. DeMay, his cousin, on the front seat and her daughter, a girl about ten years old, on the rear seat. He was driving and sat on the left at the wheel, Mrs. DeMay being on the right and to the south nearest the curb. The headlights of the car were lit, with the dimmers on.
Deceased was in a barber shop on the south side of Main street between VanDorn street and Park avenue to get shaved about 8 o’clock and finding them busy paid his bill, took a number and left, stating he thought he had “time to go over to the house.” The proprietor of the shop, who knew deceased, testified he was not then intoxicated, and he heard about 30 minutes later of his being killed.
It is undisputed that deceased was struck and killed by defendant’s automobile at the intersection of Main and VanDorn streets, the direct cause of death being a fracture of his skull as testified to by a physician called to see him shortly after the event. That he was in the street and staggered just before he was hit is the testimony of all defendant’s witnesses who saw him at that time. The cause of his doing so, his then condition and negligence in that particular were clearly for the jury. The barber whose shop he left shortly before the accident testified he had not been drinking, his daughter Edna testified that he had a crippled foot that caused him to stagger or reel when he walked in any place where the sidewalk or road was bad, and Mr. Gusenbar, a witness for plaintiff, whose photograph studio was about 40 feet west of where the accident happened and who saw it, after-wards helping to pick deceased up and carry him into his place of business, testified that there was “a depression in the pavement near the place where he was struck.” Further saying:
“There is a crosswalk across Main on the west side of VanDorn. It is all the sa,me sidewalk clear to the curb there, so you couldn’t distinguish where the crosswalk would be. It is all pavement. Patterson wasn’t over five feet east of the west line of VanDorn street in Main street. * * * He was about half way between where the curb would be on the south side of Main and the street car track.”
Confirmatory of the place of the accident, a witness of defendant named Myrtle Benn testified that while standing on the south side of Main street, that evening, at the west corner of VanDorn and Main, she saw a man on the sidewalk start out to the curb and go out into the street, saying:
“The man staggered and that is about all I know— that he was in front of the car. I got away from there as quick as I could. * * * I saw something was going to happen and I got right away. I saw him go from the curb right out into the street. He was on the same side of the street I was.”
This locates the accident practically at a regular crossing for pedestrians at the intersection of two streets in a business portion of the city, where there was a lighted street lamp hung over the center of the intersection, as defendant testified. In Babbitt on Motor Vehicles (2d Ed.), § 885, it is said to be a fundamental rule of law and common sense—
“that motor vehicles must be driven slowly on approaching a crossing. The test seems to be whether the driver has control of the situation, whether he is so driving that he can stop if necessary soon enough to avoid an accident.”
It is conceded that by ordinance the lawful rate of speed for automobiles in that part of the city is limited to ten miles per hour, exceeding which is charged in plaintiff's declaration, and also violation of the provisions of sections 21 and 22 of Act No. 302, Pub. Acts 1915 (1 Comp. Laws 1915, §§ 4817, 4818), which provide:
“No person shall operate a motor vehicle upon a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb of any person or the safety of any property; * * * Upon approaching an intersecting highway, * * * a person operating a motor vehicle shall have it under control and operate it at such speed as is reasonable and proper, having regard to the traffic then on such highway and the safety of the public.
“Upon approaching a person walking in the roadway of a public highway, * * * a person operating a motor vehicle shall slow down to a speed not exceeding ten miles an hour and give reasonable warning of its approach and use every reasonable precaution to insure the safety of such person.” * * *
The questions brought up by defendant were saved for review by proper objections, motions and request for directed verdict during the trial and the weight of conflicting evidence is not before the court. Of the claim that there is no evidence on which to base an award of damages, it was shown that the expenses of deceased’s burial were approximately $225, that his youngest daughter was a minor living with him and dependent, that he was earning $65 per month and customarily contributed for the household about $25 every two weeks, which the older daughter expended for grocery bills, rent, clothing for the younger daughter, etc. The trial court carefully instructed the jury that only the younger daughter would be entitled to compensation, for what she was deprived of in that respect until she was 21 years of age. There was evidence to support, in the discretion of the jury, the verdict of $545.
On the assignment of error that deceased was guilty of contributory negligence which precluded recovery and for that reason a verdict should have been directed for defendant, it is to be borne in mind that this accident occurred at a crossing and the injured party is dead. His mouth is closed as to how he came there, what observations he made, whether or not he looked before starting to cross, if so, what judgment he exercised in regard to what he observed and what caused him to stagger, or reel, and appear about to fall when struck, as witnesses of defendant state was the case. It is true when there are eyewitnesses to the accident, the legal presumption that a decedent was free from contributory negligence does not obtain to the full extent as in cases where there were none (Baker v. Delano, 191 Mich. 204), but no witness is shown to have observed deceased until he stepped off the curb into the street at or near a proper crossing for foot passengers, where he had a right to be, and apparently reason to go, on his way home, and where it was also defendant’s duty to exercise special care in anticipation both of crossing pedestrians and vehicles. Relative to the mutual rights and duties of those using the highway at such points it is said in Babbitt on Motor Vehicles (2d Ed.), § 1295:
“At crossings on city streets the right of passage is common to all and both pedestrians and drivers of motor vehicles are bound to exercise reasonable care for their own safety and the safety of others upon the street. The footman is not required as matter of law to look both ways and listen but only to exercise such reasonable care as the case requires. Both pedestrians and drivers are required to exercise that degree of care and prudence which the conditions demand. It is impossible to formulate any more' precise definition of these relative rights and duties.”
Unlike street cars or railroad trains, which in their noisy progress are confined to the narrow line of their rail tracks, automobiles with practically equal capacity for speed can range the road in substantial silence. They can and do traverse the streets at much greater speed, with much less noise, than other highway vehicles in common use, and on the other hand can be more surely and easily controlled by those experienced in their use. The duty and responsibility of those driving them should be, and is, proportioned to the possibilities and dangers attending the use upon the public highways of such an instrumentality of travel and transportation. It is but a rational rule which’ emphasizes the driver’s duty of special vigilance at crossing points on city streets where the right of passage is not only free and common to all, but in common and frequent use both by pedestrians and vehicles. While the duties of reasonable care for their own safety and that of others are imposed upon both pedestrian and driver, the driver’s comparative personal safety in case of collision with a pedestrian is not to be overlooked in measuring his duty to exercise commensurate care for the safety of others.
Deceased was lawfully on the street at this crossing when injured. There is evidence from which it may be inferred he was attempting to cross while on his way to his home. Whether under the conditions known or which should have been known to him he, in deciding to cross at that time and place, was in the exercise of reasonable care, and what caused him to stagger and partially fall, if he did so, are questions upon which the circumstances furnish fair material for the minds of reasonable men passing upon the facts to differ. It was properly left to the jury to say under the facts shown and inferences, which could reasonably be drawn from the evidence under all the surrounding circumstances, whether deceased was in the ordinary exercise of reasonable care.
Of the contention that no negligence is shown on the part of defendant, it is first contended that the only negligence properly charged is “excessive and unreasonable speed” and that there is no competent evidence showing that the legal limit of ten miles an hour was exceeded. The declaration, which contains two lengthy counts, not only charges an excessive and dangerous rate of speed with failure to give warning but makes special reference to the statute and defendant’s duties under it, which it charges, amongst other things, he violated by failure upon approaching the intersecting street to operate his motor vehicle—
“with due care and caution and with due regard for the safety of travelers and persons lawfully in said highway so as not to injure a person lawfully there, but on the contrary carelessly and negligently and without seeing or discovering the fact that said plaintiff’s intestate was in such highway, lawfully crossing said intersection and in the exercise of due care and caution for his own safety, with great force and violence ran said motor vehicle against the body of plaintiff’s intestate,” etc.
While a speed in excess of the legal limit is in itself prima, facie evidence of negligence, a lower speed may, according to the circumstances, be excessive and evidence of negligence. The rate of speed must always be reasonable and proper, having due regard to existing conditions at the time and place, the lives and safety of the public being the test.
There were estimates of speed from observation and proof of facts from which inferences might be drawn constituting competent evidence to carry the question of defendant’s negligence to the jury, whose function was to weigh it and determine. The speed was estimated as high as 15 miles an hour by one witness named Sims who saw the accident from a distance of about 12 rods. He frankly admitted his estimate was in the nature of a guess, but stated facts on which he based his estimate, which were for the jury. He was then a stranger to all the parties interested, and happened to be on the west side of VanDorn street about a block south of Main on his way down town with his wife when his attention was first drawn to the accident, as he testified, by hearing a woman scream followed by another scream just as he saw an auto shoot out from, to him, behind a building on the southwest corner of Main and VanDorn streets and its right fender hit a man and throw him down so that it “sounded a good deal like the falling of a tree or something like that — a sharp crash” and going down there he saw the man lying in the street with his feet to the north; he saw the car go about ten or twelve feet before it struck the man and it stopped near the southeast corner of VanDorn and Main streets, and said his judgment of the speed was from those observations. The witness Gusenbar, who helped pick the deceased up, was at his own automobile in front of his studio and about to start home when the accident occurred. He testified that his attention was suddenly attracted by a woman’s scream, almost immediately followed as he looked in that direction by Ms hearing what he designated as the “crash of the man being hit by the car” and in .another portion of his testimony as “the crash of the man’s head”; that as he first threw his eyes that way he saw the car going east on the south side of Main street eight or ten feet from the curb, he heard no horn and noticed no effort to slack up before it struck the man nor did he see it swerve, and “it went two and a half or three car lengths” after it hit him; that he had himself driven a car for about eight years and judged this car, which was a Buick, was going ten or twelve miles an hour. Of the persons in the car defendant was the last to notice deceased. The little girl on the back seat said she thought she saw him first; that her mother “said to Mr. Wagner, ‘Look out, there is a man coming,’ ” and when she told him to look out he swung his car over and put the emergency brake on. Mrs. DeMay, sitting in front with defendant, who thinks she might have screamed but does not remember, and whose not always lucid narrative is at times somewhat self-contradictory, said the car was running as indicated by the speedometer between seven and eight miles an hour and moved “about a length and a half or twice its length after it hit the man.” In her direct examination her account of the accident is as follows:
“I first saw Mr. Patterson. I noticed an object. It was dark. There was no garage there on the corner and apparently it was dark. I heard the scuffling of feet. I looked and saw an object. I saw a man. I did not know at first whether it was a man, an animal or a dump cart. It appealed to me first it was a cart. I couldn’t make out at first what it was. When he drew nearer the car he scuffed and staggered and I saw he had his hand up like that (illustrating). He staggered over toward the car. I saw him stagger toward the car. He stepped up and put his hand on the front fender at the side. I called Mr. Wagner’s attention to it. I saw him put his hands on the fender. When he put his hand on the fender he seemed to put his hand out to balance himself. At that time the man wasn’t straight up. He was in a stooped position. He put his hands up to balance himself, and he took another step and fell down. The car didn’t run over him.”
Defendant, who gave darkness as a reason for not seeing deceased sooner, also testified that it was because he was “looking straight ahead,” that his lamps were lighted, an arc light was hanging over the intersection of the two streets, and street lights all the way along, that from where he sat he could see his front right fender when his “attention was called to it” and there was nothing to prevent him seeing any one approaching the fender, that he first saw deceased when Mrs. DeMay said, “Look at that man there” (also when she screamed), and the next he saw was “his hand go on the fender,” and he then threw the car away from him, applied the emergency brake and threw out the clutch, and the car ran a little over its length after it hit him. A witness of defendant’s who had put in eight years in the automobile business, saw the accident and testified as an expert that the car was going not to exceed seven miles an hour, also testified on cross-examination that on a dry pavement a car of that make “wouldn’t go over half its length with the emergency brake on — possibly two-thirds of the length according to the tires, whether they are old or new tires.”
Whether, as between defendant and deceased, the accident was attributable to either, or both, or neither of them, were questions of fact properly submitted to the jury.
The judgment is affirmed.
Bird, C. J., and Ostrander, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Moore, J.
The plaintiff in this case claims that on or about May 19, 1914, she entered into an agreement through the defendant’s agent to purchase a car from the defendant; that the purchase price was fixed at $2,450 and that she was to pay for the car by turning over to the defendant her Oldsmobile Limited at a valuation of $1,450, and the difference between these was to be paid in cash; that the contract was executed May 19, 1914; that with the car she was to get new cushion covers; that the car was to be a model 6-60, which was represented to her at the time by the defendant’s agent to be the latest 1914 Oakland Big Six. The plaintiff claimed she did not receive the car she ordered; that the car she received was not a new car and that it was not the latest 1914 Oakland Big Six; that she entered into negotiations both personally and through her attorney to have this model turned back to the defendant and to obtain what she claimed she contracted for; that as a result of these negotiations she received from the defendant a car known as a model 6-61; that she agreed to accept a car known as a model 6-61, in lieu of the previous model 6-60, which had been delivered to her, provided she was given a new car, and that immediately after the model 6-61 was delivered to the plaintiff she discovered the car was not only defective in many particulars but was a second-hand car, and not a new car; and that it was not the car which the defendant company promised to give her in exchange for model 6-60. She brought this suit against the defendant to recover damages for breach of contract by reason of her claim that the car model 6-61 was a defective second-hand car. The case was tried by a jury which returned a verdict in favor of the plaintiff in the sum of $2,783. A motion was made for a new trial. The trial judge required the plaintiff to remit $625.51 of the verdict and unless this was done ordered that a new trial be granted. Plaintiff remitted that amount. The defendant has brought the case here by writ of error.
Many of the assignments of error relate to the rulings of the court in the admission or rejection of testimony. We have examined these assignments and content ourselves with saying that none of them require a reversal of the case. Many assignments of error relate to the charge of the court. The defendant preferred no written requests. The trial judge apparently attempted in his charge to the jury to cover every phase of the case. After giving a charge that covers more than seven pages, of the printed record, he turned to counsel and said:
“Now, if there is anything I have not covered up to the present time I should be pleased as far as that is concerned to hear from counsel.
“Mr. Gust: T think on the question of damages as I told the jury, and I think your honor will agree with me, that they must deduct whatever those repairs increased the market value of the car.
“The Court: There is no doubt about that. Of course, gentlemen of the jury, you have the testimony that a second-hand car in the market was not worth more than $500. I am not prepared to say, gentlemen of the jury, that you are compelled to award exactly that sum, as you have heard the testimony that she expended $700 and odd dollars upon the car, and it was the opinion of that particular witness that that would not increase the value of the car more than $150. I cannot say, gentlemen of the jury, that you are absolutely bound by that testimony. She has had the car two years, I think, and run it from that time to this and where it is purely a matter of opinion in that regard I think you may find, taking all things into consideration, what value she got out of her car.
“Mr. Griffin: And also that we are entitled to 5% interest.
“The Court: She is entitled to 5% interest.
“Gentlemen, you may follow the officer.
“Mr. Gust: I would be entitled to an instruction as to Mrs. Greissing’s acceptance — as to her knowledge of the condition of the car; I don’t know whether your honor inadvertently overlooked that.
“The Court: You did not hand in any request.
“Mr. Gust: No, but I think we are entitled to an instruction on that — the acceptance by Mrs. Greissing and her knowledge of the condition of the car.
"The Court: With reference to that, I think not. I think not, because if they find with reference to that she was entitled to a new car, then I think that the section of the statute applies with reference to it, that she is not obliged to return the thing but may bring a suit upon it.
“Gentlemen, you may follow the officer.
“Mr. Gust: Note an exception to the court's refusal to charge as requested in the verbal request of counsel.”
When the trial judge thus addresses counsel, if they have any suggestions to make it becomes their duty to speak. Evidently counsel so thought for they at once made two suggestions to the court. As to the first the trial judge agreed with counsel and so instructed the jury. As to the second of these suggestions the trial judge declined to instruct the jury as requested orally by counsel. Was this error? The testimony offered on the part of the plaintiff was to the effect that she received the car through her attorney upon the assurance to him by defendant’s agent that it was a new car, and that this assurance was not true, that her acceptance of the car under these circumstances did not preclude he-r from recovering damages because the car was not as represented. We think the judge did not err in declining to charge the jury as requested.
Other assignments of error relate to the conduct of counsel. One of them was allowed, against the objection of counsel, to read in the course of his argument from a newspaper as follows:
“ ‘Sense and Nonsense’ — where two men were talking about buying second-hand cars — one man said to the other — ‘Don’t buy a second-hand car unless they let you try it at least a month.’ The other fellow said: ‘Why?’ ‘Well,’ he says, T will tell you. I wanted to buy a second-hand car the other day and I went down to a shop and I saw a beautiful limousine. They took it out and ran it and demonstrated it and we went one hundred miles or more and a beautiful car it was. It ran perfectly in every way. Then I paid out my good money, bought the car, took it home and wanted to go on a trip of 200 or 300 miles within a day or two and then I had my experience, so that to give it exact I will read just what the experience was.’
“Mr, Gust: I object to this.
“ ‘Along about three o’clock the next morning I called up the shop, got my car and started for our ride for a city some 300 miles distant. Everything was rosy. The car had every virtue, speed, power, flexibility. I congratulated myself on my good investment. _ Along about three o’clock, however, a slight knocking began to be heard. I stopped and raised the hood but could not locate the trouble. I started again but the noise began to increase, etc. (reading), and the power seemed to decrease, seemed to be sluggish on the hills, by five o’clock the noise that emanated from that engine was enough to wake the dead and she was. getting feebler every minute. Finally I pulled up in front of a garage and secured an attendant to diagnose the trouble. He poked about for about half an hour and finally said: “There is just one phrase to describe the trouble here. The car is fatally affected with senile debility. She has been a good boat in her day but she is just naturally worn out. She must have covered an immense mileage. Every part in the engine is badly worn. There is utter lack of coordination. It will cost you $400 or $500 to put her in condition to run. The man who sold her to you simply saturated her in oil. That is thick as molasses. There is two inches of stuff in the bottom of the crank case that tightened her up for one last effort; but at the same time it has so blocked her up thatT doubt if she will run over a few miles more.” ’
“Mr. Gust: Does that say anything about driving it two years afterwards?
“Mr. Griffin: Yes, it says something about spending $700 trying to run it. T spent $700 on that car,’ continued the speaker ‘but she never would go satisfactorily. Finally I sold her for a song and bought a new one.’ ”
And counsel said:
“So I say, gentlemen of the jury, Mr. Lee’s and Mr. Ennis’ description of the beautiful way that car ran when they brought it back the second time after they had fixed it reminds me of this story; so you cannot always tell when a man is on the stand and says that a car runs beautifully at a particular time and may have overhauled, unless you know what they have done to it; unless you know the actual condition of the mechanism of the car; unless you know all about the car, you cannot tell whether it- is a good car or not.”
If counsel had attempted to put the article in evidence it would clearly have been inadmissible.
The case was a hotly contested one between a corporation and a woman. The article undertook to explain how a worthless second-hand car’ could not only be made to look new but could be made temporarily to run like a new car. We think the conduct of counsel was reversible error. See Glassbrook v. Lansing Wheelbarrow Co., 177 Mich. 29; Morrison v. Carpenter, 179 Mich. 207; Wells v. Railroad Co., 184 Mich. 1; Mortensen v. Bradshaw, 188 Mich. 436.
The judgment is reversed and a new trial ordered, with costs to appellant.
Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, C. J., did not sit. | [
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] |
Fellows, J.
Plaintiff, a young farmer about 29 years old, lives in Berrien county. Defendant, a woman 31 years old, resided in Chicago prior to her marriage to plaintiff. Plaintiff files this bill to annul the marriage between the parties on the ground of fraud in its procurement. Defendant denies the fraud, and, claiming the benefit of a cross-bill, asks for a decree of divorce. The prayer of plaintiffs bill was granted and defendant appeals. Without detailing the testimony it will suffice to state that from a careful perusal of this record we are convinced that the following facts are established beyond peradventure: (1) That the parties were married February 17, 1916; (2) That they had sustained illicit relations prior to marriage; (3) That the day before the marriage defendant came from Chicago to St. Joseph in this State, there met plaintiff by appointment and there falsely represented that she was pregnant by defendant, which representation was believed by plaintiff who married her to so far as possible repair his wrong; ("4) That defendant was delivered of a full-term child March 6, 1916; (5) That said child was not begotten by plaintiff but was the child of another man who was in the Philippines at the time defendant charged plaintiff with its paternity, and that defendant well knew this to be true; (6) That upon learning that the child was a full-term child and could not be his, plaintiff repudiated defendant and the spurious offspring and has not since lived or cohabited with her.
We therefore have before us for solution the question of whether a bill will lie to annul a marriage procured by the false representation of the wife before marriage that she is pregnant by the man she marries, which misrepresentation is known by her to be untrue, but is believed by the husband and the marriage relation is contracted in such belief, the parties theretofore having sustained illicit relations, when it is established beyond question as matter of fact that the child was begotten by a stranger. In Sissung v. Sissung, 65 Mich. 168, this court by an equal division sustained such a bill. Sylvester v. Sylvester, 180 Mich. 512, was also affirmed by an equally divided court; the court was not in accord upon the facts in that case. The precise problem before us must therefore be regarded as one not heretofore solved by this court. It has arisen in other jurisdictions and a want of harmony in these decisions directly and by analogy applicable is at once apparent to one who examines the cases.
In the early case of Reynolds v. Reynolds, 3 Allen (Mass.), 605, a case similar in principle to Harrison v. Harrison, 94 Mich. 559 (34 Am. St. Rep. 364), the libellant was induced to enter the marriage upon the representations that the woman was a chaste and virtuous woman, when as matter of fact she was pregnant of another. He had had no illicit relations with her. The court upon that state of facts speaking through Chief Justice Bigelow said:
“As has been already stated, one of the leading and most important objects of the institution of marriage under our laws is the procreation of children, who shall with certainty be known by their parents as the pure offspring of their union. A husband has a right to require that his wife shall not bear to his bed aliens to his blood and lineage. This is implied in the very nature of the contract of marriage. * * *
“A man therefore who has contracted a marriage with a woman under such circumstances, if he could not obtain a divorce on the ground of fraud, would be subjected to the painful alternative of disowning the child, and thereby publishing to the world the shame of her who was still to remain his wife, or suffer the presumption of legitimacy to stand, and admit the child of another to share in his bounty and receive support in like manner as his own legitimate children. There is no sound rule of law or consideration of policy which requires that a marriage procured by false statements or representations and attended with such results upon an innocent party should be held valid and binding on him.”
The court, however, did not have before it the precise .question here involved, viz.: what rule should be applied if the relations of the parties had been illicit prior to the marriage, and expressly reserved that question. In Foss v. Foss, 12 Allen (Mass.), 26, however, that question arose. This case is quite frequently cited as authority for. denying relief and is a leading case upon the subject. An examination of this case leads to the conclusion that the court was impressed that under the circumstances the libellant was not as vigilant as he should have been in ascertaining before marriage whether her representations were true. It is said:
“He took no steps to ascertain the truth of her statements concerning the paternity of the child, but, relying solely on her assurances on that subject, he entered into the contract of marriage. It seems to us that on these facts he was guilty of a blind credulity, from the consequences of which the law will not relieve him. His knowledge of the respondent’s unchastity and of her actual pregnancy was sufficient to put a reasonable man on his inquiry.”
It was followed in Crehore v. Crehore, 97 Mass. 330 (93 Am. Dec. 98), the opinion in which case in full is as follows:
“The facts show that the libellant had full knowledge that the libellee was unchaste, before he entered into the marriage contract, and was thereby put on his guard so that- he cannot allege that he was induced to contract the marriage by such fraud and deceit on the part of the libellee as will enable him to avoid the contract.”
• — and Foss v. Foss is cited as authority for the holding.
In the late case of Safford v. Safford, 224 Mass. 392 (113 N. E. 181, L. R. A. 1916F, 526), the same question again arose, and again upon the authority of Foss v. Foss, the relief was again denied, the court among other things saying:
“In view of the undisputed facts as disclosed by the record, it seems, plain that he is not entitled to a decree declaring the marriage void in the absence of evidence to show that he made any inquiry or investigation to ascertain the truth of her statement that he was the father of the child.”
These holdings of the Massachusetts court are noas persuasive to us as the holdings of that court usually are, due to the fact that this court has repeatedly held in cases involving fraud that it does not lie with one charged with fraud, who assumes to have knowledge of a subject of which another may well be ignorant, to claim that such other should have used greater diligence to discover the fraud, should have been more vigilant, less credulous. Eaton v. Winnie, 20 Mich. 156 (4 Am. Rep. 377); Smith v. McDonald, 139 Mich. 225; Yanelli v. Littlejohn, 172 Mich. 91; Lewis v. Jacobs, 153 Mich. 664; Smith v. Werkheiser, 152 Mich. 177 (15 L. R. A. [N. S.] 1092, 125 Am. St. Rep. 406); John Schweyer & Co. v. Mellon, 196 Mich. 590; Johnson v. Campbell, 199 Mich. 186.
In Carris v. Carris, 24 N. J. Eq. 516, the New Jersey court had before it a case upon the facts similar to Reynolds v. Reynolds, supra, and it was disposed of in the same manner, the court saying:
“The fraud charged in this case is extraordinary, peculiar, and of the most flagrant character, entering into the very essence of the contract, and if allowed to succeed, either compelling the husband to disown the child for his own protection, or imposing upon him the necessity of recognizing and maintaining the fruit of his wife’s defilement by another, and having it partake of his inheritance. In either event, shame and entire alienation are the inevitable consequences. Surely, there can be no good policy in such action as will either compel parties to live together under these circumstances, having only the shadow of marriage, or compel them, as would be more likely, to live totally separated, a continual annoyance to each other, and a source of the greatest unhappiness. If the contract is repudiated as soon as the fraud is discovered, so that there is no acquiescence in it, good morals and the protection of the integrity of the marriage relation require that an innocent man should be relieved from so great a fraud.”
In Seilheimer v. Seilheimer, 40 N. J. Eq. 412 (2 Atl. 376), and Fairchild v. Fairchild, 43 N. J. Eq. 473 (11 Atl. 426), that court had before it the question here involved. In both cases the parties had sustained illicit relations before marriage, and in both cases the woman had represented that she was pregnant by the man induced to marry her when in fact she was pregnant by another. In both cases the relief was denied. Both cases seem to go upon the theory that the parties were in pari delicto and must abide the consequences.
The forceful language of Mr. Justice Field, then a member of the supreme court of California and later Justice of the Supreme Court of the United States, in the case of Baker v. Baker, 13 Cal. 87, may well be considered. He said:
“A woman, to be marriageable, must, at the time, be able to bear children to her husband, and a representation to this effect is implied in the very nature of the contract. A woman who has been pregnant over four months by a stranger, is not at the time in a condition to bear children to her husband, and the representation in this instance was false and fraudulent. The second purpose of matrimony is the promotion of the happiness of the parties by the society of each other, and to its existence, with a man of honor, the purity of the wife is essential. Its absence under such circumstances as necessarily to attract attention must not only tend directly to the destruction of his happiness, but to entail humiliation and degradation upon himself and family. We can conceive no torture more terrible to a right-minded and upright man than an union with a woman whose person has been defiled by a stranger, and the living witness of whose defilement he is legally compelled to recognize as his own offspring, as the bearer of his name and the heir of his estate, and that, too, 'with the silent, if not expressed, contempt of the community.”
Later, however, the supreme court of California in Franke v. Franke had before it a case where illicit relations had been indulged in prior to the marriage. The wife was pregnant of another at the time of the marriage. The opinion is not reported in the official reports of the court (see 96 Cal. XVII) but is found in 31 Pac. 571 and 18 L. R. A. 375. An examination of the opinion discloses that the husband was a man of 40 years, father of five children by a former wife, who claimed he was seduced by a 17-year-old girl, daughter of a neighbor, and who married the girl to avoid a lawsuit, and rather than “give money away,” and with the further assurance from the attorney of the girl that if the birth of the child did not correspond with “plaintiff’s reckoning” he would get him free “without a cent.” Under these facts the relief was denied.
Let us now turn to the North Carolina cases. The case of Scroggins v. Scroggins, 3 Dev. (N. C.) 535, is a much cited case. It was written in 1832 when that court was made up of Henderson, Ruffin and Daniel, and the great learning of these eminent jurists entitles it to more than ordinary consideration. In that case the child born to the woman was a mulatto and could not have been begotten by the husband; the birth occurred about five months after the marriage; the relief was denied. But the force of the opinion is minimized if not entirely negatived by the case which follows it in the same volume, that of Barden v. Barden, 3 Dev. (N. C.) 548, decided at the same term. In that case the man was induced to marry a woman, with whom he had been intimate, upon the representation that a child she had was his; the child was the offspring of a negro and the relief was granted. By way of explanation it was said that the case was a concession to the “deep-rooted prejudices” of the community on the subject. It may be well to understand the legislative policy of that State upon the subject of marriage and divorce at the time the Scroggins Case was written. An examination of the legislation of the State indicates a strong inclination to regard the marriage relation as indissoluble. The act of 1827, before the court in the Scroggins Case, contained some general language considered fully by Mr. Justice Ruffin, but specifically enumerated but two grounds of divorce, being the same grounds found in the act of 1814, viz.: (1) impotency at the time of the marriage and still continuing: and (2) separation by one party from the other and living in a State of adultery. That the legislative policy was deliberate and fixed is evidenced by the further fact that although the court called attention of Hie legislature to the construction put upon the added general words of the act of 1827 no change was made for nearly half a century and it was not until 1871 that adultery, unless amounting to lewd and lascivious cohabitation, was made grounds of divorce. That the courts followed the legislative policy is evidenced by the case of Moss v. Moss, 2 Ired. (N. C.) 55, where the court declined to dissolve the marriage, even though the wife was living in open adultery with another; the court basing its decision on the ground that the husband had without cause driven the wife from his home without providing for her support and had thereby submitted her to the temptations to which her weakness and necessities exposed her. Indeed in the Scroggins Case it clearly appears that the court viewed the rules of the ecclesiastical law as preferable to the common law, as it was expressly stated that, “There is no member of the'court who is not strongly impressed with the conviction that divorces ought in no cases be allowed, but in that already mentioned (impotency) and near consanguinity.” It was in this atmosphere that Scroggins v. Scroggins was written. The North Carolina court has followed it but not without dissent; see Long v. Long, 77 N. C. 304 (24 Am. Rep. 449); Bryant v. Bryant, 171 N. C. 746 (L. R. A. 1916E, 648, 88 S. E. 147). Whether the legislative policy of that State is better than the legislative policy of this State is a question upon which publicists may differ, but it is not a question for our solution.
In Scott v. Shufeldt, 5 Paige (N. Y.), 43, the marriage was procured on the representation that the child was the child of the husband. Both the husband and wife were white. The child was a mulatto and could not have been begotten by the husband. It was held that if the husband married in the belief that the child was his the marriage should be annulled on the grounds of fraud.
Three courts of last resort have recently spoken on this subject with definiteness and precision upon facts substantially on all fours with the instant case. Lyman v. Lyman, 90 Conn. 399 (L. R. A. 1916E, 643, 97 Atl. 312); Di Lorenzo v. Di Lorenzo, 174 N. Y. 467 (67 N. E. 63, 63 L. R. A. 92, 95 Am. St. Rep. 609); Wallace v. Wallace, 137 Iowa, 37 (114 N. W. 527, 14 L. R. A. [N. S.] 544, 126 Am. St. Rep. 253, 15 Ann. Cas. 761). In two of these cases the opinion by Mr. Justice Morse, concurred in by Mr. Justice Campbell, in Sissung v. Sissung, supra, is expressly approved. In Lyman v. Lyman, supra, the court, after quoting from that opinion, says:
“We can conceive of few graver frauds than this, nor one which, if successful, is attended with more serious results; and we can see no good reason why, if the essentials of a fraud, as respects the representations by the one party and the reasonable reliance thereon and action induced thereby by the other, are present, the one thus defrauded should be compelled to endure in silence the situation which has thus been brought upon him, with all the consequences that it entails, and all by reason of his efforts to play the manly part and repair his supposed wrong to the best of his. ability. That seems to us to be imposing a grievous punishment for a purely laudable action. The punishment attaches to the marriage, and not to the earlier impropriety, and subjects a man to penalties for an act which had in it no semblance of wrongdoing, either legal or moral.
“In view of the new trial which must be ordered and the prominence which has been given to the opinion in Foss v. Foss, supra, and to the subordinate propositions it advances, we ought to add that we are unable to agree with that case in all of its subordinate propositions, or with its ultimate conclusion as to the duty, in the matter of independent and searching investigation, of a man in the position that Foss and this plaintiff found themselves when the partners in their illicit relations made to them the representations they did as to their pregnancy and the paternity of their children before being justified in accepting those representations, as true and acting upon them.”
In Di Lorenzo v. Di Lorenzo, supra, the facts do not as fully appear as they do in the report of the case in the appellate division (see 71 App. Div. 509, 75 N. Y. Supp. 878). From the facts it appears that defendant’s equities were much greater than in the instant case. In the unanimous opinion of the court of appeals it was said:
“In this case, the representations of the defendant was as to a fact, except for the truth of which the necessary consent of the plaintiff would not have been obtained to the marriage. It was designed to create a state of mind in the plaintiff, the operation of which would be to yield a consent to marry the defendant, in the belief that he was rectifying a great wrong. The minds of the parties did not meet upon a common basis of operation. The artifice was such as to deceive a reasonably prudent person and to appeal to his sense of honor and of duty. The plaintiff had a right to rely upon the defendant’s statement of a fact, the truth of which was known to her and unknown to him, and he was under no obligation to verify a statement, to the truth of which she had pledged herself. It was a gross fraud and, upon reason, as upon authority, I think it afforded a sufficient ground for a decree annulling the marriage contract. The jurisdiction of a court of equity to annul a marriage, for fraud in obtaining it, was early asserted in this State by the court of chancery, at a time when the limited powers of courts of law were inadequate for the purpose. This jurisdiction was expressly rested upon the general power to vacate contracts in all cases, where they had been procured by fraud. From this general jurisdiction of equity a contract of marriage was not regarded as being excepted, when the assent to it was the result of artifice, or of gross fraud.”
In the case of Wallace v. Wallace, supra, the supreme court of Iowa, speaking through Chief Justice Ladd, and considering the claim that prior relations barred the relief, said:
“But this would leave the unsophisticated and unwary without protection and condemn him who, with the best of motives, undertakes reparation for his supposed victim and compel him to suffer the consequences and burden of her deception. If the proof be of that character exacted in such cases, there can be no objection on grounds of public policy to granting a decree of divorce whenever it is made to appeal that the wife at the time of her marriage was pregnant by another than her husband, of which fact he was unaware. As said by Morse, J., in the Michigan case:
“ ‘The essence of the marriage contract is wanting when the woman at the time of its consummation is bearing in her womb knowingly the fruit of her illicit intercourse with a stranger; and the result is the same whether the husband is ignorant of her pregnancy and believes her chaste, or is cognizant of her condition, but has been led to believe the child is his.’ ”
The court then considers the rule permitting proof as to illegitimacy of children born in lawful wedlock, a rule this court has recognized, at the same time holding that the proof must be convincing (People v. Case, 171 Mich. 282), and continues:
“Inquiry is permitted into the parentage of children born in wedlock, and inquiries into the paternity of a child begotten prior thereto can be fraught with no greater danger to the parties interested, to society, or the State. On the contrary, it may operate to shield the confiding who, though guilty of moral wrong, has not violated the law, and has acted with the best of motives in entering into the marital relation, induced by deception and fraud. Because of this he ought not to be condemned to consort with her whose dupe and victim he is proved to be during life and to bear the burden of supporting her spurious offspring.”
We have considered the decisions of the various States to which our attention has been challenged in the briefs together with such as our time for independent research would permit, where the question has been presented with any degree of frequency or considered at length. Many other cases bearing either directly or indirectly on the subject have also been examined, among them being Morris v. Morris, Wright (Ohio), 630; Hoffman v. Hoffman, 30 Pa. St. 417; Todd v. Todd, 149 Pa. 60 (17 L. R. A. 320, 24 Atl. 128); Allen’s Appeal, 99 Pa. 196 (44 Am. Rep. 101); Ritter v. Ritter, 5 Blackf. (Ind.) 81; Steele v. Steele, 96 Ky. 382 (29 S. W. 17).
We are persuaded that we should adopt the doctrine advanced by Justices Morse and Campbell in Sissung v. Sissung, supra, and the three recent cases heretofore adverted to. That this plaintiff has been defrauded, deceived and tricked into this marriage we entertain no doubt. It is intolerable to believe that he should be compelled to continue through life as the husband of defendant, caring for, as his own, this bastard child of another, with its constant reminder of his wife’s perfidy before marriage, because in attempting to right a supposed wrong he entered into the contract of marriage. That a man may have a true parental affection for the child that sprang from his own loins even though conceived before marriage is natural; but, that he should have such affection for one that sprang from the loins of another man and was foisted upon him by a designing woman is unbelievable. It has been said in many of the cases cited that one of the great purposes of marriage is procreation. It is evident that a wife pregnant by another cannot carry out that purpose and hence that purpose of marriage must fail. All true, but there are other purposes of marriage beyond the perpetuation of the species. One of the purposes is the maintenance of the sacred institution called home. It has been said that there are three parties to the contract of marriage, the two contracting parties and the public. Can it be that a wise public policy requires in the name of home the maintenance by the husband of an establishment presided over by one who has deceived him as to the paternity of the little one who daily sits at his board, who bears his name, who will in the absence of testamentary disposition inherit his property, the offspring of another, a stranger to his blood? Most assuredly not. We do not palliate plaintiff’s infraction of the moral code. Society will visit its penalties upon him. We are not the keepers of his conscience or the censors of his morals. We can only administer the law, imposing penalties only that are imposed by the law, granting relief only as the law affords relief. Under the law this plaintiff is entitled to be relieved from this contract of marriage, procured by fraud, and a fraud well calculated to deceive under all the facts in the case, and which did deceive the plaintiff and caused him to do the only thing an honorable man could do after his transgression of the moral code with its supposed result.
We do not overlook the claim most earnestly pressed by defendant’s counsel at the argument and in the brief that during the acquaintance of the parties defendant informed plaintiff that she had had intercourse with another. It is urged that this should have prompted more vigilance on the part of plaintiff. We have already called attention to the holdings of this court upon this subject, and certain facts to which we shall presently refer will demonstrate that the circumstances would readily prompt a reasonably prudent man to believe defendant’s claim as to the paternity of the child. If plaintiff was seeking annulment of the marriage on the sole grounds of want of chastity of his wife he could not successfully assert he had been defrauded if he had knowledge on the subject before the marriage. Nor under the authorities could he assert her want of chastity as grounds of annulment, where he himself had been a party to her unchaste conduct. The gist of the action here, the right to relief is based upon the ground that she has falsely represented herself to be pregnant by plaintiff, when as matter of fact she was pregnant by another; as was said by the supreme court of Texas in McCulloch v. McCulloch, 69 Tex. 682 (5 Am. St. Rep. 96, 7 S. W. 593):
“It is settled law that the husband cannot have the marriage annulled because the wife was with child by him at the date of the marriage. If a condition of pregnancy at that time is, under any circumstances, an impediment to marriage, it must be because it will impose upon the husband a spurious offspring.”
The plaintiff might have been willing to protect the woman with whom he had been intimate and who he supposed was pregnant by him, even though she had been unchaste before he ever saw her, but at the same time no right-thinking man would be willing to take as wife a woman pregnant by another.
Nor do we overlook defendant’s claim made in her testimony that plaintiff had agreed to marry her and that the marriage took place pursuant to that agreement rather than as a result of fraudulent statements. While she testifies that he spoke to her of love and “all that stuff,” and it is admitted that he addressed her in his letters as, “My dear Margaret,” it is a significant fact that none of the letters passing between them were preserved by either party. Their correspondence seems to have been somewhat desultory, their meetings and illicit relations infrequent until the occasion when defendant claims the child was begotten, and which must have been some time after she became pregnant, if the child was a full term child as testified to by the physicians and as we believe it was. On July 17, 1915, defendant came over from Chicago. She telephoned plaintiff and he came down and met her at the hotel. It is admitted by both that, they sustained illicit relations that evening. Shortly thereafter they went on a camping trip together at. Stevensville near the lake. Here they lived together in a tent for about a week, without a chaperon, and. apparently without restraint. Defendant was then pregnant by another man. She returned to Chicago and there is no testimony from her or any one else that she ever claimed plaintiff was the father of her child until the occasion of her trip to St. Joseph the following February, which was about three weeks before her confinement. In view of the relations of the parties during the previous summer it is not to be wondered that plaintiff accepted at par defendant’s claim that he was the father of her unborn child, and married her the following day to so far as possible right the wrong he supposed he had inflicted upon defendant, and to give his name to the child he supposed to be his. We are satisfied that there was no promise of marriage, no thought of marriage between them until this February meeting. Defendant’s claim in this regard does not ring true.
It follows from what we have said that the decree of the court below must be affirmed. The appeal has been prosecuted in the utmost of good faith. The question was an open one in this State. Defendant had the right to take the judgment of this court upon it. An allowance of $200 for her attorney fees will be made. Frith v. Frith, 18 Ga. 273 (63 Am. Dec. 289). The calendar entries in the record indicate that the cost of transcript and printing the record has already been provided for. If not it may be brought up on the settlement of the decree.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. | [
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Per Curiam.
Anna Boehning (hereafter respondent), appeals as of right from a judgment of the Manistee County Probate Court following a jury verdict in favor of petitioners.
Charles Skulina (decedent) was the unmarried and childless brother of respondent. Charles Boehning and Thomas Boehning are respondent’s sons. In addition to respondent, decedent was survived by his brother John Skulina and a second sister, petitioner Mary Peck. Decedent was also survived by petitioners Gerald Skulina and Shirley Atkins, children of his brother Joseph Skulina, who predeceased him. These survivors are his heirs at law. Anna Boehning is the only respondent appealing the verdict and judgment.
Decedent died intestate at the age of sixty-seven on April 12, 1985, after suffering an aneurysm. Respondent was appointed temporary personal representative of decedent’s estate. She was succeeded by petitioner Manistee Bank & Trust Company as personal representative.
Prior to his death, decedent owned land in Manistee County which for years he farmed for his living, and which in later years produced for him substantial oil and gas revenues. At the time of his death, decedent left various assets amounting to something over $500,000 in addition to two joint bank accounts in the names of decedent and respondent totaling approximately $147,000 and government bonds worth $18,500 plus interest, also in the joint names of decedent and respondent. It is these joint assets which are the subject of this dispute, respondent claiming them as the survivor of the joint owners. Further facts will be developed as they may become necessary to resolution of the issues raised.
Respondent asserts, as her first perceived error, an abuse of discretion by the trial judge in admitting the testimony of an expert in psychology to establish decedent’s intent in making the bank accounts and bonds joint with respondent.
The expert, Donald Van Ostenberg, who was eminently qualified as a psychologist, reviewed deposition transcripts and summaries of interviews with many persons who had known the decedent. Based on this information, he expressed as his opinion that decedent intended the jointly held assets to be divided among all of his heirs.
Respondent argues that Van Ostenberg’s testimony was inadmissible because it did not assist the jury as required by MRE 702:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
In other words it did not do for the jury what the jury could not have done for itself had it read the depositions or listened to the interviews. We agree that the trial judge abused his discretion in admitting such testimony.
The Court held in In re Blackwell’s Estate, 50 Mich App 204, 209; 213 NW2d 201 (1973), rev’d on other grounds 391 Mich 798 (1974), as follows:
[W]here the jury would be in as good a position as the expert to determine the cause of a particular injury, the expert should not be permitted to express his opinion. In 38 ALR3d 13, § 16, p 47, it is stated:
"The opinion of an expert as to the cause of an accident or occurrence is not admissible if the issue upon which it is tendered is of such nature that men of ordinary experience and observation can decide it for themselves on factual evidence.”
And in a case closer to our concern here, the intent of decedent, the Texas court in Thompson v Mages, 707 SW2d 951 (Tex App, 1986), held inadmissible the testimony of a psychologist offered to establish whether a then-deceased son had intentionally and wrongfully caused his father’s death two years earlier. As here, the psychologist based his testimony on interviews with persons who had known the son. Texas at the time had a rule (Texas Rules of Evidence 702) somewhat similar to MRE 702. As its rationale for excluding the testimony, the court held:
Moreover the issue to be decided in this case is whether Don Thompson intentionally and wrongfully caused the death of his father. Under the facts of this case, the jury did not need the assistance of scientific, technical, or specialized knowledge to decide this question. The admission of this testimony would not have assisted the jury in making inferences regarding the fact more effectively than the jury could do so unaided. [707 SE2d 957].
Van Ostenberg’s efforts are summarized in his own testimony on cross-examination:
Q. [By Mr. Daugherty] Is the opinion that you gave on the stand, your closing opinion having to do with whether or not Charlie expected everything to be divided out equally — I believe that was the thrust of your opinion — is that correct?
A. Yes.
Q. Is this an opinion that might as well and could be reached by a lay person in the community who knew Charlie and who would be making their statement on the basis of their knowledge of Charlie, their observation of Charlie and what Charlie may have said to them at any given time?
A. I think so.
Q. The statements in the test quite often are either conclusions, or constitute an opinion of the person answering the statement, is that correct?
A. Yes.
Q. [By Mr. Daugherty] Did any of the individuals who took the test, did any of the persons whose depositions you read themselves take a psychological test of any type for you to do a personality screening of that individual?
A. No.
Q. If they are your instruments, how do you screen out the bias?
A. If what are my instruments?
Q. If the people who are answering the test, if these people who are giving testimony and depositions are your instruments for giving testimony today, how do you screen out their bias?
A. And you are referring to specifically their test-taking behavior?
Q. Test-taking behavior, how they respond to the questions on the test and how they respond to questions of counsel at a deposition. How do you screen out their bias?
A. Well, one of the common ways to do it of course ....
Q. Did you do it in this case, first of all?
A. Yes.
Q. Screen out their bias?
A. No I can’t say that I screen out their bias, because I can’t attest that I was actually able to do this. I can tell you as a practicing psychologist who has done this for a living, how I attempt to do it. I attempt to do it first of all by looking for a consistency through-out and here I had depositions, interviews and answers to a structured test. I look for whether or not a person answers a question in a free manner, or whether a person will change their testimony under cross-examination. I look for whether or not a person is hesitant, whether or not a person is vague, or if they appear to be straightforward and I make judgments about that, much as I would if I were interviewing that person.
Q. Did you examine inconsistencies in testimony and take that into consideration?
A. Yes, that is what I said.
Q. Form a value judgment?
A. Yes. [Emphasis added.]
Whether Van Ostenberg performed a psychological autopsy as contended by respondent or constructed a psychological profile as contended by petitioners, his efforts run into the same objections, i.e., they represent an attempt by an expert to sit as a trier of fact in a situation where expertise is not required.
Respondent’s next challenge is to the propriety of the trial court’s admitting into evidence, over objection, the deposition of a witness who had died prior to trial. Again we agree that the trial judge erred.
On April 29, 1983, the deposition of Quinton Drotleff was taken. Drotleff died before trial and petitioners sought, and were granted, permission to introduce his deposition into evidence in order to establish decedent’s intent in creating the joint bank account.
The deposition referred to frequent conversations between Drotleff and decedent, some of them after the creation of the joint accounts, and some unidentified- as to time.
In Pence v Wessels, 320 Mich 195; 30 NW2d 834 (1948), the Court held that statements of intent made by a decedent, not in the presence of his joint owner, after creation of a joint bank account are not admissible to establish his intent at the time of creating the account. See also Mitts v Williams, 319 Mich 417; 29 NW2d 841 (1947), and Serkaian v Ozar, 49 Mich App 20; 211 NW2d 237 (1973).
To the extent that the deposition refers to conversations after creation of the accounts and to the extent that it refers to conversations not identified as to time, we hold that it is not admissible.
We find no merit in respondent’s challenge to the court’s instructions. Her claims of error in the court’s refusal to enter a judgment notwithstanding the verdict and in its refusal to grant a new trial are now moot.
Reversed and remanded for further proceedings consistent with this opinion. | [
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P. Edwards, J.
Plaintiff appeals as of right from an October 31, 1986, order of the Alpena Circuit Court granting defendant’s motion for summary disposition. We affirm.
Plaintiffs claim arises out of a September 28, 1984, automobile accident which occurred when defendant’s sister-in-law, Edith Faust, drove her 1982 Ford off a public roadway and struck a pedestrian, Cheryl Sierocki, plaintiffs decedent. At the time of the accident, the defendant was eighty-one years old. As a result of the accident, Cheryl Sierocki suffered a broken neck and other bodily injuries which resulted in her death on September 28, 1984.
Plaintiff alleged in her complaint that the defendant knew or had reason to know that Edith Faust was not competent to drive a motor vehicle and that she was so physically or mentally impaired as to constitute a danger and a nuisance to the public. The complaint further alleged that defendant and Edith Faust had developed a special relationship in that Edith Faust had become dependent on defendant, and, as a result of this special relationship, defendant had certain duties to the public in general and to Cheryl Sierocki in particular. Plaintiff further alleged that defendant’s breach of those duties was the proximate cause of Cheryl Sierocki’s death.
Edith Faust came to live in the home of defendant in 1973, after defendant’s wife died. They shared household expenses on an equal basis. Each owned an automobile, but defendant had a second set of keys to Faust’s automobile. Defendant noticed that Faust experienced a personality change which began six to eight months before the accident. She failed to take care of her automobile, failed to renew her driver’s license, and did not get insurance for her car. Also, Faust did not meet her obligations with regard to paying her share of the household expenses. Prior to the accident, defendant learned that Faust had received a ticket for going the wrong way on a freeway and that she had become lost on the highway on at least one occasion.
The defendant contacted an attorney in September, 1984, in an attempt to get Faust’s children to get her to a doctor and to get her off the road. Approximately three days before the accident, Edith Faust became angry at defendant because he told her that she should not drive. Charlotte Sides, Faust’s daughter, stated in an affidavit that she had given Faust’s car keys to defendant and had told him not to give them back to Faust. In his testimony, defendant stated that no one had ever asked him to hide the keys and indicated that he returned Faust’s extra set of car keys to her at the time that she returned his house keys.
Defendant had never been appointed Faust’s guardian or custodian and was never given a power of attorney by her.
On August 5, 1986, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8), contending that plaintiff had failed to state a claim on which relief could be granted.
On October 31, 1986, the trial court granted the motion for summary disposition, stating:
I am of the opinion that plaintiff’s complaint fails to establish a legal duty owed by defendant to plaintiff that is recognized by the statutory or case law of this jurisdiction. Further, I find that plaintiff’s claim as set forth in his [sic] pleadings is so clearly unenforceable that no factual development can justify a right to recovery.
The standard governing this Court’s review of a denial of a motion for summary disposition under MCR 2.116(C)(8) is well settled. In New Hampshire Ins Group v Labombard, 155 Mich App 369, 372; 399 NW2d 527 (1986), lv den 428 Mich 911 (1987), this Court stated:
A motion for summary disposition under MCR 2.116(C)(8) seeks to test the genuineness of a claim by challenging the legal adequacy of the pleadings. The test which a court applies in considering a motion under MCR 2.116(C)(8) is whether the plaintiffs’ [sic] claim, as stated in the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. ... In addressing a motion under this provision, the trial court accepts as true all well pleaded facts. ... In a negligence case, summary disposition is properly granted pursuant to MCR 2.116(C)(8) if it is determined as a matter of law that the defendant owed no duty to the plaintiff. [Citations omitted.]
In the case at bar, defendant argues that plaintiff has failed to state a valid claim because defendant owed no duty to plaintiff’s decedent. This Court agrees.
In a negligence action, the plaintiff must prove four elements: (1) that the defendant owed a duty to the plaintiff; (2) that the defendant breached that duty; (3) that the defendant’s breach of that duty was a proximate cause of the plaintiff’s damages; and (4) that the plaintiff suffered damages. Dumka v Quaderer, 151 Mich App 68, 72; 390 NW2d 200 (1986), lv den 426 Mich 861 (1986). In a negligence case, a duty may be defined as "an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Farwell v Keaton, 396 Mich 281, 286; 240 NW2d 217 (1976), reh den 397 Mich 958 (1976). The question whether a duty exists is one of law to be decided by the trial court. Smith v Allendale Mutual Ins Co, 410 Mich 685, 713; 303 NW2d 702 (1981), reh den 411 Mich 1154 (1981).
As a general rule, there is no duty to protect an individual who is endangered by the conduct of a third person. Duvall v Goldin, 139 Mich App 342, 350-351; 362 NW2d 275 (1984), lv den 422 Mich 976 (1985). In determining whether a legal duty should be imposed, the trial court should balance the societal interests involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence, and the relationship between the parties. Swartz v Huffmaster Alarms Systems, Inc, 145 Mich App 431, 434; 377 NW2d 393 (1985). A duty of reasonable care may arise where one stands in a special relationship with either the victim or the person causing the injury. Duvall, supra at 351.
In the case at bar, plaintiff alleges that defendant stood in such a special relationship to Edith Faust as to create a duty of reasonable care on the part of defendant. On appeal, plaintiff argues that the special relationship between defendant and Faust was that of a de facto guardian and ward. Defendant, on the other hand, contends that defendant was no more than Faust’s roommate and that this is not the type of relationship that the appellate courts of this state have recognized as a special relationship.
This Court has imposed a duty of reasonable care upon psychiatrists who determine, or, according to the standard of their profession, should determine, that a patient poses a serious danger of violence to a readily identifiable person. Bardoni v Kim, 151 Mich App 169; 390 NW2d 218 (1986), lv den 426 Mich 863 (1986); Hinkelman v Borgess Medical Center, 157 Mich App 314, 321-322; 403 NW2d 547 (1987), lv den 428 Mich 905 (1987). This duty is premised on the special relationship of control over the patient by the psychiatrist. Hinkelman, supra at 322. In the case at bar, there is no claim that plaintiff’s decedent was a readily identifiable potential victim of Faust’s "violence.” Thus, the trial court was correct in refusing to find a special relationship sufficient to impose upon defendant a duty of reasonable care.
In Duvall, supra at 352, this Court reversed the trial court’s grant of summary disposition in favor of the defendant physician, thus imposing a duty in that case on the physician in favor of the plaintiff because it was foreseeable that the physician’s negligence in failing to diagnose or properly treat an epileptic condition may have created a risk of harm to a third party. This Court specifically limited its decision to the narrow facts set out in that case, stating:
[O]ur decision in this regard is limited to the narrow facts set forth in this case. We decline to find a duty in every instance involving a physician, his patient and an unidentifiable third party. We do not intend to make physicians highway accident insurers. [Id.]
The appellate courts of this state have also imposed a duty based on a special relationship in settings other than a physician-patient relationship. In Farwell, supra at 292, the Michigan Supreme Court recognized that social companions engaged in a common undertaking assume a special relationship that may create an affirmative duty of one to render assistance to the other. In the instant case, defendant and plaintiffs decedent were not social companions engaged in a common undertaking. Therefore, Farwell is distinguishable on its facts from the case at bar and is not controlling.
In Sponkowski v Ingham Co Rd Comm, 152 Mich App 123, 128; 393 NW2d 579 (1986), this Court held that the trial court’s determination that the defendant owed no duty to the plaintiff was clearly incorrect. In Sponkowski, this Court imposed a duty upon the defendant who was leading a caravan of several vehicles to a hayride when he lost control of his automobile on a sharp curve, left the road, and ended up in a ditch. The car immediately following defendant also left the road at the same curve. The plaintiff, a passenger in that car, died as a result of injuries sustained in the accident. This Court in Sponkowski held that where one voluntarily assumes the performance of a duty, one is required to perform that duty carefully. Sponkowski, supra at 127. In the case at bar, the defendant did not undertake to perform any duty to Edith Faust or to plaintiff’s decedent. Thus, the Sponkowski decision is also inapplicable to the facts of the case at bar.
On appeal, plaintiff further argues that the trial court erred in granting defendant’s motion for summary disposition because the court failed to recognize material questions of fact. This Court does not agree. This is a motion under MCR 2.116(C)(8) and, therefore, only the four corners of the pleadings are relevant in determining whether the plaintiff has failed to state a claim on which relief can be granted. Moreover, summary disposition is properly granted in a negligence case pursuant to MCR 2.116(C)(8) if the court determines as a matter of law that the defendant owed no duty to the plaintiff. Labombard, supra. This Court believes that the trial judge properly determined as a matter of law that, under the well-pled facts of the case at bar, defendant owed no duty to Edith Faust or to plaintiffs decedent.
Defendant was entitled to summary disposition because, as a matter of law, he owed no duty to Edith Faust or to plaintiffs decedent. The relationship between defendant and Faust was not the type of special relationship that gives rise to a duty of reasonable care under the case law in this state. The trial court did not err in granting defendant’s motion for summary disposition. Accordingly the trial court’s order is affirmed.
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] |
M. J. Kelly, J.
This case presents the question of whether an unmarried live-in friend may recover under a contract implied in fact theory for services rendered over a three-year period on the basis that decedent promised to see that she was "taken care of.”_
Decedent and Helen L. Hall began dating in the summer of 1982. In the fall, Ms. Hall moved into decedent’s residence at his request and they cohabited as modern unmarrieds without benefit of portfolio. After an argument in the summer of 1983, Ms. Hall packed her bags and informed decedent that the harmony moon was over. She testified that he begged her to stay and care for him and said that if she stayed he would see that she was "taken care of.” She unpacked her bags and remained with decedent, taking care of him through his ill health until his death on June 3, 1986.
But decedent didn’t take care of her, at least by will. His will was executed on April 25, 1986, with a codicil executed on May 28, 1986, in the very shadow of imminent death. These were admitted for probate on June 12, 1986, and Ms. Hall was not named. On September 5, 1986, Ms. Hall as claimant filed a statement and proof of claim seeking $15,840 as compensation for housekeeping and personal services performed from September, 1982, until June 3, 1986. After an evidentiary hearing the probate court took the matter under advisement and on January 21, issued the following opinion and order:
After reviewing the testimony, the briefs of counsel and the law, the Court issues the following opinion.
This claim sounds in a contract implied in fact. Even though the distinction between contract in law or implied in fact was not maintained in the pleadings and-argument, error does not result. In re Mazurkiewicz’s Estate, [328 Mich 120, 123; 43 NW2d 86 (1950)].
The relationship of Harold and Helen was not that of a solicited housekeeper. However, "finding that no employer-employee relationship has ever existed does not resolve the issue.” Roznowski v Bozyk, [73 Mich App 405, 410; 251 NW2d 606 (1977)].
Harold and Helen’s relationship was more like man and wife without the benefit of marriage. Counsel for the estate correctly cites 24 CJ 281, 282 with this relationship arises the presumption of gratuity.
Assuming the correctness of the Court’s holding that the relationship between the parties was such as to give rise to a presumption of gratuity, it is undoubtedly the law that such presumption is rebutted, an implied contract to pay arises and plaintiff is entitled to recover, if it is established, that when services were rendered plaintiff expected to receive and deceased expected to pay. [In re Parks’ Estate, 326 Mich 169, 172, 173; 39 NW2d 925 (1949)].
What were Helen’s expectations? She intended to dissolve the relationship in 1983, but Harold said if she would take care of him he would take care of her. Later, more specifically, he told her after his death she could live in the home until it was sold; he would leave her the car; he left her something more.
What were Harold’s expectations? His daughter, Diana, testified, "Dad wanted to leave something to Helen, but didn’t want money to go to Helen’s kids.” Robert Westbrook testified Harold told him he had taken care of Helen. After he died she could live in the home until it was sold; have the car; give her a few months wages — more than she had ever had.
This testimony distinguishes this case from In re Spenger Estate, [341 Mich 491; 67 NW2d 730 (1954)].
In as much as this is not a suit in specific performance, this Court finds that Helen expected to receive compensation and Harold expected to give compensation. In order to reach an equitable result, the Court finds an implied in fact contract for reasonable value of the services rendered.
The Court directs counsel for the claimant to submit a claim commencing with the month in the summer of 1983 when Harold promised to compensate Helen if she stayed, and compute the rate at $12.00 a day. That claim will be approved.
We hold that the probate court’s finding that an implied in fact contract existed was clearly erroneous. MCR 2.613(C). A finding of fact is clearly erroneous when although there is evidence to support it a reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976) .
A contract implied in law is not a contract at all but an obligation imposed by law to do justice even though it is clear that no promise was ever made or intended. Calamari & Perillo, Contracts (2d ed), § 1-12, p 19. A contract may be implied in law where there is a receipt of a benefit by a defendant from a plaintiff and retention of the benefit is inequitable, absent reasonable compensation. Moll v Wayne Co, 332 Mich 274, 278; 50 NW2d 881 (1952), overruled on other grounds Brown v Dep’t of Military Affairs, 386 Mich 194, 201; 191 NW2d 347 (1971). However, this fiction is not applicable where there exists a relationship between the parties that gives rise to the presumption that services were rendered gratuitously. Roznowski v Bozyk, 73 Mich App 405, 409; 251 NW2d 606 (1977) . See also In re Parks’ Estate, 326 Mich 169, 172-173; 39 NW2d 925 (1949). A presumption of gratuity arises where the plaintiff is related by blood or marriage to the decedent, In re Jorgenson’s Estate, 321 Mich 594, 598; 32 NW2d 902 (1948), and where the parties lived together as husband and wife although never married, Roznowski, supra. See also Anno: Establishment of "family” relationship to raise presumption that services were rendered gratuitously, as between persons living in same household but not related by blood or affinity, 92 ALR3d 726. Where a presumption of gratuity arises, the plaintiff may still recover for services rendered under the theory of contract implied in fact. Roznowski, supra, pp 408-409. A contract implied in fact arises "when services are performed by one who at the time expects compensation from another who expects at the time to pay therefor.” In re Spenger Estate, 341 Mich 491, 493; 67 NW2d 730 (1954), quoting In re Pierson’s Estate, 282 Mich 411, 415; 276 NW 498 (1937). The issue is a question of fact to be resolved through the consideration of all the circumstances, including the type of services rendered, the duration of the services, the closeness of the relationship of the parties, and the express expectations of the parties. Id. However, "when one renders personal services to another merely upon the expectation of a legacy promised without a contract obligation, the promisee takes his chances on receiving the legacy, and, if his expectations, are disappointed, he can recover nothing.” 341 Mich 493 quoting from In re Pierson’s Estate, 282 Mich 411, 418; 276 NW 498 (1937).
A review of the probate judge’s opinion reveals that she found an implied contract existed for reasonable value of services rendered "in order to reach an equitable result.” This reasoning sounds in contract implied in law, not contract implied in fact. To the extent that she based her findings on the theory of contract implied in law, she committed error requiring reversal. On the facts of this case a presumption exists that the services rendered were gratuitous. Under such circumstances the theory of contract implied in law is inapplicable. The question then becomes did claimant present evidence of the existence of a contract implied in fact for compensation for services rendered. We believe this question must be answered in the negative. A review of the testimony offered at the December 18, 1986, hearing shows that at best all the witnesses save claimant verified that decedent planned to leave claimant a term or tenancy of some kind on the house, an automobile and a certain sum of money, probably for a term of months. Claimant herself testified that on several occasions decedent asked her what she wanted him to leave her. She refused to give him any answer. She said the decision was his to make and she did not want it to appear that she was exercising undue influence. She never informed decedent that she believed he owed her $15,000 for services rendered. She felt that it was his duty to raise the subject. The testimony is consistent with an interpretation that decedent intended to provide for claimant’s day-to-day needs while they resided together and to leave her something when he died: "to take care of claimant.” He apparently changed his mind as he had a right to do. If a person renders personal services to another upon the expectation of a legacy without a contract obligation and her expectations are disappointed she cannot recover.
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V. J. Brennan, J.
Defendant was originally charged with first-degree murder, MCL 750.316; MSA 28.548. On December 15, 1971, Recorder’s Court Judge Henry Heading accepted the defendant’s plea to second-degree murder, MCL 750.317; MSA 28.549, and defendant was sentenced to 45 to 60 years in prison.
On May 22, 1972, Judge Heading vacated the plea and granted defendant’s motion for a new trial. Defendant was then convicted of second-degree murder by a Recorder’s Court jury and was sentenced to life imprisonment by the late Judge John R. Murphy. On appeal to this Court defendant’s conviction was affirmed but the case was remanded for resentencing. People v Triplett, 68 Mich App 531; 243 NW2d 665 (1976).
At resentencing before Judge Dalton A. Roberson, defendant objected to the use of the original presentence report which had been prepared in 1972 and had not been updated to include his prison conduct. Defendant also objected to the consideration of 11 Youth Bureau contacts (which were not convictions) listed in the presentence report and to consideration of certain prior convictions asserted to have arisen from a denial of defendant’s constitutional right to counsel. Defendant was resentenced to 40 to 60 years in prison and appeals by right.
Defendant first contends that error requiring resentencing occurred when the lower court relied on a stale presentence report which did not delineate defendant’s prison conduct and progress toward rehabilitation.
The defense counsel’s initial objection concerned the claim that there was no "fresh presentence report”. The lower court responded that the proper procedure on resentencing where the defendant has been incarcerated is to "update” the report. (The update in the present case concerned an explanation of the above-mentioned Court of Appeals disposition.) Defense counsel furnished the lower court with two letters delineating the defendant’s conduct while in prison and stated "[t]he presentence report, does not indicate that anyone at the institution (Jackson) has been contacted as far as Mr. Triplett’s progress or about his record while in an institution”. The lower court responded: "Well, I’ve got these two letters and they indicate something”. Defense counsel then contested the propriety of the presentence report because it gave no additional information on the defendant since 1971 (the date of the original conviction). The lower court replied that normally a presentence report delineates conduct in the "community environment” and reflects upon the possibility of a sentence of probation. The lower court did not consider Jackson Prison as part of the community.
The prosecution relies on People v Allen, 79 Mich App 100; 261 NW2d 225 (1977), which held that a trial court upon resentencing may not properly consider the defendant’s prison behavior subsequent to his initial sentencing because such consideration would amount to a usurpation of the executive power to commute sentences. In Allen the Court intimated that a defendant’s progress made in prison is under the purview of the Department of Corrections and is not a proper consideration for the resentencing court. We decline to follow Allen.
The goal of our penal system is the rehabilitation of the criminal. As a first step toward achieving this objective, the sentencing courts are required to fit the punishment to the needs of the particular case. See People v Earegood, 383 Mich 82; 173 NW2d 205 (1970). It is incumbent upon the sentencing court to fully acquaint itself with the background and character of the case and of the defendant. People v Brown, 393 Mich 174; 224 NW2d 38 (1974), citing with approval People v Amos, 42 Mich App 629; 202 NW2d 486 (1972).
The sentencing court should make every effort to individualize sentences in order to further the goal of rehabilitation. In this regard a defendant’s conduct while in prison may shed considerable light on the prospect of rehabilitation. An updated presentence report which includes prison conduct would describe the defendant’s most recent behavior and would be a valuable tool in resentencing. Such a procedure would not be a burden on the probation department since records are kept at prison which could easily be made available.
Although we decline to follow Allen a review of the record in this case does not warrant a remand for resentencing. The lower court was apprised of the defendant’s prison conduct and he indicated the weight to be given thereto. The failure to include the conduct in the presentence report wqs thus not prejudicial.
Next defendant claims that the presentence report as furnished contained inaccurate information, and in addition thereto the report contained references to juvenile contacts as well as adult convictions obtained when defendant did not have counsel and was not informed of his constitutional rights.
As to defendant’s claim of inaccurate information in the presentence report, we point out that such an objection was not specifically raised below. The defendant merely pointed out that the juvenile contacts listed in the report did not result in conviction, thus precluding their consideration at sentencing. The trial court properly ruled that the defendant’s juvenile record could be taken into account at sentencing. People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973).
We next address defendant’s assertion that the trial court erred in considering constitutionally invalid juvenile dispositions and adult convictions. Convictions obtained in violation of defendant’s right to counsel may not be considered at sentencing. People v Moore, 391 Mich 426; 216 NW2d 770 (1974). To remove such a conviction from the lower court’s consideration, the defendant must present (1) prima facie proof that the previous conviction was constitutionally defective, such as a docket entry showing the absence of counsel or a transcript evidencing the same or (2) evidence that he has requested such records and has not received them. People v Moore, supra, 440-441. The record in the present case is barren of either of the above factual situations. The failure of the defendant to present such evidence below precludes appellate review.
The defendant frames the next issue as follows:
"Where the sentencing judge had indicated long before sentencing and before he had a presentence report or any other background information on defendant that he was going to impose a 45 to 60 year sentence upon defendant and that he was not going to change his mind, it was error for him to deny defendant’s motion to disqualify.”
The statement is factually inapplicable to the case at bar. The record clearly establishes that the lower court based its decision upon a reading of the presentence report, the transcript and the court file.
There was no showing that the sentencing judge based his decision on personal bias or prejudice against the defendant.
Affirmed.
Bashara, J., concurred. | [
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] |
D. E. Holbrook, Jr., J.
Plaintiff appeals by right the trial court’s October 23, 1978, dismissal of plaintiff’s petition for termination of paternity and/or child support.
The parties were married in Michigan on February 19, 1972. Plaintiff filed for divorce on March 24, 1975, and in the complaint for divorce plaintiff stated that Kimberly Ann Stewart, born July 23, 1973, was the one child born of the marriage. In his motion for temporary support, custody and interim property settlement, filed on March 24, 1975, plaintiff alleged that Kimberly Ann Stewart was a child of the parties. Plaintiff consented to the entry of a March 24, 1975, order for temporary support, custody and interim property settlement, and a modification thereof, dated July 17, 1975, which stated that Kimberly Ann Stewart was the minor child of the parties. Plaintiff also petitioned for and consented to a September 29, 1975, judgment of divorce which named Kimberly Ann Stewart as a child of the parties.
On June 30, 1978, plaintiff petitioned the court for an order determining paternity and/or terminating support, and in support thereof stated that plaintiff believed that the child was not born of the marriage for the reason of his nonaccess to defendant during the time of conception, admissions as to his nonpaternity by defendant to plaintiff, and admissions by defendant to third parties as to plaintiff’s nonpaternity. Plaintiff requested a hearing be set to determine plaintiff’s nonpaternity of the child. The trial court dismissed plaintiff’s petition because of plaintiff’s reference to the child as the child of the parties in the motion for temporary support, the order for temporary support, and the ultimate judgment of divorce, and because plaintiff sought to make Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977), retroactive.
Lord Mansfield’s Rule was judicially incorporated into Michigan law in Egbert v Greenwalt, 44 Mich 245; 6 NW 654 (1880). The rule was first uttered by Lord Mansfield in Goodright v Moss, 2 Cowp 591-594; 98 Eng Rep 1257-1258 (1777), which was a rule of evidence that parties to a marriage could not testify concerning nonaccess when the issue is paternity of a child born during their marriage. This rule was abolished in Michigan in Serafin v Serafin, although the Supreme Court held that a child is guarded by the still viable and strong, though rebuttable, presumption of legitimacy.
There are a number of reasons for this Court to affirm the trial court’s dismissal of plaintiff’s petition. First, we decline to make Serafín retroactive. Key factors which determine whether a new rule of law should be applied retroactively or prospectively are: (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect on the administration of justice. The reliance on Lord Mansfield’s Rule in Michigan for nearly 100 years and the possible devastating effect of retroactivity on the administration of justice discourage this Court from applying the abolishment of the rule retroactively.
Second, res judicata bars plaintiff from disestablishing his paternity. Baum v Baum, 20 Mich App 68; 173 NW2d 744 (1969). Moreover by plaintiff’s own actions and conduct, in acknowledigng the child as his own throughout the entire divorce litigation, we hold his present claim to be barred by the doctrine of estoppel.
Accordingly, the trial court is affirmed.
Affirmed. Costs to appellee. | [
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V. J. Brennan, P.J.
Defendant, Melvin King, was charged with armed robbery in violation of MCL 750.529; MSA 28.797. Defendant’s jury trial resulted in his being convicted, on November 10, 1976, of attempted armed robbery. MCL 750.92; MSA 28.287. On November 24, 1976, defendant was sentenced to 40 to 60 months in prison, and defendant appeals from his conviction as of right.
Defendant raises only one issue on this appeal. Defendant claims that the trial court did not properly exercise its discretion when it ruled that defendant’s prior conviction for armed robbery could be used by the prosecution in cross-examination if the defendant elected to testify. We disagree.
Upon review of the record it is found that the prosecution properly requested a ruling as to the admissibility of defendant’s prior conviction. This, together with the trial court’s response, indicated that the trial court recognized its discretion in the matter and thus the rule in People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), was not violated. It is true that in the exercise of this discretion various factors are to be balanced. See People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978). However, no Michigan case holds that this weighing process must be specifically placed on the record. In the recent case of People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), the Supreme Court could have imposed this specific requirement but chose not to do so.
The present case differs from Baldwin, supra, and Crawford, supra, wherein the trial court violated the proper standard in exercising its discretion. Since the record in the present case indicates that the trial court recognized its discretion and since there is no showing that improper factors were considered, we find no error.
Defendant’s conviction is affirmed.
M. F. Cavanagh, J., concurs in the result. | [
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Per Curiam.
The city appeals by right from a circuit court order enforcing a 1969 PA 312 panel arbitration award settling the contract for policemen represented by plaintiff for the year July 1, 1976, to June 30, 1977. The city makes a three-pronged attack on the circuit court’s enforcement of the award, challenging the procedure which led to enforcement, the authority of the panel to deal with the layoff issue and the constitutionality of the act. We affirm.
I
After the arbitration panel rendered a majority award, the union petitioned for enforcement in the Macomb County Circuit Court. MCL 423.240; MSA 17.455(40). The city answered the petition, challenging various portions of the award. The union then filed what it labeled a motion for summary judgment under GCR 1963, 117.2(3) (no issue of material fact). The city filed an answer to the motion alleging that questions of fact existed which precluded summary enforcement. The circuit court filed an opinion and order granting the petition to enforce without taking evidence.
We hold that the circuit court acted correctly. The policy of the act is to provide for expeditious resolution of disputes. MCL 423.231; MSA 17.455(31). To this end, the grounds upon which an award can be challenged are limited to those listed in the statute. MCL 423.242; MSA 17.455(42). To the grounds provided in the statute, the courts have reserved the right to review constitutional claims. Alpena v Alpena Fire Fighters Association, AFL-CIO, 56 Mich App 568; 224 NW2d 672 (1974), lv den 394 Mich 761 (1975).
The statute does not require a trial before enforcement will be granted. The time consumed in any extended procedure would be contrary to the stated purpose of the act. The circuit court’s review, and ours, is of the record made before the arbitration panel. It is not error to summarily order enforcement of the award after the party opposing enforcement has had an opportunity to raise the appropriate objections and a court has had an opportunity to review the record to determine if the questions decided were within the jurisdiction of the panel and the award is supported by competent, material and substantial evidence on the whole record.
Although we find no error in the procedure followed by the circuit court, we conclude that the court erred in ordering enforcement of the "educational incentive” provision of the award. Under MCL 423.238; MSA 17.455(38), the arbitration panel must accept the last offer of settlement by one of the parties on economic issues. The educational incentive clause of the contract was an economic issue, but the majority of the arbitration panel rejected both the city and union proposals as unsupported by the record. In doing so, the panel exceeded its jurisdiction under the act and this portion of the award should not have been enforced by the circuit court.
II
The city also challenges the layoff clauses as beyond the authority of the arbitration panel. The problem of layoffs was determined to be a noneconomic issue. A majority of the arbitration panel rejected both parties’ proposals and substituted a clause providing:
"The word 'layoff means a reduction in the working force due to a decrease of work or a general lack of funds. If for lack of funds, police officers may be laid off only in conjunction with layoffs and cutbacks in other departments.”
From the discussion at oral argument, it appears that the clause should be interpreted to allow all reductions in force for lack of work in the police department, and requires that reductions in force for economic reasons be in conjunction with reductions in other departments. The precise relationship between layoffs in the police department for economic reasons and layoffs in other departments is not settled by the clause nor was it intended to be. As explained by the majority of the arbitration panel, this compromise language was intended to protect the members of this bargaining unit from retaliatory layoffs because of what the city perceived to be a lack of cooperative attitude in fiscal matters, while at the same time expanding the city’s right to protect itself from a real fiscal crisis.
Viewed in the context of the previous relationship of these parties, the clause actually expands management rights. The prior layoff clause was interpreted to prohibit layoffs solely for economic reasons. Metropolitan Council No. 23, Local 1277, American Federation of State, County and Municipal Employees, AFL-CIO v Center Line, 78 Mich App 281, 286; 259 NW2d 460 (1977), lv den 402 Mich 814 (1977). The city, under the award language, may now lay off policemen for economic reasons but cannot do so in a manner which discriminates against the members of this bargaining unit. We do not perceive the language as restricting the basic legislative choices of the city in providing municipal services, and we conclude that the award was within the power of the arbitration panel. Fire Fighters Union, Local 1186, International Association of Fire Fighters, AFL-CIO v City of Vallejo, 12 Cal 3d 608; 116 Cal Rptr 507; 526 P2d 971 (1974), Board of Education of Yonkers City School District v Yonkers Federation of Teachers, 40 NY2d 268; 386 NYS2d 657; 353 NE2d 569 (1976). Cf. Alpena v Alpena Firefighters, supra, Town of Narragansett v International Association of Fire Fighters, AFL-CIO, Local 1589, — RI —; 380 A2d 521 (1977).
Ill
The city also raises two constitutional challenges to the compulsory arbitration scheme. The city contends the act violates various provisions of the Michigan Constitution because it delegates political power to a nonpolitical body and that municipalities are denied due process because the selection scheme of MCL 423.235; MSA 17.455(35) insures the chairman of the arbitration panel will be pro-union.
The chairman of the arbitration panel in this case was chosen by the Michigan Employment Relations Commission supplying a list of three nominees and each party striking one name. MERC then appointed the individual whose name was not struck to serve as chairman.
This method of selection is different than that reviewed by the Supreme Court in Dearborn Fire Fighters Union Local No 412, IAFF v Dearborn, 394 Mich 229; 231 NW2d 226 (1975), affirming by an equally divided court 42 Mich App 51; 201 NW2d 650 (1972), but not in a manner which would alter the result. A decision by an equally divided Supreme Court is not precedent which we are compelled to follow. LeVasseur v Allen Electric Co, 338 Mich 121; 61 NW2d 93 (1953). However, in this case we choose to follow the prior decision of this Court upholding the statute.
The city also claims that the procedural scheme for selecting the chairman denies it due process. In theory, the individual serving as chairman of these arbitration panels will have to be sufficiently unbiased to satisfy both labor and management or they will never secure future employment. However, the city contends that because only a few unions represent all public employees which are subject to the act, they have a built-in advantage over employers in determining the attitudes of prospective arbitration panel chairmen.
We cannot accept the city’s premise. There is nothing in the system which makes it inherently pro-union. There are organizations of cities and municipalities which could, and from comments at oral argument do, provide information on particular individual arbitrators to cities. There is no allegation of record that the chairman in this case was actually biased in favor of the union and if that were ever the case the matter could be raised under MCL 423,242; MSA 17.455(42) in opposition to a petition to enforce. The statutory scheme does not deny the city due process on the grounds alleged.
Affirmed as modified. No costs, a public question.
MCL 423.231 et seq.; MSA 17.455(31) et seq.
The dispute is not moot even though the fiscal year has expired. MCL 423.240; MSA 17.455(40).
In this case we deal with "interest” arbitration. The parties have previously litigated certain grievance issues. Metropolitan Council No. 23, Local 1277, American Federation of State, County and Municipal Employees, AFL-CIO v Center Line, 78 Mich App 281; 259 NW2d 460 (1977), lv den 402 Mich 814 (1977).
To the extent the city would have us review the grievance issues previously litigated we must decline the invitation under the law of the case doctrine. Topps-Toeller, Inc v Lansing, 47 Mich App 720, 727-729; 209 NW2d 843 (1973), lv den 390 Mich 788 (1973).
"Orders of the arbitration panel shall be reviewable by the circuit court for the county in which the dispute arose or in which a majority of the affected employees reside, but only for reasons that the arbitration panel was without or exceeded its jurisdiction; the order is .unsupported by competent, material and substantial evidence on the whole record; or the order was procured by fraud, collusion or other similar and unlawful means. The pendency of such proceeding for review shall not automatically stay the order of the arbitration panel.” MCL 423.242; MSA 17.455(42).
Const 1963, art 3, § 2; Const 1963, art 4, § 1. | [
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] |
Per Curiam.
This is the second time this controversy has been presented to this Court for review.
Plaintiff, Carl L. Freiberg, is a tenured teacher who had been continuously employed by the Big Bay De Noc Board of Education since the 1967-68 school year. At the beginning of the 1971-72 school year, plaintiff was dismissed from his position, allegedly for financial, legal and enrollment reasons requiring a necessary reduction in personnel. Plaintiff requested a hearing pursuant to the teachers’ tenure act on the grounds that the defendant board of education was in fact attempting to dismiss him because of his performance, leadership and influence in the teachers’ union by use of the subterfuge of an economic layoff He further asserted that the board, through its superintendent, had manipulated class schedules to eliminate his position. The Teacher Tenure Commission declined to review plaintiff’s allegations, on the grounds it lacked jurisdiction to review a school board’s budgetary decisions. The circuit court reversed this decision, and this Court affirmed. The case was remanded to the Teacher Tenure Commission to determine de novo whether the defendant board of education, under the guise of a "necessary reduction in personnel”, used circuitous methods in removing the plaintiff from its school system without the protections afforded by the teachers’ tenure act. Freiberg v Board of Education of Big Bay De Noc School Dist, 61 Mich App 404, 416; 232 NW2d 718 (1975).
On remand, the Teacher Tenure Commission, over the dissent of two of its members, found that the board of education had laid off plaintiff in good faith due to financial necessity, although it acknolwedged the animosity that existed between the superintendent, members of the school board and the plaintiff. Plaintiff appealed this adverse decision to the circuit court, which affirmed. From this affirmance, plaintiff appeals to this Court as of right.
When it is alleged, as in the case at bar, that an agency’s decision is not supported by competent, material and substantial evidence, the reviewing court must examine the whole record to determine whether such evidence exists. This examination must both avoid invasion of the agency’s fact-finding province and yet afford the plaintiff "meaningful review” of its decision. The parameters of this review were delineated in Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974).
"What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record—that is, both sides of the record—not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency.”
We have carefully examined the record before us with these admonitions in mind, and conclude that the Tenure Commission’s decision is not supported by substantial evidence on the whole record.
Numerous and significant contradictions appear in the record which directly refute the financial, enrollment and legal difficulties asserted by the board of education to justify plaintiffs layoff. Testimony from other witnesses differs sharply from that of Superintendent Stupak, who was instrumental in procuring plaintiff’s dismissal. Absent Stupak’s testimony this record would contain scant, not substantial, evidence to support the commission’s findings. Stupak’s personal animus for plaintiff was noted by the majority in its opinion and the dissent characterized it in the following language:
"Contradictions between the testimony of the Superintendent and four other witnesses, including the Appellant, appear on the record. In addition, two witnesses (Freiberg and Pelletier) testified that Superintendent Stupak told them that he would lie under oath to protect his interest. There seemed to be no disagreement in this Commission that Superintendent Stupak was not worthy of belief.”
The testimony concerning the school district’s purported financial difficulties is replete with direct contradictions. For example, although the superintendent testified that State Rep. Varnum had informed him that state aid would decrease for the 1971-1972 school year, Rep. Varnum testified before the Tenure Commission that in fact he told the superintendent in June, 1971, state aid would probably increase, or at least remain stable. This alleged decrease in aid was offered by the board as one of the bases for its projected financial difficulties. Furthermore, the Intermediate School Superintendent McClintock informed Mr. Stupak in April or May, 1971, of the county equalized value for assessment purposes, which for the past three years at least had equaled the state equalized value. For 1971-1972, this equalized value increased approximately $600,000. It also appears from the uncontradicted record that the relations between the superintendent and plaintiff became especially strained at the end of the previous school year due to plaintiff’s inquiry into irregularities in payments from school funds made by Mr. Stupak. Lastly, despite its financial difficulties, the school district expanded existing programs, added a new program in home economics to its curriculum and hired a new teacher for this addition, without . apparently eliminating any previously existing programs.
We also note that class enrollment, on the opening school day when the school superintendent informed plaintiff of his economic "layoff”, was 610 students, a gain of 25 over the projected figure estimated the week before school opening, as well as an increase of 9 students over the 1970-1971 school year.
Finally, it appears from the record that the asserted legal problem underlying the plaintiff’s continued employment primarily involved a scheduling problem based on an overlap of teachers with a certification identical to plaintiff’s but with more seniority. This overlap existed only if plaintiff continued teaching in the high school. However, plaintiff was also certified to teach all subjects in the seventh and eighth grades, and had some teaching experience on that level. No vacancy existed in these grades, unless Mr. Soorus, a seventh grade teacher, was scheduled to fill an existing high school vacancy in history. The vacancy in question was within Mr. Soorus’ certification (political science and history); he had also verbally requested this assignment from Superintendent Stupak. Nevertheless, as the high school principal testified, these assignments were not made, a new teacher was hired for the vacant position, and plaintiff was laid off.
We recognize the particular expertise of a school board in making educational decisions of this type. However, under the circumstances of this case and record evidence directly contradicting the school board’s other justifications for eliminating plaintiff’s position, we do not find this testimony substantially supports the Tenure Commission’s decision.
The recent holding by another panel of this Court in Chester v Harper Woods School Dist, 87 Mich App 235; 273 NW2d 916 (1978), does not limit our review in the instant case. In Chester, supra, the issues on appeal primarily presented a question of the Tenure Commission’s power to substitute its judgment for a school district’s in defining qualifications for open teaching positions. The panel concluded that, absent bad faith or arbitrariness, a school district’s definition of "qualified” is binding on review and may not be set aside. In addition, the teachers’ allegations of schedule juggling were also predicated on the issue of qualifications and no claim of subterfuge to circumvent the teachers’ tenure act was made. In the instant case, plaintiff’s qualifications are not in dispute. Rather, this Court is squarely presented with the issue of schedule manipulation as a subterfuge to dismiss a qualified, tenured teacher by eliminating his position. As the dissent in Chester, supra, points out, relying on the first opinion in Freiberg, supra, such an allegation of duplicity by a school board is reviewable de novo by the Teacher Tenure Commission; its decision is thus subject to scrutiny on appeal for compliance with the substantial evidence test.
Accordingly, we find that the defendant board of education manipulated teaching schedules to effectively dismiss plaintiff under the guise of a necessary reduction in personnel, in violation of the teachers tenure act. We reverse the State Teacher Tenure Commission’s decision and order the reinstatement of plaintiff, with back pay.
Having reversed the Tenure Commission, we order plaintiff’s reinstatement with reparation of lost salary pursuant to MCL 38.103; MSA 15.2003. In accordance with Shiffer v Board of Education of Gibraltar School Dist, 393 Mich 190; 224 NW2d 255 (1974), we remand to the Tenure Commission for determination of the amount of the back-pay award in this case with instructions (i) to deduct from the "salary” plaintiff would have earned all wages he actually earned that he would not have earned if he were employed as a teacher, and (ii) to consider any evidence the school district offers that plaintiff, through exertion of proper efforts, could have earned more.
The burden on the mitigation issue is on the school district, not the teacher.
Reversed and remanded to the Tenure Commission. Costs to plaintiff. | [
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N. J. Kaufman, J.
Plaintiff sued to recover no-fault personal protection insurance benefits from the defendant after plaintiff was injured in an automobile accident. Defendant’s motion for summary judgment was granted by opinion of June 15, 1978, after the trial judge determined that there was no insurance covering the vehicle driven by plaintiff. Plaintiff appeals by right and we affirm.
On January 5, 1977, Michele Albanys purchased a 1971 Oldsmobile from Thomas Slyfield. She received the car, its keys and the signed, notarized title from Mr. Slyfield. Ms. Albanys’ name, as the car’s purchaser, was not placed on the certificate of title. Ms. Albanys testified that she intended to sell the car to her father, the plaintiff, who was domiciled in her household. She received $600 of the $1100 purchase price from her father as a down payment for the car and was to receive the remaining $500 on January 8, 1977, but she never executed an assignment of title to her father and did not deliver the title to him.
