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Per Curiam.
Following a jury trial, defendant was convicted of two counts of uttering and publishing, MCL 750.249; MSA 28.446. Thereafter, defendant pled guilty to being an habitual offender, second offense, MCL 769.10; .MSA 28.1082. Defendant was then sentenced to ten to twenty-one years in prison on each count and now appeals as of right. We find one issue dispositive and reverse defendant’s convictions.
Defendant was convicted, in large part, because of the testimony of two accomplices, Wesley Davidson and Kurt Fromm. They both testified that they found a checkbook in a dumpster and that defendant instructed Fromm to make out checks to Davidson and sign the checking account holder’s name to the checks. The three of them then went to party stores and auto parts stores and cashed several checks. Defendant’s version of events, supported somewhat by defense witnesses, was that Davidson and Fromm had told him they had re ceived their social security and insurance checks and that those were the checks they were cashing at the auto parts stores. This testimony was bolstered by letters from Davidson and Fromm, written and signed while in jail, which stated that the defendant did not know anything about the checks which were cashed, but that defendant thought Davidson and Fromm were cashing social security and insurance checks which they had received in the mail. At trial, both Davidson and Fromm testified that the letters were a lie.
It is the examinations of both Davidson and Fromm and the closing arguments with respect to their testimony which constitute the heart of the prosecutorial misconduct which we find to have occurred in this case. Although the introduction of an accomplice’s promise of truthfulness is not necessarily error, it is error if used by the prosecutor to suggest that the government has some special knowledge that the witness is testifying truthfully. People v Buschard, 109 Mich App 306; 311 NW2d 759 (1981), vacated 417 Mich 996; 334 NW2d 376 (1983), reaff'd 129 Mich App 160; 341 NW2d 260 (1983).
On direct examination of accomplices Davidson and Fromm, the prosecutor emphasized that they were allowed to plea bargain in exchange for truthful testimony regarding defendant:
Q. And were you allowed to plead to one count of attempted uttering and publishing, a felony charge, if you testified truthfully regarding William Enos?
A. [Witness Davidson] Yes.
Q. And were you aware that if you do not testify truthfully here that that deal would not have been fulfilled on your part?
A. Yes.
Q. Have you testified truthfully today regarding this matter?
A. Yes I have.
Q. Were you allowed to plead to a lesser felony in exchange for your truthful testimony in this matter?
A. [Witness Fromm] Yes.
Q. You understand that if you do not testify truthfully that the deal fails, and you could be recharged?
A. Yes.
On cross-examination, Davidson testified that he had fled to Georgia after the crimes because "two guys that came from nowhere” had threatened him. On redirect, the prosecution got Davidson to admit that the incident had never occurred:
Q. Do you recall having a conversation with me before this trial started today?
A. Yes.
Q. And that at that time you told me that incident had not occurred?
A. Yes.
Q. Do you understand that you’re under oath right now?
A. Yes.
Q. You’re sworn to tell the truth?
A. Yes.
Q. Did that incident occur?
A. No.
Q. Was there some sort of threat made to you however before you left for Georgia?
A. No
Q. All right. Why did you go to Georgia?
A. It was Kurt’s idea. He wanted to leave state and take me with him, drag me down there with him.
Q. Okay. But then the two of you returned voluntarily?
A. Yes.
Q. Do you realize that by admitting just now that you lied here in telling about an incident that didn’t occur, that the plea agreement entered into between yourself and the prosecution could be voided and you could be charged with another crime, do you understand that?
A. Yes.
Q. That the agreement was that you would testify truthfully?
A. Yes.
Finally, in closing argument, the prosecutor stated with regard to Davidson:
Now the agreement isn’t that he testifies against Mr. Enos, it’s that he testified truthfully. And when he got up there and he’s on cross-examination he started giving this routine about yeah, these two guys had jumped me up town in Caro. When he was confronted, no, that’s not the truth. He admitted, yea, that’s not the truth. He realized —he was informed right then that the deal would not necessarily be honored since he breached it. Was asked if he wanted to change anything else about his story, if the rest of the story was true or not, and he indicated yes the rest of it was true. I lied about the two guys. But as far as Mr. Enos knew, and what I told Mr. Enos, everything I’ve told you has been true.
In this case, the prosecutor did not merely discuss the plea agreement containing the promise of truthfulness. She told each accomplice witness that if he did not tell the truth the deal would be voided. She called Wesley Davidson back to the stand and forced him to admit that he had lied about the two men who had threatened him. Then she again threatened Davidson with voiding his plea agreement and with a charge of perjury. She then asked if he had lied about anything else, and he stated that he had not. During closing argument, the prosecutor reemphasized that Davidson had promised to testify truthfully, had been informed on the stand the deal might not be honored since he had lied, and then had stated that the rest of his story was true. Under these circumstances, we feel that the prosecutor impermissibly used the agreement "to suggest that the government had some special knowledge, not known to the jury, that the witness was testifying truthfully.” Buschard, supra.
In addition, the accomplices’ testimony was also bolstered by another comment made in the prosecutor’s closing argument. She stated:
And Mr. Fromm also tells you that, yes, he’d been charged with some felony out of this day’s work, and he was allowed to plead to one count of attempted uttering and publishing, seven year felony, in exchange for his truthful testimony in the matter of People versus William Enos.
There were no facts in evidence as to the maximum penalty to which Fromm and Davidson pled. In fact, the maximum sentence was five, not seven years. The prosecutor’s reference may have led the jury to infer that Davidson and Fromm would be serving seven years in return for their testimony. We find that this further wrongfully bolstered the credibility of these two witnesses.
Reversed and remanded for a new trial. | [
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] |
Per Curiam:.
Plaintiffs, William and Lellewene Messer, were injured when their car allegedly stalled while they were negotiating a sharp turn in an exit ramp. As a result, the plaintiffs claimed that Mr. Messer, the driver, lost the ability both to brake and steer the car, causing it to leave the road and roll down an embankment until Mr. Messer was finally able to bring the car to a halt. Both he and his wife suffered extensive injuries.
In October, 1973, plaintiffs filed a complaint against defendants Floyd Rice Ford, Inc., the seller of the car, and Ford Motor Company, the manufacturer. The complaint alleged as the cause of their injuries the defendant’s breach of express and implied warranties, and breach of their duty of care to plaintiffs by delivering a product containing a defect in manufacture, assembly and preparation.
On the day of trial, four years after filing, plaintiffs’ substituted counsel moved for leave to amend their complaint to add an allegation of defendants’ failure to warn plaintiffs of the effects of stalling on power-assisted brakes and steering. The trial court denied leave to amend, on grounds of timeliness, prejudice to the defendant by delay, and interjection of a new theory of liability after defendants had proceeded through discovery and prepared for trial on warranty and manufacturing defect theories.
Plaintiffs and defendants proceeded to introduce their proofs. At the close of their cases, both defendants moved for a directed verdict, which the court initially denied. On the next scheduled day for hearing, plaintiffs moved for a mistrial and disqualification of the trial judge for prejudice. After denying this motion, the trial court reversed itself and directed a verdict in favor of both defendants.
Plaintiffs appeal from this adverse decision as of right, arguing that the trial court abused its discretion by (1) denying their motion to amend their complaint, and (2) by excluding from evidence at trial representations allegedly made by one of the dealer’s salesmen as to the effects of stalling on the car’s braking and steering mechanisms. The plaintiffs further contend that the trial court erroneously directed a verdict for defendants as well as that the trial court erroneously denied their motion for the judge’s disqualification for prejudice.
Where a plaintiff seeks leave to amend its complaint prior to trial, this leave is to "be freely given when justice so requires”. GCR 1963, 118.1. Although the language of the rule commits this decision to the trial court’s discretion, this discretion is limited by the principle that such motions should be denied only for particular, reasons:
"* * * such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, * * Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973), citing Foman v Davis, 371 US 178; 83 S Ct 227; 9 L Ed 2d 222 (1962).
In its denial of plaintiffs’ motion, the trial court primarily relied on the prejudice to defendants if the amendment were permitted. The court specified several sources for this prejudice—the unanticipated change in plaintiffs’ theory of the case to one of failure to warn of a hazardous condition and the absence of expert witnesses to testify on this issue for defendant Ford—and took judicial notice of the four-year litigation history of the instant case and the delay in proffering the amendment. The basic issue on appeal is, there fore, whether in light of the record and the policy favoring amendment these reasons provided adequate grounds to support its ruling, or whether the denial constituted an abuse of discretion.
After reviewing the record in the case at bar, we are persuaded that the trial court did not abuse its discretion in denying plaintiffs’ motion to amend. First, as the trial court noted, the plaintiffs attempted to introduce a new theory of liability into the case on the day of trial. Mere introduction of a new theory of recovery is generally not sufficient reason to deny a motion to amend, Leahy v Henry Ford Hospital, 84 Mich App 719; 271 NW2d 34 (1978), unless prejudice results to the opposite party. The prejudice envisioned is not that the amendment may ultimately cause the opposite party to lose, but that it may prevent the party from having a fair trial. Ben P Fyke & Sons, supra, at 657.
In the instant case, it appears that discovery commenced 2-1/2 years earlier and had been finally completed six months prior to trial. During discovery, defendants had focused solely on the existence and nature of the manufacturing, assembly or preparation defect in the Messers’ automobile rather than upon defective or absent warnings as alleged in the proffered amendment. No information gleaned from discovery, either directly or indirectly, assisted preparation and avoided surprise at trial on the issue of failure to warn. Further discovery and expense thus appeared inevitable.
Numerous court decisions indicate that additional expense and time-consuming new discovery to meet new matters raised by a proffered amendment are appropriate considerations for a trial coiirt in weighing prejudice to an opposite party against the policy favoring amendments. Ben P Fyke & Sons v Gunter Co, supra, at 661, Makuck v McMullin, 87 Mich App 82, 87; 273 NW2d 595 (1978), Wilson v Eubanks, 36 Mich App 287; 193 NW2d 353 (1971), lv den 386 Mich 773 (1971); see also Matarazzo v Friendly Ice Cream Corp, 70 FRD 556 (ED NY, 1976). The trial court did not abuse its discretion by considering these factors in denying plaintiffs’ motion.
The trial court also noted the four-year litigation history of the case at bar. Delay in seeking amendment, without a finding of bad faith or prejudice created by the delay, does not justify denial of a motion to amend. Ben P Fyke & Sons v Gunter Co, supra, at 663-664. Thus, amendments have been permitted even where a three-year hiatus existed between the initial filing and the amendment of the pleading. Middle Atlantic Utilities Co v SMW Development Corp, 392 F2d 380 (CA 2, 1968). Delay, however, can be a major source of prejudice to the party opposing an amendment where, as in the case at bar, the litigation has proceeded "to a point where the opposing party cannot reasonably be expected to defend against the amendment; this is an especially pertinent factor on the eve of, during, or after trial”. Ben P Fyke & Sons, supra, at 663. We find thus no abuse of discretion by the trial court.
Plaintiff next contends that the trial court improperly directed a verdict for defendants at the close of all the proofs.
In Holloway v General Motors Corp (On Rehearing), 403 Mich 614, 622; 271 NW2d 777 (1978), the Supreme Court stated the proper test to be applied in cases similar to the one at bar, as follows:
"On a motion for directed verdict, the question is whether it is reasonable to infer from the evidence, direct or circumstantial, that the accident was probably caused by a defect attributable to the manufacturer.”
This test focuses on the essential elements of a plaintiffs case in a products liability action. The plaintiff must first establish the existence of a defect; to do so, he may show a demonstrable malfunction in a product, or behavior that contradicts the assumption that the product will serve a normal use without causing injury. Snider v Bob Thibodeau Ford, Inc, 42 Mich App 708, 713; 202 NW2d 727 (1972), lv den 388 Mich 812 (1972). A plaintiff then must establish a reasonable probability, either by direct evidence or by inference from circumstantial evidence, that the defect complained of is attributable to the manufacturer. Holloway v General Motors Corp, supra, at 621; Snider, supra, at 715. In order to meet its burden of proving a defect, however, a plaintiff is not required to isolate its specific cause. Holloway v General Motors Corp, supra, at 627.
Applying these various tests to the case at bar, it is apparent that plaintiff has adduced sufficient proof of a defect attributable to the manufacturer. The stalling propensities of the Messer vehicle is clearly a demonstrable malfunction; stalling is behavior not expected in a passenger car and can be unreasonably dangerous if it occurs at the wrong time. The fact that the cause of the stalling remained unidentified does not negate the existence of a defect. Record evidence also existed to support the inference that the defect was attributable to the manufacturer. The Messers’ car had a tendency to stall from the day of purchase. The dealership received it from Ford without making any mechanical alterations prior to delivery to the customer and performed warranty work for constant stalling that was charged to Ford.
Notwithstanding proof of defect, it must also be reasonable to infer from the evidence that the defect "probably caused” the injury. Thus, "[t]he mere possibility that a defendant’s negligence may have been the cause, either theoretical or conjectural, of an accident is not sufficient to establish a causal link between the two”. Jordan v Whiting Corp, 396 Mich 145, 151; 240 NW2d 468 (1976). The absence of this "probable” causal link between defect and injury prevents establishment of a jury submissible case. Cassette v General Motors Corp, 73 Mich App 225, 228; 251 NW2d 275 (1977), lv den 401 Mich 814 (1977).
After careful review of the record, we are persuaded that plaintiffs have failed to establish this requisite causal link. Plaintiff testified that he wasn’t certain of the speed he was travelling and appeared to admit on cross-examination that his speed was between 30 and 35 mph. For the pur poses of argument, we will accept plaintiffs contention that he could not remember his speed, but that it was slower than 35 mph, the legal limit. As plaintiffs’ expert testified, the speed of a stalled vehicle must drop below 20 to 27 mph before power assist is lost to the brakes and steering. Above the critical speed, the driver of a stalled car continues to have full use of his power brakes and steering, as long as the car remains in gear. However, even below the critical speed, with the car in gear, the driver of a stalled car possesses two or three applications of his brakes from his vacuum reserve, assuming the driver does not rapidly pump his brakes.
Mr. Messer testified on the day of the accident that he simply stepped on the brakes in order to slow down for the curve in the ramp and sensed complete resistance in the brakes to the pressure from his foot. He denied rapidly pumping the brakes, and did not put the car in neutral until after he attempted to brake. His description of his car’s behavior is clearly inconsistent with the behavior to be expected if failure was due to stalling. According to his own expert’s testimony, two or three applications of his brakes remained to bring the car to a halt. From the evidence adduced, it would be unreasonable to infer that the car’s propensity to stall probably caused the accident. The directed verdict was therefore proper.
Given our disposition of this issue, we find it unnecessary to consider plaintiffs’ contentions concerning representations made by one of defendant dealership’s salesmen.
Finally, plaintiffs contend that the trial court improperly denied plaintiffs’ motion for mistrial and disqualification. After examining the record, we find plaintiffs’ allegations of prejudice against them on the part of the court to be unsubstantiated.
Affirmed. Costs to appellees.
There is some confusion on the record on this point. Defense counsel, on cross-examination, read aloud statements made by plaintiff in his deposition concerning his speed at the time of the accident, as follows:
"Q (By Mr. Martin) On Page 77 of the deposition, the first question on the page, Mr. Messer, is as follows:
"Q I gather here at the scene of the accident you would be going at least 30, 35 miles an hour at that time when you tried to turn and applied brakes; would that be about right?
"A I wouldn’t know but if I was to make an assumption I would say that that would be about it due to the three speed zones dropping down to 55 and 35 and then coming to this.
"Q You never had stalled out in that range of speed before?
"A No, no.’
"Do you remember that?
"A Yes.
"Q Was that a correct statement then, back in '74, when you made it?
"A To the best of my knowledge at that time, it was.
"Q Okay.
"THE COURT: And is that your testimony today?
“MR. MARTIN: Did you hear the judge ask you a question?
"THE COURT: Is that your testimony today? 'Yes’ or 'No.’
"THE WITNESS: Yes.”
It is ambiguous from the record whether plaintiff was in fact adopting his prior statement as true in response to the court’s question, in contradiction to his previous testimony that he did not know how fast he had been travelling. Although the court apparently relied on the above exchange as a substantive admission by plaintiff in directing a verdict for defendants, the testimony’s ambiguity prevents us from concluding the same. See McCormick, Evidence (2d ed), § 266, pp 636-639. However, as discussed in the body of the opinion, other facts in the record sufficiently support the trial court’s grant of the directed verdict for defendants. | [
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J. E. Townsend, J.
Defendants, James Clements, Tony Dupree, Marlowe Dupree and Janice Johnston, were found guilty by a jury on April 26, 1977, of armed robbery, MCL 750.529; MSA 28.797. They were sentenced to prison terms on May 5, 1977. Clements received a term of 35 to 60 years; T. Dupree, 7-1/2 to 20 years; M. Dupree, 6 to 20 years; and Johnston, 6 to 25 years. Defendants appeal by right.
The appeals of all the defendants have been consolidated here for review. Of the various issues argued, only one is of any merit.
Defendants claim that the trial court erred in permitting cross examination as to defendant Clements’ prison sentence for a previous crime, which sentence had been partially served at the time of trial.
Defendants cite People v Rappuhn, 390 Mich 266, 272-273; 212 NW2d 205 (1973), and People v Nelson White, 26 Mich App 35, 39-40; 181 NW2d 803 (1970), in support of their claim of error.
In the Rappuhn decision, Justice Williams, speaking for the Michigan Supreme Court stated the Court’s agreement with Judge O’Hara’s analysis and reasoning and included the following quotation from the Nelson White decision:
"It is the prior conduct undertaken by the accused, and not the ensuing punishment, which is relevant.” Nelson White, supra, 39.
Justice Williams went on to say:
"The length of sentence, the conditions under which served and so on, as Judge O’Hara observes, are not defendant’s conduct but an uncertain sequel. It is defendant’s conduct that is relevant and by which his credibility may be tested.” Rappuhn, supra, 273.
Both courts decided that the sentence imposed in those cases had no relevance to the issue of credibility.
In this case, defendant Clements testified, admitting that he took a wallet from the pocket of complainant Cross, but denied having a gun and also exonerated his co-defendants from the charges. Complainant Cross identified Clements as the person who pointed the gun at him.
Defendant Clements’ testimony was in the nature of an admission against penal interest. Such admissions are often accorded reliance on the basis that one does not voluntarily admit a crime and face punishment for it, unless the admission is true.
Cross examination to test the reliability of such admission is proper. MCL 600.2159; MSA 27A.2159 would permit proof as to "interest or conviction” for the purpose of affecting credibility.
The fact that defendant at time of trial, on April 26, 1977, was in the process of serving a 5 to 15 year prison sentence imposed in 1974, and had time yet to serve in prison is relevant and probative evidence relating to defendant’s possible motivation, interest, bias or prejudice in testifying as he did.
Defendant admitted that he committed the lesser crime of larceny from a person, denied that he had a gun, and absolved his co-defendants from involvement in a crime.
The trial judge, in ruling on the admissiblity of evidence concerning defendant’s sentence, determined that the sentence status of defendant gave him a "motive for not being truthful”. Judge Connor compared the unserved prison sentence inquiry to exposing any deals or promises made by the prosecution with an accomplice as an aid to testing the credibility of an accomplice witness.
Immediately after cross examination as to defendant’s sentence, the trial judge gave a limiting, cautionary instruction as to such evidence, stating as follows:
"Likewise, you have heard some testimony relating to a sentence the defendant is presently serving. That has been allowed only so that you may take it into consideration when weighing how much weight and credibility again you will attach to his testimony, whether or not there is a bias or hindrance or motive that actuate the witness in testifying in the manner in which he has, just as you may consider anything which has a tendence [sic] to your minds to fairly prove or disprove testimony of the witnesses.”
In his closing argument, the prosecuting attorney argued that defendant Clements had little to lose by admitting a larceny and by "taking the rap” for his friends.
He argued the motive and bias of defendant Clements as follows:
"Furthermore, he is trying to help his friends. The reason I asked him about his jail term is to indicate why he would be the one who would be willing to take the rap. That’s the only relevance of the fact that he might be serving time in prison right now. He’s already on the hook. He’s already in jail, so he’s the one willing to take the rap, minimally as it is. So he is willing to admit at least to a larceny from the person, but he is willing to help his friends. 'They had nothing to do with it. I decided it on the spur of the moment. I was walking down the street, trying to see some sex action, perhaps, and then I saw Janice Johnston leaving and I decided to get the wallet.’ ”
The cross examination in this case relating to defendant’s unserved sentence is not admissible as a "conviction”. Rather, it should be tested by the standards of MRE 401, 402 and 403.
By such standards we must ask whether it is relevant as to the issue of the truth of falsity of defendant’s admission of a crime, and if it is relevant, whether its probative value is outweighed by the danger of "unfair prejudice” to defendant.
We read the Rappuhn and Nelson White deci sions as concluding that testimony as to prior sentences generally is not relevant on the issue of credibility.
The trial judge clearly weighed possible prejudice against probative value in permitting the inquiry in this case. He determined in effect that the probative value outweighed any possible prejudice, and in his discretion admitted such evidence. We believe such procedure was correct under MRE 401, 402 and 403 and People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), and Gordon v United States, 127 US App DC 343, 348; 383 F2d 936 (1967). The sentence time yet to be served has just as direct an impact on witness motivation and credibility as does a promise of leniency to an accomplice.
We agree that in this case defendant’s present and future sentence status was relevant in deciding the truth or falsity of his admission of a crime. In our adversary system, which relies so much on pointed cross examination to arrive at the truth, we should not prevent reasonable efforts to prove all facts which assist a jury in deciding what is true and what is false. The remaining issues argued by defendants are without merit.
Affirmed. | [
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] |
N. J. Kaufman, P.J.
Plaintiff appeals by right from a May 31, 1978, order granting summary judgment to defendant on the grounds of governmental immunity and from a June 12, 1978, order denying plaintiff’s motion to amend its complaint to add certain city officials as defendants.
On May 20, 1974, Novi enacted a "Signs and Outdoor Advertising” ordinance which borrowed heavily from an Ann Arbor ordinance regulating signs.
The next day, May 21, 1974, the Supreme Court decided Central Advertising Co v Ann Arbor, 391 Mich 533; 218 NW2d 27 (1974), aff'd on remand, 394 Mich 943 (1975). The Court concluded that the Ann Arbor sign ordinance operated to proscribe billboards altogether and that this action exceeded the authority of the city council under the home-rule act, MCL 117.4i(5); MSA 5.2082(5), and the city charter, Ann Arbor Charter, § 3.1(2)(f). However, since there were no findings of fact regarding each of the 177 plaintiffs affected by the ordinance, the matter was remanded to the trial court for specific findings. The trial court’s findings and subsequent order were affirmed by the Supreme Court on June 19, 1975.
Thereafter, on February 3, 1976, Central petitioned the Novi Board of Appeals for a variance to erect a certain off-premises advertising sign. The petition was denied on March 2, 1976.
On October 1, 1976, Central commenced the instant action, seeking damages, injunctive relief and a declaration that:
"* * * Sections 2.01, 3.01 and 4.01 of the Defendant’s Ordinance No. 74-68 to be [are] invalid for the reason that it prohibits and excludes Plaintiff’s off-premises advertising signs from within the City of Novi.”
Central filed a six-count complaint which made various overlapping claims for damages based on defendant’s intentional interference with plaintiff’s business relationships and defendant’s intentional violation of plaintiff’s Federal constitutional rights to free speech, due process and equal protection. The civil rights claims apparently were based on 42 USC 1983.
Plaintiff moved for summary judgment claiming that the ordinance was invalid as a matter of law because it prohibited all off-premises advertising signs within the City of Novi. On November 24, 1976, the trial judge granted partial summary judgment to plaintiff. The court enjoined the defendant from enforcing § 4.01(1)(1) of the ordinance but also held that off-premises advertising signs had to comply with § 3.01. See footnote 1.
Defendant appealed to this Court and plaintiff cross-appealed. On September 14, 1977, in an unpublished per curiam opinion (Docket No. 31153, decided September 14, 1977 [unreported]), this Court relied on Ann Arbor, supra, and affirmed the trial court’s determination that the ordinance impermissibly prohibited off-premises signs. However, the Court concluded that § 3.01 did not regulate off-premises signs and reversed the trial court on this issue. Leave to appeal was denied by the Supreme Court on November 30, 1977, and the case was returned to the trial court for consideration of the claims for damages. 402 Mich 823 (1977).
On February 14, 1978, defendant moved for summary judgment claiming that plaintiff had failed to state a claim upon which relief could be granted because its claims were barred by governmental immunity. The trial court accepted defendant’s argument on March 16, 1978, and ruled:
"This Court does not consider the action taken by the Defendant City of Novi in adoption of the ordinance in question which this Court later declared invalid to be a tort action and I am going to grant the motion for summary judgment to Defendant on the basis that the City of Novi is immune and does not come within the statutory exception to a municipal immunity for a tort action.”
Central moved to file an amended complaint on May 3, 1978. Central wished to add members of the Novi City Council, Planning Commission, Board of Appeals and the Novi Director of Building and Safety as defendants.
On May 31, 1978, the trial court entered an order of summary judgment in favor of defendant. The trial court also denied plaintiffs motion to file an amended complaint. The corresponding order was filed June 12, 1978.
Thereafter, on June 15, 1978, plaintiff filed a motion for rehearing on the entry of summary judgment. Plaintiff argued that the trial court’s ruling that defendant was immune from damage suits was erroneous in light of Monell v Dep’t of Social Services of the City of New York, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978), which had been decided on June 6, 1978. Plaintiff also moved to set aside the order denying its motion to amend the complaint. The motions were denied and plaintiff now appeals.
We are faced with two primary issues on appeal: Did the trial court properly grant summary judgment to the defendant because plaintiff failed to state a claim upon which relief can be granted? Did the trial court abuse its discretion in denying plaintiffs motion to amend its pleading by adding defendants?
In determining the propriety of summary judgment under GCR 1963, 117.2(1), we are limited to a review of the pleadings alone. Every well-pled allegation is assumed to be true. We must determine if plaintiff’s claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. See Bashara, The Elusive Summary Judgment Rule: Sifting Through the Maze, 1976 Detroit Col L Rev 397, 401-402. Since plaintiff is suing a governmental unit, it must plead facts in avoidance of governmental immunity to state an actionable claim. Butler v Wayne County Sheriff’s Dep’t, 75 Mich App 202, 203; 255 NW2d 7 (1977).
Plaintiff’s claims involve the tort of intentional interference with business and contractual relationships and alleged causes of action based on the deprivation of constitutional rights. We consider the tort claim first.
MCL 691.1407; MSA 3.996(107) is the controlling statutory provision for governmental immunity. This section 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 and 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.”
Since none of the statutory exceptions apply to this case, we must determine if defendant was engaged in the exercise and discharge of a governmental function when it passed and enforced its sign ordinance.
The meaning of the phrase "engaged in the exercise and discharge of a governmental function” is an issue which has sharply divided our Supreme Court. However, in Parker v Highland Park, 404 Mich 183, 193-194; 273 NW2d 413 (1978), three justices concluded:
"* * * We would limit the term 'governmental function’ to those activities sui generis governmental—of essence to governing. This principle was recognized in Lykins v Peoples Community Hospital, 355 F Supp 52, 53 (ED Mich, 1973):
" 'This court does not believe the statutory scheme contemplates immunity for the day-to-day operations of a hospital. The statute speaks of immunity for "governmental functions,” and this court is of the opinion that while it may be an appropriate goal or objective of government to establish a hospital authority, it does not follow that the daily operations of such a hospital authority constitute a governmental function. Governmental functions more properly refer to the tasks of governing. There is, for example, a governmental character to activities such as the collection of taxes or the operation of a court system. But the services of healing offered by a public hospital are not governmental functions.’ ”
In a concurring opinion in Parker, supra, at 200, Justice Moody offered a similar test:
"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.”
There is no question that a municipal legislative body has a general grant of authority to control uses such as signs and billboards within its jurisdiction. Const 1963, art 7, § 22 provides that municipalities shall have the power to adopt resolutions and ordinances relating to their municipal concerns, property and government. The home-rule act, MCL 117.1 et seq.; MSA 5.2071 et seq., further authorizes a municipality to provide in its charter:
"For licensing, regulating, restricting and limiting the number and locations of billboards within the city.” MCL 117.4i(5); MSA 5.2082(5).
However, a home-rule city cannot altogether prohibit off-premises advertising signs. Central Advertising Co v Ann Arbor, supra.
The specific tortious activity alleged in the instant case is the enactment and enforcement by the city of an ordinance regulating the display of signs within the defendant’s jurisdiction. Plaintiff alleged that the ordinance effectively excluded all off-premises signs, thereby interfering with the plaintiff’s business relationships and creating liability in the city for plaintiff’s damages.
It is true that the part of defendant’s sign ordinance which prohibited off-premises advertising signs has been found invalid by a trial court and this Court. But the mere fact that an ordinance has been invalidated does not strip the city of its mantle of governmental immunity. At common law, the defendant would have been immune from liability under the present circumstances. See Williams v Detroit, 364 Mich 231, 261; 111 NW2d 1 (1961), Stevens v Muskegon, 111 Mich 72; 69 NW 227 (1896), 57 Am Jur 2d, Municipal, School, & State Tort Liability, § 116, pp 124-125. Even under the tests announced in Parker, supra, it is appar ent that the passage and enforcement of a regulatory ordinance falls within the "essence of government” and can be "effectively accomplished only by government”. See Thomas v Dep’t of State Highways, 398 Mich 1, 20-21, 22, 32, 34; 247 NW2d 530 (1976) (dissenting opinions of Kavanagh, Fitzgerald and Levin, JJ.), Kethman v Oceola Twp, 88 Mich App 94, 102-103; 276 NW2d 529 (1979), Armstrong v Ross Twp, 82 Mich App 77, 82; 266 NW2d 674 (1978). Accordingly, we hold that the City of Novi is immune from plaintiff’s tort claim and the trial judge properly granted summary judgment on that claim.
We now come to the most difficult part of this case—defendant’s alleged interference with plaintiff’s Federal constitutional rights. Since these claims were not based on tort theory, they should not have been disposed of in the trial court’s grant of summary judgment to defendant on the grounds of state governmental immunity. Rather than remand the constitutional claims to the trial court, however, we will review the issue. If the trial court reached the right result for the wrong reason, we will not disturb his ruling. See Queen Ins Co v Hammond, 374 Mich 655, 658-659; 132 NW2d 792 (1965).
Until recently, municipal corporations such as defendant were held not to be "persons” subject to liability under 42 USC 1983. Monroe v Pape, 365 US 167; 81 S Ct 473; 5 L Ed 2d 492 (1961). However, on June 6, 1978, six days after judgment for defendant was entered in the instant case, the Supreme Court issued its opinion in Monell v Dep’t of Social Services of the City of New York, supra, overruling Monroe. Despite Monell, local government bodies may retain some immunity from claims made under § 1983. See Monell, supra, at 700, 712-713. In fact, it is very possible that the tests for immunity discussed in Armstrong, supra, at 85-87, are still valid.
Having made these observations, we nevertheless conclude that plaintiff has failed tó state a claim under 42 USC 1983 for two reasons.
First, mere conclusions, without' factual allegations to support them, will not withstand a motion for summary judgment. Valentine v Michigan Bell Telephone Co, 388 Mich 19, 30; 199 NW2d 182 (1972), Sottile v DeNike, 20 Mich App 468, 472; 174 NW2d 148 (1969), and see GCR 1963, 111.1(1). In the instant case, plaintiffs complaint never mentions § 1983 and presents claims of civil rights violations in an unorganized and conclusionary manner, thereby violating GCR 1963, 111.1(1) and justifying summary judgment for failure to state a claim.
Second, a party fails to state a claim upon which relief can be granted where recovery is alleged pursuant to a statute which does not apply to the factual situation under consideration. See Powers v City of Troy, 380 Mich 160; 156 NW2d 530 (1968), Hoag v Paul C Chapman & Sons, Inc, 62 Mich App 290, 300-301; 233 NW2d 530 (1975). In evaluating a claim, we look beyond verbiage to determine the substance of the cause of action pled. See e.g. Nicholson v Han, 12 Mich App 35; 162 NW2d 313 (1968). Here, plaintiff successfully challenged the extent of defendant’s sign regula tory powers under Michigan’s home-rule act. The case really has nothing to do with plaintiffs Federal constitutional rights. The mere fact that plaintiff alleges or argues that its claim is based on § 1983 does not magically transform the action into something it is not. See Martin v Hancock, 466 F Supp 454, 456 (DC Minn 1979), Zarcone v Perry, 438 F Supp 788, 790 (ED NY 1977), aff'd 581 F2d 1039 (1978).
The foregoing analysis is buttressed by the fact that New York permits the prohibition of certain off-premises billboards and has not been rebuffed by the United States Supreme Court. See Modjeska Sign Studios, Inc v Berle, 43 NY2d 468; 373 NE2d 255 (1977), appeal dismissed 439 US 809; 99 S Ct 66; 58 L Ed 2d 101 (1978), and Suffolk Outdoor Advertising Co v Hulse, 43 NY2d 483; 373 NE2d 263 (1977), appeal dismissed 439 US 808; 99 S Ct 66; 58 L Ed 2d 101 (1978). In Modjeska, plaintiff argued it was being deprived of property without due process and hindered in its exercise of free speech; in Suffolk, plaintiff argued its right to free speech was being violated. The New York Court of Appeals rejected both arguments and the United States Supreme Court dismissed the appeals for want of a substantial Federal question.
Plaintiffs final argument deals with the trial court’s denial of its motion to add defendants. The granting or denial of a motion to amend a pleading or to add parties is discretionary with the trial court. Matson v Soronen, 57 Mich App 190, 193; 226 NW2d 52 (1974); GCR 1963, 118.1; GCR 1963, 207. We find no abuse of discretion in this case.
Part of the case had been appealed to this Court and the Supreme Court, and the trial judge had already decided to grant summary judgment to the defendant on plaintiffs claims for damages before plaintiff moved to add defendants. Plaintiff’s motion appears to have been a last minute attempt to rescue its § 1983 claim from the holding of Monroe, supra, which excluded municipal corporations from liability under that statute. But plaintiff should have been aware of the Monroe holding from the beginning of the case. In effect, plaintiff was asking the trial judge to permit it to add an entirely new cause of action. Thus, even if § 1983 arguably applied to this case, the trial court’s denial of plaintiff’s motion was a proper exercise of discretion. We do not think justice would have been served by adding new defendants.
In summary, plaintiffs tort claim against defendant was properly disposed of by summary judgment under GCR 1963, 117.2(1) on the grounds of governmental immunity. The defendant’s adoption and enforcement of a regulatory sign ordinance, an activity specifically permitted by state statute, was of the "essence of government”.
Plaintiff’s constitutional claims apparently were based on 42 USC 1983, a statute which was not mentioned in plaintiffs complaint. These claims were subject to summary judgment under GCR 1963, 117.2(1) because the claims were conclusory and were premised on a statute which does not apply to the case.
Finally, even assuming § 1983 applied to this case, the trial judge did not abuse his discretion in denying plaintiffs unreasonably tardy motion to add defendants and, in effect, add a new cause of action.
Affirmed. No costs, a public question being involved.
Section 2.01 prohibited signs not expressly permitted by the ordinance. Section 3.01 described various permitted signs and specifically permitted certain on-premises advertising signs. Section 4.01(1)(1) prohibited "off premise signs and off premises advertising signs”.
While plaintiff’s complaint does not mention a particular statute or cause of action in connection with its civil rights claims, it is clear on appeal that plaintiff intended to state a claim under 42 USC 1983, which provides:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
A plaintiff who makes out a claim under § 1983 is entitled to various forms of relief, including money damages. Myers v Anderson, 238 US 368; 35 S Ct 932; 59 L Ed 1349 (1914). State as well as Federal courts have jurisdiction to enforce a plaintiff’s rights under § 1983. See Armstrong v Ross Twp, 82 Mich App 77, 83-87; 266 NW2d 674 (1978).
Statutory exceptions to the general grant of governmental immunity include MCL 691.1402; MSA 3.996(102) (failure to keep highways fit and safe for travel), MCL 691.1405; MSA 3.996(105) (negligent operation of a motor vehicle), and MCL 691.1406; MSA 3.996(106) (dangerous and defective building). Further, statutory governmental immunity does not extend to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function, i.e., any activity conducted primarily for the purpose of producing a pecuniary profit. MCL 691.1413; MSA 3.996(113).
We note that there may be a third reason as well. If the Armstrong immunity tests are still viable, plaintiff may have been required to plead facts in avoidance of immunity. See Armstrong, supra, at 86, but see Pinckney v County of Northhampton, 433 F Supp 373, 378 (ED Penn, 1976). If plaintiff did not plead the required facts, summary judgment for failure to state a claim may have been appropriate for that reason alone. However, since Monell expressly avoided the immunity question and we need not address it, we rest our decision on other grounds.
While the Supreme Court’s dismissals may or may not conclusively establish that an ordinance banning off-premises signs does not infringe on Federal due process or free speech rights, see Hicks v Miranda, 422 US 332, 344; 95 S Ct 2281; 45 L Ed 2d 223 (1975), and Metromedia Inc v San Diego, 154 Cal Rptr 212, 223; 592 P2d 728 (1979), but see Mandel v Bradley, 432 US 173, 175-176; 97 S Ct 2238; 53 L Ed 2d 199 (1977), we are not inclined to ignore the Supreme Court’s actions altogether.
We also note that several recent decisions in other jurisdictions have held that a community can entirely prohibit off-site advertising without offending the United States Constitution. See Metromedia, supra, and cases cited therein. | [
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Per Curiam:.
Defendant was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548. She was sentenced to life imprisonment and now appeals by right.
Jimmy James Allen, defendant’s husband, was found shot to death in the kitchen of his Lansing home. An autopsy showed that he had received two gunshot wounds, one a superficial wound to the back and a second wound which had punctured his right lung and ruptured his aorta caus ing him to bleed to death. Defendant confessed to the crime, stating that she went upstairs to the bedroom where her husband was sleeping and shot him in the back. Her husband got out of bed, and ran downstairs to the kitchen. Defendant said she followed him and then shot him a second time. The prosecution also presented testimony that prior to killing her husband, defendant stated she wanted her husband killed and on two occasions had talked to friends about trying to find her a hit man to kill her husband, a task for which she was willing to pay $500, and finally $1,000.
Defendant’s first allegation of error concerns the use of her statements to establish the corpus delicti of first-degree murder and causes us to examine the scope and extent of the corpus delicti rule.
The traditional definition of the corpus delicti of any felonious homicide has been a dead body with a criminal agency as its cause. See La Fave and Scott, Criminal Law, § 4, p 16. These requirements were certainly met in the present case as the placement of the mortal wounds excludes the possibility of their being self-inflicted. In Michigan, however, our Supreme Court has stated that in order to establish the corpus delicti of first-degree murder, the prosecution must show not only the two above-mentioned elements, but must also prove the element which distinguishes first-degree murder from second-degree murder which, in the present case, is premeditation. People v Sparks, 393 Mich 135; 224 NW2d 481 (1974), People v Allen, 39 Mich App 483, 494; 197 NW2d 874 (1972) , dissenting opinion, Levin, J-, adopted by the Supreme Court, 390 Mich 383; 212 NW2d 21 (1973) .
The physical and circumstantial evidence in this case does not appear in and of itself to establish the element of premeditation. Therefore* the only way the prosecution could have proven premeditation was through defendant’s confession or through the statements made by defendant prior to the murder.
It has long been the rule in this state that the corpus delicti of a crime cannot be established by the extra-judicial confession of the accused. People v Allen, 390 Mich 383; 212 NW2d 21 (1973), People v Ranney, 153 Mich 293; 116 NW 999 (1908). Therefore, defendant’s confession could not have been used to establish the corpus delicti.
' Defendant also contends, however, that all of her statements, not just her confession, must be excluded when establishing the corpus delicti. We do not agree.
The corpus delicti rule only precludes confessions and admissions which necessarily amount to a confession from being used to establish the corpus delicti. See People v Porter, 269 Mich 284, 290; 257 NW 705 (1934), People v Allen, 39 Mich App 483, 505, fn 23; 197 NW2d 874 (1972). Statements made by the accused prior to the time the crime was committed do not amount to confessions, because at the time they were made no crime had been committed and therefore there is nothing to confess or admit to. Thus, statements made prior to the time the crime was committed can be used to establish the corpus delicti of the crime. Warszower v United States, 312 US 342; 61 S Ct 603; 85 L Ed 876 (1941), People v Randall, 42 Mich App 187; 201 NW2d 292 (1972).
Adoption of defendant’s arguments that all statements of the accused should be excluded coupled with the Supreme Court’s decision that premeditation must be shown to establish the corpus delicti of first-degree murder would effectively preclude convictions for first-degree murder in a vast number of cases. Since finding a body with one bullet hole in it does not usually provide circumstantial evidence of premeditation, the cold, calculated one-shot murderer could not be convicted of first-degree murder unless an eyewitness saw him deliberately aim and shoot his victim. Therefore, if we adopted defendant’s position, we would be rewarding the killer for the skill of his marksmanship and his cleverness in shielding his activities from the view of other people. This we will not do.
Defendant’s other allegations of error do not merit discussion or reversal.
Affirmed.
Although there are references in Judge (now Justice) Levin’s opinion in Allen that the corpus delicti cannot be established by the statements of the accused (Allen at 497, 505), we feel this labeling was inadvertent and in no manner expands the opinion beyond the question presented which was whether
"[T]he corpus delicti of first-degree murder can be established without evidence independent of the accused person’s confession [emphasis added] of the essential element that distinguishes the offense of second-degree murder from first-degree murder.*’ Allen at 494.
We are led to this conclusion because the vast majority of the references in the opinion are to defendant’s confessions not merely defendant’s statements. | [
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] |
Hooker, C. J.
Complainant, a material-man, filed the bill in this cause against Frank Le Fevre and Almina Le Fevre, husband and wife, and Michael Daily, to enforce a mechanic’s lien for materials furnished for a hotel erected upon premises owned by Frank Le Fevre..
A contract to furnish material, erect and complete said hotel, was let by Le Fevre to a firm of builders named Willis & Grant, who in turn sublet a portion to one Thompson. Thompson failed to perform, and negotiations were had whereby complainant furnished material which Thompson should have furnished. The principal dispute, so far as the‘facts are concerned, is over the question of defendant Frank Le Fevre’s liability to complainant for this material, the complainant asserting that it was furnished upon the request of Le Fevre, accompanied by a promise to pay for the same the amount of complainant’s bid. The defendants deny that Le Fevre promised to pay for the material, and allege further that, if he did, the promise, being oral, would come within the statute of frauds as a promise to pay the debt of Willis & Grant, who were under contract obligations with Frank Le Fevre to furnish the material.
Upon the question of fact it is sufficient to say that we agree with the circuit judge that the complainant established the contract alleged, and that it was an original promise, and valid. It was not within the statute, for complainant did not sell to Willis & Grant, nor did they purchase the material from him.
A number of legal questions arise. It is contended that there was no meeting of minds, because no time appears to have been specified when the amount agreed upon for the material should be paid; but the rule of construction in such cases is that payment upon delivery is contemplated.
The statement filed with the register of deeds was to the effect that the materials were furnished “in pursuance of a certain contract with Frank Le Fevre,” and that there was $220 due; and a copy of this statement, with notice of filing, was served on Frank Le Fevre only. The bill alleges two contracts, — one made on or about July 26, 1890, for $100; and another, that complainant should furnish for the building such materials as Le Fevre might order from time to time, for which he (Le Fevre) would pay, and under which arrangement complainant furnished materials to the amount of $20. This sum of $20 was rejected by the circuit judge, and, as complainant did not appeal, cannot be allowed here. It is mentioned because the defendants assert that it is the occasion of a variance between the statement, which mentions one contract, and the bill and proofs, which- mention two; and it is ■ contended, further, that the statement is excessive by this amount, and that the lien is therefore lost. It appears that the only reason for denjdng complainant any portion of his claim was the fact that in his statement of lien he did not say two certain contracts instead of one. By a mere technicality he is deprived of his security for $20, although an honest claim. The case differs from those cited by counsel for defendants, where persons wrongfully clouding debtors’ titles with excessive liens are denied the benefit of the statute. The case of Gibbs v. Hanchette, 90 Mich. 657, carefully distinguishes between such cases and those where, through an honest mistake, too much has been claimed in the statement of lien, or by reason of a failure of proof the claimant was denied the entire amount claimed. We think this case is of the latter description. Under his pleading the court below declined to consider the $20 item, and for reasons given we cannot allow him the amount here, if we should find the statement filed would permit it, about which we deem it unnecessary to express an opinion.
A point is made over the matter of notice, defendant Alminp Le Fevre not having been served with notice. The object of a notice is to prevent the owner from paying the principal contractor (Act No. 216, Laws of 1885, p. 295, § 3), and in this case, as the contract was made with the owner, there was no necessity for a notice. The validity of a lien does not depend upon the notice. Kirkwood v. Hoxie, 95 Mich. 62.
The building for which this material was furnished was a hotel, with a wing; the latter, used for a barber shop, being entirely on the west half of lot 11, while the former was on the west half of lot 12, of block 19, in Bay City. The proof shows that the timber was used in both, which were being erected together, and it is not an unreasonable assumption that both were contemplated when the contract was made. We think they should be treated as one parcel, as defendants evidently treated them, and that the lien attached to both.
The remaining question pertains to the homestead rights of Mrs. Le Fevre. The defendants purchased the premises for a homestead before contracting, and moved upon them before the statement of lien was filed, with the design of making the same their home. They thereby made it a homestead, and the fact that the building erected and in which they reside is a hotel made no difference. Mills v. Hobbs, 76 Mich. 122; King v. Welborn, 83 Id. 195. To the amount of $1,500 it was exempt from this lien. Beyond that sum the lien attaches, and, as the premises cannot be divided, a sale affords the only means of reaching the excess. To hold that it could not be reached because indivisible would be to do violence to the plain intent of the statute, which, while it aims to afford every one a shelter, was not designed to enable one to defeat his creditors by so constructing valuable property as to make it difficult to divide it.
The decree of the circuit court will be affirmed, with costs.
The other Justices concurred. | [
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Grant, J.
Plaintiff is the owner of the record title to the land- in controversy. Defendant claims title by adverse possession. The land is described in the declaration as—
« That portion of Palms street lying north of the center line of said street, and south of the north line of said street, and abutting on lots ‘15 and 16 of block 1 of White’s addition to the city of Marquette.’’
From 1871 to 1880 the Champion Iron Company was owner of the governmental subdivision which included this land. The land was mainly unoccupied, but at some time a small house had been built upon it, but when or by whom does not appear. The owners of the land do not appear to have paid much attention to it for many years, though Mr. Peter White, of Marquette, had general charge of it. A fence had been built inclosing some of the land around the house. The land was platted in 1888. The house is in Palms street, and the land which defendant claims is directly in front of plaintiffs lots, on which he erected a house. One of his lots fronts on Palms street, and the other is on the corner of Palms and Champion streets. While he was building his house and improving his lots, he used the street covering the land in controversy, and built with reference to it. During this time defendant saw what he was doing, but made no objection or claim of ownership to him until after he had lived upon his lots six months, when she built a fence along the front of his lots. Poor people appear to have moved into this house at various times, and to have occupied it without paying rent, or claiming any right either to the house or to the land. One Hudson, a witness for the defendant, testified that he occupied the premises with his mother in 1873 and part of 1874; that his mother was poor, the house was empty, and he knew of no authority given them to occupy it; and that when his mother moved out the defendant moved in. Defendant occupied it until some time in 1888 or 1889, when she removed to another part of the city, but her daughter testifies that she left some goods in the house, and that she had boarders who slept there.
The character of the possession will appear from defendant’s own testimony:
“ Q. State how you came to go and live there.
“A. Well, a man by the name of Mr. Neif lived in the house, and my man worked there. We lived by the furnace, and he came into the house, and said that it was a good place for a poor family, and that it would be near his work, and he said that he lived in there quite a good many years, and he said that he never paid any rent, nor no rent was ever asked of him, he says; and he said he had poor health, and couldn’t do any work. He worked •on the docks. 'That I ain’t able to do,’ he says; 'I am going out west to get a bit of land.’ Well, then I saw my husband, and asked him whether I would go. I says, 'I would like to look at it;’ and he said it was pretty good, and 'you will never have to pay any rent.’ So I went and moved in there, to see how we would get along there, and I told Mrs. Swineford I would live there, and make it my home, and the rest of my family, and keep it; when nobody was looking for rent, I would keep it.”
On cross-examination she testified that, some five or six years after she went into the house, she had a conversation with a Mr. Ely, in which he told her that it was his brother and Mr. Wells who owned the house; and that •"the reason she kept it was because they were dead.”
Defendant’s daughter was asked what claim she heard her mother make, and she replied:
" Quite a few times, when I was going to visit her, she always said she was going to live there, -because my father, he wanted her to go out west, and she wouldn’t go; it was a wild place, and she had a place of her own.
" Q. Did she give any reason for her claim?
“A. She thought nobody had ever bothered her, and never had come to look for rent and bother with her place, and she thought she might as well stay there.”
On cross-examination this witness said that if her mother had had to pay rent she would not have lived there.
Meanwhile, the owners of the land paid the taxes, and the property was- sold and mortgaged, and the owners of the record title exercised the usual acts of ownership over land situated as this was.
Defendant was poor, and during a large portion of the time of her occupancy of this house was the recipient of aid from the poor fund of the county. Mr. Maynard, for many years one of the superintendents of the poor, testified that in 1885 she asked him to pay the rent of the house, saying she was not able to do it. Peter White testified that in 1880, after the land was sold by the Champion Iron Company, he had the entire charge of the property, paid the taxes, exercised other acts of ownership over it, and in that year asked the defendant to pay rent, and she replied that she was too poor to pay it. These statements were denied by her, and, so far as they are concerned, it was, of course, a question for the jury.
The following special questions were submitted to the jury at the request of defendant’s counsel, and respectively answered by the jury, as follows: ,
“ Q. Did the defendant occupy the premises in dispute, either by herself or her tenants and boarders, or both, for a period of 15 years, continuously, prior to the commencement of this suit, without recognizing any one as her landlord?
“ A. Yes.
“ Q. Did the defendant ever pay rent to any one for the. premises in dispute?
“A. No.”
1. The court, as requested, should have instructed, the-jury that the defendant had failed to establish title by adverse possession. She did not enter under any claim or color of right, nor in the belief that she had any right. Her entry and possession were the same as those of former occupants, who claimed no right to the property. She did not intend to retain possession, according to her own evidence, any longer than she could do so without the payment of rent. This was a recognition of title in some one-else, and was conclusive evidence that her entry and posses-, sion were subject to that title. The answers to the special questions do hot, of themselves, establish a case of adverse-possession necessary to establish title. Mere possession is not sufficient. It must not only be actual, continuous, visible, and notorious, but it must be hostile to the title of the real owner. An entry with the intent to remain in possession until the real owner claims it, or demands rent, is not hostile. These questions clearly gave the jury to understand that such possession was sufficient to establish title in defendant. Their verdict can be explained upon no other theory. Her actual residence upon the property was not 15 years. Including the time during which, according to her daughter's testimony, she had some goods in the house, her possession was barely 15 years. The statute of limitations, in such cases, begins to run only from some act of possession so open, notorious, and hostile that it constitutes, in law, a notice to the real owner. The entry, under the circumstances of this case, was not such an act. No subsequent act or assertion upon her part, even if sufficient, is shown to have occurred 15 years prior to the commencement of the suit.
It was said by Mr. Justice Campbell in Campau v. Lafferty, 43 Mich. 431, “that a holding cannot be adverse if the holder does not believe in his title.” It was also said in that case that “a possession may be maintained long enough by an undisturbed and defiant trespasser to bar an ejectment.” The defendant in this case did not believe in her title, nor was she a defiant trespasser.
%. It is contended that the plaintiff has no such title in this land as would sustain an action of ejectment. The-plaintiff is the owner of the fee of the land to the center of the street, and has the right to its use, subject to the public easement. He may set out shade trees, construct a sidewalk, and exercise other acts of ownership and possession which do not interfere with the public use. He has a valid and subsisting interest, under How. Stat. § 7790. The-rights of the public are not here in issue, and the question whether the municipality could maintain an action of ejectment is not involved. Plaintiff was ousted of his. possession and nse by the act of the defendant. TJndei such circumstances, ejectment is the proper remedy.
Judgment reversed, and new trial ordered.
The other Justices concurred. | [
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Sawyer, P.J.
Defendants appeal from a judgment of the circuit court in favor of plaintiff in this mineral rights dispute. We affirm.
Defendants are the former owners of certain real property located in Washington Township in Macomb County. Plaintiff acquired the property in order to improve Highway M-53 and was granted title in fee simple. However, it is undisputed that, pursuant to MCL 231.53; MSA 8.265(3), defendants retained the “fluid mineral and gas rights” in the property.
The issue on appeal is, once the fluid minerals and gas have been extracted from the property, does the resulting underground storage space that held those fluid minerals and gas belong to the surface owner or to the owner of the mineral rights. We agree with the trial court that the storage space, once it has been evacuated of the minerals and gas, belongs to the surface owner.
Section 3 of the Uniform Condemnation Procedures Act, MCL 213.53; MSA 8.265(3), provides that fluid mineral and gas rights are considered excluded when a government agency acquires an interest in land unless the instrument granting the land to the agency specifically includes those rights. It is undisputed that defendants retained the fluid mineral and gas rights when plaintiff acquired the property for the highway improvement project. At issue is whether the storage space is part of the mineral and gas rights. We conclude that it is not.
The statute does not define “fluid mineral and gas rights.” Accordingly, we are to give the phrase its plain and ordinary meaning. Great Lakes Sales, Inc v State Tax Comm, 194 Mich App 271; 486 NW2d 367 (1992). Black’s Law Dictionary (6th ed), p 995, defines “mineral right” as “[a]n interest in minerals in land, with or without ownership of the surface of the land. A right to take minerals or a right to receive a royalty.” Therefore, a mineral right is a right to the minerals themselves, not to the land surrounding the minerals. That is, defendants retained only a right to the fluid minerals and gas themselves.
This is consistent with the decisions in other states. In United States v 43.42 Acres of Land, 520 F Supp 1042 (WD La, 1981), the court considered the rights to profits from the storage of oil in caverns created from the mining of salt. The court concluded that the mineral owner possesses no ownership. interest in the subsurface strata containing the spaces where the minerals were found. Id. at 1046. Similarly, in South- er Natural Gas Co v Sutton, 406 So 2d 669, 671 (La App, 1991), the court held that surface ownership includes the right to use the reservoir underlying the surface for storage purposes.
In Emeny v United States, 412 F2d 1319 (Ct Cl, 1969), the defendant had obtained the gas rights to the plaintiffs’ property. The land contained an underground dome that, in its natural state, had contained a deposit of natural gas. The defendant was using the dome for the storage of helium gas. The court concluded that the defendant had only the right to explore for and extract the minerals for which it had rights and that the plaintiffs retained all other rights, including the use of underground structures for use to store “foreign” or “extraneous” gas produced elsewhere. Id. at 1323.
In Ellis v Arkansas Louisiana Gas Co, 450 F Supp 412 (ED Okla, 1978), aff’d 609 F2d 436 (CA 10, 1979), the court noted that although the English and Canadian rule is that the owner of the mineral rights retains an interest in the cavern that remains after the extraction of underground minerals, the American view is that the cavern is owned by the surface owners.
Accordingly, we conclude that a surface owner possesses the right to the storage space created after the evacuation of underground minerals or gas. While defendants may, of course, “store” any fluid minerals or gas native to the chamber that has not yet been extracted, they cannot introduce any foreign or extra neous minerals or gas into the chamber. Only the surface owner, in this case plaintiff, possesses the right to use the cavern for storage of foreign minerals or gas, and then only after defendants have extracted the native gas from the cavern.
Affirmed. Plaintiff may tax costs.
Plaintiff acknowledges that, as long as native fluid minerals or gas remain, it could not irvject its own foreign minerals or gas into the chamber because it would be impossible to segregate plaintiffs gas from defendants’ gas. | [
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Per Curiam.
Defendant pleaded guilty of unarmed robbery, MCL 750.530; MSA 28.798, and assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. He was sentenced to the respective terms of three to fifteen years’ and two to ten years’ imprisonment. Defendant originally filed a claim of appeal as of right while the prosecution filed an application for a delayed cross appeal. This Court granted the prosecution’s application for leave to appeal. Defendant’s claim of appeal was eventually dismissed by stipulation of the parties. Therefore, the only issue to resolve involves the prosecution’s challenge to defendant’s sentences. We affirm.
Defendant was originally charged with assault with intent to commit murder, MCL 750.83; MSA 28.278, and unarmed robbery. He agreed to plead guilty of assault with intent to do great bodily harm and of unarmed robbery in exchange for dismissal of the charge of assault with intent to commit murder.
At the plea hearing, defendant admitted that on February 7, 1993, he was involved in an assault on the victim in a parking lot in Madison Heights. Defendant admitted slapping the victim around and injuring her when he struck her in the face two or three times. When he left the scene of the crime, he believed that the victim was unable to move. Defendant also admitted that he aided and abetted his codefendant in rob bing the victim of her purse. The victim’s purse was later found in a garage at the house where defendant was then living.
The victim gave the court her version of the offense. The victim could not recall much of the crime, but remembered that she had been at a bar with a girlfriend and that she thought that she had had five or six drinks. The next thing that she could recall was two white males kicking and hitting her in the head and legs. She could not identify the men. She also recalled someone lying on top of her. She remembered waking up in a dumpster and she did not have any clothing on below her waist. She thought she was in the dumpster for hours. The victim found help at a nearby business.
The victim had bruises on her legs and the entire left side of her face was swollen. One of the bruises resembled a shoe heel. Her left eye was swollen shut. She was hospitalized for three days and, at the time of the plea hearing, she still had some bruising and swelling from the attack. She feared that the men involved in the attack would still come after her because they had taken her purse.
The trial court sentenced defendant to a term of three to fifteen years’ imprisonment for the unarmed robbery conviction and two to ten years’ imprisonment for the assault conviction. On the record at the time of sentencing, the trial court ruled that “You [defendant] will be scheduled for the prisoner sai [Special Alternative Incarceration] program” as part of its sentencing decision. The trial court also noted in the judgment that defendant was eligible to participate in the SAI program.
Defendant’s codefendant pleaded guilty of the same crimes and he was sentenced at the same hearing as defendant. The codefendant received sentences of six to fifteen years’ imprisonment and one to ten years’ imprisonment.
The prosecution filed a postjudgment motion asking the court to modify its sentencing decision regarding defendant’s eligibility for the SAI program (or boot camp). However, the trial court denied the motion for the following reasons:
The Court: The question here is whether or not the Court may revoke a sentence providing the S.A.I. Alternative Boot Camp if it’s otherwise been validly imposed and it was not objected to by the People. Under the circumstances, the Court does believe after reviewing both sentences itself— the Friday morning, I believe it was July 9th that it occurred, that there was more than adequate time on behalf of the People to object to any facet of this sentence that was being recommended by Probation. The Court painstakingly went through the Sentence Guidelines as to both Defendants and asked for each and every objection to accuracy or relevancy both by the People and the Defendant and as it relates to any other things they wish to say on behalf of their respective clients.
At no point did this Court observe, in reviewing the tape, that the S.A.I. Alternative Boot Camp was ever objected to and the Court believes under the circumstances that this Court is without authority' to modify the sentence as requested by the People. For those reasons, the Court denies the People’s request.
On appeal, the prosecution argues that defendant’s sentences violate the principle of proportionality because the trial court’s sentencing decision allowed defendant to serve the sentences in boot camp. The prosecution argues that the sentences are disproportionate because defendant actually served only a total of nine months (approximately five months in the county jail, one month in intake, and three months in boot camp). We need not reach the merits of the prosecution’s argument for the reason that the prosecution failed to object below to the sai placement alternative.
The trial court specifically provided at sentencing that defendant was eligible to serve time in boot camp pursuant to the Special Alternative Incarceration Act, MCL 798.11 et seq.; MSA 28.2356(1) et seq. This relatively new statute allows for certain offenders sentenced to prison to serve alternative sentences in boot camps if they meet the statutory eligibility requirements. MCL 798.13(2); MSA 28.2356(3)(2). Placement in a boot camp was formerly limited to defendants sentenced to probation, MCL 798.13(1); MSA 28.2356(3)(1).
An offender may be placed in an sai unit for not less than 90 days or more than 120 days, MCL 791.234a(6); MSA 28.2304(1)(6). Upon completion of the sai program, the prisoner is placed on parole for not less than eighteen months or the balance of the minimum sentence, whichever is greater. MCL 791.234a(7); MSA 28.2304(1)(7).
The SAI Act includes certain procedures and eligibility requirements. MCL 791.234a; MSA 28.2304(1) provides in relevant part as follows:
(1) A prisoner sentenced either before, on, or after the effective date of the amendatory act that added this section to an indeterminate term of imprisonment under the juris diction of the department shall be considered by the department for placement in a special alternative incarceration unit established under section 3 of the special alternative incarceration act, Act No. 287 of the Public Acts of 1988, being section 798.13 of the Michigan Compiled Laws, if the prisoner meets the eligibility requirements of subsections (2) and (3). For a prisoner committed to the jurisdiction of the department on or after March 19, 1992, the department shall determine before the prisoner leaves the reception center whether the prisoner is eligible for placement in a special alternative incarceration unit, although actual placement may take place at a later date. A determination of eligibility does not guarantee placement in a unit.
One of the eligibility requirements is that, at the time of sentencing, the trial court must not have prohibited the defendant’s participation in the SAl program, MCL 791.234a(2)(f); MSA 28.2304(l)(2)(f). MCL 791.234a(4); MSA 28.2304(1)(4) also addresses the procedures involved:
If the sentencing judge prohibited a prisoner’s participation in the special alternative incarceration program in the judgment of sentence, that prisoner shall not be placed in a special alternative incarceration unit. If the sentencing judge permitted the prisoner’s participation in the special alternative incarceration program in the judgment of sentence, that prisoner may be placed in a special alternative incarceration unit if the department determines that the prisoner also meets the requirements of subsections (2) and (3). If the sentencing judge neither prohibited nor permitted a prisoner’s participation in the special alternative incarceration program in the judgment of sentence, and the department determines that the prisoner meets the eligibility requirements of subsections (2) and (3), the department shall notify the judge or the judge’s successor, the prosecuting attorney for the county in which the prisoner was sentenced, and any victim of the crime for which the prisoner was committed if the victim has submitted to the department a written request for any notification pursuant to sec tion 19(1) of the crime victim’s rights act, Act No. 87 of the Public Acts of 1985, being section 780.769 of the Michigan Compiled Laws, of the proposed placement of the prisoner in the special alternative incarceration unit not later than 30 days before placement is intended to occur. The department shall not place the prisoner in a special alternative incarceration unit unless the sentencing judge, or the judge’s successor, notifies the department, in writing, that he or she does not object to the proposed placement. [Emphasis added.]
In the case at bar, the prosecution did not object at the time of sentencing to the trial court allowing defendant to participate in the sai program. The statute specifically provides that the trial court should make this decision at the time of sentencing and include it in the judgment of sentence. MCL 791.234a(2)(f); MSA 28.2304(1)(2)(f). We believe that the burden is on the prosecution to voice its objection to a defendant’s placement in the sai program at the time of sentencing, or the issue may be waived. See, e.g., People v Sharp, 192 Mich App 501, 504; 481 NW2d 773 (1992). As a matter of policy, the prosecution cannot raise postsentencing objections to matters that could have been raised at the time of sentencing. See, e.g., People v Pfeiffer, 207 Mich App 151, 159-160; 523 NW2d 640 (1994).
MCL 791.234a(4); MSA 28.2304(1)(4) provides certain postsentencing procedures for the resolution of this issue if the trial court did not decide eligibility at the time of sentencing. However, the prosecution risks waiving this issue if it does not preserve its objections at the time of sentencing where the trial court decides that a defendant is eligible for sai placement, as occurred in the case at bar. This issue should be resolved at the time of sentencing when all the parties are present and the court is in the best position to make its decision regarding the defendant’s placement. In re Dana Jenkins, 438 Mich 364, 370; 475 NW2d 279 (1991).
In this case, as the trial court noted, the prosecution was aware from the contents of the presentence investigation report that the probation department had recommended that defendant be placed in the sai program. The prosecution did not raise its objection to defendant’s placement in the sai program until after sentencing. This was too late to raise the issue when the trial court had made its decision at the time of sentencing. The trial court was also well aware of the victim’s version of this offense and the codefendant’s role when it decided that defendant was eligible for sai placement at the time of sentencing. The trial court procedurally made a valid decision at the time of sentencing regarding defendant’s eligibility for SAI placement as addressed in MCL 791.234a; MSA 28.2304(1), and the trial court lacked jurisdiction to grant a resentencing for this reason. In re Dana Jenkins, supra at 370.
We find that the prosecution waived objection to defendant’s placement in the sai program by failing to object at sentencing. We need not reach the issue whether the trial court’s sentencing decision that defendant was eligible for placement in the sai program is reviewable under the principle of proportionality or whether the sentences are disproportionate when the prosecution did not object at sentencing to defendant being placed in the sai program.
Affirmed.
MCL 791.234a; MSA 28.2304(1) was amended three times in 1994. Those amendments do not apply to this case where sentencing occurred in 1993. The version of the statute in effect at the time of sentencing was from 1992 PA 22. | [
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Jansen, P.J.
Defendant, J. Leonard Hyman, appeals by leave granted from an April 13, 1994, order of the Oakland Circuit Court compelling him to pay for the services of a court-appointed expert. We vacate the order.
This case arises from defendant’s departure from plaintiff law firm on December 28, 1990. Plaintiffs filed suit in the Oakland Circuit Court, alleging breach of contract, conversion, breach of fiduciary duty, interference with contractual business relations, and fraud. In an order dated April 2, 1993 (during the course of the litigation), the trial court appointed attorney Leonard Miller as an expert witness “to make findings of fact, conclusions of law and a final recommendation and proposed judgment as to the disposition of this matter by August 31, 1993.” Miller was given certain duties in the order, and he was given the authority to hire Gary Leeman, a certified public accountant, to assist him.
The parties later agreed to submit their dispute to binding arbitration. On May 24, 1994, the arbitrator issued an arbitration award, resolving the partnership dispute. On April 13, 1994, before the arbitration award was entered, the trial court entered an order compelling payment. Specifically, the trial court ordered defendant to pay $12,540 to the accounting firm of Leeman, Hollander and Associates for services rendered, $3,176 to Leonard Miller for services rendered, and a total of $2,400 for attorney fees and costs. Defendant then sought leave to appeal, which was granted by this Court on November 14, 1994. Defendant argues on appeal that the trial court did not have the authority to appoint Miller and Leeman as experts under MRE 706 or under the Michigan Constitution because the duties and responsibilities assigned to them essentially made them special masters rather than expert witnesses.
First, we address the question whether the matter was waived for appellate review because defendant never objected to the order appointing Miller and Leeman as experts. In a motion dated December 1, 1993, defendant objected to the proposed first trial and scheduling order. The motion raised the issues that defendant raises on appeal. However, no praecipe appears to have been filed regarding this motion, and the docket sheet does not indicate that oral argument was ever presented to the trial court or that the trial court ever ruled with respect to this motion. Additionally, defendant filed a motion to disqualify the presiding judge and the court-appointed expert in a motion dated December 8, 1993. That motion also raised the same issues that defendant now argues on appeal. The trial court did not rule with respect to the motion.
We believe that the issues are properly preserved for appellate review. Defendant raised the issues below in motions, and he “should not be punished for the omission of the trial court.” Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994). Because defendant raised the issues below and is pursuing them on appeal, the issues are properly before this Court. Id. Moreover, this Court may review an issue if the question is one of law and the facts necessary for its resolution have been presented. Brown v Drake-Willock, Int’l, Ltd, 209 Mich App 136, 146; 530 NW2d 510 (1995).
Defendant first argues that the trial court exceeded its permissible authority by delegating judicial authority to Miller and Leeman and that this delegation of power violated the Michigan Constitution. The judicial branch is provided for in article 6 of our state constitution. Const 1963, art 6, § 1 provides:
The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house.
Further, Const 1963, art 6, § 27 provides:
The supreme court, the court of appeals, the circuit court, or any justices or judges thereof, shall not exercise any power of appointment to public office except as provided in this constitution.
In Michigan, judicial power is vested in the courts under our state constitution. Johnson v Kramer Bros Freight Lines, Inc, 357 Mich 254, 258; 98 NW2d 586 (1959). Although the Supreme Court is empowered by the Michigan Constitution to authorize persons who have been elected and have served as judges to perform judicial duties for limited periods or specific assignments, Const 1963, art 6, § 23, there are no constitutional or statutory authorities permitting a circuit court judge the power to appoint a retired judge or any other person to sit as a court in a civil action. Brockman v Brockman, 113 Mich App 233, 237; 317 NW2d 327 (1982). Rather, Const 1963, art 6, § 27 specifically prohibits such action. In Brockman, this Court held that a Wayne Circuit Court judge was without constitutional or statutory authority to appoint a former circuit court judge to sit as the court and try the matter. Id., p 237.
In this case, the order appointing the expert witness purports to give the expert, under MRE 706, the power to “make findings of fact, conclusions of law and a final recommendation and proposed judgment as to the disposition of this matter by August 31, 1993.” The expert was also given the duties to review all motions and submit findings of fact to the court before the scheduled hearing date, to require the production of evidence, to issue subpoenas through the court, to conduct and regulate miscellaneous proceedings, to examine documents and witnesses, and to prepare final findings of fact and recommendations for judgment. The order permitted the parties to file written objections to the final findings and recommendations and permitted the court to adopt the expert’s recommendation and judgment, to modify the recommendation, or to refer the recommendation to the expert with further instructions.
We agree with defendant that there is no constitutional authority for the trial court to delegate specific judicial functions to an “expert witness.” It is within the peculiar province of the judiciary to adjudicate upon and protect the rights and interests of the citizens and to construe and apply the laws. Johnson, supra, p 258. Thus, the trial court could not delegate its functions of making conclusions of law, reviewing motions, requiring the production of evidence, issuing subpoenas, conducting and regulating miscellaneous proceedings, examining documents and witnesses, and preparing final findings of fact. Although this is what the trial court’s order purports to do, the court cannot appoint an expert witness to perform judicial functions. Accordingly, the trial court was without constitutional authority to delegate its specific judicial power to an expert witness.
We also agree with defendant that the trial court’s order is not in conformance with MRE 706. MRE 706 states in relevant part:
(a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness’ duties by the court in writing, a copy of which shall be filed with the clerk, or at conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness’ findings, if any; the witness’ deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.
Although MRE 706 clearly gives the trial court the authority to appoint an expert witness, the trial court could not delegate its judicial authority to the expert witness.
Our Supreme Court has explained that the function of an expert witness is to supply expert testimony. This testimony includes opinion evidence, when a proper foundation is laid, and opinion evidence may embrace ultimate issues of fact. However, the opinion of an expert may not extend to the creation of new legal definitions and standards and to legal conclusions. Downie v Kent Products, Inc, 420 Mich 197, 205; 362 NW2d 605 (1984). Further, an expert witness is not permitted to tell the jury how to decide the case. People v Drossart, 99 Mich App 66, 79; 297 NW2d 863 (1980). A “witness is prohibited from opining on the issue of a party’s negligence or nonnegligence, capacity or noncapacity to execute a will or deed, simple versus gross negligence, the criminal responsibility of an accused, or [the accused’s] guilt or innocence.” Id., pp 79-80. Therefore, it is error to permit a witness to give the witness’ own opinion or interpretation of the facts because doing so would invade the province of the jury. Id., p 80. An expert witness also may not give testimony regarding a question of law, because it is the exclusive responsibility of the trial court to find and interpret the law. Charles Reinhart Co v Winiemko, 444 Mich 579, 592; 513 NW2d 773 (1994).
In the present case, the trial court’s order assigned to the expert witness the duties to make findings of fact and conclusions of law, to review all motions, to require the production of evidence, to issue subpoenas through the court, to conduct and regulate miscellaneous proceedings, and to examine documents and witnesses and provided that the expert would be called to testify only if objections were lodged in writing. If the expert’s recommendation was adopted, the trial court would enter judgment in the same manner as if the action had been tried by the court. These duties are clearly judicial functions that cannot be delegated to an “expert witness.” These duties given to the expert witness are outside the scope of the duties of an expert witness as authorized by MRE 706.
Accordingly, the trial court’s order appointing an expert witness exceeded the authority implicit in MRE 706 by requiring the expert to perform duties outside the scope of the duties of an expert witness and within the purview of a court. The order appointing the expert witness is therefore vacated because the trial court was without authority to delegate its judicial power to an expert witness. The order compelling payment is also vacated because the order is based on an unauthorized appointment. Defendant cannot be required to pay for the services of the expert witness in this case where the appointment was not authorized by law.
Because of our resolution regarding the trial court’s order compelling payment, we need not address defendant’s argument that the trial court should have first ruled on his motion to disqualify.
The trial court’s order compelling payment is hereby vacated.
Reilly, J., concurred. | [
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Per Curiam.
On our own motion, we granted rehearing to review the apparent conflict between our initial opinion in this case and Cooper v Wade, 218 Mich App 649; 554 NW2d 919 (1996), released fifteen minutes before our decision was issued. After a thorough review of the relevant authority, we are persuaded that we reached the correct result. However, the Cooper opinion reached the opposite conclusion and, pursuant to Supreme Court Administrative Order No. 1996-4, we are bound to defer to Cooper. Accordingly, for the reasons set forth in Cooper, we modify our initial opinion in this case to reverse the circuit court order granting summary disposition for defendants. But for Administrative Order No. 1996-4, we would affirm the circuit court’s order. We briefly address what we perceive to be a flaw in the reasoning of the Cooper opinion.
In Fiser v Ann Arbor, 417 Mich 461, 469-472; 339 NW2d 413 (1983), our Supreme Court ruled that, under certain circumstances, a police officer involved in a high-speed chase may be held liable where his actions contribute to the injury of an innocent bystander. Subsequently, in Jackson v Oliver, 204 Mich App 122, 126; 514 NW2d 195 (1994), this Court held that while “police officers owe a duty to innocent bystanders . . . [w]e do not believe that the Fiser decision applies in a case where injuries were suffered by a fleeing wrongdoer.” The Jackson Court concluded that “[pjolice officers in pursuit of a suspect do not owe the suspect a duty to refrain from chasing the suspect at speeds dangerous to the suspect.” Jackson, supra, p 127. Note that both Jackson and Fiser address the issue strictly in terms of duty.
The present case and Cooper involve injuries suffered by individuals who do not fit neatly into the Fiser-Jackson paradigm — passengers in fleeing automobiles. While Fiser provides that police officers owe a duty to “innocent bystanders,” it would be difficult to categorize one traveling in a fleeing automobile as a “bystander,” whether innocent or not. Similarly, while Jackson sets forth that no duty is owed a fleeing wrongdoer, the wrongdoer in Jackson was the driver of the automobile, not a passenger.
We believe that Cooper is flawed in that it establishes a presumption, apparently irrebuttable, that a passenger is an innocent bystander and is, therefore, owed the duty set forth in Fiser regardless of the actions of that passenger. Cooper, supra, p 657, provides that “[t]o the extent that passengers within a fleeing vehicle are at fault for bringing about or continuing the police pursuit, such factors should be considered by the factfinder when considering causation and apportioning fault." (Emphasis supplied.) Thus, Cooper ignores the central principle of both Fiser and Jackson that one’s status as an innocent bystander or wrongdoer implicates the element of duly This questionable principle has already been followed, albeit in an unpublished opinion, where this Court quoted the very sentence quoted above in reversing the circuit court’s grant of summary disposition on the ground that no duty existed. Cantrell v Detroit, unpublished memorandum opinion of the Court of Appeals, issued October 25, 1996 (Docket No. 179873).
In the present case, the decedent made obscene gestures to the police and encouraged the driver to flee, facts that we omitted from our original opinion because we believed them to be immaterial. Under Cooper, they are indeed immaterial. Regardless of the acts of the passenger, Cooper states that the police officer still owes that passenger a duty.
In summary, we believe that Coopei• was wrongly decided because, in defiance of both Fiser and Jackson, it holds that the misconduct of a passenger in a fleeing vehicle has no bearing on whether the police owe that passenger a duty of care. Nevertheless, pursuant to Administrative Order No. 1996-4, we are bound to follow Cooper. Therefore, we reverse the order of the circuit court granting summary disposition in favor of defendants, concluding that a duty was owed the present decedent despite the fact that he made obscene gestures to the police and encouraged the flight that led to his death.
Reversed.
APPENDIX
Robinson v City of Detroit
Docket No. 176421. Released September 10, 1996 at 9:20 A.M.; publication held in abeyance November 4, 1996. Order holding publication in abeyance withdrawn January 9, 1997.
Before: O’Connell, P.J., and Gribbs and T. P. Pickard,* JJ.
T. P. Pickard, J. Plaintiff appeals as of right from the order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(7) and (10) in this wrongful death action. Defendants also cross appeal. We affirm.
The decedent, Courtney Henderson, was a passenger in a vehicle that was involved in a police chase. During the pursuit, the driver, Marcelle Blakeney, disregarded a red traffic signal and drove into oncoming traffic, causing a head-on collision with another vehicle and the death of Henderson. It was later determined that the car Blakeney was driving was stolen. Thereafter, the personal representative of Henderson’s estate, Debra Robinson, brought an action against defendants alleging that the officers were negligent or grossly negligent in the pursuit of the vehicle. Defendants filed a motion for summary disposition, claiming that defendants did not owe a duty to Henderson and that governmental immunity and the absence of gross negligence barred plaintiff’s claim. The trial court granted defendants’ motion, finding that defendants did not owe a duty to Henderson. The trial court also concluded that because defendants’ conduct was not the proximate cause of plaintiff’s injury, the gross negligence exception to governmental immunity, which at best would establish liability against only the individual officers, not the city, Gracey v Wayne Co Clerk, 213 Mich App 412; 540 NW2d 710 (1995), did not apply, and, as such, governmental immunity precluded plaintiff’s action.
The first issue to be decided is whether governmental immunity applied to relieve the police officers from liability. In deciding a motion for summary disposition under MCR 2.116(C)(7), the court reviews the plaintiff’s complaint to see whether facts have been pleaded justifying a finding that the recovery is not barred by governmental immunity. Vermilya v Dunham, 195 Mich App 79, 81; 489 NW2d 496 (1992). The trial court determined that in order for the gross negligence exception to governmental immunity, MCL 691.1407(2); MSA 3.996(107)(2), to apply, defendants’ actions must be “the” proximate cause of plaintiff’s decedent’s injury and because defendants’ conduct was not “the” sole proximate cause, governmental immunity applied and barred plaintiff’s claim. The trial court relied on Dedes v South Lyon Community Schools, 199 Mich App 385; 502 NW2d 720 (1993). However, the Michigan Supreme Court has since overruled the Dedes case and rejected a literal interpretation of the word “the” as used in MCL 691.1407(2); MSA 3.996(107)(2) preceding the words “proximate cause.” Dedes v Asch, 446 Mich 99; 521 NW2d 488 (1994). Therefore, we find that the trial court erred in requiring defendants’ conduct to be “the” sole proximate cause of plaintiff’s injury.
* Circuit judge, sitting on the Court of Appeals by assignment.
Nevertheless, the officers’ conduct did not amount to gross negligence because they had reason to pursue the vehicle in as much as Blakeney was driving erratically and because they activated their signals to notify Blakeney and others that they were in pursuit. A police officer confronted with criminal activity is not grossly negligent in resolving to apprehend the criminal, even if deadly force and concomitant danger to innocent civilians inevitably results. Brown v Shavers, 210 Mich App 272; 532 NW2d 856 (1995). Reasonable minds could not differ that this conduct did not amount to gross negligence. Pavlov v Community Emergency Medical Service, Inc, 195 Mich App 711, 719; 491 NW2d 874 (1992). Therefore, the trial court properly granted summary disposition in favor of the police officers. This Court will not reverse a trial court’s decision if the right result is reached for the wrong reason. In re Powers, 208 Mich App 582, 591; 528 NW2d 799 (1995).