On January 7, 1977, Ms. Albanys took the license plates from a 1969 Pontiac, which was registered to her deceased mother, and put them on the 1971 Oldsmobile. That evening plaintiff drove the car and was involved in an accident. He had planned to purchase insurance for the car the next day.
At the time of the accident, plaintiff was not a named insured on any no-fault insurance policy. However, plaintiff’s daughter was a named insured under a no-fault policy issued by defendant and covering a 1969 Plymouth. The Oldsmobile was not an insured vehicle under that policy, but plaintiff sought benefits under it because he was a relative of Ms. Albanys domiciled in her household.
The trial judge granted defendant’s motion for summary judgment and concluded:
"The Plaintiff failed to provide insurance for the vehicle.
"The daughter Michelle [sic] had no contract of insurance with Defendant or anyone else to cover the 1971 Oldsmobile.
"If she was the owner, as she claims she is, she has failed to maintain security for payment of benefits under personal protection insurance.
"To hold otherwise would be tantamount to saying to the public, purchase one car, properly cover it with insurance and then go out and take title to all the vehicles you choose, don’t inform your carrier of the added risks, let any number of members of your household drive the added vehicles with the assurance that if they are injured in an accident they will receive their lost wages, medical and dental expenses even though they may have caused the same.
"This Court cannot believe the Legislature intended such a result from the language of the Act as cited by Plaintiff.”
We agree with the trial judge’s result, but rest our conclusion on different grounds. This, of course, does not affect the ultimate resolution of the case. See Queen Ins Co v Hammond, 374 Mich 655, 658-659; 132 NW2d 792 (1965).
At the outset, we find that Ms. Albanys became the owner of the Oldsmobile on January 5, 1977. Title passed when the certificate of title was properly endorsed and delivered to Ms. Albanys at the time she was in possession of the vehicle. MCL 257.233(d); MSA 9.1933(d), and see MCL 257.239; MSA 9.1939, Kube v Neuenfeldt, 353 Mich 74, 80; 90 NW2d 642 (1958), Fleckenstein v Citizens’ Mutual Automobile Ins Co, 326 Mich 591; 40 NW2d 733 (1950). The inclusion of Ms. Albanys’ name on the certificate of title was unnecessary.
MCL 257.233(d) reads:
"The owner shall indorse on the back of the certificate of title an assignment thereof with warranty of title in the form printed thereon with a statement of all security interests in said vehicle or in any accessory thereon, sworn to before a notary public or some other person authorized by law to take acknowledgments, and deliver or cause the same to be mailed or delivered to the department or to the purchaser or transferee at the time of the delivery to him of such vehicle, which shall show the payment or satisfaction of any security interest as shown on the original title.”
The statute only requires an owner to 1) endorse the certificate of title and 2) deliver the certificate to the transferee. There is no requirement that the transferee’s name be placed on the certificate.
Additionally, the purpose of the statute is "to discourage and to prevent the stealing of automo biles, to protect the public against crime”. Endres v Mara-Rickenbacker Co, 243 Mich 5, 8; 219 NW 719 (1928). This objective is met by requiring that a signed, notarized title be delivered to a transferee in possession in order to transfer title. Requiring the transferee’s name on the certificate of title would not further the statutory purpose. The notarized signature of the transferor sufficiently insures that the transferor intends to sell the vehicle involved.
Plaintiff also became an owner of the Oldsmobile before the accident occurred. MCL 257.37; MSA 9.1837 provides in relevant part:
" 'Owner’ means
''(b) A person who holds the legal title of a vehicle or in the event a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner.”
Thus, while as a general rule the owner of an automobile is the person in whose name the vehicle is registered with the Secretary of State and whose name is listed on the certificate of title, a person need not hold legal title to a vehicle to be an owner of it. John v John, 47 Mich App 413; 209 NW2d 536 (1973). Additionally, one or more persons may be the owner of a vehicle. Messer v Averill, 28 Mich App 62, 65, fn 2; 183 NW2d 802 (1970).
In the instant case, plaintiff was a conditional vendee owner of the Oldsmobile. A conditional sale is defined as one in which the transfer of title is made to depend on the performance of a condition, usually the payment of the price. Black’s Law Dictionary (4th ed), p 1504. Here, plaintiff had given his daughter $600 toward the purchase of the car and was to receive the certificate of title upon payment of an additional $500 on January 8, 1977. Plaintiff was, therefore, a conditional vendee. Further, plaintiff had an immediate right to possession at the time of the accident. Plaintiff was, therefore, an owner of the Oldsmobile at the time of the accident.
The cases cited by plaintiff, Messer v Averill, supra, and Gazdecki v Cargill, 28 Mich App 128; 183 NW2d 805 (1970), do not mandate a different conclusion. Those cases merely hold, under facts similar to those present here, that the transferor remains an owner of a vehicle. They do not state that the transferee is not an owner.
Having determined that plaintiff was an owner of the Oldsmobile at the time of the accident, it follows that he was required to maintain continuous security for payment of personal protection insurance benefits. See MCL 500.3101; MSA 24.13101, MCL 257.216; MSA 9.1916, MCL 257.33; MSA 9.1833. The penalty for failure to maintain this insurance is clear:
"A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the. accident any of the following circumstances existed:
"(b) The person was the owner or registrant of a motor vehicle involved in the accident with respect to which the security required by subsections (3) and (4) of section 3101 was not in effect.” MCL 500.3113; MSA 24.13113.
Since plaintiff did not maintain the required insurance on the Oldsmobile involved in the accident, he cannot collect any personal protection insurance benefits.
This may seem like a harsh result, but the statute is plain. Additionally, plaintiff knew he had to purchase insurance for the Oldsmobile and originally intended to purchase insurance the day after the accident. Unfortunately, plaintiff did not have the required insurance at the time of the accident.
Affirmed. No costs, the interpretation of a statute being involved. | [
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Per Curiam.
Plaintiff sued defendant Hirkey for assault and battery and defendant bar owner for violation of the dramshop act. MCL 436.22; MSA 18.993. The jury returned a verdict of no cause of action against both defendants. The trial court entered a judgment for defendants pursuant to the verdict and plaintiff appeals by right.
Defendant bar owner served beer to defendant Hirkey who was allegedly visibly intoxicated. Later, while defendant Hirkey was still at defendant Burton’s bar, plaintiff approached him and repeatedly challenged him to step outside for a fight. Hirkey finally agreed, and the two stepped out into the parking lot. Hirkey admitted at trial that but for the fact that he was intoxicated, he probably would not have so readily agreed to fight. Once in the parking lot, plaintiff pulled a knife on defendant. While plaintiff was momentarily distracted, defendant disarmed him and stabbed him with the knife.
Plaintiff claims that the trial court committed reversible error in giving the following instruction requested by defendant bar owner:
"As I have indicated to you in the claims of the parties which have been read to you, the plaintiffs suit claims that defendant Hirkey was the aggressor. If you find that defendant Hirkey was not the aggressor and only used reasonable force for self-defense then you shall find for both defendants, Hirkey and Burton. If you find that defendant Hirkey used excessive and unreasonable force then you shall find for the plaintiff against the defendant, Hirkey. The plaintiff cannot recover for assault if you find that he first attacked the defendant, unless it appears that the defendant used more force than was necessary in repelling the attack.
"If you find for the plaintiff against defendant Hirkey then you shall consider whether the defendant Burton is liable also.”
Plaintiff objected to the instruction at trial stating that a dramshop action against a bar owner was separate and distinct from the cause of action against the intoxicated person and did not rest on any theory of derivative liability. Conversely, defendant bar owner contends that a bar owner’s liability is limited only to injuries resulting from the wrongful or tortious actions of the intoxicated person. Therefore, since it is not wrongful to de fend oneself, if the jury found that the principal defendant acted in self-defense, it must find that he did not act wrongfully; thus, the bar owner cannot be liable, and the instruction was correct.
We find that the instruction given in this case is not generally applicable to all dramshop actions and therefore it should not be used since in many cases it might constitute reversible error. However, under the unique circumstances of this case, the instruction correctly informed the jury of the applicable law and did not constitute reversible error.
In order to maintain a dramshop action, the plaintiff must prove that 1) he was injured by the wrongful or tortious conduct of an intoxicated person, 2) the intoxication of the principal defendant was the sole or contributing cause of plaintiff’s injuries, and 3) the bar owner sold the visibly intoxicated person liquor which caused or contributed to his intoxication. See Wyatt v Chosay, 330 Mich 661, 668-669; 48 NW2d 195 (1951), Pesola v Pawlowski, 45 Mich App 516, 518-519; 206 NW2d 780 (1973). Therefore a bar owner’s liability can only be predicated upon the wrongful activity of the intoxicated person.
It is not wrongful to defend oneself; however, it is wrongful to voluntarily engage in a fight. See Galbraith v Fleming, 60 Mich 403; 27 NW 581 (1886), People v Sherman, 14 Mich App 720; 166 NW2d 22 (1968), Anno: Consent as defense to charge of criminal assault and battery, 58 ALR3d 662 (1974). It is for this reason that the instruction given in the present case is not generally appropriate. If an intoxicated person voluntarily engages in a fistfight, he is engaging in wrongful activity. Therefore, even if the intoxicated person is not liable to the plaintiff on the theory of self-defense or mutual fight, the bar might still be liable to the plaintiff if the defendant’s intoxication by the bar was a contributing factor to his engaging in the fight.
This scenario did not occur, however, in the present case. Although defendant agreed to engage in a fistfight, the mere agreement itself was not wrongful activity. The wrongful activity occurs only when the agreement is acted upon. In the present case, upon arriving in the parking lot, the fistfight which defendant Hirkey had agreed to did not take place. Instead, plaintiff pulled a knife on defendant thereby exceeding the scope of the agreement and terminating it. At this point the parties were left in a basic attack and defend situation. Plaintiff attacked defendant with the knife and defendant defended himself. Since it is not wrongful to defend oneself when attacked, if the jury believed that defendant acted in self-defense in this situation, he could not have acted wrongfully and the bar could not have been liable. Therefore, under the circumstances of this case, the instruction correctly stated the law and did not prejudice plaintiff.
Affirmed.
Trial courts should give SJI 27.04.
In the absence of excessive force, a person may not recover civil damages from other participants in a voluntary affray. White v Whittal, 113 Mich 493; 71 NW 1118 (1897), Galbraith, supra.
Due to our resolution of the instructional issue, we need not address the issues raised in the concurring opinion. | [
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Cynar, P.J.
Plaintiff appeals as of right from a verdict of no cause of action in her malpractice action against Foote Hospital.
On August 6, 1973, plaintiff commenced this action by filing a complaint against the hospital, Dr. Richard Ries, and Dr. Richard Deming. The complaint alleged separate acts of negligence on the part of each defendant in connection with plaintiffs birth, which resulted in her being permanently paralyzed. Plaintiff asserted that Dr. Ries, Carolyn Wilson’s obstetrician, had negligently failed to diagnose the possibility of a breech birth and negligently failed to be present at the birth of the child. Plaintiff asserted that Dr. Deming, an orthopedic surgeon, had negligently con ducted plaintiffs delivery. Plaintiff further asserted, in rather general terms, that defendant hospital was negligent in its management of hospital functions and in its supervision of hospital personnel.
After subsequently filing an amended complaint, plaintiff filed a motion on November 28, 1975, for the production of certain hospital documents relating to emergency procedures at the hospital. This motion was denied in an opinion dated January 5, 1976, and in an order filed on March 5, 1976. On February 25, 1976, plaintiff filed her second amended complaint, alleging that defendant hospital was negligent in inappropriately issuing an emergency call in conjunction with plaintiffs birth and in failing to establish proper procedures to regulate emergency situations.
On January 14, 1977, Dr. Ries and Dr. Deming filed a motion to dismiss plaintiffs claims against them on the ground that they had settled with plaintiff for a sum of $75,000 each. This settlement was approved on February 3, 1977, as being in the best interest of the minor plaintiff and the two doctors were dismissed as defendants. However, pursuant to a third-party complaint filed by defendant hospital, the doctors were brought back into the case as third-party defendants in defendant’s claim for contribution.
On March 4, 1977, plaintiff filed a motion in limine to bar introduction at trial of any evidence regarding plaintiffs settlements with the two doctors. This motion was denied.
Trial commenced on March 7, 1977. Prior to jury selection, the trial judge was asked by plaintiff to rule on the number of peremptory challenges allowed each party. The trial judge ruled that defendant hospital would receive nine such challenges, while the other parties would each receive three.
Prior to trial plaintiff moved for summary judgment in her behalf on the ground that defendant hospital’s act of attaching plaintiff’s pleadings to its third-party complaint and incorporating them by reference in the complaint acted as a judicial admission of liability. This motion was held in abeyance and eventually denied.
At trial the proofs focused upon whether the hospital had issued an emergency call in response to plaintiff’s unexpected breech presentation, whether such a call was justified under the circumstances, and whether such a call was relied upon by Dr. Deming in delivering plaintiff. A verdict of no cause of action was returned and an order to that effect entered on March 23, 1977.
Plaintiff initially contends that the trial judge erred in denying her motion for the production of documents under GCR 1963, 310. Specifically, plaintiff sought internal hospital documents outlining the definition of an "emergency” and a "code 100” and the duties of the hospital personnel under such circumstances. This motion was denied below on the ground that the rules of a hopsital do not fix the applicable standard of care.
The trial judge properly concluded that the internal regulations of the hospital do not establish the applicable standard of care. See Dixon v Grand Trunk Western R Co, 155 Mich 169, 173; 118 NW 946 (1908). However, discovery under GCR 1963, 310 does not require that the evidence be admissible at trial. Daniels v Allen Industries, Inc, 391 Mich 398, 405; 216 NW2d 762 (1974). Rather, to be entitled to discovery under this rule, one must only show "good cause” for such discovery. Daniels, supra, 405. "Good cause” is established when the moving party establishes that " 'the information sought is or might lead to admissible evidence, is material to the moving party’s trial preparation, or is for some other reason necessary to promote the ends of justice”’. Daniels, supra, 406. (Emphasis in 391 Mich.) Thus, to the extent that the trial judge’s analysis focused upon the admissibility of the evidence sought, it fails to support his conclusion to deny discovery.
However, we conclude nonetheless that the trial court properly denied plaintiffs motion. Plaintiffs motion merely stated, in conclusory terms, that the documents were relevant to her trial preparation. Such a conclusion does not establish the requisite "good cause” for production. Nor was the importance of the documents apparent from the pleadings, as plaintiffs second amended complaint, adding the allegations regarding the issuance of a code-100 call, had not been filed at the time the motion to produce was denied in the January 5, 1976, opinion. Therefore, we conclude that the trial judge did not abuse his discretion in denying plaintiffs motion.
Plaintiff next contends that the trial court committed reversible error in denying her motion to exclude reference to the prior settlement with Drs. Deming and Ries. She contends that the trial court could have adjusted the damages awarded so as to reflect the prior settlement, without putting the fact of the settlement before the jury. She further argues that the prejudicial impact of the evidence outweighed any probative value it may have had.
As a general rule the trial judge has broad discretion in ruling upon the relevancy of evidence submitted at trial. Orquist v Montgomery Ward, 37 Mich App 36, 41; 194 NW2d 392 (1971). A trial judge’s decision in this regard will not be reversed absent an abuse of discretion. Kulhanjian v The Detroit Edison Co, 73 Mich App 347, 351; 251 NW2d 580 (1977).
We recognize that admitting evidence of settlements such as this can potentially lead to an unjust result. A variety of misleading inferences may be drawn from such evidence. Furthermore, the possibility of a compromise jury verdict is increased thereby. Such problems could be alleviated by foreclosing jury consideration of prior settlements.
However, we note that prior decisions of this Court support the trial judge’s ruling on this issue. In Cooper v Christensen, 29 Mich App 181; 185 NW2d 97 (1970), evidence of a settlement with one tortfeasor was admitted over objection in an action against the second tortfeasor. This Court concluded that it was proper for the trial judge to instruct the jury that they should reduce the amount of damages by the amount of the settlement. In approving this instruction, the Court sub silentio approved the admission of the evidence as well. See also Reno v Heineman, 56 Mich App 509, 512; 224 NW2d 687 (1974), where evidence of a settlement with one party was ruled admissible "to establish the defendants’ right to have any amounts found to be due mitigated by the amount of the prior settlement”. In these cases the evidence was admitted for jury consideration, so as to avoid granting plaintiff more than a full recovery.
In light of the prior case law, we conclude that the trial court did not abuse its discretion in admitting this evidence. Although plaintiff’s proposed approach is a permissible alternative, the trial court was not compelled to follow it.
Plaintiff next contends that the trial judge erred in ruling that defendant hospital did not admit liability by attaching copies of plaintiff’s complaints to its third-party complaint.
This contention is totally without merit. Although defendant hospital attached plaintiff’s entire complaint to its third-party complaint, the third-party complaint expressly states that "the allegations of plaintiff against the present defendant and third-party plaintiff, being specifically denied before and now, are not considered or in any manner incorporated herein”. Thus, it is clear that defendant hospital was in no way admitting liability by attaching plaintiff’s pleadings to its complaint. Rather, this was done for convenience, so as to explain the nature of various allegations originally made by plaintiff against Drs. Deming and Ries, which constituted the basis for defendant’s third-party action.
Plaintiff next contends that the trial judge erred in granting defendant nine peremptory challenges, while granting her only three. She further con tends that the trial court abused its discretion in refusing to permit plaintiff to call Drs. Deming and Ries as adverse parties under MCL 600.2161; MSA 27A.2161 and by refusing to declare them hostile witnesses.
We find no error in the trial judge’s ruling on the number of peremptory challenges granted each party. GCR 1963, 511.5 states in pertinent part:
"Each party in a civil case may peremptorily challenge 3 jurors. In civil cases 2 or more parties on the same side are considered a single party for purposes of peremptory challenge. However, where multiple parties having adverse interests are aligned on the same side, 3 peremptory challenges shall be allowed to each party represented by a different attorney and, in such cases, the opposite side may, in the discretion of the trial judge, be allowed a total number of peremptory challenges not exceeding the total number of peremptory challenges allowed to said multiple parties.”
In allocating the peremptory challenges in this case the trial judge approached the action as if it were two cases. In the first action, he granted both plaintiff and defendant hospital three peremptory challenges each. In the third-party action he determined that each of the third-party defendants was entitled to three peremptory challenges and accordingly, pursuant to the discretion granted in GCR 1963, 511.5, granted defendant hospital an additional six peremptory challenges. In light of plaintiffs prior settlement with the third-party defendants, we concur in the trial judge’s ruling that these parties were not adverse to plaintiff. Thus, plaintiff was entitled to only the three peremptory challenges granted to her.
We further conclude that the trial judge properly ruled that for purposes of cross-examination Drs. Deming and Ries were not adverse parties to plaintiff. Under the terms of the settlement these parties could not be held liable to the plaintiff for any further damages. A finding that they had committed malpractice could only have served to reduce the amount of defendant’s liability. Thus, these parties are properly regarded as adverse to defendant, not plaintiff. Although MCL 600.2161; MSA 27A.2161 provides for the cross-examination of employees or agents of an adverse party, plaintiff is unable to avail herself of this right, as she introduced no evidence to support the existence of an agency or employer-employee relationship between the two doctors and defendant hospital. See Thompson v Essex Wire Co, 27 Mich App 516, 528-530; 183 NW2d 818 (1970).
Nor do we conclude that the trial judge committed reversible error in failing to declare the two doctors as "hostile witnesses”. Such a decision is left to the sound discretion of the trial judge. Cohen v McGregor, 13 Mich App 519, 522; 164 NW2d 682 (1968). In the present case the witnesses exhibited no unwillingness, evasiveness or hostility in testimony. Although their testimony at trial was somewhat different in emphasis as compared to their deposition testimony, these statements cannot reasonably be regarded as inconsistent. Under these circumstances, the trial court did not abuse its discretion in refusing to declare them hostile witnesses, Thompson v Essex Wire Co, supra, 534.
Plaintiffs final contention is that the trial court erred in permitting Dr. Deming to state his opinion as to whether defendant hospital breached its standard of care in issuing an emergency call after plaintiffs breech presentation.
We find no error. Although the questions being challenged were phrased in terms of the hospital’s standard of care, the questions related to whether Dr. Deming considered the breech presentation an emergency. He had previously testified that plaintiff’s foot was blue, that such coloration was indicative of loss of blood circulation, and that such a situation constituted an emergency. Thus, his response that the hospital did not breach its standard of care merely confirmed his prior evaluation of the situation.
We disagree with plaintiffs contention that Dr. Deming needed to be further qualified as an expert in obstetrics in order to give an opinion on the emergency nature of this breech presentation. The determination of the qualifications of an expert is a question left to the discretion of the trial judge* Coles v Galloway, 7 Mich App 93, 102; 151 NW2d 229 (1967). The situation involved herein is not one totally limited to the field of obstetrics. Loss of cirbulation in a limb can occur in a multitude of contexts in various fields of medicine. Dr. Deming’s testimony exhibited familiarity with such situations and the proper measures to be taken in response thereto. In light of this background we conclude that the trial judge did not abuse his discretion in permitting Dr. Deming to answer defendant’s questions regarding the gravity of the breech presentation involved herein. See Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976).
Affirmed. Costs to defendant.
Plaintiff notes that defense counsel made several references to the settlement at trial, including one implying that defendant could have taken the easy way out by settling, but instead refused. Although we agree that this use of the evidence was improper, as unsupported by any evidence at trial, we further note that no objection was voiced in response thereto. Since any prejudice resulting from this comment could have been alleviated by a curative instruction, had plaintiff objected, this remark does not require reversal. Treece v The Greyhound Bus Co, 63 Mich App 63, 65; 234 NW2d 404 (1975).
Stitt v Mahaney, 403 Mich 711; 272 NW2d 526 (1978), cited by plaintiff for a contrary result, is not on point. There plaintiff was suing one of two independent successive tortfeasors for only those damages caused by the defendant’s conduct. The majority concluded that evidence of a settlement with the other tortfeasor was admissible, as a question of fact existed as to whether the settlement was intended to be a full release of both tortfeasors. Although Stitt involved a situation of two successive, divisible injuries, as opposed to the single injury involved herein, we do not interpret Stitt as mandating exclusion of the settlement evidence here. Even the dissent in Stitt recognized that evidence of a settlement with one tortfeasor is admissible, where the defendant-tortfeasor contended that the settlement partially or totally compensated plaintiff for injuries allegedly caused by defendant. Stitt, supra, 733-734 (Williams, J., dissenting).
We note that defendant hospital exercised only one of its peremptory challenges while the third-party defendants exercised a total of two more. Thus, if there was an error in granting the third-party defendants three peremptory challenges each, plaintiff was in no way prejudiced thereby.
Dr. Ries testified at this deposition that if a breech baby’s protruding foot had a deep blue color that was of no concern. At trial he testified that all breech babies have discoloration of the feet, but added that the possibility of fetal distress would depend upon the intensity of the color. Dr. Deming’s testimony consistently indicated that he was relying both upon the hospital’s emergency call and his own observations in concluding that he was faced with an emergency situation when delivering plaintiff.
The questions challenged were as follows:
"Q [by Mr. Kitch, Attorney for Defendant]. Considering the life-threatening situation that * * * strike that.
"Considering the life-threatening situation that you determined to exist when you entered the delivery room in the evening of October 7th, 1964, would it have been a violation of that standard of care for hospital personnel to have called Code 100?
"Q. Mr. Gray’s final question to you yesterday was, if you * * * strike that * * * his final question to you yesterday was, 'In your opinion, would it have been a deviation from the standard of care for hospital personnel to provide inaccurate information about a patient to a doctor?’
"My question to you, doctor, is did you consider that the hospital personnel had provided you with inaccurate information regarding a patient, particularly Carolyn Wilson, by summoning you to the delivery room by using a Code 100?”
We also note that Dr. Deming had studied obstetrics in medical school, had delivered a baby, and had assisted in other deliveries. | [
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D. C. Riley, P.J.
On October 6, 1977, plaintiff, the union representative of correctional officers employed at the Detroit House of Correction (hereinafter, DeHoCo), petitioned the Michigan Employment Relations Commission (hereinafter, the Commission) for a formal determination as to whether the officers were eligible for arbitration under the compulsory arbitration statute, MCL 423.231 et seq.; MSA 17.455(31) et seq.
In an order dated May 17, 1978, the Commission held that it possessed the requisite jurisdiction necessary to effect a settlement of the controversy, and in addition ruled that the prison guards were within the act’s coverage and therefore entitled to mandatory arbitration. The City of Detroit and DeHoCo appeal that determination by leave, raising three issues, only one of which merits distended consideration.
Defendants’ initial argument, that the Commission lacks the jurisdiction and authority to hear and decide the question of plaintiff’s eligibility for compulsory arbitration, has been recently rebuffed by this Court in In The Matter of Metropolitan Council 23, AFSCME, AFL-CIO, 89 Mich App 564; 280 NW2d 600 (1979), wherein it was held that the legislative intent to afford public employees within the scope of the act an expeditious and effective procedure for the resolution of disputes would be ill-served by imposing the protracted delays ger mane to initial court review and resolution of the act’s comprehensiveness. Defendants’ claim, therefore, is without merit.
Defendants also maintain that the Commission erred in determining that DeHoCo is a state rather than a city facility.
MCL 423.232; MSA 17.455(32) defines "public police and fire department”, to which the compulsory arbitration act applies, as follows:
"any department of a city, county, village or township having employees engaged as policemen, or in fire fighting or subject to the hazards thereof.”
Assuming, arguendo, the validity of defendants’ contention, Green v Dep’t of Corrections, 30 Mich App 648, 652; 186 NW2d 792 (1971), aff'd 386 Mich 459; 192 NW2d 491 (1971), we are no closer to a resolution of the ultimate dispute on appeal, which is, whether the Commission erroneously ruled that the correctional officers were within the purview of the act. As is readily apparent from the provision above, the focal point of conflict is not whether DeHoCo is a city or state institution, but rather the identity of the prison guards’ employer. Since the guards are employed and paid by the City of Detroit, they clearly come, in this respect, within the ambit of the statute.
Hence, we turn to the dispositive issue, whether the Commission’s holding that the officers in question were subject to the same or similar hazards as faced by Detroit policemen was in accordance with the law and supported by competent, material and substantial evidence. Const 1963, art 6, § 28, MCL 423.23(e); MSA 17.454(25)(e), Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, 393 Mich 116, 121-124; 223 NW2d 283 (1974).
Executive Deputy Chief James Bannon testified regarding the hazards generally encountered by Detroit police officers. They included walking beats, riding motorcycles, responding to radio reports of crimes, riding in patrol cars, and investigating narcotics cases, sex-related offenses, robberies and homicides. The police are charged with the general enforcement of all the criminal laws of the state, be they misdemeanor, felony, or motor vehicle connected. Police officers have an obligation to carry their identification cards, badges and guns even when off duty, and, accordingly, to respond to life threatening situations at any time. Police must assist firemen in their work. They also must respond to and intervene in family squabbles, which is one of the most dangerous of police activities since, on the national average, 50% of the police officers killed or injured are killed or injured in responding to domestic calls. Statistics were introduced evidencing the high rate of injur ries resulting throughout the entire spectrum of police activities. Bannon also indicated that, due to the stress of police work in urban communities, police officers have the highest occupational rates of suicide and divorce, and one of the highest rates of alcoholism in the country.
The functions of the correctional guards, and their attendant risks, were explained by various witnesses, including the director of DeHoCo. Their testimony may be summarized as follows: the officers are responsible for maintaining order throughout the detention facility, and also patrol its perimeters on foot and in vehicles. They are accountable for the custody of prisoners to and from police agencies, courts and hospitals. In the event of a prisoner escape, they pursue and initially attempt an apprehension, always with the aid of weapons. They search prisoners and visitors for contraband such as weapons or narcotics; however, their power extends only to detention of the wrongdoer—the local police are alerted to effectuate the arrest. Although the guards are on call 24 hours a day, they are not authorized to carry a weapon or make an off-duty arrest. Most do not carry guns as part of their daily routine, but a full range of weapons (including mace, teargas, and other riot equipment) are kept on the premises for issue when necessary. Officers have, on occasion, been assaulted through prisoner attack, though not anywhere nearly as frequently as Detroit policemen. However, the potential for these attacks coupled with instances of inter-inmate conflicts exposes them to risks from which they suffer physical injuries.
Upon a careful review of the evidence and testimony proffered, we are unable to reach the conclusion that the Commission’s finding was devoid of the necessary record support. We view the instant case as a decidedly close one, and accordingly afford due deference to administrative expertise and decline to "invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views”. Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, supra, at 124.
Affirmed. Costs to plaintiff.
Beasley, J., concurred.
MCL 423.231; MSA 17.455(31). | [
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Mackenzie, J.
The plaintiffs, Vincent Antkiewicz and his brother, Roger Antkiewicz, appeal from a summary judgment granted on November 9, 1977, by the Macomb County Circuit Court in favor of the defendants, City of Roseville, Detective Donald Salatka of the Roseville Police Department, and Sergeants Ralph Junga and Raymond Jensenius of the Roseville Fire Department.
The plaintiffs operated the Ambassador Restaurant in a building located in the City of Roseville which was owned by defendant Gino’s, Inc. After several months of operation of the restaurant, a fire occurred on February 9, 1975, resulting in extensive damage.
An investigation of possible arson was initiated by the police department and fire department of Roseville. The plaintiffs were advised to remain off the premises and not to remove any items during the investigation.
On April 15, 1976, 14 months after the arson investigation had commenced, the plaintiffs were charged with the burning of insured property with intent to defraud, MCL 750.75; MSA 28.270. On the sixth day of that criminal trial, a directed verdict was entered in favor of the plaintiffs.
The plaintiffs filed a four-count civil complaint in this case on June 23, 1977, the third count alleging liability of the City of Roseville and its agents, Salatka, Junga, and Jensenius, arising out of the conduct of the arson investigation and the decision to bring charges. The fourth count of the complaint alleged a civil conspiracy among all of the defendants to deprive the plaintiffs of rights and property, resulting in humiliation and anxiety, and a loss of reputation and good will.
The City of Roseville and the three named agents filed a motion for summary judgment or, alternatively, accelerated judgment on the grounds of governmental immunity. The motion was granted. The plaintiffs filed a motion to set aside the order granting summary judgment, which was denied on January 3, 1978.
I
Our first determination is whether or not the lower court erred in granting summary judgment. When reviewing the granting of a motion for summary judgment under GCR 1963, 117.2(1), we regard as true the factual allegations of the plaintiffs as well as any conclusions reasonably drawn therefrom. Armstrong v Ross Twp, 82 Mich App 77, 81-82; 266 NW2d 674 (1978). We then determine "whether the plaintiff[s’] claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery”. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 431; 202 NW2d 577, 580 (1972). Tort liability of a governmental agency is dealt with in MCL 691.1407; MSA 3.996(107), which provides:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”
None of the exceptions set forth in the act is applicable to this case. See MCL 691.1402, 691.1405, 691.1406; MSA 3.996(102), 3.996(105), 3.996(106).
Thus, the essential question is whether the in vestigation and subsequent prosecution for arson is a "governmental function” for purposes of the governmental immunity statute. The Michigan Supreme Court recently dealt with the construction of the term "governmental function” in Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978). In Parker, Justices Fitzgerald, Kavanagh, and Levin stated that they would limit the term to activities that are "of essence to governing”. They were unable to find that the operation of a hospital was a governmental function, for it is not "an activity of a peculiar nature such that the activity can only be done by the government”. Id., 194.
Justice Moody, in a separate opinion, declined to embrace such a limited construction of "governmental function”. Instead, he reached the following conclusion:
"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this parameter, although performed by a government agency, are not governmental functions and therefore not immune. (Emphasis supplied.) 404 Mich at 200.
Justice Moody’s construction, employing the qualifier "effectively”, encompasses the "can only be done by the government” construction set forth by Justices Fitzgerald, Levin, and Kavanagh, and we, therefore, regard it as the dispositive test. Thus, our inquiry when determining whether an activity is a governmental function is whether the activity is one that can be effectively accomplished only by the government.
Turning to the facts of the instant case, we have little difficulty in concluding that a police and fire department investigation of arson, having as an aim possible criminal prosecution, and the subsequent prosecution are governmental functions.
The determination of whether the underlying activity is a governmental function is only the first step in deciding the immunity question. We must next determine whether the specific acts complained of were in the exercise or discharge of that function. See Cronin v Hazel Park, 88 Mich App 488; 276 NW2d 922 (1979), Duncan v Detroit, 78 Mich App 632; 261 NW2d 26 (1977).
A recent Michigan Supreme Court decision, Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979), appears to set forth a majority Court position that intentional torts committed by public officers are not activities "in the exercise or discharge of a governmental function”. In Lockaby, the plaintiff brought an action for injuries allegedly inflicted by agents of the Wayne County Sheriff’s Department while the plaintiff was in the custody of that department. In separate opinions, a majority of the justices reached a consensus that the intentional nature of the injuries inflicted rendered permissible a cause of action against Wayne County.
In the instant case, the counts in the plaintiffs’ complaint allege the commission of the intentional tort of trespass. In Michigan, trespass has been defined to be any unauthorized intrusion or invasion of the private premises or lands of another. Giddings v Rogalewski, 192 Mich 319; 158 NW 951 (1916), Douglas v Bergland, 216 Mich 380; 185 NW 819 (1921). An initially authorized presence on one’s premises may become a trespass if, for some reason, the authorization becomes inválid. 87 CJS, Trespass, § 14. Normally, a public officer who is on the premises of another pursuant to legal authorization is not liable for trespass. Such officer becomes liable, however, where he acts in excess of his authority. See Clark v Wiles, 54 Mich 323; 20 NW 63 (1884); 87 CJS, Trespass, § 54. An examination of the plaintiffs’ complaint reveals the allegations that "the investigation was kept open an inordinate length of time” and that it was "unduly prolonged”. Based on these assertions, we conclude that an unauthorized or wrongful intrusion, constituting a trespass, was sufficiently alleged. Since under the Michigan Supreme Court decision in Lockaby, an intentional tort is not an activity within the exercise or discharge of a governmental function, we conclude that summary judgment in favor of defendant City of Roseville was improperly granted.
II
Our next determination is whether or not the lower court erred in granting summary judgment in favor of defendants Donald Salatka, Ralph Junga, and Raymond Jensenius. Since these defendants were agents of the City of Roseville, the trial court considered them to be shielded by governmental immunity along with the city.
The liability of a public officer for tortious acts committed in the scope of his employment is determined by deciding whether the acts of the officer are "discretionary” or "ministerial”. Discretionary acts are normally protected under governmental immunity; ministerial acts are not. Prosser, Torts (4th ed), § 132, pp 989-990.
The difference between discretionary and ministerial acts is one of degree. Discretionary acts are those of a legislative, executive, or judicial character. Sherbutte v Marine City, 374 Mich 48, 54; 130 NW2d 920 (1964), Armstrong v Ross Twp, supra at 81. Such acts have been held to include disapproval of liquor bonds of private citizens, Amperse v Winslow, 75 Mich 234; 42 NW 823 (1889), and control over the operation of a particular law enforcement system, Walkowski v Macomb County Sheriff 64 Mich App 460; 236 NW2d 516 (1975).
Ministerial acts are those where the public officer has little decision-making power during the course of performance; the officer’s acts are primarily in response to orders. See Prosser, supra at 990. Prior Michigan decisions have deemed ministerial acts to include the issuance by a county drain commissioner of partial payments for a drain construction, People, for use of Lapeer County Bank v O’Connell, 214 Mich 410; 183 NW 195 (1921); seizure of property for delinquent taxes, Raynsford v Phelps, 43 Mich 342; 5 NW 403 (1880); an arrest by a police officer, Sherbutte v Marine City, supra; and the denial of a building permit by a building inspector, Armstrong v Ross Twp, supra. The actions of members of the police and fire departments in conducting an arson investigation resemble the aforementioned acts previously determined by Michigan courts to be ministerial. These actions, therefore, are not covered by the protective cloak of governmental immunity. Because the plaintiffs’ claim is not clearly unenforceable as a matter of law, we conclude that the trial judge erred in granting summary judgment in favor of defendants Salatka, Junga, and Jensenius.
Reversed and remanded as to defendants City of Roseville, Donald Salatka, Ralph Junga, and Raymond Jensenius. No costs, plaintiffs having prevailed only on the trespass claim.
In a separate opinion, Justices Levin, Kavanagh, and Fitzgerald stated that according to the Court’s decision in McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976), intentional torts are not in the exercise or discharge of a governmental function and, thus, a cause of action was stated against the county. Justices Coleman and Ryan stated that the plaintiffs complaint made out a case potentially not within the exercise or discharge of a governmental function, as it alleged intentional acts on the part of the agents of the defendants. Justice Williams, in his opinion, stated that the relevant inquiry was whether the agents’ acts were ultra vires, and not merely whether the acts were intentional. Finally, Justice Moody stated that the plaintiff properly pled a cause of action for intentional injuries against the defendant Wayne County.
The plaintiffs’ complaint insufficiently alleges the tort of malicious prosecution. The element of termination of the proceeding in favor of the accused was omitted. See Rowbotham v Detroit Automobile Inter-Insurance Exchange, 69 Mich App 142, 147; 244 NW2d 389 (1976).
The Supreme Court has not reached a consensus on the proper method to employ for determining whether public employees are protected by governmental immunity. See Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979). In absence of recent guidance, we choose to employ the widely-utilized "discretionary” acts/”ministerial” acts distinction. See Armstrong v Ross Twp, 82 Mich App 77; 266 NW2d 674 (1978). | [
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] |
Per Curiam.
Defendant appeals as of right an order revoking his probation and sentencing him to a prison term of from two to five years.
Defendant argues that reversal is required because he was not advised of his due process right to a contested hearing before he pled guilty. While the rights of a defendant at a revocation hearing are limited, they do include the right to a contested hearing. Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973). This Court has held that before a defendant may knowingly and voluntarily waive this right by pleading guilty, he must be informed of the right. People v Radney, 81 Mich App 303; 265 NW2d 128 (1978), People v Hardin, 70 Mich App 204; 245 NW2d 566 (1976). This does not mean that the defendant must be directly informed by the court of his right to a contested hearing; it is sufficient that the defendant is in some manner made aware of the right. See People v Rial, 399 Mich 431, 440-441; 249 NW2d 114 (1976) (Levin, J., concurring), People v Hooks, 89 Mich App 124; 279 NW2d 598 (1979), People v Darrell, 72 Mich App 710; 250 NW2d 751 (1976). The record must disclose, however, that defendant was indeed aware of the right. The fact that the notice of probation violation or the bench warrant charging the defendant refers to the fact that a hearing will be held, or that the defendant may present witnesses, or have an attorney present is not sufficient unless the record also discloses that the defendant has received and read the notice and was aware of the right to a contested hearing and understood what the right entailed. People v Hooks, supra, 133 (Bronson, J., dissenting)
In the present case, th record includes a written "Notice of Probation Violation”. The notice is addressed to the court from the probation officer, and informs the court that the defendant is believed to have violated his probation. Near the bottom of the form, the following language appears:
"Wherefore this court is requested to issue a warrant for probationer’s apprehension and detention pending a hearing and to set a date for a hearing on said alleged violation.
"Defendant to be notified by a service of a copy of the petition and of this order, to present witnesses if he desires.”
The back of the form contains a section to be filled in by the person who served the notice on the defendant, and a section where defendant can acknowledge service. Neither of these sections is completed. The back of the form also contains the following language, apparently addressed to the defendant:
"The Probation Officer has informed me I am entitled to an attorney at the violation hearing. He also informed me that if I cannot afford my own attorney the Court will appoint one for me, and that I am not required to make a statement without counsel being present.”
This passage is followed by a blank, apparently to be filled with defendant’s signature. The blank is not signed. The transcript of the revocation hearing makes no reference to the notice, nor does it in any other fashion reflect that defendant knew of his right to a contested hearing. Instead, it reveals that immediately after the charge was stated by an officer of the probation department, the court requested a plea and the defendant’s attorney offered a plea of "guilty with extenuating circumstances”.
The record in this case is totally silent as to whether defendant was aware of his right to a contested hearing. There is no indication that he ever received the notice, much less that he had read and understood it. The transcript does not reflect that he had knowledge of this right from any other source. Since we cannot say that defendant made a knowing and voluntary waiver of the right, we reverse the order revoking probation and remand for a revocation hearing. The fact that defendant admitted violating his probation does not relieve the court of the duty to ensure that the waiver is knowing and voluntary. People v Hardin, supra, People v Michael Brown, 72 Mich App 7; 248 NW2d 695 (1976).
The problem of ascertaining whether defendants have knowingly and voluntarily waived the minimal rights that due process affords them in probation revocation hearings has confronted this Court on several occasions. We have avoided requiring the sort of "check list” format that is involved when guilty pleas are taken in normal criminal proceedings, and we do not deviate from that position today. See People v Rial, 399 Mich 431; 249 NW2d 114 (1976), People v Hooks, supra, 130, People v Darrell, supra, 715 (Bronson, J., dissenting), People v Michael Brown, supra, 14-15, People v Hardin, supra, 208. Prosecutors, probation officers, and courts would be well-advised, however, to insure that the record in some manner adequately reflects that the defendant knew of his or her due process rights, and made a knowing and voluntary waiver before pleading guilty.
Defendant’s other assignment of error is not properly before the Court at this time. At defendant’s revocation hearing, he may present his confrontation claim if necessary.
Reversed and remanded for proceedings not inconsistent with this opinion.
This Court has at times found that statements in the notice of probation violation or in the bench warrant referring to a "pending violation hearing” may provide sufficient notice to the defendant of his or her right to a contested hearing, even without support in the record that the papers were received, read, or understood by the defendant. People v Hooks, supra, People v Darrell, supra. Other cases have rejected this rationale. People v Gaudett, 77 Mich App 496, 500-501; 258 NW2d 535 (1977). In appropriate circumstances, we may infer that the defendant read and understood the rights outlined in these writings sufficiently to knowingly and voluntarily waive them. Where the record does not even disclose that the writings were received, however, we cannot infer that the writings supplied the notice that Hardin, supra, requires. | [
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Steere, J.
Plaintiffs commenced an action on October 18, 1916, in the circuit court of Wayne county against the Baldwin Park Company and the Hannan Realty Company to recover damages resulting from insufficient sewerage for certain property they had purchased in the Baldwin Park subdivision from defendants. Both defendants appeared and pleaded the general issue. The plaintiffs later moved the court for permission to make the village of Highland Park a party defendant and to amend their declaration accordingly. On October. 20, 1917, the permission asked for was granted, and on October 24, they filed their first amended declaration. Two days thereafter the original defendants pleaded to the amended declaration and on November 9, 1917, the village of High land Park pleaded the general issue with notice. Subsequently plaintiffs procured an order from the court granting them leave to discontinue as to the village of Highland Park. Later plaintiffs again obtained an order permitting them to amend their declaration to allege a cause of action against all three defendants, including the village of Highland Park.
Plaintiffs’ second amended declaration, which is the one under consideration here, alleges that on November 15, 1914, they purchased from the defendant Baldwin Park Company through the defendant Hannan Realty Company, its selling agent, certain property in the Baldwin Park subdivision; that at the time of entering into a contract for the purchase of said property both the Hannan Realty Company and Baldwin Park Company falsely and fraudulently represented to plaintiffs by signs on the premises, advertisements and direct statements that the property was well sewered with adequate outlets, which plaintiffs believed; that relying upon such representations they bought the land and subsequently built a store and flat thereon, but on December 30, 1915, and on other occasions the basement of said store and flat was flooded with water, sewage and waste because of inadequate outlet and sewer facilities for the property, seriously damaging the contents of their basement; that by reason of such lack of sewer facilities and outlet plaintiffs were put to great expense in constructing and maintaining a cess-pool for the disposal of sewage from their said store and flat, and for the damages sustained in that connection a judgment of $3,000 is asked.
This second amended declaration contains two counts, the first in assumpsit and the second in trespass on the case, directed against the Baldwin Park Company and Hannan Realty Company, its selling agent, respectively charging them with liability for breach of contract and because they fraudulently in duced plaintiffs to purchase the property by false representations as to sewerage facilities for the same.
A third count asserts a cause of action against the village of Highland Park by reason of violating an alleged permit formerly granted to Stephen Baldwin, then owner of the farm now embraced in Baldwin Park subdivision, to make sewer connection with the Woodward avenue sewer which runs through the village constituting a part of its sewage system, and charges that
— “well knowing its duty in this regard, the defendant village of Highland Park did negligently and carelessly fail and neglect to perform the same, and did disturb, break, block, stop and interfere with the said sewers in the Baldwin Park subdivision, and with the connection or connections, outlet or outlets, with and into said Woodward avenue sewer.”
From the transcript of record in this case returned by the circuit judge it appears that the village of Highland Park pleaded to plaintiffs’ first amended declaration and gave notice of special defense as follows :
“That no permit has ever been given by the village of Highland Park to drain into or through the sewers of the village of Highland Park any sewage from the property now known as Baldwin Park subdivision except the sewage from the farm residence which formerly was located near the southwest corner of the Stephen Baldwin farm.
“That whatever permit was given to Stephen Baldwin to connect any property located outside of the limits of the village of Highland Park was illegal and void, it being beyond the scope of the powers of the village of Highland Park.”
To this second amended declaration counsel for the village made a motion in the nature of a demurrer to dismiss the same, and also plaintiffs’ action, as to the village, for the following reasons:
“(1) Because the liability set forth in the several counts in plaintiffs’ declaration is not asserted against all of the defendants.
“(2) Because the declaration sets forth several distinct causes of action against different defendants.
“(3) Because the cause of action alleged in the third count is improperly joined-with the cause of action alleged in each the first and second counts, in that liability is not claimed against the same defendants.”
On March 13, 1918, said motion was heard and after argument an order was entered denying the same. The defendant village of Highland Park then removed the proceeding to this court by certiorari asking reversal of said order.
It was plaintiffs’ claim and the conclusion of the trial court that the questioned pleading was within the purview of section 1, chapter 8, of the judicature act (3 Comp. Laws 1915, § 12309), which is as follows:
“The plaintiff may join in one action at law or in equity, as many causes, of action as he may have against the defendant, but legal and equitable causes of action shall not be joined; but when there is more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant, the liability must be one asserted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice, or when several suits shall be commenced against joint and several debtors, in-the same court, the plaintiff may, in any stage of the proceedings, consolidate them into one action. If it appear that any such causes of action cannot be conveniently disposed of together, the court may order separate trials, or whenever several suits shall be pending in the same court, by the same plaintiff against the same defendant, for causes of action which may be joined, the court in which the same shall be prosecuted may, in its discretion, order the several suits to be consolidated into one action.”
Had not plaintiffs taken the precaution to label the counts in their declaration it would be difficult to de fine them, but the first is declared to be “of the plea of assumpsit” and the second “of a plea of trespass.” No charge whatever is made against the village of Highland Park in either and the emphasized grievance in each is that the Baldwin Park Company and its selling agent, the Hannan Realty Company, falsely represented to plaintiffs when they bought the property that ample sewer facilities were provided, when in fact those provided proved “inadequate and insufficient and were not provided with sufficient or adequate outlet or outlets.”
Turning to the third count “of a plea of trespass,” devoted exclusively to the village of Highland Park, plaintiffs state that their property was connected with the sewer system of the Baldwin Park subdivision which was connected with the Woodward avenue sewer running through the village of Highland Park, which connection was “made and maintained” under a permit from the village issued for a consideration to Stephen Baldwin, “through whom plaintiffs derived the right to maintain said connection;” that “the sewage, water, waste, etc., from the said store and flat flowed through the said Baldwin Park sewers into the Woodward avenue sewer, which conveyed it through the village of Highland Park and finally emptied it into the Detroit river;” and the flooding of plaintiffs’ basement is charged to the negligence of the village in failing to perform its duty and to refrain from interfering with the Baldwin Park sewer connections as before quoted.
Accepting plaintiffs’ designation of these counts and passing the question of their inconsistency, it seems evident that the liability charged in the first and second, based on the false and fraudulent statements of the vendor and its agent that the property was adequately sewered, is not asserted against the village of Highland Park; nor the liability charged against Highland Park for neglect of its duty as to the sewer, and for breaking, blocking up and. interfering with it, is not asserted against the Baldwin Park Company or Hannan Realty Company.
Chapter 8 of the judicature act, devoted mainly to section 1 above quoted, is entitled “Joinder and severance of causes of action and the consolidation of actions.” Actions and causes of action, though often used synonymously, do not strictly and technically have the same meaning. To what extent the legislature had in mind the distinction when including the two terms in this title and, if at all, just what definitions were intended may be conceded as somewhat conjectural in view of the difficulties found attending attempts to give general definitions applicable under all conditions (vide “Actions,” Vol. 1 of Corpus Juris). But that portion of the section and chapter applicable here deals with causes of action, which are generally recognized and often defined as the fact or combination of facts giving rise to or entitling a party to sustain an action.
The provisions of section 1 relating to joining actions between one plaintiff and one defendant, and several suits commenced against joint and several debtors have no application to this declaration. We have here three separate defendants and two plaintiffs. “Where there is more than one plaintiff the cause of action must be joint,” which may be passed as meaning the plaintiffs must be legally and jointly interested as actors or plaintiffs in the causes of action joined, and as to these three defendants, the alleged liability “must be asserted against all,” for all are “material” if properly made defendants, “or sufficient grounds must appear for uniting the causes of action to promote the convenient administration of justice.”
No mention of convenience is made in the declaration nor does it appear that convenient administra tion or the ends of justice will be promoted by mingling the issues of these two distinct causes of action for separate torts, charged to have been committed by different tort-feasors, without co-operation in the respective trespasses alleged, dependent on different lines of proof and demanding separate consideration, with separate verdicts and judgments as to each. Inconvenience, confusion of issues and prejudice from testimony admissible as to one and inadmissible as to the other when trying together distinct common-law causes of action for damages against different defendants, are as inferable from such innovation as that it would facilitate or convenience the administration of justice. The distinction between actions at law and suits in chancery have not been abolished in this State, and these tort actions are triable by jury. Were the issues triable before the court without a jury, as in chancery, the convenience and propriety of their consolidation might be more apparent.
While its provisions as to joinder of actions and parties are broad in terms and go far beyond the former settled practice, it is inferable from the general tenor of the judicature act considered in its entirety and, we think, from the very language under consideration relative to parties defendant, that it was not the legislative intent to ignore the fundamental principles of procedure to the extent proposed in this declaration where, as plaintiffs sound their counts, it is sought to join in a single action and have determined the liability of alleged independent tort-feasors for different and distinct torts charged to each, without concert of action or community of responsibility, inevitably amounting to both a joinder df parties severally liable and a joinder of different causes of action, each against a different defendant.
Under the English judicature act, order 16, rule 4, broadly provides :
“All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative.”
In Sadler v. Great Western Ry. Co., L. R. 2 Q. B. Div. (1895) 688, where two railway companies operating separate and independent roads were charged with having, in the use of their premises adjoining plaintiff’s shop, “by their respective combined acts” interfered with access to plaintiff’s place of business, and the court held the defendants were improperly joined in an action at law for damages, Smith, L. J. saying in part:
—“these two torts, if they are torts, are independent torts by the different companies, although, as I have already stated, the acts of each company can be taken into account in considering the acts of one company and deciding whether they amount to a nuisance or not. The acts of the other company must be taken into account, because it may be that the one company ought not to' be doing what it was when the other company was doing what it did. But that does not make these two causes of action a joint cause of action, or give any right to join one company with the other in one action.” Affirmed 21 App. Cas. 450 (1896).
Although before the passage of our judicature act, this court referring generally to cases permitting joinder of defendants said in Strawbridge v. Stern, 112 Mich. 16, that they are “limited by the rule that such a joint action cannot be maintained against different defendants where separate and distinct tres, passes are relied upon, in which the parties are not jointly concerned.”
To the same effect it is said in 30 Cyc. p. 129, with citation of numerous authorities:
“However wide this liberty of joinder, it does not annul the general principle that when a plaintiff asserts claims against two or more persons in respect of their several liabilities for separate wrongs, he cannot sue these persons as codefendants. The distinction is marked in the difference between an action for an injunction and an action for pecuniary damages when both actions turn upon an injury arising out of the acts of different defendants between whom there has been no common design or concert of action, but whose independent acts have in fact united, as their common result, in an invasion of plaintiff’s rights. When plaintiff seeks an injunction against the continuance of this common result, he may join all the defendants in one action. But when he sues to recover his damages because of his injury from these separate, independent wrongdoers, he cannot join them as defendants in one action.”
The defendant village timely questioned plaintiffs’ declaration in manner pointed out by the judicature act, section 4, chap. 14 (3 Comp. Laws 1915, § 12456), and the inquiry is confined to the charged infirmities appearing on the face of the declaration as a pleading. So considered it discloses a clear misjoinder of parties in an attempt to maintain a joint action against different defendants for distinct and separate torts, not asserted against all.
The demurrer of the village of Highland Park, by motion to dismiss, is well taken and should have been granted as to it.
The order denying the same is accordingly reversed.
Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Moore, J.
This bill of complaint is filed to foreclose a mechanic’s lien in the sum of $790.43 for lumber and materials furnished Walter J. Miller by the plaintiff. The defendants and appellees, Henry C. Fuller, Nellie Belle Fuller, his wife, and George W. Ross, filed separate cross-bills seeking to have two certain warranty deeds, one from the Fullers to Walter J. Miller, dated June 2,1915, and one from Walter J. Miller and wife to Wesley J. Peoples, dated September 15, 1915, set aside and cancelled, and for a reconveyance of the property in question to the appellee, George W. Ross, and for the cancellation and discharge of a certain mortgage upon the same property held by the cross-plaintiff and appellant, Olney A. Slater. The cross-plaintiff and appellant, Olney A. Slater, filed his cross-bill for the foreclosure of the mortgage. The defendants and appellees, Albert P. Collard, Gregg Hardware Company, and Omer A. De-Smet, filed their cross-bills to foreclose certain mechanics’ liens upon the same property, claimed by them in the sums of $125, $12.30 and $190 respectively. The default of defendant Wesley J. Peoples was entered for want of an answer after appearance, and that of defendant Walter J. Miller for want of an appearance after personal service of process. After a hearing taken in open court a decree was entered allowing the liens of the lien claimants in the sums mentioned above with interest and ordering a reconveyance from the defendants Walter J. Miller and Wesley J. Peoples, as prayed for in the cross-bills, and declaring the mortgage held by appellant Olney A. Slater to be invalid and a cloud upon the title of the appellees Fuller and Ross, and ordering a discharge of the mortgage. From this decree the defendant Olney A. Slater has appealed, and the only question in dispute before this court is the validity of his mortgage.
After the hearing the trial judge expressed himself as follows:
“I am satisfied that the mortgage given by Peoples to Slater is not valid. The deed from Miller to Peoples was simply an attempt by Miller to secure the Supply Company for all his indebtedness to it with property which he only owned for a specific purpose, obviously known to Peoples, that of building a house upon it for the defendants Fuller. No doubt some material for this building was furnished by the Supply Company, but it also appears that they were furnish^ ing him, and he was owing for, other material for other buildings, all included in the amount claimed on this mortgage. No attempt to separate them or to enlighten this court as to any specific amount due to the company, of which Slater is owner, has, or under the_testimony could be made. This uncertainty coupled with the palpable intent to get this security for other than the purpose of securing themselves for the material they may have put therein, is such a fraud, constructive at least, as against the defendant Fuller, as to render the mortgage void. The mortgage should, therefore, be cancelled, and defendants Miller and Peoples ordered to convey the property to defendant Ross who by this decree is to pay all lienors and enter into contract with the Fullers per his agreement.”
Elaborate briefs are filed in which many legal prin ciples are discussed and many authorities cited. In our view of the case the facts relating to the giving of the deed by Mr. Miller to Mr. Peoples and the giving of the mortgage by Mr. Peoples to Mr. Slater are convincing that both of these papers were given with full knowledge of the facts and show the mortgage was not a good faith mortgage, and for value.
Mr. Peoples’ testimony discloses that he was the manager of the Contractors Supply Company, which company was owned by the Slater Construction Company, of which company Olney Slater was the manager. Mr. Olney Slater’s testimony shows that he and his two brothers were the owners of the Contractors Supply Company, and they were also owners of the Slater Construction Company. While the deed from Mr. Miller was made to Mr. Peoples it does not appear that he paid anything for it and that he knew Mr. Miller had absconded and was in financial straits. While the mortgage recites that it was given for $2,500, the only money invested in it by Mr. Slater was by the giving of a check for $1,500 to Mr. Peoples, who had the amount thereof placed to his credit, and he at once paid the Contractors Supply Company $1,250, and a few days later returned $250 to Mr. Slater. Mr. Peoples’ testimony as to the application of the $1,250 is not consistent with itself. He was called as an adverse witness and his testimony was hazy and very unsatisfactory, though it does establish the fact that he told Mr. Slater all he knew about the transaction before the mortgage was given. The testimony discloses that Mr. Miller had bought material for several jobs which he had under way , and for which he was indebted.
In Mr. Slater’s testimony the following appears:
“Q. Mr. Peoples was not doing anything else but managing your Contractors Supply Company?
“A. He seemed to be doing some work for Miller.
“Q. When did you find that out, before or after?
“A. Before or after what?
“Q. Before discontinuing the Contractors Supply Company, business or after?
“A. Before.
“Q. You found out that he was doing work for Miller?
“A. Yes.
“Q. How did you come to find it out?
“A. I don’t know. I did not know the extent of his business with Miller at that time. Didn’t look to see how much credit they had. I presume I knew at the time how much credit was extended by the Contractors Supply Company to Miller. I don’t know how much. I looked to see how much credit it had extended'about 150 customers. I don’t remember Miller from the others I cannot tell whether I looked to see how much money the Contractors Supply Company, had loaned Miller. I know now it had loaned and extended credit to Miller, about $1,200 on all jobs; that is my understanding.”
The examination of Mr. Peoples and Mr. Slater is long. It would not be profitable to recite more of it. They were invited to bring in their books showing their transactions with Mr. Miller; they did not do so. Their testimony is convincing to us that the trial judge 'was right in his conclusions.
The decree is affirmed, with costs against appellant Slater.
Bird, C. J., and Ostrander, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Bird, C. J.
These parties are husband and wife. After living together for 20 years they separated in August, 1915. Soon thereafter plaintiff filed her bill in the Grand Traverse circuit court, charging defendant with extreme cruelty and adultery. Defendant answered, denying both charges. Before the case came to a hearing the charge of adultery was eliminated. At the hearing the parties and several of their respective friends and relatives testified. The chancellor appears to have been persuaded, upon the whole record, that plaintiff’s charge of extreme cruelty had been established, and, accordingly, a decree was made divorcing the parties. An order for alimony was made in accordance with the agreement of the parties. Defendant being displeased with this result has appealed to this court.
We are impressed by the testimony that several causes have contributed to the failure of this marriage compact. The more prominent ones are:
(a) We infer from the record that in 1895, .when defendant married plaintiff, his means were quite limited while she was taken from a well-to-do family, where she had been supplied with about everything she desired. When the burden shifted to defendant to give her a home in keeping with the one from which she had been taken, he could not carry it as it had been theretofore carried. The father-in-law was willing to, and did, contribute to such an extent that it made plaintiff very independent and left defendant less assertive than he would otherwise have been.
. (5) They became overly friendly with near and congenial neighbors. This eventually led to trouble, as it nearly always does. They were much in each other’s company. They dined together frequently and on some of these occasions indulged in too much wine. They motored, danced, sang, played cards, and occupied a cottage .at a nearby lake together. After a time defendant discovered a growing fondness for his wife on the part of his neighbor. He then came to himself and withdrew from the combination, and now charges all of his troubles to these neighbors.
(c) The frequent indulgence by both of the parties in intoxicating liquors added materially to their increasing troubles.
(d) Defendant’s growing suspicion of his neighbor intensified his jealousy and thereby gave rise to personal assaults on his wife. These attacks, made her afraid of him and widened still further the breach between them.
Causes a, b and c, one party seems to be as much responsible for as the other, and neither is entitled to much consideration for troubles growing out of them. The acts of personal violence are denied, or plausibly explained by defendant, but we think the testimony fairly establishes the fact that on several occasions he assaulted her in a vicious manner. If there is any such thing as mitigating circumstances in using personal violence on a wife, save in self defense, it is quite likely that defense is open to him.
Defendant’s counsel urges that the record presents a case in which both parties are to blame for the situation in which they find themselves, and, therefore, no relief should be given to either. We feel there is much force to this argument, and were it not for the acts of personal violence shown we would probably agree with him. As to these acts there is little that can be said in defense of them. We are inclined to the opinion that the conclusion' reached by the chancellor is the proper one, that the charge of extreme cruelty was established.'
The decree of the trial court will be affirmed, with costs of this court to the plaintiff.
Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Moore, J.
The plaintiff was a man approximately 75 years of age. He used a horse and wagon in his business. On July 10, 1916, he was driving west on Ohio street in Bay City and was crossing Henry street when he was struck by an automobile. He claims the automobile was owned by the defendant company and was operated by a man by the name of Brown. From a verdict in favor of the plaintiff for $2,715, the case is brought here by writ of error. It is claimed defendant should have a directed verdict because of the contributory negligence of the plaintiff. This contention is based upon the claim that plaintiff might have avoided the accident. The question was left to the jury by the trial judge. The plaintiff testified that when he entered upon Henry street to cross it that the automobile was more than a block and a half, upwards of 450 feet, away. We do not think it can be said that to attempt to cross a pavement 35 feet wide under the circumstances shown here was as a matter of law contributory negligence.
It is claimed the verdict was excessive. This is based upon the fact that plaintiff was upwards of 72 years of age when hurt, with an earning capacity of $65 to $75 a month. The record shows that the horse was hurt so badly that a policeman killed it to put it out of its misery. That the harness and wagon were injured, that plaintiff incurred a doctor’s bill of upwards of $50; that he suffered severe injuries, some of which the doctor testified would be permanent. Nearly two years had elapsed between the time of the injury and the time of the trial. During all .that time the plaintiff claimed to have suffered severe physical pain. We do not think the verdict was so large that we should interfere.
The other assignments of error may be considered together. The assistant manager of the defendant company was called as a witness by the plaintiff. He testified in substance that he gave directions to have a car sent out on the Pikers’ tourist trip.
“I told the office manager to place a car and driver, the best driver he could find at the disposal of this good roads commission. I assume that my order was carried out.”
He testified he heard a report was made to his company that an accident occurred in Bay City, but that he did not see the report.
“I might add that does not come under my jurisdiction, that is the reason I would not see it. . * * * I know William E. Metzger. * * * When I made this order for a car of our company, I knew that Mr. Metzger was supposed to be in charge of the trip.”
A policeman in Bay City saw a crowd collecting at the corner of Ohio and Henry streets when he was two blocks away. He at once went there.
“When 1 got there Mr. Wald was in the doctor’s office, the doctor lived on the corner, on the southwest corner. That man that ran into him gave me his name as George Brown. The horse was laying on the corner of Ohio and Henry streets, near the curb. The wagon was unhitched and backed away about 6 feet from the horse. The horse was right at the curb, his head was at the east curb as it circles around, the northeast corner. I could not say where the horse was hit. I know he had a broken leg, I couldn’t say which it was, I don’t remember. It was on the night of July 10, 1916. After viewing the horse and rig, I then went into Dr. McGoech’s office with Mr. Metzger.
“Q. Now you started a while ago to mention a man by the name of Brown; when did you first meet Brown ?
“A. I saw him where the accident happened.
“Q. Whereabouts was Brown from where the horse and rig was?
“A. He was in his machine headed the opposite way. * * * He told me he was the man—
“Mr. Ward: I object to what he told him. * * *
“The Court: How soon was it after the accident. Can you tell us how soon — how long it took to get down there? /
“A. About ten minutes, I should judge.
“The Court: You may take the answer for the present.
“Mr. Ward: I. want to object to it as incompetent and improper hearsay. * * *
“Q. The court says you may tell how you happened to talk to Brown.
“A. When I came back there where the accident happened this man was standing there in the machine. He told me that his machine ran into the rig. I asked Mr. Brown who he was and where he was from.
“Q. Did he tell you?
“A. He told me he was in the employ of the Packard Motor Car Company of Detroit. He told me he had just sent for the boss and he would be over in a short time. He sent another car for the boss, he was stopping at the Winona hotel, just a mile from where the accident happened. * * *
“A. He told me his name was Metzger. I did have a talk with Mr. Metzger. I did kill the' horse.”
The doctor to whose office the plaintiff was first taken died before the trial. Mr. Wald was put into the Packard car and driven by Mr. Brown to the office of Mr. Wald’s family physician. The doctor got into the car and was taken by Mr. Brown to Mr. Wald’s home. The number of the car was 5062-M. and that was the number of the license issued to the Packard Company.
It is the claim that what Mr. Brown said is incompetent, and that plaintiff failed to make a case and the verdict should have been directed in favor of defendant. Like questions were considered in Hatter v. Dodge Bros., 202 Mich. 97. Much of the language used in that opinion is applicable here. It will not be necessary to repeat it.
Judgment is affirmed, with costs to the plaintiff.
Bird, Steere, and Fellows, JJ., concurred with Moore, J. | [
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Bird, C. J.
Plaintiff filed his bill in the Mecosta circuit court, in chancery, praying for a mandatory injunction to compel defendant to lower the height of its dam across the Muskegon river at Big Rapids. The trial court granted plaintiff relief and defendant appeals.
Defendant is a corporation by virtue of Act No. 232 of the Laws of 1863, and amendments thereto (2 Comp, Laws 1897, §§ 6767-6822 [2 Comp. Laws 1915, §§ 8867-8919]). It was incorporated in 1881 and its corporate powers were renewed in 1911. Its members, or stockholders, are seven in number: One municipal corporation, one copartnership and five industrial corporations, all of which utilize the water power.
Plaintiff owns lots 1 and 2 of Chew’s addition to the city of Big Rapids; also lots 5 to 13 inclusive in River block, Brown’s addition to the city of Big Rapids. These lots lie immediately west of the river and are situate about 80 rods above the dam. The banks of the river at this point are somewhat bluffy. Soon after the plaintiff purchased these premises in 1901 he discovered three springs at the rear of one of the lots in a small indentation or bay, located two or three feet above high water mark. In 1912 he installed an hydraulic ram, which elevated the spring water into his. house, barn and lawn tank, thereby furnishing him an excellent water system. A flood in 1913 carried away the old dam which had been in existence since 1866, and a new one was erected in 1914. The new one was erected so that the water could be carried much higher than with the old one. Soon after the new dam was erected the water commenced to gradually rise and continued until plaintiff’s springs were submerged and the hydraulic ram choked, in consequence of which his water system was destroyed. His position is that the water has been raised by the new dam and is carried from two to three feet higher than it was with the old dam. The defendant denies this and asserts that:
(1) The water is carried no higher with the new dam than with the old.
(2) That if it be higher it has the right by grant to so carry it.
(3) That it has a prescriptive right to carry it to the present level.
Considerable testimony was offered by the parties bearing upon the height of the water under the old and new dams, and at the conclusion of the hearing the chancellor found the water was carried higher with the new dam than with the old, and that defendant had no right to do this, either by grant or by prescription, and an alternative decree was made providing that defendant should install an electric pump for plaintiff and furnish him and his heirs and assigns electricity to operate it, or lower the height of the dam 15 inches. From this decree defendant appeals and discusses the same questions which were raised and discussed in the trial court.
1. We agree with the chancellor that defendant has not established the right of flowage by grant. Formerly the flowage rights appurtenant to plaintiff’s lands, as well as to the factory sites now owned by the constituent members of defendant, rested in the Tioga Manufacturing Company. When the Tioga Manufacturing Company conveyed the fee of these lands it reserved the flowage rights. The Tioga Manufacturing Company was a corporation and was at that time engaged in the manufacturing business on the river. Its assets subsequently passed into the hands of J. Platt Underwood, as trustee. They included these flowage rights, and so far as the record shows, they still reside there. This being so, it follows that neither defendant nor plaintiff is possessed >of the flowage rights appurtenant to plaintiff’s lands. It is, therefore, clear that defendant cannot exercise this right on the theory of a grant.
In holding that defendant is not protected by grant we have not overlooked the argument of defendant’s counsel, in which it is urged that the practical construction given to prior grants by plaintiff’s and defendant’s predecessors in title would fix the height at which the water might be carried. This argument might have some persuasive force were it not for the fact that it rests upon a question of fact, namely, whether the water was really carried as high at that time as at the present time. This question of fact is the same question of fact that is involved in the other claim of defendant, namely, that it has a prescriptive right to flow the lands up to the present height.
2. We are not impressed that defendant has established its right off increased flowage of plaintiff’s land by prescription. The testimony was, of course, in conflict. Several witnesses testified that the water was being carried no higher than it had been in the past with the old dam. Plaintiff’s proofs show that the water is carried much higher with the present dam and that the increased capacity of the new dam' has been utilized in part. Witnesses who have been familiar with the springs for many years, some of whom helped to install plaintiff’s water works, testified that the water was carried at a level much below the springs. It is also shown that the water from these springs was utilized by some of plaintiff’s predecessors in title, and that plaintiff has used the water from these springs for domestic purposes since his purchase in 1901, and that now they are submerged.
3. Much attention has been given by counsel in their briefs to the character of the relief granted plaintiff by the trial court. Defendant’s counsel contend that if this court disagrees with their contention upon the merits that it is a case where injunctive relief ought not to be granted but damages instead should be fixed because the injury which would result to defendant if it were obliged to lower the dam would greatly outweigh the grievance of the plaintiff. Fox v. Holcomb, 32 Mich. 494; Hall v. Rood, 40 Mich. 46 (29 Am. Rep. 528); City of Big Rapids v. Comstock, 65 Mich. 78.
During the progress of the hearing plaintiff offered in open court to discontinue the case if defendant would pay the costs, on condition that it would install an electric pump and furnish plaintiff, his heirs and assigns, electricity to operate it. In view of this offer and the very large industrial interests which rely on this water power, we think the chancellor was right in recognizing and applying this principle to the extent at least of permitting defendant to compensate plaintiff without injury to its water power. We are not impressed, however, that one of the alternatives laid down by him is. the best that can be prescribed. To install a pump, keep it in operation and furnish electricity to operate it, practically in perpetuity, is not as desirable as a money consideration. Such an arrangement would require much bookkeeping and accounting on the part of the defendant and would give rise to endless controversy, and if, at the end of defendant's corporate existence, its charter should not be renewed, another difficulty would arise. There is not much testimony in the record bearing on the question of damages. The only direct proof of the damages comes from the testimony of the plaintiff, who stated that they were $1,500. To supply an equally efficient service plaintiff would be obliged to connect with the city system, the nearest hydrant of which is 700 feet away. Or a windmill or an electric pump could be installed. Either one of the latter methods would give plaintiff the benefit of the spring water for domestic purposes. The other method, of course, would not. Any one of these methods involves installation and maintenance charges. To be deprived of a system of water works as inexpensive as the present one, and one furnishing as wholesome water as it does for domestic purposes, is to be deprived of a valuable right, and where the courts apply this equitable rule full compensation should be awarded. We are disposed to alter the decree by substituting a provision for the payment of $1,500, for the alternative that defendant should install an electric pump and furnish electricity to operate the same. Defendant will be required to make and file an election within 30 days after this opinion is filed. In the event that no election is filed and no payment is made within that time, the dam will be reduced in height in accordance with the decree of the trial court.
Subject to this change the decree may be affirmed without costs to either party in this court.
Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Moore, J.
This is an application for a writ of mandamus to compel the circuit judge to grant an extension of time in which to settle a bill of exceptions in a cause pending in the Kent circuit court on appeal from the probate court in which the relator was petitioner and Florence Nichols and Della J. Dennis were respondents.
The answer of the circuit judge contains the following:
“1. That said petition is regularly, seasonably and in good faith filed.
“2. That said petition and the circumstances of the case appeal to the discretion of the court to such an extent that were it not for the fact that the court believes under the further findings of this order that the plaintiff has lost the right to sue out a writ of error, the court in the exercise of its discretion would without hesitation grant said petition and further extend the time for the settlement of said bill of exceptions.
“3. But the court is of the opinion that this cause falls within the provisions of Act No. 172 of the Public Acts of 1917, providing as follows:
•“ ‘Seo. 1. Writs of error, upon any final judgment or determination, where the judgment exceeds in amount five hundred dollars, may issue, of course, out of the Supreme Court, in vacation as well as in term, and shall be returnable to the same court; and in all other cases such writ may issue in the discretion of the Supreme Court upon proper application.’
“4. It being conceded that no writ of error has been applied for or other proceedings taken under Supreme Court Rule No. 59 and said act, this court finds that plaintiff has lost the right to sue out a writ of error as a matter of law regardless of the action it would otherwise take were it not restricted by said act and rule.”
The relator is a son of John Manshaem, deceased, who left a will which was duly probated and his estate was duly administered. The executor filed his final account. The relator asked for what he claimed was due him from the estate. The probate court made an order reading in part:
“For the purpose of distributing the cash balance of $7,391.28 it is hereby determined that the gross receipts coming into the hands of said executor amounted to $7,869.99, and that the gross expenses and charges of administration, debts paid, etc., amounted to the sum of $478.71 and that, of said sum of $7,-869.99, the sum of $6,000 shall be deducted and set aside for equal division of $3,000 each, to and between the said two sons, Evril J. Manshaem and Daniel F. Manshaem, and that the balance of the said gross receipts, same being $1,869.99, shall be divided in the proportions of two-thirds thereof to said Florence Nichols, and one-third thereof to Della J. Dennis aforesaid.”
An appeal was taken from this ordér to the circuit court, where after a hearing the circuit judge made an order reading in part as follows:
“That the order of said probate court for the county of Kent, made the 18th day of August, 1916, construing said will and distributing said estate be and the same hereby is set aside and reversed; that said cause be remanded to -the said probate court of the county of Kent, and that said probate court enter the necessary order or orders assigning and distributing all of the personal property belonging to said estate, including the proceeds of the sale by the testator of the farrn of John Manshaem, deceased, except that part of said personal property mentioned in the second paragraph of said will already distributed, between Florence Nichols and Della J. Dennis, according to the third paragraph of said will; that is to say, two-thirds thereof to Florence Nichols and one-third thereof to Della J. Dennis subject, etc.”
Heading these two orders together it must be concluded that the circuit judge made a final determination that a fund of $6,000, one-half of which was ordered by the probate judge to be distributed to the relator should not be distributed to him, but should be distributed two-thirds to Florence Nichols' and one-third to Della J. Dennis. We think this was a final determination of an amount exceeding the sum of $500, and that the circuit judge in the exercise of his discretion had the right to grant an extension of time in which to settle a bill of exceptions.
Inasmuch as he returns that if he thought he had the power he would have granted the extension the relator will be given 60 days from the filing of this opinion to settle his bill of exceptions.. He will recover costs of this, motion from Florence Nichols and Della J. Dennis.
Bird, c. J., and Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit. | [
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Per Curiam.
Plaintiff filed a complaint for es-cheat and declaratory judgment concerning uncashed benefit checks issued by defendant to its suppliers, providers, and subscribers. Defendant filed a counterclaim, alleging that funds previously paid under the escheat statute, MCL 567.11 et seq.; MSA 26.1053(1) et seq., were not subject to es-cheat. The parties agreed to dismiss the counterclaim and, then, defendant filed an action in the Court of Claims. Apparently, the Court of Claims remanded the case to the circuit court to be tried with plaintiff’s claim. Plaintiff filed a motion for summary disposition on its complaint pursuant to MCR 2.116(C)(9) and (10) and on defendant’s counterclaim pursuant to MCR 2.116(C)(7), (8), and (9). The trial court granted plaintiff’s motion. Defendant appeals as of right. We affirm._
Plaintiff, on behalf of the state, sought to es-cheat funds represented by unnegotiated medical benefit checks issued by defendant to its subscribers, providers, and suppliers under prepaid medical and hospital benefit contracts. When a claimant incurs medical costs covered by defendant’s contract, the subscriber, provider, or supplier submits a claim for reimbursement to defendant. Pursuant to its contract, defendant determines what the reasonable and customary charge for such service would be in the claimant’s area and issues a check in that amount. Thus, the amount of the check may or may not equal the amount charged for the service. Plaintiff alleges that defendant’s contracts provide that, if the amount of the check is not challenged for two years, the claimant may not challenge it. Furthermore, plaintiff contends that although defendant’s checks expire after six months, defendant will reissue a new check upon the claimant’s proof of entitlement.
Because the dormancy period in the escheat code is seven years, plaintiff sought to escheat funds represented by unnegotiated checks issued from 1976 until 1978 and, therefore, required to be reported by defendant to the state from 1984 to 1986. MCL 567.11, 567.15(f), 567.16 and 567.17a; MSA 26.1053(1), 26.1053(5)(f), 26.1053(6) and 26.1053(7a). In its counterclaim defendant sought to recoup funds already escheated to the state and represented by checks issued from 1972 to 1975 and reportable from 1980 to 1983.
MCL 567.15(b); MSA 26.1053(5)(b) provides in part:
"Property” means personal property, of every kind or description, tangible or intangible, in the possession or under the control of a holder, as hereinafter defined, and includes, but not by way of limitation:
(i) Money.
(iv) Credits, including wages and other allowances for services earned or accrued on or after January 1, 1958, and funds due and payable on checks certified in this state or on written instruments issued in this state on which a banking or financial institution or any other holder is liable, including but not limited to certificates of deposit, drafts, cashier checks, money orders, and travelers checks; also proceeds or property interests represented by unredeemed gift certificates.
(viii) Amounts due and payable pursuant to the terms of any policy of insurance ....
(xiii) All other liquidated choses-in-action of whatsoever kind or character.
The word "property” does not include credits or deposits evidenced by cash balances on unclaimed or refused personal property, nor any property, except the items speciñed in subparagraphs (i) to (xii), the right to recover which in a proceeding brought by the owner would be barred by the provisions of any statute of limitations, state or federal. [Emphasis supplied.]
The trial court held that the funds represented by the unnegotiated checks were liquidated choses-inaction and, therefore, subject to escheat. MCL 567.15(b)(xiii); MSA 26.1053(5)(b)(xiii). The trial court implicitly rejected defendant’s argument that the above-emphasized portion of MCL 567.15(b); MSA 26.1053(5)(b) would prevent escheat of liquidated choses-in-action in which a proceeding brought by the owner would be barred by the provisions of any statute of limitations. Moreover, the trial court implicitly rejected defendant’s claim that the Employee Retirement Income Security Act (erisa), 29 USC 1001 et seq., preempted the application of the escheat code to the funds in issue.
While defendant does not dispute that the funds represented by the checks were choses-in-action, it claims that they were unliquidated because defendant and the claimants had not agreed on the amounts due. Apparently, defendant does not dispute that checks in which the amount due was equal to the amount requested were liquidated. Liquidated is defined as:
Ascertained; determined; fixed; settled; made clear or manifest. Cleared away; paid; discharged. Adjusted, certain, or settled .... Made certain or fixed by agreement of parties or by operation of law. [Black’s Law Dictionary (5th ed) at 838. Citations omitted.]
Unliquidated is defined as:
Not ascertained in amount; not determined; remaining unassessed or unsettled, as unliquidated damages .... [Id. at 1378. Citation omitted.]
In Revenue Cabinet v Blue Cross & Blue Shield of Kentucky, Inc, 702 SW2d 433 (1986), the Supreme Court of Kentucky had to determine whether uncashed subscriber benefit checks were liquidated debts which should be treated as intangible property subject to escheat under the laws of that state. The defendant paid benefits in an amount stated in the policy or by referral to a schedule of usual, customary, and reasonable fees. The court found that the amounts represented by the checks were fixed and incontestable because the claimants’ ability to challenge them had expired under time limitations contained in the policies and because they were recognized by the defendant as continuing obligations for which it would issue a new check to the subscriber regardless of how much time had passed. The Kentucky statute provided:
[A]ll intangible property, . . . that is held or owing in this state by any person and has remained unclaimed by the owner for more than seven (7) years after it became payable or distributable is presumed abandoned. [Id. at 434.]
The court noted that while the plaintiff contended that the obligation to pay the amounts of the checks was a liquidated debt, the defendant claimed that the amounts on the checks were offers of settlement. The court held that the definition of intangible property included a liquidated debt evidenced by a written instrument. The court then noted that the Kentucky statute was modeled after the Uniform Unclaimed Property Act and that that act provided that a draft issued by a property or casualty insurance company for property damage or personal injury was not subject to a presumption of abandonment if the offer was not accepted by the payee. The court opined that the converse of the check issued by a property or casualty insurer as an offer of settlement of a claim of an unliquidated amount is a check issued by a life insurance company, a health insurance company, or a disability insurance company in payment of a fixed or scheduled benefit, an obligation not subject to negotiation. Thus, the court held that the defendant’s checks were not offers of settlement, but payments of fixed obligations. Id. at 435.
We agree with the reasoning of the Kentucky Supreme Court. In this case, the providers, subscribers, and suppliers contracted with defendant only for reimbursement for customary and reason able charges for a particular service; therefore, the claimants had a reasonable expectation that they would be reimbursed only for that amount which might or might not be equal to the amount of their claims. As in Revenue Cabinet, supra, we believe that determining the reasonable and customary amount due, necessarily determined by reference to a schedule, is no different than a situation where the charged amount is specified in the contract. Hence, we agree with plaintiff that the sums represented by the checks were liquidated.
Defendant next claims that liquidated choses-inaction are not property subject to escheat where a proceeding by the owner to recover the same would be barred by the provisions of any statute of limitations, state or federal. MCL 567.15(b); MSA 26.1053(5)(b) describes thirteen categories of property. The thirteenth category is liquidated chosesin-action. MCL 567.15(b); MSA 26.1053(5)(b) then provides:
The word "property” does not include credits or deposits evidenced by cash balances on unclaimed or refused personal property, nor any property, except the items specified in subparagraphs (i) to (xii), the right to recover which in a proceeding brought by the owner would be barred by the provisions of any statute of limitations, state or federal.
Plaintiff claims that this portion of the statute was enacted in partial response to our Supreme Court’s opinion in Evans Products Co v State Board of Escheats, 307 Mich 506; 12 NW2d 448 (1943), and was intended only to prevent the revival of obligations "already time barred by [the] statute of limitations as of its [the escheats code’s] effective date." (Emphasis in original.) We cannot agree with plaintiffs interpretation.
MCL 567.69; MSA 26.1053(59) provides:
In any proceeding brought by this state under the constitution, general laws or provisions of this act to recover property which has escheated, is escheatable or subject to escheat, except as otherwise provided in section 5(b) of this act, no statute of limitations of this state prescribing a limitation of time during which an action or proceeding may be commenced shall be a defense to such proceeding to escheat or appropriate abandoned property nor prevent such money or property from being deemed abandoned property within the meaning of this act. [Emphasis supplied.]
We believe that MCL 567.15(b); MSA 26.1053(5)(b) is unambiguous and, therefore, escheatable property does not include a liquidated chose-in-action where the owner’s right to recover in a proceeding would be barred by the statute of limitations.
Because we are unable to determine whether the statute of limitations would have expired as to an individual owner of a liquidated chose-in-action, we normally would have to reverse the trial court’s summary disposition order because a genuine issue of material fact exists; however, because we believe that summary disposition would have been appropriate under MCL 567.15(b)(iv); MSA 26.1053(5)(b)(iv), we affirm the trial court’s decision. Warren v Howlett, 148 Mich App 417, 426; 383 NW2d 636 (1986).
Defendant claims that § 5(b)(iv) is inapplicable, relying on the statutory rule of construction known as ejusdem generis. Under that rule, where a statute contains general words which follow a designation of particular subjects, the meaning of the general words will be presumed to be re stricted by the particular designation as including things of a similar kind, class, character, or nature as those specifically enumerated. Core v Traverse City, 89 Mich App 492, 500; 280 NW2d 569 (1979). However, this rule does not apply where a contrary intent appears. People v Powell, 280 Mich 699, 704; 274 NW 372 (1937). In this case, a contrary intent appears because of the language in § 5(b)(iv) (i.e., "including but not limited to”).
Defendant also claims that, because the checks become nonnegotiable after six months, it is no longer a holder liable for funds due and payable on a written instrument. We note that, given the seven-year dormancy period, most, if not all, written instruments which represent due and payable funds would have expired; therefore, it would be absurd to construe § 5(b)(iv) so that funds represented by expired instruments could not be es-cheated. Such a construction would render that part of §5(b)(iv) almost meaningless. We further note that the statute of limitations applicable to funds due and payable on written instruments issued in this state under § 5(b)(iv) does not bar the state’s ability to escheat the property. MCL 567.15(b) and 567.69; MSA 26.1053(5)(b) and 26.1053(59). Consequently, we hold that the funds represented by defendant’s checks are property subject to escheat under § 5(b)(iv).
Defendant, joined by amicus curiae, also claims that the trial court erred when it implicitly rejected defendant’s claim that erisa preempted the application of the escheat code. Defendant claims that ninety-two percent of its subscribers are subscribers as the result of participating in employee benefit plans organized under erisa. We note that the number of defendant’s subscribers who were subscribers as the result of participating in erisa plans and who were entitled to the unclaimed checks is unknown. Assuming that erisa participants were entitled to some of the unclaimed checks, we note that 29 USC 1144(a) provides in part:
Except as provided in subsection (b) of this section, the provisions of this subchapter and sub-chapter hi of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under 1003(b) of this title.
In Firestone Tire & Rubber Co v Neusser, 810 F2d 550 (CA 6, 1987), the United States Court of Appeals had to determine whether a municipal income tax was preempted by erisa. The court noted that despite the breadth of the preemption provision " '[s]ome state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law "relates to” the plan.’ ” Id. at 553 (quoting Shaw v Delta Air Lines, Inc, 463 US 85, 100, n 21; 103 S Ct 2890; 77 L Ed 2d 490 [1983]). The court applied several tests for determining whether the city income tax had too tenuous a connection with erisa. First, the court looked to whether the state law represented a traditional exercise of state authority. Id. at 555. The court also considered whether the state law affected relations among principal erisa entities or if it affected relations between one of the erisa entities and an outside party or between two outside parties with only an incidental effect on the plan. Id. at 556 (quoting Sommers Drug Stores Co Employee Profit Sharing Trust v Corrigan Enterprises, Inc, 793 F2d 1456, 1467 [CA 5, 1986]). Finally, the court considered the incidental nature of any possible effect of the state law on an erisa plan. Id. at 556. Applying these tests, the court held that the city income tax was not preempted by erisa. Id.
In Rebaldo v Cuomo, 749 F2d 133, 139 (CA 2, 1984), cert den 472 US 1008; 105 S Ct 2702; 86 L Ed 2d 718 (1985), the court held:
Where ... a State statute of general application does not affect the structure, the administration, or the type of benefits provided by an erisa plan, the mere fact that the statute has some economic impact on the plan does not require that the statute be invalidated.
Applying these tests to the instant case, we hold that erisa does not preempt the escheat code. Escheat is a traditional exercise of state authority. Evans Products Co, supra. The escheat code affects defendant because it is the holder of property abandoned by its owners rather than because it is an erisa entity. Moreover, the escheat code does not affect the structure, administration, or the type of benefits provided under the erisa plan; therefore, the mere fact that it has some impact on the plan does not require its preemption by ERISA.
Finally, we hold that defendant’s claim that a declaratory judgment was improper was not preserved for appeal because it was not raised below. Schanz v New Hampshire Ins Co, 165 Mich App 395, 408; 418 NW2d 478 (1988).
Affirmed. | [
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Bird, C. J.
The city of Detroit filed its petition in the recorder’s court to condemn a strip of land, sixteen feet in width, for an alley in the rear of lots facing Guilloz street, between Euclid and Clay avenues. The jury found the strip was necessary for alley purposes and awarded the owners of the fee the sum of $3,678.22. These findings were later confirmed by the court, from which the defendants appeal.
Assignments 6, 9 and 10. It appeared upon the inquisition that defendant Hartwick purchased the premises in question from Julius Stroh and others and that Hartwick was then using the contract as collateral security to certain of his loans at the People’s State Bank. When this developed counsel for the city asked that the People’s State Bank be made a party to the proceeding and it was so ordered despite defendant’s objection. It was important for the city to know who were interested in the property proposed to be taken, and when ascertained, it was proper that they should be made parties. We see no impropriety in receiving the contract in evidence for the reason that it was disclosed other parties were interested in the premises, nor do we think it was error to allow the amendment making the bank a party. Counsel assert that the bank was made a party but given no opportunity to be heard. This objection might have some force, if made by the bank, but we think it has no merit when urged in behalf of defendant Hartwick.