The next issue is whether the motor vehicle exception to governmental immunity found at MCL 691.1405; MSA 3.996(105) applies to the City of Detroit. MCL 691.1405; MSA 3.996(105) creates an exception to governmental immunity with regard to the government agency, herein the City of Detroit, for the negligent operation of a motor vehicle owned by that government agency. Defendants argued that plaintiff did not plead operation of a motor vehicle because the facts involve a decision to pursue the vehicle, not the operation of a motor vehicle. We find that plaintiff adequately pleaded operation of a motor vehicle by pleading that the officers drove at too high a rate of speed and that the officers did not take proper safety precautions during the pursuit. Nolan v Bronson, 185 Mich App 163, 177; 460 NW2d 284 (1990).
The Court finds, however, that a question of law has been presented, that is, whether the officers owed a duty to Henderson. In Fiser v Ann Arbor, 417 Mich 461; 339 NW2d 413 (1983), Ewing v Detroit (On Remand), 214 Mich App 495; 543 NW2d 1 (1995), and Frohman v Detroit, 181 Mich App 400; 450 NW2d 59 (1989), the Courts determined that police officers owe a duty to an innocent third party who is injured as a result of a high-speed chase.1 In Jackson v Oliver, 204 Mich App 122; 514 NW2d 195 (1994), this Court determined that police officers do not owe a duty to the fleeing suspect in a police pursuit.
Unlike an innocent third party, a passenger has voluntarily placed himself in the hands of the driver. He can exercise control by encouraging the driver to stop and obey the police. This ability can dampen a driver’s urge to flee pursuing police officers, because the passengers can directly communicate with the driver.
As in most cases, the police must malee split-second decisions whether to pursue a vehicle, and, if they do pursue, whether to break off pursuit. In this case where a stolen car was being driven erratically, harm could have come to a passenger, if pursued or not pursued by the police (for example, if the driver was intoxicated and no pursuit was initiated and a passenger was later killed, would the decedent have filed an action against the police for failing to attempt to stop). Police should not be judged by hindsight. These types of situations require a bright-line rule. Here, as in Jackson, the police did not shoot at the driver or at his vehicle, they did not set a trap designed to make him lose control of his vehicle, and they did not intentionally ram his vehicle. They did not establish the speed of the chase and did not control the route, they simply attempted to prevent the decedent’s escape. This is not the use of excessive force, it is the use of minimal force. Id. at 127. The police did not dictate the degree of speed. What endangered the decedent was the deliberate and reckless conduct of the driver of the car in which the decedent was a voluntary passenger.
1 The Courts in Fiser and Frohman did not specifically address the issue of duty. However, the recognition of a cause of action implied a recognition of a duty to an innocent third party.
“Out of concern for public safety, police must sometimes allow fleeing suspects to get away.” Id. at 126. Oftentimes, however, police cannot ascertain if there is a passenger in the fleeing car, whether a passenger is encouraging a driver to flee, or whether a passenger is otherwise particeps criminis to some other offense. Indeed, if the passenger were a hostage, use of potential deadly force to immediately terminate the ongoing felony would be appropriate. Brown, supra. In making their split-second decision in regard to a chase, the police should only have to consider the safety of the innocent public, not what may be going on inside the car they are pursuing or who may be in the car.2
We hold that a passenger who is voluntarily in a fleeing car is not an innocent bystander and does not fall under the rule in Fiser. Plaintiff’s complaint was properly dismissed, because no duty was owed to the decedent by the City of Detroit and its police officers. In light of our decision above, the issue raised in the defendants’ cross appeal is moot.
Affirmed.
2 The question whether an involuntary passenger can or cannot be an innocent bystander under different facts, such as a kidnap victim, is better left for another day. The important policy question whether the police should attempt to save the kidnap victim from the fleeing suspect or terminate the chase to avoid further injury to the kidnap victim, is also beyond the scope of this opinion.
The term “bystander” is defined in the Random House Webster’s College Dictionary (1992) as follows: “a person present but not involved; onlooker.” Obviously, a passenger is involved when the automobile in which he is riding attempts to elude police apprehension, whether or not that passenger instigated the flight. Similarly, such a passenger may not reasonably be classified as a mere “onlooker.” | [
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Smolensk, P.J.
Defendant Meridian Mutual Insurance Company appeals by leave granted the order denying its motion for summary disposition pursuant to MCR 2.116(C)(10). We reverse and remand.
This case involves a request for declaratory relief that defendant is under a duty to defend and indemnify plaintiff McGuirk Sand & Gravel, Inc., in spite of the pollution exclusion contained in the parties’ commercial general liability insurance contract.
The City of Mt. Pleasant requested bids for the removal or demolition of various farm-related structures on land owned by the city. In particular, the work required the removal of two underground fuel storage tanks. Bidders were notified that the work required removal of all materials from the site for proper disposal. Plaintiff was aware that the tanks might contain contaminants that would have to be sent to a landfill. Plaintiff submitted a bid, specifically noting that “if any contaminated dirt is found upon the removal of tanks — all testing, digging & hauling will be extra.” Plaintiff was thereafter awarded the contract. A third tank was discovered, and plaintiff was authorized by, the city to also remove this tank. Before plaintiff removed the tanks, the city hired a waste hauler to pump out any contents remaining in the tanks. These contents were tested and, although determined to consist of water contaminated with petroleum, found to be clean enough to permit disposal at the city’s water treatment plant.
After the contamination was discovered, plaintiff hired GarTech Environmental Services, Inc., to test the soil for petroleum products for the purpose of establishing a clean closure and to monitor the removal of the tanks. One tank was removed without incident. A second tank leaked approximately one quart of material as it was removed,. The third tank disintegrated during the removal process, releasing up to ten gallons of liquid. The disintegrated tank, as well as soil that had come in contact with the released liquid, was dug up, placed on plastic sheets, and removed to a landfill. The remaining two tanks were taken to plaintiff’s shop. A “floor dry, . . . like cat litter” was spread on the bottom of the tanks, which, were then scraped with a drywall knife and cleaned. The scrapings were put in five-gallon pails and sent to a landfill for disposal. The two tanks were cut up and sold for scrap. GarTech did not test any of the soil excavated by plaintiff or prepare a report for closure because it was apparent that the property was polluted, as indicated by the strong smell of fuel from the ground where the tanks were removed.
After the city determined that the property and groundwater were contaminated, the city sued Union Land Company, a Michigan partnership that had formerly owned the property, and its partners, alleging breach of an environmental covenant in the sales agreement and claiming that the partnership and partners were liable to the city for all costs of remediation and cleanup of the contaminated soil and groundwater. The partners filed third-party complaints against plaintiff for contribution premised on claims of state and federal law violations, as well as negligence.
After defendant denied an obligation to defend or indemnify plaintiff in that action, plaintiff filed its complaint in this case, which asserted that defendant had the duty to defend and indemnify plaintiff in the underlying suit and sought declaratory relief to that effect, as well as damages for breach of contract. The coverage clause of the contract provides, in relevant part, as follows:
1. Insuring Agreement.
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damages” to which this insurance applies. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under supplementary payments — coverages a and b. This insurance applies only to “bodily injury” and “property damage” which occurs during the policy period. The “bodily injury” or “property damage” must be caused by an “occurrence.” The “occurrence” must take place in the “coverage territory.” We will have the right and duty to defend any “suit” seeking those damages.
The policy provides that “ ‘Occurrence’ means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”
After discovery was complete, defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that it had no duty to defend or indemnify plaintiff because the following provisions of the pollution exclusion of the policy unambiguously applied in this case to preclude coverage:
2. Exclusions
This insurance does not apply to:
* * *
f. (1) “Bodily injury” or “property damage” arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants:
* * *
(c) Which are at any time transported, handled, stored, treated, disposed of, or processed as waste by or for you or any person or organization for whom you may be legally responsible; or
(d) At or from any site or location on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations:
* * *
(ii) if the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize the pollutants.
* * *
(2) Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.
Following oral argument, the trial court denied defendant’s motion:
The court finds that . . . the plaintiff has set forth sufficient facts upon which viewed in a light most favorable to the plaintiff’s position would give rise to a dispute. I don’t think I need to necessarily get into all those facts. I think they’re rather evident. Therefore, the motion for summary disposition is denied, counsel.
This appeal ensued.
Defendant again argues that summary disposition was appropriate because the previously quoted provisions of the pollution exclusion of the contract unambiguously apply to preclude coverage in this case.
We review the grant or denial of a motion for summary disposition pursuant to MCR 2.116(C)(10) de novo. Stehlik v Johnson (On Rehearing), 206 Mich App 83, 85; 520 NW2d 633 (1994).
A motion pursuant to MCR 2.116(C)(10) tests the factual basis underlying a plaintiff’s claim. MCR 2.116(C)(10) permits summary disposition when except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to damages as a matter of law. A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party. [Id.\
We find the following analysis from our Supreme Court’s opinion in Allstate Ins Co v Keillor (After Remand), 450 Mich 412, 416-417; 537 NW2d 589 (1995), applicable to this case:
Allstate does not dispute coverage, so the only issue before this Court is whether that coverage is precluded by an exclusion. This, of course, means that the primary issue before this Court is one of policy interpretation. When interpreting insurance policies, a number of well-established rules guide the analysis. Those relevant here are succinctly recounted in Auto-Owners Ins Co v Churchman, 440 Mich 560, 566-567; 489 NW2d 431 (1992):
“An insurance policy is much the same as any other contract. It is an agreement between the parties in which a court will determine what the agreement was and effectuate the intent of the parties. Accordingly, the court must look at the contract as a whole and give meaning to all terms. Further, ‘[a]ny clause in an insurance policy is valid as long as it is clear, unambiguous and not in contravention of public policy.’ This Court cannot create ambiguity where none exists.
“Exclusionary clauses in insurance policies are strictly construed in favor of the insured. However, coverage under a policy is lost if any exclusion within the policy applies to an insured’s particular claims. Clear and specific exclusions must be given effect. It is impossible to hold an insurance company liable for a risk it did not assume. [Citations omitted.]”
The type of pollution exclusion at issue in this case is known as an absolute pollution exclusion. See Union Mutual Fire Ins Co v Hatch, 835 F Supp 59, 63-64 (D NH, 1993); Bureau of Engraving v Federal Ins Co, 793 F Supp 209, 211-212 (D Minn, 1992), aff'd 5 F3d 1175 (CA 8, 1993). Because the insurance industry was dissatisfied with both the judicial constructions given to the previous type of standard pollution exclusion (i.e.[ such exclusions contain a “sudden and accidental” exception to the exclusion and thus preclude coverage for damage caused by pollution unless the damage is sudden and accidental, see, e.g., American Bumper & Mfg Co v Hartford Fire Ins Co, 452 Mich 440, 449; 550 NW2d 475 [1996]; Auto-Owners Ins Co v City of Clare, 446 Mich 1, 8; 521 NW2d 480 [1994]; Traverse City Light & Power Bd v Home Ins Co, 209 Mich App 112, 115; 530 NW2d 150 [1995]) and the enormous expense and exposure resulting from the explosion of environmental litigation, the industry began to replace pollution exclusions containing a “sudden and accidental” exception with an absolute pollution exclusion. Union Mutual, supra at 64-65; Vantage Development Corp, Inc v American Environment Technologies Corp, 251 NJ Super 516, 525; 598 A2d 948 (1991); see also Center For Creative Studies v Aetna Life & Casualty Co, 871 F Supp 941 (ED Mich, 1994). The puipose behind this type of pollution exclusion is to eliminate all pollution claims. Vantage, supra at 525-526.
The vast majority of courts asked to interpret absolute pollution exclusions have concluded that the exclusions are unambiguous and operate to exclude coverage for all claims alleging damage caused by pollution. Union Mutual, supra at 65; but see West American Ins Co v Tufco Flooring East, Inc, 104 NC App 312, 315, 319; 409 SE2d 692 (1991). There is a definite national trend to construe such exclusions as clearly and unambiguously precluding coverage for claims arising from pollution. Employers Ins of Wausau v Duplan Corp, 899 F Supp 1112, 1129, n 13 (SD NY, 1995). Most courts that have examined similar exclusions have concluded that they are clear and unambiguous and are just what they purport to be— absolute. Northbrook Indemnity Ins Co v Water Dist Management Co, Inc, 892 F Supp 170, 173 (SD Tex, 1995).
Although there is no appellate authority in Michigan interpreting an absolute pollution exclusion, we agree with the above authorities that the absolute exclusion in this case is clear and unambiguous.
The allegations in the first two counts of the third-party complaints against plaintiff essentially allege that plaintiff is responsible under federal and Michigan environmental laws for the alleged contamination of the property because plaintiff released hazardous substances to the environment when the contents of one or more of the tanks ran onto and into the ground during and after plaintiffs excavation and removal of the tanks. The allegations in the third count of the complaint essentially allege that plaintiff had a duty to use due care when removing the tanks so as to avoid contaminating the property and that plaintiff breached this duty by failing, in part, to (1) completely remove the contents of the tanks before their removal, (2) provide containment for any hazardous substances remaining in the tanks, and (3) remove the tanks in such a manner as to avoid contaminating the soil and groundwater. The complaints allege that plaintiffs negligence caused the property to become contaminated. Thus, the third-party complaints allege “ ‘property damage’ arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants . . . [a]t or from any site or location on which [plaintiff was] performing operations to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize the pollutants.” Plaintiff contends that a question of fact exists concerning whether the property damage in this case arose out of a “discharge, dispersal, release or escape,” as those terms of art in environmental law are used, where the discharge that caused the substantial environmental damages in this case resulted from the tanks leaking diesel fuel and gasoline over a long period, not from the spills that occurred when plaintiff removed the tanks. We disagree. The policy excludes coverage for property damage arising out of even an “alleged . . . discharge, dispersal, release or escape.” In this case, the third-party complaints clearly allege that plaintiff “released hazardous substances to the environment in that contents of one or more of said tanks ran onto and into the ground during and after removal by [plaintiff].” Moreover, even giving the benefit of doubt to plaintiff concerning the facts presented in this case, there is no question that the spills of liquid from the tanks constituted an “escape.” See Center for Creative Studies, supra at 946 (noting that “escape” has been defined as “an ‘evasion of or deliverance from what confines, limits, or holds’ ”).
Plaintiff contends that a question of fact exists concerning whether the substance that leaked out of the tanks was a “pollutant” where this substance was not tested and is probably identical to the substance removed from the tanks by the city’s waste hauler, which was determined to be safe enough to dispose of directly into the city’s waste water system. We disagree. The policy defines “pollutant” without qualification, i.e., as “any . . . liquid . . . contaminant.” See also Protective Nat’l Ins Co of Omaha v Woodhaven, 438 Mich 154, 162-167; 476 NW2d 374 (1991). The third-party complaints essentially allege that plaintiff’s release of “hazardous substances” to the environment during its removal of the tanks resulted in the “contamination” of the property. Moreover, even giving the benefit of doubt to plaintiff concerning the facts presented in this case, there is no question that the substance that spilled from the tanks was a “contaminant.” Plaintiff concedes that the substance that leaked from the tanks during their removal was “probably . . . identical” to the substance removed from the tanks by the city’s waste hauler. This substance was tested and, although determined to be safe enough for disposal in the city’s waste water system, found to be “noncombustible water contaminated with petroleum.” In response to the question “Did you understand that the petroleum that would be in the tank or the soil would be regarded by the DNR as a contaminant?” plaintiff’s agent testified at his deposition that “any type of fuel oil or gasoline is considered a contaminant to the ground.” See also Guilford Industries, Inc v Liberty Mutual Ins Co, 688 F Supp 792, 794 (D Me, 1988), aff’d 879 F2d 853 (CA 1, 1989) (oil is a pollutant because it contaminates).
We conclude that even after looking behind the allegations in the third-party complaints there is no question that coverage is not possible for the claims asserted in this case. Woodhaven, supra at 160. Accordingly, the policy did not impose upon defendant a duty to defend or indemnify plaintiff. Id. We reverse the trial court’s denial of defendant’s motion for summary disposition and remand for the entry of an order granting summary disposition for defendant. We do not retain jurisdiction.
Reversed and remanded.
Plaintiff does not contend that it reasonably expected coverage. See, e.g., Keillor, supra at 417 (“The analysis of whether coverage is precluded by an exclusion does not end, however, with the rules of construction. A court may also consider the reasonable expectations of the insured.”). Thus, we decline to address this issue. But see Vantage, supra at 953 (Although an absolute pollution exclusion “may have the effect of ‘frustrating’ the abstract coverage wishes and desires of policyholders, the language of the exclusion is clear and cannot be viewed as frustrating their reasonable expectations in light of that policy language.”). | [
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Jansen, P.J.
These consolidated appeals are on remand from the Supreme Court for consideration as on leave granted. 452 Mich 870 (1996). Defendant Department of State Police and intervening defendant Motorola Communications and Electronics, Inc., appeal from a June 18, 1996, order of the Oakland Circuit Court issuing a preliminary injunction enjoining them from further construction of a state police communications tower on state-owned land located in the Township of Addison. We affirm.
In December of 1995, the State of Michigan purchased a parcel of land in Addison that was zoned SF-Suburban Farms. The property was purchased as a site for one of ápproximately 180 radio communications towers that make up the new statewide communications system for the state police. The tower at issue would have a triangular base of fifty-four feet and be approximately 485 feet high. The SF-district zoning does not permit this type óf structure because land use is restricted to a single-family residential dwelling. Communications towers are permitted in areas of the township zoned M-l Light Industrial.
The statewide communications system was approved by the Legislature in the 1990 capital outlay appropriations act, 1990 PA 253. Nearly $3 million was appropriated for completion of this network. See 1995 PA 128. The State of Michigan entered into a contract with Motorola to construct and install the communications towers. The state police purchased the property in Addison on December 15, 1995, for $57,000. On February 20, 1996, Jeff Steffel, commanding officer of the state police communications division, notified Robert Koski, the township supervisor, of the acquisition of the land by the state police and its intent to begin construction. Steffel’s letter also stated that “existing state law does not require this state communication system to comply with local zoning codes and building ordinances.”
On June 3, 1996, a subcontractor of Motorola began to dig the foundation for the tower. At that time, a township employee arrived with law enforcement officers, notified the workers that construction was in violation of a township ordinance, and stated that the workers would be arrested if work was not ceased by noon. The following day, the township filed a suit seeking to enjoin the state police from proceeding with the construction and to have the building of the tower declared a violation of the township ordinance, a nuisance per se, and a hazardous condition. The state police filed an answer and a counterclaim in which it sought to enjoin the township from interfering with construction of the tower and a declaration that the authority of the state police to place and construct the tower was not subject to the township’s ordinance.
A hearing was conducted on June 7, 1996. Although alternative sites were available and had been considered by the state, the present parcel was chosen ostensibly for economic reasons. On June 18, 1996, the trial court issued its opinion and order granting the township’s request for a preliminary injunction. The Department of State Police was enjoined from proceeding with the construction of the tower because it constituted a violation of the township’s ordinance.
Both the state police and Motorola advance similar arguments on appeal. They contend that the trial court abused its discretion in issuing the preliminary injunction because the four-part test set forth in Michigan State Employees Ass’n v Dep’t of Mental Health, 421 Mich 152; 365 NW2d 93 (1984), was not met by plaintiff. They essentially argue that the state police is not subject to the township’s zoning ordinance. The trial court ruled that the township had demonstrated that it was likely to succeed on the merits, that failure to grant the injunction would result in irreparable harm to the township, that the harm to the township outweighed the harm to the state police, and that imposition of the injunction would not result in harm to the public.
The grant or denial of an injunction is reviewed for an abuse of discretion. Senior Accountants, Analysts & Appraisers Ass’n v Detroit, 218 Mich 263, 269; 553 NW2d 679 (1996). Whether a preliminary injunction should issue is determined under a four-part analysis: (1) harm to the public interest if an injunction issues; (2) whether the harm to the applicant in the absence of a stay outweighs the harm to the opposing party if a stay is granted; (3) the strength of the applicant’s demonstration that the applicant is likely to prevail on the merits; and (4) a demonstration that the applicant will suffer irreparable injury if a preliminary injunction is not granted. Michigan State Employees Ass’n, supra, pp 157-158. Whether an injunction should issue will often also include consideration of whether an adequate legal remedy is available to the applicant. Id., p 158.
First, the trial court concluded that plaintiff was likely to succeed on the merits. This factor includes consideration of whether the state police, as a state agency, is subject to the township’s local zoning ordinance. Defendants contend that there is a presump tion of immunity and that state agencies are exempt from local zoning ordinances unless the Legislature evidences an intent to subject them to such laws. Our reading of Dearden v Detroit, 403 Mich 257; 269 NW2d 139 (1978),.and subsequent cases in this Court does not support defendants’ contention in this regard.
In Dearden, our Supreme Court held that legislative intent, where it can be discerned, is the test for determining whether a governmental unit is immune from the provisions of local zoning ordinances. Id., p 264. The Supreme Court compared the two acts at issue, the Township Rural Zoning Act (trza), MCL 125.271 et seq.-, MSA 5.2963(1) et seq., and the Department of Corrections act, MCL 791.201 et seq.; MSA 28.2271 et seq., and determined that the Legislature intended to vest the Department of Corrections with complete jurisdiction over the state’s penal institutions and that such jurisdiction would not be subject to the zoning enabling act. Dearden, supra, p 265. Therefore, we believe that the appropriate analysis is to compare the statutes at issue and discern the legislative intent to determine whether the state police is immune from the provisions of the trza. See also Kalamazoo v Dep’t of Corrections, 212 Mich App 570, 573; 538 NW2d 85 (1995); Nolan Bros of Texas, Inc v Royal Oak, 219 Mich App 611; 557 NW2d 925 (1996).
Under the trza, an enabling statute, townships are given the authority to regulate land use. Addison Twp v Gout (On Rehearing), 435 Mich 809, 813; 460 NW2d 215 (1990). The trza is a broad grant of authority. Id. The trza provides in part:
The township board of an organized township in this state may provide by zoning ordinance for the regulation of land development and the establishment of districts in the portions of the township outside the limits of cities and villages which regulate the use of land structures; to meet the needs of the state’s citizens for food, fiber, energy, and other natural resources, places of residence, recreation, industry, trade, service, and other uses of land; to insure that use of land shall be situated in appropriate locations and relationships; to limit the inappropriate overcrowding of land and congestion of population, transportation systems, and other public facilities; to facilitate adequate and efficient provision for transportation systems, sewage disposal, water, energy, education, recreation, and other public service and facility requirements; and to promote public health, safety, and welfare. . . . Ordinances regulating land development may also be adopted designating or limiting the location, height, number of stories, and size of dwellings, buildings, and structures that may be erected or altered, including tents and trailer coaches .... [MCL 125.271; MSA 5.2963(1).]
The trza only specifies that townships cannot regulate or control oil or gas wells and that an ordinance adopted pursuant to the trza is subject to the electric transmission certification act, MCL 460.561 et seq.; MSA 22.150(1) et seq. MCL 125.271(2); MSA 5.2963(1)(2). However, the trza does not specifically indicate whether the Legislature intended to subject the state police to local zoning ordinances. See Dear-den, supra, p 266.
Thus, we turn to the Michigan State Police act, MCL 28.1 et seq.; MSA 4.431 et seq., to determine if the Legislature intended to grant immunity to the state police from the provisions of the local zoning ordinance. MCL 28.7; MSA 4.437 provides:
The director shall provide the officers of the department with suitable uniforms, arms, equipment, quarters, and other articles necessary, and also the expense and means of travel and boarding them, if necessary. The director shall establish and maintain local headquarters in various places, and may do so by agreement, lease, or otherwise, so as to best establish the department throughout the various sections of the state where it will be most efficient in carrying out the purpose of this act, to preserve peace and prevent crime. The director shall fix the location of the various units of the department, the character of the training and discipline, and the general policy in respect to the use and employment of all members of the department.
Defendants contend that the statute’s mandate that the director shall establish and maintain local headquarters in various places should be read broadly to include communications towers of the sort at issue in this case. We cannot accept defendants’ argument in this regard, because statutory language is to be given its ordinary and generally accepted meaning unless the statute specifically defines a given term, in which case the statutory definition controls. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996). “Headquarters” is defined as “a center of operations, as of the police, a military commander, or a business, from which orders are issued.” Random House Webster’s College Dictionary (1995). Under this definition, a communications tower is not a headquarters.
Defendants also cite three public acts, 1990 PA 253, 1993 PA 19, and 1995 PA 128, as evidence of the Legislature’s intent to exempt the state police from any local zoning ordinances regarding construction of the communications towers. The Legislature authorized the Michigan Public Safety Communications System in the capital outlay appropriations acts of 1990 (1990 PA 253) and 1993 (1993 PA 19). In 1995, the Legislature appropriated $2,850,000 in general fund money to the state police to begin construction of the new public safety communications system. (1995 PA 128). A careful review of those acts reveals no legislative intent to provide the state police immunity from township zoning ordinances. In fact, those acts are silent regarding any legislative intent to vest the state police with complete jurisdiction over the communications tower such that it is not subject to a local zoning ordinance. A review of these public acts reveal that they are precisely what they are called: appropriations acts that provide for the division of capital among various state agencies.
Finally, defendants point to the Management and Budget Act, MCL 18.1101 et seq.; MSA 3.516(101) et seq. Specifically, MCL 18.1271(1); MSA 3.516(271)(1) provides that the Department of Management and Budget “shall establish, manage, and operate, through either state ownership or commercial leasing, telecommunications systems and service for the operations of state government.” However, as the trial court noted in its opinion, the statute does not reveal a legislative intent to exempt state agencies from local zoning ordinances when placing communications towers. Unlike Dearden, we are unable to find any legislative intent in the relevant statutes granting the state police immunity from the provisions of local zoning ordinances.
Accordingly, the trial court did not err in ruling that plaintiff made a strong showing that it could succeed on the merits. There is no indication in any of the relevant statutes that the Legislature intended to exempt the state police from local zoning ordinances, such as Addison Township’s, when constructing communications towers.
Next, the trial court concluded that plaintiff was not required to prove the existence of irreparable injury if the preliminary injunction was not granted. The trial court did not err in so ruling. The use of land in violation of a local ordinance is a nuisance per se. MCL 125.294; MSA 5.2963(24); High v Cascade Hills County Club, 173 Mich App 622, 629; 434 NW2d 199 (1988). A plaintiff is not required to show the existence of irreparable harm resulting from the maintenance of the nuisance. Id., pp 629-630. Because the communications tower constitutes a nuisance per se, plaintiff was not required to show the existence of irreparable harm.
Next, the trial court ruled that the harm to plaintiff in the absence of an injunction outweighed the harm to defendants if the stay was granted. We agree with the trial court’s reasoning in this regard. The trial court stated that the state police was not being denied the right to construct a communications tower because the state police was not without other recourse. In other words, the state police could erect a communications tower in Addison as long as it did not violate a zoning ordinance. Indeed, there is evidence in the record indicating that alternative sites are available. Because the local zoning ordinance is in effect to promote the public safety, health, and welfare, we agree with the trial court that the harm to plaintiff outweighed the harm to defendants in the absence of an injunction.
Finally, the trial court ruled that the imposition of an injunction would not result in harm to the public. As has been noted, there are alternative sites for the construction of the communications tower in Addison. Therefore, the state police is not without other recourse. The proposed construction of the tower in a residential area contravenes the local zoning ordinance and could pose a threat to the public safety. Moreover, the issuance of an injunction to enjoin the building of the tower is really the only remedy available to Addison. No monetary award could constitute a remedy for the township because this case involves the construction of a communications tower in a residential area.
Accordingly, we find that the trial court did not abuse its discretion in issuing the preliminary injunction to enjoin defendants from constructing the communications tower. The trial court properly found that plaintiff has shown that the preliminary injunction should issue under the four-part test set forth in Michigan State Employees Ass’n.
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Markman, P.J.
Defendant appeals as of right from an order granting plaintiffs motion for summary disposition. We affirm.
The facts in this case are not in dispute and are the subject of stipulation. Plaintiff, which manufactures and sells computers, uses some of these computers in its daily business operations in Michigan. Pursuant to a 1973 agreement with defendant, plaintiff paid a use tax on sixty percent of the manufactured cost of computers so used, which represented the price of the raw materials and component parts used to manufacture them. However, for the period between July 1, 1989, and December 31, 1991, defendant assessed plaintiff a use tax based on the manufactured cost of computers so used including materials, labor, and overhead costs. Plaintiff appealed this assessment, asserting that the basis for the tax should have been the cost of the raw materials and components. In 1994, plaintiff paid the disputed tax and interest in full so that it could pursue its case in the Court of Claims.
In the Court of Claims, plaintiff moved for summary disposition pursuant to MCR 2.116(C)(10). The only issue disputed by the parties was the meaning of “price,” as used in MCL 205.92(f); MSA 7.555(2)(f), the definitional statute for the use tax. The parties agreed that the statute provided for imposition of the use tax based on the “price” of the items in dispute. The Court of Claims found that the term “price” included only the cost of materials and did not include the cost of labor. It stated that defendant’s proposed definition of “price” as the full value of the property was inaccurate because the definition of “price” in § 2(f) does not refer to value. The court found defendant’s reliance on Honeywell v Dep’t of Treasury, 167 Mich App 446; 423 NW2d 223 (1988), for the proposition that a manufacturer that consumes its own product should pay use tax on the full manufactured cost of that product, to be misplaced. The court read Honeywell not to apply to all manufacturers, but only to manufacturer-contractors. For these reasons, the court held that the use tax could be imposed only on the cost of raw materials here and granted plaintiff’s motion for summary disposition.
On appeal, defendant contends that the trial court erred in its interpretation of the use tax statute and Honeywell.
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). “[T]he starting point in every case involving a statute is the language itself.” House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). Where a tax statute is the object of judicial construction, “ambiguities in the language . . . are to be resolved in favor of the taxpayer.” Michigan Bell Telephone Co v Dep’t of Treasury, 445 Mich 470, 477; 518 NW2d 808 (1994). This Court also reviews decisions on motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Stehlik v Johnson (On Rehearing), 206 Mich App 83, 85; 520 NW2d 633 (1994).
MCL 205.93(1); MSA 7.555(3)(1) states in pertinent part:
There is levied upon and there shall be collected from every person in this state a specific tax for the privilege of using, storing, or consuming tangible personal property in this state at a rate equal to 6% of the price of the property or services specified in section 3a. [Emphasis added.]
“Price” is defined in MCL 205.92(f); MSA 7.555(2)(f), which states in pertinent part:
“Price” means the aggregate value in money of anything paid or delivered, or promised to be paid or delivered, by a consumer to a seller in the consummation and complete performance of the transaction by which tangible personal property or services are purchased or rented for storage, use, or other consumption in this state, without a deduction for the cost of the property sold, cost of materials used, labor or service cost, interest or discount paid, or any other expense.
The Court of Claims held that under § 2(f), “the basis for the tax is the price, that is, the aggregate value in money of anything paid by a consumer to a seller.” It noted that “[p]rice is not defined in terms of value” and concluded:
The price of the subject property is the materials’ cost only. It does not include labor cost associated with manufacturing the property. Although use of the property triggers the tax, the basis for that tax is the price. That the property has value at the time of its use greater than the materials’ cost is not relevant.
With respect to § 2(f)’s preclusion of a deduction for labor costs, the court noted that because the cost of labor was not included in the “price” paid for the products in this case, it should not be included when valuing the item for purposes of the use tax.
Here, plaintiff is the consumer of the computer equipment at issue. Pursuant to § 2(f), the “price” consists of the “aggregate value in money” plaintiff “paid” to a seller for this equipment. Although plaintiff did expend money for labor and overhead in the construction of the computer equipment, it did not pay these moneys to a seller. The only “aggregate value in money of anything paid” for these products was the cost plaintiff paid for the raw materials. According to the plain language of the statute, the “price” paid by plaintiff, the consumer, to a seller was the cost of the raw materials of the computers.
In further support of its position, plaintiff cites Intl Business Machines Corp v Charnes, 198 Colo 374; 601 P2d 622. (1979), in which the same valuation problem occurred under Colorado’s similar use tax statute. In Chames, the plaintiff’s transfer of computers to its retail operation subjected the plaintiff to the Colorado use tax. Id. at 375. The plaintiff claimed that the taxable cost for these computers was the cost of materials, while the department of revenue claimed that the taxable cost should be the cost of the finished product. Id. at 376-377. The Colorado Supreme Court noted that the use tax is “supplementary” to the sales tax. Id. It then held at 377:
Given the supplementary nature and equalizing function of the use tax, the burden on the taxpayer should be no greater than necessary to compensate for the sales tax originally avoided on the purchases.
The court reasoned that to levy the use tax on the “full finished goods cost” would be tantamount to making the use tax a value-added tax. Id. at 377. It noted that the raw materials were not taxed initially because they were tentatively treated as wholesale until later events made it possible to determine then-correct classification. Id. at 378. It then held at 379:
Therefore, since it is the prior purchase for use in Colorado which — in essence — attracts the tax when later recharacterized, the item should be valued for tax purposes at the prior time and in the form in which it was then cast. The levy should not be imposed upon the value of an item as measured at the later time of its diversion to use or consumption by IBM. The state’s policy of equalizing taxes between sales and use tax obligors is fully satisfied by a tax upon IBM’s “materials cost.” [Emphasis in original.]
In Michigan, as in Colorado, “[t]he use tax is a complement to the sales tax and is designed to cover those transactions not covered by the General Sales Tax Act, MCL 205.51 et seq.) MSA 7.521 et seq. Honeywell, supra at 448. See also Nat’l Bank of Detroit v Dep’t of Revenue, 334 Mich 132, 141; 54 NW2d 278 (1952). We accordingly find the Chames court’s reasoning persuasive. Here, payment of a use tax based on the materials cost of the property at issue would fully compensate for sales taxes not collected at the time the raw materials were initially sold to plaintiff. Thus, the complementary nature of Michigan sales and use taxes buttresses the conclusion that here the use tax should be levied only on plaintiff’s materials cost for the computers at issue.
Defendant relies on Honeywell, supra, for the proposition that “price” includes the total cost of manufacturing a product. In Honeywell, the plaintiff, acting as a mechanical and electrical contractor, installed on the property of third parties fire and security systems that it also manufactured. Id. at 447. The plaintiff was assessed use tax on the total value of the finished products that it installed, including all manufacturing, fabricating, and processing costs. Id. at 448. This Court upheld this assessment, relying on an administrative rule promulgated by the Department of Treasury. Id. at 449-450. That rule, 1979 AC, R 205.71(6), stated:
Where a manufacturer affixes his product to real estate for others, he qualifies as a contractor and shall remit use tax on the inventory value of the property at the time the property is converted to the contract which value shall include all costs of manufacturing, fabricating and processing.
The Honeywell Court also stated that the legislative amendment of MCL 205.92(f); MSA 7.555(2)(f), effective in 1982, supported its conclusion that in cases such as this, the use tax should be assessed on the full value of the item installed by the manufacturer-contractor. Honeywell, supra at 451. Here, however, plaintiff is not a manufacturer-contractor, but a manufacturer-consumer. Plaintiff is not involved with affixing the property that it manufactures to the real property of a third party. Therefore, Honeywell, based on an administrative rule applicable to manufacturer-contractors who affix property to the real property of third parties, is inapplicable to this case.
Similarly, the amended portion of § 2(f) that defines “price” as exceeding the cost of materials is inapplicable to the present case. This portion of § 2(f) states in pertinent part: “The price of tangible personal property, for affixation to real estate, withdrawn by a construction contractor from inventory available for sale to others or made available by publication or price list as a finished product for sale to others is the finished goods inventory value of the property.” By its express terms, this definition of price is limited to property affixed to real estate by a manufacturer-contractor. The legislative history indicates that the purpose of the amendment adding this portion of the statute was to rectify the competitive advantage manufacturer-contractors enjoyed over other contractors by paying use tax on the inventory price rather than the sale price. House Legislative Analysis, HB 5207, January 7, 1983. Here, the parties stipulated that plaintiff is not a construction contractor and that the subject property was not affixed to any real estate. Accordingly, this portion of § 2(f) is inapplicable to the present case. Moreover, the Legislature’s articulation of a specific definition of “price” with respect to property affixed to real estate by a manufacturer-contractor, suggests strongly that this definition might not be equally applicable in other contexts. See Southwood v Jennings, 446 Mich 125, 142; 521 NW2d 230 (1994) (“We also recognize the principle that ‘express mention in a statute of one thing generally implies the exclusion of other similar things.’ ”). Accordingly, this amended provision of § 2(f) also supports the conclusion that here the use tax should be levied only on plaintiff’s material costs of the computers at issue.
Finally, defendant argues that by allowing plaintiff to pay a use tax only on the raw materials cost of the computer equipment at issue, plaintiff would have a tax advantage over its competitors. We assume that plaintiff’s competitors are other computer companies, which presumably may use their own manufactured computers for internal business operations and pay use tax only on the costs of raw materials of such computers. This situation is different from that addressed by the amendment of § 2(f) and in Honeywell — where a manufacturer-contractor’s savings on the use tax would have given such manufacturer-contractors a significant economic advantage over competing contractors who were not also manufacturers. Defendant’s argument that plaintiff will receive an unfair economic advantage over its competitors is not similarly compelling here.
For these reasons, we affirm the Court of Claims order granting plaintiff’s motion for summary disposition.
Affirmed.
The parties stipulated that plaintiff is not a manufacturer-contractor. | [
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Corrigan, P.J.
In this tax case, petitioners appeal by right the order of the Tax Tribunal denying the contractor petitioner an exemption from the sales and use tax on materials purchased for and used to construct a nonprofit nursing care and retirement facility. We affirm.
1. underlying facts and procedural history
Petitioner Canterbury Health Care, Inc., is a nonprofit subsidiary corporation of St. Luke’s Episcopal Church Home, which has traditionally served the aged and to which the Internal Revenue Service granted charitable tax status. Canterbury hired petitioner Granger Construction Company to build Canterbury-on-the-Lake, a continuing-care retirement center. Canterbury-on-the-Lake has three distinct but connected buildings containing 140 nursing beds, 39 assisted-living units, and 75 independent-living units; it began operating in February 1994.
In 1992, the Michigan Department of Treasury granted Canterbury an exemption from paying sales tax under MCL 205.54a(a); MSA 7.525(a), which provides in part that nonprofit hospitals or nonprofit homes operated by a regularly organized church “for the care and maintenance of children or aged persons” need not pay sales tax. The department also excused Canterbury from paying the use tax under MCL 205.94(i); MSA 7.555(4)(i), which exempts property or services sold to a nonprofit hospital or home for the care and maintenance of children or aged per sons operated by a regularly organized church. Canterbury thus did not have to pay sales or use taxes on tangible personal property that it purchased for the facility.
Granger, however, was not exempt from paying sales and use taxes on materials for the construction because property that Granger purchased was not deemed personal property when it was “sold” to Canterbury. For Granger, a contractor, to obtain an exemption from the taxes, statutory law requires that Canterbury-on-the-Lake meet the definition of a nonprofit hospital. MCL 205.94(1); MSA 7.555(4)(1).
In 1993, while construction of Canterbury-on-the-Lake was underway, Canterbury requested a revenue ruling on whether the materials purchased by Granger were tax-exempt, asserting that Canterbury-on-the-Lake was a nonprofit hospital. The parties stipulated that the buildings with the assisted-living units and the independent-living units did not meet the definition of a nonprofit hospital. At issue is the building with the 140 nursing beds, referred to in this opinion as the “nursing center.”
In his ruling, the Commissioner of Revenue for the Michigan Department of Treasury relied on the definition of “hospital” in the Administrative Code, 1979 AC, R 205.87, because the Use Tax Act, MCL 205.91 et seq.-, MSA 7.555(1) et seq., does not define the term. Rule 205.87 defines a hospital as “a separately organized institution or establishment, the primaiy purpose of which is to provide medical, obstetrical, psychiatric, or .surgical attention and nursing to persons requiring the same.” Also, the Department of Treasury relied on the Public Health Code’s list of a hospital’s functions, which include “inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician.” MCL 333.20106(5); MSA 14.15(20106)(5). The department denied Canterbury’s application for an exemption for Granger because the nursing center did not qualify as a hospital.