Assignment 20. Counsel contend that the evidence bearing on the question of necessity was insufficient to justify the jury in making the finding which they did. The record shows that these lots are only about 40 feet in depth and that many of the houses built thereon are built up to the rear lot line. There is an open field in the rear which is being rapidly utilized for manufacturing plants. It was shown by the health officer that if the industrial plants were built up to the lot line it would contaminate the air and lessen the sunlight in the vicinity. The necessity also appeared in the disposal of the garbage. At the present time the garbage is not collected but is thrown out upon the field, whereas, if an alley were created it would come within the ordinance and be stored and collected as it is elsewhere in the city. There was considerable uncontradicted testimony taken bearing on the question of necessity and we think it was ample to justify the finding made by the jury.
Assignment 16. One W. S. Crowl was offered as a witness by defendants on the question of value. He testified, in substance, that he was general agent for the Michigan Central Railroad Co., in charge of its industrial matters, and as such he was familiar with factory sites, their location and value; that he knew where the tract in question lay but admitted that he had never examined this particular one. It further appeared from his testimony that he had recently negotiated with others for a factory site, six or seven miles distant. The trial court refused to take his opinion of the value for the reason that he had not shown himself qualified to speak on that question. Upon this showing it would hardly be contended he had a right to testify as an expert, but counsel say, and rightly so, that one does not have to be an expert to testify on the question of the value of land. But, ordinarily, before a lay witness is permitted to testify to the value of land he must show that he has seen the land and has some knowledge of the value of other lands in the immediate vicinity. Lawson on Expert Evidence, p. 475; Mewes v. Pipe Line Co., 170 Pa. 367 (32 Atl. 1082); Stone v. Covell, 29 Mich. 359. The witness, Crowl, must be regarded as a lay witness, and in view of his testimony that he had never inspected the premises about whose value he was to testify, we think it was not reversible error to exclude his testimony.
Some other assignments are touched upon in the brief but it will suffice to say that we do not think the errors complained of, if they were errors, so materially affected the jury’s conclusions that they should work a reversal of the award. Under the practice, errors assigned in condemnation cases should not work a reversal of the finding of the jury unless it is made apparent that the verdict was materially affected by them. Grand Rapids, etc., R. Co. v. Chesebro, 74 Mich. 466. The observations of Mr. Justice Campbell in the case cited are applicable here. In part it was there said:
“But the proceedings before the jury appear to have been conducted in a peculiar method, not within the proper rules governing such cases, and appear to have led to conclusions that cannot be maintained. The probate judge acted throughout as if he had been a nisi prius judge, presiding over a common-law jury, and assumed the whole responsibility of directing what testimony should go before them, and on what theories of damage. * * * Then, as under our present statutes, the jury was a jury of inquest, specially created, and not a trial jury. We held in Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456, where the jury was impaneled in a circuit court, that the only functions of the court were to, set the proceedings in motion by organizing a jury or appointing commissioners, and affirming or vacating the award; and we held, further, that the jury were judges of law and fact, and not subject to interference by the judge, should he undertake to accompany them.”
It was said in the recent case of Chicago, etc., R. Co. v. Simons, 200 Mich. 76, that,—
“while the statute confers upon this court appellate jurisdiction to review awards in condemnation cases, it has always been very loth to reverse them on technical grounds or because the damages were apparently excessive or inadequate, if they were within the range of the testimony.”
Applying this rule we find nothing in the present case which calls for a reversal of the conclusions reached by the jury.
The award is affirmed. Costs will be granted in this court to plaintiff.
Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Kuhn, J.
This action is brought to recover damages which the plaintiff claims to have sustained by reason of a breach of contract on the part of the defendant. On or about October 12, 1915, the defendant, Albert Stickley, was the controlling owner of the Gogebic Lumber Company, at Pentoga, Michigan. At about that time he entered into an arrangement with one Montambo, who owned a logging equipment and a mill, to begin logging operations on a tract of land owned by the Gogebic Lumber Company. Plaintiff was at that time an office employee of Stickley Brothers Company, in which the defendant, Albert Stickley, also owned a controlling interest. Messrs. Stickley and Montambo made an arrangement to organize as a company, to be known as the Presque Isle Lumber Company, an operating company, which was to get logs from the Gogebic Lumber Company at a stump-age rate, and manufacture lumber. The company was organized on December 13, 1915, with three stockholders, with a capital stock of $100,000; $25,000 of this stock was taken by Mr. Montambo; $25,000 by Mr. Stickley, and one share was given to plaintiff as the third incorporator. Plaintiff was elected secretary of the company and went to Pentoga and there assumed the office management of the Presque Isle Lumber Company, Mr. Montambo being the practical operator in the woods. The 'operations of the company were closed about the middle of January, and. the plaintiff remained at Pentoga, closing up the affairs of the company, until February 16th, when he returned to Grand Rapids, Michigan, and was employed in the office of Stiekley Brothers Company for the month of February, and about the first of March he was notified by the defendant here that his services would be no longer needed. He was paid up to the first of March. It is the plaintiff’s claim that on the 12th of December, 1915, the day before the organization of the company, the defendant personally, at the office of the Presque Isle Lumber Company, made an arrangement with the plaintiff by which it was agreed that the plaintiff was to have a salary of $3,000 in cash for the period from December 12, 1915, to December 1, 1916, and, in addition,. was to receive from the defendant $5,000 worth of the stock of the Presque Isle Lumber Company. From the time the plaintiff left the Stiekley Brothers Company, in October, 1915, and went to Pentoga, he received a salary of $250 a month on checks of Stiekley Brothers Company, which money was charged to the account of the defendant, and the defendant continued to pay the salary of $250 a month to the plaintiff from October, 1915, until plaintiff was informed by the defendant, on March 1, 1916, that there was no further work for him. Five thousand dollars of the stock of the Presque Isle Lumber Company was never delivered to the plaintiff, and he claims to have been unable to obtain employment from March 1st until December 1, 1916, and for claimed damages thus resulting, this suit was brought and resulted in a verdict for the plaintiff in the sum of $2,383.75.
The first claim here urged by defendant’s counsel is that the court, as a matter of law, should have directed a verdict for the defendant because the plaintiff has not sustained the burden of proving by the preponderance of evidence an affirmative case against the defendant. The claim of the. plaintiff as to the agreement was contradicted by the defendant, and there were only the two witnesses. The defendant claimed that with reference to this contract, he was acting for the Presque Isle Lumber Company, but in view of the fact that plaintiff’s name was never on the pay-roll of the Presque Isle Lumber Company and that he was actually paid up to March 1, 1916, either by check of Albert Stickley or by check of Stickley Brothers Company, which was charged to Stickley, the question of fact raised by the dispute in the testimony, in our opinion, was fairly a question for the jury to determine.
At the close of the testimony, counsel for defendant requested the court to submit to the jury the following three special questions:
“1. Was the salary of the office manager and secre- • tary of the Presque Isle Lumber Company to be paid by Albert Stickley personally?
“2. Was the salary of the secretary and office manager of the Presque Isle Lumber Company, including the stock, to be paid from the earnings of the company?
“3. Was there any other service on the part of A. J. Gilbert in the minds of the parties on December 12th than his service with the Presque Isle Lumber Company?”
The court refused, to submit these questions. In order that questions of this kind can, under the decisions of this court, be submitted to the jury, they must be plain and unambiguous and call for findings on questions of fact which are conclusive of the real issue involved in the case. See section 12611, 3 Comp. Laws 1915; Crane v. Reeder, 25 Mich. 303; Fowler v. Hoffman, 31 Mich. 215; Foster v. Gaffield, 34 Mich. 356; Sherwood v. Railway Co., 82 Mich. 374; Zucker v. Karpeles, 88 Mich. 413; Cousins v. Railway Co., 96 Mich. 386; Ward v. Campau, 161 Mich. 85; Keeley v. Stratton, 185 Mich. 409. Upon examination of these questions, we are of the opinion that the court was justified in not submitting them, because they were not so clear and unambiguous as to warrant their submission to the jury. It is not clear in the first question whether the word “salary,” as referred to in the question, was to include, not only the $3,000 in cash, but also the stock issue, and both of these items of plaintiff's claim were submitted to the jury under proper instructions. The second question is also subject to the infirmity that it is not based upon the claimed facts in the case, because, as we understand the defendant’s claim, it is not urged that the salary, that is, the $3,000 cash, was to be paid out of the earnings of the company, although it is claimed by the defendant that the stock was to be paid out of such earnings. A decision of the third question would also not be conclusive of the question here involved. We therefore find no merit in the appellant’s contention that the court erred in not submitting these questions.
Defendant’s fourth request to charge reads as follows:
“4. The undisputed testimony shows that the $5,000 stock in the Presque Isle Lumber Company was not to be furnished from the stock held by Mr. Stickley nor to be purchased for the plaintiff by the defendant, but was to be set apart by the company to be paid for by the earnings of the company, and therefore as to the portion of the claim that relates to the $5,000 stock you will find for the defendant, no cause of action.”
The court’s refusal to give this charge as. requested is next alleged as error. An examination of the testimony of the plaintiff is rather confusing as to what his real idea was as to this $5,000 of stock. While on direct examination he did testify that the stock was to be paid out of the earnings of the company, later on in his examination he stated that under the ordinary course of accounting, when this stock was issued, it would be charged to an expense account, which would be treated as any other expense account and deducted from the gross earnings in computing the earnings for a given period, and that it was not his understanding that the stock was to be paid out of dividends earned. We are of the opinion that there was sufficient dispute as to this claim in the testimony as to present a question of fact for the jury, and that therefore the court did not err in refusing to give the request as presented.
We are unable to find any error, and therefore feel constrained to affirm the judgment.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. | [
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Stone, J.
This case is here upon writ of error sued out by the plaintiff to review the action of the court below in directing a verdict and judgment for the defendant upon the ground of the contributory negligence of the plaintiff. The plaintiff having rested his case, upon motion of the defendant, the court directed a verdict for the defendant upon the ground stated. The action of the court in that regard presents the only meritorious question in the case. The assignments of error are criticised by appellee as too general, under the rule; but we think that the fourth assignment of error, that “the court erred in finding as a question of law that the plaintiff was-guilty of contributory negligence,” fairly and sufficiently presents the question. The action was brought to recover damages for personal injuries to the plaintiff, sustained about 10:55 a. m. on June 26, 1916. He was then a boy 15 years of age. The injury occurred at a crossing of the electric railway then being operated by the defendant, between the city of Grand Rapids and the city of Holland, the crossing being known as Shackhuddle crossing, in Ottawa county. The negligence complained of, and relied upon, was that the defendant neglected and failed to blow the whistle, or ring the bell when approaching the crossing, and that its train collided with the horse and buggy driven by plaintiff. The facts as to the conduct of the plaintiff are not in controversy, except as he varied his testimony upon some matters during the trial, as we shall notice.
At this crossing the railway runs north and south, having a double track, and the highway runs, practically, east and west. There is a downgrade of the tracks at the crossing, from the south to the north, the direction in which the defendant’s train, which caused the injury, was moving; which grade begins about 800 feet south of the crossing, and continues beyond the crossing. This grade is a little more than one per cent. The train which collided with the plaintiff’s horse and buggy consisted of a work car and two empty gravel cars. The work car was about as high as an ordinary box car — 12 to 13 feet — and the gravel cars had side dumps, about 6 feet high. The schedule of regular trains showed 21 trains to Holland, and 20 trains to Grand Rapids, daily. The plaintiff knew that gravel and freight trains were, from time to time, run over the railway. The train, as it approached the crossing from the south, was running from 25 to 35 miles an hour. Whether or not the whistle was sounded was a disputed question. The defendant did not claim that any bell was rung.
The testimony of the plaintiff was very lengthy, and cannot be all inserted here; but that part of it relating to his conduct in approaching the track, we think it our duty to here set forth. It should be said that he was a bright; intelligent boy, well acquainted with the location, and accustomed to driving the horse which he was driving that day. The trial took place in May, 1917, beginning on the 23d, about eleven months after the injury. He testified on direct examination :
“I am sixteen years old, was fifteen on the 26th of last June. I was at that time living near Shackhuddle, on the Shackhuddle road, a half mile west of the crossing. On the 26th of June last I had occasion to drive to Shackhuddle, to meet my father who was coming from Grand Rapids. I started to get him with a horse and buggy a little after ten. I had a single-seated top carriage. I live on the west side of Shack-huddle crossing, and when I arrived there I drove over on the east side, because the road was wider there so I could turn around easier.
“After I had turned around there I backed my horse up so I wouldn’t be so close to the track, and stopped about 70 feet from the track. I remained there about 20 minutes, and during that time one train went through towards Grand Rapids. No train went through going the other way. After waiting there 20 minutes I drove up to Mrs. McCoy’d to find out if that local I expected father on had gone through before I got there. (Mrs. McCoy lived a few rods west of the crossing.)
“Then I drove back again to the crossing, and drove across, and my horse being restless, I drove on up about 175 feet on the east side of the crossing and. turned around and waited for that car. I waited there about 10 minutes, and one car went through going towards Holland. None went through towards Grand Rapids. After I waited for some 10 minutes, it looked so rainy I put on my side curtains, and then it looked so rainy that I thought I wouldn’t wait for my father so I started for home. I was then 175 feet from the track. Before starting towards home, towards the track, I drove down a little ways and looked, stopped the horse and looked. I pulled the curtains loose from the top, and I looked out between the top of the curtain and the top of the buggy. I looked both ways. I looked up the track and down the track. I listened when I was there. At that time when I was there looking both ways there was no train in sight. * * * From that point I had a good view south along this track, and I could have seen a car coming' along there then for a distance of a number of poles. I did not see any car coming then from the north, and did not hear any whistle. After I had looked both ways, and listened, I then drove down towards the track. I went about 120 feet. I went to somewhere around 30 feet from the track. I then stopped and listened again and I looked on the track there. I looked both ways. I looked out of the buggy. 1 leaned forward and looked around the side curtains. I leaned forward far enough so I could get a clear view. I listened there. No whistle was blown. I have stopped at that crossing different times. I have lived out there near that crossing about a year. I have occasion to go across there different times. About once or twice a week, driving a horse. The same horse I had that day. I had stopped there bn other occasions, and the whistles can be heard for this crossing from the point where I stopped. I have nothing the matter with my hearing. I was listening that day. I heard no whistle either way. I recall which way I looked first when I stopped at the point just before crossing. I first looked south, and after looking south, I then looked towards the north. I was expecting the train with my father on from the north. That train was past due then. After I had looked to the north I started my horse up, and after I started my horse up I kept on looking and listening, and I just started up, and in a couple of seconds I thought I was struck. I saw the car before I was struck. It seems it was standing right aside of me, just as it struck me. It was a couple of seconds between the time I started up my horse the last time and I was struck. I continued to listen for trains from the time I left the 150 feet, where I was back on the hill, until I stopped at this crossing. There was no whistle blown during that time, and there was no whistle blown after I stopped 30 feet from the track up to the time I was struck. At the point where I stopped 30 feet from the track my horse’s head was about 18, 20 feet from the track. There are two trees on the south side of .the roadway just before you reach the tracks. These trees are about 10 feet distant from each other. Where I stopped I was about in the middle between those trees. There is an embankment along the railroad track there. * * *
“It hadn’t started to rain yet that day when I started home. It was getting ready, it looked as if it was going to start in a minute, but it hadn’t started yet. It was raining when I got to the crossing. The storm came up quickly. It got quite dark. After I saw the car right there upon me, the next I recall was when I came to, and I found myself lying near the track about 50 feet from the road.”
Upon cross-examination the plaintiff testified as follows:
“Q. You went from 30 feet to the track going 8 or 10 miles an hour, didn’t you?
“A. Yes. I never timed them trains. I don’t know how fast they do go.
“Q. You might have been going 10 miles, might you not?
“A. I might have.
“Q. At 10 miles an hour, and they going 60 miles an hour, they would go 180 feet while you were going 10 wouldn’t they?
“A. Yes, sir.
“The Court: Thirty and 180.
“Q. Well, he was going 30, yes. In other words, while you were going this 30 feet that train wouldn’t have gone to exceed 180 feet, would it?
“A. No, sir.
“Q. What?
“A. No, sir.
“Q. It couldn’t have, could it?
“A. No, sir. Undoubtedly I would have heard it there, if it hadn’t been for the storm.
“Q. And you could see a car coming between four and five hundred feet, couldn’t you?
“A. Yes, sir.
“Q. And when you got down at 25 feet frotn the first rail, you could see clearly a car coming clear from the top of the hill, couldn’t you?
“A. Yes, sir.
“Q. Well, it must have been in there somewhere, wasn’t it?
“A. I wasn’t looking that way just at that second.
“Q. Oh, you weren’t looking that way, is that the idea?
“A. I wasn’t looking that way just as they happened to come along there.
“Q. You were looking for a car in the opposite direction?
“A. Yes.
“Q. In other words, from the time you left this point 30 feet back, you were looking for the car that you expected in the opposite direction?
“A. Yes, sir.
“Q. Although this car was right there in sight, must have been?
“A. Must have been.
“Q. But you didn’t see it?
“A. I didn’t see it.
“Q. You didn’t look at it?
• “A. I didn’t see it until I got right on the track.
“Q. Until you got right on the track?' In other words, you went this 30 feet looking for the car in the opposite direction, is that right?
“A. I wasn’t looking that way at all. I was looking—
“Q. But that is what you were looking for, the car you thought your father was coming on?
“A. Yes.
“Q. From the time you left 30 feet back there, you were watching for that car?
“A. Yes.
“Q. Although this car that hit you was in sight in that distance?
“A. Yes, sir.
“Q. Now this horse wasn’t going so fast but what you could have stopped it?
“A. I presume not.' I could have stopped it.
“Q. Why, sure, you could have stopped it at any point along there, couldn’t you?
“A. Yes, sir.
“Q. So that if you had looked in the opposite direction you would have seen the car, wouldn’t you?
“A. I presume I would.
“Q. And you could have stopped your horse?
“A. Yes, sir.
“Q. At any point from the time you left this 30 feet back there, is that right?
“A. Yes, sir.
“Q. But you didn’t, did you?
“A. No, sir.
“Q. You were looking for the car in the opposite direction, is that right?
“A. Yes, sir.
“Q. Weren’t expecting this car?
“A. Wasn’t expecting it.”
On redirect examination he also testified as follows:
“Q. Now, when you got within 30 feet of the track, counsel has asked you if you continued looking the other way. At that point where you stopped 30 feet from the track, which way did you look first?
“A. Towards Holland. I looked carefully that way. There was no train in sight then. I am sure of that. Then after I looked that way I looked the other way and started my horse up. Then I looked towards Grand Rapids last, because I knew that car was late and was looking for it any minute, any second. When I looked that way I immediately started my horse up. After looking towards Holland I looked immediately towards Grand Rapids, and I started my horse up then when I looked towards Grand Rapids.
“Q. State what you did in the way of looking after you started your horse up?
“A. I started my horse, I kept on looking, and kind of that way (indicating) and just stopped looking and listening; as I got on the track I was still looking and listening, and I caught sight of that other car; I bent over_ looking, and I just got through looking there (indicating) when I saw this other car right at the side of me. I had started to look back the other way then. I just got through looking towards the north, and started to look towards the south again as I got to the track, and just as I got to the track, I seen it was on top of me.”
Later, the plaintiff was recalled and stated that he wanted “to make some corrections” of his cross-examination. Those corrections related to the speed of the horse, which he changed to about 5 miles an hour; he also corrected his former testimony as to the distance he could see south at 30 feet from the track, testifying:
“At 30 feet, on that day I could not see over 150 feet; on a clear day I could not see over 300 or 400 feet.”
Again he testified that he could see up the track about 200 feet.
Plaintiff’s testimony relating to the direction and way in which he looked after leaving the point 30 feet from the track remained unchanged. But one just conclusion can be reached from his testimony: Plaintiff was expecting his father on a car coming from the north, and during all the time that he was approaching the track from the point 30 feet east of the track, until the car was upon him, he was looking in a northerly direction, and never once looked. towards the south, the direction from which the work train was approaching, with which he collided. Had he looked south he would have seen the cars, for, according to the undisputed evidence, they were at that time within the range of his vision.
We agree with counsel for appellant that upon the subject of the contributory negligence of the plaintiff, the question “must be determined largely from the testimony of the plaintiff.”
The ground upon which the trial court directed the verdict is clearly stated in its charge as follows:
“A view to his left any time after he passed the tree would have disclosed the fact that this, car was coming. He says he could have seen 150 or 175 to 200 feet to the left if he had looked, could have seen it if he had looked. It seems to me that there cannot be any question about it, but that his. failure to look —and he said he had his horse entirely under control, could have stopped at any time or place from the 30 feet up to the track, that he could have seen the car within 175 feet south of the road if he had looked— it seems to me to be clearly an admitted fact of negligence to fail to look.”
In treating that question as one of law, the trial court referred to the case of Bray v. Traction Co., 191 Mich. 435, and quoted the following language of Justice Moore, who wrote the opinion in that case:
“On his [plaintiff’s] cross-examination he made it even more apparent that he looked but once, and that, if he had looked just before going upon the track, when there was an opportunity to do so, he could have seen his danger in time to avoid it. Under the version given by the plaintiff of the occurrence, we think the trial court was justified in directing a verdict, for the reason given by the following authorities.”
See cases there cited; also Congdon v. Traction Co., 199 Mich. 564.
We are left in no doubt concerning the manner in which the plaintiff was injured. As was said by Chief Justice Ostrander in Knickerbocker v. Railway Co., 167 Mich. 596, 602, in speaking of an infant ten years of age killed at a railroad crossing, we may say here:
“His intelligence and his ability to appreciate the danger which actually threatened, and to avoid it, if seasonably discovered, cannot be questioned. He did not discover the actual danger. Under the circumstances, he was chargeable with some degree of care for his own safety, and it does not appear that he exercised any care. The jury should have been so instructed.”
See, also, Mollica v. Railroad Co., 170 Mich. 96 (L. R. A. 1917F, 118), where a boy under ten years of age was held guilty of contributory negligence. The presence of the storm called for increased vigilance and care.
Some of the language of the trial court, in its charge directing the verdict, is criticised by appellant’s counsel. Upon this subject it is sufficient to say that affirmance of the judgment does not imply agreement with all that was said to the jury in directing the verdict. Schneider v. C. H. Little Co., 200 Mich. 874; Lewis v. Brick Co., 164 Mich. 489, 501.
We find no reversible error in the rulings of the court relating to the admission of evidence. In our opinion the court did not err in directing a verdict for the defendant, for the reason stated, and the judgment below is affirmed.
Ostrander, C. J., and Steere and Brooke, JJ., concurred with Stone, J. | [
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Moore, J.
We quote sufficiently from the charge of the lower court to indicate what this litigation is about:
“The plaintiff in this case is a married woman and in June, 1915, she resided with her husband in the city of East Lansing; and she claims that on the evening of that day she had occasion to visit the city of Lansing, together with her daughter and husband; that in order to get to Lansing she boarded one of the defendant’s street cars to be carried to Lansing, together with her daughter and her husband, and it was arranged between them, that is, between the plaintiff and her daughter and the husband that they should get off at the interurban station on Michigan avenue east, and there the husband should later join them, that is, join the plaintiff and her daughter. She claims that when the car reached the interurban station in the city of Lansing, it came to a stop and that together with her daughter she alighted from the car upon the street, that another car pulled up and stopped within four or five feet of the rear of the car from which she alighted. That she then started to go between the two cars and across the south track of the defendant railway company to get to the interurban station, and that while she was passing between the two cars an employee of the defendant company upon the car that had stopped just back of the car from which she alighted, suddenly called to her, ‘look out,’ that it startled her and apprehending some danger from the position she then occupied, she stepped hurriedly to the south, and was then struck by another car of the defendant company proceeding east along the south track. * * *
“It may be well at this point to briefly state to you the right of the plaintiff to be upon the public street, and also the right of the defendant to operate its cars over the public street.
“When the plaintiff was carried by the defendant company to the interurban station or opposite the station where the cars stopped in the street, immediately upon her alighting from the car, she ceased to be a passenger of the defendant company. And from that moment, that is, from the time she alighted from the car it was her duty to have in mind the matter of her own safety and to bring to bear upon that matter such degree of care and caution as an ordinarily prudent person would bring under the same circumstances.
“Now having alighted from the car it was her duty to observe the conditions surrounding her, to make observation of what she ought to do with reference to her own safety. There was no obligation resting upon the defendant to save her from her own want of care. * * * Now what was the right and duty and obligation of the defendant in the premises? The defendant company had a right to maintain its tracks and operate its cars over the same upon the street in question. It had a right to maintain two tracks upon one of which eárs might run to the west, and upon the other'to the east, but in operating its cars, it should have in mind and it was its duty to have in mind the other uses made as well of the public highway. It had a right to maintain its passenger station in the middle of the block, and to stop, its cars in the middle of the block so that passengers might alight and go to the station if they cared. But in stopping its cars and permitting passengers to alight and go to the station if they saw fit and to operate their cars along the other track while passengers were alighting from the north track, it was the duty of the defendant to have the user of the street by such passengers alighting in mind, and to operate their cars with a reasonable degree of care. The defendant company had a right to operate the open cars, and the mere width of the cars has nothing to do with the issue in this case so far as negligence is. concerned.
“Now having in mind the rights of the plaintiff and of the defendant the plaintiff claims the defendant did not observe its obligation towards her in the use it made of the street. In other words, that it was guilty of negligence. * * *
“So in this case the negligence alleged and for your consideration is. that of whether the defendant company operated its east bound car over the south track at the time the plaintiff was passing between the two cars on the north track, whether it operated its east bound car down to the point where parties might pass between such cars and go to the interurban station without sounding a warning of the approach of such car.
“I say to you now, it was the duty of the defendant to give warning by sounding a gong or bell of the approach of the car upon the south bound track at the point in question.
“Now the plaintiff alleges that such warning was not given, that is the allegation. She also claims the car was not operated with the proper degree of care upon approaching the point in question. That is such an indefinite allegation of negligence that I have considered it as not necessary to be submitted to you.
“So we then come to the one question of negligence alleged, that is that the car came east on the south track without giving warning of its approach to the point in question.
“Now upon that the burden rests upon the plaintiff to satisfy you by a preponderance of the evidence that no warning was given. You have heard her evidence, her testimony, she says she heard no warning. It was not necessary that the defendant give a warning that she should hear. Do not misunderstand this issue — it is not that she must have heard the warning —that is not the issue. The issue is, Was a warning given by the ringing of the bell or the sounding of a gong? * * *"
“Now let me make that plain to you. You will first take up the issue of whether there was a warning given of the approach of the car on the south track. If the testimony is left so you cannot say whether there was a warning given or not, then of course you cannot find affirmatively that there was no warning given. Therefore you could not find that the defendant was negligent. If you find there was a warning given, then you have reached a finding the defendant was not negligent. If having in mind all of the evidence you find that no warning was given, then there was want of due care' on the part of the defendant company, and you would come to the consideration "of other issues.”
The jury after being out for a time came in for further instructions which were given them, and later returned a verdict in favor of the defendant. The case is brought here by writ of error.
Counsel say the court was wrong in limiting the jury as he did upon the question of the negligence of defendant, and call attention to the following among other allegations of negligence in their declaration:
“(c) That it was negligent in running one of its cars past another car that was standing at its waiting room for the purpose of discharging passengers, without having that car under such control that it could stop it upon the appearance of danger.
“(d) That it was negligent in so running its cars past another car that was standing for the purpose of discharging passengers, as aforesaid, without giving signals of its approach, such as ringing a gong or bell or other signal such as. are usually given to protect travelers. * * *
“(g) That said defendant was negligent in not protecting plaintiff, one of its passengers, who had been discharged from one of its cars, from danger and injury of other cars of said defendant while plaintiff was going from said car to the waiting room or depot of said defendant.”
It is claimed all these averments of negligence except those contained in subdivision (d) were taken from the jury and that the charge to the jury in relation to that subdivision was erroneous.
The relative duties, of passengers alighting from street cars at street crossings, and the railway are pretty well understood in this State, but we cannot recall that any case has been before this court involving such a situation as that presented in the instant case. The authorities cited by counsel in their briefs are not controlling in this case and it is not likely the trial court had his attention called to any authority on all fours with the case before us.
The case is unlike Clark v. Railway, 168 Mich. 457, and Davis v. Railway Co., 191 Mich. 131. In each of those cases the passenger alighted at a street corner where the cars did not stop except when signalled by a person desiring to leave the car, or to get upon it. In the case before us the passenger alighted at a regular station of the company in the middle of the block where all cars were bound to stop, and where a number of persons were leaving the cars and going to the station, as was the plaintiff, and others were going from the station to the cars for the purpose of entering therein. It is evident that the duties of an .interurban railway toward passengers alighting in the middle of a block in a congested street at one of its permanent stations is quite different from its duty to a passenger alighting at an ordinary street crossing.
In volume 4, Ruling Case Law, p. 1253, it is said:
“When a railroad company stops a passenger train where other tracks are between it and the depot platform, the rights of people having business with such train and the duty of the company toward them are the same as if all the intervening space between the depot and the train constituted the platform, and it is negligence on its part to allow another train to run between the passenger train and the station at which the passengers are being taken on or discharged. * * *
“In the case of the street car companies having regular stations at which the cars are in the habit of stopping for persons to get on and off, the same rule applies as in the case of railroad trains, and a passenger, while not absolved from the duty of exercising care for his safety, has the right to assume that tracks intervening between the place where he alights and the station will be kept safe while he is crossing, and the mere fact that he fails to look and listen before attempting to cross such tracks does not, as a matter of law, constitute contributory negligence.”
We think this a correct statement of the law.
The ease is reversed and a new trial ordered, with costs to the plaintiff.
Bird, C. J., and Ostrander, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Brooke, J.
Plaintiff, special administrator of the estate of John J. Bailey, deceased, was by order of the court permitted to intervene in and on behalf of all persons interested in said estate for the purpose of reviewing in this court the decree rendered in the court below. It appears that plaintiff’s decedent, John J. Bailey, on July 8, 1917, filed a bill for divorce in the circuit court for the county of Ingham against his wife, Dorothy M. Bailey, defendant. On the 9th day of July defendant filed an answer and cross-bill. In her cross-bill she charged plaintiff with extreme cruelty and nonsupport and prayed for a decree of divorce and for alimony. This cross-bill was answered by John J. Bailey and the case came on to be heard on the 10th day of October, 1917. Two days were consumed in the hearing and on the 12th of October, 1917, the learned circuit judge announced orally that he was convinced: “Plaintiff’s bill of divorce should not be granted.” He further announced that:
“Dorothy M. Bailey is entitled to a divorce on the grounds as is shown by the proofs in this case, of extreme cruelty, of norisupport and desertion. * * *
“The older children have shown a splendid loyalty to their mother, and the decree of divorce will be signed. The only question that remains is as to the property. * * *
“I will listen to counsel for a few minutes in regard to what they consider a fair distribution of this property. I want to be fair to Mr. Bailey and to Mrs. Bailey. Perhaps you have thought more about the subject than I have, and perhaps you are better able to make a decision than I am, and I will listen to you.”
There the matter rested from October 12, 1917, to February 9, 1918, when, on application of counsel for defendant, a decree was entered in which is recited the oral opinion of the judge as announced on October 12, 1917; the facts found by the court under the proofs offered; a recitation of the property owned by John J. Bailey and an award of the-major portion thereof to the defendant. In the decree after the recitations appears the following:
“Now, it is hereby ordered, adjudged and decreed that in lieu of payment of alimony by plaintiff to said defendant, that there be set off to her in her own right in fee simple the following described real estate, to wit:”
Then follows a description of the property and a further order for costs. The decree is silent as to any divorce between the parties and is not filed or entered nunc pro tunc as of the 12th of October, 1917, but was apparently filed and entered as of the day it bears date, February 9, 1918. In the meantime and on the 26th day of October, 1917, John J. Bailey, plaintiff in the divorce case, died, leaving a last will and testament which was subsequently duly admitted to probate in the probate court for the county of Livingston and an appeal from such allowance was perfected to the circuit court.
It is elementary that the jurisdiction of the circuit courts in chancery in this State in divorce proceedings is entirely statutory. Maslen v. Anderson, 163 Mich. 477, and cases cited. In Judson v. Judson, 171 Mich. 185, this court said:
“In the absence of appropriate legislation, alimony cannot be allowed, independent of divorce proceedings and existence of the marriage relation, in courts of equity,” citing cases.
The statute, 3 Comp. Laws 1915, § 11436, provides:
“When any decree of divorce is hereafter granted in any of the courts of this State, it shall be the duty of the court granting such decree to include in it a provision in lieu of the dower of the wife in the property of the husband and such provisions shall be in full satisfaction of all claims that the wife may have in any property that the husband owns or may hereafter own or in which he may have any interest.”
It is to be noted that the decree under consideration here is silent as to a divorce between the parties and it must of necessity have been so since the marriage relations existing between the parties had theretofore been ended by the death of John J. Bailey, the husband. Courts do not speak through their opinions but through their judgments and decrees (15 R. C. L. p. 570, § 31), therefore the announcement of the learned circuit judge at the conclusion of the testimony may be disregarded. In the case of Wilson v. Wilson, 73 Mich. 620, a decree of divorce was granted after the death of complainant (but by order of the court relating to a period prior to his death), in which alimony was allowed to defendant. Mr. Justice Campbell there said:
“The bill and answer below were simple divorce proceedings, aimed at no relief not dependent on divorce. In such a case there can be no decree after death has separated the parties. The doctrine of relation does not apply in such a case. There must be living parties, or there can be no relationship to be divorced. Zoellner v. Zoellner, 46 Mich. 511 (9 N. W. 831). It follows that, as the parties were still husband and wife when the husband died, she has all the rights and conditions of any other widow. It is fallacious to claim that a decree apparently rendered during complainant’s life, and therefore apparently valid, cannot be appealed from. An appeal lies from every decree in chancery which purports to be final, and its illegality is a conclusive reason why it should be reversed, as this decree must be.”
The law as laid down in this case has so far as we are advised never been questioned in this State, nor does there appear to be any good reason why it should be. The defendant, Dorothy M. Bailey, was on the day the decree was entered the widow of John J. Bailey and' as such widow was entitled to her interest in her husband’s estate.
The decree is reversed, with costs to appellant.
Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Per Curiam.
In this unemployment benefits case, the employer, Stephen’s Nu-Ad, Inc., appeals from a circuit court’s affirmance of a decision by the Michigan Employment Security Board of Review finding the claimant-employee, Howard Green, not disqualified for unemployment benefits under the voluntary-quit provision of the Michigan Employment Security Act, MCL 421.1 et seq.; MSA 17.501 et seq. We affirm in part and reverse in part.
The record reveals that claimant worked at Stephen’s Nu-Ad for almost two years and that on February 3, 1986, he informed the owner of the company, Louis Stephen, that in two weeks he intended to quit his job. At that time, claimant had plans to start working for another employer after the expiration of the two-week notice period. In the afternoon of February 3, 1986, perhaps two hours after claimant had informed Louis Stephen of his intention to quit his job in two weeks, claimant was informed by his supervisor, William Lane, that his employment with Stephen’s Nu-Ad was being immediately terminated. Unfortunately, claimant’s plans to start working for another employer were never realized; instead, claimant applied for unemployment benefits. The Michigan Employment Security Commission, in a determination and redetermination, denied claimant benefits on the basis of his having voluntarily left his employment with Stephen’s Nu-Ad without good cause attributable to the employer. MCL 421.29(l)(a); MSA 17.531(l)(a). A referee, after conducting a hearing on April 3, 1986, affirmed the commission’s redetermination. After the board of review reversed the referee, the employer appealed to the Wayne Circuit Court, which, "on February 10, 1987, issued an opinion and order affirming the board of review. The instant appeal ensued.
This Court may review questions of law or fact on appeal from the board of review but will not disturb a decision of the board unless it is contrary to law or unsupported by competent, material and substantial evidence on the record as a whole. Const 1963, art 6, § 28; MCL 421.38; MSA 17.540; Leesberg v Smith-Jamieson, Inc, 149 Mich App 463, 465; 386 NW2d 218 (1986). In this case, the board of review concluded that claimant was not disqualified for benefits under § 29(l)(a) of the Michigan Employment Security Act, which provides: "An individual shall be disqualified for benefits [where] ... the individual . . . [l]eft work voluntarily without good cause attributable to the employer or employing unit.”
The facts in this case, as well as the remedial nature of the Michigan Employment Security Act, lead us to conclude that, under the limited standard of appellate review applicable, we should not disturb the decision of the board of review. The facts disclose that on February 3, 1986, claimant informed his employer of his intent to voluntarily quit his job in two weeks and that, prior to the lapse of that two-week period, his employer discharged him. Claimant’s notice of intent to quit his job in two weeks did not immediately alter his status as an employee of Stephen’s Nu-Ad. But for the discharge effected by his employer, claimant would have continued working until the end of the two-week period. Apparently, claimant was under no obligation to give his employer any notice of his intent to quit; such notice was provided, it seems, purely for reasons of courtesy and consideration for the employer. In return for his courtesy, claimant was fired.
A panel of this Court, commenting on the voluntary-quit provision in the Michigan Employment Security Act, has observed: "The Legislature’s use of the term 'voluntary’ is clear and requires application.” Leeseberg, supra, p 466. We agree. In the present case, we would render perverse the meaning of the word "voluntary” by concluding that claimant voluntarily left his job. In no way was claimant’s separation from his employment on February 3, 1986, the result of an unrestrained, volitional, freely chosen, or wilfull action on the part of claimant. The notice of an intention to permanently leave work in two weeks is not notice of an intention to permanently leave work immediately. If an employer so chooses to treat the former identically with the latter — which, of course, is an employer’s prerogative — this does not transmute, for purposes of the Michigan Employment Security Act or otherwise, the employee’s premature separation from his or her job into a voluntary action on the part of the employee. After being fired, the only choice left to claimant regarding whether to stay at, or to leave,- his employment was of the Hobson’s variety.
Our decision to affirm the circuit court’s affirmance of the board of review’s order in this case is further buttressed by the remedial nature of the Michigan Employment Security Act. The act is intended to benefit those who are involuntarily unemployed, MCL 421.2; MSA 17.502, MCL 421.8(2); MSA 17.508(2), Dow Chemical Co v Curtis, 158 Mich App 347, 357; 404 NW2d 737 (1987), lv gtd 428 Mich 911 (1987); Degi v Varano Glass Co, 158 Mich App 695, 699; 405 NW2d 129 (1987), and must be given a liberal construction to afford qualification and a strict construction to effect disqualification. Anderson v Top O’Michigan Rural Electric Co, 118 Mich App 275, 279; 324 NW2d 603 (1982), lv den 417 Mich 958 (1983). Our decision is also buttressed by the repeated rejection by courts of this state of the doctrine of "constructive voluntary leaving” in cases in which a claimant is actually discharged by an employer. Copper Range Co v Unemployment Compensation Comm, 320 Mich 460, 469-470; 31 NW2d 692 (1948); Employment Security Comm v Children’s Hospital of Michigan, 139 Mich App 525, 530-531; 362 NW2d 819 (1984); Ackerberg v Grant Community Hospital, 138 Mich App 295, 299-300; 360 NW2d 599 (1984).
On appeal, the employer and the Michigan Employment Security Commission argue in the alternative that claimant is entitled to unemployment benefits only for the period between February 3 and February 15, 1986, because claimant announced his intention to quit his job on the latter date. In light of the specific facts and circumstances presented in this case, we agree.
At the referee hearing conducted on April 3, 1986, claimant testified that on February 3, 1986, when he spoke to Louis Stephen, the owner of Stephen’s Nu-Ad, he gave Stephen a two-week notice and "told him [that on] February 15th I would be gone.” He also acknowledged that on February 3, 1986, after informing Louis Stephen of his intent to quit working in two weeks, Stephen asked him to continue in his employment. Claimant, pertinacious and unequivocal in his aim, declined Stephen’s offer of continued employment. Indeed, claimant remained steadfast in his resolve after his discharge on February 3, 1986, after the expiration of the ensuing two weeks, and even after the Michigan Employment Security Commission determined him to be disqualified for benefits. On February 24, 1986, claimant was personally served with a copy of the commission’s unfavorable determination, and on that same date he filed a request for redetermination. In the portion of claimant’s request for redetermination entitled "Claimant’s Statement,” claimant, in his own handwriting, declared, "I would not return back to work with Nu-Ad Inc. because the wages are too low.” Under other circumstances, where an intent to quit is not so unambiguously, incontestably and continuously asserted by the claimant — i.e., where we can only speculate as to whether the claimant in fact intended to leave work on a certain date subsequent to having been terminated — it may be appropriate not to limit eligibility under § 29(l)(a) for a specified period. See Ackerberg v Grant Community Hospital, supra, pp 300-301. In this case, however, claimant’s own persistent and irrefragable declarations render unnecessary any speculation on this issue. Without doubt, claimant tendered his resignation, to be effective on February 15, 1986; that resignation was accepted by the employer; and claimant persisted, even after February 15, 1986, to abide by his decision to separate himself from employment with Stephen’s Nu-Ad. Just as we could not distort the meaning of the word "voluntary” in order to characterize claimant’s discharge on February 3, 1986, as an action voluntarily taken by claimant, we cannot distort that meaning to characterize his separation from employment after February 15, 1986, as anything but voluntary on his part.
The circuit court’s affirmance .of the board of review is affirmed as applied to the period between February 3 and February 15, 1986, and reversed as applied to the period after February 15, 1986. No costs._
At the referee hearing, claimant stated that he told Louis Stephen that he intended to quit his job in two weeks. Claimant’s supervisor, William Lane, testified that he had "heard that [claimant] was leaving the company” and that he assumed claimant intended his notice of termination to be effective immediately. According to Lane, claimant had merely offered to stay on the job another two weeks to accommodate, if necessary, the needs of the company. Since the company had made arrangements to replace claimant with another individual, Lane stated, he informed claimant that the company "was not going to take him up on the two weeks.” Louis Stephen was not present at the referee hearing to testify regarding his conversation with claimant on February 3, 1986.
The referee found: "After giving, [a two-week] notice, the Claimant was advised that he did not need to work out his notice period and was separated as of the same date.” Since it is not a function of a reviewing court to resolve anew conflicts in the evidence or to redetermine the credibility of the witnesses, we accept the referee’s finding of fact on this issue. Butcher v Dep’t of National Resources, 158 Mich App 704, 707; 405 NW2d 149 (1987); Taylor v United States Postal Service, 163 Mich App 77, 83; 413 NW2d 736 (1987).
The referee relied on the case of Beverly Webb, B73-3236-42982, for the proposition that an employee who is discharged for giving notice of an intent to leave work at a future date must be considered as having voluntarily left his or her employment since the discharge in such a situation is brought about as a direct result of the employee’s own action. In its appellate brief in support of the employer’s position on this issue, the Michigan Employment Security Commission cites a line of Pennsylvania cases for this same proposition. See, e.g., Lovrekovic v Unemployment Compensation Board of Review; 36 Pa Comm 364; 387 A2d 685 (1978).
The board of review relied on the case of Miller (Visiting Nurse Association), 1978 BR 54236 (B76-17052), for the proposition that, "when an employee is discharged for giving notice of an intent to leave his work at a future date, his leaving is involuntary.”
This same standard of review for decisions from the Michigan Employment Security Board of Review is applicable in instances of review at the circuit court level. Dow Chemical Co v Curtis, 158 Mich App 347, 352; 404 NW2d 737 (1987), Iv gtd 428 Mich 911 (1987).
If we were to adopt the employer’s reasoning on this issue, we would be, we fear, as solipsistic as Humpty Dumpty, who declared, "When I use a word ... it means just what I choose it to mean— neither more nor less.” Lewis Carroll: Through the Looking Glass, Chapter vi.
" 'The question is,’ said Alice, 'whether you can make words mean so many different things.’
" 'The question is,’ said Humpty Dumpty, 'which is to be master— that’s all.’ ” Op cit, n 5. | [
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Per Curiam.
Defendant William C. Howell pled guilty to breaking and entering an unoccupied building with intent to commit larceny, MCL 750.110; MSA 28.305. Defendant was sentenced to from 72 to 120 months in prison. He appeals his sentence as of right. We affirm.
Defendant contends (1) that the trial court abused its discretion because the sentence imposed far exceeds the highest minimum recommended by the Michigan sentencing guidelines and (2) that he was denied the right to meaningful allocution at sentencing because the trial court’s interruptions caused a misinterpretation of his remarks. Defendant seeks resentencing before a different judge.
With regard to the period of incarceration, defendant urges this Court to implement a more effective appellate review of sentencing that would move beyond that which is the foundation for People v Coles, 417 Mich 523; 339 NW2d 440 (1983), so as to formulate standards which would not allow the trial court to exercise unfettered discretion in departing from the sentencing guidelines.
Defendant advocates that the Coles standard of "shock the conscience of the appellate court” is an imprecise measure for reviewing the propriety of a sentence and that there is need for a more definite standard for determining which sentences violate the principles underlying Coles. Defendant argues that this Court’s review should be the same as determinate or guidelines sentencing schemes in other states, i.e., Minnesota and Florida, which require reasons for and impose limits to departure from the presumptive range, thereby allowing a more precise and rigorous review of the trial court’s discretion when departing from the guidelines. Defendant’s concern is that the Michigan guidelines scheme is essentially ineffective as an answer to disparity in sentencing because it allows uncontrolled discretion through departure and, thus, defeats the purpose of the guidelines.
At the very least, contends defendant, this Court should adopt the Minnesota standard which holds it improper for a sentencing court to use as a basis for departure the same facts relied upon in determining the presumptive sentencing in the guidelines. Under this standard, an upward departure would be appropriate only when the court identifies unusual and serious factors that have not been taken into account by the guidelines.
Accordingly, defendant claims that his sentence in the instant case was an abuse of discretion because the reasons for departure were inadequate to justify a sentence three times the recommended sentence range and the departure was based on factors already considered in the guidelines, thereby amounting to "double scoring.”
Prior to Coles, the law in Michigan was that the appellate courts had no control over punishment and, since the statute and case law gave discretionary power to the trial court, there would be no review of sentences. See Cummins v People, 42 Mich 142, 144; 3 NW 305 (1879). In Coles, supra, p 540, our Supreme Court expanded the role of appellate courts in reviewing sentences. However, Coles did not attempt to limit the Legislature’s ability to set the method of sentencing, but rather provided for a review of the trial court’s discretion when imposing a sentence.
The Court recognized that sentences should not be exactly alike:
We are not prepared at present to decide whether disparity in sentencing may result from the different priorities of the community in which a defendant committed an offense. However, we do agree that the disparity in sentences which results from the consideration such as the race or economic status of a defendant or the personal bias and attitude of an individual sentencing judge is unjustified and impermissible. Unjustified disparities promote disrespect for the criminal justice system and resentment among prisoners, thus impairing their morale and motivation for rehabilitation. [Coles, supra, p 546.]
Thus, to aid the appellate review process, a trial court is required to articulate its reasons for sentencing a defendant. This allows a basis for a rational review of the sentence. The Coles Court also stated:
We next hold that an appellate court shall, upon a defendant’s request in an appeal by right or in an appeal by leave granted, review a trial court’s exercise of discretion in sentencing, but may afford relief to the defendant only if the appellate court finds that the trial court, in imposing the sentence, abused its discretion to the extent that it shocks the conscience of the appellate court. [Id., p 550.]
Coles did not negate all prior sentencing criteria; it merely reaffirmed the proper standard for the trial court to consider as set forth in prior cases, e.g., People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972). Our Supreme Court intended that the sentencing of a wrongdoer accomplish at least the goals articulated in Snow, supra: disciplining the wrongdoer, protecting society, fostering the reformation of the offender, and deterring others from committing like offenses. Thus, in articulating its reasons for sentencing a defendant, a trial court must balance the interest of the community and the interest of the defendant in the particular circumstances. Coles set the parameters and direction for review of a sentence:
The excessively severe sentence is one which far exceeds what all reasonable persons would perceive to be an appropriate social response to the crime committed and the criminal who committed it. [Coles, supra, pp 542-543.]
The Court refined this more specifically to say that the appellate court may review the trial court’s exercise of discretion but may afford relief only if the trial court abused its discretion to the extent that it shocks the conscience of the appellate court.
The Coles concepts are not intended to restrain discretion in sentencing — such discretion should retain its time-honored position of eminence. Coles should be viewed as recognizing the need for review of sentencing but, in allowing review, fashioning a standard that was not meant to intrude on or circumscribe the firmly entrenched concept that punishment be left to the trial court’s discretion. Such discretion is intricately intertwined with the principles underlying the individualizing of sentences embodied in Michigan case law. See, e.g., People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973). The use of that discretion envisions only
that the trial court state on the record which criteria were considered and what reasons support the court’s decision regarding the length and nature of punishment imposed. [Coles, supra, p 550.]
As a further guide to assist the trial court and to facilitate appellate review, our Supreme Court ordered the use of the guidelines. The Guidelines Statement of Purpose provides, in pertinent part:
The sentencing guidelines in this manual were developed by an advisory committee to reflect past sentencing practices of the state’s trial judges. It is anticipated that there will be disagreements with the conclusions of the advisory committee. In such instances, the judges may wish to depart from the sentencing guideline ranges. Such departures are encouraged and, to improve the sentencing guidelines, when this occurs the judge is asked to specify the reasons for the departure. [Emphasis added.]
Thus, departure is encouraged as long as the trial court, in using its overall discretion, explains why justice requires a sentence outside the guidelines sentence range. See, e.g., People v Ridley, 142 Mich App 129; 369 NW2d 274 (1985); People v Kenneth Johnson, 144 Mich App 125; 373 NW2d 263 (1985), lv den 424 Mich 854 (1985).
Unlike the guidelines and presumptive range sentencing schemes in the other states that defendant asks this Court to follow, Michigan’s guidelines, consistent with the Michigan tradition of latitude in the discretion exercised by the trial court to determine punishment, were promulgated on a different structure. Unless and until the Legislature or our Supreme Court removes this authority of trial court discretion in every case and every crime by mandating the sentence to be imposed, defendant’s proffered alteration to the present sentencing structure would be an unwarranted encroachment that would seriously circumscribe the trial court’s discretion in sentencing. See People v Diamond, 144 Mich App 787; 376 NW2d 192 (1985), lv den 424 Mich 894 (1986); People v Brown, 150 Mich App 168; 388 NW2d 249 (1986).
Thus, we are not persuaded that the facts and circumstances of the instant case merit a change in or a different application of the present standard of review.
An appellate court can, as in the instant case, look at the trial court’s determination, the reasons used to sentence the defendant, the crime that was committed and, the position of the defendant and, under these circumstances, make a determination as to whether, in fact, it is a sentence that does or does not shock the conscience. An appellate court can also make a determination as to whether a particular sentence is one that is unreasonable under the circumstances and one which people would or would not expect because of the type of offense and the offender. In looking at all of the criteria and the rationale established through Coles, it is quite obvious that there is a reviewable standard.
Moreover, the trial court did not abuse its discretion in imposing a sentence three times that recommended by the guidelines range in this case. The reasons articulated by the trial court were consistent with Coles and do not demonstrate an abuse of discretion that amounts to lack of reason or defiance of judgment.
The following comments from the record well document compliance with the articulation of reasons requirement:
All right. The Court has reviewed the presentence investigation report. I do note that the defendant broke into a gas station and stole numerous items of cigarettes and things of that nature that were to be sold, and then he stole from the Center Road Bar, 655 [sic] in cash. I think, to me, it’s the defendant’s record that is the most disturbing, both the very extensive juvenile record and— and he also has an extensive felony record, and he’s only 22 years old. And he’s committed b and e’s before; as a matter of fact, he was on parole for the same kind of conduct.
Well, I’m gonna help you with this sentence learn that lesson. Because it’s gonna be, in your mind, knowing that you commit crimes, then you’re gonna possibly have to do every bit of time that the statute allows because of the record and the trail that you’ve left behind you; and because of the activity that you have with respect to the particular offense. I think that in order to protect society from your decisionmaking, your poor adjustment on parole and probation, and upon your emotional problems that you’ve had in the past, and your substance abuse problem; and the fact that jail sentences haven’t worked, and prison sentences haven’t worked, and parole hasn’t worked, I think that the only way to reach you with some certainty is to let you know that you’re gonna pay the full consequences of your actions.
All right, well, in view of the factors that I’ve indicated, I believe I’m gonna vary from the guidelines. The guideline minimum is two years, 6 to 24 months. I believe, because his record is worse than that reflected in the guidelines — in other words, there is not enough points to reflect that his juvenile record and his adult record. Secondly, I think that the status, one point isn’t enough that’s given in the guidelines. The fact that he was on parole for the same exact type of offense as the one that he committed at this time, I think he deserves more than just the one point. Thirdly, I think that he has had other prior parole problems which are indicated in the report and which are not given points for. Fourthly, there are no points for his mental, emotional problems in the past and his intense substance abuse problems that have not been able to been dealt with up to this point, and are not given any points in the guidelines.
As previously discussed, a trial court may deviate from the guidelines as long as it articulates the reasons for departure. People v Terry James, 142 Mich App 19, 21; 368 NW2d 892 (1985). When a court exercises its discretion and deviates from the guidelines, the exercise of that discretion is reviewed under the Coles standard of whether the sentence imposed shocks the judicial conscience. People v Kenneth Johnson, supra; People v Glover, 154 Mich App 22, 45; 397 NW2d 199 (1986); People v McLeod, 143 Mich App 262, 264; 372 NW2d 526 (1985). Moreover, it is not error for the trial court to consider factors already considered by the guidelines. People v Ridley, supra, and People v Kenneth Johnson, supra, p 137.
Here, the trial court properly articulated its reasons for departing from the guidelines on the record and considered appropriate sentencing criteria. People v Smith, 152 Mich App 756, 765; 394 NW2d 94 (1986), lv den 426 Mich 877 (1986). Having considered the Coles standard and the guidelines, we conclude that defendant’s sentence did not constitute an abuse of discretion.
Defendant also contends that he was denied the right of meaningful allocution because the trial court’s interruptions at sentencing allegedly caused the court to misinterpret defendant’s remarks and prevented defendant from fully explaining his statements. This, says defendant, resulted in the court’s having the mistaken impression that he had an unrepentant attitude, suggesting that a harsher sentence was the result of his exercise of the right of allocution. We find no record support for this claim.
Defendant correctly states the well-settled historic right of allocution embodied in MCR 6.101(G)(2) and case law, see, e.g., People v Berry, 409 Mich 774; 298 NW2d 434 (1980), and People v Malkowski, 385 Mich 244; 188 NW2d 559 (1971). However, the sentencing record shows that defendant was given more than a reasonable opportunity for personal allocution. On two occasions, defendant was specifically allowed the opportunity to advise the court of circumstances he wanted the court to consider in imposing sentence and, on several other occasions, defendant was allowed to interrupt the sentencing procedure with additional comments.
Although the record indicates that defendant was not very articulate and had a problem phrasing some concerns, the overall record does not support his contention that he was not permitted to fully explain his concerns relevant to sentencing. For example, defendant made the remark that the situation of a prior conviction for breaking and entering where he was found in the building passed out from drinking "was a real joke.” The court may have interpreted this to mean that defendant’s remark was about the conviction and sentence: "The 18 to — months to 10 years didn’t even affect you; as you said, it was a joke to you. . . .” Defendant then explained that what he meant was that, on reflection, the behavior of being drunk and committing the crime where he passed out was a joke. Thus, defendant had the opportunity to explain his concerns, and the record does not support defendant’s claim that the court relied upon a misinterpretation of his statements as a basis for the sentence.
Thereafter, the court sentenced defendant consistent with criteria peculiar to the history and status of this individual. Defendant has no right to have the trial court impose sentence according to his directions.
Since this Court is without reason to remand for resentencing, defendant’s request for resentencing before a different judge need not be addressed.
Affirmed.
Moreover, defendant’s argument for a standard of "more rigorous review” of a guidelines departure seems, in its practical application, to apply only to upper departure from the recommended range. By implication, would the same rigorous review apply to downward departure and, if so, would a prosecutor or victim have the right to appellate review?
What becomes readily obvious in defendant’s argument for a quantitative standard to test for an abuse of discretion is the impossibility of structuring or fashioning a sentence formula that would incorporate and consolidate the myriad factors that enter into a sentencing decision. | [
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Wahls, P.J.
After a bench trial in the Wayne Circuit Court conducted on March 17 and 18, 1986, the court, on May 9, 1986, entered a judgment of no cause of action in this no-fault insurance work loss case. On June 27, 1986, plaintiff’s motion for new trial or judgment notwithstanding the verdict was denied. We affirm.
The record reveals that plaintiff, Mesroh Kochoian, filed suit on November 16, 1982, against defendant, Allstate Insurance Company, for payment of no-fault insurance work loss benefits as provided under MCL 500.3107(b); MSA 24.13107(b). At trial, plaintiff testified and the deposition testimony of four expert medical witnesses was admitted into evidence.
Plaintiff, a truck driver for Signal Delivery for nearly thirty years, testified that on March 2, 1982, while hauling a load of freight from Livonia, Michigan, to Columbus, Ohio, over highways which were covered with ice, his truck jackknifed and rolled down a twenty-foot embankment. As a result, he sustained broken bones in his right arm and left ankle, injury to his left knee, and pain in his left shoulder, left arm, neck and back. He was treated at a hospital and was released the following day. Plaintiff stated that prior to the accident, in 1977, he had been diagnosed as having high blood pressure, and he acknowledged that prior to the accident he had experienced pain in his left shoulder and "some mild angina.”
After the accident, plaintiff’s employer sent plaintiff to the Detroit Industrial Clinic, where he was treated approximately twice a week until May 27, 1982. On that day, he received heat and elec tronic massage therapy and was given an injection of cortisone in his left shoulder. That afternoon, plaintiff felt an unusual pressure in his chest, and at ábout 9:00 p.m. he went to Oakwood Hospital, where he was diagnosed as having suffered a heart attack. On cross-examination, plaintiff conceded that in 1970 he had had back problems which caused him to miss work and allowed him to collect workers’ compensation benefits and that his angina started in 1980. Moreover, he acknowledged that he had smoked two packs of cigarettes per day, quitting only upon his doctor’s orders, that in 1982 he was approximately sixty pounds overweight, that both of his parents died of causes related to heart disease, and that prior to the accident he drank liquor, sometimes as much as a fifth of a gallon in one day.
The deposition testimony of four medical doctors was admitted into evidence. First, Donald Newman, M.D., a physician specializing in family medicine and disability evaluation, testified for plaintiff. Dr. Newman said that on April 7, 1984, he examined plaintiff and determined that he suffered some limitation in the range of motion of his neck, left shoulder, left triceps muscle and back, and that plaintiff’s abnormal heart sounds and electrocardiogram results indicated that he had sustained damage to his heart as may have occurred from a heart attack or myocardial infarction. Moreover, x-rays revealed that abnormalities in plaintiff’s neck showed degenerative disc disease or osteoarthritis, also known as wear-and-tear arthritis, causing the nerve going down plaintiff’s left arm to be pinched. The extensive arthritis in plaintiff’s neck, in Dr. Newman’s opinion, had not been caused by the accident, but rather was a preexisting condition which was aggravated by the accident. Dr. Newman also opined that plaintiff’s heart attack was likely the result of his family history of heart problems, high blood pressure, smoking, and stress associated with the physical pain and the emotional upset from being unemployed after the accident.
Norman E. Clark, M.D., a physician specializing in internal medicine with a concentration in cardiology, testified for defendant. Dr. Clark said that on October 10, 1983, he examined plaintiff and evaluated his condition on the basis of his family history, physical condition and electrocardiogram results, concluding that plaintiff’s heart attack was unrelated to plaintiff’s accident and instead was caused by his family history, cigarette smoking, being overweight, and age (sixty-one at the time of the accident). Dr. Clark asserted that the kind of stress accompanying pain from physical injury or arthritis, or from emotional upset caused by worries over unemployment, would not play a part in the causation of a heart attack, and expressed the view that plaintiffs accident would have been related to his heart attack only if the attack had been suffered "right at the time of the . . . accident or within say an hour of the . . . accident when [Mr. Kochoian] was in a lot of pain — under considerable stress from the accident.”
James Horvath, M.D., an orthopedic surgeon who examined plaintiff in August, 1983, testified for defendant and concluded that, in general, plaintiff had a normal range of motion in his neck, back, and left shoulder. Finally, Adel Elmagrabi, M.D., a rheumatologist, testified for defendant and also concluded that, although plaintiff complained of discomfort at the extremes of range of motion testing, he nevertheless was able to perform the tests within the normal ranges.
On appeal, plaintiff first argues that the trial court erred in requiring him to show that, in order to prove entitlement to no-fault work-loss benefits, his May 27, 1982, heart attack was "directly traceable” to the March 2, 1982, truck accident. Plaintiff asserts that he should have been required to show by a preponderance of the evidence only that his injury "arose out of’ the accident.
Work loss benefits are included in the personal protection benefits payable under Michigan no-fault law. MCL 500.3107(b); MSA 24.13107(b). However, a no-fault insurer is liable to pay personal protection benefits "for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.” MCL 500.3105(1); MSA 24.13105(1). (Emphasis added.) The trial court in this case, in rendering its opinion from the bench, did not, however, examine whether plaintiff’s injury arouse out of his use of a motor vehicle at the time of his March 2, 1982, accident, but rather examined "whether or not plaintiff has proven by a preponderance of the evidence that an accidental bodily injury [was] directly traceable to [the] motor vehicle accident,” and concluded that "the Court does not find the plaintiff has shown by a preponderance of the evidence that the heart attack and the permanent disability because of the heart attack is [sic] directly traceable to [the] accidental bodily injuries arising from the motor vehicle accident on March 2nd, 1982.” (Emphasis added.)
Apparently, the trial court gleaned this "directly traceable” language from cases concerning, or commenting on, coverage for injuries arising out of the use of a parked motor vehicle. See, e.g, Ritchie v Federal Ins Co, 132 Mich App 372; 347 NW2d 478 (1984), McKim v Home Ins Co, 133 Mich App 694; 349 NW2d 533 (1984), lv den 422 Mich 853 (1985), and Mollitor v Associated Truck Lines, 140 Mich App 431; 364 NW2d 344 (1985). Under MCL 500.3106(l)(b); MSA 24.13106(l)(b), it is provided that accidental bodily injury does not arise out of the use of a parked vehicle unless, among other exceptions, "the injury was a direct result of physical contact with the equipment permanently mounted on the vehicle, while the equipment was being operated, or used . . .
In the present case, plaintiff is not claiming entitlement to personal injury benefits under the parked-vehicle provision and, therefore, need not specifically demonstrate that his heart attack was the "direct result” or, as the trial court stated, was "directly traceable,” to the use of his truck. Instead, he is required to demonstrate only that his heart attack constituted an injury "arising out of’ the use of his truck. We recognize that the terms represent differences in degree and not in kind: i.e., while they both require a measure of causation between the injury suffered and the use of a motor vehicle as a motor vehicle, those measures are unequal. The word "directly” in the phrase directly traceable seems to demand a higher degree of causation than does the term arising out of.
We detect no error requiring reversal in this case, despite the trial court’s reliance on the higher degree of causation, however, because we are convinced — after an assiduous perusal of the record — that even under the "arising out of’ standard plaintiff failed to prove his case by a preponderance of the evidence. MCR 2.613(A). Indeed, our review of the evidence convinces us that the trial court was correct in concluding that plaintiff’s heart attack, far from being caused by his accident, instead constituted "an independent disabling injury that prevented him from working.” Thus, since plaintiff would be entitled to work-loss benefits to compensate only for that amount he would have received had the accident-related injury not occurred, MCL 500.3107(b); MSA 24.13107(b), Luberda v Farm Bureau General Ins Co, 163 Mich App 457, 460-461; 415 NW2d 245 (1987), the trial court reached the right result in declaring plaintiff excluded from work-loss coverage.
We reach this conclusion while well aware that the term "arising out of’ does not require a showing of proximate causation, but rather something more than a showing that the causal connection between the injury and the use of the motor vehicle was merely incidental, fortuitous, or "but for.” Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986); Krause v Citizens Ins Co of America, 156 Mich App 438, 440; 402 NW2d 37 (1986); see also Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307, 313-314; 282 NW2d 301 (1979), lv den 407 Mich 895 (1979). In Thornton, supra, pp 659-660, the Supreme Court stated:
In drafting MCL 500.3105(1); MSA 24.13105(1), the Legislature limited no-fault pip benefits to injuries arising out of the "use of a motor vehicle as a motor vehicle.” In our view, this language shows that the Legislature was aware of the causation dispute and chose to provide coverage only where the causal connection between the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or "but for.” The involvement of the car in the injury should be "directly related to its character as a motor vehicle.” . . . Therefore, the first consideration under MCL 500.3105(1); MSA 24.13105(1), must be the relationship between the injury and the vehicular use of a motor vehicle. Without a relation that is more than "but for,” incidental, or fortuitous, there can be no recovery of pip benefits. [Emphasis in original.]
Whether an injury may be characterized as "arising out of’ the use of a motor vehicle for purposes of no-fault personal protection benefits, and thus based on a relationship with the use of the motor vehicle which is more than merely incidental, fortuitous or "but for” with that use— or, put differently, is not so remote or attenuated as to preclude a finding that it arose out of the use of a motor vehicle — is a determination which depends on the unique facts of each case and, thus, must be made on a case-by-case basis. In the present case, the facts reveal that plaintiff’s parentage, habits and preexisting physical condition clearly predisposed him to the heart attack which occurred almost three months after his truck accident. He acknowledged, among other things, being overweight, having smoked heavily for thirty years, having parents who died of causes related to heart disease, having suffered from angina since 1980, and having high blood pressure since 1977. In view of these circumstances, we find little indeed to support plaintiff’s assertion that his heart attack was caused by his use of the truck during his March 2, 1982, accident.
Plaintiff also argues on appeal that the trial court erred in concluding that the nearly three-month period between the accident and the heart attack made it less likely that the former caused the latter. In support of this assertion, plaintiff cites Wheeler v Tucker Freight Lines Co, Inc, 125 Mich App 123; 336 NW2d 14 (1983), Iv den 418 Mich 867 (1983). In that case, the plaintiff, a truck driver, was denied personal protection benefits for a claimed accidental back injury which was sustained due not to an accident at any one moment but rather to a series of events spanning a nineteen-year period. This Court affirmed, stating that the Legislature intended to authorize the payment of personal protection insurance benefits under MCL 500.1305(4); MSA 24.13105(4) only "for an injury sustained in a single accident, having a temporal and spatial location.” 125 Mich App 128. We fail to discern the significance of Wheeler to the present case, however, since plaintiff herein— although he was a seasoned truck driver — was, in fact, involved in a single accident at a specific time and in a specific place. Moreover, we have been presented with no persuasive reason — nor do we independently perceive one — for prohibiting a trial court from considering the length of time, in cases such as this, between the accident and the injury when faced with the often complex issue of apprehending the causative link, if any, between two such events. It is only logical to conclude that, as the period of time between accident and injury increases, so likewise may increase the number of possible other causes for the injury sustained. Therefore, the trial court’s consideration of the time period between plaintiff’s accident and his heart attack, such period being almost three months, was not erroneous, particularly in view of the expert medical testimony that plaintiff’s heart attack would probably have been related to his accident only if the attack had been suffered within an hour or so of the accident.
Next, plaintiff contends that the trial court’s denial of his motion for a new trial was improvident because the trial court’s own findings of fact establish that plaintiff’s heart attack on May 27, 1982, was caused by the injection of cortisone he received a few hours before the attack and that the injection was itself administered due to pain he was experiencing in his left shoulder as a result of the March 2, 1982, truck incident.
It is within a trial court’s sound discretion to grant or deny a motion for new trial. Murphy v Muskegon Co, 162 Mich App 609, 615-616; 413 NW2d 73 (1987). Absent an abuse of such discretion, the trial court’s decision cannot be interfered with on appeal. Kailimai v The Firestone Tire & Rubber Co, 398 Mich 230; 247 NW2d 295 (1976). This Court, in reviewing a trial court’s denial of such a motion, affords deference to that denial because the lower court heard the witnesses and thus was uniquely qualified to assess their credibility. May v Parke, Davis & Co, 142 Mich App 404, 410-411; 370 NW2d 371 (1985), lv den 424 Mich 878 (1986). In the present case, we find no abuse of discretion in the trial court’s denial of plaintiff’s motion for new trial.
Initially we note that plaintiff’s assertion on appeal that the trial court found that "Plaintiff’s heart attack was caused by the injection [of cortisone] he received for treatment to orthopedic injuries sustained in the motor vehicle accident” is not exactly an accurate restatement of the court’s finding. Our review of the court’s findings reveals that, after identifying numerous factors as having caused plaintiff’s heart attack, including family history, smoking, and high blood pressure, the court concluded that the injection of cortisone administered to plaintiff shortly before his heart attack — in combination with these other factors— was likely to have precipitated the heart attack. However, even if we accept plaintiff’s mischaracterization of the court’s finding on this issue, we cannot accept his conclusion that he is entitled to no-fáult work loss benefits. For, agreeing with the trial court, we find that plaintiff has not shown that the injection was administered due to pain he was experiencing as a result of the March 2, 1982, truck accident. Plaintiff’s own testimony, and the expert medical testimony that plaintiff suffered from wear-and-tear arthritis, showed that plaintiff’s shoulder condition long predated his truck accident. Thus, we cannot assume that, without the truck accident, plaintiff would not have been given the cortisone injection on May 27, 1982, for his shoulder condition.
Finally, plaintiff contends that the trial court improperly excluded from evidence a written report of one of defendant’s medical experts. At trial, plaintiff’s request for admission into evidence of a report of Dr. Norman E. Clark on the ground that it was not hearsay under MRE 801(d)(2)(C)— admission by a person authorized by a party to make a statement and offered against the party— was denied by the trial court.
A trial court’s decision whether to admit certain evidence is within the court’s discretion and will not be disturbed on appeal absent a showing of abuse of discretion. Guider v Smith, 157 Mich App 92, 103-104; 403 NW2d 505 (1987) (opinion of C. W. Simon, J). In this case, we find no abuse of discretion.
Plaintiff asserts that Dr. Clark was a person authorized by defendant to make a statement regarding plaintiff’s physical health and that the statement which he made — as embodied in a report written on October 11, 1983 — constitutes an admission against defendant. We fail to discern, however, any basis for plaintiff’s declaration that the substance of Dr. Clark’s report, even assuming that Dr. Clark was authorized by defendant to make a statement on this subject, constitutes an admission. In his report, Dr. Clark stated that his examination of plaintiff revealed no indication of plaintiff’s having suffered a heart attack or heart disease. During his direct examination,. Dr. Clark initially restated almost verbatim what his report had indicated about plaintiff based on a physical examination and an electrocardiogram test. If plaintiff had in fact suffered no heart attack, however, his claim of injury due to a heart attack as a basis for work loss benefits would be unsupportable. Thus, no admission occurred. Moreover, we note that Dr. Clark himself effectively rebutted his own report by conceding during cross-examination that, at the time he examined plaintiff, he "didn’t have sufficient information to know [plaintiff] had a heart attack,” that subsequent to his examination of plaintiff, he was shown a portion of plaintiff’s medical records showing that plaintiff had suffered a heart attack of a type that "could leave him with a perfectly normal electrocardiogram later on,” and that he did not dispute the diagnosis of physicians at Oakwood Hospital that plaintiff had in fact suffered a heart attack on May 27, 1982.
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] |
Per Curiam.
Defendants, Edward and Katherine Kosciuszko, doing business as Kozy Bail Bond, appeal as of right from a March 11, 1987, amended judgment ordering them to pay the County of Bay $15,000, plus twelve percent interest. Defendants had been the surety of a criminal defendant, Pearl Lee Evans, who absconded on bond.
On September 6, 1985, Pearl Lee Evans was convicted of two counts of uttering and publishing a false or altered check with intent to defraud, in violation of MCL 750.249; MSA 28.446, one count of conspiracy to commit the offense of uttering and publishing a false or altered check, in violation of MCL 750.157a (a); MSA 28.354(l)(a), and one count of larceny in a store, in violation of MCL 750.360; MSA 28.592.
Evans also was charged with being an habitual offender, in violation of MCL 769.12; MSA 28.1084. Following Evans’ convictions on the underlying offenses, the court adjourned the habitual offender proceeding until September 9, 1985. Despite the convictions, the court continued Evans’ $15,000 surety bond. Evans did not appear before the court on September 9, 1985, and the trial judge forfeited her $15,000 surety bond and issued a bench warrant for her arrest. On September 16, 1985, the court entered an order forfeiting Evans’ bond.
On October 8, 1985, the prosecution filed a motion for entry of judgment against Evans’ surety, defendants Edward and Katherine Kosciuszko, doing business as Kozy Bail Bond, in the amount of $15,000. At a February 10, 1986, motion hearing, counsel for defendants argued that Mr. Kosciuszko believed that he was very close to locating Evans and asked the court to give defendants a sixty-day extension, during which they would continue their efforts to locate Evans. On March 12, 1986, the court entered a judgment against the surety and in favor of the county for $15,000, plus interest, but further ordered that execution of the judgment be stayed for sixty days.
According to an affidavit filed by an employee of Kozy Bail Bond, on May 7, 1986, through the efforts of Kozy Bail Bond, Evans was arrested and jailed in the Saginaw County Jail. Kozy Bail Bond expended $6,500 in locating and detaining Evans. On February 12, 1987, Kozy Bail Bond filed a motion to set aside the bond forfeiture and the judgment against the surety. During a February 23, 1987, motion hearing, the court indicated that defendants should be allowed a $6,500 setoff against the earlier judgment for the amount of money expended in locating and apprehending Evans. On March 11, 1987, the court amended the judgment from which defendants now appeal.
On appeal, defendants argue that, according to MCL 765. 15; MSA 28.902, the trial court erred in failing to set aside the entire forfeiture judgment because Evans, the absconding principal defendant, was apprehended within one year from the date of the forfeiture judgment, because the ends of justice have not been thwarted, and because the county did not expend any costs in apprehending her.
MCL 765.15; MSA 2&902 provides:
(a) If such bond or bail be forfeited, the court shall enter an order upon its records directing, within 45 days of the order, the disposition of such cash, check or security, and the treasurer or clerk, upon presentation of a certified copy of such order, shall make disposition thereof. The court shall set aside the forfeiture and discharge the bail or bond, within 1 year from the time of the forfeiture judgment, in accordance with subsection (b) of this section if the person who forfeited bond or bail is apprehended and the ends of justice have not been thwarted and the county has been repaid its costs for apprehending the person.
(b) If such bond or bail be discharged, the court shall enter an order to that effect with a statement of the amount to be returned to the depositor. Upon presentation of a certified copy of such order, the treasurer or clerk having such cash, check or security shall pay or deliver the same to the person named therein or to his order.
(c) In case such cash, check or security shall be in the hands of the sheriff or any officer, other than such treasurer or clerk, at the time it is declared discharged or forfeited, the officer holding the same shall make such disposition thereof as the court shall order, upon presentation of a certi fied copy of the order of the court. [Emphasis added.]
In People v Tom Johnson, the defendant was charged with the sale of heroin and was released on bond furnished by a surety. The defendant failed to appear for trial and forfeited the $5,000 bond. A judgment for the full amount of the bond was entered against the surety. After the surety paid the full amount of the judgment, the defendant was found to be incarcerated within the state. The surety then brought a motion for remission, which the trial court denied. The surety appealed to this Court, arguing that the word "security” in MCL 765.15; MSA 28.902 encompasses surety bonds and, therefore, the $5,000 it paid should be remitted. This Court affirmed the trial court’s refusal to remit to the surety the $5,000 paid in satisfaction of the judgment entered against it, holding that the term "security” in the statute applies only to such negotiable securities as are permitted to be filed in lieu of bond or bail under MCL 765.12; MSA 28.899.
In People v Pavlak, another panel of this Court disagreed with the Johnson holding, stating:
We find the reasoning of People v Tom Johnson unpersuasive and do not see any basis for the distinction in treatment between deposit bail and a bond posted by a corporate surety. MCL 765.6; MSA 28.893 expressly provides that the amount of bail shall be uniform whether the bond is executed by the accused or by a surety. MCL 765.12; MSA 28.899 allows the deposit of cash, certified checks, etc., in an amount equal to the bond or bail which is required, and "in lieu thereof.” The obvious legislative intent behind these provisions is that both sorts of bail should be treated similarly. Common sense, and fidelity to the Legislature’s apparent intent, would dictate that bonds which are to be treated alike should be treated alike for all purposes, including remission of forfeitures.
Furthermore, it is our opinion that a rule which denies corporate sureties the relief provided for in MCL 765.15 (a) [MSA 28.902(a)] is unsound as a matter of public policy. We have previously noted that "the surety’s function on the bail-bond contract operates to relieve the state from policing court attendance of bailed defendants and thus furthers the state’s interests.” Citizens for Pre-Trial Justice v Goldfarb, 88 Mich App 519, 567; 278 NW2d 653 (1979) (Brennan, J.). GCR 1963, 790.4(b) also recognizes the necessity of a surety bond to secure the appearance of a criminal accused in some circumstances.
It is well recognized in Michigan that a professional bondsman has the power to arrest an absconding client. Citizens for Pre-Trial Justice v Goldfarb, supra, 556. It is likely that a surety would spend large amounts of time and capital in locating and apprehending an absconder. If we now preclude the surety from recouping the amount of the forfeited bond, we will, as a practical matter, take away or at least greatly diminish his incentive to pursue such clients. This result would be detrimental to the court system of this state.
We also find it sound policy to allow a surety to recoup a forfeited bond. The court should preserve a bondsman’s incentive to pursue a client who fails to appear in court.
We have given consideration to the prosecutor’s argument that, to some extent, the interests of justice have not been served when a defendant fails to appear in court as directed. However, in that regard, MCL 765.15; MSA 28.902 gives the trial court discretion to determine when a defendant’s failure to appear thwarts the "ends of justice.” Here, neither the record of the trial court proceeding nor the prosecutor’s argument convince us that justice was thwarted significantly when defendant Evans failed to appear in court until almost nine months after the date scheduled for her habitual offender trial.
Accordingly, we reverse and remand. The forfeiture, less whatever costs the court may find the county to have incurred in apprehending Evans, is hereby set aside.
Reversed and remanded.
On June 3, 1986, Evans was arraigned on the bench warrant. On July 23, 1986, Evans pled guilty on the original supplemental information to being an habitual offender. She also pled guilty to absconding on or forfeiting bond in a felony case, in violation of MCL 750.199a; MSA 28.396(1), and to habitual offender, third offense, in violation of MCL 769.11; MSA 28. 1083. On August 29, 1986, Evans was sentenced to serve not less than fourteen years nor more than forty-five years in prison on each of the uttering and publishing convictions, not less than fourteen years nor more than forty-five years in prison on the conspiracy conviction, and not less than four years nor more than fifteen years in prison on the larceny in a store conviction, the sentences to run concurrently.
72 Mich App 702; 250 NW2d 508 (1976).
99 Mich App 190, 194, 196-197; 297 NW2d 878 (1980). | [
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Per Curiam.
Plaintiff appeals as of right from a jury verdict of no cause of action in his wrongful termination of employment and libel claim against defendants. We affirm.
Between 1976 and 1981, plaintiff worked for the Wayne County Sheriff’s Department in a series of provisional appointments. These appointments were temporary assignments in which plaintiff worked as a guard in various Wayne County jails. Employees who worked in these provisional appointments were not "full” police officers, as they did not carry guns, had no power of arrest, and were not represented by the union. When a provisional appointee’s employment was terminated, he or she did not have to be given a reason.
On January 7, 1981, plaintiff’s superior, Sergeant James Reed, handed plaintiff a termination notice. The notice set forth no reasons for plaintiff’s termination. Two years later, plaintiff found out that his personnel file with defendant contained a memorandum from Reed to Inspector Richard Stover stating that plaintiff was dismissed because of an incident which allegedly occurred on January 2, 1981. According to the memo, on that date Reed asked plaintiff to work overtime. Plaintiff asked Reed if he could make a phone call, and Reed said he could. A few minutes after plaintiff made the call, a woman called, saying she was plaintiffs mother and that there was an emergency at plaintiffs home. The woman requested that plaintiff be allowed to come home. Reed allowed plaintiff to go home. Approximately a half hour later, when Reed walked into a local bar to join co-workers and to cash his paycheck, he saw plaintiff standing at the end of the bar, drinking. The memo stated that the next day plaintiff made disrespectful comments regarding Reed before roll call. Plaintiff also discovered in his personnel file forms from prospective employers to which plaintiff had applied for jobs after his termination. These forms were sent by the employers to Wayne County, requesting information regarding plaintiffs work at Wayne County and the reasons he did not work there anymore. On one of the forms, defendants stated that plaintiff was terminated because he refused to follow orders. This was signed by Stover. Another form stated that he was terminated for "disciplinary reasons.” This form was signed by Loren Pittman, Undersheriff of Wayne County.
When plaintiff found out about these items in his personnel file, he retained an attorney and attempted, to no avail, to persuade defendants to retract the statements they made to plaintiffs prospective employers. Plaintiff denied that the incident regarding overtime occurred. Plaintiff then filed suit against the County of Wayne, Wayne County Sheriff William Lucas, Inspector Stover, and Sgt. Reed. Plaintiffs complaint contained counts of libel and slander, wrongful termi nation, breach of contract, tortious interference with an ongoing advantageous business relationship, and intentional infliction of emotional distress. Following defendants’ motion for a directed verdict, the breach of contract, tortious interference with business relationship, and intentional infliction of emotional distress counts were dismissed, as were all claims against Lucas and Stover. Thus, trial commenced only on the libel and slander and wrongful termination counts, against Sgt. Reed and Wayne County.
At trial, plaintiff denied that the incident regarding overtime occurred. He claimed that he was discharged because on December 8, 1980, he moved an inmate to a different cell following an attack upon the inmate by another inmate. He testified that, following this incident, Sgt. Reed admonished him and told him not to make "waves.” Defendants, through the testimony of Reed, Stover, and Loren Pittman, testified that plaintiff was discharged because of the overtime incident.
The jury was given a special verdict form. To the question, "Did the defendant make the statement complained of to a third person by writing?” the jury answered, "Yes.” To the second question, "Was the statement false in some respect?” the jury answered, "No.” The jury also found in favor of defendants on the wrongful termination claim.
On appeal, plaintiff raises one evidentiary issue. In plaintiffs case in chief, plaintiff called Jackie L. Busher, who was plaintiff’s supervisor at J. L. Hudson department store’s security department, where plaintiff presently works. Busher testified upon direct examination as follows:
Q. Now, in terms of — can you comment on plain tiffs [sic] job performance with J. L. Hudson’s since he’s been working with the company?
A. Well, since he’s been with us it’s been very good, shows a lot of initiative in what he’s doing, follows through on what his assignments are.
Q. And how is he in terms of punctuality?
A. Very good, other than vacations and personal days I don’t think he missed but maybe one or two days in three years.
Q. Have you ever asked him to work more than the regular basic work?
A. At times, yes.
Q. Has he ever refused to do this for you?
A. No he hasn’t.
Q. I mean, is he responsible for the assets contained in that warehouse?
A. Yes, definitely.
Q. And do you trust him to take care of that warehouse?
A. Fully, yes.
In defendants’ case in chief, defendants called Linda Chilkiewicz.- Chilkiewicz testified, over plaintiffs objection, to an incident which occurred in 1978, when she and plaintiff both worked at the Westland jail:
Q. Would you please tell the jury in your own words what you recall about the last time that you worked with Officer Della Pella?
A. We were working the afternoon shift. He handcuffed me to a chair for about five minutes.
Q. And now, how did this happen? Did — were you kidding around?
A. No.
Q. Were you struggling when he did this?
A. Yes.
Q. Did you consent to this?
A. No.
Q. Where did this happen?
A. In an area called visit, 3 Visit.
Q. And why did this whole incident take place, do you have any idea?
A. No.
Q. Now, Officer, what happened after the five minutes, were up, what was the plaintiff doing? What was Mark Della Pella doing at that time after you were handcuffed to the chair?
A. Laughing, joking.
Q. Did you think it was funny?
A. No, I was very mad, very upset.
Q. All right. Aside from that incident did you have any occasion to witness or to work with Mark Della Pella again?
A. No.
Q. Would you have if you had been assigned?
A. No.
Q. Why not?
A. I just didn’t trust him. I just didn’t want to, from that one incident.
The court allowed the testimony because it felt' character was very important in the case, and because it felt the testimony was not unduly prejudicial.
On appeal, plaintiff claims that Chilkiewicz’s testimony was inadmissible character evidence. Plaintiff claims that the testimony was inadmissible because, if plaintiff had been convicted of assault because of the incident, evidence of his conviction would have been inadmissible under MRE 609(a). Defendants claim the testimony was admissible because plaintiff "opened the door” with Busher’s testimony. We feel that both parties’ arguments miss the mark.
Initially, we note that there is a question as to whether Busher’s testimony, that plaintiff was a good worker, was admissible. The Michigan Supreme Court has long held that testimony of good character and reputation is inadmissible in a civil action where the character of the party is not attacked first. Munroe v Godkin, 111 Mich 183, 184; 69 NW 244 (1896); Kingston v Fort Wayne & E R Co, 112 Mich 40, 42-44; 70 NW 315 (1897); Adams v Elseffer, 132 Mich 100, 101-103; 92 NW 772 (1902); McQuisten v Detroit C S-R Co, 150 Mich 332; 113 NW 1118 (1907); Harris v Neal, 153 Mich 57; 116 NW 535 (1908); Gardner v Gardner, 311 Mich 615, 623; 19 NW2d 118 (1945). This Court followed this general rule in McNabb v Green Real Estate Co, 62 Mich App 500, 509-512; 233 NW2d 811 (1975), lv den 395 Mich 774 (1975).
However, these cases were all decided before the Michigan Rules of Evidence were adopted. The rules became effective on March 1, 1978. MRE 404. states:
(a) Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;
(2) Character of victim of a crime other than a sexual conduct crime. Evidence of a pertinent trait of character of the victim of the crime, other than in a prosecution for criminal sexual conduct, offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of victim of sexual conduct crime. In a prosecution for criminal sexual conduct, evidence of the victim’s past sexual conduct with the defendant and evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease;
(4) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged.
In Keefer v C R Bard, Inc, 110 Mich App 563; 313 NW2d 151 (1981), the plaintiff filed suit against the manufacturer of a catheter, the nurse who inserted the catheter in the plaintiff’s arm, and the hospital, for injuries sustained when the catheter broke in her arm and traveled to her lung. At trial, counsel for the defendant hospital and the nurse asked the administrator of the hospital what type of employee he considered the nurse to be. Keefer, supra, p 574. The administrator replied that she was very competent and that no complaints had been brought to his attention concerning her. Id. The manufacturer appealed, claiming this was improper character evidence. Id., p 575. This Court cited the general rule of MRE 404(a) that evidence of a person’s character is not admissible to prove that the person acted in conformity therewith and stated that the administrator’s testimony was not offered to prove that the nurse acted in conformity therewith; therefore, it was admissible. This Court stated that the issue at trial was whether the nurse had followed direc tions in putting the catheter in the plaintiffs arm, and that the administrator’s testimony that she was a good employee and that he received no complaints about her did not prove that she followed directions. Id., p 576. Keefer instructs that character and reputation evidence are admissible in a civil trial as long as MRE 404 is strictly followed. Strict adherence to MRE 404(a) in the instant case leads us to believe that Busher’s general testimony that plaintiff was a good employee, was punctual, had initiative, and that he trusted plaintiff was admissible as it was not offered specifically to prove that plaintiff acted in conformity therewith. However, Busher’s testimony that he often asked plaintiff to work overtime and that plaintiff did so was offered to prove that plaintiff acted in conformity therewith, i.e., that plaintiff worked overtime when asked to on January 2, 1981. Whether this portion of Busher’s testimony is characterized as character evidence under MRE 404(a) or as testimony of a specific prior act under MRE 404(b), it was inadmissible.