Petitioners thereafter asked the Michigan Tax Tribunal to declare the nursing center a nonprofit hospital and to exempt Granger from paying sales and use taxes. Petitioners then moved for partial summary disposition, urging the tribunal to adopt an expanded definition of a hospital. The Tax Tribunal declined to redefine “hospital” and ruled that Rule 205.87, cited above, would control in this case. The tribunal then denied petitioners’ motion for partial summary disposition. In 1994, the Tax Tribunal ruled on the remaining issue: whether the nursing center met the definition of a hospital under Rule 205.87. In a detailed opinion, the tribunal decided that the nursing center did not qualify as a hospital and that Granger thus was not entitled to a tax exemption. Petitioners appeal.
II. THE DEFINITION OF “HOSPITAL”
Petitioners first maintain that the Tax Tribunal misinterpreted the meaning of “hospital” in the Use Tax Act. Petitioners contend that the Legislature intended that facilities such as the nursing center would meet the definition of a nonprofit hospital. This Court has not had an earlier occasion to rule on the definition of a hospital under the Use Tax Act.
In reviewing decisions from the Tax Tribunal, this Court is limited to deciding whether the tribunal’s factual findings are supported by competent, material, and substantial evidence. More than a scintilla of evidence is required, although a preponderance of the evidence is not necessary. In the absence of fraud, this Court reviews whether the Tax Tribunal made an error of law or adopted an incorrect legal principle. Fairplains Twp v Montcalm Co Bd of Comm’rs, 214 Mich App 365, 372; 542 NW2d 897 (1995); APCOA, Inc v Dep’t of Treasury, 212 Mich App 114, 117; 536 NW2d 785 (1995). Additionally, petitioners ask this Court to examine the tribunal’s inteipretation of the Use Tax Act. Statutory interpretation is a question of law subject to review de novo on appeal. DeKoning v Dep’t of Treasury, 211 Mich App 359, 361; 536 NW2d 231 (1995).
A. HISTORY OF THE CONTRACTOR’S EXEMPTION
Petitioners contend that Granger is exempt from the use tax under the “contractor’s exemption,” MCL 205.94(1); MSA 7.555(4)(1), which states that the use tax does not apply to
[property purchased by a person engaged in the business of constructing, altering, repairing, or improving real estate for others to the extent the property is affixed to and made a structural part of the real estate of a nonprofit hospital or a nonprofit housing entity .... A nonprofit hospital or nonprofit housing includes only the property of a nonprofit hospital or the homes or dwelling places constructed by a nonprofit housing entity, the income or property of which does not directly or indirectly inure to the benefit of an individual, private stockholder, or other private person.
In 1949, the Legislature amended the Use. Tax Act to create the contractor’s exemption. The contractor’s exemption applied to tangible personal property that contractors purchased and used during the construction, alteration, or improvement of real estate owned by nonprofit groups, including hospitals. In 1970, the Legislature narrowed the contractor’s exemption by excluding all groups that previously had fallen within that exemption — except for nonprofit hospitals and nonprofit housing entities.
The sparse legislative history in existence shows that the 1969 bill to amend the contractor’s exemption was designed to limit the exemption. Executive Legislative Analysis, SB 1092 and SB 1093, November 7, 1969. In support of the limitation, the bill analysis noted that the estimated tax loss from the contractor’s exemption was about $10 million. The change was also recommended to ehminate any evasion when materials purchased for an exempt job would be converted for use on a taxable job.
B. LEGISLATIVE INTENT
When the Legislature narrowed the contractor’s exemption in 1970, limiting it to nonprofit hospitals and housing entities, it presumably was aware of the definition of hospital under Rule 205.87. AJDVO Systems, Inc v Dep’t of Treasury, 186 Mich App 419, 426; 465 NW2d 349 (1990). Had the Legislature disagreed with that definition, it could have defined that term differently in the Use Tax Act itself. “ ‘[Legislative silence in the face of an agency’s construction of a statute “can only be construed as consent to the accuracy of that interpretation.” ’ ” Dykstra v Dep’t of Natural Resources, 198 Mich App 482, 490; 499 NW2d 367 (1993) (citations omitted).
In construing statutory meaning, a court’s primary goal is to ascertain and give effect to legislative intent. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993); State Treasurer v Schuster, 215 Mich App 347, 351; 547 NW2d 332 (1996). This Court looks to the specific statutory language to determine the intent of the Legislature. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). The Legislature is presumed to intend the meaning that a statute plainly expresses. Vargo v Sauer, 215 Mich App 389, 395; 547 NW2d 40 (1996). Judicial construction of a statute is not permitted where the plain and ordinary meaning of the language is clear. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996); Dep’t of Treasury v Comerica Bank, 201 Mich App 318, 322; 506 NW2d 283 (1993).
Tax exemptions are the antithesis of tax equality. ADVO-Systems, supra at 423. Generally, tax exemptions are strictly construed in favor of the taxing authority. Saginaw General Hosp v Saginaw, 208 Mich App 595, 598; 528 NW2d 805 (1995). This Court should not, however, produce a strained construction that is adverse to legislative intent. Id. Under the clear language of the statute, the Legislature intended to limit the contractor’s exemption to apply to only those contractors constructing projects for nonprofit hospitals and nonprofit housing entities. Had the Legislature intended to expand the exemption, it would have included entities other than nonprofit hospitals and nonprofit housing facilities.
Additionally, the term “hospital” appears in MCL 205.94(i); MSA 7.555(4)(i), which states in pertinent part that the use tax does not apply to
[property or services sold to a school, hospital, or home for the care and maintenance of children or aged persons, operated by an entity of government, a regularly organized church, religious, or fraternal organization, a veterans’ organization, or a corporation incorporated under the laws of this state, if not operated for profit, and if the income or benefit from the operation does not inure, in whole or in part, to an individual or private shareholder, directly or indirectly, and if the activities of the entity or agency are carried on exclusively for the benefit of the public at large and are not limited to the advantage, interests, and benefits of its members or a restricted group.
In the above subsection, the Legislature listed particular entities as exempt: schools, hospitals, and homes for the care of children or aged persons. Like wise, the Legislature listed particular entities within the contractor’s exemption: nonprofit hospitals and nonprofit housing entities. Had the Legislature intended the contractor’s exemption to apply to a nursing care and retirement center such as Canterbury-on-the-Lake, it would have named specifically such facilities as it did in the above subsection.
Petitioners also argue that the nursing center’s lack of licensure as a hospital should not control whether it meets the definition of a hospital. Petitioners’ argument is baseless because the definition of a hospital under Rule 205.87 does not require licensure.
Petitioners next propose to borrow the definition of a hospital contained in the Hospital Finance Authority Act, MCL 331.31 et seq.-, MSA 14.1220(1) et seq. Petitioners failed to raise this issue below and failed to present authority for their proposition. Gortney v Norfolk & W R Co, 216 Mich App 535, 544; 549 NW2d 612 (1996); Ramsey v Michigan Underground Storage Tank Financial Assurance Policy Bd, 210 Mich App 267, 271; 533 NW2d 4 (1995). In any event, we decline to borrow definitions not involving tax exemptions.
C. THE DEPARTMENT OF TREASURY’S INTERPRETATION
When interpreting the contractor’s exemption, the Department of Treasury relied on the definition of a hospital under Rule 205.87. The Legislature is presumed to be familiar with the interpretation of a statute, especially when made by the administrative body charged with the duty of administering or enforcing that statute. Smith v Smith, 433 Mich 606, 637, n 3; 447 NW2d 715 (1989). Petitioners request this Court to construe the term hospital according to its common usage. This Court, however, generally defers to the longstanding construction of statutory provisions by a particular department of government. Bachman v Dep’t of Treasury, 215 Mich App 174, 182; 544 NW2d 733 (1996). We give great weight to the construction of a statute by the agency chosen to administer it. Auto Club Ins Ass’n v Comm’r of Ins, 144 Mich App 525, 530; 376 NW2d 150 (1985).
The Department of Treasury’s reliance on Rule 205.87 for the definition of hospital is reasonable. The Legislature’s failure to alter that definition when it amended the Use Tax Act reflects its acquiescence to that definition. We defer to the legislative intent and the department’s construction of the term hospital. We therefore hold that Granger is entitled to an exemption under the contractor’s exemption only if the nursing center satisfies the definition of a nonprofit hospital under Rule 205.87.
ffl. APPLICATION OF “HOSPITAL” UNDER RULE 205.87
Petitioners next vigorously contend that the nursing center is a nonprofit hospital under Rule 205.87. We cannot agree. To qualify as a nonprofit hospital under Rule 205.87, the nursing center must: (1) be a separately organized institution or establishment; (2) have as its primary purpose the provision of medical, obstetrical, psychiatric, or surgical attention and nurs ing; and (3) provide such services to persons requiring the same. Rule 205.87.
Regarding the nursing center’s separate identity, the building that houses the nursing center is apart from the independent-living unit and the assisted-living unit. For accounting purposes, the nursing center’s operating expenses are maintained independently from the other units. The nursing center has its own staff and its own budget. Although those facts support the conclusion that the nursing center is a separately organized establishment, the majority of facts prove otherwise.
In its application for tax-exempt status, Canterbury described the facility as one organization, not three separate units, and sought tax exemption for the single facility, not three separate units. The facility has one chief executive officer, not three. In its Articles of Incorporation, Canterbury-on-the-Lake describes itself as a continuing-care retirement center, not as three individual units. The facility has a common laundry room and a central kitchen. Enclosed corridors connect the three units to a fourth unit, the community center. The community center houses the examination rooms and the dental-care facility for the other three units. All three units receive hot water from the same source. Thus, the nursing center does not meet the separate identity criterion of Rule 205.87.
Additionally, the nursing center fails to meet the remaining requirements under Rule 205.87 that its primary purpose be to provide medical, obstetrical, psychiatric, or surgical attention and nursing to persons requiring such services. The nursing center does not provide services such as major surgery, labora tory support, or emergency care. The nursing center does not contain a pharmacy, an x-ray facility, an emergency room, or surgical operating rooms. Although staff performed minor surgical procedures in the patients’ rooms, the nursing center was not equipped to handle major surgical procedures. Canterbury-on-the-Lake’s administrator of health services admitted that the nursing center could not accommodate a patient who had broken a bone; instead, the staff would send the patient to a hospital. The nursing center does not provide those services typically offered by a hospital. The nursing center’s primary purpose is to provide nursing care, not hospital care.
Petitioners argue that the Rule 205.87 definition requires that a hospital provide only “medical . . . attention and nursing.” Even so, the nursing center’s capacity to provide medical care is limited. The inclusion of the terms “obstetrical, psychiatric, or surgical” care implies that the Legislature intended a more complex definition of a hospital, one that the nursing center does not meet.
Also weighing against petitioners is the nursing center’s licensure as a skilled nursing facility, not a hospital, by the Michigan Department of Health. Perhaps most telling is Canterbury’s description of Canterbury-on-the-Lake as a home for the care of children or aged persons, and not as a hospital, in its application for tax-exempt status. The record reflects more than a scintilla of evidence to support the tribunal’s decision that the nursing center is not a hospital. APCOA, supra.
Affirmed.
See MCL 205.51(c); MSA 7.521(c), which provides in part: “ ‘Sale at retail’ includes the sale of tangible personal property to persons directly engaged in the business of constructing, altering, repairing, or improving real estate for others except property affixed to and made a structural part of the real estate of a nonprofit hospital. ...”
As originally enacted in 1944, Rule 205.87 contained the word “and” before the term “surgical attention.” 1944 AC, R 205.87.
Petitioners claim that the department denied the exemption because Canterbury-on-the-Lake was not licensed as a hospital. Petitioners’ interpretation of the department’s decision is too narrow. A review of the decision reveals that the department also considered the legislative intent and the definition of a hospital under Rule 205.87 and under the Public Health Code.
Before the creation of the contractor’s exemption, the Use Tax Act did not contain the term “hospital” in the nonprofit exemption.
Tryc also involved the distinction between a nursing home and a hospital. In Tryc, however, the government immunity statute defined the term “hospital.” 451 Mich 135.
See note 3, supra.
Even accepting this argument, petitioners cannot prevail. The dictionary defines hospital as “an institution in which sick or injured persons are given medical or surgical treatment.” Random House Webster’s College Dictionary (1995), p 648. As will be discussed, the nursing center provides primarily nursing treatment and only limited medical treatment and minor surgical treatment.
In their appellate brief, petitioners have referred to the nursing center as a “hospital-type” facility and an “alternative” to a hospital.
We concede that “in today’s health care world, the lines between acute care hospitals and nursing homes have become increasingly blurred.” Tryc, 451 Mich 137, n 8. Considering that tax exemptions are strictly construed, however, a blurred line is nonetheless a line. To eliminate the distinction between a nursing home and a hospital under the Use Tax Act is a task for the Legislature, not for this Court. | [
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Per Curiam.
Plaintiffs appeal as of right an Ingham
Circuit Court order granting defendant’s motion for summary disposition. We affirm.
Plaintiff Michigan Association of Insurance Agents is a nonprofit trade association of independent insurance agents. Plaintiffs Flood Agency, Holt & Dimondale Agency, Independent Insurance Centre, Lansing Mutual Agency, Inc., Mason Insurance Agency, Inc., and Reid-Brower Insurance Agency are licensed independent insurance agencies that have placed worker’s compensation insurance business through defendant on behalf of clients. Defendant, Michigan Worker’s Compensation Placement Facility, is a statutorily created entity comprised of all insurers authorized to write worker’s compensation insurance in Michigan. MCL 500.2301; MSA 24.12301. Defendant’s purpose is stated in MCL 500.2301; MSA 24.12301 as:
(a) Providing worker’s compensation insurance to any person who is unable to procure the insurance through ordinary methods.
(b) Preserving to the public the benefits of price competition by encouraging maximum use of the normal private insurance system.
Agencies such as plaintiffs that are unable to find a private source of insurance for their clients that are employers may help them apply to defendant for insurance, and then defendant will assign them a carrier. The agencies receive commissions from defendant.
Concerned that employers who may have become insurable by private carriers were being unnecessarily insured through defendant, defendant notified plaintiffs and others in May 1994 that defendant planned to publish and sell “Assigned Risk Depopulation Reports.” The reports, which would be issued quarterly, would contain the following information for each employer whose insurance was expiring during the quarter: (1) the employer’s name, (2) a risk identification number, (3) premium paid, (4) the insurance expiration date, (5) class code, (6) experience modification, and (7) surcharges for all employers insured through defendant.
Plaintiffs objected to the publication of this information, claiming that they had a property right in the information concerning expirations that defendant planned to publish. Plaintiffs filed the instant suit in an effort to stop publication of the reports. In June 1994, the trial court granted plaintiffs a temporary injunction halting publication. Defendant moved for summary disposition in July 1994, and the trial court granted defendant’s motion and lifted the injunction.
Plaintiffs argue that the trial court’s grant of summaiy disposition was improper. Specifically, plaintiffs argue that the trial court’s findings were “in direct conflict” with the holding of Woodruff v Auto Owners Ins Co, 300 Mich 54; 1 NW2d 450 (1942). We disagree. In Woodruff, our Supreme Court was asked to decide the extent to which the American Agency System, a custom recognized in Michigan as being generally applicable to insurance agencies, affected the rights of the parties in the case, an insurance company and an agent who had been terminated. The Court’s discussion of the American Agency System included the following relevant passages:
The purport of the American Agency System is that upon termination of an insurance agency, if the agent’s financial obligations to the company are paid in full, all rights in the expiration data of existing insurance procured by the agent belong to him. [Id. at 58.]
and
We think it clear that the full purpose of and the need for the application of the custom established by the American Agency System is that the so-called clientele or established business of an insurance agent may be preserved to him as far as possible upon the termination of his agency. To this extent, and no further, the custom should be respected and enforced. [Id. at 60.]
Plaintiffs’ argument that the American Agency System as discussed in Woodruff should be extended to afford them protection of the expirations data at issue in the instant case must fail. Plaintiffs’ claim that defendant is “nothing more than an association of private insurance companies” and, therefore, subject to the insurance practices used in the private insurance industry, fails to recognize the crucial distinction that defendant is an entity that is statutorily created. Plaintiffs’ characterization of defendant as an “association of private insurance companies” is necessary to support their position that the American Agency System is applicable to the case at hand because of the lack of any industry custom specifically applicable to statutorily created entities such as defendant. However, such a characterization is unwarranted, and, thus, their position is untenable.
Defendant, a nonprofit organization, does not compete in the private insurance industry for customers; rather, otherwise uninsurable employers are sent to defendant for coverage. Furthermore, unlike private insurance companies, defendant was created by statute to fulfill certain purposes, namely, to provide worker’s compensation insurance to uninsurable employers and to encourage maximum use of the private insurance system. Publication of the Assigned Risk Depopulation Reports would aid in achieving these ends by helping to limit the number of those insured by defendant to only those employers who are truly uninsurable elsewhere and preserving the benefits of price competition by the movement of otherwise insurable employers from defendant to private carriers, which will reduce the rates being paid for worker’s compensation insurance.
Because the American Agency System does not apply to defendant, it cannot preclude defendant from publishing the Assigned Risk Depopulation Reports at issue. The trial court’s grant of summary disposition was proper.
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Smolensk, J.
This panel was convened pursuant to Administrative Order No. 1996-4 to resolve a conflict between the opinion previously issued in this case and the opinion in People v Lino (After Remand), 213 Mich App 89; 539 NW2d 545 (1995).
Defendant was convicted by a jury of assault with intent to rob while armed, MCL 750.89; MSA 28.284, and assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. Defendant thereafter pleaded guilty of being a second-offense habitual offender, MCL 769.10; MSA 28.1082. Defendant was sentenced as an habitual offender for the respective underlying convictions to concurrent terms of parolable life imprisonment and ten to fifteen years’ imprisonment!
Defendant appealed, raising several issues concerning his convictions and sentence of parolable life imprisonment. In particular, defendant argued before the initial panel in this case that his sentence of parolable life imprisonment was disproportionate. To support his argument that a sentence of parolable life “is just that, life,” defendant cited statistics indicating that few prisoners sentenced to parolable life are actually paroled. Defendant contended that a sentence of parolable life was thus “designed to punish the worst offender for the worst offense” where it was “clearly the longest possible sentence” that could be imposed for the assault with intent to rob conviction. Defendant argued that his sentence of parolable life was, accordingly, disproportionate because he was not the most serious offender, nor was his offense the most serious offense.
The initial panel in this case concluded that defendant’s sentence of parolable life imprisonment was proportionate. In so concluding, the initial panel fol lowed the statement by our Supreme Court in People v Merriweather, 447 Mich 799, 809; 527 NW2d 460 (1994), that the defendant in that case might have been better off with a sentence of parolable life, which would have brought the defendant under the jurisdiction of the Parole Board after serving ten years pursuant to the lifer law, rather than the sentence of 60 to 120 years’ imprisonment that had been imposed, which effectively denied the defendant parole eligibility because he would have to serve the minimum term less disciplinary credits before becoming eligible for parole pursuant to the legislation implementing Proposal B. However, the initial panel in this case was constrained under Administrative Order No. 1994-4 to follow Lino, supra, and People v Love (After Remand), 214 Mich App 296; 542 NW2d 374 (1995). In Lino, supra at 98, this Court held that a sentence of parolable life is greater punishment than a sentence of a lengthy term of years. In so holding, the panel in Lino, supra at 96, quoted the following statement by our Supreme Court in People v Timothy Moore, 432 Mich 311, 317; 439 NW2d 684 (1989): “ ‘On its face, the stated penalty for second-degree murder (“life, or any term of years”) indicates that a term of years is a lesser penalty than life.’ ” The panel in Lino, supra at 97-98, also cited statistical analyses indicating that prisoners serving parolable life are, in reality, rarely paroled. In Love, supra at 302, this Court relied on Lino to hold that the defendant’s sentences of sixty to ninety years’ imprisonment were less severe punishments than parolable life imprisonment. The initial panel in this case thus held that defendant’s sentence of parolable life was disproportionate where, under Lino and Love, it was required to consider a sentence of parolable life. as even more severe than a sentence of sixty to ninety years’ imprisonment.
Thus, the issue we are asked to resolve is whether a sentence of parolable life imprisonment is a greater punishment than an indeterminate sentence of a long term of years. We first note that in his supplemental brief to this panel, defendant’s proportionality argument has taken on a somewhat different twist than his argument to the initial panel. Defendant reiterates his position that life means life. In support of his position, defendant cites the legal hurdles contained in the lifer law that a prisoner who has served ten years of a sentence of parolable life faces before the prisoner may be released on parole, including a Parole Board interview, a public hearing, and the lack of an objection to parole by the sentencing judge or the judge’s successor. Defendant also cites statistics indicating that prisoners sentenced to parolable life are, in reality, rarely paroled. In a section of his brief titled “Comparing Apples to Oranges,” defendant then compares a sentence of parolable life and its atten dant parole considerations to a long indeterminate sentence and its attendant parole considerations, noting: (1) that a prisoner sentenced to a term of years for an offense subject to Proposal B must serve the minimum term of the sentence less disciplinary credits before becoming eligible for parole; (2) that an habitual offender sentenced to a term of years must serve the minimum term of the sentence without entitlement to disciplinary credits before becoming eligible for parole; and (3) that no judicial veto to parole exists in the case of a prisoner sentenced to a term of years. Defendant ultimately concludes that “it cannot logically be disputed that where a 40 to 60 year sentence is proportionate a life sentence would also be proportionate.” Defendant thus contends to this panel that his sentence of parolable life is disproportionate because it is “one of the longest possible sentences which could be imposed for this offense” (emphasis supplied).
We begin our analysis by ascertaining, apart from Lino, the present state of the law concerning the question whether parolable life constitutes a greater punishment than a term of years. As more than adequately discussed in both Lino and the prior opinion in this case, this Court has previously reached conflicting results concerning whether a sentence of parolable life is a more severe punishment than a sentence of a term of years. We decline to again review these opinions, but instead refer those interested to Lino and the previous opinion in this case. Suffice it to say that some panels have held that, as a matter of law, a sentence of parolable life is a greater punishment than a sentence of a term of years. See People v Oscar Moore, 164 Mich App 378, 390; 417 NW2d 508 (1987) , modified 433 Mich 851 (1989); People v McNeal, 156 Mich App 379, 381; 401 NW2d 650 (1986); People v Lindsey, 139 Mich App 412, 415; 362 NW2d 304 (1984). Conversely, in People v Hurst (After Remand), 169 Mich App 160, 168; 425 NW2d 752 (1988) , this Court concluded that a sentence of parolable life was a “better alternative” than a sentence of forty to eighty years’ imprisonment in light of the interplay between the lifer law and Proposal B.
In Timothy Moore, supra at 329, our Supreme Court held:
For the reasons stated earlier in this opinion, we hold that a “term of years” must be an indeterminate sentence less than life. It must be something that is reasonably possible for a defendant actually to serve.
The starting point for the Court’s analysis was the following statement: “On its face, the stated penalty for second-degree murder (‘life, or any term of years’) indicates that a term of years is a lesser penalty than life.” Id. at 317. The Court concluded that “[t]hus there are two types of sentences that a judge may impose upon a person convicted of second-degree murder — a sentence of life in prison, or a sentence of a term of years less than life.” Id. at 319. The basis for the Supreme Court’s statement and conclusion in Timothy Moore was contained in its quotation of this Court’s opinion in Oscar Moore:
“In [People v Johnson, 421 Mich 494, 497-498; 364 NW2d 654 (1984)], the Supreme Court wrote:
“ ‘The difference between a life sentence and an indeterminate sentence having a minimum and maximum term has been recognized by this Court since our decision in People v Vitali, 156 Mich 370; 120 NW 1003 (1909). We observed in Vitali that if a life sentence is imposed there can be no minimum term.’
“ ‘Accordingly, when a statute authorizes the imposition of a sentence of “life or any term of years” it allows the imposition of a fixed sentence — life—or an indeterminate sentence — any number of years. We observed in People v Blythe, 417 Mich 430, 434-435; 339 NW2d 399 (1983), that the Legislature viewed the phrase “life or any term of years” as descriptive of the maximum sentence only. The sentence concepts “life” and “any term of years” are mutually exclusive and a sentencing judge may (in the appropriate case) opt for either but not both.’
“If ‘life’ and ‘any term of years’ are mutually exclusive concepts, the Court’s statement that the latter allows imposition of ‘any number of years’ must mean ‘any number of years less than life.’ ” [Timothy Moore, supra at 318, quoting Oscar Moore, supra at 390 (emphasis in original).]
The Supreme Court explicitly distinguished this Court’s opinion in Hurst as follows:
In [Hurst, supra], the Court of Appeals concluded that, under present law, one is better off receiving a life sentence than a term of from 40 to 80 years in prison. Though our opinion today necessarily supports that conclusion, we otherwise offer no comment on that conclusion of Hurst, except to observe that it is for the Legislature to correct real and perceived inconsistencies in statutory sentencing law. [Timothy Moore, supra at 317, n 11.]
As explained in O’Dess v Grand Trunk W R Co, 218 Mich App 694, 699; 555 NW2d 261 (1996), quoting In re Cox Estate, 383 Mich 108, 117; 174 NW2d 558 (1970), which in turn quoted Chase v American Cartage Co, Inc, 176 Wis 235, 238; 186 NW 598 (1922):
‘ “When a court of last resort intentionally takes up, discusses and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.’ ” [Emphasis in original.]
Thus, it would appear that the statement and conclusion that was the starting point for our Supreme Court’s analysis in Timothy Moore (that the statutory phrase “any term of years” indicates that a term of years is a lesser penalty than parolable life) is binding on this Court.
In proceeding through its analysis, the Supreme Court in Timothy Moore, supra at 326, concluded that the trial court had abused its discretion in imposing a sentence (a term of one hundred to two hundred years’ imprisonment) that effectively foreclosed any future exercise of discretion by the Parole- Board, having previously concluded:
The Legislature has stated that persons convicted of second-degree murder are to be given either a sentence of life in prison or a term of years. For the reasons explained above, a term of years is an indeterminate sentence less than life. The Legislature has provided that persons sentenced to life or to a term of years are eligible for parole consideration in ten years. The people of this state, in enacting Proposal B effectively modified the lifer law to provide that a person sentenced to a term of years for an offense listed in Proposal b would not become eligible for parole until the minimum term was served. Neither the Legislature nor the people, however, have authorized the imposition of a nonparolable term of years. There is no indica tion that either the Legislature or the people intended such a drastic change in sentencing law. [Id. at 323.]
In Merriweather, supra, at 808, the defendant contended that his sentence of 60 to 120 years’ imprisonment for a conviction of first-degree criminal sexual conduct constituted an abuse of discretion because it denied him any chance of parole. Without citation to or discussion of Timothy Moore, a majority of our Supreme Court disagreed:
Assuming arguendo, “the only possible rationale for sentencing the defendant . . . was to effectively prevent the parole board from assuming jurisdiction,” post at 812, that is the precise result the electorate sought and obtained in the passage of Proposal B. The dissent’s assumption that it was unlawful for the trial court to exercise his [sic] authority to obtain the objective the law intended simply reveals the dissenters’ belief that, despite the Legislature’s provision for such sentences, trial courts should not be allowed to impose them under any circumstances. [Merriweather, supra at 810-811.]
In so holding, the Court noted that the defendant’s sentence satisfied every legislative requirement, i.e., it fell within the permissible range of sentences for defendants convicted of first-degree criminal sexual conduct, it was indeterminate, and “the fact that the defendant is not eligible for parole appears to be precisely what the Legislature intended” under Proposal B. Id. at 809. Unlike in its opinion in Timothy Moore, the Merriweather Court explicitly commented concerning whether a sentence of parolable life or a term of years would be a better alternative for a defendant:
The fact that it is paradoxical that the defendant might be better off with a sentence of life, which would make him eligible for parole, has nothing to do with a legislative inten tion that every prisoner should be eligible for parole. The Legislature has not seen fit to interfere with the voters’ directive that a defendant should not be parole eligible until completion of the minimum term. The paradox is the creature of this Court’s decision in [Johnson, supra], which held that a sentence of life imprisonment for murder was not a minimum sentence. [Merriweather, supra at 809-810.]
To further complicate the analysis, this Court, in People v Kelly, 213 Mich App 8, 14-15; 539 NW2d 538 (1995), held that Merriweather overruled the holding in Timothy Moore that a sentence for a term of years is invalid if it has the effect of keeping the defendant in prison for life because it precludes parole consideration. We are bound by the rule of law established in Kelly pursuant to Administrative Order No. 1996-4. However, an overruled proposition in a case is no reason to ignore all other holdings in the case. Michigan Millers Mutual Ins Co v Bronson Plating Co, 197 Mich App 482, 491; 496 NW2d 373 (1992), aff’d 445 Mich 558; 519 NW2d 864 (1994). Thus, the question arises whether Merriweather also overruled the statement in Timothy Moore that “the stated penalty . . . (‘life, or any term of years’) indicates that a term of years is a lesser penalty than life,” where this statement was the theoretical underpinning of the holding in Timothy Moore that a sentence of a term of years is invalid if it is not one the defendant can reasonably serve.
We need not decide this question. Even assuming for the purpose of this analysis that Merriweather did not overrule this aspect of Timothy Moore, we nevertheless conclude that Timothy Moore and Merriweather can be harmonized. When the phrase “life, or any term of years” is considered on its face, the plain statutory language indicates that life is a greater penalty than a term of years. Timothy Moore, supra; see also Oscar Moore, supra; McNeal, supra; Lindsey, supra. However, unlike in its opinion in Timothy Moore, our Supreme Court in Merriweather explicitly acknowledged that a defendant might be better off with a sentence of parolable life than a long term of years in light of the interplay between the lifer law and Proposal B. We believe this reasoning extends by analogy to an habitual offender sentence. Thus, in light of Merriweather, we cannot conclude that a sentence of parolable life is invariably a greater penalty than a sentence of a term of years. We conclude that Lino erred in so holding, and we overrule that holding.
When is a sentence of parolable life a greater penalty than a sentence of a term of years? Some comparisons will demonstrate the difficulty in answering such a question. As indicated previously, under the lifer law, a defendant sentenced to parolable life is subject to the jurisdiction of the Parole Board in either ten years, or, for crimes committed on or after October 1, 1992, fifteen years, and may be released on parole subject to the conditions, among others, that the defendant be interviewed by a Parole Board member, that a public hearing be held, and that the sentencing judge or his successor fails to object to the prisoner being paroled.
A defendant sentenced to a term of years either for an offense subject to Proposal B or under the second-offense habitual offender statute is not eligible for parole until the defendant has served the minimum sentence. A defendant sentenced for an offense subjéct to Proposal B is entitled to disciplinary credits, but a defendant sentenced as an habitual offender is not entitled to disciplinary credits. Under Merriweather, supra at 810-811, a sentence of a term of years is not invalid simply because it is so lengthy that parole eligibility is precluded and the sentence is effectively a life sentence without parole. See also Kelly, supra at 16.
Thus, under the lifer law, a twenty-year-old defendant sentenced to parolable life is subject to the jurisdiction of the Parole Board and may be released on parole at age thirty or thirty-five, depending on when the offense was committed. Conversely, the same defendant sentenced either for a Proposal B offense or as an habitual offender to a term of thirty to sixty years’ imprisonment would not be eligible for parole until age fifty (less disciplinary credits in the case of the defendant sentenced for a Proposal B offense). The same defendant sentenced to a term of sixty to ninety years’ imprisonment would not become eligible for parole until age eighty. Likewise, the same defendant sentenced to parolable life might never be paroled if, for instance, the sentencing judge objects.
A fifty-five-year-old defendant sentenced to parolable life is subject to the jurisdiction of the Parole Board and may be released on parole at age sixty-five or seventy, depending on when the offense was committed. Conversely, the same defendant sentenced either for a Proposal B offense or as an habitual offender to a term of thirty to sixty years’ imprisonment would not be eligible for parole until age eighty-five. The same defendant sentenced to a term of sixty to ninety years’ imprisonment would almost certainly never become eligible for parole. Likewise, the same defendant sentenced to parolable life might never be paroled if, for instance, the sentencing judge objects.
The analysis becomes even murkier when statistics are utilized to determine whether parolable life or a term of years is a greater punishment. In Lino, supra at 97-98, this Court cited the following statistics:
[Fjrom 1986 through 1990, only seven prisoners serving parolable life sentences were paroled. Of the 975 prisoners serving such a term in 1990, only two were paroled. Defendant Sentencing Book (1994 ed), p 95. In 1991, only one prisoner serving a parolable life term was paroled. In 1992, again only one prisoner serving a parolable term was paroled. During the last ten years, fifty prisoners serving parolable life sentences were actually paroled and the releases took place after the prisoners served an average of between 1572 to 1972 years. Dagher-Margosian, Life means life: parole rarely granted on nonmandatory life terms, 73 Michigan B J 1184-1185 (1994).
However, in this Court’s previous opinion in this case, the initial panel cited statistics indicating that thirty paroles were granted from 1979 to 1981, and that twelve prisoners serving parolable life were paroled in 1994. In his supplemental brief to this Court, defendant notes that “in 1995 only 3 lifers were paroled.”
The preceding discussion illustrates the difficulty in determining whether, and at what point, a sentence of parolable life is a more severe sentence than a sentence of a term of years. The obvious question then arises: Why must we make this determination? “The sentence concepts ‘life’ and ‘any term of years’ are mutually exclusive . . . .” Johnson, supra at 498. In light of the various factors involved, we could speculate endlessly in the case of a given defendant concerning whether a sentence of parolable life would constitute a more severe penalty than a sentence of a term of years. However, such speculation could never be fruitful because, as acknowledged by defendant in his supplemental brief, attempting to compare a sentence of parolable life to a lengthy term of years is akin to the proverbial comparison of apples to oranges. To require sentencing courts to engage in this sort of speculation would be beyond burdensome.
Accordingly, we decline to determine when, and under what circumstances, a sentence of parolable life is a greater penalty than a sentence of a lengthy term of years. Obviously, a sentence of parolable life is one of the most severe sentences a defendant may receive. Likewise, a sentence of a lengthy term of years that may prevent the Parole Board from assuming jurisdiction, thus effectively constituting a life term without parole, is one of the most severe sentences a defendant may receive. However, in fashioning a proportional sentence, a trial court need not determine what sentence would constitute the absolute greatest punishment under some theoretical spectrum of sentencing severity. Rather, we require only that in imposing a proportional sentence the sentencing court is cognizant of the applicable sentencing law. We specifically disapprove of the use of statistics in determining whether a given sentence is more severe than another sentence.
We now turn to a review of the proportionality of defendant’s sentence of parolable life in this case. We do so without reference to the sentencing guidelines. People v Zinn, 217 Mich App 340, 349; 551 NW2d 704 (1996). Defendant’s sentence was one the most severe penalties that could be imposed for his offense. However, as detailed in the previous opinion in this case, as well as indicated by defendant’s presentence investigation report, the circumstances surrounding defendant and his offense are most serious. In imposing a sentence of parolable life, the trial court properly considered the factors of societal protection, rehabilitation, deterrence, and punishment. In exercising its discretion, the court concluded that society needed protection from defendant for a long time in light of defendant’s ongoing criminal history and his malicious and gratuitous stabbing of the victim. We find no abuse of that discretion. Zinn, supra.
Finally, we have considered the other issues raised by defendant and agree with and adopt the findings of the previously issued and vacated opinion in this case.
Defendant’s convictions and sentences are affirmed.
Hood, P.J., and Gribbs, McDonald, and Fitzgerald, JJ., concurred.
The opinion, as well as the order vacating the opinion and convening this conflict resolution panel, are found at 217 Mich App 801 (1996) (hereinafter referred to as Carson I).
Carson I, supra at 805.
Carson I, supra at 805.
A defendant sentenced to parolable life for an offense committed on or after October 1, 1992, is not subject to the jurisdiction of the Parole Board until the defendant has served fifteen years. MCL 791.234; MSA 28.2304. In this case, defendant committed his offenses before October 1, 1992.
MCL 791.233b; MSA 28.2303(3).
Proposal B was an “[ijnitiated law of 1978, approved at the general election of November 7, 1978.” People v Timothy Moore, 432 Mich 311, 322, n 16; 439 NW2d 384 (1989).
Carson I, supra.
Carson I, supra.
See n 4, supra.
See n 5, supra.
MCL 769.12; MSA 28.1084; People v Lincoln, 167 Mich App 429, 430; 423 NW2d 216 (1987).
See ns 4, 5, and 11, supra.
Lino, supra at 95; Carson I, supra at 802-803.
The second-offense habitual offender statute under which defendant was sentenced in this case provides in relevant part as follows:
(1) If a person has been convicted of a felony, an attempt to commit a felony, or both, . . . and that person commits a subsequent felony within this state, the person shall be punished upon conviction as follows:
(b) If the subsequent felony is punishable upon a first conviction by imprisonment for life, then the court. . . may . . . sentence the person to imprisonment for life or for a lesser term.
(2) If the court pursuant to this section imposes a sentence of imprisonment for any term of years, the court shall fix the length of both the minimum and maximum sentence within any specified limits in terms of years or fraction thereof and the sentence so imposed shall be considered an indeterminate sentence. [MCL 769.10(l)(b) and (2); MSA 28.1082(l)(b) and (2) (emphasis added).]
In construing similar language in the fourth-offense habitual offender statute, MCL 769.12; MSA 28.1084, our Supreme Court in Timothy Moore, supra at 319, n 13, stated that this statute “can fairly be read to employ interchangeably the phrase ‘a lesser term’ and the phrase ‘any term of years.’ ”
As the author of this Court’s opinion in Love, supra, I simply note that this issue has been properly resolved through this Court’s conflict resolution procedure.
See n 4, supra.
See ns 5 and 11, supra.
See ns 5 and 11, supra.
Carson I, supra at 805.
Carson I, supra at 801 (Taylor, J., with J. P. Noecker, J., concurring), 808-809 (Jansen, P.J., concurring in part and dissenting in part). | [
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O’Connell, J.
Plaintiffs filed a complaint to quiet title to a strip of land situated between two parcels of property they own in Bay Township, Charlevoix County. The strip of land had been dedicated to Bay Township in 1911. Plaintiffs alleged that neither Bay Township nor the Charlevoix County Road Commission ever accepted the dedication. Defendants moved for summary disposition pursuant to MCR 2.116(C)(10). Plaintiffs responded by requesting summary disposition pursuant to MCR 2.116(I)(2). The trial court granted summary disposition for plaintiffs and ordered defendants to vacate the property. Defendants Bay Township and Charlevoix County Road Commission now appeal this order, arguing that the trial court erred in finding that the dedication had never been accepted. We affirm.
In August 1911, George and Laura Franklin platted a subdivision, Zenith Heights, in Bay Township, Charlevoix County. The plat stated that all streets and alleys shown on the plat were dedicated to the use of the public. A strip of land situated between Lots six and seven of the subdivision was dedicated as a road known as Birch Lane. Birch Lane ran from Valley Brook Avenue to Walloon Lake. On August 14, 1911, Bay Township approved the plat.
Plaintiffs bought Lot six in 1970, Lot seven in 1976, and Lot five in 1977. Plaintiffs built a residence on Lot seven, including a driveway that encroaches on Birch Lane. In 1993, plaintiffs filed a complaint to vacate Birch Lane and to obtain a declaratory judgment quieting title. Plaintiffs claimed that although the lane was dedicated to the township for use as a road in 1911, the offer of dedication was never accepted.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that the approval of the plat, the public expenditures for road maintenance in Zenith Heights, and the transfer of jurisdiction over the road to the commission pursuant to the McNitt act, 1931 PA 130, MCL 247.1 et seq.; MSA 9.141 et seq., indicated that the dedication had been accepted.
In response, plaintiffs argued that the evidence established that the dedication never had been accepted. Plaintiffs argued that because there never had been a McNitt act resolution accepting Birch Lane, and because plaintiffs had used the land in a manner inconsistent with public dedication, there was no acceptance. The trial court found that defendants failed to establish any act of formal acceptance and granted summary disposition for the plaintiffs.
A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. Lash v Allstate Ins Co, 210 Mich App 98, 101; 532 NW2d 869 (1995). The court must consider the pleadings, affidavits, depositions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Id. If it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment for the opposing party. MCR 2.116(I)(2). We review summary disposition decisions de novo, to determine “whether the prevailing party was entitled to judgment as a matter of law.” G & A Inc v Nahra, 204 Mich App 329, 330; 514 NW2d 255 (1994).
i
At issue in the instant case is whether Birch Lane, dedicated to the public in 1911, was ever accepted by a government authority. Defendants first claim that under the McNitt act, the defendant road commission assumed jurisdiction over all township roads in Charlevoix County, including Birch Lane. The McNitt act, which was repealed by 1951 PA 51, provided, in § 2, as follows:
On or before April first, nineteen hundred thirty-two, the board of county road commissioners in each of the several counties of the state shall take over and incorporate into the county road system, twenty per cent of the total township highway mileage so determined and fixed by the state highway commissioner in each township of their respective counties. Thereafter each such board of county road commissioners shall, on April first of each succeeding year, take over and incorporate into their county road system, an additional twenty per cent of such township highway mileage until the entire township highway mileage in all of the townships of each of such counties has been taken over and made a part of the county highway systems. In the year next following the taking over of all such highways all dedicated streets and alleys in recorded plats and outside of incorporated cities and villages shall be taken over and become county roads. [MCL 247.2; MSA 9.142.]
Defendants concede that they have been unable to locate evidence of a McNitt act resolution in which the defendant road commission assumed such jurisdiction, but they argue that defendant road commission acted consistently with the McNitt act and thereby assumed jurisdiction. The only evidence defendants offer in support of this contention is a McNitt act map that purportedly shows Zenith Heights and a 1938 highway planning survey of Zenith Heights indicating the total mileage of certified roads in the subdivision. The issue is whether this evidence establishes McNitt act assumption of jurisdiction over Birch Lane.
In Kraus v Dep’t of Commerce, 451 Mich 420; 547 NW2d 870 (1996), the Supreme Court considered the issue whether a general McNitt act resolution, in which the county declared that it had assumed jurisdiction over all township roads, constituted acceptance of a dedicated road that was not specifically named in the resolution. Id. at 425. The Court held that such a resolution was not effective acceptance:
Given that the McNitt act required county road commissions to take over township roads, we believe that, with respect to a McNitt resolution that was only general in nature, the instant panel’s holding would run the risk of imposing duties and financial responsibilities on a county for dedicated roads that the county did not knowingly or intentionally accept. [Id. at 429-430.]
The Court concluded that a McNitt resolution that did not expressly identify either the platted road in dispute or the recorded plat in which the road was dedicated was insufficient to effect manifest acceptance of the offer to dedicate the road to public use. Id. at 430.
In the instant case, defendants have produced no evidence of even a general McNitt resolution, but, instead, argue that, because defendant road commission took actions consistent with the McNitt act, its actions should be construed as acceptance. However, by analogy to Kraus, supra, such actions cannot constitute acceptance unless they specifically relate to the road or plat in question. Id. at 430.
The McNitt act map defendants offer as evidence does not relate to Birch Lane. Indeed, there is nothing on the map that indicates the purpose or significance of the map. We are unable to infer that the map establishes McNitt act acceptance of Birch Lane. Similarly, the mileage survey indicates that Birch Lane’s mileage has not been included in the total mileage of certified roads in Zenith Heights, evidence that militates against defendants’ position. Furthermore, we are unable to deduce from the survey that the information even pertains to the McNitt act in any way.
Therefore, in light of the dearth of evidence suggesting that defendants assumed jurisdiction over Birch Lane pursuant to the McNitt act, we conclude that the trial court properly determined that defendants presented insufficient evidence to withstand plaintiffs’ cross motion for summary disposition pursuant to MCR 2.116(C)(10) and (I)(2).
n
Defendant Bay Township next contends that summary disposition was inappropriate because, regardless of the issue of the McNitt act, it offered evidence to demonstrate acceptance of the dedication. However, as with defendant township’s argument in the context of the McNitt act, we again find the evidence advanced by defendant to be insufficient.
Our Supreme Court has recently held that in cases involving a petition to vacate property designated for public use, “the well-established rule is that a valid dedication of land for a public purpose requires two elements: a recorded plat designating the areas for public use, evidencing a clear intent by the plat proprietor to dedicate those areas to public use, and acceptance by the proper public authority.” Kraus, supra at 424. Public acceptance must be timely and must be disclosed through a manifest act by the public authority. Id. The public authority may accept the dedication formally, by confirming or accepting the dedication, or informally, by ordering the opening of the street or exercising authority over it by improvement or regulation. Id. The purpose of the requirement of public acceptance by a manifest act is necessary to prevent the public from becoming responsible for land that it neither wants nor needs and to pre vent the land from becoming waste property. Id. If an offer to dedicate platted roads is timely and effectively accepted by the respective township or county, the circuit court has no authority to vacate the roads absent the particular defendant’s consent. Id. at 424-425, MCL 560.226(1); MSA 26.430(226)(1).
At issue in the present case is the second element set forth in Kraus: acceptance. Section 253(1) of the Subdivision Control Act, MCL 560.101 el seq.; MSA 26.430(101) et seq., provides:
When a plat is certified, signed, acknowledged and recorded as prescribed in this act, every dedication, gift or grant to the public or any person, society or corporation marked or noted as such on the plat shall be deemed sufficient conveyance to vest the fee simple of all parcels of land so marked and noted, and shall be considered a general warranty against the donors, their heirs and assigns to the donees for their use for the purposes therein expressed and no other. [MCL 560.253(1); MSA 26.430(253)(1).]
However, the mere certification of a plat does not constitute acceptance of all the dedicated property. This Court held in Eyde Bros Development Co v Roscommon Co Bd of Rd Comm’rs, 161 Mich App 654; 411 NW2d 814 (1987), that although the statute appears to provide that the fee to dedicated parcels vests in the public by the recording of the plats, this interpretation is incorrect. Id. at 662. Instead, there is an additional requirement of acceptance by the government authority. Id. at 663-664. The Eyde Court held:
Acceptance of such parcels may be: (1) formal by resolution; (2) informal through the expenditure of public money for repair, improvement and control of the roadway; or (3) informal through public use. [Id. at 664.]
The Eyde Court based this interpretation on the Michigan Supreme Court’s interpretation of the predecessor statute, 1 Comp L 1871, p 467, in Wayne Co v Miller, 31 Mich 447 (1875). In Miller, the Supreme Court considered the meaning of this predecessor statute, which provided that a properly executed plat should “vest the fee of such parcels of land as are therein expressed, named or intended for public uses, in the county” in which such lands should lie. Id. at 447-449. This principle has recently been reiterated by our Supreme Court in Kraus, supra at 424-425. The Court concluded that the vesting is not automatic, because otherwise a municipality might become responsible for unwanted and unneeded public property. Id. The issue presented in the instant case is whether any of the actions taken by Bay Township constitute acceptance of the public lands dedicated in the Zenith Heights plat, particularly Birch Lane. The burden of proving acceptance of the offer is on the public authority; the burden of proving withdrawal of the offer is on the property owner. Id. at 425.
Defendant Bay Township argues that the approval of the plat on August 14, 1911, the public expenditures of money for road maintenance in Zenith Heights, and the township board’s formal acceptance of all public land within the township in 1979 constitute acceptance. We will consider each of these arguments in turn.
First, we consider whether Bay Township’s approval of the plat constituted acceptance of the plat’s dedication. The Supreme Court in In re Vacation of Cara Avenue, 350 Mich 283; 86 NW2d 319 (1957), equivocated on this issue. The Court stated that the approval of a plat “gives substance” to the conclusion that a dedication had been accepted, but also based its holding on the fact that the dedicated land had been formally accepted. Id. at 289-291.
The panels of this Court are divided with regard to this issue. In Bangle v State Treasurer, 34 Mich App 287; 191 NW2d 160 (1971), the plaintiffs petitioned for vacation of certain platted lands in Lake Township. Id. at 288. The township had approved the plat in 1916. Id. The trial court denied the petition. Id. On appeal, this Court held that the township’s approval of the plat constituted an acceptance of the dedication. Id. at 288-299. The Court held that because the dedication had been completed, the circuit court lacked jurisdiction to grant the petition under MCL 560.226; MSA 26.430(226). Id. at 289-290.
However, in Salzer v State Treasurer, 48 Mich App 34; 209 NW2d 849 (1973), a different panel of this Court declined to follow Bangle, swpra. In Salzer, the plaintiffs sought vacation of a parcel of property platted as a street, arguing that the offer of dedication had not been accepted. Id. at 35. The trial court, relying on Bangle, denied the petition because the plat had been approved. Salzer at 36. This Court determined that the Bangle Court “erroneously equated township approval of a plat with formal acceptance.” Salzer at 37. We must resolve this conflict in order to determine whether Bay Township accepted the Birch Lane dedication in 1911.
As quoted above, our Supreme Court recently held that the purpose of the requirement of public acceptance by a manifest act is necessary to prevent the public from becoming responsible for land that it neither wants nor needs and to prevent the land from becoming waste property. Kraus, supra at 424-425. We believe that the Court’s ruling in Salzer, supra, is consistent with this principle. Furthermore, the language found in judicial decisions concerning this issue suggests that a more specific act than approval of a plat is required. In Kraus, supra, the Supreme Court stated that acceptance “must be disclosed through a manifest act by the public authority ‘either formally confirming or accepting the dedication, and ordering the opening of such street, or by exercising authority over it, in some of the ordinary ways of improvement or regulation.’ ” Id. at 424, quoting Tillman v People, 12 Mich 401, 405 (1864) (emphasis supplied). The Eyde Court held that acceptance of dedicated parcels may be “(1) formal by resolution-, (2) informal through the expenditure of public money for repair, improvement and control of the roadway; or (3) informal through public use.” Id. at 664 (emphasis supplied). Mere approval of a plat, without any reference to acceptance of property dedicated by the plat, is insufficient under these standards to constitute acceptance. We resolve the conflict by adopting the law of Salzer. Accordingly, we conclude that defendant township’s approval of the original plat in the present case does not constitute acceptance of the dedicated land.
Defendant Bay Township also claims that it accepted the dedication when it made public expenditures for maintenance and improvement of Birch Lane. However, the record evidence indicates merely that members of the township board discussed underwriting the improvement of roads in Zenith Heights, including Birch Lane, in 1952. The record contains no suggestion that Birch Lane underwent any type of improvement at the hands of defendant township, and there is no evidence that funds were ever expended for this purpose. These acts are insufficient to constitute manifest acceptance of Birch Lane.
Finally, defendant Bay Township claims that it accepted the offer of dedication in 1979 by approving a resolution to formally accept all dedicated lands not yet accepted. Because this resolution specifically refers to Zenith Heights, we conclude, assuming that a township possesses such authority, this act would normally constitute acceptance by formal resolution. However, the Supreme Court held in Kraus, supra, that an acceptance must be timely, meaning it must take place before the offer lapses or before the property owner withdraws the offer. Id. at 425. In light of the fact that sixty-eight years passed between the dedication of the land and defendant township’s ostensible acceptance, we will consider whether the offer lapsed and whether plaintiffs withdrew the offer before this acceptance.
As long as a plat proprietor or his successors take no steps to withdraw an offer to dedicate land for public use, the offer is treated as continuing. Kraus, supra at 427. Whether an offer lapses or continues depends on the circumstances of each case. Id. In Kraus, the Court found that a lapse of eighty-six years was unreasonable and held that the offer was no longer valid where there had been no acceptance of the dedicated land. Id. at 434-435. In Shewchuck v Cheboygan, 372 Mich 110, 113-114; 125 NW2d 273 (1963), quoting Miller, supra at 449-450, the Supreme Court held that an acceptance eighty-seven years after the dedication was, similarly, unreasonably late, noting that “ ‘after any considerable lapse of time [such an offer] must be regarded as no longer open for acceptance, unless the circumstances are such as to make the offer continuous.’ ” In contrast, in Ackerman v Spring Lake Twp, 12 Mich App 498; 163 NW2d 230 (1968), this Court held that a twenty-six-year delay was not unreasonable. Id. at 501.
We believe that the present sixty-eight-year delay in accepting the dedication is more similar to the situations arising in Shewchuck and Kraus and, accordingly, conclude that the offer lapsed. Defendant township has offered no evidence that the offer was meant to continue indefinitely, and we consider three generations to be an unreasonable length of time to expect an offer to remain open. Therefore, we conclude that defendant township’s 1979 resolution accepting all dedicated lands, though sufficient in form, was enacted after the offer in the present case had lapsed. Accordingly, it may not constitute a valid acceptance.
Further, we also find that the offer was withdrawn. The withdrawal of an offer differs from the lapse of an offer in that the former requires an affirmative act, while the latter stems from inaction. An offer is withdrawn when the proprietors use the property in a manner inconsistent with public ownership. Kraus, supra at 431. What qualifies as inconsistent use will depend on the circumstances of each case, and acquiescence by one of the parties to the other party’s use of the property will often be pivotal. Id. Examples of inconsistent use have included the erection of buildings and fences and the planting of trees. Id. at 431-432. In Vivian v Roscommon Co Bd of Rd Comm’rs, 433 Mich 511; 446 NW2d 161 (1989), the Supreme Court held that a property owner’s occupancy of a dedicated alley by erecting a wooden and wire fence and by planting the area with large trees and underbrush for forty years was inconsistent with public rights. Id. at 520.
Plaintiffs have offered evidence that they built a driveway on Birch Lane in 1970. They also have offered evidence that the road commission acquiesced by informing plaintiffs that the township had no intent to develop the road. Defendants have not refuted this evidence. Although plaintiffs have not actually blocked access across Birch Lane, as was done in Vivian, supra at 520, we find that a driveway traversing the disputed property is inconsistent with public use of Birch Lane. By building the driveway and regularly parking cars there, plaintiffs have clearly evinced an intent to regard the parcel as their own property. There is no material issue of fact that defendant Bay Township did not make timely accept anee of the offer of dedication. The trial court properly granted the order of vacation.
in
Turning to the remaining issues raised on appeal, we decline to address the issue whether plaintiffs have improperly sought to have this Court decide the local issue of road-end access, as urged by defendant road commission, because this issue has no relevance to our resolution of the appeal. Although plaintiffs made reference to road access concerns in a supplemental brief in support of their cross motion for summary disposition, these matters were not necessary to the trial court’s decision, nor are they necessary to this Court’s decision.
Defendant road commission also maintains that the trial court’s decision violates Michigan public policy favoring lake access. However, this issue is not raised in the statement of questions presented. Review is therefore inappropriate. Hammack v Lutheran Social Services of Michigan, 211 Mich App 1, 7; 535 NW2d 215 (1995). Further, defendant road commission has failed to direct this Court’s attention to pertinent authority regarding this issue. Winiemko v Valenti, 203 Mich App 411, 419; 513 NW2d 181 (1994). Therefore, we consider the issue abandoned.
Finally, we reject the position that a 1978 addition to the Subdivision Control Act, MCL 560.255b; MSA 26.430(255b), creates a presumption that land dedicated to public use shall be presumed to have been accepted under the facts of the present case. The statute provides that the presumption is rebutted by competent evidence that “the dedication, before the effective date of this act and before acceptance, was withdrawn by the plat proprietor.” MCL 560.255b(2)(a); MSA 26.430(255b)(2)(a). This statute was enacted in 1978. Plaintiffs rebutted the presumption by competent evidence that they withdrew the dedication in 1970, which was before the effective date of the statute and defendant Bay Township’s attempted acceptance of the dedication in 1979.
Affirmed.
Although plaintiffs named many defendants in their complaint, including the Michigan Department of Commerce, only Bay Township and the Charlevoix County Road Commission have pursued appeals, and their appeals have been consolidated.
This is not the first instance in which an appellate court of this state has been asked to consider whether a dedicated street in the Zenith Heights subdivision had been accepted. In Richey v Shephard, 333 Mich 365; 53 NW2d 487 (1952), the plaintiffs, owners of Lot three, sued the defendants, owners of Lots one and two, when the defendants blocked access to Valley Brook Avenue. Id. at 366. The defendants claimed that Valley Brook “had ceased to be a street by abandonment and nonuse.” Id. at 367. The Supreme Court rejected this argument on the basis of evidence that Valley Brook had been frequently used for traffic. Id. at 368. Because the Supreme Court did not consider whether the dedication of Valley Brook would have been accepted absent such use, this decision does not settle the question whether Bay Township accepted all dedicated roads in Zenith Heights.
Whether the township had the authority to accept the offer of dedication in 1979 is questionable. Defendant road commission contended during oral arguments that it alone had such authority. However, because this issue has not been briefed on appeal, it is considered abandoned. Anchor Bay Concerned Citizens v Anchor Bay Bd of Ed, 55 Mich App 428, 431; 223 NW2d 3 (1974). | [
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Per Curiam.
Plaintiff, a lawfully admitted permanent resident alien who is not a United States Citizen, was denied a permit to purchase a pistol on the basis of MCL 28.422(3)(b); MSA 28.92(3)(b).* This statute only allows the issuance of a pistol permit to a “qualified” applicant who must necessarily be “a citizen of the United States.” Plaintiff subsequently sued defendant City of Troy and the Michigan State Police, arguing that MCL 28.422(3)(b); MSA 28.92(3)(b) is unconstitutional because it denies her equal protection. The trial court granted summary disposition for plaintiff, opining that the citizenship requirement of the statute is unconstitutional. The City of Troy now appeals by leave granted. We affirm.
The City of Troy argues that the trial court erred in finding that the United States citizenship requirement of MCL 28.422(3)(b); MSA 28.92(3)(b) is unconstitutional. We disagree and conclude that the trial court properly found that the citizenship requirement unconstitutionally discriminated on the basis of alienage.
MCL 28.422(3)(b); MSA 28.92(3)(b) provides that, in order to obtain a license to purchase or carry a pistol, the applicant must, among other things, be a citizen of the United States and a legal resident of Michigan. The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” US Const, Am XTV. The Equal Protection Clause directs that “ ‘all persons similarly circumstanced shall be treated alike.’ ” El Souri v Dep’t of Social Services, 429 Mich 203, 207; 414 NW2d 679 (1987). (Citation omitted.) Generally, a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny. Bernal v Fainter, 467 US 216, 219; 104 S Ct 2312; 81 L Ed 2d 175 (1984). Aliens lawfully within this country have the right to reside in any state “ ‘on an equality of legal privileges with all citizens under nondiscriminatory laws.’ ” Graham v Richardson 403 US 365, 378; 91 S Ct 1848; 29 L Ed 2d 534 (1971). (Citation omitted.) However, when dealing with a state law that “primarily serves a political function,” a rational basis test is used, even if the law classifies people on the basis of alienage. Cabell v Chavez-Salido, 454 US 432, 439; 102 S Ct 735; 70 L Ed 2d 677 (1982); El Souri, swpra at 208. In determining whether a rational basis analysis will be used, a court must examine whether the state’s sovereign authority is at issue. Cabell, supra at 438-440. Thus, for example, a rational basis test may apply to a state’s disallowing legal aliens from serving as public office holders or participating in other “state functions [closely] bound up with the operation of the State as a governmental entity . . . .” Id. at 439.
We conclude that the general rule requiring strict scrutiny, rather than the exception allowing use of a rational basis test, applies here. See Ambach v Norwich, 441 US 68, 75; 99 S Ct 1589; 60 L Ed 2d 49 (1979). The statute at issue in this case regulates who is eligible to purchase or carry a pistol. The purchase or possession of a pistol clearly is not a “function[] . . . bound up with the operation of the State as a governmental entity,” nor does it otherwise involve the implementation of the sovereign powers of a state. Cabell, supra at 439. Allowing or disallowing pistol possession is not “an element in ‘the State’s broad power to define its political community.’ ” Id. at 440. (Citation omitted.) Plaintiff does not fall under the “political function” exception to the general rule that alienage is treated as a suspect classification. Accordingly, a strict scrutiny analysis must be used in reviewing whether MCL 28.422(3)(b); MSA 28.92(3)(b) violates the Equal Protection Clause of the Fourteenth Amendment.
A statute reviewed under strict scrutiny will be upheld only “if the state demonstrates that its classifi cation scheme has been precisely tailored to serve a compelling governmental interest.” Doe v Dep’t of Social Services, 439 Mich 650, 662; 487 NW2d 166 (1992). The City of Troy argues that the statute in question is intended to limit the accessibility of concealable weapons to the general public because of their inherent danger. Assuming this is a sufficient governmental interest, we conclude that the statute, in its treatment of legal aliens, is not “precisely tailored to serve” that interest. Id. Although the state has an interest in regulating firearms to prevent persons who are dangerous from obtaining firearms, the statute, which prohibits the purchase of pistols by all noncitizens, fails to distinguish between dangerous noncitizens and those noncitizens who would pose no particular threat if allowed to purchase the weapons. Thus, the method adopted to achieve the goal of regulating weapons and limiting the accessibility of pistols is not precisely and narrowly tailored.
The trial court properly granted summary disposition for plaintiff because the citizenship requirement of MCL 28.422(3)(b); MSA 28.92(3)(b) violates the Equal Protection Clause of the Fourteenth Amendment. However, the remainder of the statute is still valid. People v Victor, 287 Mich 506, 511; 283 NW 666 (1939).
We affirm.
Effective April 1, 1996, the statutory language contained in MCL 28.422(3)(b); MSA 28.92(3)(b) has been renumbered and is now contained in MCL 28.422(3)(c); MSA 28.92(3)(c). 1994 PA 338.
The motion of the Michigan State Police for summary disposition was granted by the trial court, thus dismissing that party from the lawsuit. Plaintiff has not appealed this order.
The statute is only unconstitutional in requiring that applicants for a pistol license be United States citizens, discriminating against legal and illegal aliens alike. Had the statute excluded only illegal aliens, as opposed to all noncitizens, it may well have passed constitutional muster. See 18 USC 922(d)(5), which limits its prohibition of distribution of firearms to aliens who are “illegally or unlawfully in the United States.” | [
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Saad, P.J.
Plaintiffs are Macomb County taxpayers who invoke this Court’s original jurisdiction pursuant to Const 1963, art 9, § 32, and challenge the action of defendants in issuing limited tax obligation bonds to finance construction of a court and administrative complex for Macomb County at its county seat in Mt. Clemens.
FACTS
Over the past eight years, the Macomb County Board of Commissioners planned for the construction of a court and administrative complex to be located in downtown Mt. Clemens. The land for the project was acquired, and demolition of certain structures was completed by 1994. On the basis of the space needed, the board of commissioners concluded that the actual construction costs should be financed by the issuance of bonds.
Pursuant to Const 1963, art 9, § 6, the approved level of ad valorem taxes in Macomb County for all purposes is fifteen mills. Pursuant to the allocation made by the Macomb County Tax Allocation Board under MCL 211.211; MSA 7.71, the county’s share of the 15 mills is 5.19 mills. However, because property values have increased faster than general inflation, the “General Price Index” clause of the Headlee Amendment, Const 1963, art 9, § 31, has meant a rollback in the authorized tax rate to 4.7431 mills. MCL 211.34d; MSA 7.52(4). Of its authorized 4.7431 mill tax rate, the board of commissioners has elected to levy 4.2 mills for general operating purposes.
On the basis of general economic and population growth in Macomb County, the board of commissioners projected that, by borrowing the money to construct the planned judicial and administrative complex, the cost of construction could be fully amortized over a ten-year period without increasing the tax levy above the current 4.2 mills. Accordingly, the board of commissioners adopted a resolution of intent to bond on March 23, 1995, and announced its intent to have the Macomb County Building Authority actually undertake construction of the project, lease the complex to the county, and sell bonds to finance the construction and furnishing of the complex. The bonds would be backed by the full faith and credit of the county, with the specified limitation that the revenue to pay the bondholders would come from a combination of lease payments received from the county and allocations from the county’s general fund budget within its authorized 4.2-mill limitation.
The statutorily required notice of intent was published in The Macomb Daily, a newspaper of general circulation in Macomb County, on May 10, 1995. MCL 123.958b; MSA 5.301(8b). This notice advised Macomb County citizens of their right to petition for a referendum concerning the question whether this means of financing should be undertaken. The county clerk received no petitions calling for a referendum within the statutorily allowed forty-five-day period for presenting such a challenge. MCL 123.958b(3); MSA 5.301(8b)(3).
On October 6, 1995, the building authority adopted a resolution authorizing the sale of the bonds to finance the project. The amount of the bonds authorized was fixed not to exceed $16,425 million. Bids for the bonds were received and opened on January 23, 1996; the building authority made its award to the-successful bidder on January 25, 1996. On February 5, 1996, the transaction was closed by delivering the bonds in the amount of $12,000,000 in exchange for receipt of the loan proceeds.
After the underwriters paid cash equivalents for the bonds and the bonds were sold on the open market, this action was filed on February 9, 1996.
ANALYSIS
The bonds, on their face, are designated as “limited tax obligation bonds.” As compared with the numerous other forms of public obligation bonds recognized in Michigan jurisprudence, including general obligation bonds, revenue bonds, and tax increment financing bonds, Advisory Opinion on Constitutionality of 1986 PA 281, 430 Mich 93; 422 NW2d 186 (1988), limited tax obligation bonds are structured such that the source of repayment is limited to the general fund revenues of the issuing public authority, including ad valorem taxes and other unrestricted revenue sources. See Advisory Opinion on Constitutionality of 1976 PA 295, 1976 PA 297, 401 Mich 686, 710-711; 259 NW2d 129 (1977). Significant to plaintiffs’ constitutional challenge to the issuance of bonds to finance this building, the pledge of the county’s “full faith and credit” in this context, imposes no obligation on the county to levy additional taxes, beyond the rates or amounts authorized by law, in order to fulfill the repayment obligation to the bondholders. In this regard, a bond is a contract, State Hwy Comm’r v Detroit City Controller, 331 Mich 337; 49 NW2d 318 (1951), and in this contract the county has limited its undertaking with respect to the obligation of repayment. This contrasts with general obligation or special assessment bonds backed by the full faith and credit of a municipality, which signify an undertaking to “levy a tax on all taxable property in the [municipality] for the payment of principal and interest on the bonds without limitation as to rate or amount and in addition to all the other taxes which the [municipality] may be authorized to levy.” MCL 41.735; MSA 5.2770(65). Pleasant Ridge v Royal Oak Twp, 328 Mich 672; 44 NW2d 333 (1950).
Because the bonds that were issued were limited tax obligation bonds, we may dispose of the frivolous contention made by plaintiffs that such limitation is ineffectual by virtue of § 6097(1) of the Revised Judicature Act, MCL 600.6097(1); MSA 27A.6097(1). RJA § 6097(1) provides generally that if a judgment is rendered against any municipality (as after a suit by bondholders following a default), the legislative body of that municipality may issue certificates of indebtedness or bonds of that municipality for the purpose of raising money to pay the judgment. This argument fails for two reasons. One, if such bonds would cause the municipality to exceed its authorized rate of taxation, Const 1963, art 9, § 31 would preclude issuance of such bonds without prior approval by the electorate. Indeed, RJA § 6097, as amended by 1984 PA 393, effectively incorporates this constitutional limitation by explicitly stating that such authorization grants permission to issue such bonds “unless otherwise provided.”
With regard to plaintiffs’ constitutional challenge, a bond is a contract between the bondholder and the issuing public authority, and a bondholder, as obligee, cannot demand any remedy or enforcement mechanism for fulfillment of the obligation greater than the undertaking of the contract itself. Keefe v Clark, 322 US 393; 64 S Ct 1072; 88 L Ed 1346 (1944). Accordingly, plaintiffs’ argument that the limitation of the county’s repayment obligation to existing general revenues is illusory is incorrect, and, for this reason, its challenge must fail under art 9, § 32.
This is an original action brought pursuant to Const 1963, art 9, § 32, which invokes this Court’s jurisdiction as of right. It is to be noted that this action was commenced within one year not only of the issuance of the bonds themselves, but also of the adoption of the resolution of intent to bond. Accordingly, the present action is not barred by the one-year period of limitation established in § 308a(3) of the Revised Judicature Act, MCL 600.308a(3); MSA 27A.308a(3).
Nonetheless, we agree with defendants that the action is barred by a related preclusive doctrine established in Bigger v Pontiac, 390 Mich 1, 4-5; 210 NW2d 1 (1973). Bigger dealt with a constitutional challenge to the issuance of public obligation bonds that had been brought before actual issuance and sale of the bonds. There, the suit was deemed untimely because it was not commenced until soon before the planned date of issuance of the bonds and thus would have prevented an orderly process of adjudication. However, the applicability of Bigger is broader than this. As interpreted by this Court and the Supreme Court, the rule is designed to deal with challenges that could prevent or frustrate public improvements in general. Eby v Lansing Bd of Water & Light, 417 Mich 297, 306, n 10; 336 NW2d 205 (1983); Langs v Pontiac, 96 Mich App 639, 642; 293 NW2d 659 (1980).
An equally important aspect of the Bigger rule comes into play here where suit was not begun until after the bonds had been issued and sold on the open market. The interests of third parties, the bondholders, who are bona fide purchasers for value and who, at the time of purchase, were not on notice of any such challenge, represents a vested interest that the entertaining of such litigation on its merits could defeat. In this regard, therefore, the Bigger rule is distinct from the statute of limitations and simply obligates those who would challenge such action to move promptly. Walled Lake Consolidated School Dist v Commerce Charter Twp, 174 Mich App 434, 436-437; 437 NW2d 16 (1989).
We note further that the Bigger rule, although predating the 1978 Headlee Amendment, Const 1963, art 9, §§ 25-34, is not undermined by those constitutional changes. Nothing in the text of Const 1963, art 9, §§ 25-34 addresses the Bigger principle or purports to limit or abolish it in taxpayers suits authorized by Const 1963, art 9, § 32. The Legislature has carefully protected taxpayer interest in this regard, however, in fulfillment of the mandate of Const 1963, art 9, § 34, by requiring notice of intent to bond to be published, MCL 123.958b(3); MSA 5.301(8b)(3). Plaintiffs were obviously on notice of the need to mount their challenge promptly following publication of the May 10, 1995, notice of intent to bond in The Macomb Daily. Further, plaintiff Sessa individually, and as a member of the board of commissioners, was in possession of the requisite notice by virtue of attending the meeting on March 23, 1995, at which the board of commissioners adopted the resolution of intent to bond.
However, even if we declined to apply the Bigger rule to bar consideration of this action on its merits, we would find plaintiffs’ complaint without merit. In relevant part, Const 1963, art 9, § 31, the constitutional provision on which plaintiffs rely, provides:
Units of Local Government are hereby prohibited from levying any tax not authorized by law or charter when this section is ratified or from increasing the rate of an existing tax above that rate authorized by law or charter when this section is ratified, without the approval of a majority of the qualified electors of that unit of local government voting thereon. ...
The limitations of this section shall not apply to taxes imposed for the payment of principal and interest on bonds or other evidence of indebtedness or for the payment of assessments on contract obligations in anticipation of which bonds are issued which were authorized prior to the effective date of this amendment.
The amendment was approved at the general election on November 7, 1978, and, pursuant to Const 1963, art 12, § 1, became effective on December 23, 1978. The bonds involved in this case — obviously not being authorized “prior to the effective date of this amendment” — are thus subject to. Const 1963, art 9, § 31.
However, there is simply no suggestion that Macomb County, as a “unit of local government,” has levied a tax not authorized by law or charter on December 23, 1978, or that it has increased the rate of an existing tax above the rate authorized by law or charter on December 23, 1978, without approval of a majority of the qualified electors of Macomb County voting thereon. Contrary to plaintiffs’ assumption that no unit of local government may issue any bond without approval of the electorate, Const 1963, art 9, § 31 merely prohibits units of local government from issu ing bonds that require an increase in authorized tax rates to fund the repayment obligation. Nothing in Const 1963, art 9, § 31 prohibits Macomb County either from increasing the existing tax rate of 4.2 mills to the authorized rate of 4.7431 mills to repay these bonds or simply from repaying such bonds out of general revenues within existing tax levies. Smith v Scio Twp, 173 Mich App 381, 386; 433 NW2d 855 (1988); Taxpayers United for Michigan Constitution, Inc v Detroit, 196 Mich App 463; 493 NW2d 463 (1992); see also Saginaw Co v Buena Vista School Dist, 196 Mich App 363; 493 NW2d 437 (1992).
Accordingly, defendants are entitled to a judgment of no cause of action and to tax their costs. It is so ordered.
Wahls, J., concurred.
Plaintiff Sessa is also chairman of the Macomb County Taxpayers Association and a member of the Macomb County Board of Commissioners, Sessa has proper standing to prosecute this action as a taxpayer; his status as head of an organization of taxpayers would not alone confer such standing and has been ignored in adjudicating this case. Grosse lie Committee for Legal Taxation v Grosse Ile Twp, 129 Mich App 477, 487; 342 NW2d 582 (1983). | [
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Per Curiam.
The plaintiff sues to recover damages for negligent injury. The defense of a former suit in bar was sustained by the circuit court, and plaintiff has brought error. It appears that the plaintiff, by his next friend, brought a former action before the circuit court of Wayne county to recover for the same injury, imputing negligence to the defendant in different counts, in one of which the same breach of duty as is set up in this action was averred. On the trial the court ruled that the breach of duty which is set up in this action did not entitle the plaintiff to a verdict. The plaintiff submitted the case to the jury on the other count, and recovered a verdict, which was reversed by this court on error, and no new trial ordered. 105 Mich. 270.
The cause of action was not divisible, and the cause of action here set out was within the issue presented by the former case. The rule is settled that a prior judgment is a bar to all the matters that might have been tried under the issue made. Barker v. Cleveland, 19 Mich. 230; Pierson v. Conley, 95 Mich, 619; Detroit, etc., R. Co. v. McCammon, 108 Mich. 368; Kellogg v. Thompson’s Estate, 115 Mich. 618; Jacobson v. Miller, 41 Mich. 90. The cases cited by plaintiff’s counsel to the point that the'' withdrawal of a portion of a divisible cause of action entitles the plaintiff to a new action on such portion of the demand do not apply here, for the reason that the cause of action was not divisible. If the recovery of the plain- • tiff had stood, he certainly could not have had another cause of action under the present count.
But it is further contended that, as the plaintiff could not appeal from the ruling of the circuit judge, he should not be debarred from trying the case anew. We do not find anything to sustain the view that the force of a judgment as a bar depends upon the right to appeal. Appeal is a statutory right. Many of the judgments of justices of the peace in the city of Detroit are final, and many other instances might be cited in which appeals are not allowed. Nevertheless judgments are in such proceedings bar to other actions. Furthermore, the determination of this court on the hearing of the former case was in terms final as to all the issues presented.
The judgment is affirmed. | [
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Per Curiam.
Defendant was charged with receiving or concealing a stolen firearm, MCL 750.535b; MSA 28.803(2). That offense also served as the predicate felony for a charge of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Following a hearing, the trial court dismissed the felony-firearm charge on double jeopardy grounds. The people appeal by leave granted. We affirm.
The United States and the Michigan Constitutions protect a person from being twice placed in jeopardy for the “same offense.” US Const, Am V; Const 1963, art 1, § 15. The Double Jeopardy Clause provides three related protections, forbidding (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) the imposition of multiple punishments for the same offense. People v Torres, 452 Mich 43, 64; 549 NW2d 540 (1996). This case involves the prohibition against imposing multiple punishments for the same offense. In this context, the term “same offense” applies to overlapping conduct that violates more than one statute. People v Sturgis, 427 Mich 392, 399; 397 NW2d 783 (1986).
In cases such as this one, involving multiple punishment at a single trial, the issue whether two convictions involve the same offense for purposes of the protection against multiple punishment is one of legislative intent. Sturgis, supra, p 400; People v Robideau, 419 Mich 458, 484; 355 NW2d 592 (1984).
MCL 750.535b; MSA 28.803(2), the receiving or concealing a stolen firearm statute, provides in part:
(2) A person who receives, conceals, stores, barters, sells, disposes of, pledges, or accepts as security for a loan a stolen firearm or stolen ammunition, knowing that the firearm or ammunition was stolen, is guilty of a felony, punishable by imprisonment for not more than 10 years or by a fine of not more than $5,000.00, or both.
MCL 750.227b; MSA 28.424(2), the felony-firearm statute, provides:
(1) A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of section 223 [unlawful sale of a firearm], section 227 [carrying a concealed weapon], 227a [unlawful possession of a firearm by licensee] or 230 [alteration of identifying marks on a firearm], is guilty of a felony, and shall be imprisoned for 2 years.
In enacting the felony-firearm statute, the Legislature intended to authorize punishment for both a weapon possession offense and felony-firearm growing out of the same criminal episode, provided that the weapon offense is not the predicate of the felony-firearm offense. Sturgis, supra, p 410; People v Peyton, 167 Mich App 230, 235; 421 NW2d 643 (1988). As explained by this Court in People v Walker, 167 Mich App 377, 385; 422 NW2d 8 (1988), a case involving possession of a short-barreled shotgun and felony-firearm:
[T]he Legislature’s intent was to preclude a [weapon] possession offense from serving as the underlying felony for felony-firearm. However, the language of the statutes does not suggest that possession of a firearm and felony-firearm convictions cannot occur simultaneously so long as a different offense is used as the underlying felony for felony-firearm,. [Emphasis added.]
See also People v Booker (After Remand), 208 Mich App 163, 175; 527 NW2d 42 (1994) (“The Legislature intended to authorize multiple convictions for felony-firearm and possession of a short-barreled shotgun where the possession offense did not serve as the underlying felony for the felony-firearm conviction.”).
Relying on People v Guiles, 199 Mich App 54; 500 NW2d 757 (1993), and People v Cortez, 206 Mich App 204; 520 NW2d 693 (1994), the people contend that, because receiving or concealing a stolen firearm is not one of the weapons offenses specifically referenced in the felony-firearm statute, the Legislature must not have intended to preclude that offense from serving as the predicate felony for a felony-firearm conviction. We decline to read those cases so narrowly. Guiles and Cortez both concerned a different class of predicate offenses, i.e., offenses involving the discharge of a weapon. The receiving and concealing a stolen firearm offense involved here, on the other hand, like the offenses listed in the felony-firearm statute and the possession of a short-barreled shotgun offense in Walker and Booker, is a possessory offense. While the Legislature has authorized multiple punishments where the act giving rise to the predicate fel ony is distinct from a possessory offense, mere possession of a weapon, without more, cannot serve as the predicate for a felony-firearm charge. Walker, supra, pp 384-385.
In this case, defendant was charged only with receiving or concealing a stolen firearm and felony-firearm, making the weapon offense the predicate felony for felony-firearm. Because the felony of receiving a stolen firearm — a possession offense — is the underlying offense supporting the felony-firearm offense, defendant cannot be charged with both crimes without violating his right to be free from double jeopardy. Walker, supra; Booker, supra. Accordingly, the trial court properly dismissed the charge of felony-firearm.
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Corrigan, J.
In this medical malpractice action, plaintiffs appeal by right the order granting summary disposition to defendants under MCR, 2.116(C)(7) because plaintiffs’ complaint was untimely under MCL 600.5838a(2); MSA 27A.5838(1)(2). We affirm.
1. underlying facts
In 1987, forty-one-year-old plaintiff Muriel Sills, who had a twenty-year history of back trauma and back surgeries, complained of back pain and. difficulty walking. Defendant Dr. Howard Glazer admitted plaintiff* to defendant Oakland General Hospital on July 16, 1987. That same day, defendant Dr. Dennis Kelly evaluated plaintiff and ordered the administration of Solu-Medrol, a steroid. One potential side effect of the use of steroids is necrosis. From July 16 through July 28, plaintiff received varying doses of the steroid. During this time, defendants Dr. Simon Simonian and Dr. Harold Finkel each provided a consultation. On July 30, 1987, plaintiff discharged herself from Oakland General Hospital because she was dissatisfied with her progress. She continued to see defendant Glazer.