However, we need not address the admissibility of Busher’s testimony, as defendants did not object to it and did not cross appeal. The only issue before us is whether the court erred in admitting the testimony of Chilkiewicz. We find the court did err. MRE 405(a) states:
Reputation. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation. On cross-examination, inquiry is allowable into reports of relevant speciñc instances of conduct. [Emphasis added.]
Chilkiewicz testified as to a specific instance of plaintiff’s conduct. According to MRE 405(a), evi dence of specific instances of conduct are admissible only upon cross-examination. While defendant could cross-examine Busher about whether he knew of the handcuffing incident, Chilkiewicz could not properly testify to the incident. People v Champion, 411 Mich 468; 307 NW2d 681 (1981).
Although Chilkiewicz’s testimony was error, we find the error was harmless and does not require reversal. MCR 2.613(A), formerly GCR 1963, 529.1, states:
Harmless Error. An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.
Our review of the record leads us to believe that the jury verdict would not have been different had Chilkiewicz not testified. There was ample evidence in support of the jury’s verdict and we do not believe the jury was influenced by the fact that plaintiff at one time handcuffed Chilkiewicz to a chair for five minutes. We find the error to be harmless.
Affirmed. | [
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J. C. Kingsley, J.
This case presents the issue whether good faith bargaining to impasse is a prerequisite to a union’s right to invoke the binding arbitration procedure established by 1969 PA 312 (Act 312), MCL 423.231 et seq.; MSA 17.455(31) et seq., for public police and fire departments. The trial court ruled that good faith bargaining to impasse was not a prerequisite and, accordingly, granted judgment in favor of defendants Michigan Employment Relations Commission and the Manis tee Fire Fighters Association under MCR 2.116(1X2). We affirm.
On June 30, 1985, the collective bargaining agreement executed by plaintiff, City of Manistee, and defendant union, the labor organization representing the fire fighters employed by the city, expired. The city and union thereafter conducted collective bargaining sessions for the purpose of executing a new agreement, but failed to reach an accord.
On December 9, 1985, the union filed a petition with merc for Act 312 compulsory arbitration, alleging that the parties were at an impasse. The city responded by asking for a dismissal of the petition because the union allegedly did not engage in good faith bargaining to impasse prior to filing a petition. The city also filed a separate unfair labor practice charge with merc, alleging that the union breached its duty to bargain in good faith, as set forth in § 15 of the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq.
Merc considered the appropriateness of proceeding with the Act 312 arbitration in view of the unfair labor practice charge, and decided that it would continue to process the union’s petition for Act 312 arbitration. Thus, on March 27, 1986, the city filed a complaint for a declaratory judgment and injunctive relief in the Manistee Circuit Court. The city argued that good faith bargaining to impasse was a prerequisite to Act 312 arbitration and sought to enjoin merc from processing the union’s petition for arbitration until the merits of the city’s unfair labor practice charge was decided. The parties agreed to meet for further collective bargaining sessions, but failed to reach agreement on a successor contract. Thereafter, on May 13, 1986, the city moved for summary disposi tion under MCR 2.116(C), arguing that there was no genuine issue of material fact and that it was entitled to judgment on these issues as a matter of law.
For purposes of the city’s motion, the trial court assumed that the union failed to bargain in good faith to impasse and that the union made some bargaining proposals on nonmandatory subjects. Following a hearing on the summary disposition motion, the trial court denied the city’s motion. Instead, the court stated it would grant summary disposition in favor of defendants merc and the union under MCR 2.116(I)(2) based on the court’s ruling that good faith bargaining to impasse was not required by Act 312. Because we agree with the trial court’s careful analysis and reasoning, we affirm the judgment in favor of defendants.
Act 312 was enacted as a supplement to pera, MCL 423.244; MSA 17.455(44), and reflects the Legislature’s concern that employees of public police and fire departments, who provide vital services to their communities and are prohibited by law from striking, have a binding procedure for' resolving labor disputes which is more expeditious, more effective and less expensive than courts. Capitol City Lodge No 141, Fraternal Order of Police v Ingham Co Bd of Comm’rs, 155 Mich App 116, 118; 399 NW2d 463 (1986), lv den 428 Mich 870 (1987). Its express purpose is contained in § 1 of Act 312 which states:
It is the public policy of this state that in public police and fire departments, where the right of employees to strike is by law prohibited, it is requisite to the high morale of such employees and the efficient operation of such departments to afford an alternate, expeditious, effective and binding procedure for the resolution of disputes, and to that end the provisions of this act, providing for compulsory arbitration, shall be liberally construed. [MCL 423.231; MSA 17.455(31).]
Thus, Act 312 is intended to provide for an alternate "expeditious” resolution of disputes and the provisions providing for compulsory arbitration are liberally construed to achieve this objective. Act 312’s binding arbitration procedure, however, is limited to disputes on mandatory subjects of collective bargaining, such as wages, hours and other terms and conditions of employment. Police Officers Ass’n of Michigan v Oakland Co, 135 Mich App 424, 432; 354 NW2d 367 (1984), lv den 422 Mich 852 (1985); Local 1277, AFSCME v City of Center Line, 414 Mich 642, 652; 327 NW2d 822 (1982). Moreover, § 3 sets forth the following procedure for invoking Act 312’s compulsory arbitration:
Whenever in the course of mediation of a public police or fire department employee’s dispute, except a dispute concerning the interpretation or application of an existing agreement (a "grievance” dispute), the dispute has not been resolved to the agreement of both parties within 30 days of the submission of the dispute to mediation, or within such further additional periods to which the parties may agree, the employees or employer may initiate binding arbitration proceedings by prompt request therefor, in writing, to the other, with copy to the employment relations commission. [MCL 423.233; MSA 17.455(33).]
Thus, on its face, § 3 of Act 312 does not require the good faith bargaining to impasse prerequisite advocated by the city. Rather, § 3 requires unsuccessful mediation on an unresolved dispute and a written request for arbitration by either party.
While we believe that the language of § 3 is clear on its face, some ambiguity may be perceived in light of the supplemental nature of Act 312. It is a rule of statutory construction that an act must be read in its entirety and the meaning given to one section arrived at after due consideration of other sections so as to produce, if possible, a harmonious and consistent enactment as a whole. Stratton-Cheeseman Management Co v Dep’t of Treasury, 159 Mich App 719, 724; 407 NW2d 398 (1987). Other rules of construction which guide our interpretation of § 3 are as follows:
This Court’s guiding principle of statutory interpretation is to determine and effectuate the intent of the Legislature. To ascertain this intent, the Court must first review the specific language of the disputed provision, giving all terms their plain and ordinary meaning absent a contrary legislative intent. When an ambiguity is found, resulting in alternative interpretations being possible, this Court may refer to any factors which may advance the most probable and reasonable legislative intention. [Citations omitted. Couture v General Motors Corp, 125 Mich App 174, 177-178; 335 NW2d 668 (1983), lv den 418 Mich 884 (1983).]
In addition, the interpretation of a statute given by the agency charged with its execution, here merc, is entitled to respectful consideration, Oakland Schools Bd of Ed v Superintendent of Public Instruction, 401 Mich 37, 41; 257 NW2d 73 (1977), with considerable weight given to longstanding interpretations, Stratton-Cheeseman, supra, p 724.
Here, pera does impose the duty of good faith upon both the employer and the union at the bargaining table. MCL 423.215; MSA 17.455(15). Procedurally, however, the duty to bargain is suspended if the parties reach an impasse on one or more mandatory subjects. Local 1277, supra, p 651. Moreover, the express purpose of Act 312 to pro vide for the "expeditious” resolution of disputes would be frustrated if merc was required to resolve unfair labor practice charges based on alleged bad-faith bargaining as a prerequisite to allowing Act 312 arbitration. To follow the city’s suggested procedure would, in our opinion, encourage dilatory practices, cause protracted delays and appeals in resolving important public disputes, undermine the morale of affected employees and prove costly to all participants. In light of these factors, and giving respectful consideration to merc's construction of § 3 of Act 312, we hold that the Legislature did not intend good faith bargaining to impasse to be a prerequisite to Act 312 arbitration. The only prerequisites are those expressly stated in § 3 of Act 312. Accordingly, we affirm the trial court’s grant of judgment under MCR 2.116(I)(2) in favor of defendants merc and the union.
Affirmed. | [
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] |
M. J. Kelly, J.
On September 20, 1985, defendant-appellant pled guilty in Jackson Circuit Court to escape from prison, MCL 750.193; MSA 28.390. He was sentenced to two and a half to five years imprisonment consecutive to the sentence he was already serving. Defendant appeals by leave granted contending there is no factual basis for his guilty plea because he testified at the plea-taking proceeding that his escape was actually from the custody of the Jackson City Police Department and not from the Department of Corrections or from Jackson Prison.
Defendant was out on a writ from the State Prison of Southern Michigan at Jackson for arraignment or examination in the district court. Upon completion of his court appearance he was taken in the custody of a city police detective for transport back to the prison. He escaped from the detective’s car, was gone approximately six hours, and then was picked up by the authorities. We affirm.
Defendant has not preserved this issue for appeal as required by MCR 6.101(F)(7) by filing a motion to withdraw the plea. Defendant urges he does not have to on the strength of an order entered in- People v Dickerson, 428 Mich 864; 400 NW2d 601 (1987). In that order the Supreme Court held that defendant did not provide an adequate factual basis for his plea and remanded for the prosecutor to attempt to establish the missing element. We don’t know what People v Dickerson stands for because it reversed the grant of a motion to affirm issued in our Court on May 20, 1986. Our Court did not issue an opinion, it simply issued an order and, if the Supreme Court reached behind that order to by-pass MCR 6.101(F)(7)(a) to order remand where defendant had not made the necessary predicate motion, then it violated its own rules. We do not presume that the Supreme Court conducts its business in that way and we therefore discount the People v Dickerson order as precedent for anything.
Affirmed. | [
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Per Curiam.
Petitioner, the attorney for the personal representative of the estate of Walter H. O’Neill, deceased, appeals as of right from an order of the probate judge granting petitioner attorney fees and expenses for services rendered on behalf of the personal representative in an amount less than requested. He also appeals from an order of the probate judge denying his request for a rehearing. We affirm.
In January, 1980, Walter H. O’Neill died leaving an estate valued in excess of $600,000. William Schafer, who had been the conservator of Mr. O’Neill’s estate, was appointed personal representative. He, in turn, retained petitioner to assist in the estate’s legal matters. In December, 1983, petitioner filed the final accounting for the estate. The accounting included a request for attorney fees of $38,725 and expenses of $1,333, for a total of $40,058. Respondent charities, residual beneficiaries of decedent’s estate, filed an objection to the petitioner’s fees and expenses. After a protracted hearing, the probate judge approved petitioner’s hourly rate of $75, but approved fees for only 300 hours, for a total of $22,500 in attorney fees. Petitioner had requested compensation for 513 hours. The probate judge also approved expenses of $800, rather than the $1,333 requested by petitioner. In total, the probate judge approved fees and expenses of $23,300. As the personal representative, without court approval, had advanced petitioner $38,391.50, the personal representative was ordered to reimburse the estate in the amount of $15,091.50. While the personal representative did not challenge the probate judge’s order, petitioner did, filing a motion for rehearing which the probate judge denied. In denying petitioner’s motion, the probate judge first concluded that petitioner did not have standing in his own right to request a rehearing. He also reached the merits of petitioner’s motion and concluded that, even assuming standing existed, the petitioner had not established that the probate judge’s ruling constituted an abuse of discretion. This appeal followed.
On appeal, petitioner raises two issues. First, he argues that the probate judge erred in ruling that petitioner did not have standing in his own right. Second, he argues that the probate judge’s order granting petitioner fees and expenses in an amount less than requested constituted an abuse of discretion. Because we resolve the substantive issue against petitioner, we find it unnecessary to address the standing issue.
MCL 700.543; MSA 27.5543 provides for the employment and compensation of an estate’s attorney:
Without obtaining a court order, a fiduciary of an estate may employ counsel to perform necessary legal services in behalf of the estate and the counsel shall receive reasonable compensation for the legal services.
To ascertain the reasonable value of legal services to an estate, the probate judge should consider the amount of time spent, the character of the services rendered, the skill and experience called for, and the results obtained. In re Weaver Estate, 119 Mich App 796; 327 NW2d 366 (1982). The burden of proof rests on the person claiming compensation. In re Irwin Estate, 162 Mich App 522; 413 NW2d 37 (1987); In re Kiebler Estate, 131 Mich App 441; 345 NW2d 713 (1984). The value of disputed attorney fees is a matter vested in the discretion of the probate judge and his decision will not be overturned unless there is a manifest abuse of that discretion. In re Weaver Estate, supra; In re Wright Estate, 156 Mich App 1; 401 NW2d 288 (1986).
From our review of the record, we conclude that petitioner is not entitled to his requested fees as he was unable to support his claim regarding the number of hours spent on estate matters. We share the probate judge’s concern over the petitioner’s method of computing his time. Petitioner admitted that he did not keep ledger sheets of any type. Instead, his billing was prepared by having his "girls go through the file” and by his "cursory glance” through his daily calendars. It also appears that, in computing his billing, petitioner relied at least in part upon records maintained by his client. Apparently, the personal representative maintained a log book which contained forty pages of entries showing the date, time and nature of services rendered by the personal representative. Indicative of the unreliability of the log book is the fact that in forty-three entries the original time noted had been written over with a higher number. The unreliability of petitioner’s method of billing is further evidenced by the fact that during trial he filed a supplemental billing claiming an additional 150 hours of time that he had not previously noted.
On this evidence, we conclude that the probate judge did not abuse his discretion in approving payment for only 300 of the 513 hours claimed by the petitioner. Accordingly, we find no error in the probate judge’s denial of petitioner’s motion for a rehearing.
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Per Curiam.
The prosecutor appeals from an order of Detroit Recorder’s Court Judge Michael Sapala dismissing the drug charges against defendants, based on a finding of entrapment. We affirm.
Defendants, all Wayne County Jail guards, were charged with unlawful delivery of less than fifty grams of a controlled substance, a violation of MCL 333.7401; MSA 14.15(7401). After a consolidated pretrial evidentiary hearing on defendants’ claims of entrapment, Judge Sapala dismissed the charges against the defendants, finding each had been entrapped.
The following facts were established at the entrapment hearing. Some time in September, 1985, Sergeant Kent Booth of the Wayne County Sheriffs Department was contacted by a juvenile inmate at the Wayne County Jail. The juvenile provided information to Sergeant Booth concerning corrections officers bringing narcotics to inmates of the facility. No specific officers or guards were implicated. Sergeant Booth conferred with the jail administrator and representatives of the Wayne County Prosecutor’s Office at which time Sergeant Booth was given "ten days” to devise a plan to apprehend the guards participating in these activities. The juvenile agreed to participate in the operation for a thirty-day reduction in his sentence.
After discussing some alternative plans, a "reverse sting” or "take back” sale operation was chosen. Sergeant Booth went to the dea task force and obtained a quantity of cocaine and money. The juvenile was to approach a guard and request that he bring narcotics into the jail. Sergeant Booth would deliver the drugs and money to an undercover police officer who would deliver these items to the particular guard who would in turn deliver the items to the juvenile inside the jail. The juvenile would then return the drugs and money to Sergeant Booth. Sergeant Booth did not instruct the juvenile as to a particular guard to approach. The juvenile was allowed to approach the guards at his discretion. As a result of these operations, the defendants were arrested and charged with delivery of cocaine.
The prosecution argues that the lower court erred in finding entrapment under the facts of this case. We disagree.
"Michigan has been at the forefront in protecting persons from being convicted of a crime which was instigated, induced or manufactured by a government agent.” People v White, 411 Mich 366, 387; 308 NW2d 128 (1981). Our Supreme Court has renounced the subjective view of entrapment followed by the United States Supreme Court and adopted the objective test defined in Justice Stewart’s dissent in United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973). The objective test focuses not upon the particular defendant’s predisposition to commit the crime charged, but, rather, on "whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand.” People v Turner, 390 Mich 7, 22; 210 NW2d 336 (1973). The purpose of the entrapment defense is to deter unlawful police activities and preclude judicial approval of impermissible government conduct. People v D’Angelo, 401 Mich 167, 172-173; 257 NW2d 655 (1977).
Justice Stewart defined the objective test as follows:
[W]hen the agents’ involvement in criminal activities goes beyond the mere offering of such an opportunity, and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then — regardless of the character or propensities of the particular person induced — I think entrapment has occurred. For in that situation, the Government has engaged in the impermissible manufacturing of crime, and the federal courts should bar the prosecution in order to preserve the institutional integrity of the system of federal criminal justice. [United States v Russell, supra at 445.]
The first Michigan case to deal with the propriety of the government’s prosecuting the distribution of narcotics it has supplied was People v Stanley, 68 Mich App 559; 243 NW2d 684 (1976). In Stanley, this Court found entrapment as a matter of law where a defendant was charged as a result of a government "take-back” sale.
There can be no doubt that if defendant obtained heroin from Upton, a police informant, and later sold the same heroin back to Upton, his conviction for that sale would be invalid. It is difficult to conceive of a clearer instance of manufactured crime, of "police conduct . . . [that] falls below standards, to which common feelings respond, for the proper use of governmental power”. Sherman v United States, 356 US 369, 382; 78 S Ct 819; 2 L Ed 2d 848 (1958) (concurring opinion by Justice Frankfurter).' [Stanley, supra at 564.]
However, other panels of this Court considering the issue after Stanley have refused to follow a per se rule in cases involving government "take-back” sales. See People v Roy, 80 Mich App 714; 265 NW2d 20 (1978); People v Duke, 87 Mich App 618; 274 NW2d 856 (1978); People v Forrest, 159 Mich App 329; 406 NW2d 290 (1987). In Roy and Duke, both involving deliveries of narcotics by prison employees to inmates, this Court held that entrapment had not occurred.
In Roy, a Jackson prison inmate turned informant told an agent of the Michigan Attorney General’s Office that drugs were being smuggled into the prison via another identified inmate who had a contact with an unidentified prison employee. An inmate who had a drug seller outside of the prison would pass on the seller’s phone number to the inmate who was in contact with the defendant prison employee who would then contact the seller and arrange to bring the drugs into the prison. The Attorney General agent gave the inmate-informant a phone number to pass along. A few days later the defendant contacted the agent and set up the exchange. In finding no entrapment, this Court stated:
Roy, however, did not operate unless an inmate provided him with an outside source of drugs. To obtain the required evidence, therefore, it was necessary for the police to provide the outside contact. But the method of operation was not suggested by the police. The plan originated with Roy and Berrier. Nor did the police use any tactics calculated to induce the defendants to commit a crime they were not otherwise ready to commit. They merely followed instructions given them by Berrier. [Id. at 719-720.]
Similarly in Duke, an inmate-informant cooperated with police in apprehending a Jackson prison guard involved in a drug scheme. In that case, several other inmates, who thought that the informant had outside drug connections, attempted to pressure the informant into arranging a transfer of drugs to a cooperating guard. The defendant guard contacted a police officer posing as the informant’s wife to arrange picking up drugs provided by the government. The defendant later arrived at the police officer’s hotel room, identified himself, and left with the drugs.
In finding that no entrapment had occurred, the Duke panel reasoned:
The present case, however, involves neither an appeal to defendant’s sympathies, nor a "take-back” sale. Rather, the present case involves a situation where the police, in response to orders from the persons involved in the criminal enterprise, delivered a quantity of heroin to defendant. Although the fact that the drugs were provided by the government in this case is certainly one factor to consider, that factor must be considered along with all the other facts of the case.
We now hold that the trial judge erred in ruling that entrapment had occurred. The record supports the conclusion that the idea for the crime did not originate with the police. The police had no role in determining how the transfer of the drugs would be carried out. The police were merely responding to the orders of those who had conceived the crime. [Id at 623.]
Thus, this Court has determined that a "take-back” sale is not entrapment as a matter of law. The trial court must determine, on the particular facts presented, whether entrapment has occurred. Roy, supra at 719. Once the trial court’s decision is reached, the findings will not be disturbed on review unless they are clearly erroneous. People v D’Angelo, supra at 183.
In an extensive written opinion, the trial court concluded that entrapment had occurred in this case. The court found particularly reprehensible the actions of the police in allowing a teenage convicted felon the unfettered power to orchestrate the entire operation — from selecting which guards to approach, to setting up the drug exchanges. In addition to the utter lack of supervision, the trial court was troubled by the actions of police in using a juvenile in this potentially dangerous scheme and in introducing actual drugs into the jail.
We cannot conclude that the trial court’s decision was clearly erroneous. Unlike in Roy and Duke, here the police not only supplied the drugs which gave rise to the crime, but also, through the juvenile, directed the entire operation. The defendants were acting at the juvenile’s direction rather than the juvenile and the police acting at defendants’ directions. The police and their informant impermissibly manufactured or instigated the crimes for which defendants were charged. Therefore we agree that defendants were entrapped as a matter of law. Additionally, we too are bothered by police use of this informant — because of his age, criminal status, and motivation — and the lack of supervision by police over the entire operation.
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Doctoroff, J.
Plaintiff appeals as of right from an order entered by the Calhoun Circuit Court summarily dismissing her libel action against the defendants pursuant to MCR 2.116(0(10). We affirm.
Plaintiff is employed by the City of Battle Creek as a contract compliance officer. She serves at the discretion of the city’s executives, the mayor, vice-mayor, manager and commissioners. Her salary is paid by the public.
The plaintiffs responsibilities include monitoring the various construction projects "let” by the city for compliance with affirmative action requirements, minority hiring requirements, local hiring requirements, and prevailing wage standards. Plaintiff also monitors projects funded with local, state and federal moneys. However, she does not have the authority to monitor projects not let by the city. She acts only after she is told to do so by her superiors. Additionally, plaintiff administers the city’s program for certification of women- and minority-owned businesses. She also conducts equal opportunity employment reviews for financial assistance on all businesses seeking tax abatements.
The individual defendant, Richard Frantz, serves as the business manager and financial secretary for the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 335, AFL-CIO. Defendant worked closely with plaintiff for a significant period of time, informing her as to which contractors and which projects were violating the local hiring practices and prevailing wage standards. After making an investigation, plaintiff would remedy the discovered violations.
In 1984, Cello-Foil Products, Inc. undertook the expansion of its Battle Creek facilities by building an addition to its plant and installing flex-o-graphic printing presses, two rotogravure printing presses and a solvent recovery system. The city became involved by assisting Cello-Foil in the obtaining of financing for its project. The city both loaned Cello-Foil money from its community block development grant funds and assisted the company in obtaining an urban development action grant (udag).
After work had begun on the Cello-Foil expansion project, defendant contacted plaintiff and informed her of numerous complaints he had received concerning the Cello-Foil project. He made inquiries as to whether the labor standards applied to the Cello-Foil project and also requested that plaintiff begin monitoring it for compliance with labor standards.
Following defendant’s request, plaintiff began an investigation into whether the city possessed the authority to monitor the Cello-Foil project. She contacted several people and met with many more individuals to determine the extent of her authority. Additionally, she reviewed Department of Housing and Urban Development labor standard compliance regulations, hud manuals, city ordi nances and resolutions, applicable state statutes, and all tax abatement papers. No one she contacted believed that she had the authority to monitor the Cello-Foil project.
Plaintiff also contacted a labor relations specialist for hud, who informed her that she and the city had no authority to monitor the project. He also told the plaintiff that the officials at hud were of differing minds as to how labor standards monitoring could be applied to private industry construction projects being conducted with money loaned to the industry from federal funds. Consequently, clarification from Washington, D.C. had been sought. As of the date of plaintiff’s contact, no answer had been received. Plaintiff never heard from hud nor received the results of the contact made with hud. She did not contact hud herself.
Defendant believed that plaintiff had the authority to monitor the project. On July 30, 1985, he wrote a letter to her in which he charged her with being derelict in her duties and threatened legal action to force her to monitor the project. A copy of his letter was sent to the mayor, vice-mayor, city manager and city commissioners. When defendant refused to retract the allegation that she was derelict in her duties, plaintiff filed a complaint charging him and defendant Calhoun County AFL-CIO Labor Council with libel.
Following the filing of the suit, defendant Frantz’s counsel sought an opinion from the hud labor standards officer as to whether the city possessed the authority to monitor the Cello-Foil project. When plaintiff received a copy of the letter that hud sent to defendant’s counsel indicating that the city was responsible for monitoring the project for compliance with federal labor standards, the city manager directed her to meet with the labor standards officer for hud, the city attor ney and the executive vice-president of Cello-Foil. At this meeting, the labor standards officer informed the city that it should begin retroactive labor standards monitoring on the installation of the flex-o-grahpic presses. Further, it was decided that once Cello-Foil received the udag money, the city would begin monitoring the construction of the solvent recovery system and the installation of the rotogravure presses.
At the close of discovery, Frantz for the second time filed a motion for summary disposition, in which the labor council joined. The court granted summary disposition pursuant to MCR 2.116(0(10), finding that the plaintiff was a public official and further finding that the plaintiff was unable to show actual malice.
On appeal, plaintiff claims that the trial court erred when it summarily dismissed her libel action. She first contends that the trial court abused its discretion when it found her to be a public official for the purposes of libel law. She further asserts that the trial court erred by concluding that there was no genuine issue of material fact regarding the existence of actual malice.
A motion for summary disposition premised on MCR 2.116(0(10) requires a trial court to review the entire record to determine whether the non-moving party has discovered facts to support the claim or defense. Consequently, the trial court must look beyond the pleadings and consider affidavits, depositions, interrogatories, or other documentary evidence filed in the case. MCR 2.116(G)(5). In reviewing this evidentiary record, the trial court must give the benefit of any reasonable doubt to the nonmoving party in deciding whether a genuine issue as to a material fact exists. Rizzo v Kretschmer, 389 Mich 363, 371-732; 207 NW2d 316 (1973). Before judgment may be granted, the trial court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Huff v Ford Motor Co, 127 Mich App 287, 293; 338 NW2d 387 (1983).
We turn now to plaintiffs first argument: that the trial court erred by finding her to be a public official about whom the statements made were protected by a qualified privilege. We disagree. The initial determination of whether a privilege exists is one of law for the court. See Swenson-Davis v Martel, 135 Mich App 632, 636; 354 NW2d 288 (1984), lv den 419 Mich 946 (1984).
To establish liability for defamation, a plaintiff must prove the existence of the following:
(a) a false and defamatory statement concerning plaintiff; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod). [Postill v Booth Newspapers, Inc, 118 Mich App 608, 618; 325 NW2d 511 (1982), lv den 417 Mich 1050 (1983).]
Once the plaintiff has met his burden of establishing the existence of these common-law elements, the defendant brings forth his defense of truth or privilege. The fault which a plaintiff must prove varies with whether the allegedly defamed person is a "public official,” a "public figure,” or a private person. Id.
In New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964), the United States Supreme Court recognized the existence of a qualified privilege extending to a media defendant who publishes a statement concerning a "public official”:
The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice” —that is, with knowledge that it was false or with reckless disregard of whether it was false or not. [376 US 279-280.]
In VandenToorn v Bonner, 129 Mich App 198, 208; 342 NW2d 297 (1983), lv den 421 Mich 864 (1985), a panel of this Court extended the scope of this qualified privilege to nonmedia defendants who publishes statements about the conduct of public officials.
In Rosenblatt v Baer, 383 US 75; 86 S Ct 669; 15 L Ed 597 (1966), the United States Supreme Court, in defining for the first time the term "public official,” stated:
It is clear, therefore, that the "public official” designation applies at the very least to those among the heirarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. [383 US 85.]
By way of elaboration on the Court’s definition, it continued:
Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present and the New York Times malice standards apply. [383 US 86.]
Finally, the Court pointed out, by way of footnote:
The employee’s position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy. [383 US 87, n 13.]
Although several panels of this Court have recognized that a sheriff or a deputy sheriff is a public official within the meaning of the Rosenblatt test, we have yet to set forth any discussion of the application of that test. Hence, we take this opportunity to do so.
The facts pertinent to this matter and the details concerning plaintiffs involvement with the City of Battle Creek have previously been set forth. She is paid through use of public funds and her position is not one filled by election. Indeed, she was placed in the position by the finance director of the city, the personnel director of the city, and the former purchasing agent/risk manager of the city respectively. She serves at the discretion of the city’s mayor, vice-mayor, manager and commissioners. As indicated, her duties include the monitoring of various construction projects let by the city for compliance with affirmative action requirements, with minority hiring standards, with local hiring requirements and with prevailing wage standards. Plaintiff monitors "anything that has to do with the money that an employee is paid on any project.” She also monitors projects funded by local, state and federal moneys. She has, however, no authority to monitor projects not let by the city, nor has she any authority to monitor projects funded through private sources or economic development bonds. She only acts upon receiving orders from her superiors.
Further, plaintiff administers the city’s program for certification of women- and minority-owned businesses. Finally, she conducts equal opportunity employment reviews for financial assistance on all businesses seeking tax abatements.
In view of the above, we are persuaded that the trial court did not err when it concluded that plaintiff is a public official within the meaning of Rosenblatt. Although plaintiff has no independent authority to initiate the monitoring of construction projects, she is charged with the responsibility of monitoring those projects, once so directed by her superiors. To effectively do her job and, as a result, to ensure compliance with the variety of federal labor standards, plaintiff must understand and apply a wide variety of local, state and federal rules and regulations. She must collect and collate information in a meaningful manner. Her determinations directly affect the amount of wages local construction workers are paid. Her determinations also have a direct impact on whether a business is certified as a minority business, whether a business gets a tax abatement, and whether local construction workers obtain employment. Consequently, we conclude that plaintiff’s position is of such apparent importance that the public has an independent interest in her qualifications and in her performance of her duties beyond the general public interest in the qualifications and performance of all government employees. Therefore, we conclude that the court was correct when it held that plaintiff is a public official within the meaning of Rosenblatt.
Defendant’s communication in this instance is thus protected by a qualified immunity that may be overcome only by a showing of actual malice. See Swenson-Davis, supra. The question now becomes whether a material issue of fact exists as to whether defendant made those statements with actual malice.
A statement made with "actual malice” is one that was made with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times, supra, pp 279-280; Lins v The Evening News Ass’n, 129 Mich App 419, 429; 342 NW2d 573 (1983). General allegations of malice will not suffice to establish a genuine issue of material fact. Instead, a plaintiff must support his allegations with facts from which the existence of malice might be inferred. Steadman v Lapensohn, 408 Mich 50, 55; 288 NW2d 580 (1980); Goldman v Wayne State University Bd of Governors, 151 Mich App 289, 293; 390 NW2d 672 (1986). Moreover, a plaintiff should be given ample opportunity to demonstrate actual malice, with the trial courts being reluctant to prevent the issue from going to the jury. Grostick v Ellsworth, 158 Mich App Í8, 23; 404 NW2d 685 (1987), lv den 429 Mich 861 (1987). Finally, reckless disregard is not measured by whether a reasonably prudent man would have published or would have investigated before publishing, but by whether the publisher, in fact, entertained serious doubts concerning the truth of the statements published. Kurz v The Evening News Ass’n, 144 Mich App 205, 213; 375 NW2d 391 (1985).
Plaintiff contends that the trial court granted summary disposition on the ground that there was no issue as to common-law malice by looking at defendant’s good faith. Although the trial court stated that no actual malice occurred, it did look at the issue of good faith. Nonetheless, we find that the trial court’s ultimate conclusion that no genuine issue of fact existed as to actual malice was correct. Where the trial court reaches the right result for the wrong reason, this Court will not reverse. Durbin v K-K-M Corp, 54 Mich App 38, 46; 220 NW2d 110 (1974), lv den 394 Mich 789 (1975):
The determination to be made is not whether defendant acted in good faith, but whether he knew the statements were false or acted with reckless disregard of whether they were false or not. In the present case, plaintiff has failed to demonstrate that a genuine issue of fact exists regarding whether defendant acted with actual .malice. Our review of the record that was considered by the trial court in deciding defendant’s motion indicates that, notwithstanding plaintiff’s assertions in her affidavit in opposition to defendant’s motion, she admitted in her deposition that she thought defendant believed that the statements he wrote in the letter were true and, further, that, she had no evidence to establish that he didn’t believe them to be true.
As this Court stated in Stefan v White, 76 Mich App 654, 660; 257 NW2d 206 (1977), citing Garnet v Jenks, 38 Mich App 719, 726; 197 NW2d 160 (1972):
The purpose of GCR 1963, 117 [now part of MCR 2.116] is to allow the trial judge to determine whether a factual issue exists. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1969 Cum Supp, p 51. This purpose is not well served by allowing parties to create factual issues by merely asserting the contrary in an affidavit after giving damaging testimony in a deposition. As was stated in Perma Research and Development Co v The Singer Co, (CA 2, 1969), 410 F2d 572, 578:
"If a party who has been examined at length on deposition could, raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”
Here, no explanation was presented regarding the differences between plaintiff’s complaint and affidavit and her deposition. See Stefan, supra; Milligan v The Union Corp, 87 Mich App 179, 181-182; 274 NW2d 10 (1978).
Accordingly, the trial court properly granted defendant’s motion, for no genuine issues of fact existed.
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D. E. Holbrook, Jr., J.
This controversy concerns a requirement of the Department of Natural Resources that certain of its employees must reside in state-owned housing as a condition of their employment, and the interrelationship of this DNR requirement with Michigan Civil Service Rules 17.5 and 17.5a. These rules treat the provision of lodging as part of the employee’s compensation and provide for the automatic deduction of its value as an allowance for maintenance. Prior to 1972 the DNR, utilizing a method approved by the Civil Service Commission, established the dollar amounts of the maintenance deductions based upon a formula that took into account such items as the size of the house, its condition, its location and other similar matters. In addition, the employees were required to pay their own utilities. On June 16, 1972, the Civil Service Commission adopted a policy supplement to Rule 17.5a which established a uniform system for determining the amount of maintenance fees charged for the utilization of all state-owned housing based upon the appraised fair market value. This policy was initially to be effective July 1, 1973, but final implementation of the new policy was delayed until September 1, 1974.
Plaintiffs are classified employees of the DNR who are required to live in state-owned housing. They commenced this suit in Ingham County Circuit Court challenging the validity of the new rental policy. On August 30, 1974, the circuit court issued a preliminary injunction to preserve the status quo until a final decision could be rendered on the merits. Both parties filed motions for summary judgment under GCR 1963, 117.2(3), and filed affidavits and exhibits in addition to legal arguments on the issues. On December 1, 1977, the trial court issued its final order and judgment. By this order the trial court held that the Civil Service Commission could constitutionally require members of the plaintiffs’ class to reside in state-owned housing as a condition of their employment. However, it determined that any attempts to impose the new rental fee system upon members of the plaintiffs’ class who were hired prior to June 16, 1972, violated their contractual rights and was impermissible. It further found the Civil Service Commission, or the DNR acting as the commission’s agent, could from time to time change the formulation for the computation of amounts charged for utilities in the mandatory houses, as long as the amounts charged did not exceed the actual costs of the utilities. In addition, the affected employees must be permitted to perform or have performed repairs which affect the costs of utilities and subtract the costs of such repairs from amounts which otherwise would be paid for the utilities. The Civil Service Commission appeals contending that the differentiation concernng the imposition of the new rental policy based upon contractual rights was not briefed or argued below and thus not proper on a motion for summary judgment. Plaintiffs filed a cross-appeal contending that the Civil Service Commission may not require employees to live in state-owned houses, nor may it unilaterally set the amount to. be charged as rent.
The DNR is the appointing authority for all state park employees. MCL 299.1; MSA 13.1. For approximately the last 30 years the DNR has determined the duties of some of its park employees to include a requirement that they occupy state-owned housing as a mandatory condition of their employment. This requirement has been imposed under the DNR’s general authority to determine the duties of its employees. This authority is granted to the DNR by MCL 299.2; MSA 13.2 which incorporates by reference MCL 318.3; MSA 13.1011. Where such authority resides in an appointing authority, its determinations affecting conditions of employment are presumed to be valid in the absence of a contrary controlling regulation issued by the Civil Service Commission. See Mac Lellan v Dep’t of Corrections, 373 Mich 448; 129 NW2d 861 (1964). See also, OAG 1969-1970, No 4709, p 169 (September 4, 1970).
The requirement that an individual must reside in state-owned housing in order to perform his job clearly concerns a condition of employment, and the Civil Service Commission is empowered to regulate such a condition of employment. Const 1963, art 11, § 5. However, the Civil Service Commission has enacted no rules concerning the mandatory occupancy of state-owned housing. Prior to June 16, 1972, the Civil Service Commission had no unified policy concerning when the mandatory occupancy of state-owned housing as an employment requirement was to be permitted but allowed each appointing authority to formulate its own policy concerning the propriety of imposing such a mandatory housing requirement. On June 16, 1972, the Civil Service Commission promulgated a policy framework for the exercise of this delegated authority. They stated:
"Mandatory occupancy of state-owned housing as an employment requirement is permissible when it is essential for an employee to be generally available during non-working hours to: 1) protect state property and alternate means are not feasible, or 2) provide information and assistance to the public on sight. Departmental requests for exceptions may be granted by joint approval by the directors of Civil Service and the Bureau of Programs and Budget of the Executive Office.” Policy Supplement to Civil Service Commission Rule 17.5a.
On its face this policy statement continues to delegate to the appointing authority the power to require mandatory occupancy of state-owned housing. Accordingly we find that the DNR has the authority to establish a requirement that individuals employed in certain positions must occupy state-owned housing as a condition of their employment.
Having determined that the DNR has the authority to establish the condition of employment requiring the mandatory occupancy of state-owned houses, we must now determine whether the requirement established is constitutionally permitted. An individual’s right to live where he chooses is an integral part of the right to liberty protected by the 14th Amendment, Allgeyer v Louisiana, 165 US 578, 589; 17 S Ct 427; 41 L Ed 832 (1897). Plaintiffs contend that the classification created by the joint action of the DNR and the Civil Service Commission limits this right in a fashion that is impermissible. The traditional rational basis test is the test properly applied • in cases such as this where a continuing residency requirement is involved. Detroit Police Officers Ass’n v Detroit, 385 Mich 519; 190 NW2d 97 (1971), appeal dismissed for lack of a substantial Federal question, 405 US 950; 92 S Ct 1173; 31 L Ed 2d 227 (1972). See Wardwell v Cincinnati Board of Education, 529 F2d 625, 628, fn 2 (CA 6, 1976). This traditional rational basis test is best stated:
"The governing rule is one of reason: The Equal Protection Clause, like the Due Process Clause, is a guarantee that controls the reasonableness of governmental action. The classification must be a reasonable one, and it must bear a reasonable relation to the object of the legislation. What is reasonable is in each instance a matter of judgment. In the final analysis, it is a value judgment and should be recognized as such.” Manistee Bank & Trust Co v McGowan, 394 Mich 655, 671; 232 NW2d 636 (1975).
Thus, we must examine the classification established by the DNR and the Civil Service Commission to determine its reasonableness.
The classification system challenged by plaintiffs consists of two elements. The DNR established the first element by requiring that certain of its employees occupy state-owned housing located in the park where the individual is employed. The Civil Service Commission established the second element by interpreting their Rule 17.5a as requiring a rental charge to be imposed upon persons occupying mandatory housing in the amount of 65% of the appraised open market monthly rental value of the unit occupied. These two elements interlock to such an extent that the reasonableness of the DNR’s mandatory housing policy must be examined by taking into account the impact of the Civil Service Commission’s rules.
The DNR’s mandatory housing policy requires that park managers reside on their work station, the park to which they are assigned. This requirement falls within the general category of the continued residence within a specified political boundary type of residency requirement that has been approved in other litigation. McCarthy v Philadelphia Civil Service Comm, 424 US 645; 96 S Ct 1154; 47 L Ed 2d 366 (1976), Williams v Civil Service Comm of Detroit, 383 Mich 507; 176 NW2d 593 (1970), Park v Lansing Board of Education, 62 Mich App 397; 233 NW2d 592 (1975). See Detroit Police Officers Ass’n v Detroit, supra. See also, Dunn v Blumstein, 405 US 330, 342, fn 13; 92 S Ct 995; 31 L Ed 2d 274 (1972). The requirement in this instance is however much more restrictive than any other requirements upheld in previous litigation. The individuals concerned are restricted to residing in a particular house, rather than within a particular city limit. This greater restriction does not in and of itself make the requirement unreasonable, but does require forceful reasons to justify its imposition.
Mr. M. E. Southworth, Chief of the Personnel Division of the DNR, stated in an affidavit submitted in this case that:
"The purpose of requiring the park managers and certain other employees to reside in housing in DNR parks is to provide protection of public property in the parks where the facilities and equipment are valued at hundreds of millions of dollars and, just as importantly, to serve the public during non-working hours. If the employees were not required to live in the parks, it would be necessary to hire additional park rangers to man the parks around the clock, which we conservatively estimate would cost approximately three million dollars per year.”
Mr. Southworth indicates that the sole justification for the mandatory residency requirement is an economic savings to the state. The holding down of costs is a legitimate goal to be pursued by governmental entities. Moore v East Cleveland, 431 US 494, 500; 97 S Ct 1932; 52 L Ed 2d 531 (1977), Williams v Civil Service Comm of Detroit, supra, at 514-515. While government may create policies that seek to avoid unnecessary expenditures, it may not run roughshod over the rights of its employees in attempts to maximize savings. In this instance, by requiring the park managers to reside on their parks, the necessity of hiring additional security and public personnel is avoided. The record reflects that as a result of this policy the individuals concerned, as well as their families, are subjected at times to a degree of unpleasantness and living conditions that they would not voluntarily choose for themselves. However, we do not consider that the record contains sufficient evidence to have permitted the trial court or to permit this Court to determine whether the mandatory housing requirement of the DNR, standing alone, is unreasonable. We therefore decline to determine that issue, but rather assume its reasonableness for the purpose of further discussion.
A residency requirement, though in and of itself reasonable, may become unreasonable as applied. State, County and Municipal Employees Local 339 v Highland Park, 363 Mich 79; 108 NW2d 898 (1961). In this instance Civil Service Commission Rules 17.5, 17.5a, and 17.5b are applicable to individuals who reside in government-owned quarters. These rules state:
"17.5 Maintenance Allowance. — When allowances are made for maintenance or other purposes, they shall be considered as part compensation, unless specifically excepted by the commission.
"17.5a Allowance for maintenance such as meals, quarters, domestic or other personal services, medical care or treatment, laundry or other services or provisions, shall be deducted from the salary to the extent of its value as recommended by the appointing authority and the budget director with the approval of the State Personnel Director. The total amount paid to an employee, plus the value for any maintenance shall not be less than the minimum rate nor greater than the maximum rate for the class as provided in the compensation plan.
"17.5b When the maintenance is furnished it shall be optional with the employee to receive such maintenance except where it is necessary for the proper performance of the duties of the position. No employee shall be charged for maintenance not received.”
The net result of these rules is to require that the value of the housing provided an individual is to be considered as part of his total compensation, and that this amount must be subtracted from his stated salary to determine the amount of monetary compensation he is entitled to receive.
This system of deducting the value of housing received from the gross salary of park managers has always been enforced. Prior to 1972 the DNR determined this value based upon a point system. This point system is modified under the new Civil Service Commission policy and is the center of this controversy. It states:
"Rental Rate Determination:
"There shall be two structures utilized for payment, to the state, for tenancy in state-owned housing (rooms, apartments, houses). 1. The rental charge for housing that is occupied as a mandatory requirement of employment shall be 65% of the appraised open market value of the housing unit. Further reductions of up to 25% of the appraised value may be made for harassment of the individual or his family during non-working hours and up to 10% of the appraised value for an individual who is required to live in housing which is unsuitable for his family’s space needs. Reduction for harassment and family space needs must be recommended by the departments affected and approved by the Department of Civil Service. No mandatory employee housing unit will increase more than $30 per month in rental charges each year above the current authorized rental rate until the maximum chargeable rate is achieved.
"2. The rental charge for all other housing shall be 100% of appraised open market value.
"Appraisals of state-owned housing shall be the responsibility of the Department of Administration. Appraisal review shall occur no less than biennially, taking into consideration any changes in open market housing values and the condition of individual state-owned housing units. Where it is not feasible for tenants to pay directly for water, sewage, electricity and fuel, the estimated costs of such shall be reflected in the rent appraisal. A master list of all housing units, including appraised rental values and locations shall be provided to the Department of Civil Service, Bureau of Programs and Budget of the Executive Office, and Office of the Auditor General.” Policy Supplement to Civil Service Commission Rule 17.5a.
We note that both the old DNR system and the new Civil Service Commission system are merely different methods of calculating the amount of rental charge to be imposed upon the residents of state-owned housing.
In this instance it is difficult to justify the imposition of any rental amount upon these plaintiffs. The benefit of the residency requirement goes almost entirely in the direction of the DNR. This requirement enables the DNR to receive approximately three million dollars in services for which no compensation need be paid. It is true that the individual concerned does receive some incidental value from the receipt of housing, but this value is far outweighed by the restriction upon his personal liberty and the hardship placed upon his family. Accordingly, we find that the mandatory residency requirement of the DNR, when coupled with the imposition of rental charges, constitutes unreasonable governmental action and is impermissible. The DNR is not prohibited from maintaining a mandatory residency requirement for these employees, but the Civil Service Commission in its position as ultimate regulator of all conditions of employment for the classified civil service may not require the payments of any sums for occupancy of state-owned housing which is occupied pursuant to a mandatory requirement of the DNR.
Reversed. No costs, a public question being involved. | [
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] |
Brooke, J.
(after stating the facts). Plaintiff in his original brief makes the contention that the only title held by defendants under their deed from Dunn is the assignment of a mortgage interest which was never foreclosed. While it is true that Minnie’s deed to Dunn and the land contract back from Dunn to Minnie and wife were understood by the parties to operate as security, merely, for the payment to Dunn of the amount of Minnie’s lumber bills, yet while the transaction amounted in equity to a mortgage it was nevertheless a deed in form and it required a deed from Dunn to revest the title in Minnie. McArthur v. Robinson, 104 Mich. 540. Dunn’s title instead of being reconveyed to Minnie was conveyed directly to defendants at Minnie’s request and for a valuable consideration, to wit: the payment of Minnie’s debt to Dunn, amounting to $120.
It is asserted that the answer and cross-bill should have been stricken from the files and no testimony received thereunder as being in violation of Circuit Court Rules No. 21, § 10, No. 24, § 1, and No. 26, § 2. With this view we are unable to agree. The bill set up a claim of title in and possession of the property in question and prayed for an injunction preventing*defendants from interfering with said possession. The averments of the bill were clearly sufficient to clothe the court of equity with jurisdiction of the parties and subject-matter of the suit. The answer and cross-bill asserted title and possession in defendants and prayed that the deed under which plaintiff claimed title be declared invalid. While a court of equity is not ordinarily the proper tribunal for the trial of title to real estate (Andries v. Railway Co., 105 Mich. 557, Cromwell v. Hughes, 144 Mich. 3), we are of opinion that where plaintiff himself had sought relief in a court of equity and had by the averments of his bill clothed it with jurisdiction, the court should retain same for the purpose of finally determining the rights of the parties and awarding complete relief. Hall v. Nester, 122 Mich. 141.
In the plaintiff’s reply brief he argues that Minnie’s oral instruction to Dunn to convey to Childs directly upon payment to Dunn by Childs of his, Minnie’s, debt of $120, is insufficient under the statute of frauds (3 Comp. Laws 1915, § 11975); that what Minnie conveyed by his action was an interest in lands and therefore void under the statute. In this connection it must be remembered that the legal title stood in Dunn at the time Minnie instructed him to convey to Childs; that he, Minnie, received a valuable consideration for said conveyance through the payment of his debt to Dunn and that the transaction was fully consummated by the payment of his debt and the making and delivery of the deed. Under such circumstances, of course, Minnie would be held to be estopped from making any claim to the lands in question. Faxton v. Faxon, 28 Mich. 159, 2 Herman on Estoppel, p. 1059. A case in principle not to be distinguished from the one at bar is Sullivan v. Dunham, 42 Mich. 518. In that case the vendee handed the land contract back to the vendor and the vendor convejred the title to another. The court said:
“For the particular purpose to be accomplished in this case, however, this was completely effectual, for it is not pretended that Gordy’s title from Sullivan is defective for want of the written surrender. This, however, does not appear to us important, as we think the judgment may be sustained on familiar principles.
“When the agreement sued upon was made between Sullivan and Dunham, each party was owner of -an interest in the land which was afterwards traded with Gordy. It was agreed between them that Sullivan might dispose of both interests to Gordy, accounting to Dunham for what he obtained, according to a certain basis which was agreed. He did trade accordingly, and Dunham now calls upon him to .account as he agreed. Now it is of no importance whether or not the authority given by Dunham to Sullivan was sufficient in law; for, as already stated, the title has passed to Gordy, and if Sullivan’s authority to trade with him was originally insufficient, Dunham by demanding his share of the price and bringing suit to recover, has affirmed the transaction, and ratified whatever was before imperfect.
“The agreement that Dunham should surrender his contract in order that the trade with Gordy might be made, evidently meant no more than this: that he should give up the contract and make no further claim under it. It is not at all likely that the word ‘surrender’ was used or understood by the parties in any technical sense. Dunham was. to permit Sullivan to dispose of his interest in the land: that was the Essence of the agreement, and it had been complied with. By his consent in the first place to what Sullivan proposed, and his acquiescence afterwards, he has precluded himself from asserting any further rights under the contract.”
In the case at bar instead of handing his contract to Dunn, Minnie asserted (falsely as it now appears), that he had lost or mislaid the same. See, also, Miner v. Boynton, 129 Mich. 584. It is finally asserted on behalf of plaintiff that inasmuch as the contract from Dunn ran to Minnie and wife, Minnie alone could not surrender the same; citing Bauer v. Long, 147 Mich. 351. Under the facts disclosed m this case we think it fair to assume that Minnie, in the transaction, acted for himself and his wife. They had abandoned the farm several months before the transaction in question; had paid nothing upon either the $800 mortgage, the Dunn contract, or the taxes. It is unnecessary, however, to pass upon this question as it was not raised in the court below and therefore should not be considered in this court. Gleason v. Stone, 200 Mich. 187, and Ward v. Carey, 200 Mich. 217.
We think it quite clear from a perusal of this record that plaintiff, after he discovered that the Lobes mortgage was discharged, conceived the idea of acquiring the farm in question for the amount of Minnie’s. debt to him plus $75 apparently due to Dunn. In furtherance of this design he obtained surreptitious possession of the place; maintained possession by force and thereafter invoked the aid of a court of equity to protect him therein. As was said in the case of Toledo, etc., R. Co. v. Detroit, etc., R. Co., 61 Mich. 9:
“It needs no discussion to show that an injunction against a party’s holding his own possession is the same thing as turning him out of possession, and is utterly illegal before a final decree.”
Here defendant was in such possession of the property as its character and condition required and plaintiff’s invasion thereof was clearly unwarranted and in our opinion in bad faith. Plaintiff by his acts has violated the cardinal principle of equity jurisprudence that he who seeks equity must come into court with clean hands. For this reason alone his bill should be dismissed.
The decree is affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Per Curiam.
On April 6, 1917, defendant Andrew Murray was adjudged guilty of contempt of court and fined $10 which was then paid. Later he filed claim of appeal and perfected the same. After the submission of the case in this court we requested briefs from counsel upon the right of the defendant to appeal from the order which had been- satisfied, and upon the power of the court to hear and determine the case. Such briefs have been filed. They have been read with care and all authorities cited have been examined. We are convinced that upon this record the questions are purely academic; that no real and substantial controversy is before us; that the order of the court below haying been satisfied and the fine paid no relief can be now granted appellant. The defendant by his own act has discharged the order entered by the court below. There is nothing before us for determination People v. Leavitt, 41 Mich. 470; Powell v. People, 47 Mich. 108; City of Ishpeming v. Maroney, 49 Mich. 226; State v. Conkling, 54 Kan. 108 (45 Am. St. Rep. 270, 37 Pac. 992); Washington v. Cleland, 49 Or. 12 (124 Am. St. Rep. 1013, 88 Pac. 305); Town of Batesburg v. Mitchell, 58 S. C. 564 (37 S. E. 36); 3 C. J. p. 358 et seq. This court should, of its own motion, decline to consider cases it has not the power to determine. J. F. Hartz Co. v. Lukaszcewski, 200 Mich. 230; Bolton v. Cummings, 200 Mich. 234; Miller v. Johnson, 201 Mich. 535. The appeal will be dismissed but without costs. Maxfield v. Freeman, 39 Mich. 64; First Nat. Bank of Pt. Huron v. Mellen, 45 Mich. 413. | [
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Fellows, J.
On the 2d day of September, 1913, defendants as vendors and plaintiffs as vendees entered into a land contract for the sale of the premises located at No. 1621 Jos. Campau Street, in the city of Detroit. The contract was in the usual form. The purchase price was $4,200, of which $1,000 down payment was acknowledged. Interest was to be paid semi-annually, December 10th and June 10th of each year; $100 on principal was due and payable at each interest period with the privilege of paying more, and the whole sum was payable in five years. There was a mortgage on the premises held by the Union Trust Company for $1,500. December 10th following, $73.05 was paid; this slightly exceeded the interest then due; $96 was paid June 10, 1914. Some time in May or June, 1914, the store building on the premises was practically destroyed by fire. The adjustment of the insurance does not appear to have been completed until the following fall when a check of the insurance company for $1,884.77 was turned over to the trust company. It deducted the amount due on its mortgage, $1,531, and the balance of $353.77 was applied on the land contract and a receipt therefor given. To this point the parties seem to be agreed as to the facts.
From this point on there is a decided conflict in the testimony, which largely revolves around the question of whether a forfeiture of the contract had been declared. We are clearly satisfied, however, that the parties themselves treated the contract as fully in force and binding upon them; that the defendants personally never took any steps to forfeit it, and regarded it as in force. Mrs. Temerowski, who appears to have acted for herself and husband, was called as an adverse witness under the statute and cross-examined at some length. Her testimony in many regards is unsatisfactory and not convincing. She does, however, testify that this transaction was a loan and frequently speaks of it as a mortgage. She says: “What I wanted to get was six per cent, interest on my money, and so long as I got my six per cent. I was satisfied.” Whatever steps were taken looking to the forfeiture of the contract were taken by a man named Dornzal ski, a real estate agent, who seems to have acted for the defendants in loaning money. His testimony conflicts with that given by the plaintiffs in material matters ; it is also self-contradictory and differs from that given by Mrs. Temerowski in some regards. That he was desirous of forfeiting this contract is apparent as he had a cash customer for the premises at a sum considerably in advance of the amount due on the contract. He sent to plaintiffs by registered letter notice of forfeiture of the contract but the letters were not received by them and were returned to the writer. He commenced proceedings to recover possession before a circuit court commissioner and secured a judgment for restitution, but it is admitted plaintiffs were not personally served, and we are satisfied knew nothing of the proceedings. Other claimed attempts to forfeit the contract are denied by the plaintiffs. It is not seriously disputed but that a tender was made to Mrs. Temerowski of $1,470, the amount due on the contract, and a demand made for a deed and abstract, which was contracted to be furnished. Whether the money to make the tender was furnished by plaintiffs themselves or was advanced by one who expected to purchase of them after they had acquired title is unimportant. The abstract was then in the hands of Domzalski and it is quite probable he at that time had a power of attorney to transact business for the defendants. Shortly after the tender, the premises were sold by the defendants through Domzalski to defendant Krause for $2,400. Mrs. Temerowski testifies they only received $1,600 of this sum, the balance being retained by Domzalski. Domzalski denies this, but is unable to tell either from his books or his memory how much he got out of the transaction.
The bill as filed originally, as appears from the files in the clerk’s office, was against defendants Temer owski alone. The relief sought was specific performance. Later the sale of the property to Krause was learned and the amended bill making him a party was filed. Outside the question to which we shall presently refer, the questions involved must be determined upon disputed and conflicting testimony. Time was not made the essence of the contract, and the question here is not so much a question of whether there had been default in some of the provisions of the contract, as it is whether there had been a, forfeiture of the contract, and whether the parties themselves did not treat the contract as in full force until Domzalski found a customer at a price nearly $1,000 above the amount due on the contract. The trial judge was of the opinion that plaintiffs had made a case for specific performance against defendants Temerowski, and that defendant Krause was a bona fide purchaser of the premises. With both of these conclusions we agree. The defendants Temerowski, having parted with their title to the premises, could not specifically perform their contract with plaintiffs. The court therefore entered a decree for the amount of their damages. We do not understand it to be claimed that such a decree was not proper under the findings of the court. Nor is it pointed out, and we do not discover, that it is incorrect in amount. The court, having acquired jurisdiction of the case and the parties, should dispose of the controversy. The decree was a most equitable one. Unless there are insuperable legal objections it should be affirmed.
When plaintiffs’ counsel offered the contract in evidence it was objected to by counsel for defendant Krause. The ground of objection being that the specific tax provided for by Act No. 91, Pub. Acts 1911 (1 Comp. Laws 1915, § 4268 et seq.), had not been paid. There was some discussion of the question, but the court did not dispose of it and suggested that it might be brought up again. The record does not disclose that the attention of the court was again challenged to it. It is here urged by the appealing defendants that the court should have declined to receive the contract in evidence and that the decree based upon it should not stand. Plaintiffs are seeking the enforcement of this contract and we are not here concerned with the question of which party should pay the specific tax provided for in this act; nor have we a case before us where the court Has finally decided against objection that an instrument within the purview of that act is admissible in evidence without the payment of a specific tax, and that it furnishes the basis for affirmative relief. Undoubtedly, had the objection been insisted upon, the trial court on the authority of Nelson v. Breitenwischer, 194 Mich. 30, would have required the payment of the specific tax before the case was proceeded with. In Lake Erie Land Co. v. Chilinski, 197 Mich. 214, we declined to. consider this question where it was raised for the first time in this court in a reply brief. Here the point was made in the court below but the decision of the question was postponed. We think under the circumstances the tax should be paid as a condition of affirmance of the decree, and that the case should not be reversed on this question alone.
The decree of the court below will be affirmed on the payment of the specific tax within 30 days, otherwise it will be reversed. No costs will be allowed.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. | [
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Stone, J.
The bill of complaint herein was filed for the purpose of obtaining cancellation and surrender of certain deeds executed by the plaintiffs to the defendants Robert O. Toan and wife, and an abrogation of plaintiffs’ contract or bargain of purchase of a certain farm taken in exchange therefor. In May, 1915, the plaintiffs were the owners of five houses and lots, all subject to mortgages, in the city of Jackson, which they had listed with Harry J. Holt, a real estate agent, to sell for them, and he had examined the properties. The defendants Robert O. Toan and his wife, Edna M. Toan, owned an equity in a farm of 105 acres in Columbia township, Jackson county, known as the Johnson farm, which they held under an assignment of a land contract bearing date August 7, 1912, made by James Johnson and wife of the first part, and John H. Griffith and wife of the second part, the consideration of which was $4,000. This contract had been assigned by said Griffith and wife to said Toan and wife on October 5, 1914, in a trades for certain other Jackson real estate. Eight hundred dollars had been paid upon this contract, and it provided that on October 1, 1915, there would be due thereon $160 of interest, and $200 of principal. This property, by the Toans, had been also listed with Holt for sale. Both the plaintiffs and said defendants Toan were, in a measure, represented by the said Holt.
The case presents mainly disputed questions of fact, and there is a great conflict in the testimony of the parties, and the record is a large one. The learned circuit judge, after hearing all of the testimony, upon the final hearing, denied relief to the plaintiffs and dismissed the bill of complaint. The plaintiffs have appealed, and they state that the grounds upon which their appeal is based are:
(1) That there was no valid delivery of the deeds.
(2) That the consideration has wholly failed.
(3) That defendants secured possession of the deeds fraudulently.
The manner in which the exchange of properties was brought about is pretty well illustrated in the testimony of the plaintiff Ira Van Auker. On direct examination, after describing the Jackson city lots and property, he testified:
“I first met Holt in April, 1915. He came to our place with a gentleman to look at the house we had for sale. I didn’t know anything about the Johnson farm then. Mr. Holt came up to our place about a week later to look those houses over, and we listed them with him to sell.
“Q. When did you first learn of the Johnson farm?
“A. It wasn’t but a very short time after that he came to our place and he said he had a man on the string, he thought he could change those houses into a farm for us if we saw fit and get them condensed. I said to him we didn’t care for a farm. He said, T can change that farm for you right away into a block where you will have your property condensed and get out of debt.’ We considered — we had him look this deal up. He didn’t mention the Johnson farm at that time. A few days after he made the proposition about the Johnson farm. I wasn’t at home. I was in Battle Creek then. It must have been about the first of May that we discussed the matter. He had told my wife about this and she asked my opinion about trading for this place, and I said if the farm was worth the money, and he could change it off in such a way as we could get out of debt, that was what we wanted to do.
“Q. Was there any other talk until the 10th day of May?
“A. Not with me, no, sir.
“Q. On the 10th of May these deeds were made out, were they?
“A. Yes, sir. Just let me make one more statement. When I came home Saturday in the evening, he had made the proposition with my wife that he’d take us out to this farm on Sunday morning, all three of us (myself, my wife and son) to look the farm over, and I said I wouldn’t go on Sunday to look a piece of property over, and in the first place I wasn’t a judge of farm property, and he claimed to be a judge, and I said ‘let — if he is the judge that he says he is, he has been in it a lifetime — let him look the property over and if he is satisfied we can get the worth of our property out of it, we will make the change.’ The day the deeds were signed, we met at Holt’s office. I did not see Mr. Toan on that day.
“Q. Up until the time this deal was made had you talked with Mr. Holt about a land contract; anything said about a land contract?
“A. No, sir. There was an agreement by which the farm was to be retained by Toan until the first of November, and we were to retain the home we lived in. There was nothing further until fall, more than this. We called Holt two or three different times to get a deed of the farm and get it recorded, and he put us off, saying he had the deal for the block nearly completed, and to leave it in his safe until this was completed, and then we could make the change all at once.
“The Court: Did you suppose you were getting a deed?
“A. Yes, sir, never supposed that we were getting anything else but a deed.”
One cannot read this record without being satisfied that at this time both the plaintiffs and the defendants Toan and wife placed implicit confidence in the man Holt, who turned out to be dishonest, and later left the country. The only writing relating to the deal, save the deeds Of the houses and lots, and the assignment of the land contract from Toan and wife to the plaintiffs, consisted of the written agreement by which the defendants Toan were to retain the possession of the farm until November 1, 1915, and the plaintiffs were to continue to occupy one of the houses, involved in the sale in which they then lived, until November 1, 1915. The deeds that were executed upon the 10th day of May, 1915, were left with Holt, who also had the assigned land contract in his possession. Just what the understanding was, as to the delivery of the deeds was one of the disputed questions in the case, it being the claim of the plaintiffs that the deeds, as they testified, were left in escrow with Holt to be held by him until the whole matter was consummated.
It is the claim of the defendants Toan that the deeds were delivered absolutely to them, and that they were simply left in the possession of Holt as a sort of collateral security for the payment of a certain note for commissions, that had been given by defendant Robert O. Toan to Holt, and which note Holt had indorsed and discounted at a bank in Jackson.
It is significant and somewhat unusual, that the plaintiffs in this trade had personally no interviews-with the defendants Toan, but that Holt was the go-between in all of the negotiation. Possession had been, given to the defendants of the city property, with the-exception of one house occupied by the plaintiffs. There had been turned over to the defendant Robert O. Toan certain building and loan association books, relating to the mortgages upon the Jackson city lots, and certain money had been paid by defendant Toan to the building and loan association; a furnace and electric lights had been put in one of the houses which had been deeded to Toan and wife, and said defendants took charge of the property conveyed, renting portions thereof, with the one exception mentioned.
Things ran on until October 1, 1915, when Johnson, the owner of the farm in question, called the at tention of the plaintiffs to the fact that an installment of principal of $200 and $160 of interest were due on the contract upon October 1, 1915, and that unless those amounts were promptly paid he should take steps to forfeit the contract. Although the plaintiffs claim in their testimony that they supposed they were receiving a deed of the Johnson farm subject to a mortgage of $3,200, yet they made an effort to raise the money to pay the installment due upon the contract, but were not successful. Johnson proceeded to declare the contract forfeited, but later offered to receive the amount due upon the contract, which would reduce the amount unpaid to $3,000, offering to deed to the plaintiffs, they giving him a mortgage back for $3,000, in accordance with the terms of the contract. This offer plaintiffs did not comply with, but refused to pay anything. After the plaintiffs were informed of the conditions surrounding the farm and the nature of their title thereto, or interest therein, which was about October 1st, they took no steps to rescind the trade.
The defendants Toan and wife, .about the middle of November, moved from the farm into one of the houses deeded to them by the plaintiffs, and adjoining the one occupied by the plaintiffs, and proceeded to collect the rents upon the other houses, except the one occupied- by the plaintiffs. The defendants also disposed of one of the houses and lots deeded to them, realizing a small sum therefor, and generally took charge of the property. Soon after this, and probably in the month of November, 1915, the plaintiffs consulted Mr. Kirkby, an attorney who had been doing some business for Johnson, relating to the forfeiture of the land contract. Mr. Kirkby was sworn as a witness in the case, and it appears from his testimony that the burden of the complaint of the plaintiffs to him was that Holt had misrepresented to them the value of the Johnson farm; that he had represented to them that the property was worth at least $5,000 over and above the incumbrance upon it; that he had promised to exchange that farm for certain property in the city of Jackson, known as the Pope block, on Francis street, and that they had placed implicit confidence in him.
This record shows that the plaintiffs have to blame their own credulity in believing all that Holt said to them. Mr. Kirkby saw Holt, who promised to adjust the matters, and Kirkby testified that he at that time learned that the deeds of the houses and lots in Jackson were still in the hands of Holt, and that Holt promised the same should not be delivered until the whole matter was adjusted. Mr. Kirkby advised against the payment of anything upon the land contract. Mrs. Van Auker, one of the plaintiffs, consulted with Mr. Kirkby, and upon that subject he testified as herein stated in the opinion of the court.
Holt left the country in December, 1915, and as the record shows he never returned. He left his office in charge of a Mr. Harrison. Mr. Toan went to the office to obtain his deeds after learning that they had not been recorded, as he claims Holt promised should be done and. the fees paid, as Holt had money in his hands belonging to Toan, arising from rents collected, and other moneys that he had collected and finally got away with. Harrison testified that Holt had said to him that the deeds were kept by him as collateral security for the note which had been given him by Toan for commissions, and which had been discounted by Holt at the bank; and that he would deliver the deeds to Toan as soon as that note was paid, or in some way canceled so far as his liability was concerned. Toan called upon Harrison for the deeds. He had canceled the Holt note by a renewal thereof, so that Holt was no longer liable thereon, and.claimed that he was entitled to the deeds. Harrison made search and could not find the deeds, but there was one compartment in the safe of which Harrison had no key. He later obtained the key to that drawer, opened it, and found the deeds, which he delivered to Mr. Toan, and the same were placed on record on February 21, 1916. Toan also served notice upon the plaintiffs to quit the possession of the house and lot occupied by them, and embraced in one of the deeds, they refusing to pay rent.
These are some of the salient points upon which testimony was given, and these conditions continued, until proceedings were brought by defendants Toan to obtain possession of the house and lot occupied by the plaintiffs, when the bill of complaint herein was filed on April 5, 1916, and an injunction was issued and served.
The learned circuit judge, in a carefully considered opinion, reviewed the testimony in the case at some length. The first question considered by him in his opinion was as to whether defendant Toan was shown to be a party to the fraud.
Second. Whether the transfer of properties was complete so that Holt may be said to have been holding the deeds of the Van Aukers for the defendants Toan. In other words, As to the Van Aukers, had there been a delivery?
Third. Whether delivery was or was not complete, Are plaintiffs now entitled to a rescission of the contract?
The learned circuit judge found upon the first point that there was no direct evidence of any fraudulent act or misrepresentation on the part of defendant Toan. In fact, it may be said, from this record, that the plaintiffs hardly knew the defendants Toan. They did business with the man Holt; and they allowed Holt to represent them in the trade. The circuit judge found that if the conduct of Toan was to be questioned in respect to his good faith, it could only rest upon inference or suspicion, and that the proofs in his judgment did not establish it; that fraud is not Co be presumed, or to be lightly inferred. In this view we are constrained to agree with the trial judge. We are of the opinion that the plaintiffs have not sustained the burden of proof placed upon them relating to this question.
2. Upon the second and third points the circuit judge reached a conclusion which he stated as follows:
“2. As to the kind of conveyance or transfer to be made by Toan to the Van Aukers and whether the transfer was intended to be complete, there is evidence on either side. The Van Aukers claim they were to have a warranty deed; that they were told the outstanding indebtedness on the farm was secured by a mortgage on which no principal was due for three years and that they had no knowledge Toan’s interest was only that of a vendee in a land contract or that a payment of $200 of principal besides $160 of interest fell due October 1st. They never went to inspect the farm; they never sought to ascertain, except from Holt, the nature of Toan’s interest in the farm; nor to have any abstract of title furnished or to be shown Toan’s deed, but trusted all to Holt.
''And before October 1st and soon after the execution of the deeds and the assignment of Toan’s contract of 'purchase, the parties began to perform and carry out their bargain. Toan took possession of a part of the property, disposed of another part. Whatever the parties did before October 1st I do not regard as so material and significant as what they did after that date. And it seems to be conceded that Holt was holding out to the Van Aukers that he' could, trade their equity in the Toan farm for a certain building in Jackson and if not, he could for other property and so improve their financial condition. After they learned of the situation of the farm, as to title and value, from its owner, Mr. Johnson, and on or about October 1st, they consulted Mr. Kirkby, who was then also the attorney for Mr. Johnson, who was seeking payment of the interest and $200 installment of the principal. They then learned the condition as to title and Toan’s interest in the farm when Johnson pressed for pay October 1st, or very soon thereafter.
_ “After that they sought to have Holt make things right and directed him to keep in his possession the deeds made by the Van Aukers and all papers then held by him until he should make things right. He promised to do this. After some delay he absconded. Then Toan went to Holt’s office and induced the person in charge to permit him to obtain the deeds. He claims they were his and that he was entitled to them. They claim they were not his, that Holt was simply the custodian holding them in escrow; that they had the right to recall them and that Toan can derive no advantage from so obtaining the possession of these conveyances. I am inclined to think I need not finally pronounce an opinion upon this question, as I think the next proposition I discuss may dispose of it.
“After October 1st the Van Aukers seem to be laying all responsibility on Holt and to be pressing him to make things right. Toan was still in the possession of the Johnson farm; Johnson was pressing for payment. They visited Kirkby, Johnson’s attorney. They even make some proposition to turn over a contract to satisfy Johnson, which Kirkby informs them Johnson will not accept. They seem even at that time disposed to make some arrangement and to keep the farm. Kirkby testifies that from what he learned of the_ entire transaction, Holt was trying to defraud plaintiffs out of their property. He says Holt was evidently delaying the thing and it looked like he was going to beat them out of all the property they had. And during the arguments of counsel, Kirkby was again placed on the stand and the following occurred:
“ ‘The Court: Did she make complaint that if the deed had been given to Toan it was wrong, in violation of any understanding?
“ ‘A. X don’t think she did at first until she found out the condition of affairs, then, of course, she became satisfied everything was wrong.
“ ‘Q. I know, hut I want to get the conversation; if she made any claim that the deed wasn’t to he delivered until some other things were all done, and if it had been delivered it was contrary to the understanding by which. Holt held it. Did she make any such claim as that?
“ ‘A. I don’t believe so.’
“And it must be remembered that no notice was given to Toan of any rescission, nor that he should not receive the deeds, or obtain them, or that he should not take further possession of the Van Auker property, or that they would not accept, assume or perform the land contract and that to save it from forfeiture he must himself perform its conditions. Nor was any demand made upon him to give up or re-transfer any of the property of the Van Aukers over which he had taken control or exercised dominion.
“In addition, in November they permitted him to move into one of the houses on one of the lots they had executed deed of to Toan, and without protest or objection although that lot was next to their own home, or the house they occupied. They did not, of their own accord nor under the advice of Mr. Kirkby, make any claim or demand on Toan or give him any notice whatsoever.
“All this seems to have a material bearing upon the question as to the character of the delivery. However, as I before remarked, the next proposition I discuss, in view of my conclusions respecting it, I will not lay down any final opinion upon this question as to the character of the delivery to Holt or his possession or custody. Nor have I assumed to refer to or review all of the testimony on both sides bearing upon this question of delivery.
“3. If all the contentions of the Van Aukers as to fraud on Toan’s part and as to delivery were to be resolved in their favor, still would they now be entitled to a decree for a rescission or cancellation and restoration of their title?
“I understand the rule of law to be that one who is defrauded by another in respect to a contract- may either rescind or stand upon his bargain, ratify and confirm it.
“I also understand it to be the duty of one who desires to rescind or repudiate a bargain because of fraud, to act promptly on discovery of the fraud and riot to proceed further or continue to act under the contract or recognize it as binding. As before stated, the Van Aukers learned the truth on or about the first day of October respecting Toan’s title , to the farm; the condition of his contract as to payments; the amounts paid and owing; the purchase price and everything they now know pertaining to Toan’s interest and the terms on which he held and the value of the farm. They make all of their complaints to Holt and to Johnson and his counsel, Kirkby, who also advises them. They do this early in October. Toan still lives on the farm. They give him no notice of a rescission nor make any demand for him to yield up any property he has received from them. They do not forbid his moving onto one of the lots traded to him. He does not do so until after the middle of November. They do not talk to him at all about the situation. Their attorney does not.’ They urge this was not necessary, as Holt was his agent as well as theirs. But I hardly think Holt was such an agent of Toan’s that under the circumstances no other notice to him was necessary. They at least could have mailed him notice or sent it by Johnson, or have been prompt in letting him know that he must give up what he had enjoyed under the deal with them; that he could have nothing further; that they would not take possession of his farm or assume and perform' the contract of purchase and that he must take care of his contract, rights or lose them. I cannot help suspecting this would have been done had Mr. Kirkby known there was any claim that Toan was guilty of fraud or of participation in it.
“On the contrary, Toan is suffered to ignore the Johnson contract, to let it be forfeited; to move off the farm and to move into one of the Van Auker houses with full knowledge on the part of the Van Aukers that they had been deceived and defrauded. They knew as much early in October as they know now, or at least might have known, but they suffer Toan to change his situation and his relation to the farm and lose by forfeiture such rights as he had and to his pecuniary loss and even to go on unopposed to take possession of additional property under his contract arrangements with the Van Aukers. And they do not in this proceeding offer to restore to him what he turned over to them, nor can they now do so, but remained silent and inactive as to him, and themselves permitted the forfeiture to become complete and Toan’s loss of his contract interest to become final and irreparable.
“If they believed Toan himself was a party to the fraud and if he was such party, still it was their duty to act promptly, after they knew of the fraud _ and not to hold the contract and permit the forfeiture without giving Toan the opportunity to himself provide against it. He who asks equity should do equity. What he has obtained under a fraudulent contract he should restore if he asks a return of what he has parted with.
“As to the defendants Mr. and Mrs. Toan, I think it must be held that the Van Aukers cannot now rescind. If there was fraud to which Toan was a party, the repudiation of it has not been timely. If so, as to Toan and wife, the contract must be held to be in force.
“It results from these findings that the bill must be dismissed.”
After carefully reading and considering the testimony in this case, we have reached the conclusion that the circuit judge might well have found in favor of defendants upon the second question; that he made a proper disposition of the case, and that from all the evidence in the record, we do not feel justified in changing the result reached by him. The decree below is in all things affirmed, with costs to the defendants to be taxed.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. | [
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Kuhn, J.
This is an action for slander. The plaintiff is a woman 60 years of age, and it is her claim that on the 30th day of June, 1917, on a public street in the city of Flint, and in the presence and hearing of other persons, the defendant called her “Nick Myers’ old whore.” The defendant filed a plea of the general issue and gave notice of justification. The trial resulted in a verdict for the plaintiff in the sum of $5,000.
1. The defendant sought to show, under her plea of justification, that the plaintiff, before she was divorced from her husband in 1899, and while she was living with him in the township of Flushing, Genesee county, was intimate and guilty of adultery with one Sylvester Loop. This testimony was ruled out by the trial judge. We think that this character testimony which was offered was too remote to warrant its admission, because there was no evidence offered by the defendant to show a continuance of the act or like acts from 1899 until she became acquainted with Nick Myers, the husband of the defendant, in 1911.
It is further claimed that the court erred in not permitting the witness, Harry Wethered, one of the witnesses for the defendant, to answer the following question:
“Q. What position have you seen them in there, Mrs. Rowe and Mr. Myers, in the real estate office?”
The relations of the plaintiff with Nick Myers, the husband of the defendant, were very pertinent in this inquiry, for the reason that the defamatory words complained of charged the crime of adultery with the said Nick Myers. In our opinion, the witness should have been allowed to answer this question, as it seemed to be an effort on the part of the defendant to prove the truth of the very charge which she made against the plaintiffs It is clear that, under the authority of Smitley v. Pinch, 148 Mich. 670, the evidence was not admissible for the purpose of proving plaintiff’s character, but we do think that the evidence was admissible for the purpose of showing the truth of the slanderous statement.
2. The second contention of appellant’s counsel is that the court erred in permitting the witness, Homer J. McBride, to testify as to what occurred in his office, the testimony showing, that at that time’ Mrs. Myers called Mrs. Rowe names of the same nature as the ones she is alleged to have called Mrs. Rowe on other occasions and for which this action is brought. We think this evidence was admissible to show malice on the part of the defendant. See Leonard v. Pope, 27 Mich. 145; Fowler v. Gilbert, 38 Mich. 292; Cadwell v. Corey, 91 Mich. 340; Simons v. Burnham, 102 Mich. 199; and Everhart v. Clute, 203 Mich. 115. By these authorities it seems to be well settled that in an action for slander the plaintiff, after proving the words alleged, may give in evidence other slanderous words of like import to show malice, or may show a repetition of the slander in aggravation of damages; nor does the rule limit the evidence to verbatim repetitions, but allows proof of substantially similar slanders likely to make the same impression in the community. We are, therefore, of the opinion that there was no error in admitting this testimony.
3. It is next alleged that the court erred in allowing the plaintiff to introduce evidence tending to show her good reputation as to chastity and morality, when under previous rulings of the court no evidence had been admitted on the part of the defendant to show that the plaintiff had a bad reputation in that respect, and the case of Kovacs v. Mayoras, 175 Mich. 582, 590, is relied upon, where this court said, in the opinion written by Mr. Justice Stone:
“The rule that defendant may show the general bad reputation of the plaintiff in an action of this nature does not permit the plaintiff, in the first instance, to open the door by general evidence tending to show his good reputation. We think the court was in error in admitting this testimony.”
Counsel for appellee admit that this statement of the rule is correct, but it is contended and urged that by filing the plea of justification the defendant assails the reputation of the plaintiff, and that this amounts to a general attack, which permits the plaintiff to rebut the attack by offering evidence to show her good reputation, and that therefore the case falls under the rule announced in Smitley v. Pinch, supra, that where defendant has submitted testimony tending to show plaintiff’s general reputation for chastity to be bad, the plaintiff thereupon can rebut this evidence by other evidence to show good reputation. Mr. Chamberlayne in his work, The Modem Law of Evidence, § 3281, vol. 4, says with reference to this rule:
“Evidence of the good character of the plaintiff in an action for libel or slander has frequently been received where the alleged slanderous words charged a crime and the defendant pleaded justification, as that the words spoken were true. The evidence has been received even where the alleged slanderous words did not charge a crime. Where no justification is pleaded, or where a justification is pleaded, but no evidence offered under the plea, the evidence is rejected.”
In the case before us we have the plaintiff charged with a crime, and justification is pleaded, and an attempt was made by evidence under the plea to prove the charge. The rule is also referred to in the case of Fahey v. Crotty, 63 Mich. 383, 388 (6 Am. St. Rep. 305), where it is said:
“In civil actions, with the exception of those cases where, by the pleadings, the character of the party is put in issue, the weight of authority is against the admissibility of such testimony to rebut imputations of misconduct or fraud,”
—and a great number of cases are cited. On an examination of the record and briefs of the case of Kovacs v. Mayoras, supra, we are satisfied that it is easily distinguishable from this case, because in that case, in the notice given under the plea, the defendant denied that the article alleged in the plaintiff’s declaration should be construed as alleged in the declaration, and denied each and every innuendo alleged in. the plaintiff’s declaration, and insisted that under the plea of the general issue, the article as printed and published in his newspaper mentioned in the declaration is true in the ordinary meaning and generally accepted sense thereof. It is therefore seen that the defendant did not admit in that case any libelous article, and the pleadings, therefore, did not charge the plaintiff with anything which was conceded to have been libelous. Here the plea of justification admits the slanderous statement and seeks to justify its truth. We are of the opinion that there was no error in admitting the testimony complained of.
4. Defendant’s counsel preferred the following request to charge:
“I further charge you that a whore is a woman who practices illicit sexual intercourse, either for hire or reward or to gratify a depraved passion.”
The trial judge in his charge gave a part of this request in its exact language, but eliminated therefrom the words, “or to gratify a depraved passion,” and it is here urged that the defendant’s request on this subject should have been given without modification. It is the claim of the defendant that the jury might have been led into the belief that it was necessary for them to find, in order to consider the defendant’s justification, that Nick Myers had paid the plaintiff money or given her reward. While we are not prepared to say that under the circumstances of this case we would reverse the case because of this alleged error, in view of the fact that we have concluded to send the case back for a new trial, we should say that we think that the court might better have given the request as presented, which gives the definition as accepted by the lexicographers in its most general meaning. See 8 Words and Phrases, p. 7456; 40 Cyc. p. 933.
5. It is next urged that the verdict is excessive, and that the amount arrived at must be the result of passion, prejudice or bias on the part of the jury. The amount of the verdict is not, in its nature,, susceptible of mathematical computation and rested necessarily on the judgment and discretion of the jury, but in this case there were no special damages alleged and proved, there were no special circumstances shown in aggravation of damages, and the only persons who were shown to have heard the defamatory words complained of were Mrs. Ida Merrill and William Bliss. While it is true that in cases of slander no precise rules can be laid down for the ascertainment of damages, yet it is the theory of the law that in such cases damages shall be compensative in character, and it has been held that such damages may be awarded as to properly compensate the plaintiff for injury to feelings, humiliation, and disgrace, and the actual damage from the injury itself. We have carefully examined this record, and when we take into consideration the very restricted publication of the alleged defamatory words, the age, social position, and character of the plaintiff, and it not being shown that her social position was in any way impaired on account of the defamatory words, or that she was shunned by her neighbors, we have come to the conclusion that, consciously or unconsciously, some other element must have entered into the minds of the jury than a desire simply to compensate her for the injury alleged. We think the trial judge erred in not granting a new trial on the ground that the verdict was excessive.
6. Some complaint is also made that the charge of the court was argumentative, but upon examination of the whole charge we are satisfied that the issues involved were fairly and clearly stated to the jury with proper instructions as to the law applicable thereto, and that the charge was not subject to the criticism made of it.
However, for the errors above referred to, the judgment is reversed and a new trial granted, with costs to the appellant. .
Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. Ostrander, C. J., did not sit. | [
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Stone, J.
This is a controversy between the claimant and her attorneys, Thompson & Temple, relating to the amount of attorney fees due to the latter for their services and expenses in the litigation of claimant’s claim for compensation in Opitz v. Hoertz, 194 Mich. 626. In that case this court held that the owner of the premises, Brown & Sehler Co., was liable under the workmen’s compensation law. After that case was remanded to the industrial accident board for further proceedings, such further proceedings were had which resulted in the allowance to claimant, as the dependent of her deceased husband, Fred May, of the sum of $5.54 per week for 300 weeks to be paid by Brown & Sehler Co.
The industrial accident board found that on April 25, 1917, there was due to , claimant $642.64 accrued compensation, and on April 30, 1917, Brown & Sehler Co. paid said $642.64 to claimant and she signed a receipt for that sum. The compensation due and to become due for the entire period of 300 weeks aggregates $1,662. Thompson & Temple, claiming that they had a contract with claimant in and by the terms of which they were to receive from her 25 per cent, of the amount recovered or awarded, for their services and expenses and having said check indorsed by claimant in their possession, caused the same to be cashed, and deducted and kept from the amount 25 per. cent, of the entire compensation awarded, or $415.50, as their attorney fees.
Claimant denied that there was any such agreement, or any agreement as to the amount of compensation; and presented to the industrial accident board her petition wherein she prayed, among other things, that said board should hear the petition and consider all the facts and testimony that might be produced, and fix the compensation that Thompson & Temple ought to have for their work and expenses, and that an order might be made specifying how much of said $415.50 said attorneys had the right to retain, and how much of it they should pay back to petitioner.
Thompson & Temple answered the petition setting forth their claim as above stated, alleging that the amount of their fees as agreed upon had been settled according to the terms of the agreement, and paid, and that the transaction was closed. Testimony was taken and the matter was submitted to the board. The record shows that by stipulation of counsel for the respective parties, “it was agreed that any of the records and files in the case, including the printed record, could be used by either party on the argument in this case or in their briefs.”
The industrial accident board in a written finding reviewed the facts in the case, and said in part:
“It seems to us that the only question in this case is, What was the value of "the services performed for Mrs. Frances May by Thompson & Temple as her attorneys? Section 10 of part 3 of the workmen’s compensation law provides in part as follows:
“ ‘The fees and the payment thereof, of all attorneys * * * for services under this act shall he subject to the approval of the industrial accident board.’ [2 Comp. Laws 1915, § 5463.]
“The board understands this provision to mean that the board has jurisdiction to fix the fees of attorneys as between themselves and the injured employees, or the dependents of injured employees under the-workmen’s compensation law. The attorneys, Thompson & Temple, deny this power of the board and claim in their brief that they had a right to make a 25 per cent, contract with Mrs. Frances May, and that the parties had a right to settle on that basis, and that they did so, and that there is nothing more to the matter.
“If this were an ordinary contract in an ordinary business transaction between the parties, that view might be correct, but it seems to us that it was the clear intent of the workmen’s compensation law to provide that the amount of-attorney fees for injured employees, and their dependents, should be subject to the control of the industrial accident board.”
After reviewing the evidence and the files and records before it, the board concluded as follows:
“From all the files, records, proceedings and testimony in this case, the board finds:
“ (a) That a reasonable allowance to Thompson & Temple, attorneys for Frances May in this case, to cover and pay for all their services, and to pay back any expenses they may have paid out, is the sum of $125.
“(b) That on or about April 30, 1917, said Thompson & Temple retained $415.50 of the money paid to Mrs. Frances May when they should have retained only $125, so that they have retained $290.50 more than they should have retained.
“(c) That said Thompson & Temple, a copartnership composed of George W. Thompson and Fred C. Temple, should forthwith pay to Frances May the said sum of $290.50.
“(d) That it is the duty of .the industrial accident board to pass upon the question of attorneys’ fees in this case.
“An order will be entered in conformity with the terms of these findings.”
A formal order was subsequently entered, and Thompson & Temple have brought the matter here for review, by certiorari.
There are many assignments of error; but in their brief, and upon the hearing before us, appellants relied upon the points that there was a contract between the parties, and a settlement, and for that reason the industrial accident board has no jurisdiction in the matter. And it was further contended that, if such power is given to the board by the statute above referred to, the same is unconstitutional and void.
1. An examination of the record satisfies us that there was evidence to sustain the findings of fact by the board, above referred to. The industrial accident board did not distinctly find whether or not the contract as claimed by Thompson & Temple with the claimant had been made. Conceding, but not deciding, that said contract was made as claimed by Thompson & Temple, it is not claimed that it was ever approved by the industrial accident board, as is required by section 10 of part 3 of the act. The provision of the statute above referred to is plain and unequivocal, and provides in terms that the fees and the payment thereof of all attorneys for services under the act shall be subject to the approval of the industrial accident board. We agree with the conclusion reached by the board, that under this provision it has jurisdiction to fix the fees of attorneys as between themselves and injured employees, or, the dependents of injured employees,. under the workmen’s compensation law. This view is not an anomaly; it is in accord with other provisions of the same statute. Section 5 of part 3 of the act (2 Comp. Laws 1915, § 5458) is as follows:
“If the employer, or the insurance company carrying such risk, or commissioner of insurance, as the case may be, and the injured employee reach an agreement in regard to compensation under this act, a memorandum of such agreement shall be filed with the industrial accident board, and, if approved by it, shall be deemed final and binding upon the parties thereto. Such agreements shall be approved by said board only when the terms conform to the provisions of this act.”
We have held repeatedly that the validity and binding force of an agreement between the employer and employee depend upon the approval of the board. A citation of the authorities upon this point is unnecessary. We think there is nothing unreasonable or inconsistent with the general terms of the act to hold, as we must, that attorney fees for services under the act in order to be valid and enforceable must meet with the approval of the industrial accident board. This, in a proceeding like the instant one, gives that board authority and right, upon petition and proper showing, to settle and fix the amount of compensation for services.
2. Referring to the question of the constitutionality of this provision and of the act generally, we need refer only to the case of Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8. In that case, on page 26, the following language was used by Justice Steere, who wrote the unanimous opinion of this court:
“It is urged that the clause of the act making attorneys’ and physicians’ fees in accident claims adjusted under its provisions subject to the approval of the industrial accident board, and providing that no payment under this act shall be assignable or subject to attachment or garnishment, or be held in any way for any debts, is unconstitutional as limiting the right of contract, preventing the injured party from em ploying an attorney of his choosing. In support of this contention, section 12, art. 2, of the Constitution, is cited, which is as follows:
“ ‘Any suitor in any court in this State shall have the right to prosecute or defend his suit, either in his own proper person or. by an attorney or agent of his choice.’
“The industrial accident board is not, in contemplation of law, a court, and a claimant before it for damages resulting from personal injuries is not strictly a ‘suitor in any court,’ but the right of a claimant to select and employ an attorney or agent to represent him in the matter is recognized by the provision referred to. These restrictions in the act, as applied to those who submit to its provisions by election, certainly cannot be held unconstitutional. They were deemed by the legislature proper and necessary to safeguard the interests of the class for whose benefit largely this act to ‘promote the welfare of the people of the State,’ was passed; they are germane to the .purpose of the act, and in the light of conditions previously existing in litigation over personal injuries to workmen, of which courts of last resort have, taken judicial notice in construing workmen’s compensation hcts, are beneficial and appropriate, if not essential, to an efficient administration of the law.
“We do not deem it necessary to review in detail the underlying reasons which are recognized as fully justifying and sustaining these special provisions, but those interested in that particular will find them graphically elaborated by Judge McPherson in Hawkins v. Bleakley, 220 Fed. 378, and discussed in detail in Cunningham v. Improvement Co., 44 Mont. 180 (119 Pac. 554), and also pertinent reflections by Lord Justice Stirling in Ayres v. Buckeridge [1902], L. R. 48 K. B. Div. 57.”
It is urged by counsel for appellee that this court should enter judgment in this proceeding, and cause execution to be issued for the amount thereof. An examination of the statute referred to by counsel, satisfies us that this court has no such power. No judgment has been entered in this proceeding, and neither the industrial accident board nor this court has authority to enter a judgment. This is a special statutory proceeding; an exercise of the police power of the State.
The order of the industrial accident board is affirmed, with costs.
Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. | [
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] |
Stone, J.
The bill of complaint in this case was filed to remove an alleged cloud placed upon the title of certain real estate held by the entireties by the plaintiffs, by reason of the sale of the same upon execution in favor of the defendants herein, issued upon a joint judgment against the plaintiffs herein.
Counsel for plaintiffs and appellants state in their brief that the sole and only question presented is whether lands held by a husband and wife as tenants by the entirety are subject to levy and sale by virtue of a writ of fieri facias issued upon a joint judgment against husband and wife. The record shows that on January 7, 1918, in the circuit court for the county of Mecosta, in a suit at law involving the fraud of the defendants there pending, wherein Louis F. Ber trau and Mary A. Bertrau were the plaintiffs, and William M. Sanford and Mary J. Sanford were defendants, a judgment was duly rendered and entered in favor of said plaintiffs and against the said defendants for $5,832, with-costs of suit to be taxed; that after the rendition of the judgment, an execution was duly issued thereon and placed in the hands of the sheriff for service, and that on or about February 2, 1918, that officer, by virtue of said execution, made a levy upon the property described in the bill of complaint, and upon due notice sold the said premises on March 23, 1918, for the sum of $6,046.05 to the defendants herein, and gave to them the usual certificate of sale.
It is undisputed that the title of the plaintiffs herein to the real estate at the time of said levy was vested in them by virtue of a deed bearing date August 11, 1914, executed by Louis F. Bertrau and wife to said “William M. Sanford and Mary J. Sanford, his wife, jointly with the right of survivorship.”
In dismissing the bill of complaint upon the hearing, the learned circuit judge seems, by the record, to have been influenced somewhat by the fact that the judgment had been rendered in a case where the defendants (the plaintiffs here) had been charged' with fraud in obtaining title to the property levied upon, having in mind no doubt the rule that estates in entirety cannot be created at the expense of creditors, and held in fraud of their rights, as was held by this court in Newlove v. Callaghan, 86 Mich. 297 (24 Am. St. Rep. 123).
Upon this record, however, we think we should treat the case as one where a valid judgment had been obtained against husband' and wife, and where lands held by them as tenants by the entirety have been levied upon and sold by virtue of the execution. There is no homestead question here involved, the property levied upon and sold being business property, upon which were located a Store and other buildings. It is stated by counsel, and we think correctly, that this question is a new one in this State, in so far as the holdings of this court are concerned. It is well settled in this State that land held by husband and wife as tenants by entirety is not subject to levy under execution on judgment rendered against either husband or wife alone. The subject of estates by the entirety has been considered in many aspects by this court, as will appear by reference to the following cases, where the earlier decisions have been referred to. Vinton v. Beamer, 55 Mich. 559. In speaking of the estate this court said it was an entirety.
“They both took the same estate, the same interest, and it could not be separated. The right of the one was the right of the other. Neither could by a separate transfer affect the rights of the other, or his own. What would defeat the interest of one would also defeat that of the other.”
In Re Appeal of Nellie Lewis, 85 Mich. 340 (24 Am. St. Rep. 94), this court said:
“The estate created by this deed was not an estate in joint tenancy, but an estate in entirety. A joint tenancy implies a seisin per my et per tout, while an estate in entirety implies only a seisin per tout. 4 Kent. Comm. p. 362.”
See cases there cited.
Dickey v. Converse, 117 Mich. 449 (72 Am. St. Rep. 568). This, case reviews many of the earlier cases and is worthy of examination in this connection. Naylor v. Minock, 96 Mich. 182 (35 Am. St. Rep. 595). See, also, Morrill v. Morrill, 138 Mich. 112 (110 Am. St. Rep. 306, 4 Ann. Cas. 1100), where it is stated that the married women’s act is not applicable to estates by entirety, Justice Carpenter, in writing the unanimous opinion of this court, saying:
“I think it must be conceded that the decisions of this court have determined that this statute has no application to estates by entirety.” Citing numerous cases.
Many more cases, some of them still later in date, might be cited, but we think it unnecessary.
It is urged by counsel for plaintiffs and appellants that, before the death of either of the parties, each holds an estate similar in some respects to that of a contingent remainder, and that it has been held that a contingent remainder is not subject to execution. We think the better doctrine is that the right of survivorship is merely an incident of an estate by entirety, and does not constitute a remainder, either vested or contingent. Davis v. Clark, 26 Ind. 424 (89 Am. Dec. 471); Shinn v. Shinn, 42 Kan. 1 (21 Pac. 813, 4 L. R. A. 224).
It is also asserted by counsel that land held by entireties by husband and wife is not subject to an execution, and the following cases are cited: Carver v. Smith, 90 Ind. 222 (46 Am. Rep. 210); Dodge v. Kinzy, 101 Ind. 102. The first of these cases simply holds that land conveyed to husband and wife is not subject to the levy of an execution against either, while both are living. There the execution against the husband was levied upon the land. Nobody would dispute the correctness of that ruling. The case of Dodge v. Kinzy involved the question of a contract of suretyship of the wife, and her joining in a mortgage on property held by entireties, to secure the payment of an individual debt of the husband, and has no bearing upon the question we are discussing.
It is well settled that when a judgment is rendered against one of two tenants by entireties, a levy under execution on such judgment cannot be made on the real estate held by them as tenants by entireties. This is because of the peculiar nature of the estate held by them. Both are seized of the whole, and an estate by entireties is inseparable and cannot be partitioned. Therefore, it has been quite universally held that an estate by entireties cannot be sold upon execution on a judgment rendered against either the husband or wife, because neither has any separate interest in such an estate. But after diligent search by counsel, and by the writer of this opinion, a case has not been found which holds that an estate in land held by husband and wife as tenants by entireties is not subject to execution upon a judgment against them jointly. On the contrary, the few cases in which this question is presented hold that a judgment rendered against husband and wife jointly may be satisfied out of an estate in land held by them as tenants by entireties.
In Sharpe v. Baker, 51 Ind. App. 547 (96 N. E. 627, 99 N. E. 44), an action was brought by appellants, who were husband and wife, to quiet their title as tenants by entireties to certain real estate, and to eject appellees from the possession of said real estate. A joint judgment had been taken against appellants at a time when they were owners as tenants by entireties, of the real estate in controversy, and an execution was issued on said judgment against both of said appellants, and levied upon the estate so held by them as tenants by the entireties. Said land was regularly advertised and sold under said execution as the property of appellants, and appellees claimed title and possession to said real estate under and by virtue of a sheriff’s deed; while the appellants claimed that the estate held by them as tenants by entireties was not subject to sale on execution, and that the sheriff’s deed did not have the effect to divest their title, and that they were still owners of the real estate as tenants by entireties. We quote at length from the well-considered opinion of that court:
“The question we are thus called upon to decide is entirely new. The industrious and able attorneys, who have briefed this case and argued it orally before the court, have been unable to cite a case from any court in which the .question has been decided. The writer of this opinion has made diligent search in the hope of finding a decision of some court which might serve as a precedent, but without avail. We must therefore determine this question from a consideration of the legal principles which relate, to the creation of - estates by the entireties, and which govern the rights and liabilities arising therefrom as affecting the holders of such estates.
“It is claimed by appellants that the estate by entireties has been always regarded by the courts as one created for the enjoyment of the husband and wife during coverture, and that such an estate was intended to be preserved for the use of the family as a homestead, and that it should be protected by the courts against the improvidence of either or both, to the end that it may be so preserved. This contention has led us to inquire as to the source and origin of estates by entireties. At common law, such estates were treated as species of joint tenancy. 'An estate in joint tenancy is an estate held by two or more tenants jointly, with an equal right in all to share in the enjoyment of the land during their lives. Upon the death of any one of the tenants, his share vests- in the survivors.' * * *
“By a fiction of the common law, the husband and wife were regarded as one person; the legal existence of the'wife being suspended during coverture, or at least incorporated and consolidated into- that of the husband. Blackstone’s Comm., book 1, p. 442. Upon this legal fiction of the unity of husband and wife rests all of the distinctions and peculiarities which distinguish the estate by entireties from other joint estates. * * *
“By reason of the common law fiction heretofore mentioned, the husband and wife, being one person in law, were each incapable of holding any separate interest in an estate so acquired. * * *
“An estate in joint tenancy may be severed or destroyed by the act of one of the tenants, so as to defeat the right of survivorship of the other joint ten ant; but a tenant by the entireties cannot during coverture, by deed, mortgage, devise, or other act of his own, defeat the right of the surviving husband or wife to hold the entire estate. * * *
“There may be other distinguishing characteristics of the estate to which we have not referred; but we think that we have gone far enough to show that every peculiarity incident to such estates, distinguishing them from estates in joint tenancy, can be traced to the fiction of the unity of husband and wife. * * *
“There is nothing in the manner in which such estates have been treated by the courts in later times to indicate that it was the policy of the courts to preserve them to the families. Before the married woman’s act, the husband during coverture had the right to the possession and control of the real estate owned by his wife, and this right was held to extend to land by entireties. (Citing cases.) As the husband was, before the married woman’s act, the absolute owner of the rents and profits of such estates during the joint lives of himself and his wife, this right, according to the weight of authority, could be sold on execution for his debts. * * *
“While the statutes of this State have removed most of the common-law disabilities of a married . woman, the common-law unity of husband and wife is preserved, in so far as that fiction is necessary to uphold the estate by entireties. * * *
“The estate by entireties was not created by statute in this State, but is preserved by statute as it existed at common law. It cannot, therefore, be inferred that the legislature, by the enactment of the statute preserving such estates, intended that it should be exempt from sale on execution to any greater extent than it was by the rules of the common law; but, as we have heretofore shown, the legislature by other statutes has so modified the common law in respect to the right of the husband to possession and usufruct of the separate estate of his wife as to make the husband and wife tenants by entireties in the possession and proceeds of the estate, as well as in the estate itself. * * *
. “From what has been said, we think it is apparent that an estate by entireties is subject to sale on exe cution, issued upon a judgment rendered against both the husband and wife, unless some reason can be found, arising out of the very nature of the estate, which prevents such a result. The reason that it cannot be sold in satisfaction of a judgment rendered against either of the tenants alone is apparent from the inherent nature of the estate. Neither owns any severable interest therein. But what reason can be suggested, growing out of the nature of incidents of the estate, which could prevent a sale on execution to satisfy a joint debt of both? By their joint deed, they can dispose of their estate, and by their joint mortgage they can incumber it. Jointly they have the complete ownership of the estate, with full power to control and dispose of it at will, and it is a general rule that property so owned is subject to sale on execution to satisfy a judgment against the owner. * * *
“In the case at bar, a personal judgment was taken against Finch Sharpe and, Mintie Sharpe upon a debt for which each were personally liable. The question of suretyship of the wife is not involved. The land sold on execution to satisfy this judgment was owned by the judgment debtors as tenants by the entireties. It is our opinion that the land so held by the judgment debtors was liable to be sold on execution to satisfy this judgment.” * * *
In 1915, the court of appeals of Maryland, in Frey v. McGaw, 127 Md. 23 (95 Atl. 980, L. R. A. 1916D, 113), a similar case, used the following language:
“On the third of April, 1913, a judgment was entered by confession in the Baltimore city court in favor of the appellees against George E. Frey and Jennie E. Frey, for the sum of $270. * * *
“At the time of the entry of this judgment George E. and Jennie E. Frey, his wife, owned as tenants by entireties, but subject to a mortgage, a leasehold lot of ground on Linden, avenue in the city of Baltimore. * * *
“The case as presented is entirely different from what it would have been if the judgment had been against either Mr. or Mrs. Frey alone. This arises from the peculiar nature of an estate by entireties. It has been repeatedly held in this State that where a judgment is recovered against one of two tenants by the entireties no lien can attach to the interest of one (citing cases) but it has never been held in this State or elsewhere that in the absence of statutory exemption, where there is an entire judgment against joint defendants, no lien is imposed upon estates or interests in land held by the entireties.”
In Union Nat. Bank of Muncie v. Finley, 180 Ind. 470 (103 N. E. 110), the supreme court of Indiana, in an action commenced by attachment against husband and wife, used the following language:
“The trial court held that the real estate owned by the Finleys as tenants by entireties is not subject to levy under an order of attachment, in a suit on_ an obligation of such husband and wife, and not subject to execution under a judgment against both. It is claimed by appellant that this holding was erroneous. The case of Sharpe v. Baker, 51 Ind. App. 547 (96 N. E. 627), involved the same principle here in controversy. In a carefully considered opinion, it was held by the appellate court that land held by husband and wife as tenants by entireties is subject to execution under a judgment against husband and wife. On petition to transfer the cause, the holding of the appellate court was approved by this court.
“Here the obligation sued on was executed by the husband and wife and judgment rendered against both, and under the doctrine declared in Sharpe v. Baker, supra, the land owned by them as tenants by entireties is. subject to sale on execution under the judgment; and it must necessarily follow that it is subject to levy under a writ of attachment, where there is statutory ground for such writ, in a suit on a note executed by the husband and wife, and for a consideration binding on both.” * * *
We find no cases to the contrary. Upon principle, we can see no reason why the real estate of husband and wife held by them as tenants by the entireties (independent of homestead and statutory exemptions) should not be subjected to the payment of their joint debts. They own the entire property. The parts can not be greater than the whole. They may dispose of it by their joint action. Each is liable to pay the whole judgment, and both are liable to pay any part of it.
As a general proposition it may be said that real estate owned jointly by individuals is subject to levy and sale upon an execution running against such owners jointly, in the absence of homestead and statutory exemptions.
If defendants may own and hold this property free from execution, levy and sale for their joint debt, they may, by the same rule, own and hold millions of dollars worth of real estate free from such levy and sale for their joint debt. This rule ought not to obtain as one affecting real estate, unless there is some good reason for it; and we have been unable to discover any such reason. The policy of the law ought to prevent the tying up of vast amounts of real estate in this manner. We do not believe there is any good reason for the rule contended for by appellants.
Counsel for appellants have also called our attention to Act No. 158, Pub. Acts 1917. The title of that act is as follows:
“An act abrogating the common-law disability of married women insofar as to make and render them competent to bind themselves-and become liable with their husbands upon any written instrument, so as to subject the real estate of the husband and wife owned by them as tenants by entirety, or the real estate acquired by either as survivor of the other, and all crops, rents, profits or proceeds thereof or taken therefrom, to the payment and satisfaction of judgments and decrees of courts rendered upon such written instruments and providing for the enforcement of such liabilities, and to repeal all acts or parts of acts contravening the provisions of this act.”
We have examined the provisions of this act with great care, and are of opinion that it has nothing whatever to do with the present case.
Enough, appears in the record in this case to show that the action in which the judgment was rendered, which was the basis of this proceeding, was based upon the alleged fraud of the defendants in that suit (plaintiffs here), in the exchange of certain real estate. We find nothing in the act referred to, by implication or otherwise, to signify that the joint judgment against husband and wife in such a case could not be satisfied out of the real estate held by them as tenants by entireties.
We are of opinion that the decree of the court below in dismissing the bill was both legal and just. We believe the better doctrine is that a joint judgment against husband and wife may be satisfied out of real estate held by them as tenants by entireties; and for this reason the decree of the court below is affirmed, with costs to the appellees.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. | [
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Brooke, J.
Mandamus. Petitioners, who were defendants in an equity proceeding, were finally defeated in this court where an opinion was filed requiring petitioners, as such defendants, to pay the costs of both courts. Saier v. Joy, 198 Mich. 295. In the original case the plaintiffs had called and examined as experts, six physicians. After the opinion in this court went down plaintiffs applied to the circuit court for an order allowing expert witnesses’ fees to said six physicians under 3 Comp. Laws 1915, § 12557, which reads as follows:
“No expert witness shall be paid, or receive as compensation in any given case for his services as such, a sum in excess of the ordinary witness fees provided by law, unless the court before whom such witness is to appear, or has appeared, awards a larger sum. Any such witness who shall directly or indirectly receive a larger amount than such award, and any person who shall pay such witness a larger sum than such award, shall be guilty of a contempt of court, and on conviction thereof be punished accordingly.”
To this application defendants (petitioners herein), interposed objections as follows:
First. That under 3 Comp. Laws 1915, § 12558, the number of expert witnesses should be limited to three.
Second. That the statute did not in terms direct or authorize the court to allow or tax the sums so awarded as a part of plaintiffs’ costs in the case against, the opposite party.
Whereupon the court made an order limiting the number of expert witnesses to three and fixing compensation at $25 each. Thereafter plaintiffs in the equity case filed their bill of costs including therein as taxable costs, the $75 paid for expert witnesses. This item was not allowed by the taxing officer in the circuit court. Upon appeal to the circuit judge it was allowed. Petitioners herein pray for a mandamus requiring the circuit judge to disallow said item.
It is pointed out by counsel for respondent circuit judge that although no statute fixes the amount of solicitors’ fees awarded by the court of chancery, the Supreme Court, by Circuit Court Rule No. 64, allows such fees to the prevailing party and that under 3 Comp. Laws 1915, § 12019, subd. 5, this court has authority by rule to regulate costs. It is urged that the statute above quoted has obviated the necessity for such rule. Cases are cited from some jurisdictions (Snyder v. Iowa City, 40 Iowa, 646; Chadwick v. Insurance Co., 158 N. C. 380 [74 S. E. 115]; Farmer v. Stillwater Water Co., 86 Minn. 59 [90 N. W. 10]), which it is claimed support the contention advanced by defendant’s counsel. These decisions were announced under statutes materially different from our own and when examined carefully in the light of those statutes we are of opinion they cannot be considered as authority for defendant’s position. Be fore the passage of Act No. 175, Pub. Acts 1905 (now 3 Comp. Laws 1915, § 12557), there was no legal limitation upon the right to hire and pay expert witnesses. The purpose of the legislation was, we. think, to limit a right already existing and correct a practice which in the legislative mind appeared to be a growing abuse. No new rights are conferred by the statute. Before its passage a litigant might hire as many experts as he pleased and pay them any sum agreeable to himself and his witnesses. Since its passage only such sums may be paid for expert testimony as the court shall direct. The statute is absolutely silent upon the question of taxing such fees against the opposite party. The authority to tax costs is wholly statutory. Auditor General v. Baker, 84 Mich. 113, and Hester v. Com’rs of Parks and Boulevards, 84 Mich. 450.
We conclude that the circuit judge lacked statutory warrant to tax the fees in question in favor of the prevailing party in the chancery cause and therefore that the mandamus must issue as prayed, with costs in favor of the plaintiffs and against the principal party in interest.
Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Brooke, J.
The plaintiff, doing business under the name of the Louisville Real Estate & Development Co., was in the month of August, 1914, the owner of a tract of land near the city of Lapeer. He subdivided said tract into lots, and on the 12th day of August, 1914, undertook to dispose of the same at auction. A considerable number of people (among them defendant) attended said sale. The auctioneer offered lot 1 of block 3 for sale and defendant was the highest bidder thereon at the sum of $225. Plaintiff immediately talked with defendant and it was then agreed between them that defendant should take lots 1, 2, and 3 in said block at the same figure. The terms of the sale provided that one-third of the purchase price of said lots should be paid in cash, one-third in six months thereafter, and one-third in twelve months thereafter. The following memorandum was signed by defendant.
“This is to certify that I have this day bought through The Louisville Real Estate & Development Co. Lot No. 1-2-3 in Block 3 according to the official plan of............................................. for which I agree to pay $225.00 on the following terms: ......................cash on day of sale, balance......................................
“Date Aug. 12, 1914.
“Signature, Geo. Holman.
“Witness: ................................”
Thereafter plaintiff tendered to defendant a deed of the lots in question and demanded payment of one-third of the purchase money and the execution of notes for the balance secured by a mortgage upon the real estate as collateral. Performance on behalf of the defendant was refused and this suit was brought to recover the sum of $675, the amount of the contract price. The plea-was the general issue. Upon the trial, after it had appeared through the examination of plaintiff that he was doing business under an assumed name, the defendant was permitted by leave of the court to file an amended plea setting up the fact that plaintiff had not at any time filed in the office of the county clerk of said county of Lapeer a certificate setting forth the name under which his business was conducted and the true and real full name or names of the person or persons owning, conducting or transacting the same as required by Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6349 et seq.). At the conclusion of plaintiff’s case a motion for a direction in favor of defendant was made and granted.
Three assignments of error are argued on behalf of appellant as follows:
“1. The court erred in directing a verdict in favor of the defendant and refusing to submit the case to the jury for their decision and opinion.
“2. The court erred in charging the jury as follows:
‘“So, that, gentlemen, so far as this contract which it is claimed Mr. Holman made to purchase those three lots, I hold that under the statute it is not evidenced in such a way that the plaintiff would acquire any rights against Mr. Holman on account of having entered into that agreement.’
“3. The court erred in charging the jury or holding as a matter of law:
“ ‘That the sale made by the investment company to Mr. Holman would not put Mr. Clark in a position that he could recover in this action against Mr. Holman for anything growing out of that contract. So that on both branches of the case, gentlemen, I shall hold against the contention of the plaintiff, and direct you to direct a verdict of no cause of action in favor of the defendant.’ ”
The statute of frauds touching the question as it stood when the contract was entered into is as follows:
“Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized by writing.” 3 Comp. Laws 1915, § 11977.
By an amendment (Act No. 83, Pub. Acts 1917), the following proviso was added:
“Provided, That whenever any lands or interest in lands shall be sold at public auction and the auctioneer or the clerk of the auction at the time of the sale enters in a sale book a memorandum specifying the description and price of the land sold and the name of the purchaser, such memorandum, together with the auction bills, catalog or written or printed notice of sale containing the name of the person on whose account the sale is made and the terms of sale, shall be deemed a memorandum of the contract of sale within the meaning of this section.”
We think it clear that the learned circuit judge was right in holding that the memorandum signed by the defendant was not, signed by the plaintiff nor by any one duly authorized by him in writing to sign it and therefore that it was insufficient to support plaintiff’s action. The amendment of 1917 has no bearing upon the question involved.
The direction of a verdict upon the second ground was likewise warranted under the ruling of this court in Cashin v. Pliter, 168 Mich. 386.
Judgment is affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. | [
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] |
Moore, J.
This suit is brought to recover the value of a trunk and its contents. The trunk was at the railroad depot, having arrived there from California, The sister of appellee engaged the agent of the defendant to deliver it at the house. There was given, by the defendant to the sister a check reading as follows :
“Claim Check. Detroit Taxicab and Transfer Co,
“Telephone M-5353. Address 674 Lakeview Ave,
“Baggage checked from residence to destination by presenting railroad ticket Branch Office, 13 Lafayette Blvd. See that the exact amount as paid is punched out from this ticket.
“Bead Carefully Conditions on the Back.
“The amount paid was $1.00. Number 65641.
(On back) “This company will not be responsible for loss or injury to baggage covered by this check to an amount exceeding $100.00 or for merchandise, money or jewelry carried by it unless specifically agreed in writing.”
Neither the plaintiff nor her sister read the check at the time it was delivered, nor was its contents made known to either of them.
The trunk was given by the defendant to its driver, McLeod, to deliver at plaintiff’s home. McLeod stole the trunk and it was never received by plaintiff.
The plaintiff claimed the trunk and contents, including a watch and some jewelry, were worth $665.57, and sued to recover that amount.
The defendant at the close of the testimony offered by the plaintiff asked that a verdict be directed against it for $100, claiming that was the limit of its liability. This motion was denied. The verdict was for the plaintiff for $665.57. The defendant then moved to enter judgment nptwithstanding the verdict for $100. This was refused and judgment was entered for the full amount.
We quote from the brief of appellant:
“1. The main question involved in this case is the validity of the limitation of defendant’s liability under the facts in the case.
“2. The other questions involved relate to the admission of evidence, the rejection of evidence, the remarks of the court, and the charge of the court on the question of the damages of the plaintiff.”
It is the claim of the defendant that it might limit its liability, and that it did so by the giving of the claim check, and that the limitation was fair and reasonable, and that when the plaintiff through her sister accepted the check she assented to the limitation and is bound by it, citing Smith v. American Express Co., 108 Mich. 572, and the cases cited therein. Counsel quote in their brief nearly the whole of that opinion but omit quoting the first part of it which justifies headnotes reading as follows:
“The receipt or bill of lading issued by a common carrier to a consignor, and received by him without objection, and without any insistence upon the common law liability of the carrier, is a contract between the parties and fixes their liability and rights.
“Such contract is not to be construed as in any way limiting the carrier’s liability for loss or damage due to the neglect or default of its employees.”
The court saying:
“This rule is established by the overwhelming weight of authority.”
There is a serious question as to whether the claim check is a bill of lading within the definition in McMillan v. Railroad Co., 16 Mich. at page 113, where it is said:
“It remains to be seen whether the conditions embodied in the bills of lading are to be treated as a part of the contract for transportation, and to be regarded as assented to by the consignors, notwithstanding they may not read them.
“A bill of lading proper is the written acknowledgment of the master of a vessel that he has received specified goods from the shipper to be conveyed on the terms therein expressed to their destination, and there delivered to the parties therein designated: Abbott on Shipping, p. 322. It constitutes the contract between the parties in respect to the transportation; and is the measure of their rights and liabilities, unless where fraud or mistake can be shown: Redfield on Railways, 307-309, and notes; Angelí on Carriers, § 223. It has acquired from usage a negotiable character, and the carrier may be estopped, as against the indorsee for value,, from showing mistakes in giving it. Redfield on Railways, 307.”
It will be noticed that the claim check does not describe any goods, does not mention the name of the consignor nor the consignee nor the place of destination, and it would hardly be claimed that it is negotiable.
Much reliance is placed by counsel for the appellant upon the case of D’Utassy v. Barrett, 171 App. Div. 772 (157 N. Y. Supp. 916), and 219 N. Y. 420 (114 N. E. 786). In that case there was a bill of lading which stated: “In consideration of the rate charged for carrying said property which is regulated by the value thereof * * * the shipper agrees that the company shall not be liable in any event for more than fifty dollars,” etc., etc. Clearly a very different case than the one before us.
A case more like the one we are considering is Adams Express Co. v. Berry & Whitmore Co., 35 App. D. C. 208 (31 L. R. A. [N. S.] 309). In that case it is. said:
“It is evident that the only way in which a carrier may be relieved from its common-law obligation to pay the full value of goods lost through negligence is by means of a special contract with the shipper, as above noted. It is also clear, according to the ordinary rules of construction, that such relief is only to the extent named in that contract. New York Cent. R. Co. v. Lockwood, 17 Wall. (U. S.) 357. Is it possible for the carrier to extend this doctrine of contractual limitation of liability to cover cases where the goods are converted or embezzled by it? We think not. So great would be the opportunity for fraud that public policy will not suffer a practice so manifestly calculated to_invite it. That the shipper, in a particular instance, might be willing to make such concession, does not alter the rule; it is not within the power of the individual to barter away the right to protection inherent in the general public. In discussing this question, the court in the case of The New England, 110 Fed. 415, said: Tt should be added, further, that it is doubtful if any limitation which seeks to protect a company, not from the negligence, but from the theft or conversion, of its servants is consonant with public policy.’ Story, in his work on Bailments [8th Ed.], § 32, says: Tn respect to cases of loss by fraud, there is a salutary principle, belonging both to our law and the civil law. It is, that the bailee can never protect himself against responsibility for losses occasioned by his own fraud; nay, not even by a contract with the bailor that he shall not be responsible for such losses, for the law will not tolerate such indecency and immorality that a man shall contract to be safely, dishonest.’ See, also, Alabama, etc., R. Co. v. Little, 71 Ala. 615; Louisville, etc., R. Co. v. Sherrod, 84 Ala. 178 (4 South. 29); Zouch v. Railway Co., 36 W. Va. 524 (17 L. R. A. 116, 15 S. E. 185); American Express Co. v. Sands, 55 Pa. 140; Ronan v. Railway Co., Ir. L. R. 14 C. L. 157; Schouler on Bailments & Carriers, § 20.
“Would it be possible for a carrier, after receiving for transportation goods worth $1,000, to embezzle them, and then plead as a limitation of its liability the fact that the shipper had not stated their value to be more than $50? In other words, Can a carrier engaged in business of a public nature be permitted to justify a conversion of goods intrusted to it, on the ground that its liability is fixed by contract? Such would be the absurd result were appellant’s contention carried to its logical conclusion.”
See, also, 4 Ruling Case Law, p. 793, and the many cases cited in the note.
The facts disclosed by this record do not limit the liability of the defendant to one hundred dollars. Having reached this conclusion, it- is unnecessary to discuss the other questions presented by counsel, though they have not been overlooked.
Judgment is affirmed, with costs to the plaintiff. .
Bird, C. J., and Ostrander, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Per Curiam.
Plaintiff worked for defendant, a temporary employment agency, as a nurse’s aide. Defendant’s employees receive work assignments over the telephone or they drive to defendant’s office and pick up their assignments. Defendant’s employees are free to reject any assignments and are required to provide their own transportation. They are not reimbursed for travel expenses.
On May 8, 1979, plaintiff left her home at 7:05 a.m. so that she would have time to reach her 9:00 a.m. assignment, which was 9Vt. miles away. Plaintiff had been to this client’s home on two prior occasions, but claimed that she had gotten lost on both occasions. This time, plaintiff once again drove by the location and turned into a driveway to turn around. Unfortunately, as plaintiff was turning out of the driveway, she failed to see an oncoming vehicle and plaintiff’s car was hit on the right front panel. Plaintiff’s car then hit another vehicle. Plaintiff sought workers’ compensation benefits, claiming that she was totally disabled as a result of this accident, which she contended arose during the course of her employment.
Following a two-day hearing, a hearing officer held that plaintiff’s injuries did not arise out of or occur in the course of her employment. Plaintiff appealed to the Workers’ Compensation Appeal Board. The wcab affirmed the hearing officer’s decision. Plaintiff then applied for leave to appeal to this Court, which was denied. Plaintiff then appealed to our Supreme Court, which, in turn, remanded the matter to us to consider as on leave granted. Thomas v Staff Builders Health Care, 428 Mich 852; 399 NW2d 26 (1987). We affirm the wcab’s decision.
The findings of fact made by the wcab are conclusive, absent fraud; however, an appellate court may always review questions of law contained in the wcab’s final order. Const 1963, art 6, § 28. MCL 418.861; MSA 17.237(861). As a general rule, injuries sustained by an employee going to and from work are not compensable. Bush v Parmenter, Forsythe, Rude & Dethmers, 413 Mich 444, 451; 320 NW2d 858 (1982). Exceptions to this rule exist when (1) the employee is on a special mission for the employer, (2) the employer derives a special benefit from the employee’s activity at the time of the injury, (3) the employer paid for or furnished employee transportation as part of the employment contract, (4) the travel comprised a dual purpose combining employment-related business needs with the personal activity of the employee, (5) the employment subjected the employee to excessive exposure to traffic risks, or (6) the travel took place as a result of a split-shift working schedule or employment requiring a similar irregular nonfixed working schedule. Bush, supra, p 452, n 6. In other words, an employee is entitled to compensation when there is a sufficient nexus between the employment and the injury so that it may be said that the injury was a circumstance of the employment. Stark v L E Myers Co, 58 Mich App 439, 443; 228 NW2d 411 (1975), lv den 394 Mich 814 (1975).
The wcab found that plaintiff received her assignments over the telephone and that the place of assignment was plaintiff’s place of work. Therefore, the wcab applied the general rule that plaintiff was not entitled to compensation because she was going to work. The wcab also found that plaintiff furnished her own transportation and was not reimbursed for her expenses. The wcab further held that defendant did not derive a special benefit from plaintiff’s activity because she was merely transporting herself to work and that plaintiff’s employment did not involve excessive traffic risks. Finally, the wcab ruled that the dual-purpose doctrine did not apply because plaintiff was merely on her way to work.
Plaintiff argues that she was required to provide her own transportation in order to work for defendant. As such, plaintiff claims that her work assignment began when she left her home because she was on a special mission at defendant’s direction and for defendant’s benefit. We note that plaintiff was not entitled to pay until she reached her work assignment. Compare Le Vasseur v Allen Electric Co, 338 Mich 121, 123; 61 NW2d 93 (1953). Moreover, plaintiff was not reimbursed for travelling expenses. We agree with plaintiff that the unique nature of defendant’s business required plaintiff to report to various locations for work. Nevertheless, we do not see how defendant, as contrasted to any other employer, derived a special benefit from plaintiffs providing her own transportation to her first place of assignment when she did not leave from the employer’s office. Stark, supra, pp 443-444. We agree with the wcab that a different case would be presented if plaintiff was transporting a client or running an errand for a client. Here, however, plaintiff was only on her way to work, and the general rule should apply.
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Per Curiam.
Following a single preliminary examination, defendant, a physician, was bound over to circuit court on two separate informations charging a total of four counts of unlawfully prescribing diazepam (Valium) and ethchlorvynol (Placidyl), MCL 333.7401(1) and (2)(c); MSA 14.15(7401X1) and (2)(c). The circuit court granted defendant’s motion to quash both informations and dismissed the cases. The people appeal as of right. We affirm.
At the preliminary examination, Officer Donald Ochadleus testified that he went to defendant’s office with an informant on February 26, 1985, in order to purchase a prescription for drugs. After a receptionist inquired as to drug allergies, Ochadleus was seen by defendant. Defendant asked Ochadleus what the problem was, and Ochadleus reported that he had trouble with his nerves and difficulty sleeping. Defendant did not attempt to clarify the nature of the sleeping problems, but did ask if the nerve problem was work-related. Defen dant then asked Ochadleus what he wanted prescribed; Ochadleus told defendant he wanted Valium and Placidyl. Finally, defendant asked what color (signifying strength) Valium and Placidyl Ochadleus wanted. When Ochadleus requested the stronger dosages of each, defendant asked if Ochadleus had taken the stronger Valium before and warned that both were "very strong” and that Ochadleus might have difficulty finding a pharmacy to fill the Placidyl prescription. He nevertheless wrote a prescription for sixty Valium "for severe tension” and thirty Placidyl. Ochadleus paid defendant $50 in cash, which defendant put in his pants pocket. Defendant never performed any tests or asked any other questions regarding Ochadleus’ health. The entire transaction with defendant took nine minutes. The informant was present throughout.
Ochadleus returned to defendant’s office by himself on April 12, 1985. Defendant again wrote prescriptions for Placidyl and Valium, but reduced the strength on both prescriptions. Defendant did not ask how Ochadleus felt and did not perform any tests. Ochadleus paid defendant $25 in cash, which defendant put in his pants pocket.
Ochadleus next visited defendant’s office on May 21, 1985. This time defendant asked Ochadleus how he was and asked if he wanted "the same things as before.” When Ochadleus said yes, defendant wrote another prescription for Valium and Placidyl. Ochadleus paid defendant $25 in cash, which defendant put in his pocket. Ochadleus’ health was never discussed and no tests were performed. This transaction, which took no more than two minutes, formed the basis of one of the informations filed against defendant.
Ochadleus went to defendant’s office again on August 16, 1985. This time, defendant "asked me if I could not take so many placidils [sic] and valiums and he interrupted himself in a sentence and assured me that he would continue writing scripts for the medication if I needed them.” Defendant then proceeded to write a prescription for Placidyl and Valium in the same amount as before. Again, Ochadleus’ health was not discussed and no tests were performed. Ochadleus paid defendant $25, which defendant put in his pants pocket. This transaction forms the basis of the second information against defendant.
Ochadleus testified that, during the visits, defendant never inquired as to whether the medication was causing adverse effects and never took Ochadleus’ blood pressure or checked his heart rate. Ochadleus once asked for a prescription for Dilaudid, which was refused. The longest visit was the nine-minute initial consultation.
Dr. Robert G. Niven, a psychiatrist, testified as an expert witness. He said that it was neither standard nor good medical practice to prescribe medications for generalized sleeping problems and nerve problems with limited examinations and information. He refused, however, to speculate on defendant’s motive for prescribing in the absence of an examination and thorough patient history. Following this testimony, defendant was bound over on all four counts.
In binding over an accused, the magistrate is not required to find guilt beyond a reasonable doubt, but there must be evidence on each element of the crime charged or evidence from which those elements may be inferred. People v Sesi, 101 Mich App 256, 262; 300 NW2d 535 (1980), lv den 411 Mich 1077 (1981). In People v Alford, 405 Mich 570; 275 NW2d 484 (1979), the Court held that a physician may be prosecuted for unlawful delivery of controlled substances which are dispensed out side the course of professional practice or research. 405 Mich 589. The standard required in determining whether the physician’s actions were in the course of professional practice or research is whether the doctor made an "honest” or "good faith” effort to treat and prescribe in compliance with an accepted standard of medical practice. See Alford, supra, pp 588-589 and 589, n 7.
In ruling on defendant’s motion to quash, the circuit court in this case found that the magistrate abused his discretion in binding over defendant because there was no evidence that defendant’s actions were in bad faith. The prosecutor claims this was error. We disagree. The evidence at the preliminary examination established that defendant’s actions were not good medical practice. There was no proof, however, that defendant acted in bad faith. The people’s expert persistently refused to comment on defendant’s motive in dispensing the prescriptions. On one occasion defendant prescribed drugs in a less potent dosage than requested, and on another he refused to prescribe a different drug requested by Ochadleus. As stated by this Court in People v Sun, 94 Mich App 740, 744; 290 NW2d 68 (1980), lv den 409 Mich 859 (1980):
[W]e are constrained to agree with Justice Levin’s opinion in Alford, supra, that, "It does not follow that because a physician may not traffic in drugs he can be prosecuted for simple departures from generally accepted standards of professional practice and ethics”. Alford, p 593. We recognize that at some point, the failure to maintain professional standards may constitute more than "simple departures” from accepted standards in the medical profession. And, while we discourage and disapprove of those practices of the defendant herein which approach that degree of laxity, we hold that the evidence produced in this case does not establish defendant’s intent to traffic in drugs and distribute them in bad faith for a nonmedical purpose.
As in Sun, the record in this case establishes departures from accepted standards of medical practice but does not establish defendant’s criminal intent. We therefore affirm the decision of the circuit court.
Affirmed. | [
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Per Curiam.
Richard Malik as next friend of David Richard Malik (hereinafter David) appeals as of right from the trial court’s order granting defendants’ motion for summary disposition on his loss of consortium claim concerning alleged medical malpractice injuries inflicted upon his sister, Lynne Malik. Richard David Malik (hereinafter Richard), Lynne’s other brother, also appeals as of right on the grounds that the trial court improperly granted defendants’ motion for summary disposition concerning his malpractice and breach of contract claims arising out of the same incident. We affirm.
At age nine, Lynne developed diabetes. Her condition deteriorated and she developed diabetic ketoacidosis. In 1984, at age twenty-seven, Lynne was losing her eyesight and receiving dialysis treatments at William Beaumont Hospital. Defendants determined that Lynne needed a kidney transplant. Richard, Lynne’s twenty-six-year-old brother, was determined to be a suitable donor and he agreed to donate a kidney. Richard was married at the time of the operation and had three children. Richard underwent physical as well as mental evaluations. During this process, Richard and Lynne were informed of "possible post-transplantation complications and the precautions necessary to prevent them from occurring” as well as "the actions to be taken should complication occur.” They were also informed that Lynne’s body might reject the transplant; however, they were told that there was a ninety percent success rate because Richard was a living-related donor.
On October 15, 1984, the surgery was performed. Subsequently, plaintiffs allege that defendants’ failure to monitor and treat Lynne properly after the operation caused her to suffer cardiorespiratory arrest and, eventually, to lapse into a coma. It was later determined that Lynne suffered permanent brain damage, rendering her totally incapacitated. Richard fully recovered from his operation.
On September 4, 1985, plaintiff Richard Malik, the father of Lynne, Richard and David, filed suit against defendants as Lynne’s conservator seeking damages on her behalf for the alleged malpractice. Individually, Richard and Loretta Malik, Lynne’s parents, filed a suit for loss of consortium. Richard Malik, as next friend of David, Lynne’s sixteen-year-old brother, sued on his behalf for loss of consortium in count iii of plaintiffs’ complaint. In count iv, Richard sued on his own behalf for the allegedly negligent medical treatment Lynne received because he claimed that he had needlessly sacrificed his kidney. Finally, in count v, plaintiffs alleged that defendants breached their contract with Lynne to provide proper postoperative care.
Defendants moved for partial summary disposition on counts iii, iv and v, arguing that plaintiffs had failed to state a claim upon which relief could be granted. MCR 2.116(C)(8). In their brief in opposition to defendants’ motion for summary disposition, plaintiffs claimed that defendants breached their contract with Richard by rendering allegedly improper care to Lynne and that, in any event, the doctrine of promissory estoppel should be applied in this case.
The trial court granted defendants’ motion for summary disposition as to count hi because Michigan does not recognize a cause of action for loss of consortium when siblings are involved. The trial court also granted defendants’ motion for summary disposition as to count iv, finding that, although Richard was defendants’ patient and defendants owed him a duty to treat him nonnegligently, they did not owe him a duty to treat Lynne nonnegligently. The trial court also rejected Richard’s claim that defendants owed him a duty as a result of their special relationship with Lynne because Richard consented to the loss of his kidney and that loss occurred prior to defendants’ alleged malpractice and, therefore, defendants’ malpractice was not the cause of Richard’s injuries. The trial court further held that Richard’s mere allegation of an agreement in count iv was insufficient to state a cause of action for breach of contract. However, realizing that Richard could move to amend his complaint, the trial court addressed the contract claim and ruled that it was barred by the statute of frauds, MCL 566.132(g); MSA 26.922(g), because a specific written agreement was not entered into. The trial court further ruled that promissory estoppel did not save Richard’s claim be cause defendants did not promise to cure Lynne and, even if they did, it was unreasonable for Richard to rely on such a promise. Finally, the trial court dismissed Lynne’s breach of contract claim because it did not comply with the statute of frauds, MCL 566.132(g); MSA 26.922(g).
A motion brought under MCR 2.116(C)(8), for failure to state a claim upon which relief may be granted, is to be decided upon the pleadings alone. Beaudin v Michigan Bell Telephone Co, 157 Mich App 185, 187; 403 NW2d 76 (1986). The motion tests the legal basis of the complaint, not whether it can be factually supported. Id. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery, the motion should be denied. Id.
Richard Malik as next friend asks us to recognize a cause of action for loss of consortium where a minor sibling’s brother or sister is negligently injured by another, relying on Berger v Weber, 411 Mich 1; 303 NW2d 424 (1981), reh den 411 Mich 1155 (1981), Sizemore v Smock, 155 Mich App 745; 400 NW2d 706 (1986), lv gtd 428 Mich 873 (1987), and Crystal v Hubbard, 414 Mich 297; 324 NW2d 869 (1982). In Berger, supra, our Supreme Court held, by a four to three vote, that a minor child could recover for loss of consortium when his or her parent was negligently injured by another. In Sizemore, supra, a panel of this Court analogized to and expanded the reasoning in Berger, supra, to hold that a parent may recover for loss of consortium when his or her minor child is negligently injured by another. In Crystal, supra, our Supreme Court held that the siblings of a deceased person may recover damages for loss of society and companionship under the wrongful death act. The Court’s decision was based on its interpretation of the phrase "next of kin.” The Court ruled that the Legislature, by providing for damages for loss of society and companionship under the wrongful death act, intended to provide compensation for the destruction of relationships assumed to exist among members of the deceased’s family who are heirs under the intestate laws of this state. Id. Both Berger, supra, p 15, and Size-more, supra, p 748, noted that it would be anomalous to allow recovery under the wrongful death act for loss of consortium in the parent-child relationship, but not for negligently-inflicted injuries.
The same argument is raised here. We agree with Justice Levin’s reasoning in Berger, supra, pp 47-48 (Levin, J., dissenting), that such a result is not anomalous for the following reasons: (1) at common law, the death of a human being could not be complained of as an injury and, therefore, the' various state legislatures created wrongful death acts to provide for remedies in these cases, (2) by allowing for recovery under the wrongful death act for loss of consortium damages, the Legislature ensured recovery without regard to the decedent’s status as a wage earner because society believes that a tortfeasor, who negligently kills someone, should not escape liability, no matter how unproductive his victim, (3) where the victim is only injured rather than killed, the victim may bring suit on his or her own behalf and, therefore, there is no need to permit other family members to bring suit in order to prevent the tortfeasor from escaping liability, and (4) where the injured party survives, certain losses of the party seeking consortium can be compensated for in the victim’s own action.
In any event, we would note that the wrongful death statute’s provision was only a small portion of our Supreme Court’s reasoning in Berger, supra, and this Court’s reasoning in Sizemore, supra. In fact, both opinions were based on the unique relationship between minor children and their parents. We agree with defendants that sibling relationships are not like parent-child relationships which include extensive financial, legal and emotional obligations.
Furthermore, we agree with Justice Levin that reasonable limits must be placed on liability for the consequences of negligent acts. Berger, supra, p 33 (Levin, J., dissenting). No social benefit to be gained from recognizing this new cause of action has been articulated. By contrast, the creation of a new cause of action for an indirect injury to an intangible relational interest will impose a significant additional economic burden on tortfeasors. As defendants point out, a person may have many siblings. There is also the potential for claims from half-siblings and step-siblings. That economic burden will ultimately be borne by the general public and weighs against creation of this new cause of action. Id. Consequently, we affirm the trial court’s order granting defendants’ motion for summary disposition on count m of plaintiffs’ complaint. Beaudin, supra, p 187.
We note that plaintiffs’ equal protection claim concerning a sibling’s right to recover under the wrongful death act was not raised below and, therefore, is not preserved for appeal. See Petterman v Haverhill Farms, Inc, 125 Mich App 30, 33-34; 335 NW2d 710 (1983). Even if we treated plaintiffs’ claim as preserved, we would reject it for the reasons outlined in Justice Levin’s dissenting opinion in Berger, supra, pp 44-48.
We now turn to Richard’s claim that he should be compensated for the malpractice committed on his sister because it was foreseeable that he would be emotionally injured by her failure to recover as well as suffer the needless loss of his kidney. Plaintiffs claim that count iv was dismissed because Richard was not defendants’ patient. As noted above, the trial court ruled that while Richard was defendants’ (specifically George Sewell’s) patient, defendants only owed him a duty to treat him nonnegligently; they did not owe him a duty to treat Lynne nonnegligently.
The elements of an action for negligence are (1) duty, (2) general standard of care, (3) specific standard of care, (4) cause in fact, (5) legal or proximate cause, and (6) damage. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977), supplemental order on reh 402 Mich 958 (1978). Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person. Id., p 439. Duty is a question of law. The term "malpractice” denotes a breach of the duty owed by one rendering professional services to a person who has contracted for such' services; in medical malpractice cases, the duty owed by the physician arises from the physician-patient relationship. Rogers v Horvath, 65 Mich App 644, 646-647; 237 NW2d 595 (1975), lv den 396 Mich 845 (1976). Here, a physician-patient relationship existed between Dr. Sewell and Richard as to the nephrectomy Dr. Sewell performed on him. Moreover, a physician-patient relationship existed between the physicians who performed surgery on Lynne and Lynne herself. Contrary to Richard’s claim, we view the transplant as two separate operations with separate physician-patient relationships arising from each. Because Richard seeks to recover for the injuries inflicted upon him which resulted from the alleged mal practice committed upon Lynne, he has failed to state a cause of action. No physician-patient relationship arose between defendants and Richard as a result of surgery they performed on Lynne. Rogers, supra. See, e.g., Ornelas v Fry, 151 Ariz 324, 329-330; 727 P2d 819 (1986).
Even if we accepted Richard’s argument that defendants owed him a duty, we would hold that he voluntarily agreed to give up his kidney no matter what the outcome of the transplant operation. Therefore, defendants’ conduct did not proximately cause Richard to lose his kidney. McLean v Rogers, 100 Mich App 734, 737; 300 NW2d 389 (1980). See, e.g., Ornelas, supra, p 330. Moreover, we believe that Richard’s remaining emotional damages should be treated as a claim that his relationship with Lynne merits compensation. This claim then becomes like a loss of consortium claim (i.e., the plaintiff claims derivative damages resulting from his relationship with the primary injured party). Again, the issue becomes whether this Court should impose liability in this situation. We decline to do so. See Berger, supra, pp 33-34 (Levin, J., dissenting).
Richard also relies on Welke v Kuzilla, 144 Mich App 245; 375 NW2d 403 (1985), and Davis v Lhim, 124 Mich App 291; 335 NW2d 481 (1983), remanded for reconsideration 422 Mich 875 (1985), Davis v Lhim (On Remand), 147 Mich App 8; 382 NW2d 195 (1985), lv gtd 425 Mich 851 (1986), to support his claim. As a general rule, no one owes any duty to protect an individual who is endangered by a third person unless he has some special relationship with either the dangerous person or the potential victim. Welke, supra, p 250; Davis v Lhim, supra, p 299. In Davis, supra, this Court held that a psychiatrist has a special relationship with his patient and, therefore, the psychiatrist owes a duty to use reasonable care to protect readily identifiable persons foreseeably endangered by the patient. In Welke, supra, this Court held that a doctor owed a duty to a person injured as a result of the doctor’s patient’s acts because of the allegedly improper treatment of the patient.
As we have noted, a special relationship in this case existed between defendants and Lynne. However, Lynne was not a dangerous person who caused Richard’s injuries, as in Davis, supra. Moreover, as noted by the trial court, Richard voluntarily assumed the harm (i.e., loss of the kidney) and his loss came before the alleged malpractice committed on Lynne, not after it. See, e.g., Ornelas, supra, p 330. Therefore, there was no causal connection between the defendants’ alleged malpractice and Richard’s loss of a kidney. Welke, supra.
Richard also claims that the trial court erred when it dismissed his breach of contract and promissory estoppel claims. Richard claims that defendants expressly agreed that, absent rejection or unavoidable complications (not including negligent postoperative care), the transplant would improve his sister’s life. MCL 566.132(g); MSA 26.922(g) provides:
In the following cases an agreement, contract or promise shall be void, unless that agreement, contract, or promise, or a note or memorandum thereof is in writing and signed by the party to be charged therewith, or by a person authorized by him:
(g) An agreement, promise, contract, or warranty of cure relating to medical care or treatment. Nothing in this paragraph shall affect the right to sue for malpractice or negligence.
In support of his contract claim, Richard points to his preoperative physical and mental examinations as well as the hospital staffs memorandum concerning posttransplant complications and the ninety-percent chance of success following a living-related donor transplant. Richard contends that this promise was not a guarantee of cure or, even if it was, the documents upon which he relies were sufficient to satisfy the statute of frauds. Thus, Richard reads MCL 566.132(g); MSA 26.922(g) so that the phrase "of cure” modifies the words "agreement, promise, contract, or warranty.” Defendants contend that any agreement or promise relating to medical care and treatment must be in writing and that Richard’s documents did not establish such ah agreement; therefore, defendants read MCL 566.132(g); MSA 26.922(g) disjunctively (i.e., an agreement, promise, or contract relating to medical care and treatment must be in writing and signed by the party to be charged as must a warranty of cure). We agree with defendants’ interpretation. Stein v Southeastern Michigan Family Planning Project, Inc, 158 Mich App 702; 405 NW2d 147 (1987), lv gtd 429 Mich 861 (1987); Gilmore v O’Sullivan, 106 Mich App 35; 307 NW2d 695 (1981), lv den 413 Mich 851 (1982).
We now turn to the issue of whether the documents presented by Richard were sufficient to establish such a promise. Richard was informed that the statistical success rate of this type of operation was ninety percent because he was a living-related donor. Richard also told Lori Glick, a social worker who interviewed him prior to the operation, that "[h]is main motivation for donating the kidney was to improve his sister’s life.” We agree with the trial court that these memoranda concerning a meeting Richard had attended prior to the operation and a psychological evaluation were insufficient to establish that defendants had promised to improve the quality of Lynne’s life. As in Gilmore, supra, the memos were insufficient to demonstrate that defendants agreed that Lynne would be healthy absent rejection and other unavoidable complications (not including allegedly negligent postoperative care).
Richard also contends that defendants impliedly agreed to perform Lynne’s operation with due care. An implied contract exists where one engages or accepts beneficial services of another for which compensation is customarily made and naturally anticipated. Rocco v Dep’t of Mental Health, 114 Mich App 792, 799; 319 NW2d 674 (1982), aff'd 420 Mich 567 (1984). To the extent an implied contract to use due care existed, we again believe that one implied contract would exist between Lynne and her doctors, while a separate implied contract would exist between Richard and his doctors. As noted above, no negligence occurred during Richard’s operation and, therefore, his implied contract theory is without merit.
Finally,, we address Richard’s promissory estoppel claim. The elements of promissory estoppel are (1) a promise, (2) that the promisor should reasonably have expected to induce action of a definite and substantial character on the part of the promisee, (3) which in fact produced forbearance or reliance of that nature, and (4) under such circumstances that the promise must be enforced if injustice is to be avoided. Clark v Coats & Suits Unlimited, 135 Mich App 87, 98; 352 NW2d 349 (1984). We agree with the trial court that, at most, defendants promised to attempt to improve Lynne’s life through the kidney transplant. Such a promise was not a guarantee of cure. Moreover, even if it was, it was unreasonable for Richard to rely on the promise given that it is common knowledge that the results of medical treatment cannot be guaranteed and, in any event, such a promise must be in writing, MCL 566.132(g); MSA 26.922(g).
Affirmed.
[Sizemore was subsequently reversed by the Supreme Court, 430 Mich 283; 422 NW2d 666 (1988)—Reporter.] | [
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Per Curiam:.
Plaintiffs appeal as of right from the October 29, 1986, order of the Court of Claims granting defendant’s motion for summary disposition and denying plaintiffs’ motion for rehearing. The court held that there was no genuine issue of material fact as to which governmental agency had jurisdiction of the road where the accident took place.
On April 3, 1981, plaintiff Jacqueline Fuller lost control of her car on Hawkins Road at its overpass over the 1-94 freeway in Jackson County. Jacqueline sustained serious injuries rendering her a quadriplegic. On March 3, 1985, Jacqueline and her parents filed suit against defendant in the Court of Claims, alleging that defendant was negligent in failing to maintain that portion of Hawkins Road and to provide sufficient markings, barriers, and guardrails at that section of Hawkins Road. Jacqueline’s parents asserted a count for loss of consortium. Plaintiffs also filed suit against Jackson County in circuit court.
On February 14, 1985, defendant filed a motion for summary judgment, under GCR 1963, 117.2(1) and (3), now MCL 2.116(C)(8) and (10), claiming that the road was under the jurisdiction of Jackson County, not defendant. Defendant attached to the motion an affidavit of Henry W. Thomas, retired Establishment and Abandonment Coordinator of defendant, in which Thomas stated he had examined the records of the Local Government Division of the Department of Transportation, and the records revealed that Hawkins Road is certified as a county primary road under the jurisdiction of Jackson County.
The court granted defendant’s motion for summary disposition and denied plaintiffs’ subsequent motion for rehearing. On appeal, plaintiffs claim the trial court erred in granting defendant’s motion for summary disposition because there was an issue of fact as to which governmental agency had jurisdiction over Hawkins road. We disagree.
MCL 691.1402; MSA 3.996(102) states:
Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.
The governmental immunity act limits liability for negligent maintenance to the governmental unit having jurisdiction of the road at the time of the accident. Potes v Dep’t of State Highways, 128 Mich App 765, 769; 341 NW2d 210 (1983). If a governmental agency does not have jurisdiction over the road, the agency is immune from liability. MCL 691.1407; MSA 3.996(107).
In the instant case, there is no genuine issue of fact as to which governmental agency had jurisdiction over Hawkins Road on April 3, 1981. The affidavit of Henry W. Thomas reveals clearly that Hawkins Road is under the jurisdiction of Jackson County. In addition, defendant submitted to the court a certification map which shows that Hawkins Road was certified as a county road as of December 21, 1979, and December 31, 1984.
The documents presented by plaintiffs fail to establish an issue of fact. Plaintiffs claim that in the relevant portions of the deposition of Kenneth Hendershot, Jackson County Maintenance Superintendent, Hendershot stated that guardrails on the Hawkins Road overpass were installed by the state. However, we note that he further stated that the state put up guardrails only in conjunction with the fact that the bridge is a state highway bridge. He stated that "[a]nything that is connected with the bridges over [I-]94 is done by the State Highway Department.” Plaintiffs further claim that in the relevant portion of the deposition of Norman Brown, a representative of defendant, he stated that it would be very unusual for the state to replace a guardrail for a section of roadway not under its jurisdiction. However, a reading of the deposition reveals that Brown stated simply that it would be unusual for the state to install new guardrails at the location of the accident. Plaintiffs also claim that the vehicle left the road "on the steep slope of this elevated approach section, on a curve, just past the bridge” and that Hendershot testified in his deposition that maintenance of the slope is the responsibility of the state. Although Hendershot did state this, the question is not who maintained the slope, but who had jurisdiction over Hawkins Road. Finally, plaintiffs claim that in the affidavit of John W. Midgley, County Highway Engineer of the Jackson County Road Commission, he states that the state "designed and specified” the slopes, and installed and changed guardrails at the accident site. Although Midgley did so state, we feel this is irrelevant. As noted earlier, the state installed the guardrails only because the bridge is a state highway bridge. The sole question is which governmental agency had jurisdiction over Hawkins Road, not the slopes. Since plaintiffs have not refuted the documentation which shows that Jackson County had jurisdiction over Hawkins Road, the trial court did not err in granting defendant’s motion for summary disposition.
Affirmed. | [
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Per Curiam.
Plaintiff appeals as of right from a protective order entered in a Freedom of Information Act proceeding, MCL 15.231 et seq.; MSA 4.1801(1) et seq. We affirm the order of the circuit court.
The facts of this case are not in dispute. On February 28, 1985, plaintiff requested from the Public Service Commission, under the foia, copies of the Detroit Edison Company’s coal purchase contracts then in the commission’s possession. The commission received the request on March 4, 1985, but on March 7, 1985, returned the coal purchase contracts to Detroit Edison. The commission explained that the contracts "were returned to the Detroit Edison Company, pursuant to the direction of the MPSC Chief of Staff, due to his understanding that the documents were confidential.” On March 18, 1985, the commission denied plaintiffs foia request stating that the Detroit Edison coal purchase contracts were not in its possession.
On March 18, 1985, plaintiff submitted a second foia request concerning the commission’s return of the contracts to Detroit Edison. On March 25, 1985, the commission responded to that request with a receipt signed by a Detroit Edison official, stating, "I have accepted the return of fuel supply contracts and associated documents from the Michigan Public Service Commission staff on behalf of Detroit Edison Company.”
On April 3, 1985, plaintiff commenced this action in Ingham Circuit Court pursuant to the foia. The complaint sought production of the coal contracts, costs, attorney fees and punitive damages. The commission answered, raising a number of affirmative defenses and seeking a declaratory judgment that the coal contracts were exempt from disclosure under § 13(l)(g) of the foia and under § 2(1) of the standards of conduct and ethics act, MCL 15.342(1); MSA 4.1700(72)(1).
Plaintiff then moved for summary disposition pursuant to MCR 2.116 on the grounds that defendant had failed to state a valid defense to the alleged violation of the foia, that defendant’s request for declaratory judgment failed to state a claim upon which relief could be granted and that there was no genuine issue as to any material fact and plaintiff was entitled to judgment as a matter of law. Defendant answered, agreeing that there was no genuine issue as to any material fact but asserting that it was defendant who was entitled to judgment as a matter of law. Detroit Edison was allowed to intervene as a party defendant and it too sought a declaration that the coal contracts were exempt from disclosure under the foia. The commission’s answers to plaintiffs motion for summary disposition and its motion for declaratory judgment and supporting brief were supported by affidavits and other exhibits tending to show that it procured coal contracts from Michigan’s major utilities "to investigate for regulatory purposes the fuel acquisition practices of Michigan utilities.” The affidavits and other exhibits showed that the commission obtained the documents under promises of confidentiality to the utilities, promises repeated in subsequent years as Edison and the other utilities supplied current fuel contract information to the commission.
Following oral arguments, but without an evidentiary hearing or trial, the circuit court ruled that the coal contracts were exempt from disclosure under the foia, but nevertheless ordered their disclosure to plaintiff under a protective order.
Plaintiff raises three issues on appeal. The first is whether the trial court erred by making findings on contested material facts without an evidentiary record. We find that no error occurred.
Plaintiffs motion for summary disposition invoked MCR 2.116 generally and alleged without qualification that "except as to the amount of damages, there is no genuine issue as to any material fact, and plaintiff is entitled to judgment as a matter of law.” Moreover, plaintiffs motion for summary disposition on that ground was not supported by any documentary evidence as re quired by MCR 2.116(G). Similarly, subrule 2.116(G)(4) provides that "[a] motion under subrule (0(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact.” Plaintiffs motion failed to do that.
The commission’s answer to the motion was supported by affidavits and other documents as required by the subrule. The commission agreed with plaintiffs assertion that there was no genuine issue as to any material fact. In light of that, the court properly proceeded to decide the motion based on what was before it.
(1) If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall render judgment without delay.
(2) If it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party. [MCR 2.116(1).]
Given that both sides of the dispute agree that there was no issue as to any material fact, there was no need for an evidentiary hearing or trial to determine facts which were undisputed.
Plaintiff next alleges that the trial court erred by failing to hold inadmissible the defenses raised by the commission. We disagree.
Plaintiff contends that defenses not raised by the commission at the time it denied the request for disclosure of information were waived in the circuit court. Although there are no cases directly on point, the inferences from the act and decided cases are that there is no waiver of defenses. Under § 5(2)(b) of the act, if an agency does not grant a request for disclosure, it is required to issue "a written notice to the requesting person denying the request.” Under § 5(4), the written notice shall include the reason for denial. In this case, the commission initially stated that the request was denied because the documents were no longer in its possession, but, on later inquiry by plaintiff, explained that the documents were returned because they had been received by the commission under a promise of confidentiality. A disappointed requester may sue in circuit court under § 10 of the act. In that proceeding, the court determines whether or not the public records are exempt from disclosure. The court makes that determination de novo and the burden is on the agency to sustain the denial. MCL 15.240; MSA 4.1801(10). The provision for de novo review in circuit court suggests that the agency does not waive defenses by failing to raise them at the administrative level.
The same conclusion can be drawn from the fact that a defendant’s failure to respond to a foia request is considered a denial. Pennington v Washtenaw Co Sheriff, 125 Mich App 556, 564; 336 NW2d 828 (1983); Capitol Information Ass’n v Ann Arbor Police Dep’t, 138 Mich App 655, 658; 360 NW2d 262 (1984). If a government agency fails to respond to a request or denies it without reason, but can raise a defense in a circuit court action, it would be illogical to hold that an agency that gives some reason for the denial is barred from raising other defenses in the circuit court action.
Next, plaintiff argues that defendant should be barred from raising new defenses in circuit court as a penalty for its outrageous disregard of the act by returning the documents to Detroit Edison as soon as it received the request for disclosure. This claim is not meritorious because waiver of defenses is not provided for by the act; the act gives more specific remedies for violation. Under § 5(3) of the act, the court can award damages for an agency’s refusal to respond or to disclose records it should have disclosed. Similarly, § 10(5) of the act also provides for punitive damages when an agency arbitrarily or capriciously violates the act.
Also related to this issue, plaintiff argues that none of defendant’s other claimed defenses are available. Among the other defenses the commission raised were that it was barred from disclosing the documents under the ethics act, its good faith, its liability for damages for unlawful disclosure, and the fact that disclosure was barred by a previously entered protective order. However, since the circuit court did not base its ruling on any of these defenses, we see no need to address them. We confine our decision on appeal to the grounds relied on by the trial court.
Plaintiff’s last issue on appeal is that the circuit court unlawfully placed limitations on the use of the public records released to it. We disagree. We find it somewhat ironic for plaintiff to complain that the circuit court put restrictions on its use of the coal contracts when the circuit court could have wholly prohibited their disclosure as exempt records under § 13(l)(g) of the act.
Restrictions on the use of disclosed documents is a common practice. For example, in International Union, United Plant Guard Workers of America v Dep’t of State Police, 118 Mich App 292; 324 NW2d 611 (1982), a panel of this Court modified a disclosure order by forbidding further disclosure of the documents to third parties. 118 Mich App 298. On appeal, the Michigan Supreme Court declined to review the propriety of that restriction. International Union, United Plant Guard Workers of America v Dep’t of State Police, 422 Mich 432, 454, n 43; 373 NW2d 713 (1985). Similarly, in International Business Machines Corp v Dep’t of Treasury, 71 Mich App 526; 248 NW2d 605 (1976), documents were ordered disclosed under the discovery provisions of the Administrative Procedures Act, the forerunner of the foia, however, the trial court required that identifying details be deleted first. On remand, this Court ordered the circuit court to examine the matter in camera and "delete such identifying details as are necessary to prevent an unwarranted invasion of privacy as well as statements of the hearing officer which reflect the Revenue Division’s general policy discussions.” 71 Mich App 539. See also Kestenbaum v Michigan State University, 97 Mich App 5; 294 NW2d 228 (1980), aff’d by an equally divided Court 414 Mich 510; 327 NW2d 783 (1982). Thus, we find no error in the restrictions placed by the trial court on the use of the disclosed documents.
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G. S. Allen, J.
Upon retrial for the fatal beating and stabbing of O’Dell Cheatham on January 12, 1978, defendants Mallory and Lewis were convicted of the lesser included offense of second-degree murder. A third defendant, Charles Howard, was acquitted. At the first trial, all three defendants were convicted by jury of first-degree felony murder. Those convictions were affirmed by the Court of Appeals, but were reversed and a retrial was ordered by the Supreme Court in People v Mallory, 421 Mich 229; 365 NW2d 673 (1984). Sentenced to 60 to 120 and 59 to 119 years in prison respectively, Mallory and Lewis appeal as of right. Their appeals have been consolidated.
FACTS
On the evening of January 12, 1978, Robert Parker looked out his apartment window and saw two men throw O’Dell Cheatham onto the hood of a car and beat him. Parker went to telephone the police. When he returned to the window, the victim was lying on the ground and the two men were jumping on his head. When the police arrived, Parker gave them the descriptions of the two men and described the car as a green Buick with damage to the fear. He described a third man, the driver of the car, only as being dark-complected.
Shortly thereafter, only a few blocks from where the assault occurred, police officers on routine patrol came upon three men standing near a green Buick which was steaming and facing the wrong direction on the road. Defendant Howard stated it was his car and claimed he had been in a hit-and-run accident. When the officers called in for information on a hit-and-run accident, the dispatcher stated no report had been received of a hit-and-run, but a report had come in about a felonious assault by three men in a green Buick. Upon receipt of this report, the officers patted down all three men. Lewis and Mallory were released and went into a nearby house and Howard was arrested. When backup police arrived, the officers obtained consent to enter the house, where they found Lewis and Mallory hiding behind the furnace in the basement and arrested them.
The next morning, January 13, 1978, a "reverse writ” was obtained from a magistrate. A reverse writ was a unique procedure by which Detroit police sought to justify continued detention of an arrestee. A second reverse writ was obtained the following morning, January 14, since a writ was thought to be valid for only one day. At that time, police noticed what might be blood on Mallory’s shoes. At about 5:00 p.m., the three defendants were placed in several lineups, at which Robert Parker identified Mallory and Lewis. Howard was not identified. During the identification proceedings Parker stated the assailants jumped on the victim as he lay on the ground. On the basis of that statement, a police officer took Mallory’s shoes, but did so without a search warrant.
Later in the evening of January 14, Howard’s sister came to the police station. As one of the officers was accompanying Howard from his cell to the visiting area, the officer commented to Howard that Mallory and Lewis had been identified. Howard responded that if they were identified he was identified because he had been with them the entire evening of January 12. On the previous day, Howard had been advised of his Miranda rights by another officer. The three defendants were arraigned on the morning of January 15. At the time of the attack, Cheatham had terminal brain cancer and paralysis of his right arm.
In Mallory, the Supreme Court held that all three defendants had been unlawfully detained under invalid "reverse writs” and that certain evidence obtained during the unlawful detention should be excluded, viz.: the shoes seized from Mallory, the results of the blood test on the shoes, and Howard’s statement when told the other two defendants had been identified.
ISSUES
On appeal five issues are raised. Issue i is of first impression and Issue v reflects a split on this Court.
I. Did the trial court err in denying defendants’ motion to suppress the lineup identification of defendants? Stated another way, does an unlawful delay in arraignment require suppression of a corporeal lineup held during the period of delay?
II. Did evidence of the victim’s physical incapacity elicited on cross-examination deny defendants a fair trial?
III. Did admission of testimony of the arresting officer of a radio call violate defendants’ right to confrontation, constitute impermissible hearsay, or ‘ evidence that is more prejudicial than probative?
IV. Were the trial court’s findings of fact on the elements of the offense, especially the element of intent, inadequate and was the evidence of intent sufficient to support a conviction for murder?
V. Do the sentences of terms of years greater than defendants’ life expectancies constitute cruel and unusual punishment or an abuse of discretion that shocks the judicial conscience?
i
Prior to retrial, defendants moved to suppress evidence of the lineup identification by the eyewitness, Robert Parker, on grounds that the unlawful delay in arraignment which occurred during the invalid "reverse writ” procedure was used to marshal evidence against defendants and therefore all evidence procured during the delay must be excluded. Following extensive argument, the trial court denied the motion on grounds that the Supreme Court, although knowing all the facts, ruled that Mallory’s shoes, the results of the blood tests performed on the shoes, and evidence of Howard’s statements should be excluded upon retrial and did not extend the exclusion to the lineup evidence.
Examination of the printed briefs and record on file with the Supreme Court reveals that, contrary to defendant Lewis’ assertion, the question of the propriety of the lineup identification was squarely presented. Yet, the Supreme Court declined to rule that the lineup identification should be suppressed. Defendants now ask this Court to do what the Supreme Court declined to do. Had the issue not been raised in Mallory, there might be merit in defendants’ request, but since the question was raised and the requested relief was not granted, this Court declines relief.
Rather than standing on the technicality that suppression of the lineup identification was rejected sub silentio in Mallory, we proceed to address the issue on its merits. Prior to Mallory, the exclusionary rule was applied only to statements made by a defendant while unlawfully detained. With three justices dissenting, the Court in Mallory extended the rule to apply
whenever a statutorily unlawful detention has been employed as a tool to directly procure any type of evidence from a detainee. See People v McCoy, 29 Mich App 589, 591-592; 185 NW2d 588 (1971). Moreover, the exclusionary rule will bar any other evidence which would not have been discovered but for that direct procurement._
Obviously, not all evidence acquired directly or indirectly from a detainee during a statutorily unlawful detention will be procured by exploiting that detention, e.g., ... or any evidence obtained by means sufficiently distinguishable to be purged of the taint of the unlawful detention. The exclusionary rule will not bar the admission at trial of evidence which has been acquired absent exploitation of a statutorily unlawful detention. [Emphasis supplied. Mallory, pp 240-241.]
Application of the above rule to the facts in the instant case indicates that, while Parker’s identification occurred during the period of an unlawful detention, it was not evidence "which would not have been discovered but for that direct procurement.” Stated another way, it was evidence which otherwise would have been acquired.
The Supreme Court meticulously explained that, had defendants been promptly arraigned, bail might have been set prior to Cheatham’s death on the afternoon of Friday, January 13. In that event, neither Mallory’s shoes nor the blood thereon would have been discovered. Similarly, Howard’s statement that he had been with Mallory and Lewis the evening of the assault would not have been made. Corporeal identification is not causally linked to the time of arraignment. Frequently, identification does not occur until several days after an arrest, particularly where the detention occurs, as here, during or near a weekend. Parker’s identity and address were known to the police prior to the arrest and thus the delay in arraignment, while arguably causing Howard’s statement, had nothing to do with Parker’s identification. Parker would have identified the defendants despite the delay. Simply stated, the period of unlawful detention was not "employed as a tool to directly procure” the identification. Identification occurred within forty-two hours of an arrest for probable cause. This is well within the time period permitted for lineup identification.
Further, since the rationale behind the exclusionary rule is to deter police misconduct, we find no purpose is served by excluding testimony which would have been admitted even if the police had not unlawfully detained the defendants. While the shoes, the blood stains, and Howard’s statement might not have been brought to light but for the unlawful detention of all defendants, Parker’s identification would have occurred anyway. Consequently, the lineup identification of defendants is not evidence which under Mallory "would not have been discovered but for that direct procurement.” It is not Parker’s statements at the lineup that are at issue, but the information derived from those statements, the identification of Mallory and Lewis. Because there was sufficient information available to the police concerning the eyewitness, the identification of Malloiy and Lewis was inevitable.
Finally, we reject the argument that the trial court should have followed the reasoning of United States v Crews, 445 US 463; 100 S Ct 1244; 63 L Ed 2d 537 (1980), and held an evidentiary hearing. Crews is distinguishable since it involved an arrest without a warrant and without probable cause. The Supreme Court in Mallory, for purposes of its analysis, assumed the police had probable cause to arrest and that the arrests were effectuated in a lawful manner. Mallory, supra, p 240 n 6.
For the foregoing reasons we hold that the trial court did not err in denying the motion to suppress the lineup identification.
ii
At defendants’ first trial, graphic testimony that the victim had terminal brain cancer, resulting in the loss of use of his right arm, was admitted into evidence over the objections of defendants. In Mallory, the Supreme Court held the testimony had no logical or legal relevance to prosecution for first-degree felony murder and admonished "this evidence should not be admitted at any retrial involving any of the defendants.” Id., p 251. However, references to Cheatham’s incapacity crept in at the second trial. During defense counsel’s cross-examination of Cheatham’s mother, the following exchange occurred:
Q. You didn’t see him get dressed that day, did you?
A. He couldn’t dress by hisself [sic],
Q. Listen to my question. Did you watch him dress?
A. Yes, I saw him got [sic] dressed.
Q. Now which pocket did she put it in, if you know?
A. I think, to my recall, I think it was the right pocket.
Q. Right front pants pocket?
A. Yes, I think that’s the one she put it in.
Q. Are you certain of that?
A. I’m not — I think she put it in his right pants pocket, because he couldn’t only [sic] use but one hand.
During cross-examination of Margaret Ruff, Cheat-ham’s girlfriend, defense counsel inquired when Cheatham had been at her house and the witness responded it was in the evening and that he had stayed about an hour. The court interjected and the following exchange occurred:
The Court: Where did you live then, ma’am?
A. On McDouggal.
The Court: And how far was that from where Mr. Cheatham lived at the time, do you know?
A. Not exactly, but I think it’s about eight blocks.
The Court: I gather that Mr. Cheatham was somewhat incapacitated?
A. Yeah.
The Court: What was wrong?
A. Well, he had lost, you know, not complete control.
Defense counsel objected to the last response on grounds that it touched upon prejudicial information excluded by the Supreme Court.
Citing authority that improper information obtained in a bench trial may deny a defendant a fair trial, defendants argue that the very evidence which was excluded by the Supreme Court as unduly prejudicial was again introduced into evidence and, if not that, at least that the trial court was necessarily prejudiced by testimony that the victim was physically incapacitated. We disagree on several grounds. First, the Supreme Court’s admonition pertained to testimony that the victim had terminal brain cancer. The witness’ responses made no mention of brain cancer. Second, the disputed testimony was introduced by defense counsel, not the prosecution. See People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969). Third, the trial judge expressly stated that the minimal references to incapacity had no impact on the court’s verdict. In view of the Supreme Court’s declination to find the "graphic testimony” from the first trial grounds for reversal, we conclude that the minimal references in the second trial concerning incapacity are at most harmless, particularly because they were made in a bench trial.
iii
Defendants objected to the testimony of police officer Anthony Quarles concerning the radio report given him when he called in for information about a hit-and-run accident. The officer stated he called in after he and officers with him on routine patrol came upon a green Buick facing the wrong direction and was told by the driver that the Buick had been struck by a hit-and-run driver. Officer Quarles explained that, before he saw the Buick, information about a felonious assault in the neighborhood had been broadcast over the police radio but that he had no reason to believe that the Buick and its three passengers were connected with the assault. Over defendants’ objection, Quarles stated that when he made the radio call the dispatcher told him there was no report of a hit-and-run but that he did have a felonious assault report involving a green Buick and three men.
Defendants argue that the dispatcher’s statement constitutes impermissible hearsay, violates defendants’ right to confrontation, and is more prejudicial than probative. In support of this claim defendants cite People v Harris, 41 Mich App 389; 200 NW2d 349 (1972); People v Wilkins, 408 Mich 69; 288 NW2d 583 (1980); and People v Eady, 409 Mich 356; 294 NW2d 202 (1980). The prosecutor argues that the evidence was ofiered to show why the officers arrested the three men involved.
Admission of evidence of the radio report does not require reversal. Harris and Wilkins are both distinguishable since each involved reports received by the police from an unknown eyewitness who was never produced in court. In the instant case Robert Parker, the eyewitness of the assault and the person making the report to the police, testified and was cross-examined.
Hearsay is an extrajudicial statement offered to prove the truth of the matter asserted therein. MRE 801(c). The dispatcher’s statement was offered to explain why the police did what they did after receiving the report. In People v Pawelczak, 125 Mich App 231, 234-235; 336 NW2d 453 (1983), our Court stated:
[I]n some instances evidence of statements transmitted over the radio may be properly admitted for purposes other than to show the truth of the matter asserted, such as to show the listeners’ knowledge or motives if relevant to an issue in the case.
The evidence at issue here was offered to show the motives of the police officers for pursuing the stolen vehicle and for arresting defendant rather than to prove the truth of the matter asserted. The circumstances of the arrest were relevant to prove defendant’s identity as the perpetrator of the crime. [Emphasis supplied.]
In Eady, supra, a police dispatcher’s statement that a person called in and reported that someone was screaming and a horn was blowing was offered in evidence to prove that the complaining witness was screaming and honking the horn before the police arrived. Because the statement was offered to prove the truth of the matter asserted, the Court held it was impermissible hearsay. That is not the situation in the instant case.
Finally, on this issue, we note that even where evidence is hearsay its admission is harmless error where the same facts are shown by other competent evidence. People v Slaton, 135 Mich App 328, 338; 354 NW2d 326 (1984), lv den 422 Mich 854 (1985). In the instant case the eyewitness testified at length about his description of the assailants and the car involved in the assault. Ergo, even if the radio statement was hearsay, the error is harmless.
iv
Defendants argue that the trial court found them guilty without specifically finding any of the legal elements of the offense. MCR 2.517 provides that "[b]rief, definite, and pertinent findings and conclusions on the contested matters are sufficient, without overelaboration of detail or particularization of facts.” The elements of second-degree murder are: (1) that a death occurred, (2) that it was caused by the defendant, (3) that the killing was done with malice, and (4) without justification or excuse. People v Smith, 148 Mich App 16, 21; 384 NW2d 68 (1985). As the primary issue at trial was identity, the trial court’s findings concentrated on that element without particularization of the other elements of second-degree murder. The other elements are established by the testimony. The body of O’Dell Cheatham was identified by relatives on January 14, 1978. Cheatham died of blunt force injuries to his head and stab wounds to the chest. Mallory and Lewis were identified by the eyewitness as the two men who beat Cheatham. Further, it is clear that the judge was aware of these factual issues and resolved them. Our Supreme Court has ruled: "A judge’s failure to find the facts does not require remand where it is manifest that he was aware of the factual issue, that he resolved it and it would not facilitate appellate review to require further explication of the path he followed in reaching the result . . . People v Jackson, 390 Mich 621, 627, n 3; 212 NW2d 918 (1973).
When the trial court rendered its verdict finding Mallory and Lewis guilty of second-degree murder and defendant Howard not guilty, it did not make a specific factual finding of malice. However, the record reveals that the trial court was aware of and properly applied the relevant law. Just before oral argument, the trial court entertained the defendants’ motion to dismiss, reviewed the elements of first-degree felony murder and second-degree murder and dismissed the charge of murder in the first degree. In arriving at this decision the court discussed and applied the mental element of murder, malice. The court stated in part:
Murder is defined as the killing of a human being without justification or excuse and requires a certain mental element, an intention to kill, an intention to do great bodily harm, or the creation of a very high risk of death or great bodily harm if knowledge that death or great bodily harm would be the probable result.
The intention is a state of mind and can be demonstrated by what a person says or does. It can also be demonstrated, or a lawful, legitimate inference of intention to kill can be established where there is evidence of the use of a dangerous weapon.
Prosecution’s exhibit one, the medical examiner’s protocol, among other things, evidences the use of a dangerous weapon, a knife.
Although this decision is not part of the findings of fact, it demonstrates the court’s awareness of the law and its application to these defendants. Malice is the mental state required for murder and consists of the intent to kill, to cause great bodily harm, or to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm. People v Woods, 416 Mich 581; 331 NW2d 707 (1982); People v Aaron, 409 Mich 672; 299 NW2d 304 (1980). As a matter of law, malice cannot be implied from a sudden, unprovoked and unjustifiable killing, because the question of whether malice existed must always be submitted to the trier of fact. Woods, supra, p 597. Aaron, supra, p 733. However, a jury can properly infer malice from evidence that a defendant intentionally set in motion a force likely to cause death or great bodily harm. Id., p 729. The necessary factual element of malice may be permissibly inferred from the facts and circumstances of the killing. Woods, supra, p 597.
Upon considering the court’s statement in ruling on defendants’ motion to dismiss, the eyewitness’ testimony of the severe beating inflicted, and the medical evidence of the stab wounds received, we find sufficient evidence was presented at trial to support the convictions of second-degree murder. Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the element of malice was proven beyond a reasonable doubt. People v Petrella, 424 Mich 221, 269-270; 380 NW2d 11 (1985).
v
Do the sentences of 60 to 120 years (Mallory) and 59 to 119 years (Lewis) constitute cruel and unusual punishment or an abuse of discretion which shocks the judicial conscience? Second-de gree murder is punishable "by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same.” MCL 750.317; MSA 28.549. Exercising the discretion given under the statute, the trial judge chose not to sentence defendants to life imprisonment but instead to an indeterminate term of years.
As defendants point out, had the court imposed sentences "for life,” defendants would be eligible for possible parole within ten years, yet despite this, defendants were given sentences "far worse than life . . . and tantamount to non-parolable natural life in prison.” Defendants err. Only if the sentences imposed would fall within Proposal b (MCL 791.233; MSA 28.2303) would defendants not be eligible for parole until they had served the minimum sixty-year and fifty-nine year terms. Proposal b became effective December 12, 1978. It applies to described offenses committed after that date. Since the fatal beating and stabbing of O’Dell Cheatham occurred on January 12, 1978, Proposal b is not controlling.
Therefore, the sentences meted out by the court on retrial are not tantamount to the life sentences for first-degree murder imposed at the first trial. Contrary to their claims, Mallory and Lewis are eligible for good time and disciplinary credits. Assuming they commit no offenses during incarceration and earn the maximum credits allowable, Mallory would be eligible for parole in twenty-one years and two months and Lewis in twenty years and eleven months.
Lengthy sentences have been upheld where the crimes committed are particularly shocking. For example, in People v Brown, 150 Mich App 168, 172; 388 NW2d 249 (1986), a defendant’s sentence of sixty-six to ninety-nine years for committing criminal sexual conduct in the first degree involv ing a seventy-four-year-old woman was found not to shock the judicial conscience. In the instant case, an even more vicious assault was made on a young man — an 18-year-old, 5'6" lad weighing 113 pounds who suffered from terminal brain cancer and had lost the use of his right arm. At sentencing, the court noted these facts and indicated to Mallory that the killing was vicious in the extreme. The court also noted that Lewis was at least 39 years old, 6'3" in height and weighed 213 pounds.
Given the circumstances of this case and the fact that defendants will be eligible for parole well within their life expectancies, we do not find the sentences "shocking” or that they constitute cruel and unusual punishment.
Affirmed.
People v Lewis and People v Howard, 97 Mich App 359; 296 NW2d 22 (1980); People v Mallory, unpublished opinion per curiam of the Court of Appeals, decided November 26, 1979 (Docket No. 78-2377.)
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Additionally, defendant contends that a lineup identification is also a foreseeable consequence of an arrest and subsequent illegal detention, where the identity of the perpetrator is known, and consequently, the show-up conducted after defendant’s arrest should have been suppressed. Although it can be argued that the physical appearance cannot be seized by the police, and therefore not subject to the exclusionary rule of Mapp v Ohio, one need only look to People v Kusowski, 71 Mich App 730 [248 NW2d 668 (1976)], in which a witness’ testimony was suppressed where the identification of the witness was learned through illegal procedure. . . . Absent the ability of the prosecution to establish an independent basis of identification other than the lineup identification, the case should be reversed and the defendant discharged. [(Brief of defendant Lewis, pp 6-7). See also, pages 22-23 of the people’s brief responding to the issue so raised. Note also that Kusowski was reversed by the Supreme Court, 403 Mich 653; 272 NW2d 503 (1978).]
Mallory, supra, p 242, n 7.
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Per Curiam.
Plaintiff appeals from the Michigan Tax Tribunal’s dismissal of its petition claiming exemption from taxation on its real property located within defendant township.
In 1961 plaintiff was granted a tax exemption on the subject property pursuant to MCL 211.7; MSA 7.7. On November 24, Í975, plaintiffs treasurer was notified by mail that its property had been placed on the tax rolls for 1975 and that taxes due thereon were payable December 1, 1975. A series of communications between plaintiff and the township supervisor failed to resolve the question of plaintiff’s exemption.