In 1991, plaintiff complained to Glazer of pain and swelling in her legs and knees. In May, 1993, Glazer ordered an x-ray of plaintiff’s right knee. Glazer told plaintiff that in his opinion she had arthritis. In October 1993, Kelly ordered a Magnetic Resonance Imaging (mri) of plaintiff’s right knee. The mri revealed osteonecrosis (a change in bone and cartilage), which can be caused by steroid use. Doctors eventually replaced plaintiff’s right knee.
In her March 1994 suit, plaintiff alleged in part that in 1987 defendants failed to provide the proper diagnosis, improperly ordered extremely high doses of steroids, and neglected to warn her of the risks of steroids. The circuit court granted summary disposition for defendants, ruling that plaintiff’s action was untimely under the statute of limitation, MCL 600.5838a(2); MSA 27A.5838(1)(2). The court also ruled that defendants’ conduct did not meet the fraudulent conduct standard under MCL 600.5838a(2) (a); MSA 27A.5838(1)(2)(a). Plaintiff appeals.
n. analysis
Plaintiff first argues that defendants did not assert as an affirmative defense the statute of repose upon which they rely on appeal. Plaintiff contends that, because the Legislature has recognized a distinction between a statute of limitation and a statute of repose, defendants should have referenced the statute as one of repose rather than limitation.
Defendants moved for summary disposition under MCR 2.116(C)(7); such a motion asserts that the cause of action is statutorily barred. Witherspoon v Guilford, 203 Mich App 240, 243; 511 NW2d 720 (1994). When reviewing a motion under MCR 2.117(C)(7), this Court must accept the plaintiffs well-pleaded allegations as true and construe them in the plaintiffs favor. If the facts are not in dispute, whether the statute bars the claim is a question of law for the court. Witherspoon, supra at 243. We review questions of law under the de novo standard. Rapistan Corp v Michaels, 203 Mich App 301, 306; 511 NW2d 918 (1994).
MCL 600.5838a(2); MSA 27A.5838(1)(2) provides in part:
Except as otherwise provided in this subsection, an action involving a claim based on medical malpractice may be commenced at any time within the applicable period pre- ' scribed in section 5805 or sections 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. However, except as otherwise provided in section 5851(7) or (8), the claim shall not be commenced later than 6 years after the date of the act or omission that is the basis for the claim. The burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition, or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim is on the plaintiff. A medical malpractice action that is not commenced within the time prescribed by this subsection is barred.
Plaintiff contends that MCL 600.5838a(2); MSA 27A.5838(1)(2) is a statute of repose, not limitation. A statute of repóse prevents a cause of action from ever accruing when the injury is sustained after the designated statutory period has elapsed. O’Brien v Hazelet & Erdal, 410 Mich 1, 15; 299 NW2d 336 (1980). A statute of limitation, however, prescribes the time limits in which a party may bring an action that has already accrued. Id.; Smith v Quality Const Co, 200 Mich App 297, 300-301; 503 NW2d 753 (1993). Here, MCL 600.5838a(2); MSA 27A.5838(1)(2) serves both functions: it prescribes the time limit in which a plaintiff who is injured within the statutory period must bring suit and also prevents a plaintiff from bringing suit if she sustained an injury outside the statutory period. Because the statute is both a statute of limitations and a statute of repose, defendants were not obliged to refer specifically to their defense as a statute of repose.
Moreover, plaintiff claims that her injury occurred in 1987, when defendants treated her with steroids during her hospitalization. MCL 600.5838a(2); MSA 27A.5838(1)(2) bars her cause of action because plaintiff brought suit outside the statutory period after sustaining injury. MCL 600.5838a(2); MSA 27A.5838(1) (2) thus acted as a statute of limitation in this case. Defendants raised the statute of limitation as an affirmative defense. Plaintiffs argument that defendants did not refer to MCL 600.5838a(2); MSA 27A.5838(1)(2) as a statute of repose is thus immaterial here. Likewise, plaintiffs claim that defendants did not give her sufficient notice of their statutory defense is without merit. Defendants properly asserted the statute as an affirmative defense. MCR 2.111(F)(3)(a).
Plaintiff next attacks the circuit court’s finding that defendants did not engage in fraudulent conduct. Plaintiff asserts that defendants prevented her from discovering the existence of her claim by failing to inform her of the risk of steroids. Plaintiff adds that Glazer misrepresented her condition by diagnosing arthritis rather than necrosis.
MCL 600.5838a(2)(a); MSA 27A.5838(1)(2)(a) provides that the limitation period does not apply “[i]f discovery of the existence of the claim was prevented by the fraudulent conduct of the health care professional against whom the claim is made . . . or of the health facility against whom the claim is made . . . .” Thus, if plaintiff demonstrates that defendants displayed fraudulent conduct, her claim survives the statutory limitation period.
This Court has not yet interpreted “fraudulent conduct” as it is used in MCL 600.5838a(2)(a); MSA 27A.5838(1)(2). To define fraudulent conduct, we look to cases involving the limitation period and fraudulent concealment under MCL 600.5855; MSA 27A.5855. Courts consider together statutes that have the same general purpose when ascertaining the intent of the Legislature. In re Miller Estate, 359 Mich 167, 172; 101 NW2d 381 (1960). Additionally, statutes that affect similar policies should be interpreted in a like manner. Swantek v Automobile Club of Michigan Ins Group, 118 Mich App 807, 810; 325 NW2d 588 (1982).
Under MCL 600.5855; MSA 27A.5855, the statute of limitation is tolled when a party conceals the fact that the plaintiff has a cause of action. Smith v Sinai Hosp of Detroit, 152 Mich App 716, 727; 394 NW2d 82 (1986). The plaintiff must plead in the complaint the acts or misrepresentations that comprised the fraudulent concealment. In re Farris Estate, 160 Mich App 14, 18; 408 NW2d 92 (1987). The plaintiff must prove that the defendant committed affirmative acts or misrepresentations that were designed to prevent subsequent discovery. Mere silence is insufficient. Buszek v Harper Hosp, 116 Mich App 650, 654; 323 NW2d 330 (1982).
In her complaint, plaintiff did not claim that defendants affirmatively acted or made misrepresentations to prevent her from discovering the alleged malpractice. Although plaintiff claimed that defendants failed to inform her of the risks of steroids, that allegation was part of her general claim of malpractice, not a claim of fraud. While Glazer may have misdiagnosed plaintiffs condition, plaintiff did not show that he acted fraudulently to conceal her potential cause of action. A misdiagnosis is not an affirmative act to conceal a claim. Plaintiff has not sufficiently asserted that defendants committed fraudulent conduct so as to toll the statute of limitation.
Plaintiff next asserts that she did not discover, nor should she have discovered, the existence of her claim at least six months before the limitation period expired. Plaintiff contends that the six-year limitation for discovery of her malpractice claim thus should not apply. MCL 600.5838a(2); MSA 27A.5838(1)(2) provides in part that the action must be commenced within six months after the plaintiff discovers or should have discovered the existence of the claim but no later than six years after the date of the act or omission that is the basis for the claim. Our Supreme Court has noted that the above statute sets a limit for discovery of a medical malpractice claim at six years from the date of the act or omission that is the basis of the claim. Chase v Sabin, 445 Mich 190, 201-202, n 16; 516 NW2d 60 (1994). Plaintiff has not met her burden of showing why the six-year limitation should not apply.
Finally, plaintiff contends that the statute violates her due process and equal protection rights. We review the constitutionality of a statute, which is a question of law, under the de novo standard. Monroe Beverage Co, Inc v Stroh Brewery Co, 211 Mich App 286, 295; 535 NW2d 253 (1995); In re Lafayette Towers, 200 Mich App 269, 273; 503 NW2d 740 (1993).
In O’Brien, supra, our Supreme Court addressed whether a six-year period of limitation, MCL 600.5839; MSA 27A.5839, violated the plaintiffs due process and equal protection rights. Although the statute in that case applied to actions against architects, engineers, contractors, and land surveyors, the Court’s analysis equally is applicable. Under O’Brien, to determine whether a statute violates due process, we ask whether it bears a reasonable relation to a permissible legislative objective. O’Brien, supra at 13.
Statutes of limitation are designed to encourage the rapid recovery of damages, to penalize plaintiffs who have not been assiduous in pursuing their claims, to afford security against stale demands when the circumstances would be unfavorable to a just examination and decision, to relieve defendants of the prolonged threat of litigation, to prevent plaintiffs from asserting fraudulent claims, and to remedy the general inconvenience resulting from delay in asserting a legal right that is practicable to assert. Lemmerman v Fealk, 449 Mich 56, 65; 534 NW2d 695 (1995). Because the statute at issue bears a reasonable relationship to the noted legislative purposes, it does not violate plaintiffs right to due process.
The Legislature has the power to determine that a particular cause of action cannot arise unless it accrues within a specified period. O’Brien, supra at 15. Courts should uphold statutes of limitation unless the consequences are so harsh and unreasonable that they effectively divest a plaintiff of the court access intended by the grant of the substantive right. Bissell v Kommareddi, 202 Mich App 578, 581; 509 NW2d 542 (1993). The statute here is not so harsh and unreasonable that it effectively denies a plaintiff access to the courts.
Likewise, to decide whether a statute violates equal protection, courts must determine whether the classification is rationally related to a legitimate governmental interest. O’Brien, supra at 13. In Bissell, supra, this Court addressed equal protection in the context of MCL 600.5851(7); MSA 27A.5851(7), which provides in part that a medical malpractice claim that accrues to a person older than thirteen is subject to the limitation period in MCL 600.5838a(2); MSA 27A.5838(1)(2). This Court held that the state unquestionably has a legitimate interest in securing adequate and affordable healthcare for its residents. Additionally, this Court stated that it could reasonably assume that a decrease in exposure to malpractice claims would encourage healthcare providers to remain in this state. Bissell, supra at 579-581. Likewise, in this case, Michigan has a legitimate interest in supporting affordable and adequate healthcare for its residents. Setting an upper limit for the period within which a plaintiff may bring medical malpractice decreases doctors’ exposure to malpractice claims. The classification is rationally related to those interests.
Affirmed.
Because plaintiff Thomas Sills’ claims are derivative, “plaintiff” will refer to Muriel Sills only for clarity in this opinion.
Necrosis is defined as “death of a circumscribed portion of animal or plant tissue.” Random House Webster’s College Dictionary (1995), p 904.
The initial dose of Solu-Medrol was one hundred milligrams every eight hours. On July 18, 1987, Glazer ordered that the dose be decreased in frequency to every twelve hours. On July 20, 1987, Glazer ordered that the dose be reduced to fifty milligrams. On July 23, Glazer increased plaintiff’s steroid dosage to one hundred milligrams every twelve hours. On July 27, Glazer reduced the dose to seventy milligrams every twelve hours. On July 28, Glazer again decreased the dose to forty milligrams every twelve hours.
For cases considering acts that constitute fraudulent concealment in the context of medical malpractice, see, e.g., Eschenbacher v Hier, 363 Mich 676, 681; 110 NW2d 731 (1961); Walerych v Isaac, 63 Mich App 478, 481; 234 NW2d 573 (1975). | [
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Jansen, PJ.
These consolidated cases are before us on remand from the Supreme Court. The Supreme Court reversed our prior holding concerning the interpretation of the “remaining portion” clause of MCL 768.7a(2); MSA 28.1030(1)(2). People v Young, 206 Mich App 144; 521 NW2d 340 (1994). The Supreme Court held that the “remaining portion” clause of § 7a(2) requires that the parole violator serve at least the combined mínimums of the sentences, plus whatever portion of the earlier sentence the Parole Board may, because the parolee violated the terms of the parole, require the parolee to serve. Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 572; 548 NW2d 900 (1996). The Supreme Court then remanded these cases to this Court
for further briefing, oral argument, and consideration of the issues that the Court of Appeals has not yet addressed, namely, the appropriateness of the trial court’s exercise of ancillary jurisdiction, whether the Recorder’s Court, as a court of limited jurisdiction, has the power to review a Parole Board decision, the effect of [In re Eddinger, 236 Mich 668; 211 NW 54 (1926)], and the scope of the Legislature’s authorization for review of Parole Board decisions. [Wayne Co Prosecutor, supra, p 587.]
We now turn to these issues.
Defendant Gregory Lee Young was convicted of armed robbery on January 31, 1983. He was sentenced to a prison term of six to fifteen years on July 14, 1983. Young was paroled on September 15, 1989. His parole status was set for a term of two years, with an expiration date of September 15, 1991. On April 25, 1991, Young was convicted of assault and battery while still on parole status. He was sentenced to a term of probation, but his parole was not revoked. On September 9, 1991, Young committed a breaking and entering offense while on probation and on parole. Young was held in the Wayne County Jail, and his parole officer was aware of this fact. Incredibly, the Department of Corrections discharged Young from his parole on September 15, 1991, despite the fact that it knew that Young had violated his parole and was being held in the county jail on a new offense.
On May 26, 1992, Young was convicted of breaking and entering an unoccupied' dwelling following a bench trial in the Detroit Recorder’s Court. Young was sentenced to a term of 42 to 120 months in prison on June 10, 1992. The Recorder’s Court questioned why the Department of Corrections had discharged Young from parole. The Wayne County Prosecutor then sought an order to show cause why the consecutive sentencing statute, MCL 768.7a(2); MSA 28.1030(1)(2), should not be enforced. The trial court asserted ancillary jurisdiction and issued a show cause order directing the Department of Corrections to explain why it had discharged Young from parole. The Attorney General’s office represented the Parole Board at the hearing held on August 7, 1992. The Parole Board conceded that Young had been “mistak enly discharged” from parole, but offered no other explanation. The trial court then set aside the Parole Board order discharging Young from parole, resentenced Young to 42 to 120 months’ imprisonment, and ordered that the sentence be served consecutively to the sentence for the prior armed robbery conviction for which he had been on parole.
We first turn to consideration of the scope of the Legislature’s authorization for. review of a Parole Board decision. In Penn v Dep’t of Corrections, 100 Mich App 532; 298 NW2d 756 (1980), this Court held that the Administrative Procedures Act (apa), MCL 24.201 et seq.-, MSA 3.560(101) et seq., vests the circuit courts with jurisdiction to review a parole revocation decision. Specifically, MCL 24.302; MSA 3.560(202) allows for judicial review of a final decision or order in a contested case. This Court in Penn, supra, pp 536-537, noted that the Department of Corrections is an agency for purposes of the apa and that a parole revocation proceeding is a contested case that triggers application of the apa. Further, in Triplett v Deputy Warden Jackson Prison, 142 Mich App 774, 779; 371 NW2d 862 (1985), this Court held that the apa is not the only avenue of judicial review available to a parolee and that review of a parole revocation decision is permissible upon a complaint for habeas corpus. See also In re Casella, 313 Mich 393; 21 NW2d 175 (1946).
The decisions in both Penn and Triplett speak only to a parolee’s right to appeal from a revocation of parole. This case involves a prosecutor’s right to appeal from a decision to discharge a parolee from parole. The Supreme Court has cited MCL 791.234(7); MSA 28.2304(7) for us to consider, and it provides:
Except as provided in section 34a, a prisoner’s release on parole is discretionary with the parole board. The action of the parole board in granting or denying a parole is appealable by the prisoner, the prosecutor of the county from which the prisoner was committed, or the victim of the crime for which the prisoner was convicted. The appeal shall be to the circuit court in the county from which the prisoner was committed, by leave of the court.
We do not find the above statutory provision to be applicable here because this case does not involve the Parole Board’s decision to grant or deny a parole. Rather, this case involves the Parole Board’s decision to discharge a prisoner from parole. Therefore, while a prosecutor may appeal from the Parole Board’s decision to grant a parole, we are faced with whether the prosecutor may appeal from an order discharging a prisoner from parole.
The parties have not cited any explicit legislative authorization for judicial review of a Parole Board decision to grant a discharge from parole. However, a Parole Board decision to discharge a prisoner could be tested by way of a complaint for mandamus against a state officer. Mandamus is an extraordinary remedy and is only appropriate where there is a clear legal duty bearing upon the defendant and a clear legal right by the plaintiff to the discharge of that duty. Shelby Twp Police & Fire Retirement Bd v Shelby Twp, 438 Mich 247, 263; 475 NW2d 249 (1991). Mandamus may lie to compel the exercise of discretion, but not to compel its exercise in a particular manner. Teasel v Dep’t of Mental Health, 419 Mich 390, 409-410; 355 NW2d 75 (1984).
Normally, the decision to discharge a prisoner from parole will not be subject to an exercise of discretion. For example, MCL 791.242; MSA 28.2312 provides, in relevant part:
When any paroled prisoner has faithfully performed all of the conditions and obligations of his parole for the period of time fixed in such order, and has obeyed all of the rules and regulations adopted by the parole board, he shall be deemed to have served his full sentence, and the parole board shall enter a final order of discharge and issue to the paroled prisoner a certificate of discharge.
Therefore, whether a prisoner has faithfully performed all the conditions and obligations of parole is not a matter set to the discretion of the Parole Board. Either the prisoner complied with the conditions and obligations or parole, or he did not so comply. Further, this Court has stated that “unless and until parole is successfully completed, ‘the prisoner is deemed to be still serving out the sentence imposed upon him by the court.’ ” People v Raihala, 199 Mich App 577, 579-580; 502 NW2d.755 (1993), quoting In re Dawsett, 311 Mich 588, 595; 19 NW2d 110 (1945).
In this case, it is undisputed that Gregory Young did not faithfully perform all the conditions and obligations of his parole because he committed two felony offenses while he was on parole status. Although the Department of Corrections was aware of both of Young’s offenses, his parole status was never revoked. The Department of Corrections conceded that it had “mistakenly discharged” Young from parole. We believe that the Department of Corrections is not immune from judicial review in cases involving pris oners who are not properly discharged from parole. Thus; a prosecutor may challenge a Parole Board decision to discharge á prisoner from parole by way of a complaint for mandamus against the Parole Board.
The decision in In re Eddinger, supra, does not compel a different result. In Eddinger, the defendant was sentenced to a three- to six-year prison term on June 22, 1922. On June 12, 1923, the defendant was placed on parole for a period of one year. On July 7, 1924, after the parole period expired, the Governor signed an absolute discharge and forwarded it for delivery to the defendant. However, before the discharge was signed, the defendant violated his parole and fled to California. The parole discharge was returned for cancellation, and a warrant was issued for the defendant’s arrest. Our Supreme Court stated that the “questions involved relate to the power of the governor to recall the absolute discharge issued by him, and to revoke the parole after the designated parole period had expired.” 236 Mich 669-670. Our Supreme Court stated:
The purpose of a parole is to keep the prisoner in legal custody while permitting him to live beyond the prison inclosure so that he may have an opportunity to show that he can refrain from committing crime. It is a conditional release, the condition being that if he makes good he will receive an absolute discharge from the balance of his sentence; but if he does not make good he will be returned to serve his unexpired time. The absolute discharge is something more than a release from parole. It is a remission of the remaining portion of his sentence. Like a pardon, it is a gift from the executive, and like any other gift it does not become effective until it is delivered and accepted. After delivery it cannot be recalled. So in the instant case if there was a delivery and acceptance of the discharge, it was beyond the power of the governor to revoke it. [Id., p 670.]
The Supreme Court held that there was no delivery to the defendant and that the Governor had the power to revoke the discharge and apprehend the defendant, who had violated his parole, and return him to prison to serve the balance of his sentence. Id., p 671. We find that Eddinger does not control this casé for two main reasons. First, there was no actual delivery of the discharge of parole in Eddinger, unlike the present case. Therefore, the Supreme Court’s discussion in Eddinger concerning an absolute discharge from parole and the ability to recall a discharge after delivery is dicta. Whether a delivered discharge from paróle is revocable was not directly addressed in Eddinger because there was no delivery.
Second, at the time that Eddinger was decided, the Governor had the exclusive authority to grant parole in all cases of murder, rape, and certain other offenses. 1915 CL 15863. Mr. Eddinger was convicted of rape. Currently, the power to grant reprieves, commutations, and pardons rests exclusively with the Governor, Const 1963, art 5, § 14, and the judiciary may not infringe on this power because it would violate the principle of separation of powers. People v Erwin, 212 Mich App 55, 63; 536 NW2d 818 (1995). This case involves the power to parole, which is a statutory power subject to limitations by the Legislature. See MCL 791.231 et seq.; MSA 28.2301 et seq. We seriously doubt that the Legislature could have intended, when it created the statutory scheme concerning parole, that the Department of Corrections would be immune from issuing illegal parole discharges. Moreover, we also doubt that the Legislature could have intended that prisoners such as Gregory Young, who commit a felony offense while on parole, could suffer no consequences for committing a crime where the Department of Corrections issues an illegal discharge from parole.
Other, more recent, cases in this Court are also instructive. In People v Gregorczyk, 178 Mich App 1; 443 NW2d 816 (1989), the defendant was sentenced to an invalid sentence of five to twenty years for a controlled substances violation. During the appeals process, the Department of Corrections discharged the defendant from parole, even though the defendant had not served even the minimum of his five-year term. After the parole was discharged, the defendant was resentenced to a term of lifetime probation. The Department of Corrections’ action in discharging the defendant from parole was in violation of the applicable controlled substances statute that required that the defendant serve the minimum term before being paroled. This Court reversed the order of sentence imposing lifetime probation and discharged the defendant from the term of probation.
In Gregorczyk, this Court was concerned with double jeopardy and due process concerns. First, it was noted that the defendant could not receive sentence credit for his term of probation where he had served years is five-year term. This Court held that this would amount to multiple punishment for the same offense, contrary to the Fifth Amendment guarantee against double jeopardy. Id., p 9. Further, this Court held that resentencing the defendant after his discharge from his first sentence would result in a denial of due process because the defendant’s absolute discharge from parole would have been summa rily revoked without due process. Specifically, this Court stated that due process would require an inquiry into the facts, circumstances, and reasoning surrounding the defendant’s discharge, but that there was nothing presented in the record sufficient to warrant a recall or revocation of the defendant’s discharge. Id., p 12.
In Michigan ex rel Oakland Co Prosecutor v Dep’t of Corrections, 199 Mich App 681, 694; 503 NW2d 465 (1993), this Court held that the trial court had jurisdiction to vacate the defendant’s discharge from parole where the discharge was improper. This Court specifically stated that no new sentence was being imposed and that the defendant was recalled and imprisoned from his parole discharge only to complete the sentence from which he had been improperly discharged.
In People v Lamb (After Remand), 201 Mich App 178; 506 NW2d 7 (1993), the defendant was sentenced to an invalid sentence of probation, and, just one day before the release of this Court’s opinion vacating that invalid sentence, the Department of Corrections discharged the defendant from probation. The defendant was then resentenced to a term of imprisonment. This Court held that the discharge of the defendant from probation did not preclude resentencing and that the trial court had the authority to correct an invalid sentence. Id., p 181. This Court in Lamb limited Gregorczyk to its facts and noted that there were no double jeopardy concerns because the defendant received sentence credit. Further, the decision in Lamb did not involve any executive commutation of the defendant’s original sentence and there were no separation of powers concerns.
In People v Hill (After Remand), 202 Mich App 520; 509 NW2d 856 (1993), this Court held that resentencing was not precluded where the defendant was originally sentenced to an invalid sentence and the defendant was discharged unconditionally from his sentence just twelve days before this Court’s opinion remanding the matter to the trial court for resentencing. This Court noted that there was no executive commutation of the original sentence and that the defendant was entitled to sentence credit for time served. Id., p 524.
Most recently, in Harper v Dep’t of Corrections, 215 Mich App 648; 546 NW2d 718 (1996), this Court considered a mandamus action brought by a prisoner who challenged the refusal of the Department of Corrections to discharge his parole. The prisoner was sentenced to a two- to five-year term of imprisonment and was paroled. The Parole Board issued, but did not deliver, an order for the discharge. After the order was issued, but before the prisoner’s parole expiration date, the prisoner was arrested for a new offense. The discharge order that had been issued was never delivered to the prisoner and the Department of Corrections treated the order as if it had never been issued. This Court denied the prisoner’s request to declare effective the Parole Board’s order discharging his parole because the prisoner did not serve his full sentence because he did not faithfully perform all the conditions and obligations of his parole for the period fixed in the parole order.
In the present case, there is no separation of powers problem. Young was not granted a commutation, reprieve, or pardon, which would not be subject to judicial review. Parole is not the same as a pardon, commutation, or reprieve and a parole is subject to certain statutory restrictions. While a parole, and a discharge from parole, is granted through the executive branch, a parole may not be discharged unless the terms of MCL 791.242; MSA 28.2312 have been met.
Accordingly, we conclude that Eddinger does not absolutely bar the recall of a discharge from parole and that judicial review of an allegedly improper discharge from parole is permissible. Here, the discharge from parole was illegal because it violated the terms of MCL 791.242; MSA 28.2312, that is, Young did not faithfully perform all the conditions and obligations of his parole for the period fixed in the parole order (two years) because he committed two felony offenses while on parole. Judicial review in this case, of an allegedly improper discharge from parole, may be had by way of a complaint for mandamus brought by the prosecutor.
Therefore, we must decide whether the Recorder’s Court, as a court of limited jurisdiction, has the power to review a Parole Board decision. MCL 600.4401(1); MSA 27A.4401(1) provides that an action for mandamus against a state officer shall be brought in the Court of Appeals, in the circuit court in the county in which venue in proper, or in Ingham County, at the option of the party bringing the action. See also MCR 3.305(A)(1), (B)(2).
The Recorder’s Court for the City of Detroit is not a circuit court. Rather, the Recorder’s Court is provided for by statute. See MCL 726.1 et seq.; MSA 27.3551 et seq. The Recorder’s Court is a court of limited jurisdiction and has jurisdiction for the prosecution of crimes committed within the City of Detroit only. Because the Recorder’s Court is not a circuit court, it could not have jurisdiction to hear a complaint for mandamus because a complaint for mandamus can be brought only in the Court of Appeals, the circuit court in the county where venue is proper, or in the Ingham Circuit Court. Accordingly, in order to challenge the Parole Board’s decision to discharge Young from his parole, the prosecutor should have brought a complaint for mandamus in the Wayne Circuit Court, the Ingham Circuit Court, or the Court of Appeals, at the prosecutor’s option. MCL 600.4401(1); MSA 27A.4401(1).
Last, our Supreme Court has directed us to determine whether the Recorder’s Court properly exercised ancillary jurisdiction. This Court has recognized that the Recorder’s Court may properly exercise ancillary jurisdiction in certain circumstances. In re Property Held by the Detroit Police Dep’t, 141 Mich App 302; 367 NW2d 376 (1985); People v Washington, 134 Mich App 504; 351 NW2d 577 (1984) (the Recorder’s Court has ancillary jurisdiction to return property to a person from whom it has been seized for use as possible evidence).
Ancillary jurisdiction usually involves claims by a defending party brought into court against its will, or by another person whose rights might be lost irretrievably unless the party could assert them in an ongoing action in a court. Peacock v Thomas, 516 US __; 116 S Ct 862, 867; 133 L Ed 2d 817, 825 (1996). In Peacock, the Supreme Court stated that the “court must have jurisdiction over a case or controversy before it may assert jurisdiction over ancillary claims.” Id. A court may exercise ancillary jurisdiction (1) to permit disposition, by a single court, of claims that are, in varying respects and degrees, factually interdependent, or (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees. Id., 116 S Ct 867; 133 L Ed 2d 824.
This Court has previously stated that ancillary jurisdiction should attach where: (1) the ancillary matter arises from the same transaction that was the basis of the main proceeding, or arises during the course of the main matter, or is an integral part of the main matter; (2) the ancillary matter can be determined without a substantial new fact-finding proceeding; (3) determination of the ancillary matter through an ancillary order would not deprive a party of a substantial procedural or substantive right; and (4) the ancillary matter must be settled to protect the integrity of the main proceeding or to insure that the disposition in the main proceeding will not be frustrated. In re Property, supra, p 306. In applying these guidelines to the circumstances of this case, we believe that the Recorder’s Court did not properly exercise ancillary jurisdiction in setting aside the discharge of parole.
On May 26, 1992, following a bench trial in the Detroit Recorder’s Court, Young was convicted of breaking and entering an unoccupied dwelling. The Recorder’s Court sentenced Young to a prison term of 42 to 120 months on June 10, 1992. The Wayne County Prosecutor then sought an order to show cause why the consecutive sentencing statute, MCL 768.7a(2); MSA 28.1030(1)(2), should not be enforced. A hearing was held on August 7, 1992, before the same Recorder’s Court judge. The Recorder’s Court set aside the discharge from parole and resentenced defendant to a consecutive sentence. We find that the question whether Young’s parole was properly discharged did not arise out of the criminal case before the Recorder’s Court. The discharge from parole did not arise out of the same transaction as the breaking and entering proceedings, was not an integral part of the breaking and entering offense, and arose during the course of the criminal trial only at the sentencing stage where the prosecutor and the trial court were puzzled by Young’s discharge from parole when he had committed a felony offense before his parole period expired. Moreover, the parole issue did not have to be settled to protect the integrity of the breaking and entering proceedings or to ensure that the disposition of the breaking and entering offense would not be frustrated.
Therefore, following the guidelines set forth in In re Property, supra, we conclude that the Recorder’s Court did not properly assert ancillary jurisdiction to set aside the discharge from parole. We reluctantly reverse the Recorder’s Court order setting aside the parole discharge because the law requires it. However, Gregory Lee Young was not entitled to a parole discharge as a matter of law and as a matter of public safety. Young, in his appellate brief, states that the Recorder’s Court erred in ruling that the Parole Board may not discharge “a less than perfect parolee.” Not only is Young’s characterization of himself a gross understatement, it is not a proper description of the Recorder’s Court ruling. Young committed two criminal offenses while on parole (which was fixed at only two years), and, while he was being held in the Wayne County Jail with the knowledge of the Depart ment of Corrections, Young still was discharged from parole.
The action of the Department of Corrections in discharging Young from parole is even more incredulous considering Young’s criminal record. The presentence report prepared for the sentencing for the breaking and entering conviction in June 1992 indicates that Young had compiled eight felony and seven misdemeanor convictions by the age of forty-one. The presentence report states:
Prognosis for the defendant’s future appears to be very poor. The defendant has maintained a criminal lifestyle dating back to as early as 1968. Since that time, defendant has established a significant amount of criminal convictions resulting in lengthy periods of incarcerations. It now appears that the defendant has continued that criminal involvement while on parole supervision to the Michigan Department of Corrections. The defendant has had no employment since 1983 and now suffers from a severe injury to his right leg caused by a September 1991 automobile accident. In view of this fact, it is highly unlikely that the defendant is a suitable candidate for Community Supervision.
Not only is the public safety seriously jeopardized by allowing a parolee such as Young to be improperly discharged from his parole, but such actions of the Department of Corrections are not isolated incidents. We emphasize this fact because Young essentially argues that there is no review of a Parole Board discharge. We have already adverted to three published decisions in this Court where the Department of Corrections improperly discharged parolees, as well as this case. Further, a news article in The Detroit News and Free Press printed on June 20, 1992, indicated that it was the policy of the Department of Corree tions to stop looking for parolees who “disappear.” The article also noted that 1,540 of the then 12,688 parolees had disappeared. Giving such unfettered immunity to the Department of Corrections would not only jeopardize public safety, but seems to do nothing for parolees such as Young who are clearly not rehabilitated by their incarceration.
In conclusion, we must reverse the order of the Recorder’s Court to set aside Mr. Young’s discharge from parole. The Wayne County Prosecutor should have brought an action for mandamus in this matter in the Wayne Circuit Court, in the Ingham Circuit Court, or in the Court of Appeals. The Recorder’s Court did not have jurisdiction to hear this matter.
Reversed.
Holbrook, Jr., J, concurred.
See Wayne Co Prosecutor, supra, p 586, n 34. | [
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Hooker, S'.
The plaintiff is the publisher and proprietor of a newspaper named the Livingston Herald. His action is for libel, based upon an article published in the Livingston Republican at the instigation of the defendant, and over his signature. The defendant filed a plea of the general issue, accompanied by a notice that he would prove the truth of the several charges as made. ■ A verdict of not guilty was returned, and the plaintiff has brought error.
We think the article libelous per se, as it charges the plaintiff with having committed several crimes and disgraceful and degrading acts. While the article does not state explicitly that the plaintiff had committed these acts, it says that the author was informed that he had done so, and that witnesses had so testified, and that records showed that the plaintiff had been arrested for crime. The substance of the charge is that the acts were committed, and the author cannot shelter himself by showing that he only said what he had heard. The authorities are harmonious that such statements are merely repetitions of the charge, and none the less so because the statement was that another had made such charge. In Newell, Sland. & L. 350, it is said that:
“ Every repetition of a slander originated by a third person is a willful publication of it, rendering the person so repeating it liable to an action. ‘ Tale-bearers are as bad as tale-makers.’ And it is no defense that the speaker did not originate the scandal, but heard it from another, even though it was a current rumor, and he in good faith believed it to be true. Nor is it any defense that the speaker at the time named the person from whom he heard the scandal. A man cannot say, ' There is a story in circulation that A. poisoned his wife,’ or ‘B. picked C.’s pocket in the omnibus,’ or that ‘D. has committed adultery,’ and relate the story, and, when called upon to answer, say: ‘There was such a story in circulation; I but repeated what I heard, and had no design to circulate it or confirm it;’ and for two very plain reasons: (1) The repetition of the story must, in the nature of things, give it currency; and (2) the repetition without the expression of disbelief will confirm it. The danger — an obvious on# — is that bad men may give currency to slanderous reports, and then find in that currency their own protection from the just consequence of a repetition.”
In a Massachusetts case (Kenney v. McLaughlin, 5 Gray, 3 [ 66 Am. Dec. 345 ]) cited by Newell, the trial court instructed the jury that:
“ If the defendant merely said that there was a story in circulation of the kind set forth in the writ, and did not say so with any purpose or design to extend its circula tion, or in any degree to cause the person whom she addressed to believe or suspect the charge which the story imputed to be true, or to add to it any sanction or authority of her own, or to give to it any further circulation or credit, and it was true that such a story was in circulation, it would not be actionable to say so.”
The appellate court reversed the judgment, saying:
“The story uttered or repeated by the defendant contains a charge against the plaintiff of a nature to destroy her reputation. * * * It is no answer in any forum to say that she only repeated the story as she heard it. If the story was false and slanderous, she must repeat it at her peril. There is safety in no other rule.”
In McPherson v. Daniels, 10 Barn. & C. 263, it was held that if A. said of X. that he was a thief, and C. publishes that A. said that X. was a thief, in a certain sense C. would publish the truth, but not in a sense that would constitute a defense. C.’s publication would in fact be but a repetition of A.’s words.
In Odgers, Libel & S. 173, it is said:
“This rule that the whole of the libel must be justified to enable the defendant to succeed applies to all cases of reported speeches or repetitions of slander. Thus, if the libel complained of be, ‘A. B. said that plaintiff had been guilty of fraud,’ etc., it is no avail to plead that A. B. did in fact make that statement on the occasion specified. Each repetition is a fresh defamation, and the defendant, by repeating A. B.’s words, has made them his own, and is legally as liable as if he had invented the story himself. The only plea of justification which will be in answer to the action must not merely allege that A. B. did in fact say so, but must go On to aver, with all necessary particularity, that every word which A. B. is reported to have said is true in substance and in fact. In short, a previous publication by another of the same defamatory words is no justification for their repetition.”
We cannot say that the evidence did not warrant this verdict, because we have not all of the testimony before us. An examination of the charge leads us to believe that the jury may have based the verdict on a belief of the literal truth of the language used in the article sued upon as a full justification. The charge consisted mainly of requests. The following request of the defendant was given:
“I charge you the plaintiff cannot recover if you are satisfied that the defendant has fairly established the truth of the publication sued upon substantially as the publication is set forth in the plaintiff’s declaration; that is, as I understand it, the reputation of the alleged libelous article as shown by the paper published.”
By this the jury might well conclude that it was unnecessary for the defendant to show that the plaintiff had been guilty of the acts charged, and that it was sufficient to find that he had been accused of them. This would not be proof of the substance of the charge, and would not constitute a justification.
Again, one of the plaintiff’s requests was to the effect that the article was libelous per se. The court properly gave this. But this'was followed by a series of requests, covering nearly every charge contained in the article, of which the following is a sample:
“In considering this article, you should consider the whole together, and if, from all the statements in this article, you do not believe that an ordinary person reading the same would fairly understand that defendant intended to charge that plaintiff had been guilty of burglary, then the plaintiff cannot recover for this charge.”
Thus, after telling the jury that the article was libelous per se, the court allowed them to find that it was not libelous. As we have said, we consider the article libelous per se, and it follows that the jury should not have been permitted to say that it was not. The questions to be submitted to them were: (l) The truth or falsity of the statements; (2)' the question of damages.
The record is a long one, and many questions are raised. In view of a possible retrial of the case, we should perhaps refer to some of them. The plaintiff called one Barnes, by whom he proved that the defendant caused the publi cation of the article in the newspaper of the witness. He also gave some testimony regarding the circulation of his paper. His entire direct testimony appears upon a single page of the record. Upon cross-examination the defense proved the previous publication of a series of articles in plaintiff’s paper, and the opinion of the witness that they led to the publication sued upon, and introduced the articles in evidence. The witness was then permitted to testify at length as to current reports regarding the plaintiff in relation to the charges contained in the article sued upon, viz., that the plaintiff had been arrested for burglary at the expense of the taxpayers, and that he had heard a witness testify in justice’s court that plaintiff had committed a forgery, and that he embezzled property, and about the arrest of the plaintiff for trouble with a woman. In short, he was allowed to testify to all sorts of rumors, and to follow it up by stating that, in his opinion, the trial for assault and battery “showed plaintiff up pretty dark.” He was also allowed to state that these various reports were published from time to time in his paper, and circulated, and the papers were introduced in evidence. We think it much more orderly for a special defense, like that of truth in an action for libel, to be made by the defense after the plaintiff’s case is closed. But, whether it may be gone into on cross-examination or not, it was not competent to enter upon a general inquiry regarding rumors and publications and testimony upon other trials, and the opinion of the witness as to the effect upon plaintiff’s character. Again, if the defendant desired to show that he published an article upon information and an honest belief of truth, the natural course would be to show in an orderly way his information, and his reliance upon it, and the rectitude of his intentions, rather than to enter upon a general investigation of plaintiff’s history, .and the opinion of members of the public regarding it. Wolff v. Smith, 112 Mich. 360.
The claim is made that the publication was privileged. The libel complained of charged defendant with corruption in office. To repel that statement, the defendant undertook to show that the plaintiff was an impostor, and really had no interest in the public welfare, by showing his past acts and history, asserting that the only thing of which he could boast was that he had always escaped the vigilance of the law. Proceeding, he said:
1. That the records showed that, many years before, plaintiff had been arrested for burglary, and put the people to much expense.
2. That he was subsequently charged and arrested for burglary from a dwelling.
3. That he had been informed that plaintiff had been arrested for forgery of a note; that he settled (he proved another) the note, and saved himself from state prison.
4. That he sold sewing-machines, and embezzled the property received in payment.
5. That defendant heard a woman swear on the stand that he had insulted a woman.
6. That, while defendant was sheriff, the plaintiff sought to have him arrest a woman for disturbing the peace, but upon investigation he (the defendant) became satisfied that he sought to intimidate the woman to avoid his own arrest; that he was subsequently arrested for assault and battery for committing an assault upon her, and the case disclosed an appalling history of the plaintiff.
7. That his neighbors state that, attracted by the shrieks of his wife, they found him threatening personal violence to her with a hoe.
8. That on another occasion he tore the clothes from her because they were not pleasing to his taste.
9. That afterwards he caused her to be sent to the in-' sane asylum at the public expense; that some persons thought he ought to be made to pay the expense, as they stated that they believed him to be to blame for her condition.
10. That soon afterwards he testified in court that he wag worth $500 above debts and liabilities from execution, in direct contradiction to his former affidavit.
It is contended that these statements were privileged, because made in self-defense, upon the theory that they discredit the plaintiff, and show him unworthy of belief. The law justifies a man in repelling a libelous charge by a denial or an explanation. He has a qualified privilege to answer the charge; and if he does so in good faith, and what he publishes is fairly an answer, and is published for the purpose of repelling the charge, and not with malice, it is privileged, though it be false. The court will determine whether the occasion is one which justifies such publication, but the question of good faith — i. e., malice— is for the jury. It must not be supposed that, when a libelous article is published, the person libeled is at once authorized to publish any and all kinds of charges against the offender, upon the theory that they tend to degrade him, and thereby discredit his libelous statements. If this were so, every libel might be answered in this way, and the most disgraceful charges made, the person making them being able to shelter himself behind his belief in their truth. The thing published must be something in the nature of an answer, like an explanation or denial. What is said must have some connection with the charge that is sought to be repelled. The claim is made that anything which tends to induce a disbelief of the charge is privileged. In support of this proposition, defendant’s brief quotes the following: 1
‘ ‘ In some cases, so we have seen, the plaintiff’s conduct towards the defendant may be a bar to the action. If the plaintiff has attacked the defendant in the newspaper, and the defendant replies without undue personality, and without wandering into extraneous matters, then such reply, if made honestly in self-defense, is privileged.” Odgers, Libel & S. 306.
£ ‘ Every man has a right, to defend his character against false aspersion. It may be said that this is one of the duties which he owes to himself and to his family. Therefore communications made in fair self-defense are privileged. If I am attacked in a newspaper, I may write to that paper to rebut the charges, and I may at the same time retort upon my assailant, where such retort is a necessary part of my defense, or fairly arises out of the charges he has made against me.” Id. 228.
In this it is observable that the rule limits the privilege to retorts which are “• necessary to the defense, or fairly arise out of the charges made.” But the language should be viewed in the light of the cases upon which it rests. The first authority given by the author is Senior v. Medland, 4 Jur. (N. S.) 1039. At an election of vestrymen, the plaintiff accused the defendant of neglecting his official duties, who retorted that the plaintiff had been bribed by a railway company. The court held that it was not privileged, for it was not made in self-defense; yet, if true, it would tend to discredit him. In Huntley v. Ward, 6 C. B. (N. S.) 514, the plaintiff caused his attorney to write to the defendant a letter demanding payment of an alleged debt. The defendant replied by a letter containing aspersions on plaintiff’s character. It was claimed to be privileged. The court held otherwise. Willes, J., said:
“There are, however, certain excepted cases where a communication is privileged, though prima facie libelous. But these are cases where the matter is written in the assertion of some legal or moral duty, or in self-defense, and the thing is done honestly, and without sinister motive, and in the bona fide belief in the truth of the statement at the time of making it. In such cases, no matter hbw harsh, hasty, untrue, or libelous the publication would be but for the circumstances, the law declares it privileged, because the amount of public inconvenience from the restriction of freedom of speech or writing would far outbalance that arising from the infliction of a private injury. Therefore, upon principles of public policy, such communications are protected. The question is whether the letter in the present case falls within that category. It appears to me that the principle does not apply. There was no legal or moral duty to be discharged by writing a letter to the plaintiff’s attorney heaping abuse upon his client. It was not written either in assertion of or defense against any claim, and therefore does not fall either within the principle or within any of the decided cases. As to the authorities which have been cited, one of course at once assents to the doctrine that, if the communication would be privileged provided the statement were made honestly and bona fide, there must be some evidence of sinister motive or untruth to turn the scale, and to take the case out of the privileged class. If that were not so, the privilege would be all but useless. But, to entitle him to the benefit of the rule, it is necessary that the defendant should make out that the circumstances of the publication were such as to bring the case within it. I think in this case the defendant has failed to do that, and therefore there is no ground for disturbing the verdict.”
In Dwyer v. Esmonde, 2 L. R. Ir. 243, it was held that a publication was privileged when it was an answer to charges, and necessarily libeled the plaintiff.
In Newell, Sland. & L. (page 519, § 120), the author says:
“Every man has a right to defend his character against false aspersion. It is one of the duties which he owes to himself and to his family. Therefore communications made in fair self-defense are privileged. If a person is attacked in a newspaper, he may write to the paper to rebut the charges, and may at the same time retort upon his assailant, where such retort is a necessary part of his defense, or fairly arises out of «the charges he has made. A man who commences a newspaper war cannot subsequently come to the court as plaintiff to complain that he has had the worst of the fray. But in rebutting an accusation the party should not state what he knows at the time to be untrue, or intrude unnecessarily into the private life or character of his assailant. The privilege extends only to such retorts as are fairly an answer to the attacks.”
In Chaffin v. Lynch, 83 Va. 117, the court said:
‘ ‘ Therefore, if a communication goes beyond the occasion, and language is used which unnecessarily defames the plaintiff, such language is not considered as having been used in the due performance of a duty, or in the protection of the defendant’s interest, and is not privileged. And the same rule applies where the publication is more extensive than -the circumstances of the case reasonably require.”
In HDonoghue v. Hussey, Ir. R. 5 C. L. 124, it was held that it was a reasonable mode of defense for a person whose character and conduct had been assailed in a public newspaper to state publicly that his assailant was known to be a person in the -habit of making misstatements. But in the case of King v. Staples, Andrews, 228, one Thomson had said that Staples had asked his (Thomson’s) pardon for saying that he (Thomson) was married to one Mrs. W. Staples retorted that Thomson was “.scandalously guilty of telling a lye in divers companies.” The court held that, while a denial would have been privileged, the words used were not, saying that “nothing tends more to breach of the peace and to bloodshed than the word (lye), as nothing else can be answered to it; ” and the defendant was held criminally liable. But the case of O’Donoghue v. Hussey is noticeable for another reason, as it may be inferable from it that any retort is necessarily privileged, and must go to the jury upon the question of malice. The language used is as follows:
“It occurs to us that these cases establish this proposition : That if a party choose to have recourse to a public newspaper, and publish statements reflecting on the conduct or character of another, the aggrieved party may have recourse to the public press for his defense and vindication; and in so doing, if he reflects on the conduct or character of his assailant, it will be for the jury to say whether he did so honestly in self-defense, or was actuated by malice towards the party who originally assailed him.”
It is at least doubtful if such an implication was intended, but., if that should be admitted, the case would stand alone. That case was reviewed in the case of Murphy v. Halpin, (1874) Ir. R. 8 C. L. 132, by Fitzgerald, B., who participated in the former case; from which it appears that his understanding was that the court did determine the relevancy and connection of the alleged libels. In the Murphy Case the court passed on that question, and decided that the retort was not privileged.
The overwhelming weight of authority supports the doctrine that the court decides whether the writing is one within a qualified privilege. See Brown v. Croome, 2 Starkie, 297; Gassett v. Gilbert, 6 Gray, 97, 99; Chaffin v. Lynch, 84 Va. 884; Easley v. Moss, 9 Ala. 266; Smith v. Smith, 73 Mich. 445 (3 L. R. A. 52, 16 Am. St. Rep. 594); 13 Am. & Eng. Enc. Law, 422. Our own case of Myers v. Kaichen, 75 Mich. 272, impliedly recognizes the doctrine. In Bacon v. Railroad Co., 66 Mich. 175, this subject is discussed, and the language of Baron Parke in Toogood v. Spyring, 1 Cromp., M. & R. 193, approved; i. e.:
“That if such communications are fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”
See, also, Pollasky v. Minchener, 81 Mich. 283 (9 L. R. A. 102, 21 Am. St. Rep. 516); Garn v. Lockard, 108 Mich. 198; Harrison v. Howe, 109 Mich. 480.
In the case of Smith v. Smith, supra, the occasion was, in a sense, one where the defendant was privileged to publish his wife, and the publication was relevant to the subject, though excessive; and it was held not error against the defendant to submit the question to the jury. It does not follow that an irrelevant charge must be submitted to a jury to determine whether it is excessive,, for such cannot be privileged under, any circumstances.
In Smith v. Youmans, 3 Hill, (S. C.) 85, the court said:
“In general, however, where it appears on the plaintiff’s showing, or on evidence produced by the defendant, that the publication was made on such an occasion or under such circumstances as have been specified, and that the words were spoken bona fide in the discharge of some legal or moral duty, rendered necessary by the exigencies of society, the occasion affords a prima facie presumption to rebut the inference of malice, and the plaintiff would fail without further proof. See Starkie, Ev. 4, p. 863, and the cases there cited.”
See Hart v. Reed, 1 B. Mon. 166 (35 Am. Dec. 179); Gray v. Pentland, 4 Serg. & R. 424; Flitcraft v. Jenks, 3 Whart. 161.
In Dwyer v. Esmonde, Ir. R. 11 C. L. 542, it was said:
“Yet affirmative allegations of misconduct of the party who has libeled another, made in reply, if unconnected with the conduct charged in the first publication, and not mere matter of excess, are not privileged.”
A unique case upon this subject is Pasquin’s Case, unreported, except as referred to in Tabart v. Tipper, 1 Camp. 351. In that case it is said that, when it appeared that the plaintiff’s own publications were libelous and scandalous, Lord Kenyon threw his manuscript at the plaintiff’s head, and dismissed him from the court with infamy.
The case that goes the furthest towards supporting the defendant’s claim is Goldberg v. JDobbert'on, 46 La. Ann. 1303 (28 L. R. A. 721). In the syllabus it is said:
“The interchange of opprobrious epithets and mutual vituperation and abuse will justify a judge in approving a verdict for the defendant, although the slanderous words were proved; and a verdict rendered in such a case will not be disturbed by the supreme court.”
Copious notes upon this subject will be found in 28 L. R. A. 721, from which it will be seen that the Louisiana case is exceptional. Numerous authorities are cited which are not repeated here.
The charges to which we have called attention have no-connection with the charge of corruption in office, previously made by the plaintiff. The only claim made for these is that they discredit him. We have called attention to one case where it was held that a retort that the libelant was known to be in the habit of making misstatements was privileged, but that is a different matter from asking the public to infer that the charge contained in the libel was untrue because some one had accused the libel-ant of some misconduct which had no connection with the alleged libel; as that he had cheated some one in a horse trade, or had committed assault and battery upon one, or had been accused of some criminal act, or was a man of low character and bad habits. It seems to us manifest that very little, if any, of this alleged libel, was relevant to the charge which called it forth, and therefore that it was not, as a whole, privileged. It does not follow that the previous articles published by-the plaintiff were not admissible in mitigation as showing provocation.
Another subject should be referred to in this connection. Much testimony was admitted tending to show that the plaintiff had been charged with the offenses described in the alleged libel. It was competent to show in mitigation of damages that the defendant had heard that such charges had been made, but it was unimportant whether other persons had heard them or not. The case of Wolff v. Smith, 112 Mich. 360, is in point. It was insisted that it was competent to show that the statements contained in the libel were literally true, whether the charges which they reflected were true or not. We have already shown that it was necessary to prove the truth of the latter to make out a justification. Nothing less would do. It was incompetent to prove the former, because, not being privileged, they could not amount to a defense, and, had they been privileged, they would have amounted to a defense, though false, unless stated maliciously. Whether stated maliciously or not would not depend upon the truth of the charges of arrest, etc., but upon defendant’s information and belief upon such subjects. Proof that the gist of the charges was true would tend to show belief as well as justification. Proof that others had heard rumors or statements tended to prove neither that the defendant had heard them nor that he believed them.
The judgment is Reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
Moore, J.
In November, 1896, defendants Carrington and Eddy swore to a complaint charging plaintiff with the embezzlement of money belonging to the Tribune Publishing Company. A warrant was issued, and by virtue thereof plaintiff was arrested. A nolle pros, was after-wards entered in the case. The plaintiff claimed that defendant Cooley acted with the defendants Eddy and Carrington, and sued all of them in an action for false imprisonment, and recovered a large judgment. The case is brought here by writ of error.
It was the claim of defendant CoOley that he had nothing to do with the arrest and imprisonment of the plaintiff. It is the claim of all the defendants that there was probable cause for the complaint, and that it was made without malice. It is also claimed that, before the complaint was made, a full and fair statement of all the facts possessed by them was submitted to the prosecuting attorney and the .assistant prosecuting attorney, who decided it was a proper case for criminal proceedings, and that the prosecuting attorney’s office had full charge of the case.
Error is assigned as to the conduct of counsel in his opening statement to the jury; as to the conduct of the judge in the trial of the cause; as to the admission and nonadmission of testimony; as to the charge of the judge, and his refusal to give certain charges offered by defendants, and his refusal to direct a verdict in favor of defendants.
Prior to August, 1891, plaintiff was the owner of the Bay City Tribune. He was considerably in debt, and Mr. Cooley was upon some of his paper as indorser. In August, 1891, a corporation was formed, known as the Tribune Publishing Company. Directors were elected. They were authorized by the stockholders to accept from the plaintiff the good’ will and all the business and assets of the Bay City Tribune in full payment of the capital stock, which was fixed at $50,000. The defendants and others became stockholders in the corporation. In Janu-' ary, 1892, a loan of nearly $10,000 was obtained through the agency of defendants and others, the payment of which was secured by plaintiff assigning stock at 50 cents on the dollar. In February, 1895, an arrangement was made by which preferred stock should be issued for one-half the capital stock, which should be entitled to a fixed dividend of 7 per cent, per annum. Common stock could be surrendered for preferred stock by paying in addition to the common stock one-half the face value of the preferred stock in money. This stock was to be surrendered upon certain conditions, the principal ones of which were that the debts of the company, for which defendants and others had become liable, were paid. After the company was organized, Mr. Bennett was appointed manager, 'and was to have a salary of $50 a week. The president and vice-president were authorized to borrow $5,000, which amount was afterwards increased to $6,000. In Februaiy, 1896, a committee made an examination and report of the business of the company, and recommended that the stockholders guarantee a credit of $4,000 upon condition that Mr. Bennett transfer to a trustee certain real estate and a life-insurance policy to indemnify the stockholders against loss. This was done, and the credit guaranteed. It is claimed that Mr. Bennett at this time 'represented the indebtedness to be less than $4,500, when it was in fact nearly $10,000 more than that amount. The business demanded more money, and in May, 1896, three chattel mortgages were given to a trustee to secure various debts, —among others, those due to employés of the paper, — and one chattel mortgage given to the First National Bank to secure $8,000. Shortly afterwards one of these mortgages was foreclosed, and the connection of the plaintiff with the paper ended. The defendants examined, or caused to be examined, the books of the, company, and say they came to the conclusion that between February, 1895, and May, 1896, plaintiff, as shown by the books and other evidence, had collected large sums of money belonging to the publishing company, and appropriated it to his own use.
Upon the trial of this cause the plaintiff was allowed to show the transactions relating to the first organization of the company, his relations to the shareholders and the subsequent transactions of the company, and the relations of defendants to it and the plaintiff, until his connection with the company ceased. It is the claim of defendants that this testimony should have been confined to what occurred between February, 1895, and May, 1896, the period of time during which it is alleged the embezzlement occurred. It is admitted by plaintiff that the books show, and the fact was, that he drew out of the company between February, 1895, and May, 1896, more than the amount of his salary, — $50 a week. His claim is that, though the business was nominally that of the publishing company, it was actually his, and was so understood, not only by himself and his office force, but' by defendants. His claim is they were anxious to have a paper maintained which should reflect their political convictions, and were willing to aid him in maintaining such a paper; that the organization of a company was a convenient form through which to carry out their purpose; and that what occurred, including the writings in the nature of defeasances, and the conveyance of the rea-1 estate and the life-insurance policy by him, shows that the business was his, and that the stock was held as security, and was to be returned to him when the debts were paid. It is his claim that it was expected he would draw out of the business more than his weekly wages, to make payments upon the debts which had been guaranteed or indorsed by the defendants, or some of them, and that all the amoúnts so drawn out by him had' been so appliéd, and some of the money paid to the defendants, and that they understood what was done, and the method of doing it, in many of the transactions, and that he did not embezzle any of the funds belonging to the company. We think this testimony was admissible, as bearing upon the question of whether the defendants Carrington and Eddy had probable cause to believe the plaintiff guilty of embezzlement, and for making the complaint, and whether it was made by them in good faith. Probable cause involves a consideration of what the facts are, and what are the reasonable deductions from the facts. It is therefore what is denominated a “mixed question of law and fact.” If the facts are not in dispute, the question is for the court. Upon the disputed facts the jury must be left to pass, but the court must determine, on the facts found, whether or not probable cause exists. Cooley, Torts (2d Ed.), 209. In this case there was a dispute between the plaintiff and defendants as to the manner in which the business was conducted, the knowledge the defendants had of the condition of the accounts, and the disposition made of the proceeds of the business, which made it necessary for the court to submit these facts to the jury.
The court allowed, over the objection of defendants, testimony to be given as to what was done with the property of the publishing company after the mortgages were foreclosed, and as to the organization of a new company. It also permitted the files to be introduced in evidence in an attachment suit commenced by Mr. Cooley against the plaintiff. This testimony did not throw any light upon . the issues involved in, this case, and was well calculated t« prejudice the jury against the defendants. If any injustice was done the plaintiff in those proceedings, it can not be litigated in this one. The admission of this testimony was error.
One of the first things done, after the trial was entered upon, was for the plaintiff to introduce evidence in relation to the organization of the company in 1891 and 1892. Objection was made to the admission of the testimony; the defendants claiming' the testimony should be confined to what occurred from February, 1895, to May, 1896, when it was alleged the embezzlement occurred. The court said:
“This evidence is addressed in another direction. If the defendants procured the arrest of the plaintiff in Chicago under that warrant, by the officer, they are liable, and I will so charge the jury; and this testimony may enormously enhance the damage, it seems to me.”
This was said before the testimony of the first witness for the plaintiff was completed. It anticipated and cut off the defense which defendants sought to make, and which they had a right to make if they could, — of probable cause, and that the complaint was made by the direction of the prosecuting officer after a full statement of the facts to him. This statement was prejudicial, and ought not to have been made.
The plaintiff was allowed to show he failed to get employment after his discharge, and that he had been idle nearly all the time from the timé of his arrest until this suit was commenced. Objection was made because it did not appear the situation arose from any act of defendants. The judge replied, “Well, the jury may think it did,” when the following occurred:
“ Q. Mr. Bennett, you may state what the treatment of the public and the people that you are acquainted with was, in this city, after your arrest. (Objected to by defendant's, unless he goes into it before the arrest as well as after.)
“The Court: He may answer. (The defendants excepted to the ruling of the court.)
“The Court: Now you may sit down. I can’t be bothered so much by objections.
“At Well, I was pointed out as an embezzler. I think many people thought I was a thief. My wife was shunned in the same way. Many of the best friends I had before went by and didn’t even speak to me.
“ Q. You may state, Mr. Bennett, as to whether you ever had been idle before this occurrence since the time you left school, when you were a boy.
“A. No, sir; never lost a day.”
Upon another occasion the court told counsel to sit down, and refused to allow him to state his objection to the testimony. If the defendants were liable at all, they were liable for such damage as was caused by them; but it does not follow that, because Mr. Bennett was out of work at a time when it is a matter of common knowledge that a great many people were out of work, defendants were responsible for his idleness. The treatment of the counsel was also well calculated to prejudice the cause of his client before the jury.
Mr. Bennett was a witness on his own behalf. Counsel for the defendants sought to cross-examine him in relation to an account which he claimed contained the items, or some of the items, showing his relations with the company. The court, upon his own motion, told him he need not answer, and afterwards arbitrarily excused him from further cross-examination, when counsel had not completed the cross-examination. A good deal of discretion should be allowed to the trial judge in directing the course of the trial, but it is very apparent from the record that the cross-examination was cut off by this action of the court before counsel had an opportunity to cross-examine the plaintiff in relation to matters that were material. The right to cross-examine is a valuable right, and, while the court has an undoubted right to prevent its abuse, there is no evidence here of any disposition on the part of counsel to abuse his right of cross-examination. Chandler v. Allison, 10 Mich. 460; Thompson v. Richards, 14 Mich. 172; O’Donnell v. Segar, 25 Mich. 367; People v. Barker, 60 Mich. 277 (1 Am. St. Rep. 501), and cases there cited.
While Mr. Gilbert, the prosecuting attorney, was testifying, it was sought to show what directions he had given the officer about going to Chicago and making the arrest. The court refused to allow this. We think this was error. It was the claim of defendants that they had nothing to do with the proceedings after the complaint was made. Mr. Carrington and Mr. Eddy claimed they had no knowledge it was proposed to arrest the plaintiff in Chicago, until after his arrest was made. As testimony was allowed to be given on the part of the plaintiff as to the arrest and what was done in Chicago, it was very proper to show who caused the arrest at Chicago to be made.
The testimony shows that, after the defendants consulted the prosecuting attorney about instituting the criminal proceeding, Mr. Marshall (an expert), at the suggestion of the prosecuting attorney, was employed by defendants to examine the books, and to learn what he could about the accounts, and report to the prosecuting attorney what he found. Mr. Marshall was examined as a witness. It was sought to show what he had learned, and what he reported to the prosecuting attorney that he.had learned. This testimony was excluded. It should have been admitted, as bearing upon the question of whether all the material facts had been submitted to the prosécuting attorney before the criminal case was commenced. This ruling will also apply to the refusal of the court to allow Mr. Carrington to testify what he informed the prosecuting attorney.
Mr. Collins, the assistant prosecuting attorney, was present during all the trial, and heard the testimony of the witnesses as to the knowledge possessed by the defendants of the facts connected with the business when the criminal complaint was made. He was asked to state what testimony, if any, he had heard relating to facts known by the defendants that were not detailed to him prior to the time criminal complaint was made. This testimony was excluded. The defendants claim they were protected by the advice of counsél. It was claimed on the part of plaintiff that they had not disclosed to counsel all the facts they knew. The law is that if one about to institute a criminal complaint takes advice of counsel learned in the law, and places all the facts before him, and acts upon his opinion, he will be protected, provided the disclosure appears to have been full and fair, and not to have withheld any of the material facts. Cooley, Torts (2d Ed.), 211. Mr. Collins should have been allowed to answer the question, as bearing upon the question as to whether all the material facts had been stated to him before the complaint was made.
It is claimed that the court should have directed a verdict upon the ground that defendants were protected by the advice of counsel. In the note to Cooley, Torts (2d Ed.), 212, it is said the mere fact of getting advice is not conclusive, in favor of the defendant (citing cases), and that the advice must be honestly given, and acted upon in good faith. In this case it is claimed defendants had such knowledge of facts that they did not believe Mr. Bennett was an embezzler, and that they did not communicate all the facts they knew to counsel. We are not prepared to say there was no proof bearing upon this claim, and that the court should have directed a verdict in favor of defendants. Harris v. Woodford, 98 Mich. 147.
We do not deem it necessary to discuss the other assignments of error. They are either not well taken or are not likely to occur again.
The judgment is reversed, and a new trial granted.
Montgomery, J., concurred with Moore, J. Grant, C. J., and Long, J., concurred in the result. Hooker, J., did not sit. | [
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Long, J.
The defendant owns and operates a line of street railway between the cities of Ann Arbor and Detroit. This line passes through the townships of Canton, Nankin, Dearborn, the village of Wayne, and other townships and villages not material to this case. The agreement or franchise from the township of Canton, so far as is material to the case, is as follows:
“The rate of fare for any distance on the line of said railway within the said township of Canton shall not exceed five cents, but the rate of fare for any distance on the line of said railway outside of said township shall not exceed two cents per mile.”
On April 10,.1899, plaintiff boarded one of defendant’s cars at a point in the township of Canton, with the intention of going through to Detroit. He did not communicate this intention to defendant’s conductor. The through fare from this point to Detroit was 35 cents. Plaintiff offered defendant’s conductor 10 cents, as a fare to Inkster, which is an unincorporated village on the line between the townships of Nankin and Dearborn. To reach Inkster from where plaintiff boarded the car, he had to cross a portion of the township of Canton and the whole of the township of Nankin, also through the village of Wayne, which is situate wholly within the territory of the township of Nankin. Defendant’s conductor refused to accept the 10 cents offered, and demanded 15 cents. Plaintiff paid the 5 cents under protest. The agreement or franchise from the township of Nankin, as regards fare, is almost identical with that of the township of Canton. The provisions of the franchise from the village of Wayne are that fare shall not exceed 1% cents per mile, provided that no passenger shall be carried any distance for less than 5 cents. On arriving at Inkster, plaintiff tendered defendant’s conductor a ticket. This ticket is issued pursuant to the franchise granted to defendant by the township of Dear-born, which, so far as relates to this ticket, is as follows:
“ It is further provided that said grantee shall charge not to exceed the following rates: * * * Prom any point in said township west of St. Joseph’s Retreat to Woodward avenue, in said city [Detroit], * * * strip of five such tickets for sixty-five cents, good either way.”
Defendant’s conductor refused to accept this, because plaintiff was a through passenger, and did not get on the car at Inkster. The conductor demanded a cash fare of 20 cents, which plaintiff paid, to prevent being put off the car. This suit was brought to recover the 5 cents which plaintiff claims is an overcharge for his fare to Inkster, and 7 cents, the excess of his cash fare over the ticket from Inkster to Detroit.
The case was tried before the court without a jury. The court found:
1. That the plaintiff was entitled to ride from the point where he boarded said car, in the township of Canton, to the village of Inkster, for the sum of 10 cents, and that the additional sum of 5 cents was wrongfully exacted, and that he was entitled to recover the same.
2. That the ticket tendered at Inkster entitled the plaintiff to ride from Inkster to the city hall in Detroit, and that, therefore, the 20 cents demanded and paid was illegally and wrongfully exacted, and the plaintiff was entitled to recover the difference between 13 cents, which he had paid for his ticket, and the 20 cents exacted, or 7 cents for that part of the route, making 12 cents in all, with his costs of suit, not exceeding $25,.
Counsel for defendant asked the court to find:
“ 1. That, under the undisputed testimony, the defendant is entitled to charge and collect from a passenger boarding its cars in the township of Canton, with the intention of going to Detroit, the regular fare, 35 cents.
‘ ‘ 2. That the defendant has the right to charge and collect from passengers boarding its cars in the township of Canton to go to Inkster 5 cents for the township of Canton, 5 cents for the township of Nankin, and 5 cents for the village of Wayne.
“3. That passengers who board defendant’s cars in the township of Canton to go to Detroit do not have the right to pay fare to the line between Canton and Nankin, then 5 cents to the line between Nankin and Dearborn, and then offer a 13-eent ticket to Detroit.
‘ ‘4. That passengers who board defendant’s cars with the intention of going to points beyond the limits of the municipality within which they first take the cars do not have the right to pay local fares fixed by other municipalities through whose limits they may chance to pass.
“ 5. That a passenger who boards defendant’s cars for the purpose of a continuous ride t© any point is governed during his whole trip by the franchise granted by the municipality within whose limits he boarded the car.”
The court refused each of those findings.
It is contended by counsel for defendant that the township of Canton gave the defendant the right to pass through its limits, and, as a local fare within its limits, fixed a maximum of 5 cents; if, however, the passenger wished to go beyond the limits of the township, the defendant had the right to charge not to exceed 2 cents per mile; that the first applied to local, the second to through, passengers. It. is also said that, when plaintiff boarded the car in Canton to go to Detroit, he selected the provision of the Canton franchise which was most to his advantage, and attempted to ignore that part which was of advantage to the defendant; that he was on defendant’s car under the Canton franchise, and by virtue of that franchise defendant agreed to convey him to Detroit, not first to Nankin, then to Inkster, and then to the city of Detroit; that plaintiff must take the contract as an entirety, or not at all; that, if defendant can charge through rates, plaintiff cannot avail himself of the 13-cent ticket from Inkster to Detroit. It is conceded by counsel that they are unable to find any adjudicated case directly in point.
We cannot agree with counsel in their contention. The Canton franchise fixed the maximum fare at 5 cents. This entitled the plaintiff to the right to be carried through that township for 5 cents, though he may have intended at the .time of taking passage to go beyond the limits of the township. This limit of fare in the franchise cannot be held to apply to local passengers alone, but must apply to all who desire passage, even if going beyond the limits of the township. The defendant had no right to make such a discrimination. The plaintiff offered the conductor 10 cents as fare to Inkster, a small unincorporated village in the township of Nankin. The township of Nankin adjoins the township of Canton on the east, and to reach Inkster the plaintiff had to pass through a part of Canton and a part of Nankin townships. The franchise in Nan-kin limited the maximum fare to 5 cents, so that, under the franchises of the two townships, the maximum fare was 10 cents. It cannot be said that because, at the time plaintiff entered upon the passage, he was in Canton township, and intended to go to Detroit, the defendant could ignore the limit which the township of Nankin placed upon the rate of fare. Defendant is bound by the franchise in Nankin as well as in Canton, and cannot increase the rate of fare in those townships beyond the limit fixed in each. The defendant did not, in fact, attempt to stand on the Canton franchise. It chose to deal with plaintiff as a passenger from Canton to Inkster, and exacted from him 5 cents under the Canton franchise, 5 cents under the Nankin franchise, and 5 cents under the village of Wayne franchise (a village situate wholly within the township of Nankin), or 15 cents in all for the passage to Inkster. The statute under which the defendant was organized provides that:
“ Any company organized under the provisions of 'this act may construct, use, maintain, and own a street railway for the transportation of passengers in and along the streets and highways of any township, upon such terms and conditions as may be agreed upon by the company and the township board of the township; which agreement, and the acceptance by the company of the terms thereof, shall be recorded by the township clerk in the records of the township.” Section 13, Act No. 12, Pub. Acts 1893.
Street railways are bound by such agreements, and the defendant could not release itself from its obligation to comply with this agreement in the township of Nankin and other towns through which it passed because the passenger intended to take a through passage to some other „ place.
The Nankin franchise was granted April 16, 1895. It purported to authorize the defendant to construct and operate its railway along the “ Chicago Road,” so called, through, the township, and provided that “the rate of fare for any distance on the line of said railway within the said township of Nankin shall not exceed five cents.” The village of Wayne forms a part of said township, and for all township purposes the village is represented on the township board by the township officers. Under the terms of the franchise, any person has the right to ride on defendant’s cars from any point in the village to the township line in either direction, or from any point in the township to any other point therein, though he might pass through the village of Wayne, for a 5-cent fare. But defendant claims that on December 7, 1897, it obtained a franchise from the village of Wayne which entitles it to charge an extra 5-cent fare within the village limits. The clause in the village franchise under which this right is claimed reads:
“The said grantee corporation, its successors and assigns, shall be entitled to charge at the rate of one and one-half cents per mile, except as hereinafter provided, for the carriage of any single passenger for one continuous trip over said railway on Michigan avenue between any two points on its line between the city of Detroit and the city of Ann Arbor: Provided, however, that no passenger shall be carried for a less fare than five cents for any distance.”
This is not the grant of a right to charge 5 cents extra for riding through the village of Wayne. The object of this proviso was to enable the defendant to exact 5 cents for any short trip which would otherwise amount to less than that sum at 1£ cents per mile. This is not in conflict with the franchise granted by the township of Nankin.
In reference to the ticket which the plaintiff tendered to the conductor .for the trip from' Inkster to Detroit, it appears that the franchise agreed to by defendant with the township of Dearborn contained the following:
“ Said grantee shall charge not to exceed the following rates, to wit: * * * From any point in said township west of St. Joseph’s Retreat to Woodward avenue, in said city [Detroit], or any intervening point west of Wood ward avenue in said city, single cash fares of twenty cents, good either way; two tickets for thirty-five cents, good either way; strip of five such tickets for sixty-five cents, good either way; * * * and all such tickets shall be kept for sale by said company upon each and every car operated by said company.”
The village of Inkster is situated in the town of Nankin, on the line between Nankin and Dearborn. The ticket produced by the plaintiff was one of a strip of five tickets, and had printed on the back thereof the words and figures following:
“Detroit, Ypsilanti & Ann Arbor Railway.
“Good for one fare between Inkster and F. & P. M. crossing. ' F. A. Hinchman, Sec’y.”
Also, the following:
“On account of D., Y. & A. A. Ry. Detroit Citizens’ Street Ry.
“Good for one fare bet. F. & P. M. crossing and city hall. F. A. Hinchman, Sec’y.”
The Dearborn franchise not only limits the fare to one of these tickets from Inkster to Woodward avenue, but the plaintiff produced the ticket, indorsed by the secretary of the defendant company, which entitled him to the passage. The ticket itself was a contract binding upon defendant to accept it for one fare from Inkster to the city hall, Detroit, as it was unrestricted and unlimited.
No other questions need be discussed. The judgment must be affirmed.
The other Justices concurred. | [
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] |
Hooker, J.
The defendant was convicted of the offense of embezzlement, upon the following state of facts: He was treasurer of Bay county, having been elected in 1894. At its October, 1894, session, the board of supervisors adopted the report of its committee on ways and means, which, so far as applicable to this case, was .as follows:
“ To the Honorable Board oe Supervisors oe
Bay County.
“ Gentlemen: Your committee on ways and means, to whom was referred the matter of the salaries of the county officers, have had the same under consideration, and would recommend that the salaries of the various county officers be as follows for the next two ensuing years: For county treasurer, $3,800, and collection fees on liquor and other taxes.”
Acting in conformity to this resolution, the defendant drew from the treasury the sum of $3,800 yearly, and at the end of each year of his term drew the collection charges, the same being audited and allowed by the board of-supervisors. Orders were drawn by the county clerk for the amounts. The prosecution rested upon the claim that he was not eñtitled to the collection charges under the law, and that, as he was bound to know the law, his act necessarily constituted embezzlement.
At the March, 1898, term of the circuit court, the following order was made and entered in the journal-
“ At a general term of the circuit court for the county of Bay, commenced and held at the court-house in Bay City, said county, on Monday, March 7th, A. D. 1898. Present: Hon. A. O. Maxwell, circuit judge. Court opened for business in due form.
“In the matter of drawing and summoning a grand jury.
“No grand jury having been drawn and summoned for the present term of this court, and it appearing to the court that there is reason for the summoning of a grand • jury, thereupon it is ordered that a grand jury be drawn and summoned forthwith, such jurors to be drawn from the cities of Bay City and West Bay City, and the townships of Bangor, Prankenlust, Hampton, Kawkawlin, Merritt, Monitor, and Portsmouth.
“Thereupon court adjourned until Wednesday, March 9th, A. D. 1898, at 8:30 a. m.
“Bead, approved, and signed in open court.
“A. C. Maxwell, Circuit Judge.”
A grand jury was drawn in conformity to such order, summoned, and impaneled, and the indictment upon which the conviction was had was found. Upon his arrest, the defendant, through counsel, moved to quash the indictment upon the ground that the grand jury was not legally constituted, for the reason that it was not drawn under a written order, signed and'filed in conformity to 2 How. Stat. § 9554, which reads as follows: ‘£ Grand juries shall not hereafter be drawn, summoned, or required to attend at the sittings of any court within this State, as.provided by law, unless the judge thereof shall so direct by writing under his hand, and filed with the clerk of said court; ” and for the further reason that said jury was not drawn from the whole county. This motion was by stipulation to be given the effect of a plea in abatement, should that be held the necessary practice. The court denied the motion, and proceeded to try the defendant.
The evidence showed that the collection charges consisted of the 4 per cent, collection fee provided by statute. The court held that “the effect of this resolution was to fix the salary of the treasurer at $3,800 and the collection fees of liquor taxes, given to treasurers by statute, and it was void as to the 4 per cent, collection fees on taxes collected,” and directed the jury to find a verdict of guilty. The defendant has assigned error. The questions dis cussed rest upon the following propositions, asserted upon the defendant’s behalf:
1. The indictment' should have been quashed.
2. The court erred in directing a conviction, because the resolution was valid, and gave the defendant the right to receive the sums taken.
3. In any event, the court should have submitted the question of criminal intent to the jury.
In 1859 the common practice of indicting, through a grand jury, was superseded by that of filing informations (2 How. Stat. chap. 334); and, by section 9554, the grand jury was dispensed with, except in cases where specially ordered. It -is contended that this section should be held mandatory, and strictly construed, in connection with section 7562, which provides for the drawing of grand juries by the clerk at least 14 days before term. It is said that the effect of these sections is to require the written order of the judge to be filed at least 14 days before term. Section 7562 was • originally designed to prescribe the .-method of drawing grand juries when they were a regular -appendage of the court, and its substance will be found in Rev. Stat. 1846, tit. 22, chap. 103, § 16. Section 9554 appears to have been required to prevent the continuance of the former practice of drawing and impaneling grand juries under chapter 263, of which 7562 is a section. We are not satisfied that it was intended to limit the power of the court in relation to the calling of grand juries during term, but think, rather, it was intended to extend it, by permitting the judge at chambers to make an order for a grand jury if he should think a grand jury necessary, that it might be seasonably- drawn in the usual way, which, under the former practice, required no order.
2 How. Stat. § 7578, reads as follows:
“Whenever, for any cause, grand or petit jurors shall not have been drawn and summoned to attend any circuit court, or a sufficient number of qualified jurors shall fail to appear, such court may, in its discretion, order a sufficient number of grand or petit jurors, or both, to be forthwith drawn and summoned to attend such court: Provided, that in drawing jurors under this section the court may, for the purpose of obtaining a jury or tales-men near the county seat, direct from which townships or supervisor districts such jurors shall be drawn.”
Such a construction of these statutes as is urged upon us would disregard section 7578, which was an old statute (see Rev. Stat. 1846, tit. 22, chap. 103, § 32), and one that is inconsistent with the claim that the circuit court, when in session, cannot order a grand jury for that term. The last-mentioned section, as it stood when section 9554 was passed, conferred such power upon the court in case a grand jury had not been drawn or summoned, and it was deliberately re-enacted, with amendments, subsequent to the passage of section 9554, without attempting to correct the incongruity which the construction contended for suggests. We see no necessity for such construction, and think it would be against public interest, and contrary to the uniform practice that has prevailed under section 7578. The order in this case was a formal court order, and it is over the signature of the judge, and therefore a substantial compliance with section 9554, if that section should be considered applicable to orders made in count, which we do not decide.
The order, in this instance, specified the townships from which the grand jurors were to be summoned, as provided in section 7578, and they were summoned from seven townships only. The constitutionality of this statute is not attacked, but it is urged that the theory of the law has always been to draw the grand jury from the “ body of the county” in the first instance, and that tales-men, or jurors to complete a panel or supply a deficiency, merely, have been permitted to be taken from a particular .township or city, and that we should limit the application of this statute to cases where a jury has been drawn, or at least ordered, and not summoned, or some of the jurors have failed to appear. The act is broad in its terms, and seems to cover any and all cases where, for any cause, such jury shall not have been summoned. In a case where a jury has been regularly drawn, but not summoned, the consequences of an order similar to that complained of would be as serious as though no jury had been drawn, yet such a case would unquestionably be within the statute. Why, then, should we place a strained construction upon it ? It is true that the laws have attempted to accomplish an equal distribution of jury duty throughout the county, but such distribution is not a matter upon which the validity of the proceedings depends. There is nothing in our Constitution to prohibit the legislature from regulating the practice by grand jury, any more than that by complaint and examination by a magistrate. Jeopardy does not begin until the accused is put upon trial before a petit jury. It was therefore within the power of the legislature to provide that a grand jury might be summoned from any portion of the county, either in case of emergency or in the first instance.
Sections 9496 and 9497, 2 How. Stat., are copied from the statute of New York. They are as follows:
“Sec. 9496. A person held to answer to any criminal charge may object to the competency of any one summoned to serve as a grand juror, on the ground that he is the prosecutor or complainant upon any charge against such person; and if such objection be established, the per-, son so summoned shall be set aside.
“ Sec. 9497. No challenge to the array of grand jurors, or to any person summoned as a grand juror, shall be allowed in any other case than that specified in the preceding section.”