Consequently, on March 14, 1977, plaintiff filed a petition with the Michigan Tax Tribunal claiming the exemption and requesting that the assessment rolls be appropriately corrected. Upon defendant’s failure to file an answer within 30 days, plaintiff moved the tribunal for a default judgment. The tribunal denied the motion and dismissed the petition on two grounds: (1) that a copy of the petition had not been sent to the secretary of the school board in the district in which the property was located; and (2) that the petition was not timely filed. MCL 205.735(3); MSA 7.650(35)(3).
Plaintiff appeals the tribunal’s action claiming that defendant’s failure to give timely notice to plaintiff of revocation of the tax exemption precluded administrative or judicial review of that action, and that the tax imposed for 1975 was therefore invalid.
The contention that the tardy notification prevented plaintiff from challenging defendant’s action is correct. Even assuming that plaintiff had avoided the procedural pitfalls upon which the tribunal based its decision, the tribunal would have had no jurisdiction to hear the dispute because of plaintiff’s failure to protest the assessment to the board of review. MCL 205.735(1); MSA 7.650(350(1). Insofar as the board of review hears challenges to assessments in March, MCL 211.30; MSA 7.30, and must complete its review of assessments by the first Monday in April, MCL 211.30a; MSA 7.30(1), notification to the plaintiff in November of the tax year obviously afforded it no opportunity to protest the assessment to the board.
Therefore, although we must affirm the tribunal’s dismissal of the petition because MCL 205.735(1); MSA 7.650(35)(1) requires protest to the board of review as a prerequisite to the tribunal’s jurisdiction, it does not follow that defendant may enforce the tax imposed as the result of the assessment.
MCL 211.24c; MSA 7.24(3) required defendant’s supervisor or assessor to notify plaintiff no later than ten days before the meeting of the board of review of the increase in assessment. Satisfaction of that notice requirement is a precondition to a valid increase in a tax assessment. W & E Burnside, Inc v Bangor Twp, 77 Mich App 618; 259 NW2d 160 (1977). Accordingly, we hold that the defendant’s failure to satisfy the notice requirement of the above statute rendered the assessment and consequent tax invalid and unenforceable.
Costs to appellant.
Plaintiffs motion for rehearing was denied by the tribunal, which explicitly ruled that the action was governed by the 1976 amendments to the statute. 1976 PA 365, effective December 23, 1976.
That failure would oust the tribunal of jurisdiction under both the original and the amended versions of the statute. See, Imerman Screw Products Co v Hamtramck, 67 Mich App 727; 242 NW2d 505 (1976).
This result is not inconsistent with the statutory language which states:
"The failure of the property owner to receive notice shall not invalidate an assessment roll or an assessment on property.” MCL 211.24c; MSA 7.24(3).
First, to construe that language as precluding invalidating an assessment where the supervisor failed to send any notice would nullify the entire statutory provision. We think a more reasonable interpretation to be that the Legislature did not intend to make actual notice precondition to a valid increase in assessment. See, Dow v Michigan, 396 Mich 192; 240 NW2d 450 (1976).
Second, the effect given the statute in the instant case is consistent with both the legislative intent, W & E Burnside, Inc v Bangor Twp, 77 Mich App 618; 259 NW2d 160 (1977), and with the principles of due process. See, Dow v Michigan, supra, Fisher v Muller, 53 Mich App 110; 218 NW2d 821 (1974). | [
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Per Curiam.
This is an appeal, brought by defendant Attorney General, from a decision of the Circuit Court for the County of Mackinac construing certain sections of the Michigan Watercraft Pollution Control Act of 1970; MCL 323.331, et seq.; MSA 3.533(201), et seq., (hereinafter referred to as WPCA), and granting plaintiffs injunctive relief against enforcement of a provision of the act which would prohibit the discharge of all sewage, whether treated or untreated, from cargo-carrying vessels engaged in commerce on Michigan waters.
In 1971, plaintiff Lake Carriers’ Association instituted an action against Michigan officials in the United States District Court for the Eastern District of Michigan seeking declaratory and injunctive relief against enforcement of the WPCA, which was interpreted by the defendants as entirely prohibiting the discharge of sewage, whether treated or untreated, in state waters and as requiring vessels equipped with toilet facilities to carry sewage storage devices permitting subsequent onshore disposal of sewage. Plaintiffs attacked the validity of the Michigan act on Federal constitutional grounds, including vagueness, interference with interstate and foreign commerce and with uniform maritime law, denial of due process and equal protection as well as violation of the supremacy clause by being in conflict with Federal water pollution control statutes, which allegedly contem plated pollution control through on-board treatment of sewage before discharge.
A three-judge panel of the district court dismissed the complaint for lack of a justiciable controversy and also found compelling reasons to abstain from consideration of the merits. Lake Carriers’ Ass’n v MacMullan, 336 F Supp 248 (ED Mich, 1971). An appeal was taken to the United States Supreme Court and an amicus curiae brief was filed on behalf of Dominion Marine Association raising the additional arguments that the Michigan law conflicts with the United States-Canadian Boundary Waters Treaty of 1909, 36 Stat 2448; TS No. 548, and that the law enters the domain of foreign affairs, an area constitutionally reserved to the national government.
The United States Supreme Court held that the case did present an "actual controversy” within the meaning of the Declaratory Judgment Act, 28 USC 2201. However, the high Court went on to hold that abstention was appropriate because the WPCA had not been construed in any Michigan court and it appeared that the ambiguous language in the statute might be construed by the Michigan courts in such a way as to avoid or significantly modify the Federal questions raised. The Supreme Court, therefore, vacated the lower court judgment and remanded to the district court with direction to retain jurisdiction pending institution of appropriate proceedings in Michigan courts. Lake Carriers’ Ass’n v MacMullan, 406 US 498; 92 S Ct 1749; 32 L Ed 2d 257 (1972). An order to that effect was entered in the district court, Lake Carriers’ Ass’n v MacMullan, Civil Action No. 36194 (June 20, 1972).
State court proceedings were initiated when a complaint was filed in the Circuit Court for the County of Mackinac seeking declaratory relief, pursuant to GCR 1963, 521, definitively determining the allegedly ambiguous portions of the WPCA. In reviewing the WPCA, the circuit court first considered the relation of the Michigan statute to the Federal Water Pollution Control Act, 33 USC 1251 et seq., the Boundary Waters Treaty and the United States-Canadian Great Lakes Water Quality Agreement of April 15, 1972, 23 UST 301; TIAS No. 7312. Reconciling the statute to the other provisions, the court found that the Michigan act is neither clear nor unambiguous and decided, therefore, that it was necessary to construe the statute in order to ascertain if it did proscribe the discharge of all sewage. As an aid in determining the intent of the Legislature and the meaning of the statute, the court also looked to the entire water resources commission act, MCL 323.1 et seq.; MSA 3.521 et seq. (hereinafter referred to as WRCA). It found that the overall objective of the WRCA was to prohibit the pollution of Michigan waters. It further found that the watercraft pollution section of the WRCA does not ban the discharge of all sewage, but seeks only to prohibit the deposit in Michigan waters of any sewage or liquid or solid materials which "render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes”. MCL 323.333(1); MSA 3.533(203X1). The circuit court then held that the WPCA did not bar the discharge of all sewage, but that the discharge of sewage treated to an adequate degree by a United States or Canadian Federally certified marine sanitation device was permissible.
In this appeal, the defendant Attorney General challenges only the trial court’s construction of the statute vis-á-vis the various rules of statutory interpretation. Because the lower court did not reach the constitutional issues involved in light of its finding that the statute did allow the discharge of adequately treated sewage, those issues will be reached only if this Court takes a view contrary, to that of the circuit court as to the statute’s construction. Thus, at the outset, we are presented with a single and controlling question of law.
Does the Watercraft Pollution Control Act prohibit the discharge of sewage, whether treated or untreated, from cargo-carrying vessels engaged in commerce on the waters of the State of Michigan?
The defendant-appellants contend that the circuit court erred in finding the WPCA ambiguous and therefore susceptible to judicial interpretation. Alternatively, if the act is deemed to be ambiguous, it is argued that the circuit court improperly relied on the permit system established by the Water Resources Commission Act, which allows the discharge of treated sewage by municipalities and shore-based facilities, as indicating a legislative tolerance of the discharge of treated sewage because the latter act did not require such permits at the time the WPCA was enacted.
Plaintiffs-appellees answer that the United States Supreme Court has found the language of the WPCA to be ambiguous, and abstained from addressing the merits of this dispute in order to permit Michigan courts the opportunity to render a clarifying interpretation. Furthermore, it is argued that the circuit court’s construction of the WPCA, which reconciled state and Federal statutes, as well as treaties, is merely an application of § 11 of the act which provides that "the provision or the rule [presumably promulgated thereun der] shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations”. MCL 323.341; MSA 3.533(211). In any event, plaintiff contends the WPCA is only concerned with "detrimental” sewage rather than "benign” sewage (sewage treated in accordance with Federal standards by Federally approved and certified treatment devices); as the discharge of treated sewage meeting Federal standards is permitted by municipalities and shore-based industries, to read the WPCA so as to proscribe such discharge from vessels raises serious constitutional questions.
In resolving these opposing contentions and reviewing the construction of the circuit court, our attention is directed to the question of whether or not the language of the WPCA is unclear and ambiguous for, if a statute is unambiguous on its face, there is no room for statutory construction or interpretation. Detroit v Redford Twp, 253 Mich 453, 455; 235 NW 217 (1931), Luyk v Hertel, 242 Mich 445, 448; 219 NW 721 (1928). On the other hand, if ambiguity is found, then it is the duty of the court to consider the intent of the Legislature. As stated in Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956):
"The cardinal rule of statutory construction is to ascertain and give effect to the intention of the legislature. If the language of a statutory provision is unambiguous, the intent must be determined accordingly. It is requisite that pertinent provisions of the act be considered together, to the end that the general plan and purpose of the law-making body may be ascertained. All parts of the specific provision to be construed must be given force and effect. This means that no phrase, or clause, or word, may be ignored in determining the construction of such provision.”
Turning to the statute in question, § 4 of the WPCA, MCL 323.334; MSA 3.533(204), prescribes the conditions under which a marine toilet may be used on state waters, that is, requiring the use of sewage storage containers. The provision states in relevant part:
"(2) A person [defined in § 2(i) to include an individual, or corporation, association or other entity] owning, operating or otherwise concerned in the operation, navigation or management of a watercraft [defined in § 2(g) to include foreign and domestic vessels engaged in commerce] having a marine toilet shall not own, use or permit the use of such toilet on the waters of this state unless the toilet is equipped with 1 of the following pollution control devices:
"(a) A holding tank or self-contained marine toilet which will retain all sewage [defined in § 2(d) as meaning 'all human body wastes, treated or untreated’] produced on the watercraft for subsequent disposal at the approved dockside or onshore collection and treatment facilities.
"(b) An incinerating device which will reduce to ash all sewage produced on the watercraft. The ash shall be disposed of onshore in a manner which will preclude pollution.”
If the foregoing language were considered in isolation, then defendant’s contention, that the act absolutely prohibits the discharge of any sewage into Michigan waters, would be unassailable. When § 3 of the act is considered, however, conflict and resulting ambiguity emerge. Section 3 of the act states:
"Sec. 3. (1) A person shall not place, throw, deposit, discharge or cause to be discharged into or onto the waters of this state, any * * * sewage * * * or other liquid or solid materials which render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes.
"(2) It is unlawful to discharge, dump, throw or deposit * * * sewage * * * from a recreational, domestic or foreign watercraft used for pleasure or for the purpose of carrying passengers, cargo or otherwise engaged in commerce on the waters of this state.” MCL 323.333; MSA 3.533(203).
In reaching the conclusion that the act was unclear and ambiguous, the circuit court viewed the language of the United States Supreme Court opinion as a directive on the subject. The high Court’s opinion states in pertinent part:
"The Michigan Watercraft Pollution Control Act of 1970 has not been construed in any Michigan court, and, as appellants themselves suggest in attacking it for vagueness, its terms are far from clear in particulars that go to the foundation of their grievance. It is indeed only an assertion by appellees that the Michigan law proscribes the discharge of even treated sewage in state waters. Section 3(2) of the Act does state that '[i]t is unlawful to discharge * * * sewage * * * from a recreational, domestic or foreign watercraft used for pleasure or for [commerce] * * *,’ and § 4(2) does require vessels equipped with toilet facilities to have sewage storage devices. Yet § 3(1) seemingly contemplates the discharge of treated sewage by merely prohibiting any person from emitting sewage 'which [renders] the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes.’ Moreover, § 11 provides that '[t]o be enforceable, the provision [of the Act] or the rule [presumably promulgated thereunder] shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations.’ Michigan has thus demonstrated concern that its pollution control requirements be sufficiently flexible to accord with federal law. We do not know, of course, how far Michigan courts will go in interpreting the requirements of the state Watercraft Pollution Control Act in light of the federal Water Quality Improvement Act and the constraints of the United States Constitution.” (Footnotes omitted). Lake Carriers’ Ass’n v MacMullan, 406 US 498, 511-512; 92 S Ct 1749; 32 L Ed 2d 257 (1972).
We, like the circuit court, think that the Supreme Court has identified the central inconsistency of the act. Furthermore, we agree with the high Court’s conclusion that the language of § 3(1), which merely prohibits the discharge of sewage "which render[s] the water unsightly, noxious”, etc., is in direct conflict with the absolute prohibitions embodied in § 3(2) and § 4(2) barring the discharge of all sewage. As to the question before us, i.e., whether or not the statute bars the discharge of all or merely inadequately treated sewage, it is apparent that the WPCA provides no clear answer. As the vagueness of the act’s language presents a classic instance warranting judicial construction and interpretation, we hold that the circuit court was correct in finding the act neither clear nor unambiguous.
In construing and interpreting the language of the WPCA, we are guided by familiar principles of statutory construction. First, the court must look to the object to be accomplished, the evils and mischief sought to be remedied and place on the statute a reasonable construction which will best effect its purpose rather than defeat it. Stover v Retirement Board of St. Clair Shores, 78 Mich App 409, 412; 260 NW2d 112 (1977), Municipal Investors Ass’n v Birmingham, 298 Mich 314, 322; 299 NW 90 (1941), aff'd, 316 US 153; 62 S Ct 975; 86 L Ed 1341 (1942), 82 CJS, Statutes, § 323, pp 593-613. In addition, vague and ambiguous statutes must be interpreted as a whole and constructed so that all of their provisions have some meaning, the entire statute given effect, and a harmonious and consistent result produced. In re Petition of State Highway Comm, 383 Mich 709, 714; 178 NW2d 923 (1970), People v Miller, 78 Mich App 336, 343; 259 NW2d 877 (1977), 21 MLP, Statutes, § 95, pp 99-104. Finally, in construing this particular statute, i.e., one capable of more than one meaning, we believe that we must look to other statutes in pari materia in order to determine the evil sought to be remedied by the Legislature. Borden, Inc v Dep’t of Treasury, 391 Mich 495, 523; 218 NW2d 667 (1974), People v Martin, 59 Mich App 471, 481; 229 NW2d 809 (1975). 82 CJS, Statutes, § 365, pp 799-801.
In obtaining a harmonious and consistent result in our construction of the WPCA, we are mindful that our interpretation must take into account the fact that Federal statutes and national treaties stand in pari materia to the act at issue. Indeed, we think plaintiffs are correct when they argue that § 11 of the act, cited above, indicates a legislative recognition of the interplay of state and Federal pollution control in international waters. Consequently, we briefly summarize the most salient points of Federal statute and treaty law touching this question.
The Federal Water Pollution Control Act, 33 USC 1251 et seq., as amended by the Clean Water Act of 1977, Pub. L. No., 95-217, 91 Stat 1566, updates Federal pollution standards for Great Lakes vessels. Specifically, the amendment requires the administrator of the Environmental Protection Agency to establish waste treatment standards for Great Lakes vessels which are, at a minimum, the equivalent of secondary treatment standards for municipalities. 33 USC 1322(c)(1)(B). Furthermore, the rules promulgated pursuant to that statute establish an outside time limit of January 30, 1980, for the installation of marine sanitation devices for treating sewage prior to discharge. 33 CFR § 159 (1978). Thus, we are inclined to agree with the circuit court that the Federal law now places vessels and municipalities on a parity with respect to waste treatment, and thus accomplishes the objectives which the Michigan Legislature sought to achieve through the use of sewage holding tanks and subsequent on-shore treatment. Further, the Boundary Waters Treaty of 1909, as implemented by the Great Lakes Water Quality Agreement of 1972, constitutes additional legal authority indicating a Federal commitment to on-board sewage treatment. Annex 4 of the Agreement states in relevant part:
"Every vessel operating in these waters with an installed toilet facility shall be equipped with a device or devices to contain the vessel’s sewage, or to incinerate it, or to treat it to an adequate degree. ” (Emphasis supplied).
In addition to Federal statute and treaty, our review of related enactments also requires that we, like the circuit court, view the WPCA in the context of the entire Water Resources Commission Act. The circuit court based its conclusion, in part, on the fact that municipalities and shore-based industries are allowed to discharge waste into the Great Lakes pursuant to permits requiring such waste to receive secondary treatment in accordance with Federal standards. We endorse this conclusion and the language of the circuit court opinion which states:
"This Court concludes that the Michigan legislature considers secondary treatment, in accordance with federal standards, as adequate sewage disposal and that such discharges do not render the waters unsightly, noxious or unwholesome. * * * While § 2(d) of the Act defines 'sewage’ as 'all human body wastes, treated or untreated’, in order to reconcile this section with § 3(1), which only prohibits emission of sewage which renders the water 'unsightly, noxious or otherwise unwholesome so as to be detrimental (etc)’, the term 'treated’ in § 2(d) cannot be deemed to include wastes receiving treatment to a degree whereby the waters of the state are not so impaired. * * *
"The Act should not be read to proscribe the discharge of adequately treated sewage into Michigan waters. The discharge of treated sewage meeting federal standards is permitted by municipalities and industries, and to read the Act to proscribe such discharge from vessels raises serious constitutional questions avoided by an interpretation of the Act permitting the discharge of treated sewage from vessels which conforms to federal standards and which, therefore, does not render the state’s waters unsightly, noxious or otherwise unwholesome * * * ’ [sic] The objective of the Act is thus achieved and constitutional questions avoided, which could render the Act unenforceable, 82 C.J.S., Statutes, Sec. 316 (p. 545); Insurance Commissioner v American Life Insurance Company, 290 Mich 39, 44-45; 287 NW 368 (1939).”
We think it apparent that the Federal statute and the Michigan act have a common objective, that is, the prevention and control of water pollution. It is equally apparent from a review of the statutes that Federal law envisions pollution control through on-board sewage treatment before disposal in navigable waters. The WPCA, as presently stated, embodies an ambiguous and inconsist ent approach to the problem of pollution control: first, proscribing all discharge in § 3(2) and § 4(2); and second, qualifying this general proscription in § 3(1) to only that sewage which "render[s] the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes”. In order to achieve a harmonious and consistent result with statutes and treaty law in pari materia, we are compelled to reject that interpretation of the WPCA which would absolutely prohibit all sewage discharge and conclude that the correct construction to be placed upon the act is one which bans only the discharge of inadequately treated sewage, i.e., that not treated in accordance with Federal standards.
We therefore affirm the holding of the trial court finding the WPCA to be ambiguous and construing it to bar only the discharge of treated sewage not meeting Federal standards.
Affirmed.
Plaintiffs are the Lake Carriers’ Association and' certain of its individual member companies who own and/or operate Federally enrolled and licensed Great Lakes bulk cargo vessels. Intervenor plaintiff, Dominion Marine Association,' is an organization incorporated under the laws of the Dominion of Canada whose members own and/or operate Canadian registered commercial vessels in the Great Lakes.
Defendants are the State Attorney General, The Department of Natural Resources and its Director, and the Water Resources Commission and its Executive Secretary. | [
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M. J. Kelly, P.J.
On February 16, 1977, at 10 p.m., the complainant, Bonita Jones, was accosted near her home in Detroit by defendant, Terry Sturdivant, who told her that he had a gun. As they were standing near a streetlight, the complainant was able to clearly see the defendant’s face. The defendant then took her to the attic of a vacant house where he raped her and took $66 from her pants pocket. In the course of the assault, defendant used a cigarette lighter to illuminate the room and the complainant was again given the opportunity to observe him. After a second penetration, defendant fled the house.
On March 3, 1977, in the course of the police investigation, the complainant viewed a photographic show-up containing defendant’s picture. Although unable to positively identify defendant at this time, she did observe similarities between defendant’s picture and her assailant. Subse quently, on March 14, 1977, the complainant positively identified defendant as her assailant at a police line-up. She again identified defendant at a preliminary examination held on March 21, 1977, and twice identified him at trial. At a pretrial evidentiary hearing, the trial court ruled that neither the photographic show-up nor the line-up were unnecessarily suggestive.
On August 4, 1977, following a jury trial, defendant was convicted of criminal sexual conduct in the first degree, MCL 750.520b(l); MSA 28.788(2)(1), criminal sexual conduct in the third degree, MCL 750.520d(l); MSA 28.788(4)0), and larceny from a person, MCL 750.357; MSA 28.589. The trial court sentenced defendant to 19-1/2 to 55 years on the first offense, 10 to 15 years on the second and 6 years and 8 months to 10 years on the third.
Defendant raises a host of issues in this appeal; however, we find that only one merits extended discussion. Did the trial court commit reversible error in admitting expert scientific testimony regarding the analysis of seminal fluids found on complainant’s clothing?
During the trial, two serologists from the police crime lab testified as to the results of tests they had conducted on the underpants worn by complainant at the time of the offense. The first to testify, Officer Ronald Badaczewski, testified that he found seminal fluid, but no blood, on the garment. The second serologist to testify, RaNell Davis, stated that she tested a swatch of cloth from the same sample, performing a secretory test typing on it. This test is used to determine blood types from other secreted body fluids, (semen, tears, saliva, etc.). She testified that 80% of the general population secreté their blood type in their body fluids and 20% do not. Ms. Davis then testified that the complainant’s panties contained no blood type secretion; this meant, in all likelihood, that the male whose sperm was on the panties, and the female who wore them, were both nonsecreters. She then testified that she did a blood typing on both the complainant and the defendant and that the results indicated that both were nonsecreters. Finally, she noted that it was relatively rare for both individuals in a rape case to be nonsecreters.
In sum, the testimony of Ms. Davis established only that the complainant’s attacker was a member of that segment of the population who were nonsecreters, as was the defendant. Because this testimony served to include the defendant in the class of possible assailants, it thereby increased the probability of defendant’s guilt without connecting him, in any way, to the charged offense. We hold that the admission of blood type evidence solely for the purposes of inclusion was error.
There is no Michigan criminal case on point with the instant case. However, the case law of other jurisdictions and our own case law developed in the context of the quasi-criminal paternity suit, where blood type testimony is often used as evidence, is instructive in resolving the posited issue.
New York represents the view that inclusion evidence has no probative value. In People v Robinson, 27 NY2d 864; 317 NYS2d 19; 265 NE2d 543 (1970), it was held that proof that the defendant in a murder prosecution had Type "A” blood and that semen found in and on the body of the decedent was secreted by a man with Type "A” blood was of no probative value in view of the large proportion of the general population having blood of this type, and therefore, should not have been admitted; however, it was further held that, in view of the careful limitation on its consideration by the jury in the court’s instruction and of the fully adequate case made out by the other proofs, the admission of such evidence was held not to be prejudicial. See also, People v Macedonio, 42 NY2d 944; 397 NYS2d 1002; 366 NE2d 1355 (1977).
However, the case of People v Gillespie, 24 Ill App 3d 567; 321 NE2d 398 (1974), represents the opposing view. In Gillespie, it was held that blood type evidence was admissible as one link in a chain of circumstantial evidence tending to prove the defendant’s participation in a burglary where an expert witness testified that only 2.7% of the Negro population had Type "A” with a positive rheumatoid arthritis factor, as did defendant. See also State v Gray, 292 NC 270; 233 SE2d 905 (1977).
In our opinion, the latter cases are not persuasive authority for the proposition that blood type evidence, when used for purposes of inclusion, is admissible. In Gillespie, there was extensive testimony as to the frequency of Type "A” blood with a positive rheumatoid arthritis factor which ultimately limited the inclusive group to 2.7% of the black population. We have no such specificity here. The people’s expert witness was able to limit the inclusive group of nonsecreters to only 20% of the general population. Similarly, in Gray, the court acknowledged the "somewhat tenuous” positive probative value of blood grouping testimony in a rape prosecution. In view of these distinguishing factors, we adhere to the view expressed in the New York cases which accords inclusion testimony no probative value.
In the context of paternity proceedings, more over, Michigan statute, and case law also provide for the exclusion of blood type testimony when used for purposes of inclusion. Thus, MCL 722.716; MSA 25.496, which concerns the admission of blood tests as evidence of paternity, states in relevant part:
"(d) The result of the [blood] tests shall be receivable in evidence in the trial of the case but only in cases where definite exclusion is established. If more than 1 expert is appointed by the court, and if they disagree in their findings or conclusions, neither the findings, conclusions or the results of these tests shall be admissible as evidence of the paternity or non-paternity of the alleged father.” (Emphasis added.)
Michigan case law adheres to this legislative mandate. In People v Nichols, 341 Mich 311; 67 NW2d 230 (1954), the Court held that the admission of testimony concerning the results of blood tests for the purpose of establishing paternity in bastardy proceedings constituted prejudicial and reversible error because such tests, although accurate and reliable to establish non-paternity, have no probative value whatsoever in establishing paternity. In reaching that conclusion, the Court quoted with approval the language of State, ex rel Freeman v Morris, 156 Ohio St 333; 102 NE2d 450 (1951), where it was stated:
_ " 'Therefore, it may be here repeated that it is established that there is complete accord of experts in biology upon the proposition that results from such blood tests, disclosing a mere possibility of paternity, must be discarded and excluded from evidence as being valueless; and that their admission in evidence is prejudicial.’ ” 341 Mich at 329-330.
Similarly, in Shepherd v Shepherd, 81 Mich App 465, 471; 265 NW2d 374 (1978), this Court stated:
"Finally, we should note that under the holdings in Michigan and a majority of jurisdictions the results of blood tests, disclosing only that the alleged father might have sired the child, are irrelevant and inadmissible. But properly conducted tests which preclude paternity are conclusive and sufficient to rebut the presumption of legitimacy. People v Nichols, 341 Mich 311; 67 NW2d 230 (1954), Kusior v Silver, 54 Cal 2d 603; 7 Cal Rptr 129; 354 P2d 657 (1960), Commonwealth v Stappen, 336 Mass 174; 143 NE2d 221 (1975), Anno: 46 ALR3d 158.”
We find that the foregoing case law and statute amply support the conclusion that blood type evidence, when used solely for the purpose of including a defendant in a class of possible defendants, has no probative value. Therefore, we hold that the trial court erred in admitting such evidence.
This holding, however, does not require reversal in the instant case. Here, the complainant had several opportunities to observe the defendant at the time of the attack and positively identified him on several occasions. The complainant’s eyewitness testimony, if believed by the trier of fact, is sufficient evidence to convict. People v Knapp, 34 Mich App 325, 332; 191 NW2d 155 (1971). We hold that any error interjected into defendant’s trial by the admission of the blood type evidence was harmless beyond a reasonable doubt under the standards set forth in People v Christensen, 64 Mich App 23, 32; 235 NW2d 50 (1975).
Affirmed.
Parenthetically, it should be noted that the Michigan statute, which bars the use of blood tests for inclusion purposes, is a modification of the Uniform Act on Blood Tests to Determine Paternity, which would permit their use for inclusion within the discretion of the trial court. This modification suggests a legislative mandate barring the use of blood tests for purposes of inclusion. | [
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] |
G. W. Crockett, Jr., J.
On October 28, 1976, the defendant, Marcus Stevens, was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, and assault with intent to commit murder, MCL 750.83; MSA 28.278. He was sentenced to concurrent terms of 15 to 30 years imprisonment for the armed robbery conviction and 20 to 40 years for the assault conviction. Defendant appeals by leave granted.
The facts concerning the robbery and assault are essentially undisputed. On June 10, 1975, a party store owner was shot and robbed while working at his store. A customer gave chase when the assailant escaped in an automobile and obtained the license number of the car. Defendant was subsequently arrested.
On June 24, 1975, defense counsel moved for a competency hearing. At the hearing, held on July 17, 1975, defendant was found mentally incompetent to stand trial. A second hearing was held on January 22, 1976, at which defendant was found competent. Trial was set for June 14, 1976, and defendant filed notice of an insanity defense.
In his opening statement to the jury, defense counsel conceded that his client had committed the charged offenses. However, counsel asserted that at the time of the crimes the defendant was insane. Defense counsel indicated that defendant’s insanity would be established with three types of evidence. The first type of evidence would be the manner in which the robbery occurred. "The second type of evidence will show that Marcus Stevens was declared mentally incompetent to stand trial.”
At this point in counsel’s opening statement, the prosecution immediately asked for a mistrial and the jury was led from the courtroom. In arguing his motion, the prosecutor contended that all parties were precluded by statute, MCL 767.27a; MSA 28.966(11), from mentioning at trial the fact of defendant’s competency to stand trial. Defense counsel in reply claimed that both the statute and case law interpreting that statute permit the defendant to waive the statutory privilege if he chooses.
After hearing the arguments of counsel and reviewing the statute and case law on which they relied, the trial court granted the prosecution’s motion for mistrial.
On October 18, 1976, a new trial began. At the beginning of this second trial, defense counsel moved to dismiss on double jeopardy grounds. That motion was denied.
The first question we consider is whether the trial court erred in precluding mention by defense counsel of the decision made at defendant’s competency hearings.
The statute relied on by the prosecutor and the trial court concerns the procedure to be followed in competency hearings. It provided in relevant part:
"The diagnostic report and recommendations shall be admissible as evidence in the hearing, but not for any other purpose in the pending criminal proceedings.” MCL 767.27a(4); MSA 28.966(H)(4).
This statute was superseded by the new Mental Health Code (1974 PA 258; MCL 330.2020 et seq.; MSA 14.800[1020] et seq.). The new sections governing the admission of evidence resulting from competency proceedings were in effect by August 6, 1975. Since the error in this case occurred on June 5, 1976, the parties, and the trial court were incorrect in relying on the repealed statute.
The use of evidence resulting from the competency proceedings is now governed by two sections of the new Mental Health Code. Section 1028(3) provides:
"(3) The opinion concerning competency to stand trial derived from the examination may not be admitted as evidence for any purpose in the pending criminal proceedings, except on the issues to be determined in the hearings required or permitted by sections 1030 and 1040. The foregoing bar of testimony shall not be construed to prohibit the examining qualified clinician from presenting at other stages in the criminal proceedings opinions concerning criminal responsibility, disposition, or other issues if they were originally requested by the court and are available. Information gathered in the course of a prior examination that is of historical value to the examining qualified clinician may be utilized in the formulation of an opinion in any subsequent court ordered evaluation.” MCL 330.2028(3); MSA 14.800(1028X3).
The opinion referred to is that of the examining center or facility.
Section 1030(3) provides:
"(3) The written report shall be admissible as competent evidence in the hearing, unless the defense or prosecution objects, but not for any other purpose in the pending criminal proceeding. The defense, prosecution, and the court on its own motion may present additional evidence relevant to the issues to be determined at the hearing.” MCL 330.2030(3); MSA 14.800(1030X3).
The language employed in § 1030(3) is similar to that found in the repealed MCL 767.27a(4). Under that prior statute, the Michigan Supreme Court included the testimony of the examining psychiatrist under the statutory bar if the defendant objected to the admission of his testimony. People v Martin, 386 Mich 407, 425; 192 NW2d 215 (1971). The Court also found that other evidence resulting from the competency proceedings would be admis sible if the defendant waived the statutory bar. People v Garland, 393 Mich 215; 224 NW2d 45 (1974). (See also, People v Brown, 399 Mich 350; 249 NW2d 693 [1976], People v Plummer, 65 Mich App 396, 400; 237 NW2d 482 [1975]).
Whether this case law is still applicable under the present statute need not be addressed here. Martin and its progeny addressed the question of the admissibility of evidence or testimony used at the competency hearing. They did not consider, nor was there involved there, the admissibility of the trial court’s determination of competency based upon that evidence.
In this case, defense counsel’s opening statement placed before the jury the fact that a prior judicial declaration of defendant’s incompetency to stand trial already had been made by the trial court. This, we hold, was improper and not within either the language of the statutory provisions quoted above, nor within the reasonable intention of the Legislature. Counsel here was not merely referring to information, medical opinion or other claimed evidence that might be relevant to an insanity defense; instead he was implanting in the minds of the jurors the fact that a court or some other authoritative body already had determined that the defendant was incompetent. It is one thing to refer to evidence of a claimed fact. It is another thing to refer to a judicial declaration of that fact.
There remains the question whether the second trial placed the defendant in double jeopardy. Once a jury is impaneled and sworn, a defendant is placed in jeopardy. Once placed in jeopardy, he has the right to have his guilt weighed by that tribunal. Unless the defendant consents to the trial’s interruption, or a mistrial occurs because of "manifest necessity”, the state is precluded from bringing the defendant to trial again. People v Alvin Johnson, 396 Mich 424, 431-432; 240 NW2d 729 (1976). Considerable deference will be given to the trial judge’s determination of whether manifest necessity exists justifying the declaration of a mistrial. Manifest necessity does not exist where the error could have been dealt with by a less drastic remedy. People v Benton, 402 Mich 47, 60-61; 260 NW2d 77 (1977), People v Alvin Johnson, supra, 437-438.
Given our discussion above, we doubt whether the harm caused by defense counsel’s statement could have been corrected by an instruction from the trial court. There already had been implanted in the minds of these lay jurors the fact that a judicial officer had considered and decided the incompetency issue; an issue that even some lawyers and most lay persons frequently confuse with the insanity issue. Much more than a mere admonition to disregard counsel’s remark would be needed to repair this damage deliberately caused by defense counsel.
It follows from this that the second trial before a new jury was a "manifest necessity” and, hence, did not violate the defendant’s constitutional protection against double jeopardy.
The conviction below is affirmed.
Section 1030 directs the procedures for a competency hearing. MCL 330.2030; MSA 14.800(1030). Section 1040 covers hearings on redetermination of competency. MCL 330.2040; MSA 14.800(1040). | [
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] |
D. F. Walsh, P.J.
Defendant State Farm Mutual Automobile Insurance Company (hereinafter "defendant”) appeals the entry of judgment for plaintiffs in the amount of $9,445.49, representing the personal protection insurance benefits payable to plaintiffs as survivors of the deceased Naomi Schwark.
This cáse arose out of an August 3, 1975, automobile accident in which a car driven by defendant Max E. Lilly collided with a car driven by Naomi Schwark. Mrs. Schwark was killed and four of her children, passengers in the automobile, were injured in the accident. Plaintiff Guy Schwark, husband of Naomi Schwark and father of the injured children, filed suit individually and as administrator of his wife’s estate. He also sued as next friend of the four minor Schwark children, three of whom were injured in the accident. The Schwark’s only adult child, Guy Schwark III, was among those injured in the accident and joined in the suit. The defendants were Mr. Lilly, Duane K. Wiltse d/b/a The Lazy Lounge, VFW Mecwarf Post 5319 (Kenneth Suit, Commander) and State Farm Mutual Automobile Insurance Company. Pursuant to settlements, plaintiffs’ claims against all defendants except State Farm were dismissed. The claims against Mr. Wiltse and the VFW post were based on alleged dramshop liability. MCL 436.22; MSA 18.933.
Trial was held on December 6, 1977. The parties agreed that the sole remaining issues concerned: (1) whether Social Security benefits paid to plaintiffs as a result of Mrs. Schwark’s death could be deducted from survivors’ benefits owed to plaintiffs by defendant under the no-fault act, MCL 500.3109(1); MSA 24.13109(1); (2) the amount of survivors’ benefits owed to plaintiffs by defendant under the no-fault act, MCL 500.3108; MSA 24.13108; and (3) whether defendant could be reimbursed from the amount paid to plaintiffs by the dramshop defendants, MCL 500.3116; MSA 24.13116.
The trial court found that § 3109 of the no-fault act was unconstitutional and ruled that defendant was not entitled to a setoff for Social Security benefits. The court also found that § 3116 of the act was unconstitutional and that defendant was not entitled to reimbursement from plaintiffs’ dramshop recovery.
At trial it was established that Naomi Schwark had been employed outside the home at the time of her death. Her gross weekly earnings were approximately $90. Her weekly take home pay was $69.12. Her husband testified repeatedly that he did not know what portion of those earnings had been used for family purposes and what portion had been used by Mrs. Schwark for her own personal needs. In his final response to questioning along this line, he estimated that half of his wife’s income had been used for family purposes.
The trial judge found that survivors’ benefits due plaintiffs under § 3108 of the no-fault act were equal to Mrs. Schwark’s take-home pay of $69.12 per week. The court interpreted § 3108 as requiring payment of something less than the deceased’s gross income. With regard to Mr. Schwark’s testimony as to the portion of Mrs. Schwark’s income which was used for family purposes, the court found that the evidence was "at best * * * untrustworthy. For example, the amount spent on gasoline and repairs for the decedent’s automobile, although used for taking her to and from her place of employment, could have been used for the benefit of the dependents.”
We address three issues on appeal:
1. Did the trial court err in ruling that defendant was not entitled to subtract from personal protection insurance benefits the Social Security benefits paid to plaintiffs as a result of Mrs. Schwark’s death?
2. Did the trial court properly compute the amount of personal protection insurance benefits payable to plaintiffs as dependent survivors of Mrs. Schwark?
3. Did the trial court err in ruling that defendant was not entitled to reimbursement out of plaintiffs’ dramshop recovery from the dismissed defendants?
I. Social Security Setoff
The Supreme Court recently held that the setoff provision of § 3109 of the no-fault act is constitutional and enforceable as it relates to Social Security benefits. O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979). The trial court’s ruling to the contrary is, therefore, reversed.
II. Computation of Personal Protection Insurance Beneñts for Survivors’ Losses
MCL 500.3108, provides:
"Personal protection insurance benefits are payable for a survivors’ loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death and ex penses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if he had not suffered the injury causing death. The benefits payable for survivors’ loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 and is not payable beyond the first 3 years after the date of the accident.”
In Miller v State Farm Mutual Automobile Ins Co, 88 Mich App 175; 276 NW2d 873 (1979), a panel of this Court held that the Legislature did not intend that survivors’ benefits under § 3108 be reduced by the amount the decedent would have paid in taxes but did intend that such benefits be reduced by the amount used for the decedent’s personal consumption.
We concur in the latter conclusion and so rule in this case. With respect to the former conclusion, however, we disagree with the Miller panel and rule to the contrary.
Under generally recognized principles of statutory construction, when there is no necessity to reconcile conflicting statutes, Wayne County Civil Service Comm v Board of Supervisors, 384 Mich 363; 184 NW2d 201 (1971), when there is no absence of adequate operational definitions of relevant terms, Prisoners’ Labor Union v Dep’t of Corrections, 61 Mich App 328; 232 NW2d 699 (1975), lv den 394 Mich 843 (1975), and when the statutory language is plain and unambiguous, Jones v Grand Ledge Public Schools, 349 Mich 1, 9-10; 84 NW2d 327 (1957), judicial construction or attempted interpretation to vary the plain meaning of a statute is precluded.
The language employed by the Legislature in MCL 500.3108, is explicit and unambiguous. It clearly expresses the intent of the Legislature that "benefits are payable for a survivors’ loss” and that the "loss” consists of "tangible things of economic value” which the dependents of the deceased "would have received” from the deceased for support during their dependency. The dependents of the deceased, however, would not have received any amounts of the decedent’s income which the decedent was required to pay in taxes.
The case is remanded to the circuit court for proper determination of the amount of the "tangible things of economic value” which the dependents of Naomi Schwark would have received from her for support if she "had not suffered the accidental bodily injury causing death”. In making this determination the triál court must reduce Mrs. Schwark’s gross wages by an amount fairly representing her personal consumption and also by the amount she would have paid in taxes. It should be noted, however, that this panel agrees with the trial judge that Mr. Schwark’s statement that one half of his wife’s income was used for family purposes, when read in context, was not sufficiently trustworthy to be relied upon as determinative of the amount of her personal consumption.
III. Applicability of the No-Fault Act’s Reimbursement Provision When Recovery From Third Parties is Based on Dramshop Liability
In ruling that defendant was not entitled to reimbursement for personal protection insurance benefits from plaintiffs’ recovery from the dram-shop defendants, the trial court relied on Murray v Ferris, 74 Mich App 91; 253 NW2d 365 (1977). The court found § 3116 of the no-fault act unconstitutional and declined to allow reimbursement from that portion of the dramshop recovery which represented plaintiffs’ noneconomic damages.
At the time of the accident which gave rise to this lawsuit, MCL 500.3116(1); MSA 24.13116(1) provided:
"A subtraction from personal protection insurance benefits shall not be made because of the value of a claim in tort based on the same accidental bodily injury. However, after recovery is realized upon a tort claim, a subtraction shall be made to the extent of the recovery, exclusive of reasonable attorneys’ fees and other reasonable expenses incurred in effecting the recovery. If personal protection insurance benefits have already been received, the claimant shall repay to the insurers out of the recovery a sum equal to the benefits received, but not more than the recovery exclusive of reasonable attorneys’ fees and other reasonable expenses incurred in effecting the recovery. The insurer shall have a lien on the recovery to this extent. A recovery by an injured person or his estate for loss suffered by him shall not be subtracted in calculating benefits due a dependent after the death and a recovery by a dependent for loss suffered by the dependent after the death shall not be subtracted in calculating benefits due the injured person.”
The Supreme Court recently declined to follow the approach taken in Murray v Ferris, supra. Applying established rules of statutory construction in Workman v Detroit Automobile Inter-Insurance Exchange, 404 Mich 477; 274 NW2d 373 (1979), the Court interpreted § 3116 so as not to allow unconditional reimbursement of no-fault insurance carriers out of tort recoveries from third parties. The Court found that it was necessary to construe § 3116 in light of § 3135 of the no-fault act. To do otherwise would allow the absurd result of depriving an injured person of the limited tort remedy provided in § 3135. The Court held that, under § 3116,
"an insurance carrier paying personal injury protection benefits is entitled to reimbursement from the tort recovery of a person injured as a result of a motor vehicle accident only if, and to the extent that, the tort recovery includes damages for losses for which personal injury protection benefits were paid.” Id. at 510 (opinion of Williams, J.).
This interpretation of § 3116 gives full effect to § 3135, and effectuates the essential purpose of § 3116 — i.e., to prevent double recovery of economic loss by persons whose right to sue in tort for economic loss is not abolished by § 3135. The Court noted that such double recovery might occur with respect to: (1) persons injured by uninsured motorists, § 3135(2); (2) persons injured in automobile accidents in another state, § 3135(2); and (3) persons suffering intentionally caused harm in auto accidents, § 3135(2)(a). Id. at 510, fn 15 (opinion of Williams, J.).
Concurring in the result on this issue, Justices Levin and Kavanagh found that the Legislature’s recent amendment of § 3116 provided the definitive answer in the controversy over the proper construction and validity of the section. As amended, the section provides for reimbursement for economic benefits out of third-party tort recoveries only where the defendant is uninsured, the accident occurs out of the state, or the injury is intentionally inflicted.
On appeal in the instant case, defendant concedes that it is not entitled to reimbursement from that part of the dramshop recovery which represents plaintiffs’ noneconomic losses. It argues only that that portion of the dramshop recovery representing economic losses for which defendant is liable to plaintiffs under the no-fault act should be subject to its right of reimbursement.
If we were to adopt the analysis of Justices Levin and Kavanagh, we would reject defendant’s argument summarily, since, as recently amended, § 8116 clearly has no applicability to the instant fact situation. We are also persuaded, however, that the analysis of the Workman majority compels us to reject defendant’s argument. Section 3116 must be construed in light of and together with § 3135. In the latter section the Legislature discusses only "tort liability arising out of the ownership, maintenance or use * * * of a motor vehicle”. § 3135(2). The liability of the dramshop defendants did not arise out of the ownership, maintenance or use of an automobile. Instead their liability arose from their alleged "unlawful selling, giving or furnishing * * * intoxicating liquor” to "a visibly intoxicated person”. MCL 436.22.
In enacting the no-fault act the Legislature addressed only one type of tort liability. The act comprehensively covers only tort liability arising out of the ownership, maintenance or use of motor vehicles. To extend its provisions to liability arising outside its intended scope would circumvent the legislative process. We rule, therefore, that the defendant is not entitled to reimbursement for personal protection insurance benefits from plaintiffs’ recovery from the dramshop defendants.
Affirmed in part; reversed in part; remanded for determination of the amount of no-fault benefits still owed to plaintiffs by defendant. No costs, each party having partially prevailed.
J. H. Gillis, J., concurred.
"Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.” MCL 500.3109(1); MSA 24.13109(1).
There is no question that plaintiffs are dependents of the deceased. MCL 500.3110; MSA 24.13110.
"Q [by Mr. Dark, defense counsel] Now, you understand, I assume, that one of the questions involved is what she contributed for the support of the family.
"A [by Mr. SchwarkJYes.
"Q So I’m going to be asking you a number of questions to try and determine what that amount might be as compared to what her take-home pay was. I assume some of her take-home pay was used on her purely personal expenses.
"A Yes.
"Q What would those be, Mr. Schwark?
"A She used to have her hair done a couple times a week.
"Q What would that cost?
"A I have no idea.
"Q She just paid for it and didn’t tell you or bother you with it.
"A No, she always had her own money.
"Q What else would she use her money for?
"A Oh, gas to get back and forth to work.
"Q Did she pay for her own car repairs and all that?
"A Not all of 'em. It would be hard for me to try to itemize 'em.
"Q She buy her own clothing?
"A Some of 'em.
"Q What other things would she use her money for or her earnings for her own personal use?
"A I can’t think of anything else.
"Q Now, what did she do with her paycheck? She give it to you?
"A No.
"Q Did she account to you at all for it?
"A No.
"Q Do you know what part of it she used to buy clothing for the children or things like that?
"A No.
"Q What I’m trying to get at, did you give her your paycheck?
"A I gave her some money, yes.
"Q In other words, you gave her so much money to run the house and so on.
"A Yes.
"Q And how much would you give her a week?
"A I never give her any set amount. Whatever was required.
"Q She’d tell you what expenses she had and you’d give her the money.
"A Yes.
"Q And do you have any idea what portion of her earnings she used for the family as a whole or for the children versus what portion she used for herself?
"A No, I don’t know. With five kids, don’t take long.
"Q Can you give us an estimate of what portion or percentage of her pay you feel that she used for family rather than for her gas, her own entertainment? Did she smoke?
"A Yes, she did.
"Q Cigarettes and things that would be purely for herself?
"A I’m not saying I used to buy her cigarettes, too.
"Q All right. Can you give me an estimate in your mind what portion of her paycheck went for the family versus her own personal needs?
"A Not honestly. I don’t know.
"Q Would you say half of it.
"MR. BENEFIEL [plaintiffs’ counsel]: Your Honor, it’s already been asked and answered.
"THE COURT: Are you able to answer that question then, Mr. Schwark?
"THE WITNESS: I’ll say half.”
The § 3109 setoff is made only against personal protection benefits paid to dependent survivors pursuant to § 3108 — i.e., as repeatedly emphasized by the Supreme Court in O’Donnell, § 3109 was designed to require setoff only of duplicative government benefits. See id. at 544-547 (Coleman, J.) and 553, fn 3 (Williams, J., dissenting).
Plaintiffs raised the novel argument that § 3109 violates § 207 of the Federal Social Security Act:
"The right of any person to any future payment under this sub-chapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.” 42 USCA 407.
We note first that much of plaintiffs’ argument is erroneously premised on the assumption that Social Security disability benefits will be set off against no-fault benefits. In the instant case, plaintiffs have received survivors’ benefits under the Social Security Act. The complexity of issues and the consequent possibility of protracted administrative proceedings and litigation in Social Security disability cases are necessarily greater than in cases of application for survivors’ benefits. We have been presented with no evidence of cases where Social Security survivors’ benefits were paid at a later date than no-fault survivors’ benefits so that the possibility of attachment of Social Security funds arose.
Nor are we persuaded by plaintiffs’ argument that § 3109 operates as a "legal process” to which Social Security benefits are subjected in violation of the Social Security Act. The Social Security recipient is in no way deprived of his Social Security benefits by operation of the no-fault act. Plaintiffs’ reliance on Philpott v Essex County Welfare Board, 409 US 413; 93 S Ct 590; 34 L Ed 2d 608 (1973), and Manfredi v Maher, 435 F Supp 1106 (D Conn, 1977), is, therefore, misplaced. In Philpott, the Supreme Court held that the respondent, one of New Jersey’s welfare agencies, was barred by § 407 from recovering any amount from the retroactive disability insurance benefits paid to the petitioner under the Social Security Act. As a condition of receiving welfare assistance the petitioner had been required to execute an agreement to reimburse the county welfare board for all assistance payments. Before the Supreme Court, New Jersey argued that the welfare benefits could have been reduced by the amount of Federal Social Security benefits if the latter had been received monthly. Justice Douglas, speaking for a unanimous Court, saw no reason, on that basis, to allow reimbursement from the retroactive benefits paid to the petitioner. Significantly, the Court did not disapprove the automatic setoff of welfare benefits by amounts received from the Federal government under the Social Security Act.
The words "or other legal process” must be interpreted consistently with the named actions at law immediately preceding them in the statute. In re Vary Estate, 401 Mich 340, 352; 258 NW2d 11 (1977), cert den 434 US 1087; 98 S Ct 1283; 55 L Ed 2d 793 (1978). The exemption provision of § 407 was apparently intended to protect Social Security recipients from the claims of creditors, including the state acting in the capacity of creditor. See Philpott, supra. By subtracting from no-fault personal protection insurance benefits to be paid to dependent survivors the amount of duplicative Social Security benefits received by them, a no-fault insurer does not become a creditor of the no-fault beneficiary. Section 3109 does not contemplate a transfer of Social Security benefits or an assignment of one’s future right to such benefits. We perceive no violation of the Social Security Act in § 3109(1).
"(1) A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement.
"(2) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance or use within this state of a motor vehicle with respect to which the security required by subsections (3) and (4) of section 3101 was in effect is abolished except as to:
"(a) Intentionally caused harm to persons or property. Even though a person knows that harm to persons or property is substantially certain to be caused by his act or omission, he does not cause or suffer such harm intentionally if he acts or refrains from acting for the purpose of averting injury to any person, including himself, or for the purpose of averting damage to tangible property.
"(b) Damages for noneconomic loss as provided and limited in subsection (1).
"(c) Damages for allowable expenses, work loss and survivor’s loss as defined in sections 3107 to 3110 in excess of the daily, monthly and 3 year limitations contained in those sections. The party liable for damages is entitled to an exemption reducing his liability by the amount of taxes that would have been payable on account of income the injured person would have received if he had not been injured.” MCL 500.3135; MSA 24.13135.
Section 3116 as amended provides:
“(1) A subtraction from personal protection insurance benefits shall not be made because of the value of a claim in tort based on the same accidental bodily injury.
"(2) A subtraction from or reimbursement for personal protection insurance beneñts paid or payable under this chapter shall be made only if recovery is realized upon a tort claim arising from an accident occurring outside this state, a tort claim brought within this state against the owner or operator of a motor vehicle with respect to which the security required by section 3101(3) and (4) was not in effect, or a tort claim brought within this state based on intentionally caused harm to persons or property, and shall be made only to the extent that the recovery realized by the claimant is for damages for which the claimant has received or would otherwise be entitled to receive personal protection insurance beneñts. A subtraction shall be made only to the extent of the recovery, exclusive of reasonable attorneys’ fees and other reasonable expenses incurred in effecting the recovery. If personal protection insurance beneñts have already been received, the claimant shall repay to the insurers out of the recovery a sum equal to the beneñts received, but not more than the recovery exclusive of reasonable attorneys’ fees and other reasonable expenses incurred in effecting the recovery. The insurer shall have a lien on the recovery to this extent. A recovery by an injured person or his or her estate for loss suffered by the person shall not be subtracted in calculating beneñts due a dependent after the death and a recovery by a dependent for loss suffered by the dependent after the death shall not be subtracted in calculating beneñts due the injured person.
"(3) A personal protection insurer with a right of reimbursement under subsection (1), if suffering loss from inability to collect reimbursement out of a payment received by a claimant upon a tort claim is entitled to indemnity from a person who, with notice of the insurer’s interest, made the payment to the claimant without making the claimant and the insurer joint payees as their interests may appear or without obtaining the insurer’s consent to a different method of payment.
"(4) A subtraction or reimbursement shall not be due the claimant’s insurer from that portion of any recovery to the extent that recovery is realized for noneconomic loss as provided in section 3135(1) and (2)(b) or for allowable expenses, work loss, and survivor’s loss as deñned in sections 3107 to 3110 in excess of the amount recovered by the claimant from his or her insurer.” (Emphasis indicates amendatory language of 1978 PA 461.)
Another example of a theory of liability which may be the basis of a claim for damages following a motor vehicle accident is products liability. As is the case with dramshop liability, liability under this theory would not arise out of the ownership, maintenance or use of a motor vehicle. | [
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] |
M. J. Kelly, J.
Plaintiff, Andrew Vermiglio, appeals a March 13, 1978, determination of the Workmen’s Compensation Appeal Board (WCAB) modifying the decision of the hearing referee that defendant Condor Manufacturing, Inc., plaintiff’s second employer, and its insurer, were liable for payment of continuing disability benefits, and holding that defendants’ liability ceased on the last day of plaintiff’s employment with Tubular Sales, plaintiff’s third employer.
Testimony taken before the hearing referee on September 2, 1975, indicated the following: Plain tiff originally suffered a severe leg injury while employed by Triad Construction Company in 1965. Plaintiff was hospitalized several times before he was able to work again; but, as a result of the accident, he has suffered from recurrent osteomyelitis (infection of the bone).
In September of 1969, plaintiff began work with defendant Condor Manufacturing, Inc. His job as a "chucker”, according to plaintiff, required him to stand for 10 hours a day, 58 hours a week, feeding a machine. During the second year of his employment with Condor, plaintiff began to experience severe discomfort because his left leg would drain and swell. In November of 1970, he was hospitalized and underwent further surgery. As a result of plaintiff’s original injury and various hospitalizations, his left leg is two inches shorter than his right leg and he is unable to bend his left knee. After the 1970 hospitalization, plaintiff returned to Condor; however, the pain persisted and, according to plaintiff, he was laid off in 1972.
After having his brother take his preemployment physical, plaintiff began working for Tubular Sales as a warehouseman in August, 1972. This employment required that plaintiff load and unload trucks as well as cut steel tubing on a saw. Plaintiff was again hospitalized in August, 1973. Upon being discharged from the hospital, plaintiff was laid off by Tubular Sales, apparently because the company became aware of plaintiff’s leg condition. Plaintiff has not worked since.
On November 5, 1973, plaintiff filed a complaint with the Workmen’s Compensation Bureau alleging total disability and requesting compensation from Triad Container Corporation and Tubular Sales Company and their respective insurance carriers. On April 29, 1974, plaintiff amended his complaint to include defendants, Condor Manufacturing, Inc. and its insurance carrier, National Ben Franklin Insurance Company. Subsequently, with the approval of the referee, plaintiff and two of the defendants, Triad Container and Tubular Sales, and their insurance carriers, entered into an agreement to redeem liability. Plaintiff agreed to settle all his claims against these defendants in exchange for $35,000; however, plaintiff preserved his claim against Condor Manufacturing and its insurance carrier.
The medical testimony introduced at the September 2, 1975, hearing before the referee was contradictory. Although all five doctors agreed that plaintiff’s osteomyelitis was caused by his original injury in 1965, there was disagreement as to whether employment involving excessive standing, bending and lifting could exacerbate the condition. The hearing referee found that plaintiff was partially disabled since May 3, 1972 (the last day worked at defendant Condor), and that defendant should pay continuing compensation to plaintiff at the rate of two-thirds of the difference between his average weekly wage and his weekly earnings thereafter, not to exceed $101 per week.
On appeal to the WCAB, the defendants contended that plaintiff’s original injury had not been aggravated by his employment at Condor. Alternatively, it was asserted that any compensation for subsequent aggravation should be assessed solely against Tubular Sales, since plaintiff was. last subjected to the conditions resulting in his disability when he was employed there. MCL 418.435; MSA 17.237(435).
The appeal board found that stresses and strains during plaintiff’s employment at Condor aggravated and reactivated his chronic bone infection. However, the board altered the referee’s scheduled compensation benefits; it awarded benefits to plaintiff in the amount of $86 per week for any weekly wages lost from the time of his 1970 hospitalization until May 3, 1972, and $95 per week thereafter until increased to $101 per week on September 6, 1972 (when his son Thomas was born), and for two-thirds of the difference in any wage loss while employed by Tubular Sales not to exceed $101 weekly. In addition, the board also modified the referee’s award of continuing benefits, holding that benefits paid by defendant were to cease as of the day plaintiff ended his employment at Tubular Sales, August 13, 1973. The board further found that plaintiff’s subsequent employment at Tubular Sales had aggravated his condition and produced a last-day-of-work disability. According to the board, had it not been for a redemption of Tubular Sales’ liability, it would now be wholly responsible as the last employer.
It is this modification of the award which frames the issue on appeal: after finding that plaintiff had aggravated his disability while employed by defendant, did the appeal board err in holding defendant to be a "prior” employer, liable only until a subsequent aggravating exposure occurred, rather than a "last” employer and liable for the payment of continuing benefits?
In essence, plaintiff seeks to have Condor, his second employer, treated as his last employer under MCL 418.435; MSA 17.237(435), and therefore, liable for the payment of continuing disability benefits. The hearing referee adopted this position; however, the appeal board did not and ordered compensation to cease at the moment the subsequent employer’s liability accrued, that is, August 13, 1973. In attacking the appeal board’s modification of the compensation award, plaintiff asserts that the board’s opinion is internally inconsistent because it found, in effect, two "total” disabilities: the first occurring in November of 1970 while plaintiff was employed by Condor, the second occurring on August 13, 1973, when plaintiff’s employment with Tubular Sales ended. Proceeding from that premise, plaintiff argues that because the board never found that plaintiff had recovered from his first "total” disability, his subsequent employment and any subsequent aggravation is irrelevant, and thus, the board erred in ordering the cessation of disability benefits as of August 13, 1973.
Defendant counters with a two-step defense. Focusing on the cornerstone of plaintiff’s position, defendant argues that the board’s opinion did not find two "total” disabilities; rather, the compensation awarded from Condor represents only a finding of a "temporary” total disability which did not become "permanent” until plaintiff left Tubular Sales on August 13, 1973. Moreover, defendant asserts that, because liability for an aggravated injury rests with the employer whose work last subjected plaintiff to the disabling conditions, the board’s finding that Tubular Sales was plaintiff’s last employer precludes an award of continuing benefits from Condor.
Initially, we reiterate the applicable standard of review. Because findings of fact of the WCAB are conclusive absent fraud, we are limited to determining if there was any evidence to support the finding here in issue. MCL 418.861; MSA 17.237(861). The board’s finding of fact will be upheld where "supported by competent, material and substantial evidence in the record * * *”. Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 250; 262 NW2d 629 (1978). We find the board’s opinion to be supported by the evidence and affirm the modified award.
In our opinion, the law is clear as to who, among several successive employers, is responsible for payment of compensation benefits to an injured employee. When a disability results from the aggravation of a condition over a period of time, then liability for compensation rests with the employer where plaintiff last worked subject to the conditions resulting in a disability. MCL 418.435; MSA 17.237(435), MCL 418.301(1); MSA 17.237(301)(1), Smith v Lawrence Baking Co, 370 Mich 169; 121 NW2d 684 (1963), Gilbert v Reynolds Metals Co, 59 Mich App 62; 228 NW2d 542 (1975), Aseltine v Leto Construction Co, 43 Mich App 559; 204 NW2d 262 (1972). As stated in Johnson v Valley Grey Iron Foundry, 58 Mich App 574, 581-582; 228 NW2d 469 (1975):
"The entire structure of the act seems to contemplate the imposition of liability upon a single employer * * *
"The most reasonable interpretation of the act is that the Legislature intended to give the plaintiff a single direct action against only his last employer * * *”.
Here, the board found Tubular Sales to be the last employer subjecting plaintiff to working conditions which could aggravate his leg injury, and thus, the sole employer liable for the payment of continuing disability benefits. Although the evidence concerning employment conditions at Tubular Sales was sparse compared to that concerning conditions at Condor, we find that there was sufficient evidence in the record to support the board’s conclusion. At the September 2, 1975, hearing, plaintiff acknowledged that his subsequent employ ment entailed loading and unloading trucks and was a "standing up” job. In addition, two of the doctors who believed that employment could aggravate osteomyelitis stated that they could not distinguish between the aggravation stemming from each employment. Finally, plaintiff’s August, 1973, hospitalization suggests the likelihood of further aggravation while at Tubular Sales. We find this evidence to be sufficient to support the board’s finding that Tubular Sales was plaintiffs last employer aggravating his leg condition, and thus, exclusively liable for the payment of continuing benefits.
In any event, we are unprepared to accept the predicate upon which plaintiff’s argument proceeds, for we do not find the board’s determination to be internally inconsistent and tantamount to a finding of two "total” disabilities. The hearing referee specifically found that plaintiff was partially disabled after leaving the defendant’s employ. We find that the appeal board, in its subsequent modification of the award, implicitly adopted this finding because it ¿warded compensation benefits for partial disability equal to two-thirds of the difference between the employee’s average weekly wages and the average weekly wages he was able to earn after the injury. MCL 418.361; MSA 17.237(361). This Court may note an implied finding of fact not expressly stated if that fact was necessarily determined in order to reach a certain conclusion. Clark v Apex Foundry, Inc, 7 Mich App 684, 688; 153 NW2d 182 (1967). Because plaintiff was found to be only partially disabled from his employment at Condor, the board’s finding that the subsequent aggravation at Tubular Sales culminated in a last-day-of-work disability is not fatally inconsistent.
We therefore affirm the board’s determination that Tubular Sales was plaintiffs last employer at the time when plaintiff was permanently disabled, and as such, would be solely responsible for the payment of continuing compensation benefits to plaintiff had its liability not been redeemed.
Affirmed.
Even on such a finding below, if that were the finding, we would not necessarily find an error of law. Workers have been retained as employees earning wages even though physically disabled to such an extent that medical experts could find total disability. One is reminded of the slogan "hire the handicapped” and of the opportunities for employment of the blind and physically disabled. | [
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Beasley, J.
Plaintiff alleges that on December 17, 1971, defendant, Ronald Dunbar, delivered his promissory note to plaintiff for $12,400 with interest at 7% payable 180 days after date. Plaintiff also alleges that, as security for the loan evidenced by the promissory note, defendant, Edward J. Holland, Jr., guaranteed payment.
Plaintiff says defendant indicated the purpose of the loan was for oil investment. The note was subsequently renewed until March 12, 1973. When the note was not paid, plaintiff started suit against both defendants Dunbar and Holland on August 16, 1973.
Eventually, in January, 1978, plaintiff made an oral motion for summary judgment under GCR 1963, 117.2(2) for failure to state a defense and under GCR 1963, 117.2(3) on the basis that there was not any issue of material fact.
In their answers to the complaint and amended complaint of plaintiff, defendants assert various affirmative defenses. The trial court conducted a separate pretrial hearing, after which plaintiff’s motion for summary judgment was granted. Defendants appeal as of right.
We . reverse the order granting summary judgment, set aside the judgment and remand for trial on the merits.
As indicated, plaintiffs motion for summary judgment was in the alternative, either under GCR 1963, 117.2(2) or under GCR 1963, 117.2(3).
GCR 1963, 117.2(2) provides for summary judgment where the opposing party has failed to state a valid defense to the claim asserted against him. Such a motion tests the legal sufficiency of the defense as pleaded.
The trial court seemed to hold that the defenses were insufficient because none could be established without using parol evidence. In Bob v Holmes, we said:
"* * * the proper test for such a motion would be whether defendants’ defenses are so clearly untenable as a matter of law that no factual development could possibly deny plaintiffs’ right to recovery.”
We decline to hold defendants’ claimed defenses so clearly untenable as to be impossible of factual development. For example, if defendants can prove securities law violations, even though the violations were of Federal laws involving plaintiff, defendants may have a good defense. Evidence that a written instrument is part of an illegal contract is not excluded by the parol evidence rule.
We hesitate to rule on the various other defenses asserted by defendants until we have a trial record before us with the trial judge’s rulings and findings.
Plaintiff’s other alternative claim under GCR 1963, 117.2(3) would have to be based upon an assertion that there was no genuine material issue of fact. We do not find this to be the case; obviously, defendants raise various issues of fact, the weight and materiality of which can only be measured in a trial context.
As indicated, under these circumstances, we find error in disposing of this case by summary judgment without trial.
Reversed and remanded for trial on the merits.
Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974).
78 Mich App 205, 211; 259 NW2d 427 (1977).
See, Aetna State Bank v Altheimer, 430 F2d 750, 754 (CA 7, 1970).
Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195, 204; 220 NW2d 664 (1974). | [
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Per Curiam.
Plaintiff appeals the circuit court’s August 30, 1978, order granting accelerated judgment in favor of defendants on the grounds that a release executed by plaintiff barred her cause of action. GCR 1963, 116.1(5). Defendant Poling cross-appeals the dismissal of his third-party complaint against defendant Keefer.
On April 13, 1974, defendants Kerr and Poling were operating their motorcycles on public roads in Ypsilanti. They were allegedly racing one another. Plaintiff was a passenger on the Poling motorcycle, and one Steven Elkins, not a party herein, was a passenger on the Kerr motorcycle. At an intersection the motorcycles collided with a car operated by Keefer. All four persons on the motorcycles were injured, with plaintiff being the most seriously injured.
The four motorcyclists were then represented by the same counsel. On May 22, 1974, defendant Kerr initiated a negligence suit against Keefer, and Keefer filed a third-party complaint joining Poling as a third-party defendant. Plaintiff never started a suit against Keefer. On July 7, 1975, subsequent to negotiations, Keefer’s insurer offered to settle with all parties at the policy limit of $50,000. The $50,000 was divided as follows: Grzebik-$33,000, Elkins-$4,000, Poling-$2,000, and Kerr-$11,000. In its offer, the insurer made it clear that the offer was contingent on "full releases of all claims” from all four parties, and dismissal of the Kerr suit. These conditions were met. The releases signed by each party were entitled "RELEASE IN FULL” and were identical except for names and amounts. Plaintiffs release stated that,
"I, Barbara Rose (Turner) [plaintiff], for the sole consideration of $33,000 (Thirty Three Thousand) Dollars, to me in hand paid by Nelva Keefer have released and discharged, and by these presents do for myself, my heirs, executors, administrators and assigns, release and forever discharge said Nelva Keefer and all other persons, firms or corporations from all claims, demands, damages, actions, or causes of action, on account of damage to property, bodily injuries or death, resulting, or to result, from an accident to me which occurred on or about the 13th day of April, 1974, by reason of an auto/motorcycle accident and of and for all claims or demands whatsoever in law or in equity, which I, my heirs, executors, administrators, or assigns can, shall or may have by reason of any matter, cause or thing whatsoever prior to the date hereof.
"It is understood and agreed that this is a full and final release of all claims of every nature and kind whatsoever, and releases claims that are known or unknown, suspected and unsuspected.”
Plaintiff signed this release on July 21, 1975.
The instant case was commenced on January 14, 1977, by plaintiff. She sued Poling and Kerr on their alleged negligence in operating their motorcycles which resulted in the accident which injured her. Poling added Keefer as a third-party defendant on the basis of his potential contribution claim against Keefer if plaintiff prevailed in her suit. Defendants Poling and Kerr interposed plaintiff’s release to Keefer as a defense to the suit. The lower court agreed that the release precluded the instant suit and granted accelerated judgment for defendants. Poling’s suit against Keefer was dismissed also.
The intent of the parties to a release, expressed in the terms of the release, governs the scope of the release. Detroit Automobile Inter-Insurance Exchange v Joseph, 67 Mich App 393; 241 NW2d 221 (1976), Auto-Owners Ins Co v Higby, 57 Mich App 604; 226 NW2d 580 (1975). A release covers only the claims intended by the parties to be released. Auto-Owners Ins Co v Higby, supra, at 606. A release must be "fairly and knowingly” made. Denton v Utley, 350 Mich 332, 342; 86 NW2d 537 (1957), Farwell v Neal, 40 Mich App 351, 355; 198 NW2d 801 (1972). Hence, equity will intervene where there is concealment, fraud, duress, or mutual mistake. Denton v Utley, supra at 342, Detroit Automobile Inter-Insurance Exchange v Joseph, supra, at 396, and our review is de novo. Farwell v Neal, supra, at 355.
On appeal and in the court below, plaintiff contends that all parties labored under the mistaken understanding that plaintiff had no negligence cause of action because of the guest passenger statute, MCL 257.401; MSA 9.2101, and consequently her release was not intended to be a release of such a claim. Plaintiff makes this argument because when she executed her release on July 21, 1975 (and when all other parties executed their releases), the guest passenger statute precluded guest passenger suits based on ordinary negligence, but this statute was declared unconstitutional on September 8, 1975, in Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975), and the holding in Manistee Bank was given retroactive effect. Dunham v Lowinger, 395 Mich 793; 235 NW2d 153 (1975), Old Reliable Fire Ins Co v Schaub, 85 Mich App 294; 271 NW2d 206 (1978). Defendants, on the other hand, argue that the release is broad enough to cover this situation and it was precisely this type of situation that the release was intended to cover.
The lower court accepted defendants’ position, and so do we. The broad language of the release on its face certainly encompasses a negligence claim such as plaintiff’s. Indeed, plaintiff does not suggest otherwise. Plaintiffs position, based on the theory of mutual mistake, is that nobody realized that plaintiff was not barred by the guest passenger statute from prosecuting a negligence claim against the operators of the motorcycles. We cannot accept plaintiffs reasoning, since the release was expressly designed to release any and all claims. The fact that the existence of a certain claim was not recognized by the parties would be the very possibility the release was intended to cover. The fact that in reality the parties could not know of this possible claim does not affect our conclusion since, as a matter of law, the claim did exist and the release was therefore intended to cover it.
This is not the usual type of case where a release is attacked on the basis of mutual mistake as to the extent of injury. Plaintiff is not claiming additional, previously unknown, injuries. Nor did plaintiff receive an insubstantial sum in releasing her claims for $33,000. Nothing has happened to plaintiff to make the consideration any less fair now than it was when plaintiff agreed to it. This leads us to an important distinction raised in Smith v City of Flint School District, 80 Mich App 630; 264 NW2d 368 (1978). In that case plaintiff executed a release with defendant’s employee, unaware that he was an employee, and under well-settled law the release was held to release the defendant-employer and could not be avoided on the grounds of mistake. The distinction noted by the Smith Court was that in the usual "unforeseen injury” cases it is virtually impossible to discover the injury, whereas in the Smith case an "unknown defendant” was involved which could be discovered, but the plaintiff had simply failed to make the discovery. The instant case falls much closer to the unknown defendant situation than to one of unforeseen injury.
While there is some merit to plaintiff’s position that its negligence action against defendants was undiscoverable, under the circumstances of this case it is better to consider the action as one within plaintiff’s realm of knowledge. It was common knowledge in the state that the guest passenger statute was under attack. The Manistee Bank case had been argued over a year prior to signing of plaintiff’s release, and a decision was anticipated. If the parties had not intended for the release to cover potential guest passenger claims, it would have been a simple matter to provide an exception in the release. Moreover, from the record in this case it is apparent that a possible guest passenger claim was a consideration, since Keefer insisted on full release from all parties. Keefer, settling at the maximum limit of her policy, had just cause for concern about any suit in which she might be added for purposes of contribution. The possibility of a negligence claim against Kerr and/ or Poling was apparent to all—as evidenced by the proceedings in the Kerr-Keefer suit. To the extent it is argued that plaintiff (as opposed to other parties) was unaware of the state of guest passenger law, it cuts against any contention of mutual mistake.
At first blush, Chuby v General Motors Corp, 69 Mich App 563; 245 NW2d 134 (1976), lends support to plaintiff. In that case plaintiff, as administratrix of her minor son’s estate, signed general releases in January, 1972, releasing General Motors and other defendants from all liability in connection with the death of her son when the gas tank in a Corvair automobile in which he was riding exploded. On the date the release was signed, Michigan apparently did not recognize liability for loss of society and companionship in a wrongful death action. Subsequent to the signing of the releases, the Supreme Court, in Smith v Detroit, 388 Mich 637; 202 NW2d 300 (1972), held there could be such recovery as to any cause of action accruing before March 30, 1972. In Chuby, the trial court held that even a cause of action which was mistakenly believed not to exist was released because of the all-inclusive language contained in the releases. On appeal, this Court reversed, saying:
"It appears clear to this Court that equity must strike down the instant release, if it was not fairly and know ingly made. It appears to this Court that the parties had no way of knowing, at the time the releases were executed, that the estate of the decedent had a cause of action for loss of society and companionship. The releases were also apparently executed under the mistaken assumption that decedent had experienced no pain and suffering.” (Emphasis added.) 69 Mich App at 567.
The underscored language quoted above distinguishes Chuby from the case before us. In the instant case there was no mistake as to the extent of the injuries. Further, in Chuby, the petition in probate court for settlement of the claim stated that decedent’s death was instantaneous on impact and that there was no pain and suffering when, apparently, the deceased burned to death and suffered some pain. The probate court’s approval of the release was made without the court knowing the full facts or even knowing that General Motors was a party defendant. We seriously question whether the Chuby panel would have reversed. the trial court had these additional and distinguishing factors not been present. In our opinion Chuby falls within the type of case mentioned in footnote 2, supra, where the release is attacked on grounds of mistake as to type of injury.
At the time the releases were signed plaintiff’s guest passenger status on the Poling motorcycle precluded suit in ordinary negligence against Poling only. She was not precluded from such suit against Kerr or Keefer. Thus, the subsequent decision in Manistee Bank does not give plaintiff any wider right than she enjoyed when she signed the releases. At the time of signing the releases, plain tiff had a cause of action for gross negligence against Poling. Obviously, the releases given Poling were intended to cover this situation. Finally, it must have been obvious to Keefer’s and Kerr’s insurers that if the law were to be changed in the Manistee Bank case, which had been pending for one year in the Supreme Court, contribution could be asked from Keefer and Kerr.
Accordingly, we cannot accept plaintiff’s subsidiary argument that her release was not intended to release claims against Kerr and/or Poling. As mentioned, the release was very broad, containing the language "and all other persons”, and avoidance of suits against Kerr and Poling in particular was one of the considerations behind the release. At the very least, Kerr and Poling were intended to be covered by the "all other persons” language.
Affirmed, costs to defendants.
We note that the parties consistently consider Keefer to be a joint tortfeasor with Kerr and Poling. The relationship is that of concurrent tortfeasors. Laster v Gottschalk, 75 Mich App 290; 255 NW2d 210 (1977), Witucke v Presque Ilse Bank, 68 Mich App 599; 243 NW2d 907 (1976). See also Moyses v Spartan Asphalt Paving Co, 383 Mich 314; 174 NW2d 797 (1970).
For example, Van Avery v Seiter, 383 Mich 486; 175 NW2d 744 (1970), aff’g 13 Mich App 88; 163 NW2d 643 (1968), Ryan v Alexy, 373 Mich 50; 127 NW2d 845 (1964), Hall v Strom Construction Co, 368 Mich 253; 118 NW2d 281 (1962), Denton v Utley, 350 Mich 332; 86 NW2d 537 (1957), Anno: Avoidance of release of personal injury claims on ground of fraud or mistake as to extent or nature of injuries, 71 ALR2d 82.
This brings up an observation which casts some suspicion on plaintiffs position. Plaintiff argues the "unknown” guest passenger claim with respect to both Kerr and Poling. However, plaintiff was the guest passenger only of Poling, and therefore the argument with respect to Kerr is inapposite. Whatever negligence claim now exists against Kerr existed at the time of the release. Yet plaintiff never pursued it. Nor did plaintiff ever pursue any possible claim of gross negligence which always existed against Poling.
See Smith v Flint School Dist, 80 Mich App 630, 633; 264 NW2d 368 (1978).
The petition for authority to settle did not name General Motors, and hence, the probate judge who signed the petition without a hearing was unaware he was releasing General Motors. | [
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D. C. Riley, P.J.
On January 19, 1977, plaintiffs William and Williatte Staffney filed a complaint alleging that William had been injured on January 22, 1976, due to an explosion at the Farm Bureau Services (hereinafter Farm Bureau) grain elevator exchange located in Zilwaukee, Michigan. The explosion resulted when sparks from cutting and welding operations ignited some of the accumulated grain dust in the plant.
The complaint alleged that defendant Fireman’s Fund was the worker’s compensation carrier for Farm Bureau as was defendant New Hampshire and that defendant Michigan Millers was responsible for the fire insurance on the grain elevator and defendant Mill Mutuals was the reinsurer of the fire insurance contract between Michigan Millers and Farm Bureau. Plaintiffs further alleged that all four defendants either had a duty to inspect the grain elevator for potential fire or explosion hazards and/or assumed that duty by voluntarily undertaking said safety inspections and that defendants either knew or should have known of the dangerous conditions in the elevator which led to the explosion, but failed to adequately warn both Farm Bureau and its employees of the hazards.
Fireman’s Fund moved for summary judgment pursuant to GCR 1963, 117.2(1), on the grounds that plaintiffs had failed to state a cause of action because the suit was barred by recent amendments to the Worker’s Disability Compensation Act which grant immunity to compensation carriers for liability arising out of the execution of safety inspections. Michigan Millers and Mill Mutuals similarly moved for summary judgment under the same court rule on the basis that plaintiffs had not stated a legal cause of action against them. Fireman’s Fund’s motion was granted, and pursuant to several amendments by plaintiffs to their complaint, the court also granted summary judgment in favor of Michigan Millers and Mill Mutuals.
Plaintiffs appeal by right, and first assail the lower court’s allowance of summary judgment in favor of defendant fire insurers. We review a grant of summary judgment due to the failure to state a claim upon which relief can be granted, GCR 1963, 117.2(1), against the criteria reiterated in Sullivan v The Thomas Organization, PC, 88 Mich App 77, 82; 276 NW2d 522 (1979):
" 'The motion is to be tested by the pleadings alone. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), lv den, 391 Mich 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Borman’s Inc v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical & Manufacturing Co, * * * [42 Mich App 426; 202 NW2d 577 (1972)].’ Partrich v Muscat, * * *[84 Mich App 724,] at 729-730; 270 NW2d [506] at 509. [(1978)].”
Plaintiffs’ cause of action is premised upon 2 Restatement Torts, 2d, § 324A, p 142, which states that:
"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
"(a) his failure to exercise reasonable care increases the risk of harm, or
"(b) he has undertaken to perform a duty owed by the other to the third person, or
"(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
Plaintiffs’ suit emcompasses all three subparagraphs of the rule. As previously stated, their complaint, as amended, maintains that defendants had a duty and/or voluntarily assumed a duty, when they undertook to inspect the grain elevator for fire and explosion hazards, to do so with reasonable care. The inspections by Michigan Millers were set forth in great detail, as was the fact that Mill Mutuals received copies of all the inspection reports and further made inspections of its own.
The complaint alleges that before the date of the explosion, defendants knew, or in the exercise of reasonable care should have known, of the extremely dusty conditions within the grain elevator, knew that the dust collection and/or removal system was inadequate, and that this presented an extremely hazardous and dangerous potential for explosion and fire and that, pursuant thereto, defendants were under a duty to warn Farm Bureau and its employees of the dangerous conditions, and recommend safety procedures so that adequate steps could be taken to eliminate those risks. The complaint further alleges that having voluntarily undertaken to give warnings to the employees by means of placards, signs, reports, posters and verbal commands, the defendants, in fact, failed to adequately and fully warn the employees of the extreme hazards existing at the plant.
Paragraph 26 of plaintiffs’ amended complaint closely parallels the prerequisites to liability as set forth in the Restatement, supra. It alleges that by their voluntary undertaking, defendants increased the risk of injury by instituting and/or requiring a program of specific written permits for cutting and welding within the confines of the grain elevator, when they knew, or should have known, that cutting and welding procedures should have been prohibited under any circumstances, and where the maintenance procedures could have been accomplished by alternative means—thereby, as a result, markedly increasing the risk of ignition of combustible organic dust; that by continuing to stress other aspects of good housekeeping when they knew of the dangers of cutting and welding operations and the lack of ventilation and/or dust collection systems, defendants aggravated the existing danger. The complaint alleges that defendants assisted and assumed Farm Bureau’s duty to provide a safe place of work by instituting several safety programs including signs, slogans and safety demonstrations. Finally, the complaint states that the ensuing injuries resulted from the reliance placed by plaintiffs and Farm Bureau Services on defendants’ undertakings, especially since Farm Bureau had no safety department or staff and relied on the aforesaid safety inspections.
Taking the factual allegations, along with any reasonable inferences, as true, Gartside v YMCA, 87 Mich App 335, 337-338; 274 NW2d 58 (1978), we are unable to conclude that plaintiffs’ cause of action is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. We hold that the complaint properly alleges a legal cause of action under the above-quoted provisions of the Restatement.
The trial court’s decision that defendants owed no duty as a matter of law was rendered before this Court released its opinion in Sabraw v Michigan Millers Mutual Ins Co, 87 Mich App 568; 274 NW2d 838 (1978), which like the case at bar, was predicated on 2 Restatement Torts, 2d, § 324A. Sabraw arose from a 1969 explosion at the Zilwaukee feed mill. Verdicts returned in favor of plaintiffs and against Michigan Millers were set aside when the trial court entered a judgment notwithstanding the verdict. In overturning the lower court decision that insufficient evidence was presented from which to raise a question of fact for jury determination, this Court held that fire insurers were not immune from liability under the Restatement for alleged negligence in the performance of safety inspections.
Defendants, in an attempt to escape liability, proffer a bifurcated analytical framework. First, they maintain that, as fire insurers, their liability is circumscribed by contract so as to include protection against only building and property damage —not personal injury, and that the inspection of the grain elevator was limited solely to the protection of their investment. Defendants’ contention that they possessed no legal obligation or duty to Farm Bureau employees, whose benefit was not within the scope and purpose of the undertaking, or within the orbit of risk, was, we believe, properly rebutted by the Sabraw Court where it was stated:
"The instant defendant thus is correct in asserting that the scope of its inspection was limited, but it focuses on the wrong parameter. Liability is not circumscribed by what was injured (i.e., property or persons) but by how it was injured (whether the damage was caused by a hazard within the scope and purpose of the inspection).” (Emphasis in original.) 87 Mich App at 573, fn 3.
Here the damage was arguably caused by a hazard "within the scope and purpose of the inspection”. As such, defendants’ contention in this regard is without merit.
Defendants further argue, however, that they were under no duty to warn of any hazardous conditions they may have uncovered due to evidence indicating that Farm Bureau was aware of the dangerous conditions. The legitimacy or veracity of these allegations were more properly subjects of trial defense. As previously stated, under summary judgment pursuant to GCR 1963, 117.2(1), we consider only whether, taking their factual averments as true, plaintiffs have stated a cognizable cause of action under the law. Having so concluded, defendants’ advocation, in the procedural boundaries of the present case, is irrelevant.
With regard to Fireman’s Fund and New Hampshire, defendants’ worker’s compensation carriers, plaintiffs offer a tripartite constitutional attack against certain of the 1972 amendments to the Worker’s Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq.
As part of the act’s 1972 modifications, the definition of "employer” was changed to read as follows:
"The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. As used in this section and section 827 'employee’ includes the person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and 'employer’ includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance or incident to a self-insured employer’s liability servicing contract.” MCL 418.131; MSA 17.237(131).
In addition, a new section to the statute was added providing that:
"The furnishing of, or failure to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance, or pursuant to a contract providing for safety inspections or safety advisory services between the employer and a self-insurance service organization or a union shall not subject the insurer, self-insured service organization or the accident fund, or their agents or employees, or the union, its members or the members of its safety committee, to third party liability for damages for injury, death or loss resulting therefrom.” MCL 418.827(8); MSA 17.237(827X8).
Plaintiffs allege that the prohibition of an action against worker’s compensation carriers, while allowing them against other tortfeasors, violates equal protection. Such an argument has been rebuffed by this Court on two occasions. Shwary v Cranetrol Corp, 88 Mich App 264, 267-269; 276 NW2d 882 (1979), Garrett v International Ins Co, 68 Mich App 418, 420-421; 242 NW2d 798 (1976). Contrary to plaintiffs’ contention that the determinative equal protection reviewing standard is the "substantial-relation-to-the-object” test set forth in Manistee Bank & Trust Co v McGowan, 394 Mich 655, 669-670; 232 NW2d 636 (1975), these decisions held that the legislative enactments at issue were to be examined by the traditional "rational basis” approach, under which the classification is upheld where any state of facts can reasonably sustain it. Shwary, supra at 268, Garrett, supra, at 420-421. Both Courts agreed that, because a rational basis existed for the legislation—the encouragement of safety inspections resulting in a safer working environment, and consequently, the reduction of industrial accidents—the 1972 immunity provi sions did not deny equal protection of the laws. Shwary, supra, at 268-269, Garrett, supra, at 421.
Plaintiffs next allege that the 1972 amendments contravene Const 1963, art 4, § 24 which provides in pertinent part that:
"No law shall embrace more than one object, which shall be expressed in its title.”
Specifically, they argue that the title to the amendments does not state that compensation carriers are granted immunity for inspections and that the law itself is at odds with the overall objective of the Worker’s Disability Compensation Act. Plaintiffs point out that the overall objective is protection from injuries in the course of employment, but that the object of the amendments is immunity for certain tortfeasors.
The title to 1972 PA 285 states as follows:
"An act to amend sections 131 and 827 of Act No. 317 of the Public Acts of 1969, entitled 'an act to revise and consolidate the laws relating to workmen’s compensation; and to repeal certain acts and parts of acts,’ being sections 418.131 and 418.827 of the Compiled Laws of 1948.”
The primary objective of the act, as plaintiffs recognize, is to protect workers in the course of their employment. Garrett, supra, at 421-422. Plaintiffs’ argument that the purpose of the amendment is to provide immunity to tortfeasors is incorrect, as this Court has recognized that the purposes of those amendments are to encourage safety inspections. Shwary, supra, at 269, Garrett, supra, at 421. Accordingly, the amendments have the same purpose as the parent act. Our Supreme Court has held that the title to an amendatory act is sufficient if the amendment would have been allowable under the title of the original law and if the amendment refers by section to the act amended, and gives its title. Fort-Street Union Depot Co v Comm’r of Railroads, 118 Mich 340, 345; 76 NW 631 (1898). See also, Benson v State Hospital Comm, 316 Mich 66, 76-77; 25 NW2d 112 (1946), Westgate v Twp of Adrian, 161 Mich 333, 335; 126 NW 422 (1910). Since the purpose of the 1972 amendments, promoting the safety of workers, coincides with the overall purpose of the Worker’s Disability Compensation Act, and as the amendments’ title both restates the title of the parent act and states which sections are being amended, we find no violation of the object-title clause of the Michigan Constitution. See Garrett, supra, at 421-422.
Plaintiffs’ final constitutional challenge is that the definition of "employer” in MCL 418.131; MSA 17.237(131) to include worker’s compensation insurance carriers is unduly broad, and thus should have been included in the amendatory title as well as the body of the statute. We need not consider this question, inasmuch as MCL 418.827(8); MSA 17.237(827X8) grants immunity to compensation carriers in the performance of safety inspections absent any reference to that term. See People v Vanderford, 77 Mich App 370, 373; 258 NW2d 502 (1977), Stanek v Secretary of State, 33 Mich App 527, 530; 190 NW2d 288 (1971).
Lastly, we reject the defendants Michigan Millers’ and Mill Mutuals’ claim that the 1972 amendments were intended to provide immunity to property insurers who carry on safety inspections, as well as worker’s compensation carriers. By the terms of the statute they are excluded from the immunity umbrella. Had the Legislature desired to grant property insurers immunity, it would have been a simple matter to do so.
Reversed and remanded in part; affirmed in part.
Costs of appeal to plaintiffs against defendants Michigan Millers and Mill Mutuals. Costs of appeal to defendants Fireman’s Fund and New Hampshire. See GCR 1963, 822.
The other named plaintiffs have filed separate but similar causes of action, and all cases were subsequently consolidated for purposes of this appeal.
New Hampshire, Fireman’s Funds’ successor, was also granted summary judgment. | [
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T. M. Burns, J.
Plaintiff Sherriff-Goslin Company brought this suit to recover for amounts lost when checks made out to it were embezzled and paid over a forged endorsement. The trial court entered a summary judgment, under G.CR 117.2(3), against the defendant Peoples State Bank and it appeals. We affirm.
From April 1, 1973, until sometime in July of 1974, defendant David Cawood was the branch manager of plaintiff’s business in Ann Arbor. While serving in this capacity Cawood received checks from plaintiff’s customers drawn on various banks. Cawood had no authority to cash these checks or deal with them in any way other than to pass them on to the home office. However, the checks were diverted from plaintiff and the sum deposited in an account controlled by Cawood when he used a stamp to endorse the checks in blank and without restriction on further negotiation.
Cawood had an account with Peoples State Bank in St. Joseph, Michigan, in the name of Society Products. Cawood was the only person authorized to draw money from the Society Products account. No one at the bank knew of Cawood’s position with plaintiff or ever inquired about these checks on which plaintiff was the payee. During the course of Cawood’s scheme, Peoples State Bank credited his account with and collected over $100,-000 which properly belonged to plaintiff. When the embezzlement was discovered no money was left in Cawood’s account at Peoples State Bank.
Plaintiff sued Cawood, their own business insurer and Peoples State Bank to recover the sums lost. The theory advanced against the bank was that by cashing the checks on which Sherriff-Goslin was payee over the stamped endorsement in blank, which was in fact a forgery, it had converted Sherriff-Goslin’s money. UCC 3-419, MCL 440.3419; MSA 19.3419.
Whether a payee may bring a direct action against a collecting bank in conversion for funds paid out over a forged endorsement under the UCC has not reached this Court before this case. Before adoption of the UCC it was almost universally accepted that a payee, subject to certain defenses, could maintain a direct action on one theory or another against a collecting bank or other entity which cashed a check bearing a forged or unauthorized endorsement of the payee and procured payment from the drawee. Anno: Right of check owner to recover against one cashing it on forged or unauthorized indorsement and procuring payment by drawee, 100 ALR2d 670, § 2, p 672. Michigan allowed such suits on a conversion theory. See, e.g., Kaufman v State Savings Bank, 151 Mich 65; 114 NW 863; 123 Am S Rep 259; 18 LRA NS 630 (1908).
The bank contends that it is not liable in a direct suit by the payee and points to UCC 3-419 for support. In relevant part, that section provides:
"(1) An instrument is converted when
"(c) it is paid on a forged indorsement.
"(3) Subject to the provisions of this Act concerning restrictive indorsements a representative, including a depositary or collecting bank, who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his hands.”
The bank’s contention has not been successful in other jurisdictions. Courts which have considered the question have not construed § 3-419(3) in a way which protects a collecting bank in a normal check cashing transaction such as that presented by the facts of this case.
In one line of cases, represented by Ervin v Dauphin Deposit Trust Co, 38 Pa D&C 2d 473; 3 UCC Rep Serv 311 (1965), and Tubin v Rabin, 389 F Supp 787 (ND Tex, 1974), aff'd 533 F2d 255 (CA 5, 1976), the collecting bank has been found not to be a "representative” within the meaning of this section. This interpretation is based on the official comments to the code and their reference to prior law involving security brokers dealing with bearer bonds.
Other courts have analyzed the relationship between the forger and the collecting bank and concluded that when the collecting bank pays out funds it has collected from the drawee bank it is paying out its own funds and not the proceeds of the check. Thus when the true owner brings a direct suit the collecting bank still has the "proceeds” of the stolen check in its hands and is liable to that extent. The commencement of the present action ratifies the collection by the depository bank but does not ratify the act of paying the amount collected to the wrong person. Cooper v Union Bank, 9 Cal 3d 371; 107 Cal Rptr 1; 507 P2d 609 (1973), Sonnenberg v Manufacturers Hanover Trust Co, 87 Misc 2d 202; 383 NYS2d 863 (1976).
Some courts have recognized the weight of this authority and the code’s purpose to "make uniform the law among the various jurisdictions”, UCC l-102(2)(c), MCL 440.1102(2)(c); MSA 19.1102(2)(c), and accepted the results. Mott Grain Co v First National Bank & Trust Co of Bismarck, 259 NW2d 667 (ND, 1977).
While this body of case law has not developed without criticism, the reasons which support it are clearly ascertainable. This case is a good example of the most important of these reasons. The bank here accepted for collection some 300 checks drawn by various entities on many different banks. If the payee cannot sue the depository bank directly it would be necessary to sue either the drawee bank under 3-419(l)(c) or the drawer under 3-804. Thus 300 lawsuits might be required where one will do under the prevailing construction of 3-419(3). But, even then the matter would not be closed. When the drawee bank or drawer loses the suit to the payee, they in turn pass the loss to the first party to deal with the forger, here Peoples State Bank, under the warranty provisions of 3-417. Other courts have recognized the code’s allo cation of the ultimate loss in this factual pattern, even in suits brought against the drawer or drawee bank. Mississippi Bank & Trust Co v County Supplies & Diesel Service, Inc, 253 So 2d 828 (Miss, 1971), Maddox v First Westroads Bank, 199 Neb 81; 256 NW2d 647 (1977).
We agree with the result reached in the cases cited above and affirm the court’s finding that 3-419(3) provides no defense for the collecting bank in a suit by the true owner of the instrument in this type of fact situation.
The trial court based its holding on an alternative ground which should also be affirmed. In the view of the court below, even if the depository bank fell within the first phrase of 3-419(3) it would still not be absolved from liability because it did not act "in accordance with the reasonable commercial standards applicable to the business”. Defendant bank argues this finding could not be made on the present record.
We cannot accept the bank’s argument. The undisputed facts are that Peoples State Bank, located in St. Joseph, some 130 miles from Ann Arbor, handled over 300 checks made out to a corporate payee and endorsed only by a rubber stamp. The value of the checks exceeded $100,000. The only activity in this account, other than checks payable to Sherriff-Goslin, amounted to less than $1,500. No one at the bank knew that Ca-wood worked for Sherriff-Goslin and certainly no one ever asked by what authority he was dealing with these checks. The bank simply failed to make any inquiry into these various transactions.
Under the circumstances the court was justified in taking judicial notice of the lack of compliance with reasonable commercial standards. Many courts have found a lack of compliance with such standards on similar facts. See, e.g., Gresham State Bank v O & K Construction Co, 231 Or 106; 370 P2d 726; 372 P2d 187; 100 ALR2d 654 (1962), Atlas Building Supply Co, Inc v First Independent Bank of Vancouver, 15 Wash App 367; 550 P2d 26 (1976), Von Gohren v Pacific National Bank of Washington, 8 Wash App 245; 505 P2d 467 (1973), Mott Grain Co v First National Bank & Trust Company of Bismark, supra, Belmar Trucking Corp v American Trust Co, 65 Misc 2d 31; 316 NYS2d 247 (1970). We recognize, as these other courts have, that when a corporation is the payee of a check, that corporation usually deposits the check in its account rather than negotiating it in blank to a third person. The bank had a duty to inquire before accepting these checks. Since it did not inquire and paid the checks over forged endorsements, it must bear the ultimate loss.
Peoples State Bank contends on a number of other issues that it should be allowed to present evidence of several possible code defenses. These sections were never raised in any pleading and are mentioned only in passing in the brief in opposition to the motion for summary judgment. The record does not show that an answer to the motion for summary judgment was ever filed. From review of the other documents in the file there is no reason to believe that these assertions could be factually supported. We consider the defenses waived. GCR 1963, 111.3, 111.7.
The judgment of the circuit court is affirmed. Costs to appellee.
Continental Casualty Co v Huron Valley National Bank, 85 Mich App 319; 271 NW2d 218 (1978), presented the same factual pattern but the majority rested its decision on an issue relating to the statute of limitations. That issue has not been raised in this case.
See also, Salsman v National Community Bank of Rutherford, 102 NJ Super 482; 246 A2d 162 (1968), aff'd 105 NJ Super 164; 251 A2d 460 (1969).
There is a fourth group of cases which seem to have completely ignored the possible, impact of 3-419(3) and simply carried pre-code law on conversion liability forward to a post-code law situation. See, e.g., Equipment Distributors, Inc v Charter Oak Bank & Trust Co, 34 Conn Supp 606; 379 A2d 682 (1977), DoAll Dallas Co v Trinity National Bank of Dallas, 498 SW2d 396 (Tex Civ App, 1973).
See, e.g., White & Summers, Handbook of the Law Under the Uniform Commercial Code, § 15-4, pp 504-505, Tolley, Comment, Depository Bank Liability Under § 3-419(3) of the Uniform Commercial Code, 31 Wash and Lee L Rev 676 (1974).
MCL 440.3804; MSA 19.3804.
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N. J. Kaufman, P.J.
Defendant was charged with possession of heroin, MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). On October 28, 1977, Recorder’s Court Judge Donald L. Hobson dismissed the charge after concluding that the search of the defendant was improper. Plaintiffs application for delayed leave to appeal was granted on July 26, 1978, and we reverse.
At the preliminary examination on June 22, 1977, police officer Daniel Keuhn testified that, on January 4, 1977, he received a phone call from a "reliable and credible informant”. Officer Keuhn had had previous contact with the informant and the informant was registered with the Detroit Police Department. Officer Keuhn’s five prior contacts with the informant had resulted in twelve arrests, two convictions, and one dismissal. The other nine cases were pending. The informant told Officer Keuhn that a person known to the informant as Steel Bill Greer, approximately 36 years old, was at that time at Duke’s Playhouse Bar. He was wearing a brown jacket, blue jeans and a brown cap. He was selling heroin which he kept in tan coin envelopes in his jacket pocket.
Officer Keuhn proceeded directly to the bar. Upon entering the bar, he saw a person fitting the description given to him by the informant. He walked up to that person, learned that his name was William Greer, and placed him under arrest for violation of the Controlled Substances Act. He took three tan coin envelopes containing an off-white powder from defendant’s right coat pocket. The substance appeared to be heroin.
At the conclusion of Officer Keuhn’s testimony, defense counsel argued that the informant’s tip alone could not provide sufficient probable cause for the arrest and search of defendant. Acting Recorder’s Court Judge Donald Neitzel rejected defendant’s argument and bound him over for trial on the possession of heroin charge.
On October 28, 1977, a bench trial began in Detroit Recorder’s Court. Officer Keuhn was the first witness presented by the prosecution. He testified that, acting on information received from a reliable and credible informant, he went to Duke’s Playhouse Bar on January 4, 1977. The informant had given him a description of someone selling heroin in the bar. Officer Keuhn saw defendant in the bar, approached him, asked him his name, and placed him under arrest. In the vestibule of a building next to the bar, Officer Keuhn searched defendant and found the coin envelopes believed to contain heroin.
At that point, defense counsel moved to dismiss the case because "in order to have probable cause he [the police officer] has to have made an independent investigation of his own that satisfies him”. The prosecutor argued that the motion should have been brought prior to trial. The court ruled that the search of the defendant was improper and granted the motion to dismiss.
After this ruling, the prosecutor asked the court if he could present testimony on the issue. He expressed concern that, by waiting until mid-trial to make a motion to dismiss, defense counsel had deprived the people of an opportunity to appeal. Officer Keuhn then testified as to his five prior contacts with the informant. All of the prior contacts with the informant had been in cases dealing with drugs. In all of those cases, searches of the persons named by the informant had turned up narcotics. With regard to defendant, the informant had told the police officer the identity of the person selling drugs and where he was located. The informant told Officer Keuhn that he knew the person was selling heroin because he had been present in the bar and had just witnessed a transaction. The officer arrived at the bar seven to ten minutes after receiving the information. The description given to Officer Keuhn by the informant was of a black male, approximately 36 years old, wearing a brown hat, brown jacket, white sweater and blue jeans, known to the informant as Steel Bill Greer. The defendant fit the description perfectly and, in response to Officer Keuhn’s question, stated that his name was William Greer.
After hearing this testimony of Officer Keuhn, Judge Hobson refused to change his earlier ruling granting defendant’s motion to dismiss. The plaintiff now appeals.
In dismissing the charge against defendant, the trial court accepted defense counsel’s argument that Officer Keuhn should have made an independent investigation of his own instead of relying solely on the information supplied to him by the informant. This ruling was clearly erroneous.
Recently, the Michigan Supreme Court held that an anonymous tip may be the basis for probable cause to make an arrest if the information in the tip is sufficiently corroborated by independent sources. People v Walker, 401 Mich 572; 259 NW2d 1 (1977). Since the tip in the instant case was not anonymous, Walker is readily distinguishable. However, the Supreme Court opinion also discussed the general test for determining the presence of probable cause when it is based solely on information supplied by an informant:
"The test for determining when probable cause may be established solely upon the basis of information from an informant or upon such information and corroborating facts has been developed in Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), and Spinelli v United States, 393 US 410; 89 S Ct 584; 21 L Ed 2d 637 (1969). In Aguilar, the United States Supreme Court held that probable cause for a warrantless arrest is established if the informant’s tip meets two requirements: (1) 'some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were’ must be disclosed, and (2) 'some of the underlying circumstances from which the officer concluded that the informant * * * was "credible” or his information "reliable” ’ must be shown. 378 US 108, 114. This two-prong test was further developed in Spinelli, where the affiant swore that his informant was reliable, but gave the magistrate no grounds to support his conclusion.
"In regard to the first prong of the test, the Spinelli Court said that '[i]n the absence of a statement detailing the. manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail so that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation’. 393 US 410, 416. The Court in Spinelli found the detail provided by the informant in Draper v United States, 358 US 307; 79 S Ct 329; 3 L Ed 2d 327 (1959), a 'suitable benchmark’. 393 US 410, 416. In Draper, the informant reported that the accused was selling narcotics and that he would return from Chicago by train on one of two days with narcotics. The informant also described Draper and his clothing and said that he would be carrying a tan zipper bag and that he habitually walked 'real fast’. As the Court explained in Spinelli, '[a] magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way’. 393 US 410, 417.
"Upon satisfying the first prong of the Aguilar test, it is then necessary to turn to the second prong, concerning the credibility or reliability of the informant himself. One recognized method of establishing the trustworthiness of the informant is a disclosure that the informant provided information on past occasions which later proved to be correct upon investigation. McCray v Illinois, 386 US 300; 87 S Ct 1056; 18 L Ed 2d 62 (1967).” Walker, supra, 580-583.
In the instant case, Officer Keuhn’s testimony amply detailed the underlying circumstances from which the informant concluded that defendant was selling narcotics. Further, the credibility and reliability of the informant were established through revelation of prior contacts with the informant. Therefore, the facts of this case satisfy the probable cause test for a warrantless arrest. See McCray, supra, Draper, supra, People v Heard, 65 Mich App 494, 496-497; 237 NW2d 525 (1975), and People v Daniels, 60 Mich App 458, 463-464; 231 NW2d 386 (1975). The trial court erred in concluding otherwise.
We also note that the trial court granted the motion to dismiss in mid-trial, before the prosecutor presented testimony regarding the basis of the search, despite defense counsel’s full knowledge of the issue before trial, and in the face of Recorder’s Court Rule 18, which states in relevant part:
"Any defense or objection, which is capable of determination without trial of the general issue, may be raised before trial by motion. Defenses and objections based on defects in the institution of the prosecution or in the Information, other than that it fails to show jurisdiction in the Court or to charge an offense, may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the Court for good cause shown may grant relief from the waiver.”
It is certainly true that the trial judge could exercise his discretion to consider the motion, but defense counsel offered no reason for the belated motion and did not comply with the "good cause” requirement of Rule 18. Under the facts of this case, therefore, the trial judge abused his discretion in granting defendant relief from his waiver of the issue. See People v Ferguson, 376 Mich 90, 93-96; 135 NW2d 357 (1965).
Finally, defendant’s retrial is not barred by the prohibition against double jeopardy. In United States v Scott, 437 US 82; 98 S Ct 2187; 57 L Ed 2d 65 (1978), the United States Supreme Court held that reprosecution was not barred after a criminal defendant had successfully moved to dismiss, mid-trial, on the grounds that his defense had been prejudiced by pre-indictment delay. In Scott, the defendant had moved for dismissal both before and during trial. Overruling United States v Jenkins, 420 US 358; 95 S Ct 1006; 43 L Ed 2d 250 (1975), the Court held:
* * in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant. We do not thereby adopt the doctrine of 'waiver’ of double jeopardy rejected in Green [v United States, 355 US 184; 78 S Ct 221; 2 L Ed 2d 199 (1957)]. Rather, we conclude that the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice. In Green the question of defendant’s factual guilt or innocence of murder in the first degree was actually submitted to the jury as a trier of fact; in the present case, respondent successfully avoided such a submission of the first count of the indictment by persuading the trial court to dismiss it on a basis which did not depend on guilt or innocence. He was thus neither acquitted nor convicted, because he himself successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury which had been empaneled to try him.” (Footnote omitted.) Scott, supra, 437 US 98-99.
In the instant case, the charge against defendant was dismissed on a basis unrelated to his factual guilt or innocence on the charge of possession of heroin. The ruling of the trial court reflected that court’s legal judgment that the defendant, although perhaps criminally culpable, could not be punished because of the lack of probable cause justifying his arrest and the search of his person. Therefore, the defendant has been neither acquitted nor convicted. Compare People v Smith (On Rehearing), 89 Mich App 478; 280 NW2d 862 (1979), People v Killingsworth, 80 Mich App 45, 50-54; 263 NW2d 278 (1977), and People v Keith Lester, 78 Mich App 661, 663; 261 NW2d 33 (1977). Accordingly, retrial is not barred by the prohibition against double jeopardy.
Reversed and remanded for trial. | [
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Cynar, J.
On June 9, 1977, defendant was found guilty of charges of breaking and entering with intent to commit larceny, MCL 750.110; MSA 28.305, and assault with intent to commit criminal sexual conduct involving sexual penetration, MCL 750.520g(l); MSA 28.788(7X1). He was sentenced to concurrent terms of 5 to 15 years imprisonment on the breaking and entering count and 5 to 10 years imprisonment for the assault. Defendant now appeals as of right.
The complaining witness, Sheila Neff, testified that on the night of November 25, 1976, she had left the front door of her house unlocked so that her son could enter. She was awakened by the sound of footsteps and a door opening and closing. When there was no response to her calls, she became afraid and dialed the operator. Defendant entered her bedroom as she was explaining that an intruder was in her home. He attempted to knock the phone out of her hand and a struggle ensued. After being told the police were on the way, defendant began to leave, but instead changed his mind. He jumped on the complainant’s bed, grabbed her wrists, and stated his intention to engage in sexual intercourse with her. After a further struggle he left the room.
At this point Mrs. Neff testified that she put on a bathrobe and walked into the hallway where she again encountered defendant. She pushed him away and ran out the front door. By this time, a police helicopter was overhead. A police officer appeared on the scene as she approached a neighbor’s house.
Defendant was arrested while exiting from the complainant’s house. A search of his person uncovered Mrs. Neffs wallet. The complainant also testified that a cassette recorder had been moved from a closet to a spot near the back door.
Defendant initially alleges that the trial court erred in permitting the prosecutor to use defendant’s 1970 conviction of attempted breaking and entering for impeachment purposes.
As a general rule, the trial judge has discretion to admit or exclude evidence of defendant’s past convictions when offered for impeachment pur poses. People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974). When called upon to rule on the admissibility of prior convictions the trial judge must recognize his discretion on the record, People v Cherry, 393 Mich 261; 224 NW2d 286 (1974), and should exercise his discretion with reference to three specific criteria: (1) the extent to which the offense bears on credibility; (2) the similarity of the prior offense to that charged; and (3) whether defendant’s defense is severely impaired if the fear of impeachment leads him to choose not to testify. People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978). The Crawford criteria are guidelines for the trial judge to follow in exercising his discretion and affirmative misapplication of these factors has been held to require reversal. See for example People v Crawford, supra, and People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979). However, there is no requirement that the trial judge refer to these factors or make on-the-record findings regarding them. People v Roberson, 90 Mich App 196; 282 NW2d 280 (1979).
In the present case the trial judge ruled on defendant’s motion to suppress the prior conviction as follows:
"THE COURT: Well, the Prosecutor can’t use it for those purposes. He can merely bring it in for a view for the benefit of the jury for the purpose of attacking the credibility of the witness, his likelihood of telling the truth or not telling the truth under oath. The prior conviction does involve a crime of moral turpitude. I think it is fair for the jury to be informed of the entire past history of the Defendant in regard to their assessment of his likelihood of telling the truth under oath, the likelihood of his truth and veracity. The Defendant has his past life to live with, as all of us do. All of us have our past mistakes to explain. Mr. Love has the opportunity here to explain his past mistakes if he desires to, and the jury has the right to take this into account in determining credibility. I feel no useful purpose being served by Mr. Love taking the stand and appearing to the jury with a halo over his head and without giving the jury all the facts regarding his past life in so far as credibility is concerned.”
We find no error in the trial judge’s exercise of discretion. His ruling indicates that he was aware of his discretion and that he believed the prior offense was probative of defendant’s lack of credibility. We will not presume from a silent record that the other considerations set forth in Crawford, supra, were ignored in the present case. In the absence of an affirmative misapplication of the Crawford criteria, we conclude that the evidence was properly admitted for impeachment purposes.
Defendant next raises several constitutional challenges to various parts of the criminal sexual conduct act. Prior to discussing these, it is necessary to outline the pretrial motion giving rise to these challenges.
Prior to trial defense counsel moved for a bill of particulars on the assault count. He contended that under the criminal sexual conduct act the offense of assault with intent to commit criminal sexual conduct involving penetration could be committed in so many different ways that he was unable to defend against the charge. Specifically, he requested the prosecutor to designate which kind of ñrst-degree criminal sexual conduct the defendant was alleged to have committed.
The trial judge granted defendant’s motion, stating that the language of the assault count was too broad. The trial judge then read through each of the means of committing first-degree criminal sexual conduct listed in MCL 750.520b; MSA 28.788(2) and asked the prosecutor which of these theories he was relying upon. The prosecutor responded that he was relying upon subsection (l)(c), sexual penetration under circumstances involving the commission of another felony. Alternatively he declared that he was relying upon subsection (l)(fXi), using physical force to commit the penetration and causing personal injury.
Subsequently, defense counsel unsuccessfully moved to dismiss the charge based upon subsection (l)(c) of MCL 750.520b; MSA 28.788(2) on the ground that it was overbroad. On appeal, he raises this argument once more contending that many sexual penetrations committed in the course of a felony are consensual and therefore noncriminal. He also contends that both an assault conviction based upon subsection (l)(c) and a conviction for the underlying offense of breaking and entering with intent to commit larceny would constitute multiple punishment for the same offense. Defendant further alleges that the element of "personal injury” required under subsection (l)(f)(i) is unconstitutionally vague.
We need not address these difficult constitutional problems in the context of the present case. This is because the trial judge erred in requiring the prosecutor to specify the theories of first-degree criminal sexual conduct under which he was proceeding. The statute under which defendant was charged, MCL 750.520g; MSA 28.788(7), reads as follows:
"(1) Assault with intent to commit criminal sexual conduct involving sexual penetration shall be a felony punishable by imprisonment for not more than 10 years.
"(2) Assault with intent to commit criminal sexual conduct in the second degree is a felony punishable by imprisonment for not more than 5 years.”
Subsection (2) of this statute requires an "intent to commit criminal sexual conduct in the second degree”. In requiring the prosecutor to designate a theory of first-degree criminal sexual conduct, the trial judge must have read subsection (1) as requiring an intent to commit criminal sexual conduct in the first degree.
However, such a requirement is at odds with the plain language of the statute. All that is required under subsection (1) is an "intent to commit criminal sexual conduct involving sexual penetration”. Such an intent is satisfied by a showing that defendant intended to commit third-degree criminal sexual conduct, MCL 750.520d; MSA 28.788(4), which also involves sexual penetration.
More specifically all that is really required for a conviction under subsection (1) of MCL 750.520g; MSA 28.788(7) is proof that (1) defendant committed an assault (2) with the intent to commit sexual penetration. There is no requirement that one prove an intent to commit criminal sexual conduct, as that is necessarily established by proof of the other elements.
The above conclusion is borne out by an examination of the proof required to establish third-degree criminal sexual conduct. One type of third-degree criminal sexual conduct occurs when one engages in sexual penetration with another and "force or coercion is used to accomplish the sexual penetration”, MCL 750.520d; MSA 28.788(4). Thus, proof of the intent to commit this type of criminal sexual conduct is established by proof of the intention to commit a forcible sexual penetration. This intention will necessarily be established by proof of assault plus proof of the intent to sexually penetrate. The intention to use force in effectuating the sexual penetration is established by the assault itself, as one definition of a criminal assault is an:
"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.” People v Sanford, 402 Mich 460, 477; 265 NW2d 1 (1978).
Thus when coupled with the intent to commit sexual penetration, proof of the assault necessarily establishes the intent to commit the kind of criminal sexual conduct prohibited by MCL 750.520d; MSA 28.788(4).
As the above analysis illustrates, the questions of whether personal injury occurred and whether the assault was perpetrated in the course of another felony were erroneously injected into the case by the trial judge’s ruling on defendant’s motion. Despite this added burden being placed on the prosecutor, the jury found defendant guilty of the assault charge. Under either of the theories upon which the prosecutor was forced to rely, the jury would have had to have concluded that defendant committed an assault with the intent to sexually penetrate. As that alone is sufficient to establish the elements of the assault charge, defendant was not injured as a result of the operation of those provisions relating to personal injury or the commission of the assault in the course of another felony. In the absence of any injury to defendant as a result of the operation of these statutes defendant lacks standing to raise the constitutional challenges argued on appeal. State ex rel Wayne County Prosecuting Attorney v Bernstein, 57 Mich App 204, 207; 226 NW2d 56 (1974).
Defendant raises several other issues on appeal. We find these to be without merit. The instructions to the jury on the assault count, although inaccurate to the extent noted above, did not act to prejudice defendant. In all other respects the instructions, when viewed in their entirety, People v Roberson, 44 Mich App 105, 108; 205 NW2d 50 (1972), were not erroneous.
The prosecutor’s closing argument alluding to the need to stop "fear”, although bordering on the improper, was not objected to. Since any resulting prejudice could have been rectified by a curative instruction, this issue does not require reversal. People v Smith, 73 Mich App 463, 470; 252 NW2d 488 (1977). No error occurred as a result of his referring to the evidence as "uncontroverted”. People v Franklin, 70 Mich App 343, 347; 245 NW2d 746 (1976).
. In the absence of a hearing regarding prejudice, defendant’s issue regarding the nonproduction of two res gestae witnesses is not properly before us. People v Willie Pearson, 404 Mich 698, 714; 273 NW2d 856 (1979).
Finally, we conclude that under the circumstances of the case, the trial judge properly denied defendant’s motion for a continuance to obtain a new attorney. People v Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972).
Affirmed.
Specifically, Count II charged defendant with "assault with intent to commit criminal sexual conduct involving penetration; to-wit; sexual intercourse.
This conclusion is implicitly supported by CJI 20:6:01 which requires only proof of the assault, proof of a sexual purpose, and proof of the intent to sexually penetrate.
The motion, which was made after the jury was selected, merely claimed general dissatisfaction with defendant’s appointed attorney, rather than any specific problem. There was no showing of a breakdown in communication between the defendant and counsel or that counsel had been appointed at too late a date to prepare for trial. Furthermore, the attorney in question was defendant’s second appointed attorney. | [
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Per Curiam.
Defendant was jury convicted of delivery of heroin, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). He was sentenced to three to ten years in prison and appeals as of right.
A police informant purchased heroin from the defendant. The purchase was made with police money and the informant was fitted by the police with a tape recorder and monitoring device during the transaction.
Defendant argues that several errors were made by the trial court.
We find no error in the. trial court’s conclusion that defendant was not entrapped into committing the offense. GCR 1963, 517.1. A mere offer of an opportunity to commit a crime is insufficient to establish entrapment. People v Lassen, 65 Mich App 720; 238 NW2d 384 (1975).
The trial court did not err in refusing to suppress the tape recording of the transaction. The argument extending the warrant requirement to the facts of this case stretches credulity. Otherwise, sufficient exigent circumstances existed to justify the warrantless "search and seizure”. See People v Pulley, 66 Mich App 321, 328-329; 239 NW2d 366 (1976).
We find no error or abuse of discretion on the part of the trial court in admitting the tape and the heroin into evidence. Proper foundations were laid and questions of the probative quality of the evidence were properly left to the jury. See People v Kremko, 52 Mich App 565, 573; 218 NW2d 112 (1974).
It was error for the court officer to make an assertion of fact to a juror regarding the location of vehicles at the view of the crime site. Defendant does not explain and we cannot envision how the error was prejudicial. If there was prejudice, it was cured by the trial court’s instructions.
Affirmed. | [
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K. B. Glaser, Jr., J.
Plaintiff Albert D. Hamburger, M.D., entered Henry Ford Hospital as a patient on December 31, 1975, having symptoms consistent with a mild stroke. He was sent to an x-ray room attended by Ms. Rita McKinney who was a student trainee and functioning as an x-ray technician but was not certified. The patient was placed on a stool with a low back during the x-ray procedure. Immediately after the procedure was completed the patient collapsed while still on the stool, became unconscious and started urinating. Ms. McKinney put a tongue depressor in his mouth and called to a passing fellow employee to call the "blue alert” team. This team consists of hospital personnel especially trained to respond to life-threatening emergencies. Before the blue alert team arrived, other hospital employees responded to her call for help. Five of them, including Ms. McKinney, lifted the patient onto a stretcher. The names and specific hospital functions of the other four hospital employees are not known. They failed to support the patient’s head and it struck a metal guard rail, apparently resulting in the patient regaining consciousness. When the blue alert team arrived they did nothing further but send the patient back to his room. Plaintiffs claim the blow on the head caused the neurological deterioration thereafter experienced by Dr. Hamburger. Defendant claims the blow was not a cause of that deterioration. The jury returned a verdict of $192,-500 in favor of Dr. Hamburger and $7,500 for his wife Ruth Hamburger.
During the course of the trial, while defense witnesses were on the witness stand, a plaintiff and the attorney for the plaintiffs made verbal and facial responses to which defendant objected and moved for a mistrial. The court denied the motion. Defendant raised the issue again in a motion for new trial which the court again denied, on the ground that the conduct had no influence on the outcome of the trial.
Defendant also requested an instruction that unless the actions of Ms. McKinney and the other hospital employees in placing the patient on the stretcher was gross negligence plaintiffs could not recover. Defendant based its request on the "good Samaritan” statute, MCL 691.1502; MSA 14.563(12). The trial judge denied the request.
Defendant hospital appeals by right pursuant to GCR 1963, 806.1 raising two issues.
1) Whether the trial court should have granted a new trial based on the misconduct of a plaintiff and the plaintiffs’ counsel.
2) Whether defendant was entitled to the requested instruction on gross negligence.
I
Misconduct of plaintiffs and counsel
Denial of a motion for new trial is within the sound discretion of the trial judge and will only be reversed on appeal where there is an abuse of discretion. Willett v Ford Motor Co 400 Mich 65, 70-71; 253 NW2d 111 (1977). The trial court was in a position to see the facial responses and verbal conduct and assess their impact on the jury. There is nothing in the record from which we could conclude there was an abuse of discretion. The trial court’s decision on the motion must be affirmed.
II
Defendant hospital’s requested instruction on the good Samaritan statute
The common-law doctrine with respect to persons, especially doctors, rendering voluntary aid in an emergency may have made many doctors reluctant to render voluntary emergency care for fear of malpractice suits. Many states with the public welfare in mind have enacted "good Samaritan” statutes to encourage prompt treatment of accident victims by excusing from civil liability those who render care in an emergency. Some states have extended this protection to nurses and some even to anyone assisting in an emergency. See Anno: Construction of "Good Samaritan” statute excusing from civil liability one rendering care in emergency, 39 ALR3d 222.
Michigan originally enacted such a statute providing immunity for physicians for ordinary negligence at the scene of an emergency. By 1964 PA 60; MCL 691.1501; MSA 14.563, this immunity was extended to registered nurses.
That is now § 1 and reads as follows:
"Sec. 1. A physician or registered nurse who in good faith renders emergency care at the scene of an emergency, where a physician-patient or registered nurse-patient relationship did not exist prior to the advent of such emergency, shall not be liable for any civil damages as a result of acts or omissions by the physician or registered nurse in rendering the emergency care, except acts or omissions amounting to gross negligence or wilful and wanton misconduct.”
We particularly emphasize that the statute excepted cases where a professional relationship had already been established with the patient.
1975 PA 123; MCL 691.1502; MSA 14.563(12) became effective on July 1, 1975, extending such protection to certain named persons in hospital settings who were under no duty to respond. It is this addition under which defendant claims that Ms. McKinney and the other four hospital employees who lifted Dr. Hamburger onto the stretcher were immune from liability for ordinary negligence. Defendant further claims that because they were immune the hospital is also immune. The 1975 addition to the statute (§ 2) reads as follows:
"Sec. 2. (1) In instances where the actual hospital duty of that person did not require a response to that emergency situation, a physician, dentist, podiatrist, intern, resident, registered nurse, licensed practical nurse, registered physical therapist, clinical laboratory technologist, inhalation therapist, certified registered nurse anesthetis, x-ray technician, or paramedical person, who in good faith responds to a life threatening emergency or responds to a request for emergency assistance in a life threatening emergency within a hospital or other licensed medical care facility, shall not be liable for any civil damages as a result of an act or omission in the rendering of emergency care, except an act or omission amounting to gross negligence or wilful and wanton misconduct. (2) The exemption from liability under subsection (1) shall not apply to a physician where a physician-patient relationship existed prior to the advent of the emergency nor to a licensed nurse where a nurse-patient relationship existed prior to the advent of the emergency. (3) Nothing in this act shall diminish a hospital’s responsibility to reasonably and adequately staff hospital emergency facilities when the hospital maintains or holds out to the general public that it maintains such emergency room facilities.” MCL 691.1502; MSA 14.563(12).
There is no case law in Michigan and very little elsewhere construing good Samaritan statutes. 39 ALR3d 222, supra. This issue is one of first impression.
The Court must resolve the issue by construing the statute to determine the intent of the Legislature as to who is entitled to its protection. Flint Board of Education v Williams, 88 Mich App 8, 15; 276 NW2d 499 (1979).
At the outset we are aware that there is a dispute as to whether Ms. McKinney was an x-ray technician, within the meaning of the statute, and whether she had a duty to respond within the meaning of the statute. There is even greater doubt as to whether there was any evidence from which the jury could find that the other four employees who lifted Dr. Hamburger were within the protection of the statute, an issue on which we believe, and defendant admits, that defendant has the burden of proof. However, these are questions of fact, and are not necessary to a resolution of the issue. We therefore assume, for purposes of this opinion, that all five employees were entitled to the immunity of the statute at the time Dr. Hamburger was lifted and struck his head.
First it is of great significance that there was a hospital-patient relationship between defendant Henry Ford Hospital and Dr. Hamburger at the time of the injury. We note that in enacting the first section of the statute (MCL 691.1501; MSA 14.563) the Legislature carefully excepted situations where a physician-patient, or registered nurse-patient, relationship existed. This philosophy was in fact carried over into the second section of the 1975 act. Also the original statute is in pari materia to the 1975 enactment and therefore we must assume the Legislature’s impressions derived from it influenced its understanding of the 1975 addition. The Court, in construing that addition (MCL 691.1502; MSA 14.563[12]) should therefore also allow its understanding of it to be influenced by impressions derived from the first section of the statute. Flint Board of Education v Williams, supra. Hospitals have certain standards of care, similar to those of physicians and nurses, that they must meet with their patients. Ordinary negligence in treatment of the patient is a breach of that standard. Bivens v Detroit Osteopathic Hospital, 77 Mich App 487, 478; 258 NW2d 527 (1977).
It is unreasonable to conclude, in the absence of express language, given: (1) the clear thrust of § 1 to volunteers only where no professional relationship was established, and (2) the exception of persons having a physician-patient relationship or having a duty to respond, in the 1975 addition, and (3) the history of good Samaritan legislation applying to volunteers only, that the Legislature intended to protect hospitals in situations where a hospital-patient relationship existed at the time of the negligent act.
It is of course significant that no mention of a hospital’s right to the protection was stated in the statute. It would have been easy to do so if the Legislature so intended.
Section 3 of the statute apparently confused the issue in the trial court. It is reasonable to assume that § 3 was included because people who are brought to an emergency room are not yet protected by a hospital-patient relationship. Therefore a hospital perhaps could, by the simple expedient of not assigning staff to the emergency room, make everyone who responds to an emergency there a volunteer for purposes of this statute. There is, of course, no question of the hospital’s duty to adequately staff the hospital to care for its patients. Non-emergency admissions have careful, even exhaustive, admissions procedures, clearly establishing the hospital-patient relationship before the patient enters the hospital. Section 3 makes it clear that this statute does not change that duty where there is an emergency room regardless of the hospital-patient relationship. We find no indication that the statute is to be applied to emergency rooms any differently than in the other hospital departments.
Lastly, we address the question as to whether the Legislature might have intended the hospital to have derivative immunity for negligent acts of its employees through the doctrine of respondeat superior.
In Michigan, hospitals clearly have derivative liability for negligence of their employees in dealing with their patients within the scope of their authority and sometimes even for non-employees. Grewe v Mt Clemens General Hospital 404 Mich 240, 252; 273 NW2d 429 (1978). Again, there is no caselaw in Michigan and very little elsewhere as to a master’s derivative immunity for acts of his servant. What there is, however, uniformly holds that there is no such derivative immunity. See Steward v Borough of Magnolia 134 NJ Super 312; 340 A2d 678 (1975). See also Seavey, Law of Agency, § 93, p 167, Prosser, Torts (4th ed), § 123, p 869. Harper & James, The Law of Torts, § 8.10, p 643, Schubert v August Schubert Wagon Co, 249 NY 253, 256; 164 NE 42; 64 ALR 293 (1928). We therefore hold there is no derivative immunity of the master from the servant in the absence of a statute to the contrary.
We conclude that defendant hospital was not entitled to immunity for ordinary negligence under 1975 PA 123 regardless of the immunity of any of its allegedly negligent employees, because a hospital-patient relationship existed between defendant hospital and plaintiff at the time of the allegedly negligent act. The trial judge therefore properly refused the defendant’s requested instruction.
Affirmed. Costs to plaintiff. | [
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] |
D. E. Holbrook, Jr., J.
In January, 1974, defendant became a salesman for plaintiff. He had previously been an employee of plaintiff in a number of salaried positions. Defendant was given an advance of $27,500 per year. He also received commissions equal to 50 percent of gross profit on sales made by him. Out of the advance and the commissions he paid his own expenses, withholding taxes and social security taxes. Although the annual advance was agreed to by plaintiff, the defendant pretty much set the amount. There was no written contract between the parties and no discussion as to what would happen in the event of termination of the relationship because, as defendant stated, he never contemplated termination. In January of 1977, defendant left plaintiff and went to work for another lumber company. Upon leaving plaintiff the defendant signed a note agreeing to repay plaintiff the amount by which his annual advances exceeded his commissions earned, which at the time was $19,545.63. This amount was subsequently reduced to $16,042.39, through credits to defendant’s account, by the time of trial.
The trial court found an implied promise on the part of the defendant to repay plaintiff the amount by which defendant’s annual advances exceeded commissions earned. The trial court predicated its reasoning primarily upon the fact that defendant never reported any of his advances on his income tax returns and the note executed by defendant to plaintiff at the time that their association was terminated. Judgment was accordingly entered in favor of plaintiff in the amount of $16,042.39. It is from this judgment that defendant appeals as of right.
On appeal defendant claims that there must be an express agreement to repay before he can be held liable. He specifically asks this Court to adopt the Wisconsin view set forth in Shaler Umbrella Co v Blow, 199 Wis 489; 227 NW 1 (1929), wherein it was held that an agent is not personally liable for advances made to him in excess of commissions earned in the absence of an express agreement to the contrary.
The general rule throughout the country is set forth in 53 Am Jur 2d, Master and Servant, § 74, p 149, wherein it is stated:
"where the contract of employment provides for advances to the employee, which are to be charged to and deducted from the commissions agreed by the employer to be paid to the employee, as the same may accrue, the employer cannot, in the absence of an express or implied agreement or promise to repay any excess of advances over the commissions earned, recover from the employee such excess.”
From the foregoing it is clear that under the majority view, which we adopt, an implied agreement is sufficient. Moreover, this view appears to have support in Michigan. SFA Studios, Inc v Docherty, 12 Mich App 170; 162 NW2d 670 (1968). Here the trial judge found that the defendant, himself, throughout the three years of the relationship, impliedly agreed to treat the advances as loans, rather than salary, since he never declared any of such advances as income, declaring only his earned commissions as income after having deducted his expenses therefrom. The trial court further found that defendant candidly admitted he signed the promissory note under his own free will. Accordingly an implied agreement to repay was found to exist.
While it is true that under the majority view, which we have adopted, convincing circumstances are required to uphold a finding of an implied agreement, 53 Am Jur 2d, Master and Servant, § 74, p 149, the trial court found such convincing circumstances to exist in the instant case. We will not disturb those findings unless clearly erroneous. Here the evidence was sufficient to support the trial court’s findings. They were not therefore clearly erroneous.
Affirmed. Costs to appellee. | [
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J. H. Gillis, P.J.
Plaintiff, Maurice J. Harmon, became a probationary member of the Southfield Police Department in October, 1974. At the end of his one-year period of probation he was denied permanent appointment. A hearing was held before the Southfield Police and Fire Civil Service Commission, resulting in a decision affirming plaintiff’s discharge. On appeal, the circuit court affirmed.
The only issue meriting discussion is plaintiffs contention that the commission applied an improper legal standard in determining that plaintiffs dismissal was for cause.
Section 11(a) of the Firemen and Policemen Civil Service Act provides in part as follows:
"All original appointments to any positions in the police departments, within the terms of this act, shall be for a probationary period of 1 year after the completion of legally required courses of basic training. At any time during the probationary period the appointee may be dismissed for such cause, in the manner provided in this act. If at the close of this probationary term, the conduct or capacity of the probationer has not been satisfactory to the appointing officer, the probationer shall be notified within 10 days, in writing, that he will not receive permanent appointment, whereupon his employment shall cease; otherwise his retention in the service shall be equivalent to his final appointment. The probationer shall be entitled to a hearing before the commission as provided in section 14.” MCL 38.511; MSA 5.3361.
In City of Troy v Troy Civil Service Comm, 81 Mich App 585; 265 NW2d 759 (1978), this Court held that the above provision entitled a probationary officer to a hearing on dismissal at the end of the probationary period of employment. At such a hearing, the city must establish cause for dismissal.
Section 14 of the act enumerates the criteria for which an officer may be disciplined or discharged. It provides:
"The tenure of every one holding an office, place, position or employment under the provisions of this act shall be only during good behavior and efficient service; and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges, by the civil service commission, for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment to the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.” MCL 38.514; MSA 5.3364.
The issue before us now is whether "cause” for dismissal of a probationary employee is limited to the criteria listed in § 14 or whether a less strict standard may be used by the appointing authority.
The Civil Service Commission noted that § 11(a) states that a permanent appointment may be denied where the conduct or capacity of the probationer has not been satisfactory to the appointing officer, whereas § 14 speaks of the "tenure” of persons holding employment under the act. Hence, the commission concluded that the standard of "cause” to be applied in the case of a probationary employee is different from that applied to tenured officers.
The commission went on to state:
"Although, as above noted, Section 11(a) of Act 78 authorizes the appointing officer to deny permanent employment to a probationary officer if his conduct of capacity of the probationer has not been 'satisfactory’ to the appointing officer, we do not, however, view that language as authorizing the appointing officer to deny permanent employment arbitrarily, or for discriminatory or other unlawful reasons. Accordingly, at the hearing herein, this Commission required Southfield’s Appointing Officer to establish the grounds and justification upon which he acted in this matter.”
We agree that the Legislature did not intend a probationary employee be dischargeable only for such cause as would be sufficient to dismiss a tenured employee. "Probationer” is defined as "one whose fitness is being tested on a trial basis”. Webster’s Third New International Dictionary (1965). A tenured officer has proven his ability to do the job and can only be dismissed for those reasons listed in § 14. A probationary officer, on the other hand, is still undergoing evaluation to see whether he is capable of handling the many responsibilities of police work. Hence, he may be refused permanent employment where he has failed to satisfy his superior’s expectations even though his conduct is not so reprehensible as to be grounds for dismissing a tenured officer.
Of course, as the commission noted, the appointing officer does not have unlimited discretion in denying permanent employment to a probationer. It cannot be denied for arbitrary or capricious reasons nor can the appointing officer engage in racial, sexual or other illegal discrimination.
We find the commission did not apply an incorrect standard in determining that plaintiffs dismissal was justified.
In addition, the reasons given for plaintiffs dismissal did not contravene the above standard. Five reasons were given for his dismissal:
"1. Disregard for the safety of citizens and fellow officers by driving at high rates of speed without just cause.
"2. Display of extreme prejudice against female police officers and females in general.
"3. Disregard of departmental rules, regulations, and procedure; in particular, repeated departures from his assigned area and from the City of Southfield without permission, and without notification to the Police Department dispatcher.
"4. A contemptuous attitude toward superior officers and the Court.
"5. The judgment of his superior officers that Officer Harmon has not and would not properly adapt to the conduct required of a Southfield police officer.”
These charges all have relevance to a person’s fitness for police work and. were supported by competent, material and substantial evidence. While the fifth item would be too vague alone to support dismissal, when read in conjunction with the other charges plaintiff was sufficiently apprised of the reasons permanent appointment was denied.
Affirmed. No costs, a public question being involved.
While in City of Troy v Troy Civil Service Comm, 81 Mich App 585; 265 NW2d 759 (1978), the Court ruled that a probationer could only be dismissed for cause, the Court did not state whether cause for dismissing a probationer is identical to cause for dismissing a tenured officer. While certain language in that opinion may indicate they are the same, such a conclusion was not essential to the decision in that case. | [
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] |
Per Curiam.
Plaintiff brought a products liability action to recover for injuries sustained as the result of the failure of a tire manufactured by the defendant. The case was submitted to the jury on a theory of implied warranty. Plaintiff appeals from a verdict of no cause of action.
The only issue on appeal is whether uncontradicted testimony that the tire’s failure resulted from a manufacturing defect entitled the plaintiff to a jury instruction directing a finding that the tire was not reasonably fit for its anticipated use.
Defendant is a manufacturer of tires, one of which was sold to Great Lakes Express and installed. on the right front wheel of a cab tractor. As the tractor was hauling a trailer on 1-94, the tire’s tread splice delaminated causing a portion of the tread to fall off the tire. When the truck slowed to pull off the roadway, it was struck from behind by an automobile in which plaintiff was a passenger. Plaintiff was seriously injured and filed this action seeking damages.
At trial, plaintiff presented expert testimony that the tire’s failure was the result of a manufacturing defect—an open tread splice. In addition to describing the defect in detail, the expert witness also testified that his examination of the tire yielded no evidence of improper mounting or other condition that might have contributed to the tire failure. The opinions and conclusions of plaintiff’s expert were corroborated by the report of an independent expert and of an expert in the defendant’s employ.
The defendant rested without offering any proofs rebutting the above testimony and did not attempt to impeach either the testimony or the qualifications of plaintiff’s expert, whereupon the plaintiff moved the trial court to instruct the jury that as a matter of law the evidence had established a manufacturing defect. The court denied the motion, ruling that in a products liability action based upon an implied warranty (the only theory submitted to the jury) the existence of a manufacturing defect was "irrelevant and immaterial”.
We hold that the plaintiff was entitled to the requested instruction.
To prevail against a manufacturer in a products liability case on a theory of implied warranty, a plaintiff must prove (a) the defect in manufacture upon which he relies, and (b) injury or damage caused by or resulting from such defect. Kupkowski v Avis Ford, Inc, 395 Mich 155; 235 NW2d 324 (1975), Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975), Piercefield v Remington Arms Co, Inc, 375 Mich 85; 133 NW2d 129 (1965). The import of the foregoing cases is that the gravamen of an implied warranty action is an injury caused by a manufacturing defect in a product.
It may be that not all manufacturing defects render a product unfit for its anticipated use. Hence, undisputed proof that a product was in some way defective would not always prove that the product was not reasonably fit for the use for which it was intended. However, when the plaintiff proves that a particular defect caused the product’s failure while it was being used for its anticipated or reasonably foreseeable purpose or use, he has established the "defect” required to be proven in an implied warranty action. See Mosier v American Motors Corp, 303 F Supp 44 (SD Tex, 1967), aff'd 414 F2d 34 (CA 5, 1969).
In the instant case, all the pertinent evidence attributed the tire’s failure to a defect in manufacture. Where the testimony regarding a fact is undisputed the jury should be instructed to find that fact in accordance with that testimony. Douglas v Edgewater Park Co, 369 Mich 320; 119 NW2d 567 (1963), Dondero v Frumveller, 61 Mich 440; 28 NW 712 (1886), Bensinger v Happyland Shows, Inc, 44 Mich App 696; 205 NW2d 919 (1973). Accordingly, we hold that the trial court erred in denying plaintiffs motion. The proofs established the existence of a manufacturing defect. The jury should have been so instructed.
Because the jury returned a general verdict for the defendant, we can only speculate as to the reasons for their decision. Therefore, we reverse. Smith v Jones, 382 Mich 176; 169 NW2d 308 (1969), Rouse v Gross, 357 Mich 475; 98 NW2d 562 (1959). Insofar as the existence of a manufacturing defect has been established as a matter of law, we remand for a new trial to determine the remaining factors relating to defendant’s liability. See Bensinger v Happyland Shows, Inc, supra.
Costs to appellant.
The trial court was convinced that the evidence did establish that a defect existed and indicated its willingness to so instruct the jury in the context of an express warranty theory.
This statement harmonizes the language of the Supreme Court cases defining this cause of action with that of the pertinent standard jury instructions. SJI 25.23(a), (b).
See Holbert v Staniak, 359 Mich 283; 102 NW2d 186 (1960), Druse v Wheeler, 26 Mich 189 (1872). Defendant would have us exclude expert testimony from this rule. However, neither the above cases nor those cited by the defendant support such a distinction. | [
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Per Curiam.
On April 29, 1976, the city of Detroit commenced condemnation proceedings against properties in the Virginia Park area including a parcel of land and a 12-unit apartment building owned by appellants, Saul and Bessie Rott. On January 13, 1977, a settlement was entered into whereby the city agreed to pay $25,300 in exchange for the conveyance of title to the property.
On February 26, 1977, a fire damaged the premises. The Rotts received $13,226.03 in insurance proceeds to compensate them for this loss.
On March 31, 1977, Mr. Rott apparently sent a warranty deed to the city. The city, upon learning of the fire damage, informed the Rotts that it would pay only the difference between the agreed-upon price and the amount which the Rotts received in insurance proceeds.
Appellants brought a motion before the lower court seeking to collect the full price from the city. The court ruled that the city was entitled to deduct the amount of the insurance proceeds from the settlement price. The Rotts appeal, seeking to have that order reversed.
The agreement in this case was in settlement of a condemnation proceeding. Nevertheless, we view it as analogous to a contract for the sale of real property. Appellants agreed to forego their right to a trial and to convey certain real estate. In return the city agreed to pay $25,300.
After appellants rendered what they considered full performance they sought to require the city to comply with its part of the bárgain. Assuming the damaged unit was repaired after the fire, it is evident that appellants did fully comply with the agreement. Appellants have stated in their brief on appeal that the unit was restored and the city has not challenged this contention. Moreover, even if the unit were not restored, we think it was incumbent upon the city to raise this below.
The only issue the trial court should have resolved was whether appellants had rendered full performance of their part of the bargain. The fact that there was a contract of insurance on the premises is of no relevance to that issue.
Even if the city had contended that appellants rendered defective performance, the amount received in insurance proceeds would not be conclusive of the amount to be deducted from the agreed-upon price. Where there has been a defective performance of a contract the measure of damages may be the difference in the value of the object of the performance in its defective condition and what its value would have been if the contract had been properly performed, or the cost of making the subject matter conform to the standards contemplated by the contract, whichever is less. See 9 Michigan Law & Practice, Damages, § 107, p 107.
We conclude that the trial court erred in ruling that the city could deduct the amount received in insurance proceeds from the settlement price. No showing has been made that the city did not obtain the full benefit for which it had bargained.
Reversed. Costs to appellants.
Although of no legal significance, it is interesting to note that the city intended, upon acquisition of the property, to demolish the building. | [
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T. M. Burns, J.
The questions in this case relate to the circuit court’s role in a suit involving an alleged violation of the veterans preference act. MCL 35.401 et seq.; MSA 4.1221 et seq.
Plaintiff worked as a part-time police officer for defendant in 1975. He resigned after two weeks. In August of 1976, the chief of police again contacted plaintiff to fill in for regular officers on vacation and disciplinary lay-off. Plaintiff worked from September to October, being paid the hourly rate for new officers. In October the city began a police reserve system under which the part-time employees were paid $3 an hour. Plaintiff worked under this system until the end of November.
After his last day of work, plaintiff requested and was granted a veterans preference hearing. The city council determined that plaintiff was not entitled to the protection of the act because he was a part-time employee. At that point no issue had been raised over whether plaintiff had been fired or quit because the police chief who had employed plaintiff had also left office.
Plaintiff sought review of the hearing body’s decision by filing a complaint for a writ of mandamus in the circuit court. The circuit court considered a mandamus action inappropriate, Lenz v Mayor of Detroit, 338 Mich 383, 396; 61 NW2d 587 (1953), but treated the pleading as a complaint to seek superintending control. The circuit court indicated that before review of the veterans preference hearing was possible, it was first necessary to determine whether plaintiff had been entitled to a hearing. Testimony was taken and the circuit court found that plaintiff had not been fired, but rather, had voluntarily quit. The court then determined that veterans who voluntarily left their employment had no rights under the act and dismissed the case.
On the record as developed there are three questions. First, is an individual who voluntarily leaves a position with a public employer entitled to a veterans preference hearing if he changes his mind and wants his position back? Second, is the circuit court limited to the record made before the hearing body or can it take evidence and make findings of fact concerning the circumstances surrounding the termination of employment and, thus, whether plaintiff was entitled to a hearing in the first place? And, finally, was the circuit court’s conclusion in this case that plaintiff voluntarily quit clearly erroneous?
The first question has never been asked in this state for obvious reasons. If an individual quits his job he generally wouldn’t be interested in a hearing to determine whether he could have been fired. However, the answer is clearly implied in the statute. MCL 35.402; MSA 4.1222 provides in relevant part:
"No veteran * * * holding an office or employment in any public department or public works of the state or any county, city or township or village of the state, * * * shall be removed or suspended, or shall, without his consent, be transferred from such office or employment except for official misconduct, habitual, serious or willful neglect in the performance of duty, extortion, conviction of intoxication, conviction of felony, or incompetency; and such veteran shall not be removed, transferred or suspended for any cause above enumerated from any office or employment, except after a full hearing before the governor of the state if a state employee, or before the prosecuting attorney if a county employee, or before the mayor of any city or the president of any village, or before the commission of any such city or village operating under a commission form of government, if an employee of a city or village, or before the township board if a township employee, and at such hearing the veteran shall have the right to be present and be represented by counsel and defend himself against such charges.”
From the language used it is implicit that a veteran who quits his employment is not entitled to a hearing under this section. An involuntary termination is necessary to invoke the protections afforded by the act. If plaintiff quit his job he was not entitled to a hearing under the act.
The second question is more difficult. In the more typical case, review would be of the record in the nature of certiorari, to determine whether the decision of the authority which held the veterans preference hearing was supported by competent, material and substantial evidence. See, e.g., Smith v Mayor of the City of Ecorse, 81 Mich App 601; 265 NW2d 766 (1978). The question in this case isn’t whether the determination at the hearing was correct, but whether plaintiff was entitled to a hearing at all. The fact that a hearing has been held does not affect this inquiry.
In Owen v Detroit, 259 Mich 176; 242 NW 878 (1932), plaintiffs position with the city was abolished for reasons of economy. Plaintiff did not seek a hearing before the mayor but instead brought suit in circuit court in the nature of mandamus to compel reinstatement. The Court held that the statute did not prevent the city from abolishing a veteran’s job if it was done in good faith and not as a subterfuge to avoid the veterans preference. The Court concluded:
"It is contended, however, that determination of the question of good faith in abolishing the position was exclusively for the mayor. It may be conceded that, in passing upon whether a removal is for cause, the mayor may inquire into the good faith of the discharge. But if the position is legally abolished, the statute does not apply, and the employee has no right to a hearing,' nor the mayor power to grant one. Whether the statute applies to a situation necessarily must be a judicial question.” 259 Mich at 178.
The same reasoning applies here. The questions of whether the act applies to a veteran who volun tarily leaves his job and whether the plaintiff here did so are judicial questions. There is nothing to prevent the circuit court from determining whether the act applies to the facts as it finds them. It is only where the act is found to apply that the court would be limited to a review function and thus the record made in the administrative setting. The court did not err in reserving unto itself the determination of the act’s applicability, the question being a purely judicial one.
The final question is the soundness of the court’s conclusion that plaintiff had voluntarily quit his job. Under the view of the case taken above, the finding of fact must be reviewed under GCR 517.1. Our consideration of the testimony and the trial court’s findings based on that testimony does not leave us with a definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44; 243 NW2d 244 (1976).
Affirmed. No costs, construction of a statute being involved.
The writ of certiorari has been superseded by superintending control. GCR 1963, 711.3.
The trial court’s concise findings of fact and conclusions of law were stated at the end of the hearing in circuit court:
“Mr. Brandt has testified to the best of his recollection that Mr. DeGraaf was taken off the schedule because he indicated to Mr. Brandt he no longer wanted to work for the City of Allegan at $3.00 an hour, and I believe that testimony.
"Therefore, it’s this court’s conclusion and opinion that Mr. De-Graaf terminated his employment. It seems that maybe he changed his mind later, but I think once that termination was made and he told that to Mr. Brandt and Mr. Brandt took steps to replace him, that he can’t later change his mind, and that appears to this court what he did, he just changed his mind.
"There isn’t any evidence whatsoever to show that Mr. Brandt took his name off the schedule for any reason but the fact that Mr. DeGraaf said he no longer wanted to work for the City of Allegan at $3.00 an hour. Everything is consistent with that, and therefore, since this Court finds that he did in fact terminate his employment and it would appear he changed his mind later, but the City acted on what he told them. They took his name off the schedule, he didn’t contest it; and it was after his name was taken off the schedule and apparently after he was told to turn in his uniform, that he sent his letter to the City requesting the hearing under the Veterans Preference Act.
"In this court’s opinion, the City doesn’t have any duty or obligation to give him that hearing because he terminated his employment and they accepted it and that was the end of it.” | [
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] |
M. J. Kelly, J.
Defendants appeal from an April 6, 1978, declaratory judgment for plaintiff-insurer holding the limits of liability under the uninsured motorist provisions of the policy between the parties to be $20,000 for one person and $40,000 for two or more persons in any one accident, as stated on the face of the policy.
On July 27, 1975, defendants were hit head-on by a negligent uninsured motorist. Lillian Tunney was fatally injured, Raymond Tunney sustained severe personal injuries, and his daughter, Patrice Tunney, was also seriously injured.
At the time of the collision, Raymond and Lillian Tunney owned two automobiles, both insured by plaintiff under one policy that named Raymond and Lillian Tunney as the insureds. They were driving one of these automobiles at the time of the accident. The Tunneys paid separate premiums of $.75 for uninsured motorist coverage of $20,000 per person, $40,000 maximum per accident for each automobile. Defendants contend that, as the policy covers two automobiles for which separate uninsured motorist coverage premiums were paid, they are entitled to double the limits of the policy and should recover $40,000 per person, to a maximum of $80,000 per accident.
The introductory language found on page 1, and preceding all other sections of the policy states:
"CITIZENS MUTUAL INSURANCE COMPANY of Howell, Michigan (Herein called the Company)
"In consideration of the payment of the premium, in reliance upon the statements in the Declarations made a part hereof, and subject to the limits of liability, the exclusions, the conditions and other terms of this policy, does hereby agree with the named Assured:”
Page 12, paragraph 7, of the policy contains the following language:
"7. Insurance on Two or More Automobiles.
"When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, but an automobile and an attached trailer shall be deemed to be one automobile as respects the limits of liability under Section Two and separate automobiles under Section One, including any deductible provisions applicable thereto.
"Neither the inclusion herein of more than one Assured nor the application of the policy to more than one automobile shall operate to increase the limit of liability stated in the policy (or in the Declarations) for any coverage.”
Before the enactment of the Michigan no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq., and the repeal of the uninsured motorist statute, formerly MCL 500.3010; MSA 24.13010, Michigan law allowed "stacking” of uninsured motorist coverage provided by separate policies despite language in the policies limiting recovery in cases where "other insurance” was available. Blakeslee v Farm Bureau Mutual Ins Co, 388 Mich 464; 201 NW2d 786 (1972), Rowland v Detroit Automobile Inter-Insurance Exchange, 388 Mich 476; 201 NW2d 792 (1972), Boettner v State Farm Mutual Ins Co, 388 Mich 482; 201 NW2d 795 (1972). The rationale underlying these holdings was that, since the uninsured motorist statute required insurance companies to offer their customers uninsured motorist coverage, it was against the public policy of the state to allow an "other insurance” clause to defeat "stacked” recovery. These requirements, however, no longer exist; accordingly, the public policy of the state is no longer served by invariably allowing a stacked recovery. Insurance contracts are, therefore, to be interpreted according to well-known rules of construction.
This Court held in Kozak v Detroit Automobile Inter-Insurance Exchange, 79 Mich App 777; 262 NW2d 904 (1977), that an insurer’s liability under a policy containing an "other insurance” clause is limited to the amount stated on the face of the policy. When an insurer issues multiple insurance policies, each providing uninsured motorist coverage and containing an "other insurance” clause, the insured party can recover only the maximum amount that he is limited to by the "other insurance” clause. In the absence of ambiguities, the rights of the parties rest on the insurance contract as written.
Defendants contend that the above quoted language from page 12, paragraph 7, of the policy creates an ambiguity in that it first states that the terms of the policy shall apply separately to each automobile insured under the policy, arguably setting up a stacking situation, and then adds that the inclusion of more than one automobile in the policy shall not operate to increase the stated limits of liability. If an ambiguity does exist, the policy must be liberally construed in favor of the insured and against the insurer who drafted the policy. Dittus v Geyman, 68 Mich App 433; 242 NW2d 800 (1976), Weaver v Michigan Mutual Liability Co, 32 Mich App 605; 189 NW2d 116 (1971).
We do not find that the cited language creates an ambiguity. It has often been noted in cases from other jurisdictions that language stating that the terms of a policy shall apply separately to each insured vehicle simply makes the policy applicable to whichever automobile is involved in an accident. Allstate Ins Co v Mole, 414 F2d 204 (CA 5, 1969), Yates v Interinsurance Exchange of Automobile Club of Southern California, 275 Cal App 2d 301; 79 Cal Rptr 604 (1969), Otto v Allstate Ins Co, 2 Ill App 3d 58; 275 NE2d 766 (1971), Pacific Indemnity Co v Thompson, 56 Wash 2d 715; 355 P2d 12 (1960). See also 37 ALR3d 1263. When the stated limits of liability are exact and when the policy clearly indicates that the inclusion of more than one automobile does not affect those limits, the language does not appear to us to create an ambiguity.
Finally, defendant (at oral argument) averred that, because two separate premiums for unin sured motorist coverage were paid, a situation was created where he expected to receive double recovery. This argument proceeds on the premise that, if the premium for uninsured motorist coverage on the second car is less than that for the first, it represents consideration only for the insurer’s increased risk of exposure, and, as such, there has been no double payment warranting double recovery. From this premise, it follows that, if the premium for the second car is equal to that of the first, as in the instant case, the insured has paid twice for uninsured motorist coverage, and a double recovery is justified.
Although this type of argument has proven persuasive in other jurisdictions, Sturdy v Allied Mutual Ins Co, 203 Kan 783; 457 P2d 34 (1969), Rosson v Allied Mutual Ins Co, 203 Kan 795; 457 P2d 42 (1969), we do not find the fact that defendants’ separate premiums are stated in equal amounts to be determinative. Neither are we prepared to decide the question solely on defendant’s claimed expectation. Here, the lower court decided this issue on the language of the contract. There have been no proofs offering or establishing the underwriting predicate for the second premium. In the absence of proof of double payment warranting double recovery, we will not override the unambiguous contract language limiting the insurer’s liability and permit "stacking”.
Our decision to affirm the trial court, however, should not be construed as a complete bar to the stacking of insurance coverage. We hold only that, in the absence of proof of double payment warranting double coverage, we will not ignore the clear impact of this insurance contract "separabil ity” clause, and leave to future cases, with adequate records, the question of double recovery under the no-fault act.
The trial court was correct in holding the limits of liability to be the amounts stated in the policy.
Affirmed.
Some cases have held that similar language does create an ambiguity. See, e.g., Government Employees Ins Co v Sweet, 186 So 2d 95 (Fla App, 1966). These cases usually involve special forms of insurance, such as medical payment insurance, and they are distinguishable on this ground. See Allstate Ins Co v Mole, supra, Otto v Allstate Ins Co, supra.
See, Ringenberger v General Accident Fire & Life Assurance Co, 214 So 2d 376 (Fla App, 1968), Otto v Allstate Ins Co, supra. | [
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D. F. Walsh, J.
Plaintiffs initiated this class action on May 10, 1974, seeking a declaration from the Washtenaw County Circuit Court that the rent collection practices of defendant violated the Michigan landlord-tenant relationship act, MCL 554.601 et seq., MSA 26.1138(1) etseq. Plaintiffs also sought an injunction against continuation of the challenged practices and money damages for past violations of the act.
The circuit court certified the class represented by plaintiffs as those tenants of defendant who had entered into leases with defendant on or after April 1, 1973. The court found that defendant had violated the act and awarded the named plaintiffs 5% per annum on $700 for 10 months and 5% per annum on $350 for one month. The named plaintiffs were ordered to notify the other members of the class. With respect to costs, the court ruled: "There will be no costs allowed as all claimants are represented by Legal Aid.”
Plaintiffs appeal, challenging the trial court’s interpretation of the landlord-tenant relationship act and the court’s computation of damages based thereon, the denial of taxation of costs against defendant, and the order directing plaintiffs to bear the cost of notifying the absent class members.
The admitted practice of defendant was to require, prior to occupancy by the tenants, payment of a security deposit equal to one month’s rent. Also required, prior to occupancy, was payment of rent for the first two months of the rental term. Thereafter, one month’s rent was required to be paid on the fifteenth day of each month, beginning with the initial month of occupancy. Each of these payments represented the rental payment for the month beginning approximately 45 days after the payment.
The trial court properly held, and ordered in granting partial summary judgment for plaintiffs on February 18,1976, that, except for the first month’s rent, defendant landlord cannot require any tenant to pay any portion of rent prior to the first day of the rental period to which the rent is to be applied, unless the prepayment is a security deposit which satisfies the landlord-tenant relationship act. MCL 554.601(e); MSA 26.1138(l)(e), MCL 554.602; MSA 26.1138(2).
The lower court also properly found that defendant had required advance payments in excess of those allowed by the landlord-tenant relationship act. MCL 554.601 etseq.
The court’s computation of the amount of excess payment required by defendant, however, was incorrect. The court erroneously ruled that "a landlord cannot charge more than one months [sic] rent as a security deposit”. The statute clearly provides that a security deposit may equal 1-1/2 month’s rent. MCL 554.602. The statute also clearly includes within the definition of security deposit any prepayment of rent (other than prepayment of rent for the first full rental period).
Hence, defendant could legally hold, during the term of the rental agreement, an amount equal to 1-1/2 times the monthly rent. In addition, defendant could properly require, prior to the beginning of the term of the lease, payment of the first month’s rent. Thereafter, on the first day of each rental period, defendant could require payment of the rent for that rental period.
Any amounts required to be paid, and actually paid, to defendant under the terms of the lease which exceeded the amounts described in the foregoing paragraph were held by defendant in violation of the landlord-tenant relationship act.
The trial court found that plaintiffs’ damages equaled the value of the use of their money for any period during which defendant illegally held that money as an excessive security deposit. We find no error in that finding. Nor do we find error in the court’s determination that the value of that use was 5% per annum.
To justify recovery, therefore, each of defendant’s tenants must prove the terms of his, her or their lease agreement with defendant and the date and amount of each payment made to the defendant under the lease. From these facts it will be possible to determine the amount each tenant paid to the defendant in excess of the amount permitted under the act and the number of days for which each excessive amount was held by the defendant in violation of the act. Damages will equal the amount of any excessive payment times .000137 times the number of days the excessive payment was held by the defendant. Computation of total damages will, of course, require a number of separate calculations.
The trial court refused to award costs to plaintiffs, the prevailing parties, solely because they were represented by a legal aid society. The general rule is that costs are awarded in circuit court to the prevailing party. GCR 1963, 526.1, Barnett v International Tennis Corp, 80 Mich App 396, 414; 263 NW2d 908 (1978) . We find the trial court’s denial of taxable costs in this case unreasonable. No statute or court rule prohibits award of costs to parties represented by a legal aid society. Nor do we find any rational basis for such denial.
Finally, plaintiffs challenge the lower court’s order that they bear the burden and cost of notifying the absent class members. The circuit court ordered that members of the plaintiff class, after being notified of the judgment entered against defendant, are to present their claims in district court. We find no error in this aspect of the court’s order. Notification shall be sufficient if made by first class mail to the most recent address which can be obtained for each missing class member. In district court, defendant shall be allowed to present any counterclaims against those who file claims for refund of excessive security deposits.
We disagree, however, that plaintiffs should be required to bear the cost of notification. A common practice in class actions of this type is to order the defendant to compute from its own records the total amount refundable to all possible participants in the plaintiff class and to pay that amount into court for the establishment of a fund from which such claims as may subsequently be proven can be paid. From this fund are first deducted the costs of notification of and distribution to absent class members, reasonable attorney fees, and other nontaxable costs. The claims of absent class members who file in the appropriate forum are paid out of the remainder. See Bond v Ann Arbor School Dist, 383 Mich 693, 705-706; 178 NW2d 484(1970).
In the instant case, however, there has been a delay of more than six years since the effective date of the landlord-tenant relationship act. It can be fairly assumed that many of the 173 leases allegedly affected by this class action involved tenants who were part of a generally transient student population and who have undoubtedly long since left the Ann Arbor area. For many tenants, therefore, current addresses will most probably be unavailable.
Because of the likelihood that many of the possible claims in this class action will never be filed, we are persuaded that it would be unreasonable to order defendant to pay into court a fund which would be sufficient to satisfy all possible claims. In the alternative we order the defendant to pay the actual costs of notification of the absent members of the class together with such reasonable attorney fees for plaintiffs’ counsel as may be determined by the circuit court.
Affirmed as modified. Remanded for further proceedings consistent with this opinion.
Costs to appellants.
As noted in the trial court’s opinion, defendant has changed its rental collection practices to comply with the landlord-tenant relationship act. The only issue before the trial court, therefore, was calculation of the amount of damages, if any, due plaintiffs for defendant’s past practices.
"(e) 'Security deposit’ means a deposit, in any amount, paid by the tenant to the landlord or his agent to be held for the term of the rental agreement, or any part thereof, and includes any required prepayment of rent other than the first full rental period of the lease agreement; any sum required to be paid as rent in any rental period in excess of the average rent for the term; and any other amount of money or property returnable to the tenant on condition of return of the rental unit by the tenant in condition as required by the rental agreement. Security deposit does not include an amount paid for an option to purchase, pursuant to a lease with option to purchase, unless it is shown the intent was to evade this act.” MCL 554.601(e).
"A landlord may require a security deposit for each rental unit. A security deposit shall be required and maintained in accordance with the terms of this act and shall not exceed 1-1/2 months’ rent.” MCL 554.602.
Each tenant must establish for the period preceding the initial date of occupancy, the amount paid to the defendant in excess of 2-1/2 times the monthly rental and, for the months following the initial date of occupancy, the amount paid in excess of 1-1/2 times the monthly rental plus one month’s rent for each month of occupancy. The tenant must also establish the number of days each excessive amount was held by defendant.
.000137 is the daily rate of interest for an annual rate of 5%.
With respect to the individual named plaintiffs the following chart reveals the proper method of calculation of each one’s damages. It must be noted that the calculation is based on an assumption that each payment was made on the day required by the terms of the lease—i.e., the payments due on the 15th of each month were actually paid on the 15th. The record indicates that such ideal conditions did not prevail after August 15, 1973. By their own admission, plaintiffs did not make timely rental payments. In addition, the record indicates that plaintiffs vacated their apartment prior to expiration of the rental term. Reluctantly, we remand to the circuit court for relevant findings of fact. The present record is inadequate for this Court to make proper findings.
In response to interrogatories submitted by plaintiffs, defendant supplied them with a list of the names and addresses of 173 tenants (or groups of tenants) of defendant since April 1,1973, the effective date of the landlord-tenant relationship act.
In Grigg v Michigan National Bank, 405 Mich 148; 274 NW2d 752 (1979) , the Supreme Court held that costs of prejudgment notification in "spurious” class actions, which notification is not mandatory, must be borne by the plaintiff. Id. at 180,193. The Court also noted that reasonable attorneys’ fees, plus costs, would be payable from the proceeds of judgment prior to computation for distribution. Id. at 192. In an addendum signed by herself, Justice Coleman suggested that, in "spurious” class actions, class members not named as plaintiffs should not be allowed to intervene after a judgment on the merits.
We are dealing in this case not with prejudgment but with post-judgment notice. Because no prejudgment notice was ordered and because the issue of opting in after judgment has not been resolved, we find no error in the procedure followed in this case. We further note that the propriety of allowing post-judgment intervention has not been challenged in the instant case. | [
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Cynar, J.
On June 22, 1977, defendant was found guilty of one count of kidnapping, MCL 750.349; MSA 28.581, and one count of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). On July 7, 1977, he was sentenced to concurrent terms of life imprisonment. Defendant now appeals as of right.
At trial, Tammy Trombley, the 10-1/2-year-old complainant, testified that on the night of February 24, 1977, she was home with her 13-year-old brother. At approximately 8:30 p.m., a man, later identified as defendant, came to their apartment and asked to use the phone. After obtaining admittance to the premises he brandished a knife and took some money from the complainant’s brother. The complainant’s preliminary examination testimony, which was read at trial, also established that the defendant had also taken a ring from the apartment.
The complainant testified that after the robbery defendant carried her to a nearby apartment. At this time he forced her to engage in fellatio and unsuccessfully attempted to engage in sexual intercourse with her. She testified that during this latter attempt defendant used some Vaseline.
The complainant’s brother testified that after the assailant left with his sister, he notified a neighbor who called the police. Upon their arrival, he described the assailant and this description was radioed to other units.
James Osborn of the Woodhaven Police Force testified that at about 10:09 that night he saw the complainant returning home after having been released by her assailant. She pointed out defendant’s apartment as the place to which she had been taken and told the officer that, to her knowledge, the assailant was still in the apartment.
Shortly thereafter, several police officers converged at defendant’s apartment. No response was received when they knocked on the door. They broke down the door but found the apartment empty. The police were then told by a neighbor that a man had just left the apartment and was driving a light green car with a dark green top. A jar of Vaseline was found in defendant’s bedroom and was introduced at trial.
Prior to the entry into defendant’s apartment, Detective Frank Smith of the Taylor Police Department observed a car leaving the apartment complex where defendant’s apartment was located. He took down the car’s license number and began following the car, but abandoned the surveillance upon learning that the abductor’s apartment had been located. After the entry into defendant’s apartment, Detective Smith realized that the car he had previously observed was the same car as was described by defendant’s neighbor. Accordingly, he radioed in the license plate number of the vehicle.
At 10:21 that evening David Lambley, a Rock-wood patrolman, observed a car at the Rockwood Inn which matched the description and license plate number that had been broadcast over the radio. The officer placed its occupant, defendant, under arrest. A search of defendant’s person revealed a knife. A subsequent search of defendant’s person produced several rings.
Defendant took the stand in his own defense. He claimed he had been drinking heavily on the day in question and that he remembered very little of the events of that day. He testified that he had never seen the complainant before or on the day of the offense.
Defendant first contends that his arrest was made without probable cause and that the search made incident thereto was improper. This issue was raised in a pretrial motion below and was decided adversely to defendant’s position.
We find no merit to defendant’s argument. At the time of his arrest, the police officers were aware of the following facts: (1) that an alleged kidnapping had occurred; (2) the location of the apartment where the victim was held captive; (3) that a person had recently left that apartment and had driven away in a distinctive green car; (4) that the police had seen this green car leaving the apartment complex where the offense had taken place, shortly after the victim had been released by her abductor; and (5) that defendant was driving the car at the time of his arrest, approximately 20 minutes after the release of the victim. These facts were sufficient to connect a specific person, the defendant, to a specific felony and were sufficient to provide probable cause for defendant’s arrest. See People v Earle, 51 Mich App 232; 214 NW2d 892 (1974). Since defendant’s arrest was valid, the search made incident thereto was also proper, People v Stergowski, 391 Mich 714, 724; 219 NW2d 68 (1974), and no error occurred in denying his motion to suppress.
Defendant next contends that the entry into his apartment violated his fourth amendment rights and that the jar of Vaseline seized by the police should have been suppressed from evidence.
We disagree. On the basis of the information provided to the police by the complainant, they believed that defendant was still in the apartment. Their entry into the apartment therefore falls within the "hot pursuit” exception to the warrant requirement. Warden v Hayden, 387 US 294, 298-299; 87 S Ct 1642; 18 L Ed 2d 782 (1967), People v Stergowski, supra, at 720-721. Since the entry into the apartment was valid, the officers were in a place where they had a • right to be. Thus, their seizure of the jar of Vaseline, which was inadvertently discovered on top of defendant’s dresser, was proper under the "plain view doctrine”. People v Rembo, 73 Mich App 339, 343; 251 NW2d 577 (1977).
Defendant next contends that the trial judge erred in instructing the jury on the asportation element of the kidnapping charge. Specifically, he contends that the trial judge erred in stating that the jury could find asportation if the movement "was either for the purpose of abduction of the victim or to commit the crime of criminal sexual conduct in the first degree”. This instruction was objected to by defense counsel on the ground that it fails to require movement "significantly independent from the underlying offense”.
In People v Adams, 389 Mich 222; 205 NW2d 415 (1973), the Michigan Supreme Court thoroughly analyzed the asportation requirement of the offense of kidnapping and set forth several rules for trial courts to follow in kidnapping cases. Relevant to the present case are the following:
"2. The movement element is not sufficient if it is 'merely incidental’ to the commission of another underlying lesser crime.
"4. If the movement adds either a greater danger or threat thereof, that is a factor in considering whether the movement adequately constitutes the necessary legal asportation, but there could be asportation without this element of additional danger so long as the movement was incidental to a kidnapping and not a lesser crime.
"6. Whether or not a particular movement constitutes statutory asportation or whether there is an appropriate alternative element must be determined from all the circumstances under the standards set out above and is a question of fact for the jury.” Adams, supra, 238.
In the present case, the jury was, in essence, instructed that the asportation needed to establish the kidnapping charge could be incidental to the commission of first-degree criminal sexual conduct. We believe this instruction was in direct conflict with the Adams rule declaring that the asporta tion cannot be " 'merely incidental’ to the commission of another underlying lesser crime”. Adams, supra, 238.
In so holding, we are well aware that this Court is split on the question of whether the asportation required for kidnapping may be incidental to another offense, when the punishment for that offense is co-equal to that of kidnapping. In People v Hardesty, 67 Mich App 376, 378; 241 NW2d 214 (1976), a panel of this Court concluded that Adams Was inapplicable when the movement was incidental to a rape, since both offenses were punishable by life imprisonment. In so concluding, the Court focused upon the language in Adams, supra, at 238, that the movement cannot be incidental to the commission of an underlying lesser crime.
However, other panels of this Court have declined to interpret Adams in this manner. In People v Worden, 71 Mich App 507, 513-514; 248 NW2d 597 (1976), a panel of this Court rejected the Hardesty analysis, stating:
"While it is true that the Adams Court was concerned with the conversion of a simple crime into a capital offense, the logic of the opinion goes further and is directed to prohibiting the conversion of a single offense into two offenses. Thus it matters not whether the single offense is a minor misdemeanor such as simple assault or a capital felony such as armed robbery.”
See also People v Barker, 90 Mich App 151; 282 NW2d 266 (1979).
We believe the latter analysis is - more in line with the thrust of Adams and subscribe to it herein. Since the trial judge’s instruction on the essential element of asportation permitted the jury to consider asportation that was incidental, to the offense of first-degree criminal sexual conduct, defendant’s conviction for kidnapping must be reversed and the case remanded for a new trial on this count. People v Adams, supra, at 245.
We recognize that the present difference of opinion within this Court on this question presents a difficult dilemma for trial judges when called upon to instruct a jury on the elements of kidnapping. Hopefully, our Supreme Court will resolve this problem. In the meantime, where asportation is alleged, trial judges would be well advised to instruct in accordance with CJI 19:1:01. The use of this instruction may avoid future reversals under either the Hardesty or the Worden analysis.
Defendant further contends that the trial judge erred in denying his motion to quash the kidnapping charge. He claims that the evidence of asportation adduced at the preliminary examination showed only movement incidental to the other charged offense. Therefore, he argues that his kidnapping charge should be reversed outright.
This Court will not reverse a trial judge’s decision not to quash an information unless an abuse of discretion has occurred. People v Anderson, 83 Mich App 744, 748-749; 269 NW2d 288 (1978). In this case, the judge’s refusal to quash the information was clearly supported by the evidence. The complainant’s testimony at the preliminary examination established that she had been forcibly taken from her apartment to that of defendant, where she was subsequently sexually assaulted.
In evaluating this evidence we initially note that the movement of the 10-year-old complainant to a strange apartment added a danger of harm greater than that presented solely by the sexual assault. Adams, supra, at 238. We further note that the question of whether the asportation was incidental to another offense is one for the jury to decide. Adams, supra, at 238. Although there may well be some situations where the asportation alleged is so intertwined with another offense so as to render it incidental, as a matter of law, with that offense, the present case does not even approach such a situation. The evidence in support of asportation in this case was sufficient for jury consideration and defendant’s motion to quash was properly denied.
Defendant next contends that the trial court erred in using a prior statement of defendant to impeach him when the statement had 'not been made available to him pursuant to a discovery order.
We find no error. The statement, which was made over six weeks after defendant’s arrest, indicated that defendant knew it was the police trying to pull him over on the day of his arrest. This statement was used to impeach defendant after he testified on direct examination that he was unable to remember anything that had occurred prior to his arrest on the day of the incident. After defendant denied making this statement the prosecution called officer Frank Smith to the stand to testify as to the statement. Under these circumstances the testimony was properly admitted to contradict defendant’s assertion of memory loss.
Nor do we read the trial judge’s discovery order as requiring disclosure of defendant’s statement. The only conceivable basis for discovery of this statement would be that part of the order providing that defendant be furnished with copies of statements by "any and all witnesses in this matter”. Although the language used in this order is broad, other specific references to defendant in the discovery order lead us to believe that the order refers to statements by witnesses other than defendant. After all, it may be presumed that defendant knew what statements he had made. However, if the trial judge intended that a statement of defendant also be furnished, the prosecutor’s failure to furnish it to defendant was harmless error in the circumstances of this case. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972).
We have examined defendant’s other issues on appeal and find them to be without merit. See People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), People v Vargas, 50 Mich App 738, 741-742; 213 NW2d 848 (1973), and People v McIntosh, 62 Mich App 422, 448; 234 NW2d 157 (1975), rev’d in part on other grounds 400 Mich 1; 252 NW2d 779 (1977).
Defendant’s conviction for first-degree criminal sexual conduct is affirmed. The kidnapping conviction is reversed and the case remanded for a new trial on that charge alone.
D. E. Holbrook, Jr., J., concurs in the result only. | [
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] |
J. H. Gillis, J.
Defendants appeal by leave the circuit court’s order denying defendants’ motion for summary or accelerated judgment.
Plaintiff was employed as a teacher by the Saginaw Board of Education commencing in 1960. After plaintiff refused to comply with an agency shop clause of the collective bargaining agreement, a hearing was held pursuant to the teachers’ tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq. The board discharged plaintiff on July 16, 1968, ruling that his failure to comply with the provision constituted reasonable and just cause for dismissal.
On appeal to the State Tenure Commission plaintiffs discharge was upheld. No further appeal was taken from that decision.
On May 23, 1974, plaintiff commenced the instant suit in circuit court. Defendants moved for accelerated and/or summary judgment, arguing res judicata, collateral estoppel and failure to exhaust administrative remedies.
The trial judge denied the motion and defendants were granted leave to appeal by this Court.
The essential theory of plaintiffs case is that the agency shop provision was invalid and his discharge for failing to comply with it was illegal. He therefore seeks damages for breach of contract.
While a teacher may assert a claim for breach of contract apart from any remedy provided by the teachers’ tenure act, Bruinsma v Wyoming Public Schools, 38 Mich App 745; 197 NW2d 95 (1972), Shippey v Madison District Public Schools, 55 Mich App 663; 223 NW2d 116 (1974), we conclude the operation of a collateral estoppel precludes plaintiff from recovering damages for breach of contract in this case.
Where an issue has been finally decided in one action it cannot be relitigated in a separate action between the same parties. Jones v Chambers, 353 Mich 674; 91 NW2d 889 (1958).
In the proceeding before the State Tenure Commission it was decided that plaintiffs discharge was for just and reasonable cause. In the instant suit plaintiffs theory of recovery is that the agency shop provision was illegal and hence his failure to comply with it was not just and reasonable cause for dismissal. He therefore seeks damages for breach of contract. Plaintiff concedes as much in the conclusion of his brief wherein he states:
"Plaintiff had a valid contract with the Board of Education of Saginaw. He could only be dismissed for reasonable and just cause. He was dismissed for a cause that was neither reasonable and just but, in fact, illegal.
"He attempted through the Tenure Commission to get his job back but was unsuccessful. He thereafter sued for damages for a breach of an undeniably valid contract.”
The issue of the validity of plaintiffs discharge has been litigated and decided. Plaintiff cannot now attempt to relitigate it.
Moreover, we see no reason why in the hearing before the State Tenure Commission plaintiff could not have attacked the validity of his dismissal by arguing the contract provision was illegal and hence failure to comply with it was not just and reasonable cause for dismissal. Merely because it involved a question of law did not preclude the State Tenure Commission from ruling upon it. In Long v Board of Education Dist No 1, Fractional, Royal Oak Twp & City of Oak Park, 350 Mich 324; 86 NW2d 275 (1957), the Supreme Court stated that the commission has authority to decide "requisite questions of law”. Where, as here, the sole reason for plaintiffs dismissal was his failure to comply with the agency shop provision, the question of whether that provision was legal was not outside the scope of the commission’s jurisdiction.
In addition, while the Supreme Court has ruled that the State Tenure Commission has no jurisdiction where a discharge is for "concerted strike actions”, Rockwell v Crestwood School District Board of Education, 393 Mich 616, 632; 227 NW2d 736 (1975), the Court in that case also indicated that where a teacher alleges he was discharged for activity protected by PERA he can file a charge with MERC and "such a charge would not preclude a teacher from also defending against the discharge at a teachers’ tenure act hearing on the ground that it was not supported by just and reasonable cause”. 393 Mich at 633. Presumably the Court meant the teacher could argue at the tenure act hearing that, because his activity was protected by PERA, MCL 423.201 et seq.; MSA 17.455(1) et seq., the discharge was not for reasonable and just cause.
The same situation is before us now. Plaintiff could have defended against the discharge before the commission on the ground that, because the agency shop provision was illegal, his dismissal was not supported by just and reasonable cause.
We find, therefore, that the issue of the validity of plaintiff’s discharge has been decided by the State Tenure Commission and plaintiff cannot now claim that it was not for just and reasonable cause in a suit for breach of contract.
Of course, in order for collateral estoppel to apply the action must involve the same parties or their privies as were involved in the prior proceeding, Howell v Vito’s Trucking & Excavating Co, 386 Mich 37; 191 NW2d 313 (1971). There are two defendants in the instant case, the Saginaw Board of Education and the Saginaw Education Association. The association was apparently not a party at the tenure act hearing. However, because plaintiff concedes that any liability of the association in the instant suit is dependent upon board liability, we conclude it is appropriate that accelerated judgment be granted to both defendants.
Reversed. No costs, a public question being involved.
Cynar, P.J., concurred. | [
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D. C. Riley, J.
Defendant was jury convicted of delivery of heroin, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), and sentenced to a term of 7-1/2 to 20 years imprisonment.
The essential facts of the alleged crime are not in dispute. State Police Trooper Phillip Maddox testified that, at the time of defendant’s arrest, he was working undercover in the City of Port Huron. On December 15, 1975, at approximately 5 p.m., he met defendant in the Red Shingle Bar, and tried to arrange for the purchase of heroin. Defendant told the officer that he would meet him at room 9 of the nearby Serenade Motel. At that time, defendant received $50 from Maddox and instructed him to return to the bar. Shortly thereafter, Bates returned, led Maddox outside, and directed him to go to a post located in front of the bar. While defendant stood by, Maddox picked up a brown paper bag which contained five metal foil packets, later determined to contain heroin.
Following the officer’s testimony concerning the events of December 15, 1975, he further indicated, in response to questioning by the prosecutor, that he had a similar dealing with defendant on or about January 21, 1976. Over objection by defense counsel, the trial court ruled that evidence of the subsequent sale was admissible under the similar acts statute, MCL 768.27; MSA 28.1050, to show scheme, design or intent, and further cautioned the jury as to its limited admissibility.
Defendant testified in his own behalf, and denied any delivery of heroin. He admitted taking the $50 from Maddox at the Serenade Motel as a favor, but stated that a man named Allan Brown had actually been the supplier of the narcotics.
On appeal, defendant raises three issues which we consider in turn.
First, he contends that the trial judge erred in admitting evidence of the January 21, 1976, transaction.
Generally, evidence tending to show that a defendant has committed crimes or bad acts other than those charged is inadmissible because its probative value is outweighed by the likelihood of impermissible prejudice. People v Wilkins, 82 Mich App 260, 265; 266 NW2d 781 (1978), People v Gibson, 66 Mich App 531, 536; 239 NW2d 414 (1976). However, MCL 768.27; MSA 28.1050 provides a statutory exception to the rule:
"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
Similar acts may not be introduced unless the matter they tend to prove is disputed. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977), Wilkins, supra, at 268. Such matters are deemed disputed by a defendant, where, for example, he places them in issue by opening argument, cross-examination, or the presentation of affirmative evidence. Wilkens, supra, at 268-269. In the case at bar, defendant, by opening argument, and testimony that he took no part in the actual delivery, clearly put in issue the question of his intent to deliver.
However, Wilkins, supra, at 267-268, went on to catalogue an additional three-step analysis regarding the admission of similar acts:
"First, there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced. People v Davis, 343 Mich 348; 72 NW2d 269 (1955), McCormick, Evidence (2d ed), § 190.
"Second, there must be some special circumstances of the prior bad act which tend to prove one of the statutory items. People v Lundberg, supra [364 Mich 596; 111 NW2d 809 (1961)], People v Padgett, 306 Mich 545; 11 NW2d 235 (1943). For example, if a defendant were charged with robbery, another robbery committed by the defendant would not be admissible to prove intent merely because it also involved specific intent to rob. The law requires an additional showing that the facts or circumstances of the other bad acts are probative of the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system in committing the charged offense. See, People v Locke, 275 Mich 333; 266 NW 370 (1936), Slough and Knightly, Other Vices, Other Crimes, 41 Iowa L Rev 325 (1956). In the absence of such a connection, the evidence would be inadmissible.
"The third requirement is that the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of the defendant’s guilt of the charged offense. People v Oliphant, supra, [399 Mich 472; 250 NW2d 443 (1976)], People v Riddle, 322 Mich 199; 33 NW2d 759 (1948), People v Stander, 73 Mich App 617; 251 NW2d 258 (1977).” (Emphasis in original. Footnotes omitted.)
Applying the Wilkins criteria to the present case, the parties concede that there was substantial evidence that defendant actually delivered heroin to Officer Maddox on January 21, 1976.
With regard to the second element, the record offers striking similarities between the two heroin transactions in issue. Both incidents involved the illegal delivery of heroin in which both defendant and Officer Maddox were participants. Both involved the same motel and room number, and in each the delivery and subsequent pickup occurred at the Red Shingle Bar. The factual setting in each transaction was the same. Defendant’s acts were not spurious and unrelated, but differed only in time and quantity of heroin delivered.
Inasmuch as defendant admitted his participation in the actual delivery of January 21, 1976, the circumstances of that transaction are particularly probative of defendant’s scheme, plan, and system in committing the presently charged ojíense as they relate to the intent to deliver. Because intent to deliver is a statutory element of the instant crime, its materiality to a determination of defendant’s guilt is patent. Thus, Wilkins’ third requirement is also met.
Despite the satisfaction of these standards, it remains necessary to finally consider whether the probative value of the evidence outweighs the prejudicial effect. People v Oliphant, supra, at 489-490. Admission at trial depends upon, inter alia, the availability of other, less harmful sources of proof, the tendency of the evidence to inflame the jury, the potential for confusion of the issues, and the need for the proffered evidence to prove an element of the case. Oliphant, supra, People v Spillman, 399 Mich 313, 319-320; 249 NW2d 73 (1976), People v Wilkins, supra, at 270-271, People v Fisher, 77 Mich App 6, 11; 257 NW2d 250 (1977).
Looking to the present facts, we note in the record a paucity of other evidence from which to show defendant’s intent to commit the offense. Nor can we conclude that the evidence of the second transaction was unduly inflammatory, or that it was likely to confuse the issues in the trial. Intent was a clearly defined issue in the case, and the trial judge’s cautionary instruction meticulously limited the jury’s reflection of the challenged evidence to that question. We hold, therefore, on these facts, that the lower court did not abuse its discretion by admitting into evidence testimony regarding the second sale of heroin. See People v Jones, 83 Mich App 559, 567; 269 NW2d 224 (1978), People v McNeill, 81 Mich App 368, 378; 265 NW2d 334 (1978).
Defendant’s next allegation bears upon two provisions of the Controlled Substances Act, MCL 335.301 et seq.; MSA 18.1070(1) et seq.
Section 41(1) provides in pertinent part:
"Except as authorized by this act, it is unlawful for any person to manufacture, deliver or possess with intent to manufacture or deliver, a controlled substance.” MCL 335.341(1); MSA 18.1070(41X1).
Section 56(1) and (2) states that:
"(1) It is not necessary for the state to negate any exemption or exception in this act in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under this act. The burden of proof of any exemption or exception is upon the person claiming it.
"(2) In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under this act, he is presumed not to be the holder of the registration or form. The burden of proof is upon him to rebut the presumption.” MCL 335.356(1) and (2); MSA 18.1070(56X1) and (2).
Specifically, defendant asserts that, pursuant to § 41(1), lack of authorization to deliver is an ele ment of the crime which must be proven by the people; and that, under § 56(1) and (2), the burden of proof is, in violation of due process, unconstitutionally shifted to him.
Defendant’s first premise has been rejected by this Court in People v Bailey, 85 Mich App 594, 596-597; 272 NW2d 147 (1978), and People v Lyons, 70 Mich App 615, 618-619; 247 NW2d 314 (1976). See also People v Dean, 74 Mich App 19; 253 NW2d 344 (1977), lv den in part 401 Mich 841 (1977). The reliance placed upon People v Rios, 386 Mich 172, 178; 191 NW2d 297 (1971), and People v Stewart (On Rehearing), 400 Mich 540, 551; 256 NW2d 31 (1977), is misguided. Those decisions held that lack of a license was an element of the crime of sale of narcotics, but involved conviction under a differently worded statute than that at issue in the present case.
Nor, as a corollary, do we find that § 56 impermissibly shifts the burden of proof to defendant to establish a license in order to fit within an exception to the statute. In People v Henderson, 391 Mich 612; 218 NW2d 2 (1974), the Supreme Court construed MCL 750.227; MSA 28.424 which prohibits the carrying of a weapon in a vehicle "without a license to so carry”; and MCL 776.20; MSA 28.1274(1) which gives defendant the burden of establishing any applicable exemption. The Court held at 616:
"[W]e are persuaded that the crime defined by MCLA 750.227; MSA 28.424 as it concerns this case, has but one element. We are satisfied that the operative words of the statute as they pertain to this defendant are:
" '* * * any person who shall carry a pistol * * * in any vehicle operated or occupied by him * * * shall be guilty of a felony.’
"The language in the statute 'without a license so to carry said pistol as provided by law’ does not add an element to the crime, but simply acknowledges that a person may be authorized so to carry a pistol. This is of the essence of a license.
"A license is the permission by competent authority to do an act which, without such permission, would be illegal.
"Accordingly we hold that upon a showing that a defendant has carried a pistol in a vehicle operated or occupied by him, prima facie case of violation of the statute has been made out. Upon the establishment of such a prima facie case, the defendant has the burden of injecting the issue of license by offering some proof— not necessarily by official record—that he has been so licensed. The people thereupon are obliged to establish the contrary beyond a reasonable doubt.” (Emphasis supplied.)
In People v Dempster, 396 Mich 700; 242 NW2d 381 (1976), defendants alleged that the securities in question were exempt from the registration requirement and that their burden of proving an exemption, as required by statute, violated their constitutional right to be innocent until proven guilty. The Court responded that defendants’ exemption argument was in the nature of an affirmative defense, and reiterated the underscored reasoning of Henderson, supra. 396 Mich at 711-714.
Similarly, we hold, as have other panels of this Court, People v Bailey, supra, at 597-598, People v Dean, supra, at 27, see also People v Beatty, 78 Mich App 510, 514; 259 NW2d 892 (1977), that the evidential demands placed on defendant by § 56(1) and (2) are not constitutionally proscribed. The prosecution establishes a prima facie case by evidence linking defendant with each element of the crime of delivery of heroin. Upon defendant’s presentation of some competent evidence that he is authorized by license (a readily ascertainable fact particularly within his knowledge), the people must then prove to the contrary beyond a reasonable doubt.
Finally, defendant’s contention that the trial court committed reversible error when it instructed the jury on the use of defendant’s prior criminal convictions, where no such evidence was brought forth at trial, merits little discussion. The transcript reveals that defense counsel requested a limiting instruction on impeachment by previous felony conviction although the trial judge originally did not intend to so instruct the jury. Defendant was never impeached by his convictions at trial; defense counsel apparently believed the charge was necessary due to his own repeated references to defendant’s prior record during voir dire and opening statement. Invited errors occasioned by defense tactics may not, on appeal, be assigned as grounds for reversal. People v McDaniels, 38 Mich App 174, 177; 196 NW2d 25 (1972), lv den 387 Mich 787 (1972), People v Atkinson, 35 Mich App 338, 341; 192 NW2d 687 (1971), lv den 386 Mich 772 (1971).
Affirmed.
In his opening statement to the jury defense counsel stated that
"The real question I think in this case is going to be, whether or not what happened was actually a crime. * * * [T]he issue I think when everything is all boiled down here will be whether or not the role Mr. Bates played in this particular transaction is a crime.”
US Const, Am V; Const 1963, art 1, § 17.
"Any person not having a license under the provisions of Act No. 343 of the Public Acts of 1937, as amended, being sections 335.51 to 335.78, inclusive, of the Compiled Laws of 1948, who shall sell, manufacture, produce, administer, dispense or prescribe any narcotic drug shall be deemed guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for a term of not less than 20 years nor more than life.” MCL 335.152; MSA 18.1122, since repealed. | [
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Per Curiam.
Defendant Kenneth Clemons was arrested for the theft of complainant’s 1965 Plymouth automobile and, in connection therewith, was jury convicted of receiving and concealing stolen property over $100, MCL 750.535; MSA 28.803. Defendant was sentenced to 3 to 5 years imprisonment, appeals as of right, and raises five issues which we address in turn.
Defendant first maintains that the lower court reversibly erred in questioning defendant’s brother as to whether he would consider lying to save the defendant. The judge’s inquiries were met by defense counsel’s motion for mistrial, after which the court admitted error and subsequently gave two separate curative instructions to the jury.
A trial court may permissibly question a witness when it seeks to resolve an ambiguity in testimony or bring forth additional relevant information, People v Karmey, 86 Mich App 626, 636; 273 NW2d 503 (1978), People v John Moore, 78 Mich App 150, 155; 259 NW2d 403 (1977), lv den 402 Mich 950t (1978); however, in doing so it may not prejudice the rights of the defendant, People v Gray, 57 Mich App 289, 294; 225 NW2d 733 (1975), and if the questions are such as to indicate that the judge favors one side or another, he has invaded the province of the jury and committed reversible error. People v Gray, supra. Nevertheless, in certain circumstances, a proper cautionary instruction may serve to alleviate any prejudice to the defendant. People v Gray, supra, at 295, People v Withrow, 26 Mich App 679, 685-686; 182 NW2d 775 (1970), lv den 384 Mich 795 (1971).
Applying these principles to our review of the transcript, we conclude that the trial judge’s line of questioning, rather than clarifying an ambiguity or eliciting relevant information, conveyed to the jury the court’s disbelief of the testimony of the alibi witness. At the same time, however, we are convinced that the cautionary instructions, agreed to by defense counsel, as an appropriate remedy for curing the error, were sufficient to eradicáte the prejudicial impact of the court’s examination. The judge informed the jury that he was plainly mistaken in questioning the witness in such a manner. His remarks clearly delineated the roles of the court, trial counsel and jury, and warned the jury to disregard any questions posited by him, and the answers thereto. The jurors were further told that the court had no opinion as to defendant’s guilt, and that they should draw no such inference. As a final safeguard, the jury was polled by the trial judge and unanimously indicated that it could strike the question and answer from their minds. Under these circumstances we decline to reverse. In addition, any error, in view of the overwhelming evidence of guilt presented against defendant, would be harmless beyond a reasonable doubt. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972), People v Heard, 58 Mich App 312, 316; 227 NW2d 331 (1975), lv den 400 Mich 812 (1977).
Next, defendant argues that the prosecutor’s closing arguments unfairly denied him a fair trial. Defense counsel did not object to any of the remarks, nor request a curative instruction. Therefore, any error remains preserved for appeal only if it resulted in manifest injustice. MCL 769.26; MSA 28.1096, People v Duncan, 402 Mich 1, 15-16; 260 NW2d 58 (1977), People v William Clark, 68 Mich App 48, 51-52; 241 NW2d 756 (1976). We do not find that standard met in the case at bar. The arguments of the prosecutor were related to the evidence of the case and did not amount to an expression of personal opinion as to guilt. See People v Page, 63 Mich App 177, 179; 234 NW2d 440 (1975). Further, the prosecutor’s comments on the failure of defendant to produce more alibi witnesses, in view of the factual circumstances surrounding that defense, were within the boundaries of permissible observation. People v Shannon, 88 Mich App 138, 145; 276 NW2d 546 (1979), People v Ford, 59 Mich App 35, 39; 228 NW2d 533 (1975), People v Hooper, 50 Mich App 186, 196-197; 212 NW2d 786 (1973), lv den 391 Mich 808 (1974).
Defendant also raised the possibility of instructional error by the court’s failure to include in its charge to the jury paragraph four of Criminal Jury Instruction 7:2:01, which states that, in the case of an alibi defense, "[i]f you have a reasonable doubt whether the defendant was present at the time and place of the crime charged, then you must find him not guilty”. Again, no exception was proffered as required to save the issue for appellate review, GCR 1963, 516.2, People v Haney, 86 Mich App 311, 318; 272 NW2d 640 (1978), People v Sherman Hall, 77 Mich App 456, 462; 258 NW2d 517 (1977), and the record fails to support a finding of manifest injustice. Although we find error, People v John Johnson, 58 Mich App 60; 227 NW2d 228 (1975), People v William Johnson, 54 Mich App 678; 221 NW2d 452 (1974), People v Erb, 48 Mich App 622; 211 NW2d 51 (1973), see also People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978) (D. C. Riley, J., dissenting/concurring), we nevertheless conclude that it was harmless. As previously noted, the evidence against defendant was considerable.
The penultimate issue offered for review questions whether a defendant has a right to be sentenced by the same judge who conducted his trial. Michigan case law uniformly rejects this contention, holding that a defendant has no constitutional right, nor one provided by statute or court rule, to demand that the trial judge preside at his sentencing. People v McKinley, 5 Mich App 230, 235-237; 146 NW2d 142 (1966), lv den 378 Mich 750 (1967), People v Blair, 11 Mich App 649, 651; 162 NW2d 112 (1968). Cf., People v Collins, 25 Mich App 609, 613; 181 NW2d 601 (1970). In addition, both People v McKinley, supra, at 237 and People v Blair, supra, at 651, held that such a right, if existing at all, would be personal to defendant, and subject to waiver by failure to object at the time of sentencing. Here, defendant’s failure to object relinquished any predication of error.
Lastly, defendant alleges that insufficient evidence was produced to establish the value of the stolen automobile, and that the court erred in instructing the jury regarding said value. We disagree. At trial, complainant testified that he had bought the car for $950, had installed a new motor, and would not accept less than $250 for it, which figure also represented his estimate of the vehicle’s worth on the day it was stolen. Furthermore, he stated that the auto was in good running condition (also evidenced by defendant’s capture after a high speed chase) and that the body had not rusted out. The police testified that it was still running upon its return to the owner.
An owner of personal property is qualified to testify regarding the value of such property, Kavanagh v St Paul Fire & Marine Ins Co, 244 Mich 391, 394; 221 NW 119 (1928), Printz v People, 42 Mich 144; 3 NW 306 (1879), Duma v Janni, 26 Mich App 445, 452; 182 NW2d 596 (1970), provided it does not relate to sentimental or personal value. People v Tillman, 59 Mich App 768, 771-772; 229 NW2d 922 (1975). Complainant’s testimony in the present case was circumstantial evidence of the automobile’s value, and as such was sufficient to form a jury question. As there was no objection or request for instruction, defendant’s claim that the court erroneously charged the jury regarding the market value of the property was not properly preserved for review. GCR 1963, 516.2, People v Haney, supra.
Affirmed.
The dissent in People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978), is distinguishable where, in view of the testimony presented, the unobjected-to error could not be considered harmless beyond a reasonable doubt.
We also note that the strength of defendant’s alibi was questionable. Witnesses testified to his presence at a barbecue held at his mother’s house until about 6 p.m. on the day in question, at which time he left the premises. Defendant was observed driving the stolen vehicle shortly before 7 p.m. | [
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Fellows, J.
This bill is filed to restrain the maintenance in a residential district of a pesthouse, or as it is sometimes denominated in the record, a detention hospital for the treatment of infectious diseases. The case was heard and an opinion filed in the court below directing the dismissal of the bill prior to the handing down of the opinions of this court in Barth v. Hospital Ass’n, 196 Mich. 642, and Saier v. Joy, 198 Mich. 295 (L. R. A. 1918A, 825). The decree not having been entered, a reargument of the case was had and a further opinion was filed in which it was recognized that these cases were controlling of the instant case, were it not for the fact that these cases deal with rights between individuals, while in the instant case the defendant is acting under certain charter provisions of the city of Lansing, which not only authorize but make it the duty of defendant board of health to locate and maintain such an institution; and it was the opinion of the trial judge that such provisions justified and authorized the board to select the present site and there maintain the institution in the absence of arbitrary action in so selecting it, which was not found to exist here. The bill was accordingly dismissed.
In this court it is not seriously urged, cannot be, that the cases cited do not control this case unless a different rule should obtain where the institution is located and maintained by a public board of health. We held in these cases that while the institutions in volved were not nuisances per se, they became such by reason of their location in a residential district. We recognized that there might be no actual danger if properly conducted, but that their maintenance in close proximity to the home would create such dread and fear in the mind of the normal person as—
“would destroy the comfort, the well-being and the property rights of the plaintiffs,”
— depressing the mind and lowering the vitality of the normal person, rendering one more susceptible to disease, and reducing the value of the property so situated; and in each of the cases this court decreed injunctive relief. In the instant case there is much testimony tending to show that a pesthouse may be so conducted, and well-regulated ones are, as to cause no actual danger to nearby residents.. But substantially all the experts who testify to this effect agree that their opinion is not shared by the general public, and that the normal person has a horror and dread of a pesthouse, and a fear of infection from proximity to it.
It must be borne in mind that we are not here dealing with the question of immunity of a municipality from an action for damages when in the discharge of a State agency, as was the case of Nicholson v. City of Detroit, 129 Mich. 246 (56 L. R. A. 601), nor with a contest between two municipalities as to the location of a pesthouse as was Township of Summit v. City of Jackson, 154 Mich. 87 (18 L. R. A. [N. S.] 260). Here the question involved is the protection of private rights by injunction against a public board authorized and required by the charter to perform certain duties. Nor are we dealing with an emergency caused by epidemic of an infectious disease. The detention hospital, or pesthouse, here involved is permanent in character and the injury caused continuous The charter provisions, so far as important here, are as follows:
“The said board of health has hereby conferred upon it, and may exercise all the powers and authority vested in health boards and health officers by the general laws of the State. * * *
“The said board of health shall have power, and it shall be its duty, to take such measures as shall be deemed effectual to prevent the entrance of any pestilential disease into the city; * * * to establish, maintain and regulate a pesthouse or hospital'at some place within the city or not exceeding three miles beyond its bounds. * * *
“And from time to time to do all acts, make all regulations, and pass all resolutions, which it shall deem necessary or expedient for the preservation of health, and the suppression of disease in the city, and to carry into effect and execute the powers hereby granted.” Lansing Charter 1913, §§ 288, 294.
On behalf of defendant board of health it is insisted that under these provisions it is a State agency, vested with large discretionary powers; that in the exercise of an honest judgment it selected the site in-question and that its decision is final and may not be reviewed by the judicial branch of the government, except in case of a clear abuse of that discretion. On the other hand it is urged that the discretion of the board is limited to the selection of a lawful site, one where the institution will not by reason of its location be a nuisance; that it may not under the power conferred inflict injury upon the individual or invade private rights. Upon this subject the authorities are not in accord.
A leading case on. the subject is Mayor, etc., of Baltimore v. Improvement Co., 87 Md. 352 (40 L. R. A. 494, 67 Am. St. Rep. 344, 39 Atl. 1081). This was a case brought by the owner of adjoining lands to. restrain the public officials from the use of premises owned by the city for the detention of a leprosy pa tient. The defense as here was that the officials were maintaining the pesthouse under plenary power conferred by the State. The court said:
“However broad, therefore, may be the powers of a municipality to erect and maintain hospitals and pesthouses for the segregation and treatment of contagious and infectious diseases, and however necessary their exercise may be, they must, generally speaking, be exerted and put into operation subject to the no less well-defined right of the individual to possess and enjoy his unoffending property without the molestation of a nuisance. It cannot be pretended that the city authorities could, even under their comprehensive powers, locate a pesthouse in the midst of a thickly settled community. * * *
“The mere power to erect and maintain hospitals and pesthouses does not imply or include the further power to erect and maintain them in such a way or at such a place as will cause injury to others. * * *
“Assuming at this point that leprosy is a contagious disease which is a menace to the health of a community, and assuming also that the mayor and city council through its health department were about to utilize this 20-acre tract of land for the first time for the erection of a pest house thereon for the reception of this particular patient, there can, in view of the legal principles just discussed, and in the light of the facts to which allusion has been made, be no doubt as to right of the Fairfield Improvement Company to invoke the restraining aid of a court of equity to prevent the establishment of such a nuisance.”
In the case of Thompson v. Kimbrough, 23 Tex. Civ. App. 350 (57 S. W. 328), an action was brought by the officers of a school district to restrain the maintenance of a pesthouse in proximity to the school building. The defendants made the contention as here that the decision of the health authorities, there the commissioners’ court and health officer, as to the location of the pesthouse was final. The court thus stated the claim:
“The further contention is made, that the law invests the commissioners’ court, in connection with the county health officer, with exclusive and final jurisdiction in the matter of establishing and maintaining pest houses and detention camps to prevent the spread of smallpox and other infectious and contagious diseases, and that the exercise of this jurisdiction is not subject to review by any judicial tribunal.”
After considering the statutory provisions involved, the court said:
“The authority of the commissioners’ court to proclaim quarantine, and to have it established, maintained, and enforced through the county physician, is not brought in question by this suit. It may, and perhaps should be, admitted that the exercise of that authority is not subject to review by judicial tribunals; but it does not necessarily follow that all the acts of the officers and agents of the county in relation to the subject-matter are beyond the reach of judicial authority. The authority of such court to proclaim and cause the enforcement of quarantine does not carry with it the arbitrary power in the officers and agents of the county to unnecessarily violate the rights of others. The existence of such authority does not imply that the officers and agents of the county may establish and maintain a nuisance, either public or private, not necessary to the end to be accomplished.”
The language of Lord Watson in the case of Metropolitan Asylum Dist. v. Hill, L. R. 6 App. Cas. 193, 212, decided by the house of lords, is quite persuasive as bearing upon the construction to be given the language here under consideration. He said:
“And I am disposed to hold that if the legislature, without specifying either plan or site, were to prescribe by statute that a public body shall, within certain defined limits, provide hospital accommodation for a class or classes of persons labouring under infectious disease, no injunction could issue against the use of an hospital established in pursuance of the act, provided that it were either apparent or proved to the satisfaction of the court that the directions of the act could not be complied with at all, without creating a nuisance. In that case, the necessary result of that which they have directed to be done must presumably have been in the view of the legislature at the time when the act was passed.
“On the other hand, I do not think that the legislature can be held to have sanctioned that which is a nuisance at common law, except in the case where it has authorized a certain use of a specific building in a specified position, which cannot be so used without occasioning nuisance, or in the case where the particular plan or locality not being prescribed, it has imperatively directed that a building shall be provided within a certain area and so used, it being an obvious or established fact that nuisance must be the result. In the latter case the onus of proving that the creation of a nuisance will be the inevitable result of carrying out the directions of the legislature, lies upon the persons seeking to justify the nuisance. Their justification depends upon their making good these two propositions — in the first place,. that such are the imperative orders of the legislature; and in the second place, that they cannot possibly obey those orders without infringing private rights. If the order of the legislature can be implemented without nuisance, they cannot, in my opinion, plead the protection of the statute; and, on the other hand, it is insufficient for their protection that what is contemplated by the statute cannot be done without nuisance, unless they are also able to shew that the legislature has directed it to be done. Where the terms of the statute are not imperative, but permissive, when it is left to the discretion of the persons empowered to determine whether the general powers committed to them shall be put into execution or not, I think the fair inference is that the legislature intended that discretion to be exercised in strict conformity with private rights, and did not intend to confer license to commit nuisance in any place which might be selected for the purpose.”
The following authorities will be found instructive on the questions involved in this case: Cherry v. Williams, 147 N. C. 452 (61 S. E. 267, 125 Am. St. Rep. 566, 15 Ann. Cas. 715); Kestner v. Homeopathic Hospital, 245 Pa. 326 (52 L. R. A. [N. S.] 1032, Ann. Cas. 1916A, 123, 91 Atl. 659); Anable v. Board of Com’rs of Montgomery Co., 34 Ind. App. 72 (71 N. E. 272, 107 Am. St. Rep. 173); Everett v. Paschall, 61 Wash. 47 (31 L. R. A. [N. S.] 827, 111 Pac. 879, Ann. Cas. 1912B, 1128); Stotler v. Rochelle, 83 Kan. 86 (29 L. R. A. [N. S.] 49, 109 Pac. 788); Harper v. City of Milwaukee, 30 Wis. 365; Gilford v. Babies’ Hospital, 21 Abb. New Cas. 159 (1 N. Y. Supp. 448).
But we think plaintiffs’ contention finds support in the former adjudications of this court. In Pennoyer v. City of Saginaw, 8 Mich. 534, this court held a municipality liable for the continuance of a nuisance created by it. In Cubit v. O’Dett, 51 Mich. 347, it was said:
“The highway overseer no doubt has a discretion in deciding how and where he will expend highway labor; but it is a discretion limited by the rights of individuals, and when he invades those rights, he becomes liable.”
In the recent case of Attorney General v. City of Grand Rapids, 175 Mich. 503 (50 L. R. A. [N. S.] 473, Ann. Cas. 1915A, 968), this court, reversing the-decree of the court below, found that the defendant: by emptying sewage into the Grand River created a-nuisance to lower riparian owners and the public, and: entered a decree for injunction as prayed in the bill..This court there quoted with approval from the case of Spokes v. Board of Health, L. R. 1 Eq. 42, the following:
“What difference can it possibly make as to the commission of an illegal act, whether a man acts on behalf of thousands or on behalf of himself only?”
The case much relied upon by the trial judge in. reaching the conclusion he did was Upjohn v. Richland Township, 46 Mich. 542 (39 Am. Rep. 16, note). That case like this was an equity case, which this court considers de novo, but its facts were materially different. The claimed nuisance there was a cemetery. The defendant sought to increase the size of its cemetery by the use of additional grounds across the road from the original grounds. There was some doubt as to whether there was as much contemplated danger from such addition as from a nuisance the complainant was maintaining on his own land.. But in that case the complaining party had purchased his premises after the original cemetery was established. If the cemetery was a nuisance, he had gone to the nuisance. Here the nuisance has been brought to the complaining parties. But in that case, while this court recognized the broad discretion vested in boards of health, it at the same time recognized the power of the court of equity to enjoin injury to private rights by them.
We conclude that the provisions of the charter under consideration do not vest in the defendant board of health the power to locate a pesthouse in a thickly-settled, residential district, where, by reason of its location, it would be a nuisance, and where its permanent maintenance would work continuing damage to adjoining and nearby property and would result in the destruction of the home in its comfort and well-being ; and that the discretion lodged in the board is a discretion to be exercised by it in determining between different lawful locations.
It follows from what has been said that the decree of the court below must be reversed and one here entered in conformity with the prayer of the bill. Plaintiffs will recover costs of both courts.
Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. Ostrander, C. J., did not sit. | [
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Fellows, J.
(after stating the facts). As the board has found that the deceased was injured as stated by him at various times after the accident, and as much of this hearsay testimony is quoted at length in the opinion, and as the board has expressly held that at least some of it was admissible, we will first consider the question of whether statements of the deceased as to how the accident happened, made after the happening of the event, are admissible.
In the case of Reck v. Whittlesberger, 181 Mich. 463, we had the question of hearsay evidence before us and it was there said:
“The rule against hearsay evidence is more than a mere artificial technicality of law. It is founded on the experience, common knowledge, and. common conduct of mankind. Its principles are generally understood and acted upon in any important business transaction or serious affair in life. In such matters men refuse to rely on rumor or what some one has heard others say, and demand the information at first hand.”
And we there approved the following language from Boyd on Workmen’s Compensation, p. 1123:
“The statements made by an injured man as to his bodily or mental feelings are admissible, but those made as to the cause of his illness are not to be received in evidence. The rule applies to statements made by a deceased workman to a fellow workman as to the cause of his injury.”
In addition to the authorities there cited, see Langley v. Reeve, 3 B. W. C. C. 175; Amys v. Barton, 5 B. W. C. C. 117; Wolsey v. Pethick Bros., 1 B. W. C. C. 411; Carroll v. Knickerbocker Ice Co., 218 N. Y. 435 (113 N. E. 507); Chicago, etc., R. Co. v. Industrial Board of Illinois, 274 Ill. 336 (113 N. E. 629). In the last cited case it was said:
“Declarations made by one injured, to his attending physician, are admissible in evidence when they relate to the part of his body injured, his suffering, symptoms, and the like, but not if they relate to the cause of the injury. (Citing authorities.) This rule is even more rigorously enforced as applied to lay witnesses.”
The statements made by deceased to his family as to the accident he suffered were made at a place some distance away, several hours thereafter, were but the narration of past events, and were not a part of the res gestae. Merkle v. Township of Bennington, 58 Mich. 156; Dundas v. City of Lansing, 75 Mich. 499; Jones v. Village of Portland, 88 Mich. 598.
The board held that the statements of deceased made to Dr. McDonnell as to the happening of the accident were competent evidence and bound the defendant. They were put into the case not for the purpose of showing notice of the injury, but as substantive evidence of the facts of the injury. It is argued in support of this holding that Dr. McDonnell was the agent of the defendant, made a report to the company, which however is not in the record, and therefore not before us; and that decedent’s claim as to how the accident happened is evidence that it did so happen, and Reck v. Whittlesberger, supra, and Fitzgerald v. Lozier Motor Co., 187 Mich. 660, are cited to support this holding. In the instant case Dr. McDonnell was not a regularly retained physician of the defendant. He and other doctors were called to treat employees of defendant as occasion might arise; he was called upon to administer to employees,- but not to represent the defendant in any way. It is apparent that the board has misconceived the holding of this court in these two cases. In the Reck Case, the employer reported to the board the cause and manner of the accident being that deceased was throwing wood in the furnace and a nail inflicted a gash in his hand. We there said:
“We think that such reports .from the employer, where all sources of information are at his command when the reports are made, and he has had ample opportunity to satisfy himself of the facts, can properly be taken as an admission, and, at least, as prima facie evidence that such accident and injury occurred as reported.”
It must be patent that the employer or the officer of a manufacturing company, who makes the report to the board, rarely, if ever, witnesses the accident. He obtains his information from others. It comes to him second hand. If, after making his investigation, he concludes that the accident happened in a certain way and so reports, it may be regarded as an admis sion, and therefore, some evidence before the board for its consideration. This was the situation in the Reck Case and this was the holding.
In the Fitzgerald Case, the foreman, whose duty it was to report accidents to his superior, reported that deceased scratched his right hand on manifold on top of the thumb joint. He had received his information from the injured employee. But he was the authorized agent of the company to investigate and make such report; by adopting the claim of the employee as his own report and version of the accident, the employee’s claim became and was his report. Following the Reck Case, it was held receivable as an admission and together with other evidence was held to be sufficient to support the finding.
These two cases hold that where the employer or his authorized agent, whose duty it is to make report of accidents, who have the opportunity to investigate, makes a report as to the accident, such report is receivable as an admission, and as an admission may be sufficient to establish a prima facie case. It is unimportant how the employer procures his information. It may all be hearsay. It may come through several hands, from different sources; but when he or his authorized agent reports that the accident happened in a certain way, the report stating that it happened in that way is an admission and receivable as such. These cases go no farther. They do not make the claim of the injured employee as to how the accident happened evidence of the facts. It is only by the adoption of that claim by the employer or his authorized agent that it becomes an admission and receivable as such. In the instant case we have no such report, nor was Dr. McDonnell the agent of defendant for the purpose of making such report. The board was in error in holding that such hearsay evidence was receivable as competent evidence of the facts.
But we should not reverse the case for the admission of incompetent hearsay evidence. If there is competent evidence to sustain the finding, the case should be affirmed. Reck v. Whittlesberger, supra. In the consideration of these cases the rules which govern are well recognized. The burden of establishing a claim for compensation rests on those seeking the award. They are not required to establish their case by positive, direct evidence; in many cases that would be impossible; they may prove their case by circumstantial evidence as other cases are established. The board is the trier of the facts, and weighs and measures the conflicting testimony, medical as well as lay. Deem v. Kalamazoo Paper Co., 189 Mich. 665; Perdew v. Nufer Cedar Co., 201 Mich. 520. It is the province of the board to draw the legitimate inferences from the established facts and to weigh the probabilities from such established facts. Wilson v. Phœnix Furniture Co., 201 Mich. 531. But the inferences drawn must be from established facts; inference may not be built upon inference, possibilities upon possibilities, or inferences drawn contrary to the established facts, contrary to the undisputed evidence. If an inference favorable to the applicant can only be arrived at by conjecture or speculation the applicant may not recover. So if there are two or more inferences equally consistent with the facts, arising out of the established facts, the applicant must fail. McCoy v. Michigan Screw Co., 180 Mich. 454; Draper v. Regents of University, 195 Mich. 449; Albaugh-Dover Co. v. Industrial Board, 278 Ill. 179 (115 N. E. 834); Curran v. Newark Gear Co., 37 N. J. L. J. 21; Savoy Hotel Co. v. Industrial Board, 279 Ill. 329 (116 N. E. 712); Sanderson’s Case, 224 Mass. 558 (113 N. E. 355); Carroll v. Knickerbocker Ice Co., supra; Burwash v. F. Leyland & Co., 5 B. W. C. C. 663.
In the instant case the only witness produced who saw the accident on June 6th testified that the only-part of the body of deceased struck by the box was his toes. There is nothing inconsistent or .improbable about his testimony. It is in no way discredited save by the statements of the deceased, which were hearsay and improperly received in evidence. It is undisputed upon this record. No other witness testified in conflict with it, and the established facts are not inconsistent with it. Nor is the opinion evidence of the doctors inconsistent with it. As we have stated they were not out of accord. Their testimony clearly puts the cause of death without the pale of inferences and within the sphere of speculation and conjecture. Short excerpts from the testimony of both demonstrate this. Dr. Allen, plaintiff’s witness, in answer to questions propounded by her counsel, testified:
“Q. I wish to ask, Doctor, if this man had told you nothing, and you had seen him in the condition he was in the first time that you saw him, and saw him in the condition the second time that you saw him, and examined him and found he was otherwise normal, and knew only these facts, what would your opinion have been as to the cause of that condition?
“A. I would naturally have to state that it was possibly an infectious thing father than a traumatic thrombosis.
“Q. Could you have determined one way or the other?
“A. No. Absolutely no difference. It does not make any difference whether you get your inflammation from a blow to start with or whether you get it from the infection, the pathological process is identical.”
Dr. McDonnell, defendant’s witness, testified:
“Q. Then what did cause the thrombus at that particular location?
“A. That is impossible to say. That is impossible for any doctor to state; it may have been so many different things.”
We therefore conclude that the testimony of the statements of the deceased as to the happening of an accident to his thigh was hearsay; that it should not have been received or considered; that without it there is no evidence in the record in conflict with the testimony of the witness Trzienski; that there is no competent evidence to sustain the findings of the board and that the award should be vacated.
Ostrander, C. J., and Steere, Brooke, and Stone, JJ., concurred with Fellows, J. | [
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Steere, J.
Supplemental to a decree of the Wayne county circuit court in chancery rendered on petition of the auditor general for sale of lands delinquent for taxes in the year 1907, the Triangle Land Company filed this petition in the circuit court of Wayne county under sections 72 and 137 of the general tax law (sections 4069 and 4135, 1 Comp. Laws 1915), for a writ of assistance to obtain possession of a piece of land sold pursuant to such decree, located on South Lafayette boulevard, Detroit, described as lot 3 and the westerly one-half of lot 2 in block 55, Woodbridge Farm addition, as divided by commissioners in partition in 1864. The petition was denied by the trial court and appeal taken by plaintiff to this court for review.
The land in question was sold for delinquent taxes of both the years 1907 and 1908. It is conceded that the property was not subject to taxation in 1908 and the deed given by the auditor general on the sale for that year is invalid, as a deed. The facts are undisputed and have been fully stipulated by counsel. Concisely stated, so far as material here they are as follows : Prior to May 22, 1907, the property in question belonged to Maud Spencer Ledyard and Elizabeth Cass Goddard to whom it was assessed for taxes in the year 1907, the assessment roll being finally reviewed and confirmed by the common council of the city of Detroit on May 2, 1907. On May 22, 1907, it was purchased by the city of Detroit from the above named owners who conveyed it to the city by a properly executed warranty deed of that date, which was recorded in the office of the register of deeds of Wayne county on July 20, 1908. The city took possession immediately following the purchase and by its board of fire commissioners erected a building upon the premises during that year at a cost of about $20,000, for the accommodation of ladder company No. 12 of its fire department, and has since continued to occupy and use the property for that purpose.
The State and county taxes of the year 1907 assessed against said land remained unpaid and were returned delinquent by the county treasurer of Wayne county to the auditor general of the State in the regular course of proceedings under the tax law. In manner and time prescribed by statute steps were taken by the auditor general to foreclose the lien of the State for delinquent taxes of 1907 and said land was included in his petition filed in the chancery court of Wayne county for decree of foreclosure and sale of lands delinquent for taxes for that year. Pursuant to a decree rendered upon such petition the delinquent lands of 1907 were sold at the annual tax sale of May, 1910, and this property was bid in by the State. Lot 3 was thereafter purchased from the State by Lillie B. DeCámp and the west half of lot 2 by the Triangle Land Co., appellant herein. Tax deeds were subsequently issued by the auditor general to each of them for the description purchased. The statutory notice of tax purchase and conditional right of owner to reconveyance was served by plaintiff on the city of Detroit, as the last owner in the recorded chain of title and occupant of the land, on January 16, 1912, and return of personal service by the sheriff was duly filed with the clerk of Wayne county. Lillie B. DeCamp had served such notice of her tax purchase on November 7, 1911, followed by filing the sheriff’s return of personal service:
The common council of the city of Detroit at its session held on the 9th day of August, A. D. 1910, passed a resolution purporting to cancel the taxes assessed on said premises for the years of 1907 and 1908. The taxes were never repaid out of the contingent fund, no deposit was ever made by the city of Detroit with the register in chancery of Wayne county, or tender made to the owners of the tax deeds, nor attempt made in any manner to redeem and secure reconveyance. Over six months after filing with the county clerk proof of service of her notice upon said city, Lillie B. DeCamp deeded lot 3 to plaintiff. Over six months after both of these notices had been served upon the city and filed with the county clerk, and after lot 3 had been deeded to it by Lillie B. DeCamp, plaintiff made proper demand for possession of said premises, which was refused, and notice was then given that if such demand was not complied with proceedings would subsequently be commenced to obtain possession. ' In time thereafter to protect its rights against the applicable five years’ statute of limitations plaintiff filed this petition.
It cannot be seriously questioned that upon their face all steps taken by the auditor general to foreclose the State’s lien, if any existed, and by plaintiff to per- feet its tax title by notice, etc., are in compliance with requirements of applicable provisions of the general tax law: chapter 83,1 Comp. Laws 1915, beginning on page 1500. Defendant’s position is that the land was not subject to taxation, that the State had no lien thereon for delinquent taxes to enforce and all proceedings to that end were idle, and of no validity.-
The trial court was of opinion that upon this petition and answer it was proper to and the court should “open for reconsideration and adjustment” the original decree rendered on petition of the auditor general directing sale of lands for the State and county general taxes for the year 1907, and being “satisfied that the decree would have been denied,” as to the land in question, had the court been advised of the facts as shown in this proceeding, the court accordingly “adjudged and decreed that the original decree heretofore filed and entered herein on April 23, 1910, in so far as it relates to the order to sell the particular property in question herein, is annulled, set aside and held for naught, * * * That a sale of said lands for State and county taxes assessed thereon for the year 1907 be and the same hereby is denied,” etc., concluding by declaring plaintiff’s tax deeds void and its petition dismissed. Whatever may be said of the method by which the result was reached, plaintiff’s petition can be said to have been denied on the indicated ground that the land was not subject to taxation for 1907 because owned by a municipality and devoted to a public purpose during a portion of that year; which is the ground urged by defendant here and was open to consideration there on plaintiff’s petition and defendant’s answer.
It is plaintiff’s contention that this question is foreclosed in its favor by the rule stated in Public Schools of City of Iron Mountain v. O’Connor, 143 Mich. 35, which has been accepted as the settled law upon that proposition, and since followed by assessing officers and State departments in assessment and cancellation of taxes. In that case the school board of Iron Mountain filed its petition against the tax title owner and auditor general of the State to set aside a sale of land delinquent for taxes for the year 1901, which it had purchased for school purposes on July 1st of that year and claimed was exempt from taxation, alleging that it had no knowledge of the levy of the tax or sale of the land for taxes until shortly before filing its petition. The land was assessable when the supervisor listed it upon his assessment roll in April, and when the board of review passed upon and approved the roll in May, 1901. The petition was denied because the land, having become liable, the taxes of that year so remained, although subsequently acquired for a purpose rendering it exempt, the court saying in part:
“There must be some definite period when the purchaser, whose property is generally exempt, must purchase it subject to the tax levied or to be levied thereon. It seems reasonable to hold that that time is when by law there is no power to correct the roll by adding property to or taking any from it.”
Of this it is urged by counsel for defendant that the common council of Detroit, under special provision of its city charter, does have power to correct the roll and vacate any assessment or tax levy on property located within the city whenever it appears the same is unjust or illegal, which it did in this case by its resolution of August 9, 1910, canceling the taxes assessed on said premises for the years 1907 and 1908, acting under authority of consecutive section 199 of the Detroit city charter of 1914-16, p. 134 (section 63 of chapter 7), which provides:
“The said common council shall also have power, when it shall appear that any tax or assessment is unjust, or is based upon any property not owned by the person to whom it is assessed, by a two-thirds vote of all the members elect, to repay the same out of the contingent fund, if collected, or if not collected, to vacate the assessment in whole or in part, in the manner and with like effect as is provided for in cases of illegal taxes and assessments in this chapter.”
This chapter (No. 7 of the charter) provides how the common council shall be constituted and defines its powers and duties relative to municipal affairs, including various local improvements to be paid for by taxation, which the council is authorized to provide by specified proceedings. Following a section devoted to construction of sidewalks and manner of levying and collecting taxes to defray the necessary cost of the same, section 58 of the chapter authorizes the common council to—
“provide and ordain by ordinance, that whenever it shall appear that any taxes or assessments have been illegally assessed or collected, the common council may, by a vote of two-thirds Of all members elected, direct and cause the amount so collected to be refunded out of the contingent fund, or in case it has not been collected, to vacate the assessment, and fix upon an amount, to be received in full of such tax or assessment, and no such action on the part of the council, under such ordinance, shall in any way affect or invalidate any other tax or assessment assessed, levied or collected in said city.”
Whether it appeared to the council that those taxes were unjust, or when assessed were based upon property not owned by the person to whom it was assessed, over three years before this resolution was adopted, is not disclosed; but they are shown to have been spread on an assessment roll passed upon and approved by the common council acting as a board of review, and, in the regular course of proceedings which the city itself had initiated, this land was returned delinquent for taxes, had been regularly advertised, offered at the annual tax sale and bid in by the State for such delinquent taxes at the time this resolution was passed. The State purchased the land and held it in like manner as an individual. A State tax bid transferred to a private purchaser is in his hands in all respects like a title bid off by himself originally. Section 4082, 1 Comp. Laws 1915; Auditor General v. Board of Sup'rs of Monroe Co., 36 Mich. 70; Haney v. Miller, 154 Mich. 337. In any aspect of the question the delinquent tax had passed into the hands of the State authorities, the common council had no further control over these tax proceedings at that time and the resolution purporting to cancel those State and county taxes was of no validity.
It is further claimed that plaintiff’s tax deeds are void under the ruling of this court in Graham v. City of Detroit, 174 Mich. 538 (44 L. R. A. [N. S.] 836), because they cover lands which had been acquired by the municipality and were in use for a public purpose before they had been purchased for delinquent taxes from the State. The Graham Case was an action in ejectment against the city for a portion of a public street, the easements for which had been acquired for highway purposes by condemnation proceedings. Defendant had given notice under its plea of the general issue that it did not own or claim to own the lands in question, and asserted they were in use as part of a highway for public travel under an easement acquired for that purpose, and the right of the public to so use them could not be determined in ejectment. It was held that the municipality neither owned the easements nor held the property in exclusive possession, the court saying:
“The easement in the lands in question for the purposes of public travel belonged to the State at the time it purchased such lands at the tax sales. A municipality in its control of these highways acts for the State, and has no right to the possession or use of these easements other than the public generally. It takes the burden of maintaining such easements fit for public travel. Lynch v. Town of Rutland, 66 Vt. 573 (29 Atl. 1015). These easements belong to the State, and were in use as public highways at the time they were bid in to the State for delinquent taxes.”
And it was held the auditor general could not issue deeds in the name of the State for lands in which the State had then acquired easements for public use as a part of its highways devoted to public travel.
The obstacle to applying that rule in the instant case is that the State had no- right, title, easement, or interest in, or control over, these lands. The city had bought them from private owners for municipal purposes, and was not acting for the State in its exclusive possession and control of the property for a municipal purpose. To hold that the city was acting as an agent of the State in the ownership and control of property devoted exclusively to one of its local municipal activities would be to overturn the doctrine for which cities have strenuously and successfully contended under the eegis of home rule and right of local self-government since early in the history of the State. Education and highways for the use of the people of the State at large are held to be matters of general State concern and control, while the fire departments and other purely local functions of municipalities are not. The distinction is pointed out and the rule well settled in City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78); People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103); Board of Park Commissioners v. Detroit Common Council, 28 Mich. 228 (15 Am. Rep. 202); Town of Milwaukee v. City of Milwaukee, 12 Wis. 93; Davidson v. Hine, 151 Mich. 294 (15 L. R. A. [N. S.] 575, 123 Am. St. Rep. 267, 14 Ann. Cas 352); Simpson v. Paddock, 195 Mich. 581, and cases there cited.
So far as the city’s rights under the sale of these lands for delinquent State and county taxes is concerned, there is no legal distinction in this controversy between defendant and any other negligent owner. The published notice of the auditor general’s petition,.order of hearing, etc., were, under the law, equivalent to a personal service upon it of notice of all proceedings in and by order of the chancery court leading up to and including the public sale of these lands at the annual tax sale for that year. The abortive attempt of the common council to wipe out those State and county delinquent taxes, which were beyond its control, but indicates it had actual notice as early as August 9, 1910. The lands could then have been redeemed and the whole matter adjusted by simply paying the tax of 1907 to the county treasurer, and applying to the auditor general for cancellation of those of 1908. In the prescribed course of proceedings when taxes are returned delinquent, as done by the county treasurer in this case, the property was sold to satisfy the taxes and deeds therefor given. The matter was again called to the attention of the city by personal notice of the outstanding tax titles and of its right to redeem and obtain reconveyance on payment of the taxes and prescribed penalty within six months as the law provides. This added provision in the law for collecting the revenue of the State was passed for the benefit of the defaulting taxpayer. Following all prior demands, opportunities and legal proceedings to induce payment, it again offers him relief “by giving him a last chance to save his land, it apparently being thought that, by requiring notice and giving an opportunity to repurchase, there would be little excuse for an owner losing his land through inattention.” Haney v. Miller, 154 Mich. 338. The provisions of the tax law as to the rights and duties of the respective parties in interest after a valid tax sale have been fully discussed and construed in the following cases, and oth ers to which they refer: Ball v. Ridge Copper Co., 118 Mich. 7; Gustin v. Fitzpatrick, 182 Mich. 640; Huron Land Co. v. Manufacturing Co., 183 Mich. 45; Rousseau v. Riihiniemi, 186 Mich. 653, and Haney v. Miller, supra.
No steps were taken by the city to secure a determination of any legal questions which personal service of notice to redeem from a tax deed from the auditor general upon its property suggested, no offer or tender of payment was made and the notices were ignored during the time for reconveyance, and until this petition was filed. The contention that this neglect puts defendant in a more advantageous position than the fee owner in the Iron Mountain Case because there the question of loss of public property was not involved is not tenable. It was involved, and such loss inevitable, had that municipality treated the notice as in the instant case; otherwise the decision is a nullity and it was folly for Iron Mountain to act in the matter either by litigation or redemption, when by its doing nothing until the expiration of the six months’ notice to redeem had expired the tax deed would automatically become a nullity and the tax lien, to collect which the land was sold by the State, liquidated.
In a supplemental brief filed after this case was submitted counsel raises the point that the notice to redeem served upon it was invalid because it included the amount paid the auditor general for the taxes of 1908 which were concededly illegal, reference being made to the notice to redeem which is among the exhibits in the case. The notice contains, separately stated, the amount for each year, showing plainly the description of the land upon which it v/as paid.
As to this proposition, it is expressly stipulated in the record that “notice of its (petitioner’s) tax title in conformance with the provisions of Act No. 229 of the Public Acts of 1897 and acts amendatory” was served on defendant by the sheriff of Wayne county arid his return duly filed with the county clerk. No question was raised as to its sufficiency in defendant’s pleadings, before the trial court so far as shown, nor in the former briefs or oral argument in this court. Apparently in reliance upon the stipulation, it is not discussed in plaintiffs brief. But, even conceding that there was no waiver of the question, and the stipulation is a “scrap of paper,” we are not impressed that this belated objection is tenable. This is a purchase from the auditor general of State tax land for delinquent taxes of previous years, made under section 84 of the tax laws (section 4082, 1 Comp. Laws 1915), and it is not questioned that the notice states truly the exact amount the purchaser was required to pay the auditor general as a condition of the purchase, specifying clearly years, amounts and descriptions. By section 141 of the tax laws (section 4189, 1 Comp. Laws 1915), the fee owner desiring to redeem shall have a right to do so “by paying to the purchaser, or his grantee, or to the register in chancery of the county in which the lands lie, on certificate of the auditor general or his deputy, all sums paid as a condition of such purchase,” together with the statutory additions thereto imposed as a condition for reconveyance. The notice given in this case fully advises what amount is required to redeem in accordance with the provision of the statute. The requirements of those decisions cited by counsel, holding that the notice must specify the exact amounts paid by the purchaser of the tax title with years, descriptions, and amounts for each year on each description, and that a demand for any excess invalidates the notice, have not been violated. This subject has been somewhat discussed in Cheever v. Flint Land Co., 134 Mich. 604, where it is held that a purchaser of State tax lands under section 84 is compelled to pay as a condition of purchase a claim held by the State under a sale which, at the time of purchase, was subject to redemption. In Haney v. Miller, supra, it was claimed that the taxes assessed for a certain year were illegal, unlawfully returned and sold, and the auditor general was therefore not authorized to require their payment as a condition of purchase; that if the defendant saw fit to comply with such unlawful requirement and paid them, he did so at his peril and must remit the sum so paid by him, to be eliminated in the computation of the amount he was entitled to receive under the statute. Holding that this claim was not well founded the court, in construing section 84 with related provisions of the tax law, said in part:
“It seems obvious that the legislature intended to sell these State tax lands only upon condition that its pre-existing claim for taxes against the land sold, regular or irregular, valid or invalid, could be closed out at par.”
From the foregoing we are constrained to conclude that plaintiff has shown a compliance with requirements of the tax law establishing legal rights which it is entitled to maintain by this proceeding as the statute authorizes. The rights of these parties are purely statutory, and, as said in Rousseau v. Riihiniemi, supra, “can be neither enlarged nor limited by the court.”
The decree of the trial court is therefore reversed, with costs, and the case remanded for such further proceedings as may be in harmony with this opinion.
Ostrander, C. J., and Bird, Moore, and Stone, JJ., concurred with Steere, J.
Fellows, J. I agree with the result reached by Justice Steere. I do not think the question of the sufficiency of the notice is before us. South Arm Lumber Co. v. Silverthorne, 138 Mich. 465; Lake Erie Land Co. v. Chilinski, 197 Mich. 214. | [
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Kuhn, J.
The plaintiff brings this suit for herself and in behalf of the other surviving heirs of Florence B. Jeannot, who died at Muskegon, Michigan, February 2, 1918. Before her death she had parted from her husband, the defendant, Joseph O. Jeannot, and a bill for absolute divorce was pending in the circuit court for Kent county. In October, 1913, the parties entered into the following postnuptial agreement:
“This agreement, made and entered into by and between Florence Jeannot, of Grand Rapids, Michigan, party of the first part, and Joseph O. Jeannot, of Grand Rapids, Michigan, party of the second part, witnesseth:
“Whereas, the said parties to this agreement are husband and wife and unhappy differences have arisen between them which they have been unable to harmonize and which have resulted in said Florence Jeannot filing a bill of complaint, in the circuit court for the county of Kent, in chancery, against the said Joseph O. Jeannot as defendant, praying for an order requiring the said Joseph O. Jeannot to support her, the said Florence B. Jeannot, which said suit is now pending in said court, and divers proceedings have been had and taken therein and various orders have been made in relation thereto; and,
“Whereas, the said Florence Jeannot is the owner of certain real estate situate in the city of Muskegon, Michigan, and the said defendant, Joseph O. Jeannot, is the owner of certain personal property and a business situate at Grand Rapids, Michigan:
“Whereas, certain negotiations have been entered into by and between the counsel for the respective parties in behalf of said parties for a settlement and adjustment of all their property rights, which negotiations have finally culminated in the making of this agreement between said parties in relation thereto.
“Now, therefore, for the purpose of settling all of the property rights between the said parties hereto, it is hereby agreed to by and between the said parties and the said Joseph O. Jeannot, party of the second part, does hereby agree to pay to said Florence Jean-not, party of the first part, the sum of eleven hundred and fifty dollars ($1,150), in the following manner, to-wit, fifty dollars ($50) on the 15th day of November, 1913, and the sum of thirty dollars ($30) or more, on the 15th day of each and every month thereafter until the full sum of eleven hundred and fifty dollars ($1,-150) is paid, and the said Florence Jeannot does hereby agree to accept the foregoing provision so made for her of eleven hundred and fifty dollars ($1,150) in full settlement of any and all rights that she may have upon the said Joseph O. Jeannot, for support and maintenance, and does hereby release him from all obligations of her support and maintenance hereafter, and in full settlement of all moneys loaned and due from said second party to first party, and does hereby accept the same in full settlement of any and all alimony, solicitor’s fees and other allowances growing out of the suit now pending between said parties, and does hereby release any and all dower rights which she now has, or may hereafter have in any property of the said Joseph O. Jeannot, and each of said parties do hereby release any claims which they have, or may hereafter have, in or to the property of the other, and in case either of said parties hereto should at any time make application for divorce from the other the foregoing provisions shall be in lieu of any and all permanent and temporary alimony or expenses that may be incurred therein, it being the intention by this agreement to settle all property rights between said parties and to make full provision for the support and maintenance of first party and to release said second party from all obligations in relation thereto.
“In witness whereof, the parties hereto have hereunto set their hands and seals this 15th day of October, A. D. 1918.
“Fioeénce Jeannot (L. S.)
“Joseph O. Jeannot. (L. S.)”
No will was found, and it is assumed that the deceased died intestate, leaving certain real estate and other property, located in the city of Muskegon, of the value of $6,000 and upwards. Soon after her death the defendant, Joseph O. Jeannot, was appointed special administrator of her estate, and having filed a bond, letters of administration were duly granted to him by the probate court for the county of Muskegon. Thereafter a bill was filed by the plaintiff in the circuit court for Kent county, in chancery, alleging, substantially, that the defendant, as surviving husband, is endeavoring to get control of the deceased' wife’s property through proceedings in the probate court for the county of Muskegon, and asking the court to decree that the above agreement between the parties was in full force and effect and binding upon the defendant. On the filing of the bill a temporary injunction was issued, restraining the defendant—
“from attempting to claim any right or interest in and to the property referred to in a certain agree-, ment dated October 15, 1913, made between Florence Jeannot and Joseph O. Jeannot, which constitutes the estate of Florence B. Jeannot, deceased.”
A motion to dissolve this injunction and dismiss the bill of complaint was made by the defendant on. the ground that there is no equity in the bill of complaint; that the plaintiffs have a full, adequate and complete remedy at law; that the circuit court for the county of Kent, in chancery, has no jurisdiction; and that no bond was filed to stay the proceedings at law, as provided by statute, before the injunction was issued. The only ground argued by the defendant’s counsel in the court below and the only question here presented is that the circuit court, in chancery, had no jurisdiction to entertain the case, on the theory that the questions involved are questions that, under the statute, the probate court of Muskegon county had full authority and power to adjudicate, and that that court, having acquired jurisdiction, can retain it until the rights of the parties are disposed of. With this contention the circuit judge did not agree, it being his opinion that a court of equity has exclusive jurisdiction to enforce specific performance of a postnuptial contract, and that this proceeding in no way interfered with the right or authority of the probate court of Muskegon county to proceed with the administration of deceased’s estate.
This is not a question of whether the circuit court, in chancery, has the power to construe a postnuptial agreement, which, under the authorities, it clearly has, but rather presents the question whether or not, when the validity of the agreement is. not questioned, the probate court has a right to consider the agreement in making an assignment, and also whether, in order to sustain the plaintiffs claims with reference thereto, it was necessary to bring the matter into the chancery court. The probate court of Muskegon county, having assumed jurisdiction of the subject-matter, viz., the estate of Florence B. Jeannot, deceased, has exclusive jurisdiction with reference to matters concerning that estate which it can properly hear and determine. Brooks v. Hargrave, 179 Mich. 136. The question then is, Can the probate court determine the rights of the parties to this agreement? In my opinion, it can clearly do so upon the final hearing as to the distribution of the estate. The plaintiff and other heirs of the deceased can at that time present this agreement, and the probate court can then determine whether or not it should be a bar to the defend ant’s claim of any right to the estate of the deceased. In the recent case of In re Butts’ Estate, 173 Mich. 504, Chief Justice Steere, in reviewing the question of the jurisdiction of the probate court, said the following:
“In view of the peculiarities and restrictions necessarily appertaining to the probate courts, the legislature, in the same section by which it conferred upon said court jurisdiction of all matters relating to settlement of estates, also provided:
“ ‘That the jurisdiction hereby conferred shall not be construed to deprive the circuit court in chancery, in the proper county, of concurrent jurisdiction, as originally exercised over the same matters.’ Section 651, 1 Comp. Laws (5 How Stat. [2d Ed.] § 12099).
_ “Under our probate system, this section, in its entirety^ has been construed to give the chancery court jurisdiction only where an adequate remedy does not exist in the probate court, and to declare that in such contingency the chancery court does have jurisdiction to exercise its inherent equity powers, amongst which, peculiarly within its province, are fraud, accident and mistake. People v. Wayne Circuit Judge, 11 Mich. 393 (83 Am. Dec. 754); Holbrook v. Campau, 22 Mich. 288; Smith v. Boyd, 127 Mich. 417 (86 N. W. 953); Nolan v. Garrison, 156 Mich. 397 (120 N. W. 977).”
No question is here raised by the plaintiff as to any fraud, accident or mistake in the execution of the instrument, but on the contrary she is seeking to sustain it, and therefore it is not one of those situations peculiarly within the province of equity, so that a court of chancery is necessarily called upon to exercise its inherent equity powers. The rule seems to be settled that the chancery court should not exercise jurisdiction, when an adequate remedy exists in the probate court, after such probate court has assumed jurisdiction to act with reference to the subject-matter.
We have also had occasion to review the power of the probate court in the recent case of Brooks v. Hargrave, supra, where it was said:
“There can be no question that the probate court assumed jurisdiction of the subject-matter in controversy when the will was admitted to probate and the defendant qualified as executor. It does not lose jurisdiction until the estate is finally closed. Having assumed jurisdiction, it has exclusive jurisdiction and no other court, save an appellate one which subsequently assumes to act in the matter, should proceed further when the priority of jurisdiction is called to its attention. E. T. Barnum Wire & Iron Works v. Speed, 59 Mich. 272 (26 N. W. 802, 805).”
A somewhat similar situation was presented to the court in Knapp v. Knapp, 95 Mich. 474, where a case was brought by an heir to enforce the provisions of a separation agreement and to enjoin the widow from claiming a distributive share in her husband’s personal property. In that case Chief Justice Hooker, speaking for the court, said:
“Without saying that equity cannot entertain such a.case as this, we feel that there is little excuse for bringing it here. Our law (3 How. Stat. § 5964) gives to probate courts the authority to make decrees assigning estates to those by law entitled to the same. This would seem to confer the power to adjudicate between contesting claimants, as was done in the case of Jenks v. Trowbridge’s Estate, 48 Mich. 94. In the present case the complainant’s bill asks a decree denying to the defendant a hearing in the forum expressly provided by law for such cases.”
See, also, Parkinson v. Parkinson, 139 Mich. 530.
I am of the opinion that the trial judge should have dismissed the bill of complaint on the ground that the chancery court had no jurisdiction to proceed, as the probate court had already assumed jurisdiction with reference to the subject-matter in controversy.
The decree of the lower court will be reversed and a decree entered dismissing the bill of complaint, with costs to the appellant.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, and Stone, JJ., concurred with Kuhn, J. | [
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Stone, J.
The issue in this case is well stated in the pleadings. The claim of the plaintiff, by his declaration, is that on September 20, 1917, a writ of replevin was issued from the circuit court for the county of Genesee wherein the Flint Lumber Company was plaintiff, and this plaintiff was the defendant; that said writ was placed in the hands of the undersheriff of the county, who with said writ went to the place of business of this plaintiff, where the property described in the writ was located; that the officer did not take into his possession the property, nor cause any appraisal thereof to be made as provided by statute, but informed this plaintiff that unless he gave a bond forthwith, he would take the property away from the latter’s premises; that the plaintiff herein, being unable to furnish a bond forthwith, was required by the said undersheriff to place in his hands, and payable to John S. Chestnut, sheriff of said county, a certified check in the sum of $500, to be held by said sheriff in the place and stead of the bond required by statute, said check having on its face the title of the cause in which said writ was issued, and containing in writing on its face the contract between this, plaintiff and the said sheriff; that said check was being held as an indemnity bond in said action; that said sheriff, instead of holding said certified check as an indemnity bond, and in violation of the terms of the contract written on the face of said check, transferred said check and the money represented thereby, by his indorsement thereon, to the Flint Lumber Company aforesaid, which company cashed said check and discontinued said replevin suit; that the plaintiff herein has a good and meritorious defense to the claim of said Flint Lumber Company in said suit, and gave said certified check as an indemnity bond for the purpose of being able to retain the property named in said writ, until he could have an opportunity to make said defense in the court which issued the writ; that by the action of the defendant herein as sheriff, plaintiff has been deprived of the money represented by said certified check, and of his said defense; that by reason of the premises the defendant herein has become indebted to the plaintiff in the sum of $500 and interest thereon from said September 20, 1917, which he has refused to pay although often requested so to do.
The plea was the general issue, with a notice of special defense, that at and before the time of the making and delivery of said certified check, it was agreed by and between the Flint Lumber Company and the plaintiff herein that said John S. Chestnut, sheriff, or his deputies, should not execute said writ of replevin, but that the plaintiff herein would deposit with the undersheriff a certified check for $500 to be held by the latter until 9 o’clock in the morning of September 24, 1917, at which time if a bond in twice the value of said property was filed by the plaintiff herein with said sheriff, the said check was to be returned to the plaintiff herein, and the replevin suit was to proceed to trial, but otherwise said check was to be turned over by said sheriff to the Flint Lumber Company in full settlement of its claim of $538 against the plaintiff herein, on account of the purchase by the latter of the property in question, and said replevin suit was to be discontinued; that said Flint Lumber Company, through its proper agents and attorneys, then and there agreed with the plaintiff herein to settle in full its said claim for $500 upon the condition herein fully set forth; that instructions to that effect were given to the said undersheriff at said time by the plaintiff herein; that thereafter the plaintiff utterly refused and neglected to furnish said bond, and said check was turned over by the defendant to said Flint Lumber Company in accordance with the instructions received from the plaintiff herein, at the time said check was given; and that the defendant herein, in turning over said check to the said lumber company, merely carried out the instructions given by the plaintiff herein to him at the time of the delivery of the said check as aforesaid, which was in accordance with the terms of the settlement aforesaid.
The said check was in the words and figures following :
“Diamond Millinery Co., Inc. No. 712
“Flint Lumber Co.
“vs.
“Harry Diamant
“Flint, Michigan, Sept. 20", 1917.
“Pay to the order of John S. Chestnut, Sheriff Genesee County $500 as an indemnity bond in action for replevin.
“Five Hundred .......................... Dollars
• “Diamond Millinery Co., Inc.,
“Harry Diamant,
“To “Secy, and Treas.
“Union Trust & Savings Bank,
“Flint, Michigan.
“74-53
(On face of check)
“Certified Sept. 20, 1917.
“Union Trust & Savings Bank,
“Flint, Mich.
“W. E. McInnis, Teller.
“Paid 9-25-17.
(Endorsed on back)
“John S. Chestnut,
“Sheriff Gen. Co.
“Homer J. McBride,
“Flint Lumber Co.,
“Per R. Kleinpell, Treas.”
At the trial testimony was offered and received tending to sustain the claim of each party, and there was a sharp conflict in the evidence upon the facts involved.
The case was submitted to the jury, and the trial resulted in a verdict and judgment for the defendant. The evidence offered and received on behalf of defendant tending to show his claim as set forth in his notice under the general issue, was all objected to by plaintiff’s counsel as incompetent and immaterial, and varied the terms of the written contract or check, by parol. The objections were overruled.
At the close of the testimony on behalf of defendant, plaintiff’s counsel moved the court for a directed verdict for the plaintiff for the following reasons:
First. That the certified check which was given to the defendant was a pledge, under the evidence offered by the defendant, that a bond would be given on a fixed day, and that the check on its face contains a written contract.
Second. That the sheriff, having turned over this check to the Flint Lumber Company without notice to the plaintiff, is liable.
The motion was overruled.
The plaintiff’s fifth request to charge was to the effect that, under the undisputed evidence in the case, the verdict should be for the plaintiff for the amount of the said check, with interest from the date of demand, at five per cent, per annum. This request was refused.
The plaintiff made a motion for a new trial for the reasons that the verdict was clearly against the weight of the evidence; that the court erred in admitting testimony to vary and contradict the terms of the written contract on the face of the check, upon which plaintiff based his claim in this action; that the court erred in refusing to direct a verdict in favor of the plaintiff, and against the defendant at the close of the defendant’s testimony; and that the court erred in refusing to give the plaintiff’s fifth request to charge. The motion was denied, and exceptions were duly taken. The plaintiff has brought the case here for review, and by his assignments of error the same questions are raised as in the motion for a new trial.
Counsel for plaintiff and appellant argue the following questions:
(1) Whether or not the certified check delivered to the defendant, with the contract written upon its face, was a pledge.
(2) If the certified check was not a pledge, whether or not it was sufficient, under the statutes of this State, as a replevin bond.
(3) Whether or not parol testimony could be introduced to vary and contradict the terms of the written contract on the face of the check.
1. We will consider the last question first. It is the claim of appellant that the writing on the face of the check, consisting of the title of the case and the words: “as an indemnity bond in action for replevin,” was plain and unambiguous, and could not be varied or contradicted, or the character of the instrument changed by contemporaneous parol testimony, and that it makes no difference whether the instrument constituted a pledge, or a replevin bond, so far as the rule concerning the admission of parol testimony is concerned.
Thomas v. Scutt, 127 N. Y. 133 (27 N. E. 961), is cited. In that case the court, in speaking of the rule which allows parol testimony to be introduced to explain a written contract, said:
“Two things, however, are essential to bring a case within this class: (1) The writing must not appear, upon inspection, to be a complete contract embracing all the particulars necessary to make a perfect agreement, and designed to express the whole arrangement between the parties, for in such case it is conclusively presumed to embrace the entire contract. (2) The parol evidence must be consistent with and not contradictory of the written instrument.”
The following cases in this court, also, are cited: Coots v. Farnsworth, 61 Mich. 497; Morris & Co. v. Lucker, 158 Mich. 518, 520; Sheffler v. Sherman, 167 Mich. 42; Foley v. Railway Co., 168 Mich. 496; Solomon v. Stewart, 184 Mich. 506 (Ann. Cas. 1917A, 942); Holland City State Bank v. Meeuwsen, 192 Mich. 326, 330.
Upon this question it is the claim of defendant’s counsel that the writing in this case is not plain and unambiguous, and that parol testimony was admissible to show what was the meaning and intention of the parties, and the following Michigan cases are cited: Powers v. Hibbard, 114 Mich. 533; Mathews v. Phelps, 61 Mich. 327, 332 (1 Am. St. Rep. 581); Switzer v. Pinconning Manfg. Co., 59 Mich. 488.
We are of the opinion that the contract is clear and unambiguous, and admits only of one construction. The check was intended to indemnify the sheriff, a public officer, in the replevin suit. To indemnify is to secure, to save harmless, from loss or damage. He had, at the request of the defendant in that suit (the plaintiff here), deferred the service of a writ of replevin. To save himself harmless he accepted this instrument. We think it was not competent to show by parol evidence that he received it for any other purpose than that of indemnity, and that the court erred in admitting such testimony. This contract cannot be reformed in this suit. The admission of such testimony and its submission to the jury constituted reversible error.
2. It is undisputed that the writ of replevin was never served. Instead of proceeding to serve the process in his hands, as a public officer, the sheriff deferred action thereon, and accepted the check to secure himself from any resulting damage. It is undisputed that he has not been damnified, nor has he sustained tiny loss in the premises. Instead of holding the check as security and indemnity, as was his plain duty under its terms,'he caused the same to be cashed, by indorsing it over and delivering it to the Flint Lumber Company, which company obtained the cash thereon, to the damage of the plaintiff herein. It is undisputed that later, and within a few days, a regular replevin bond was tendered by the plaintiff herein, to the sheriff, and the surrender of the check demanded, but refused.
In any view of the case which we are able to take, on the face of this record, a verdict and judgment should have been directed for the plaintiff for the amount claimed. The judgment below is reversed and a new trial granted with costs to appellant.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. | [
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] |
Moore, J.
This bill of complaint is filed to enjoin defendants from interfering with a piece of land 2 and 8/100 feet wide at one end, 49 and 7/10 feet long and 3 and 65/100 feet wide at the other end, lying on the boundary line between lot 8 owned by the plaintiff, and lot 7 owned by the defendants. The plaintiff claims to own this land by reason of adverse possession. The learned trial judge found that the plaintiff had failed to sustain the averments of her bill of complaint and that defendants were the owners of the disputed strip and made a decree accordingly.
We quote from the brief of the appellant:
/The plaintiff contends for the three following propositions on this appeal:
“1. The defendant’s evidence is not sufficient to show that the old fence is an established boundary line between the adjoining properties.
“2. The character of the defendant’s possession with that of his predecessor’s, in title, is not sufficient to disseize the plaintiff of the disputed strip or of any part of her lot 8.
“3. The defendant has failed to show a sufficient tacking of possession of his grantors and predecessors in title to entitle him to any part of lot 8.”
An elaborate brief is filed with many cases cited to the proposition that the court erred in its ruling that the defendants were the owners of the disputed strip. The pivotal question is one of fact. A reading of the record satisfies us that the land in litigation is within the boundaries of lot seven. A fence has been maintained many years upon the rear two-thirds of the boundary line between these two lots. The fences on the front of these lots, which lots are used for residential purposes, as is usual in towns and villages, have been removed and those portions of the front of the lots not occupied by the residences have been given over to shrubbery, shade trees and lawns. The evidence is clear that if the fence was extended to the front of the lot it would reach the line of demarkation between the sidewalks in front of the lots occupied by the parties to the litigation, leaving the disputed strip on lot seven.
The plaintiff has failed to show such an open, adverse, notorious and continual possession as would give her title to the land in controversy.
The decree is affirmed, with costs to the defendants.
Bird, C. J., and Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit. | [
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] |
Per Curiam.
This case involves a zoning dispute. Defendants Richard and Neva Waldo and Mary Lou and William Kalushka (hereinafter defendants), appeal as of right from an order requiring the removal of a "single-wide” mobile home situated on the Waldos’ land for use by their daughter and son-in-law, the Kalushkas.
The evidence presented at trial revealed that the Waldos resided on two lots in the West Shore Park subdivision in Howard Township. In May, 1982, their daughter, Mary Lou, and her husband were living in a Quonset hut on the lots. Mary Lou suffered from a chronic lung disease requiring the use of special equipment. In order to renovate the hut for the equipment, the Waldos applied for an electrical wiring permit. Upon visiting the hut to investigate the application, Ethan Mittan, the township building inspector and zoning administrator, found the hut uninhabitable. The Waldos subsequently removed the hut._
In June, 1982, the Kalushkas purchased a specially equipped "single-wide” mobile home, twelve feet wide with approximately six hundred square feet of floor space, to live in on one of the lots. The parties’ trial testimony differed on whether township officials consented to the placement of the mobile home on the lot. After the foundation for the mobile home was partially laid, Ethan Mittan ordered the work stopped because the Waldos did not have a permit. The Waldos were unable to acquire a permit because they did not comply with the requirements of Howard Township Zoning Ordinances Nos. 88 and 89 Ordinance No. 88 established minimum size requirements for dwellings; Ordinance No. 89 established procedures and standards for placing mobile homes outside of mobile home parks.
On September 29, 1982, the Howard Township Board of Trustees filed suit against defendants, seeking enforcement of its ordinances and abatement of the nuisance by an order requiring the removal of the mobile home and a permanent injunction. Defendants responded by challenging the constitutionality of the ordinances and claiming estoppel. Following a bench trial, the trial court granted the relief sought by the board, because the mobile home was a nuisance per se under MCL 125.294; MSA 5.2963(24).
On appeal, defendants challenge the constitutionality of the ordinances and the trial court’s rejection of their estoppel claim. Our review is de novo. Bierman v Taymouth Twp, 147 Mich App 499, 503; 383 NW2d 235 (1985), lv den 425 Mich 869 (1986). Considerable weight, however, is given to the findings of the trial judge. Those findings will not be disturbed unless we would have arrived at a different result had we been in the trial judge’s position. Id., p 503.
The challenged section of Ordinance No. 88 states:
Section 3.05 Minimum Size of Dwellings.
Every one family dwelling hereafter erected shall have a minimum width throughout the entire length of the dwelling of 24 feet measured between the exterior part of the walls having the greatest length and shall contain not less than 840 sq. ft. of first floor space; every two family dwelling shall have the same width and shall contain not less than 1,680 sq. ft. of first floor space, which space for both dwellings shall be measured around the exterior of said dwelling each exclusive of an attached garage, open porches or other attached structures including breezeways and carports.
Defendants first claim that Ordinance No. 88 is unconstitutional because it operates to exclude all "single-wide” mobile homes outside mobile home parks from residential areas. The principles gow erning our review of the ordinance are set forth in Kirk v Tyrone Twp, 398 Mich 429, 439-440; 247 NW2d 848 (1976). The ordinance comes to us clothed with every presumption of validity. The party attacking the ordinance has the burden to prove that it is unreasonable and arbitrary. Id., p 439.
Ordinance No. 88 applies to all "dwellings,” including both site-built homes and mobile homes outside a mobile home park. Under the ordinance, a dwelling must have a minimum width of 24 feet and first floor space of not less than 840 square feet. Defendants’ mobile home is approximately 12 feet wide with 600 square feet of floor space. Thus, under the township’s zoning scheme, defendants would have to obtain a hardship variance in order to locate their mobile home on their lot.
The circuit court found that Ordinance No. 88 was adopted to insure comparability between mobile homes and site-built housing and that it had a reasonable basis under the township’s police power. We agree and affirm the court’s holding that Ordinance No. 88 is constitutional.
In Robinson Twp v Knoll, 410 Mich 293; 302 NW2d 146 (1981), the Court held that "per se exclusion of mobile homes from all areas not designated as mobile-home parks has no reasonable basis under the police power, and is therefore unconstitutional.” 410 Mich 310. However, a municipality need not permit all mobile homes to be placed in all neighborhoods. "A mobile home may be excluded if it fails to satisfy reasonable standards designed to assure favorable comparison of mobile homes with site-built housing which would be permitted on the site. . . .” Id.
In Gackler Land Co, Inc v Yankee Springs Twp, 427 Mich 562; 398 NW2d 393 (1986), a township zoning ordinance allowed mobile homes to be placed outside a mobile home park provided they fell within the definition of "dwelling.” Dwelling was defined, inter alia, as a structure with at least 720 square feet and a 24-foot minimum width. The Supreme Court held that the ordinance did not unconstitutionally exclude all single-wide mobile homes from locations other than mobile home parks:
We initially note that these regulations do not treat mobile homes materially different [sic] than site-built homes. We further find that the requirements, as stated, are either reasonable standards designed to assure favorable comparison of mobile homes with site-built housing, or constitute a reasonable exercise of police power for the protection of the safety, health, morals, prosperity, comfort, convenience, and welfare of the public or a substantial part of the public. Robinson Twp, supra, 312. [Gackler, supra, p 570.]
In Pauter v Comstock Twp, 163 Mich App 670; 415 NW2d 232 (1987), the township’s zoning ordinance required every "dwelling” to have a core area of living space of at least 20 feet by 20 feet (400 square feet). Pursuant to this ordinance, the plaintiff was denied a building permit to place a 14-foot by 70-foot (980 square feet) mobile home on his property. The circuit court found that the ordinance’s core living space requirement was reasonably designed to assure favorable comparison between mobile homes and other dwellings outside mobile home parks and that the ordinance advanced the legitimate public concern of community welfare. The Court stated:
On the authority of Gackler, we affirm. As in Yankee Springs Township, mobile homes are not treated materially differently than site-built' homes in Comstock Township. All dwellings outside mobile home parks must meet the core living space requirement. Contrast Tyrone Twp v Crouch, 426 Mich 642; 397 NW2d 166 (1986). The core living space requirement is designed to assure favorable comparison of mobile homes with site-built homes. In light of the Supreme Court’s decision in Gackler, we cannot conclude that the requirement is unreasonable. [Pauter, supra, p 673.]
In this case, as in Gackler and Pauter, Ordinance No. 88 does not treat mobile homes materially differently than site-built homes. Further, the record suggests that the ordinance was designed to assure comparability between mobile homes and site-built housing. We therefore conclude that Ordinance No. 88 is constitutional and affirm that part of the trial court’s ruling so holding.
Next, defendants argue that Ordinance No. 89 is unconstitutional because it requires the consent of one hundred percent of the property owners situated within five hundred feet of the property before the board can consider the variance application. The challenged section of Ordinance No. 89, § V, states:
B. Mobile homes located outside of licensed mobile home parks as provided herein shall be subject to the following requirements:
2. Issuance of variance: Application for variance to locate outside of a mobile home park must be accompanied by written consent of all adjoining property owners and property owners situated within 500 feet of the property on which the mobile home is to be located, but such approval shall not be necessary and may be waived by the township board where an application for a mobile home outside of a mobile home park is made in the case of the owner or occupant of the property’s home being destroyed by fire. Upon filing of the proper application with the township clerk, the township clerk shall place the application for variance upon the agenda of the next scheduled township board meeting.
Again, the principles governing our review are set forth in Kirk, supra, pp 439-440.
In reviewing Ordinance No. 89, our first inquiry is how to characterize the ordinance. As discussed above, the consent requirement is the prerequisite to bringing the variance application before the board. The board then conducts a public hearing and, after making the requisite findings, may vary the terms of the ordinance. Required findings are:
1. the grant will not be injurious to the public health, safety, and general welfare;
2. the use or value of the land adjacent to the property included in the variance will not be adversely affected;
3. the need for the variance arises from some condition peculiar to the property involved that does not exist on similar property in the same district;
4. the strict application of the terms of this ordinance will constitute an unusual or unnecessary hardship as applied to the property or the, owners and occupants in which the variance is sought;
5. that such variance is necessary for the preservation and enjoyment of substantial property rights possessed by other property in the same vicinity and district but is denied to the property in question because of the uniqueness of the property or because of an unusual and unique situation affecting the owner or occupant of the property. [Ordinance No. 89, § V(A).]
Defendants argue that the above section creates an "exception,” rather than a "variance,” to the zoning. For purposes of this appeal, we find no meaningful distinction. Exceptions, like variances, are only allowed in the particular circumstances specified in the zoning ordinance. 8 McQuillin, Municipal Corporations (3d ed), § 25.165, p 582. The zoning authority’s decision on whether to grant or deny the exception or variance is an administrative function. Id., § 25.165, p 583. The establishment of rules or standards to guide the zoning authority is essential to preserving the constitutionality of the zoning law. Id., § 25.161, p 570. This administrative function should be distinguished from the legislative function of zoning itself. See West v Portage, 392 Mich 458; 221 NW2d 303 (1974), and Schwartz v Flint, 426 Mich 295; 395 NW2d 678 (1986). Zoning ordinances have been invalidated when a consent provision, in effect, delegates the legislative power, originally given by the people to a legislative body, to a narrow segment of the community. City of Eastlake v Forest City Enterprises, Inc, 426 US 668, 677; 96 S Ct 2358; 49 L Ed 2d 132 (1976). However, not all consent provisions are invalid. As stated in Cady v Detroit, 289 Mich 499, 515; 286 NW 805 (1939):
"A distinction is made between ordinances or regulations which leave the enactment of the law to individuals and ordinances or regulations prohibitory in character but which permit the prohibition to be modified with the consent of the persons who are to be most affected by such modification.” 43 CJ, p 246.
If such consent is used for no greater purpose than to waive a restriction which the legislative authority itself has created and in which creation it has made provision for waiver, such consent is generally regarded as being within constitutional limitations. City of East Lansing v Smith, 277 Mich 495 [269 NW 573 (1936)].
Here, the consent provision does not delegate legislative power to a narrow segment of the community. Rather, it merely requires a waiver as the first step in an administrative procedure authorized by the zoning ordinance. The inclusion of a consent requirement in Ordinance No. 89 is not unlawful.
Our conclusion reached above, however, does not obviate the need for reasonableness. Ordinance No. 89, § V, requires the board to make specific findings, including a finding of hardship. A hardship variance is the recognized means by which the basic constitutional property rights are recon ciled with the paramount right of government to protect, by zoning, the public health, safety, morals, and welfare of the community. 8 McQuillin, Municipal Corporations (3d ed), § 25.166, p 585, and see Sun Oil Co v Madison Heights, 41 Mich App 47, 55; 199 NW2d 525 (1972). We are persuaded that the one hundred percent consent requirement is not reasonable on its face and as it applies to defendants. Requiring one hundred percent consent is too stringent, particularly when testimony indicates, as in this case, that not all property owners were available. Requiring the consent of all property owners within five hundred feet of the property unreasonably subjects the applicant to the very real possibility of being unable to reach all property owners, as well as the possibility of a single property owner whimsically deciding to refuse consent. We therefore conclude that the one hundred percent requirement in Ordinance No. 89 is unconstitutional. We limit our relief to declaring the consent requirement invalid and unenforceable.
Lastly, defendants argue that the board should be estopped from enforcing the zoning ordinance. We disagree.
An equitable estoppel arises where
(1) a party by representation, admissions, or silence, intentionally or negligently induces another party to believe facts; (2) the other party justifiably relies and acts on this belief; and (3) the other party will be prejudiced if the first party is permitted to deny the existence of the facts. . . . [Cook v Grand River Hydroelectric Power Co, Inc, 131 Mich App 821, 828; 346 NW2d 881 (1984).]
The general rule is that zoning authorities will not be estopped from enforcing their ordinances absent exceptional circumstances. Pittsfield Twp v Mal colm, 375 Mich 135, 146; 134 NW2d 166 (1965). The central inquiry is whether the entire circumstances, viewed together, present compelling reasons for refusing a party’s request for an injunction. Id., p 148, and see Grand Haven Twp v Brummel, 87 Mich App 442; 274 NW2d 814 (1978). Casual private advice offered by township officials does not constitute exceptional circumstances. White Lake Twp v Amos, 371 Mich 693, 698-699; 124 NW2d 803 (1963).
Likewise, in the present case, the defendants allegedly received approval for the mobile home in private conversations with township officials. From our review of the record, as a whole, we are not persuaded that defendants demonstrated the requisite exceptional circumstances to justify an estoppel. Accordingly, we affirm the trial court’s finding that an estoppel was not justified in this case.
Affirmed in part and reversed in part.
The ordinances in effect when suit was filed were Nos. 17 and 33. Ordinance No. 88 partially amended and repealed No. 17; Ordinance No. 89 amended and repealed No. 33 in its entirety. The applicability of Ordinance Nos. 88 and 89 to this case is not disputed. | [
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] |
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