If at the common law the accused had the right to challenge a grand juror, or the array, in.proper cases (which seems to be doubted in People v. Lauder, 82 Mich. 138)', our statute has forbidden this, except upon certain specified grounds; and it would seem to follow, that an objection which would not support a challenge could hardly suffice upon a motion to quash the indictment. This is indicated by Mr. Justice Morse in his opinion in the case of People v. Lauder, 82 Mich. 134, where he says that one having no opportunity to interpose a challenge has the right to raise, either by plea in abatement or motion to quash', the samo objections to the grand jury that a person under accusation at the time that it was impaneled might have interposed, but no other. In People v. Smith, 118 Mich. 73, it is said that “ an objection prohibited by the statute when the grand jury is impaneled cannot be valid when the party is put upon trial under the indictment found.” In People v. Lauder, supra, these sections were passed upon. It was there said (page 134) that—
“ The decisions in other States throw no particular light on this question, when we consider these statutes, except in States having similar laws. It was evidently intended by the legislature that no mere technicalities or irregularities should be permitted to quash the grand-jury panel, and that only in case of a prosecutor or complaining witness being summoned could the accused person successfully complain and exercise the right of challenge. And, certainly, if a person under accusation and arrest, and about to have his case submitted to the grand jury, could interpose but this one objection to the formation of the grand jury, he would not be permitted, after indictment found against him by such grand jury, to have such indictment quashed for any incompetency of a grand juror, or any irregularity in the selection or formation of the jury, which he could not raise before the jury was sworn. Such a holding would be nonsensical, and entail needless expense. And Lauder must stand in the same position. He can have no advantage over one who might have been under accusation and arrest at the time of the impaneling of the jury.
“ I am satisfied that the legislature has wisely ordained that no inquiry for the purpose of quashing an indictment shall be made into the composition of a grand jury, or as to the competency of the individual jurors, except in cases where some member has been the prosecutor of, or the complaining witness against, the person indicted. It must be remembered that the grand jury does not settle the guilt or innocence of the accused, but acts something the same as does an examining magistrate. No irregularities in the examination of an accused person before a magistrate are permitted to quash an information filed in the circuit court against him, and based upon such exam ination. The admission of incompetent evidence, or the rejection of proper testimony, by the justice of the peace, or other person holding such examination, has no effect upon the information. This proceeding to find an indictment before a grand jury, or to bind an accused person over to the circuit court by a justice of the peace, is but the presentment of a case to be tried before a petit jury, and the proceeding is not to be governed by any mere technicalities, as long as the substantial rights of the accused to a speedy and fair trial before a jury of his peers is preserved and remains to him. In a case where a grand jury was impaneled without any jurisdiction whatever, or fraudulently, or in willful disregard of the law and the rights of the accused, or when substantial injustice was shown to have been done him by any of the proceedings in organizing the grand jury, or by the proceedings before it after it was organized, it would be the duty of the court, upon proper showing, to quash the indictment.”
While the language quoted is from a dissenting opinion, it was concurred in by the entire bench, as appears from the majority opinion (see 82 Mich. 111), and was necessary to the decision of the case. Mr. Justice Morse cites cases of similar import from several States. 82 Mich. 138. In addition, we refer to the following: People v. Smith, 118 Mich. 73; People v. Petrea, 92 N. Y. 142; People v. Hooghkerk, 96 N. Y. 158; U. S. v. Reed, 2 Blatchf. 435; U. S. v. Tallman, 10 Blatchf. 2l.
The case of State v. Noyes, 87 Wis. 340 (41 Am. St. Rep. 45), is in point upon this question. It holds that a grand jury assembled under color of law is a de facto grand jury, and an indictment found by such jury cannot be attacked upon the ground that it was not found by a lawfully constituted jury, but that the proceedings of such a jury are valid, the same as are those of a court presided over by a de facto judge. In People v. Petrea, 92 N. Y. 128, an indictment for larceny was found by a jury drawn under a void statute, but the indictment was sustained, upon the ground that “the jury was a de facto jury, selected and organized under the forms of law.” A similar holding was made in People v. Fitzpatrick, 66 How. Prac. 14. In People v. Dolan it was not known who drew the jury, but the court said:
“It is sufficient to maintain the authority of the grand jury to investigate criminal charges, and find indictments valid in their nature, that the body acted under color of lawful authority.” People v. Dolan, 6 Hun, 232, 64 N. Y. 485, 493.
See, also, In re Gannon, 69 Cal. 541; Ex parte Haymond, 91 Cal. 545; State v. Belvel, 89 Iowa, 405 (27 L. R. A. 846); Ex parte Springer, 1 Utah, 214.
Missouri has a statute similar to our own. In discussing it, the supreme court of that State said, in the case of State v. Bleekley, 18 Mo. 430:
“ In early days, in this State, it was common for the courts to grant new trials in criminal cases on account of some disqualification of jurors. Frequently after undergoing the labor and expense of a trial, lasting for days, and after a verdict of guilty was found, a new trial was ordered because the prisoner had discovered that one of the jurors was an alien. The legislature determined to put a stop to this practice. * * * The defendant is not permitted to question the manner of summoning the grand jury. Such a cause, on such a subject, is not one of the statutory objections allowed to grand juries or to a grand juror in our courts, and npne other can avail.”
It does not follow that a meritorious question, arising out of proceedings of the grand jury, or irregularities in its procurement, cannot be reached. They are always within the discretion of the trial judge, who has the power to set aside the proceedings, as he may vacate the verdict of a petit jury, on motion. In Gibbs v. State, 45 N. J. Law, 379 (46 Am. Rep. 782), the adequacy of such remedy receives the following cogent vindication:
“Nor in abstract speculation would an argument of any force arise from these premises that the remedies thus provided are so utterly insufficient and unreasonable that it must be presumed that a further remedy exists. For my part, I can see no force whatever in such a suggestion. In the first place, we are to remember that the right in question, and which, in some measure, the law should assuredly secure to the party, is not one that can be called an essential or fundamental right. It is not one necessary for the security of the person, life, or property. The requisite that an accusation of this nature shall proceed from a grand inquest is the provision which the law makes against frivolous or malicious public criminations. The safeguards to such provisions, as I have said, consist in the right to challenge the grand jury and the right to move the court to set aside the proceedings. Are such safeguards unreasonably deficient ? I am at a loss to see how any one can so consider. If a man is tried for his life, and is convicted, and he then discovers that by the malice of the summoning officer the jury has been packed, and the trial has been a scheme to take his life, what remedy does the law give him in such an extremity? Absolutely none, but an application to the discretion of the court to set the proceedings aside; and yet it is argued that this same remedy is inadequate in its application to a similar proceeding on the part; of a grand inquest. I must repeat that I cannot concede that a right to put in the plea in question belongs to the defendants ex debito justitice.”
In U. S. v. Reed, 2 Blatchf. 449:
“ These objections, however, to the proceedings in the selection and summoning of grand jurors, over and beyond the right of challenge, are presented to the court for the exercise of its sound discretion. It will, therefore, look into the facts presented, on which a charge is made against the regularity of the proceedings in the selection and summoning of grand jurors in a given case, and will hear the explanations on the other side, and its judgment will be determined accordingly. If it sees that there has been improper conduct in the public officers, which has resulted prejudicially to the party accused, it is bound to set aside all the proceedings. On the contrary, although there may be .technical objections to the proceedings in point of s.trict regularity, yet, unless the court is satisfied that they have resulted, or may result, to the prejudice of the party accused, it will not set them aside, because its interposition in the case will not be required on the ground of justice either to the accused or to the public.”
Similar language is used in the case of People v. Lauder, 82 Mich. 138, and would seem to imply that, like other questions addressed to the discretion of the trial judge, the decision is not subject to review; certainly not, unless in cases of clear abuse. The presumption of the law is that the trial court is competent, and disposed to do justice, and its decision of questions addressed to its discretion should not usually be considered by superior courts. Under the pressure of hard cases, some of the appellate courts of this country have assumed to do so, and, when this is once done, it is afterwards difficult to avoid it, until it becomes a common thing to review discretionary action wherever there is a suspicion of injustice. It is destructive to the dignity and independence of the trial court, and it may be doubted if it is not productive of more injustice than good. It is urged in this case that the trial judge has sought to accomplish the indictment of a large number of innocent persons, through a grand jury who, from the proximity of the residence of its members to the county seat, are alleged to have been prejudiced against them. We can presume neither the one thing nor the other. So long as no error'of law is found, we cannot overturn the decisions of courts upon the ground that the judges have erred in judgment or motive. With other prosecutions we have nothing to do upon this record. So far as the indictment is concerned, it appears to have been found by a jury of qualified persons, and the objection to the constitution of the jury is purely technical.
Section 527, 1 How. Stat., provides that—
“The county treasurer shall receive for his services such Compensation as the board of supervisors shall deem reasonable, to be allowed and ordered by them.”
This is an old statute, and under it this court has held that the amount of compensation need not be fixed at a definite and specified sum in dollars and cents, and that it was competent for th'e board of supervisors to make prospective office charges a portion of the salary allowed, by a resolution reading as follows: ‘ ‘Resolved, that the salary of the county treasurer for the present year be fixed at $1,500, and that he be allowed his ordinary office charges in addition.” People v. Clerk of Board of Sup'rs of Bay Co., 38 Mich. 307. Counsel for the people seem to concede that this decision would require a reversal of this case, but for the fact that, some two years after it was rendered, the legislature passed an act in relation to tho fixing of salaries by the board, which is said to have been “intended to overcome its effect.” See 1 How. Stat. § 508. It reads as follows :
“ The annual salaries of all salaried county officers which are now, or may be hereafter by law, fixed by the board of supervisors, shall be fixed by said board on or before the thirty-first day of October prior to the commencement of the term of such officers, and the same shall not be increased or diminished during the term for which such officers shall have been elected or appointed.”
• We are not satisfied that it was intended to have.the effect stated, and think that it was intended to prevent changes in salaries following the election of officers, before the beginning of or during their terms. We see no reason for saying that it was intended to abrogate section 527, or to affect it, -except as it forbids changes during an official term. It- is apparent that 'the amount of the salary fixed in this instance was indefinite and uncertain in a sense, because liable to be increased or diminished through variations in the amount of the collection fees. But the statute was designed to prevent repeated or untimely action by the board, and not to prohibit a method of fixing the salary which should make the amount contingent upon the work done, and which has already been approved, provided the resolution fixing the salary _ should state the rule by which the amount should be determined.
Being unable to concur in the construction given to these statutes, we cannot sustain the conviction. It is therefore set aside, and, inasmuch as the authority to receive the money appears from the record of the board of supervisors, and cannot be successfully controverted, the defendant is discharged.
The other Justices concurred. | [
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] |
Grant, C. J.
(after stating, the facts). The four claims of complainant are:
1. That he was incompetent.
2; That he intended to convey to defendant only a life estate after his death.
3. That the deed was to be inoperative if he recovered from his illness, and was intended as a testamentary disposition of his land.
4. That there was no such delivery as to make the deed effective.
Upon the first three claims the testimony was in conflict. The court must have found either that complainant had not sufficient mental capacity to execute the deed; or that the deed was not such as the parties had agreed to. It would require very strong evidence to sustain a finding that a father had deliberately disinherited his own son. There was good reason why complainant should provide a home for defendant during her life, but no good reason appears why he should give her all his property. We think the court reached a conclusion sufficiently favorable to defendant, who alone appeals, and that there was substantial evidence to sustain it. We need not discuss the question of delivery.
Decree affirmed, with costs.
The other Justices concurred. | [
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] |
Long, J.
Relator files his petition for a mandamus to compel the respondent, as judge of the police court, to entertain a complaint and issue his warrant for the arrest of one John Sessink for a violation of an ordinance of the city of Grand Rapids entitled “An ordinance relative to scavengers.” This ordinance was passed in 1871, and has been amended from time to time. It appears that the relator, on the 16th day of February, 1899, made due complaint before the respondent, as judge of the police court, on oath,- that one John Sessink, on the 15th day of February, 1899, and for 30 days prior thereto, had been following the business and occupation of scavenger in said city, without having first procured a license therefor from the mayor, contrary to the provisions of section 1 of the above ordinance; that the said police judge refused to take such complaint or to issue said-warrant. Upon the filing of the petition in this court, an order "to show cause was issued, and the respondent has made his return thereto. The answer admits the facts stated in the petition, but avers that on July 18, 1898, another ordinance was passed, repealing the ordinance which the relator sought to enforce.
The ordinance of 1871, as amended, provides:
“Section 1. No person shall follow the business or occupation of a scavenger in the city of Grand Rapids without first procuring a license therefor from the mayor of said city.
“Sec. 2. The mayor is hereby authorized to license one or more proper persons to act as scavenger, upon such person executing and filing in the office of the city clerk a bond, with sufficient sureties, conditioned for the faithful performance of the duties of his office and the faithful observance of the provisions of this ordinance.”
The other sections provide that the scavenger, under the direction of the mayor, marshal, or a member of the board of health, shall have the power to enter upon any premises between sunrise and sunset, and examine any vault, sink, privy, or private drain, and that when such shall need cleaning out, altering, relaying, or repairing, after due notice to the owner or occupant, the scavenger may clean them out, etc. The scavenger is prohibited from removing the contents of any vault, sink, privy, etc., otherwise than in boxes, etc., made tight and closely covered, and from burying the same in ground within the city limits, etc., and from disposing of the same to any person to be used for manure in any garden, etc., within the city limits. Section 9 of the ordinance provides that any person violating the provisions of the ordinance shall be punished by a fine of not less than $1 nor more than $50, and costs of prosecution, or by imprisonment in the county jail, etc., for a period of not less than 2 days nor more than 60 days.
The complaint made under this ordinance was that “John Sessink did follow the business and occupation of a scavenger without having first procured a license therefor from the mayor of said city of Grand Rapids,” etc.
The ordinance passed July 18,, 1898, is entitled:
“An ordinance providing for the regulation, collection, removal, and cremation of garbage, offal, dead animals, and other refuse matter, and for the regulation of the crematory, in the city of Grand Rapids.”
By the first section of this ordinance the board of health of the city is given control and management of the garbage burner or crematory owned by the city, with power to employ the necessary help and fix the salaries of employes. Section 2 makes it unlawful for any person to place any dead animal or -garbage in any lane, alley, street, or other public place within the city, or on any private property, unless inclosed in a water-tight tank, kept in some place accessible to the collectors of garbage. Section 4 authorizes the board of health to enter into a contract with any suitable person to furnish tanks and to gather the garbage, with power also to make regulations as to the manner in which the garbage shall be gathered. It also provides that the person thus entering into the contract for the collection and removal of the garbage shall, upon the recommendation of the board of health, receive a license for that purpose, issued by the mayor of the city; and it further provides that:
“No license shall be issued to any other person, firm, or corporation for the gathering of such garbage; and such person so licensed shall give a bond to the city of Grand Sapids, with sufficient sureties and in such amount as may be required by said board of health. The condition of such bond shall be that said person so licensed shall in all things carry out the provisions of the contract thus entered into between himself and the board of health, acting for said city, and such rules and regulations as may from time to time be made by said board of health.”
Section 5 provides that the scavenger thus licensed shall receive no compensation from the city, but shall be permitted to make arrangements, with citizens for the removal of the garbage, etc. Section 6 provides for the manner of the removal of the garbage to the crematory. Section 7 provides the penalty for violations of the ordinance. Section 8 provides as follows: “Any ordinance or part of ordinance conflicting with the provisions of this ordinance be and the same is hereby repealed, so far as the same affects this ordinance.”
After this ordinance was passed, a contract was entered into by the board of health 'of the city with one Charles E. Herrington, as provided by the ordinance, for the removal and destruction of the garbage of the city. This agreement provides that Herrington shall not sublet the contract to any person or persons without permission of the board of health first obtained in writing. The bond was given by Mr. Herrington, as provided by the ordinance, and signed by the mayor, representing the city. The ordinance grants to the person contracting the right to name the- persons who shall gather the garbage in the city, and the mayor can issue licenses only to such persons so named.
It is apparent that the ordinance of 1898 was intended to entirely change the manner of gathering the garbage in the city. Under that ordinance the mayor cannot issue a license, except upon the recommendation of the board of health. The board of health is powerless to recommend the issuing of any other license, by reason of the contract made with Herrington, granting him the exclusive right to gather garbage. The ordinance of 1871 must therefore be treated as repealed. The rule is well settled that, where there are two acts upon the same subject, effect must be given to both, if possible, but if the two are repugnant, and the later act covers the whole subject of the first, and embraces new provisions, plainly showing that it is intended as a substitute for the first, it will operate as a repeal of that act. U. S. v. Tynen, 11 Wall. 92. We think the respondent was not in error in holding that the ordinance of 1871 was repealed by the ordinance of 1898, and that no complaint can be entertained under the old ordinance.
The question of the validity of the ordinance of 1898 is not raised by counsel, and therefore not passed upon in the present case. We have dealt only with the question which the relator has seen fit to raise.
The writ must be denied.
The other Justices concurred. | [
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Hooker, J.
The plaintiff commenced an action for malicious prosecution, by capias, against Henderson, who was arrested, and gave bail to the sheriff, and, subsequently, to the action, defendants being sureties, in the sum of $500. Upon a trial, the plaintiff recovered a judgment for $250 and costs, which.were taxed at $65. The judgment was entered December 3, 1897, and costs were taxed December 8, 1897, and on the same day a fieri facias, returnable December 29, 1897, was placed in the hands of the sheriff.. On December 8, 1897, the defendants produced Henderson before a circuit court commissioner of the county, and caused Henderson to surrender himself in exoneration of his bail, and he was committed to the custody of the sheriff, who received him. On December 16, 1897, counsel for the plaintiff was served with an order to show cause why the bail should not be exonerated, and such order was made on December 20,1897. On December 30, 1897, the fieri facias was returned, and an execution against the body of the defendant, returnable January 20, 1898, was immediately issued and placed in the hands of the sheriff, who on January 21, 1898, returned it non est inventus. Thereupon this action was brought upon the bail piece. Upon the trial the foregoing facts appeared, and it was shown, further, that, after the surrender of Henderson, he remained with the sheriff until about the 20th of December; that the sheriff offered to turn him over to plaintiff’s counsel, and was told that he could not take him until after the expiration of the 20 days mentioned in the fieri facias, and that he would take him immediately upon the return of the writ unsatisfied. On December 20th the sheriff set Henderson at liberty, and he went awa3n Counsel for the plaintiff requested the court to direct a verdict for the plaintiff for $315 and interest from December 8th. This was refused, and a verdict in favor of the defendants was directed.
The surrender and exoneration of bail was made in strict conformity to the statute, which provides for the discharge of the bail upon surrender. 3 Comp. Laws 1897, §§ 10047-10049. “Bail may wholly discharge themselves of their responsibility by rendering their principal, and this may be done either before or after judgment.” Grah. Prac. 436. Again, the author says (page 436): .“Bail above may, as a matter of right, at any time pending the suit or before the return of the ca. sa. against their principal, surrender him in their discharge, and may plead this surrender in any action against them,” • — citing the case of Brownelow v. Forbes, 2 Johns. 104.
Counsel for the plaintiff assert that under the statute (3 Comp. Laws 1897, § 10305) the plaintiff was not entitled to an execution against the body until the return of the fieri facias, and that the bail had no right to demand it. Under the statute it is a matter of indifference to the bail what course the plaintiff shall pursue. The right is given to surrender the defendant to the sheriff, who is authorized to keep him until duly discharged, and when this is done, and the order exonerating bail duly made, the question of what disposition shall be made of the defendant is between the plaintiff and sheriff. If the sheriff discharges him improperly, he is liable to the plaintiff. Counsel seem to contend that they are embarrassed by having the defendant imprisoned before they are ready to take out an execution against the bodjq which they appear to concede might have been done before the return of the fi. fa. by obtaining an order of court, under section 10305; but we cannot see that the embarrassment is greater, than as though the surrender had been made before judgment. The statute, however, gives the bail the right to a discharge upon certain conditions, and, those having been performed, they need not concern themselves with the wishes or convenience of the plaintiff.
We find no error, and the judgment is affirmed.
The other Justices concurred. | [
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Montgomery, J.
The respondents were informed against under section 9167, 2 How. Stat., for willfully and maliciously injuring and destroying a stationary engine, claimed to be the personal property of Seeley McCord. The only question raised by the brief of respondents’ counsel is whether, under the evidence, the engine in question was personal or real property.
The engine in question rests on a brick foundation, is inclosed in a frame building, and could not be removed except by taking out one side of the building. There was unity of title as to the land and the engine. It has passed by deed of the land, and has been mortgaged as a part of the realty. The only testimony tending in any way to show an intention to treat the engine as personal property is the statement of the owner, as a witness, that he had in mind the removal of the engine. This does not show that he had formed the purpose to do so, much less does it show that, when the engine was annexed, he had any such purpose, or any intention of treating it as personalty. It is clear that the property described in the information was real estate. It is true the intent of the owner is often of controlling influence in determining whether a fixture is or is not a part of the real estate; but the intention must relate either to tho time of annexation or to some actual or constructive severance.
We need not discuss the question whether malicious injury to real property is punishable at common law, as the information charges malicious injury to personal property, and cannot be supported by evidence of a different offense.
The circuit judge should have directed a verdict. Judgment reversed, and respondents discharged.
The other Justices concurred. | [
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MONTGOMERY, J.
The declaration charges that the three defendants were, at the date of incurring the indebtedness which is the subject of the action, copartners in business under the name of the Consolidated Rail-Joint Company. The plaintiff is the assignee of a number of claims for labor. That the services charged for were rendered, appears not to have been disputed. The defense consisted of a denial of the alleged copartnership. The plaintiff relied chiefly on the testimony of defendant Caldwell to establish the fact of partnership. The appealing defendants denied the partnership, and gave testimony to show that the Consolidated Rail-Joint Company was a corporation organized under the laws of Illinois, with the defendant Caldwell the owner of substantially all of its stock; that, prior to any arrangement between the parties, the Consolidated Rail-Joint Company had acquired the rolling mill at Muskegon, or a right to it, and had arranged with the Muskegon Chamber of Commerce to receive a sum by way of a bonus for the operation of the mill; that he then applied to defendants Jennings and Hillis for assistance in carrying on the business. Up to this point the testimony is agreed. The case turns upon what agreement was then made. Caldwell testifies to an agreement for a joint venture, sharing profits and losses. Defendants Jennings and Hillis testify that the agreement was that Jennings should stock the mill with scrap, and that Caldwell, or the rail-joint company, should manufacture the same, and receive compensation by the ton. The two theories were submitted to the jury, who found for the plaintiff, and defendants bring error.
A large number of errors are assigned on admission of testimony. We shall refer to only such rulings as seem likely to arise on a new trial. The plaintiff was permitted to go into tho question of the organization of the Consoli dated Rail-Joint Company, and to show that the capital stock was not paid in. There was no question that such a corporation de facto existed, and it appeared that Caldwell assumed to act as its president; that he had made the contract with Mr. Hackley for the plant in the name of the corporation, signing it as president. The question is, therefore, whether the corporation contracted with Jennings to manufacture the scrap into malleable iron, or whether the three defendants undertook as copartners to conduct the business. We do not think the inquiry into the antecedents of the corporation or the names of its originators had any legitimate bearing on the question. It was not claimed that either of the defendants Jennings or Hillis was a corporator. It is urged that this testimony was admissible as tending to show the improbability of defendant Jennings contracting with a corporation so organized.. We think it had no such legitimate tendency, but introduced a collateral issue, which was calculated to prejudice the jury, particularly when it appears that the use made of this testimony was to impress upon the jury that judgment should pass against a responsible' party, rather than a corporation so organized, without much regard to the question of whether the credit was given to the corporation or defendants. Busch v. Pollock, 41 Mich. 64; Howard v. Patrick, 43 Mich. 121.
The counsel for the plaintiff used the following language in his address to the jury, which was duly excepted to:
“Frescoed wind; and still that was the kind of a concern Mr. Hillis run Jennings in; that was the kind of a concern he was trying to run Hugh Heron in. 'Now, that is the way they tried to do business over here, gentlemen, without a dollar in the world. They say that is the corporation that is responsible to these laboring men. We, we have bought our scrap, and we have got our interest on it, — the money invested; we own the scrap; we own the iron; we own the earth; we own the laboring men, because we have got all they had.
“Mr. Hoyt: An exception.
“How nice that sounds, — ‘Exception!’ He has got a perfect right to take it to every sentence. I wish he would take them twice. Gentlemen, that i$ the echo of the dollars over there. That is not the echo of the hours of weary toil performed down there upon that iron by these plaintiffs in this case, — not by Mr. Smith, but by the men who transferred their claims to him, they not being able to carry on lawsuits, perhaps; or, more than that, a multitude of suits of that kind couldn’t be maintained in court very well. That is not the voice you hear coming up from an humble cottage. That is not the voice of a mother and a babe who today throughout this city and around the country are suffering because of the cupidity of these men. It is a different voice and a different wail you would hear, it would be a different sight you would see, if you could enter some of these humble cottages, deprived of the husband’s and the father’s pay for the month of December and down to the 5th of January. I tell you if you would go down to the Eighth wai’d, and see the fathers and the mothers that labored during the month of December and the beginning of January, see the little ragged children there that are today suffering simply through the trickery and cupidity of these men, your hearts would bleed with pity. You would not let these men carry that iron back to Chicago, and escape scot-free from paying the men who made the .iron. If there are any doubts about this thing, you will solve it in their favor. * * * It is an important question. It is an important question to every laboring man throughout Western Michigan, whether a gang of Shylocks can come over from Chicago, put their money, in a small amount, into a venture, engage the services of our men here, and then, when the product has been manufactured by the stern reality of labor, if they can ship it out of Muskegon, and rob the workingmen of this place. It is important to every business man whether this class of people here can come from Chicago, or any other place, and start a business, contract debts, and then slip over the water' without paying it. That is what this suit means. It is not the suit of Mr. Caldwell against Jennings and Hillis. It is the suit of toilers against capital. It is a suit brought for the purpose of enforcing that axiom that I speak of ‘ — that the laborer is worthy of his hire.”
We do not hesitate to say that this case should be reversed because of this language, independent of the ques tion of whether this testimony was properly admitted. We have frequently attempted to point out to counsel the impropriety of appeals to the prejudice of juries, such as appears in these extracts; and whenever it is reasonably apparent that the result was probably affected by an appeal to the prejudices against race or nationality, as in the case of Gluett v. Rosenthal, 100 Mich. 193 (43 Am. St.' Rep. 446), or by studied and persistent effort to induce the jury to favor a resident as against a nonresident, we cannot permit a verdict won by such tactics to stand. We have repeatedly said that it is not the province of this court to interfere with legitimate arguments of counsel, and that in any case we may allow something for zeal. Counsél may, acting on their own judgment as to propriety and good taste, discuss the character of witnesses, the proba • bility of the truth of testimony given on the stand, and may, when there is any reasonable basis for it, characterize testimony. All these things may constitute legitimate argument. But no lawyer understands that poverty in the plaintiff’s, home (of which there is no proof) has any bearing on the question of which one of two contractors agreed to pay him for services performed, or that it is the especial duty of the jurors to stand by their neighbors in a suit against nonresidents. When the attempt is to secure a verdict by such appeals to such prejudice, ingenious attempts to veil the effort cannot avail to prevent the court from refusing the fruits of such efforts to the party whose attorney has attempted to obscure the real issue.
It was the claim of defendants that a contract to manufacture merchantable iron from scraps had been made at six dollars per ton. The plaintiff’s testimony was opposed to this. As bearing on the question of probability, plaintiff offered testimony to show that the actual cost of manufacturing was considerably more than the price stated. We think no error was committed in admitting this testimony. While it was not of great value, it had some bearing on the question. Campau v. Moran, 31 Mich. 280; Richardson v. McGoldrick, 43 Mich. 476; Misner v. Darling, 44 Mich. 438; Banghart v. Hyde, 94 Mich. 49.
It is contended by defendants’ counsel that the court erred in refusing to grant a new trial on the ground that the verdict was clearly against the weight of the evidence. As the case must be reversed on the grounds stated, and as-the testimony may differ on another trial, we find it unnecessary to consider this question.
Judgment reversed.
The other Justices concurred. | [
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Hooker, J.
The complainants foreclosed a mortgage which their testatrix received under the following circumstances :• Grace Church, in Menominee, contemplated the erection of a rectory, and had negotiations with the Church Association of Michigan in relation thereto. Both are corporations. At a meeting of the parish, the vestry submitted a report that it had arranged to purchase two lots for church and rectory; that the Church Association' had signified its willingness to advance such an amount of money, up to the amount of $3,300, as was necessary to complete the payment for the lots and erect a rectory, provided the property should be deeded to that association in trust for the parish, and that interest at 7 per cent, should be paid on the money advanced, and the principal should be paid in $100 installments. The meeting authorized the vestry to carry out the arrangement. Thereupon the deed was made by Grace Church to the Church Association, and a note was given for $900, which was paid, upon the purchase, by the Church Association, which gave its guaranty for payment of the balance of the purchase price. Subsequently the church gave the association another note for $1,300, being the balance of the loan of $3,300, which it received. This money was used in building the rectory. Some weeks after the giving of the second note, at a meeting of the vestry, a communication was read from the secretary of the Church Association, asking the vestry to sign a note for $2,200, in favor .of Helen L. Frue, to take the place of the former notes. This note was executed by the vestry, and reads as follows:
“$2,200. Detroit, Michigan, 1st January, 1889.
“For value received, we, the undersigned, vestry of Grace Church, Menominee, Michigan, promise to pay to the order of Helen L. Frue, of Detroit, Michigan, the principal sum of twenty-two hundred dollars, on or before the first day of January, eighteen hundred and ninety - four, without grace, with interest at the rate of seven per centum per annum, payable on the first day of J uly next, and semi-annually thereafter, until the whole of said principal sum is paid; both principal and interest being payable at the office of the Detroit Savings Bank, in Detroit.
‘‘ This note is secured by a certain real-estate mortgage, of even date herewith, made by the Church Association of Michigan to said Helen L. Frue, and collateral thereto, the terms and conditions of which are made a part hereto.”
It was sent to the secretary, and the Church Association thereupon executed to Helen L. Frue a mortgage for $2,200 upon the premises to secure this note. A deed was thereupon executed and delivered by the Church Association to Grace Church, and was accepted by its vestry, and it continued to occupy the premises for 10 years or more.
No opposition was made to the entry of a decree of foreclosure, but Grace Church contended that it is not liable for any deficiency. A decree for foreclosure and sale was made, but the court refused to hold Grace Church liable for a deficiency, and held that it was not so liable, and the complainants have appealed. It is contended that the parish did not authorize the giving of any note by the vestry, and that there is no evidence that it knew of the giving of the note to Helen L. Frue.
The testimony shows that Grace Church, at a parish meeting, directed its vestry to make a loan from the Church Association of $2,200, at 7 per cent., and to deed to the association, in trust, the lots which it had bought. This was done, and there is no doubt that this deed was no. more than a mortgage. Two notes were given, representing the payments made by the Church Association to the vestry. It does not appear when they were payable, and the defendant Grace Church claims that the vestry had no authority to give them, and it is also claimed that it had no authority to execute the note to Helen L. Frue, which was given to take the place of the notes first given. The effect of the resolution adopted at the meeting was to instruct the vestry to make a loan, and deed the property to the Chux’ch Association, and it was impliedly authorized to give the necessary evidence of indebtedness. The deed could not be expected to be adequate, for it would contain no covenant to repay the loan, and therefore would not support a decree for deficiency in case of foreclosure. 1 How. Stat. § 4665.
We are justified in assuming that the church expected the vestry to give some evidence of indebtedness, and it appears to have done so. Whatever we may think of the last question, the fact remains that Grace Church borrowed $2,200 of the Church Association, and gave its trust deed, i. e., mortgage, and two notes, to secure its payment. If no other writing had been made, on foreclosure of such trust deed Grace Church would be liable for the debt; and the fact that another note was after-wards substituted for them, which was unauthorized and void, as the defendant Grace Church contends, would not release the church from the duty of paying the debt, or its liability for the deficiency on foreclosure of the trust deed.
It may be said that the notes originally given were not in conformity to the resolution, which accepted a proposition to have them payable in $100 installments. This point is not made in the brief in behalf of Grace Church, and our attention is not called to any proof that they were not so made payable. The point is made that the resolution did not authorize the giving of any note; but we think otherwise, as already stated.
The Church Association had a right to assign its mort gage, and, if the note which it delivered to Helen L. Frue was void, equity will treat the transaction as an assignment of its debt and security. The defendant Grace Church itself has been willing to treat the transaction as binding upon its interest in the land, but apparently seeks to avail itself of a technical point to shift the burden of paying a deficiency upon the Church Association. It is not made clear to us that this effort to saddle a portion of its debt upon another is equitable. The bill alleges all of the facts, and contains a prayer for general relief. We think the complainants were entitled to a decree establishing the obligation of Grace Church, and the decree of the circuit court will be modified in that particular, and affirmed, with costs.
Grant, C. J., Montgomery and Moore, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
The plaintiff sued defendant to recover damages, which he placed at the sum of upwards of $800, for a breach of a contract which he claims was made between the parties. The case was tried before a jury, who rendered a verdict in favor of defendant.
The plaintiff assigns error upon the admission of testimony. It was the claim of plaintiff that, while he was supplying defendant with glass, the latter placed with him an order to supply the glass for the Home Savings Bank building for the sum of $2,000; that he accepted the order, and ordered the glass, when defendant refused to accept it. It was the claim of defendant that he arranged with plaintiff to supply him with such glass as he needed, giving him a certain discount from the list price in any event, and, if the price of glass should become lower, he was to have the benefit of the lower price; and that plaintiff was to carry his paper for an amount not exceeding $3,500; and that he furnished plaintiff with a list of glass which would be needed in the savings bank building, at plaintiff’s suggestion, so that plaintiff could place the order, as the price of glass was likely to go up. He claims he was relieved from the obligation to take the glass because in the bills rendered for the glass which was received by him plaintiff charged more than the current rates, and also neglected to renew his paper for $930 when he was requested to do so. He denied he was to'pay $2,000 for the glass which was to go in the Home Savings Bank building, but claimed it was to be furnished at current rates, which rate was to be as favorable, in any event, as a certain discount from the list price. The defendant testified in support of the claim just stated, when he was asked on cross-examination if he had ever made another such a one-sided contract. He replied he had made such a contract. On the redirect examination the paper he called a contract was introduced in evidence. This is said to be error. Plaintiff, on cross-examination, drew out the existence of this contract, bringing the case within Pierce v. Rehfuss, 35 Mich. 53. It is not necessary to discuss the other assignments of error in relation to the admission of testimony.
■ Plaintiff requested the court to charge the jury as follows:
“In determining the questions in dispute between the plaintiff and the defendant in this cause, you should take into consideration the appearance of the witnesses upon the stand, the situation of the parties, and the condition of the markets at the time it is claimed the contract was entered into, and also the condition of the markets at the time of the breach, the subsequent action of the parties, and all the written documents in the case; and you should, in determining those questions, bear in mind that written documents are more reliable than human recollections.”
The court gave this request, with the exception of the last clause, which is as follows:
“And you should, in determining those questions, bear in mind that written documents are more reliable than human recollections.”
Counsel say the part of the request stricken out by the court must be conceded to be sound law, and the jury should have been so instructed. The record does not disclose, according to any theory of the parties, that the contract between them in relation to this bill of glass rested in written documents. The several claims of the parties as to the circumstances surrounding the making of the papers which were received in evidence were presented to the jury, as well as the papers themselves. The jury were told that all the evidence received might be taken into consideration by them. We do not think the court erred in declining to say that some of this evidence was more reliable than other of the evidence. ' The charge was a very full one. The claims of the parties were in sharp conflict with each other. The charge left to the jury these diverse claims, and instructed them as to the law applicable thereto.
Judgment is affirmed.
The other Justices cóncurred. | [
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Montgomery, J.
This case presents a question which has never had the attention of this court, and one which, in some of its aspects, has not been considered by any other court of last resort, so far as we are advised. The plaintiff sues to recover damages on account of having been deprived of the right to give the remains of her deceased husband a Christian burial, and alleges that she was deprived of this right by the wrongful act of the defendant. At the common law there was said to be no property in a dead bod}’, and in one sense this may still be deemed an accurate technical statement; but it has been held in a number of well-considered American cases that the one whose duty it is to care for the body of the deceased is entitled to possession of the body as it is when death comes, and that it is an actionable wrong for another to interfere with that right by withholding the body or mutilating it in any way. Larson v. Chase, 47 Minn. 307 (28 Am. St. Rep. 370); Foley v. Phelps, (Sup.) 37 N. Y. Supp. 471; Burney v. Children’s Hospital, 169 Mass. 57 (61 Am. St. Rep. 273); 8 Am. & Eng. Enc. Law (2d Ed.), 834. This right is conceded.
Another question, not discussed in the original brief of appellant, although adverted to in its supplemental brief, may be whether, under the facts as claimed by plaintiff, the right of action exists in the widow for the destruction of fragments amputated from the body of her husband during his lifetime, when the evidence discloses the fact that such destruction occurred during the lifetime of the husband. As this question was not at all discussed in the original brief of counsel, we pass it by, and direct our attention to the points raised; and for the understanding of these points a brief statement of the facts is essential.
On the morning of June 2, 1897, Thomas A. Doxtator was working as a switchman with a gang of men in charge of John Dozeman, foreman of the West Side yards of the Chicago & West Michigan Railway Company. At about 6:30 a. m. Doxtator was run over by the cars and fatally injured. His injuries were extensive. His right leg was crushed from the ankle to the knee. The bone protruded, and the foot hung only by the muscular attachments. The left leg was crushed from the lower third up to about the middle third of the thigh, and the pelvic bones were also broken. Foreman Dozeman was the first to reach Mr. Doxtator, and he called witness Strickland to hold his head while Dozeman called the doctor and the ambulance. Dozeman called Dr. G. K. Johnson, who was at that time chief surgeon for the Chicago & West Michigan Railway Company. He also notified police headquarters to send the ambulance at once, and then notified the company’s agent at the Alien-street freight house (Mr. Hatch), who also telephoned to the doctor. Doxtator requested that he should not be taken home, as the shock would kill his wife. He requested to be taken to- a Catholic hospital. One witness testified that witness Strickland promised that he should be taken to a Catholic hospital, without naming which one. Strickland, however, testified that he did not remember whether Doxtator so requested or not. The custom of the railway company, as stated by Dr. Johnson, is to take the patient to whichever hospital he prefers. The ambulance arrived about 25 minutes after the accident had occurred. It was in charge of Patrolman John Scobey. While in the ambulance, Doxtator requested to be taken to a Catholic hospital. Patrolman Scobey thought it was nearer to Butterworth Hospital, and so took him to that place, accompanied by Switchman Strickland. Neither Doxtator nor Strickland raised any objection to his so doing.
They reached the hospital at 5 minutes to 7 in the morning. The hospital force called Dr. Lupinski, who, on the arrival of Dr. Wooster, turned the case over to the latter. Dr. Wooster had exclusive control of the case, and was working under a general employment by the Chicago & West Michigan Railway Company. With the assistance of Dr. Lupinski and of Dr. Smith, the house physician of the hospital, he amputated the legs at about 8 o’clock in the morning. From the nature of the case, the doctors knew that the wound was necessarily fatal. The left leg was taken off near the thigh; the right leg, below the knee. Neither Dr. Lupinski nor Dr. Smith was employed by the railroad company, but Dr. Lupinski assisted in the operation without any special agreement, having been called by the hospital. One Clarence L. Brainard, the orderly of the hospital, attended upon the surgeons, and testified for the plaintiff that he burned the fragments about 9 or 10 o’clock in the morning. He testified that he asked, in the presence of Dr. Lupinski and Dr. Wooster, what he should do with the fragments; that Dr. Lupinski replied, and that he had no instructions from any other physician; that, when he asked Dr. Lupinski what to do with the fragments, Dr. Lupinski inquired what was usually done with such fragments, and, being told by the orderly that they were usually burned, directed the orderly to do as he had been accustomed to do. Dr. Wooster testified that he knew nothing of the disposition of the fragments, and had nothing to do with it; that he gave no instructions whatever regarding them, and did not know of their whereabouts or disposition.
- The theory of the plaintiff is that, when the railroad company lifted Doxtator from the ground, it took upon its shoulders a duty, and that duty was to care for him while he should live, and at his death deliver his remains, and the whole of 'them, over to his wife for burial'; that the company did not do this, but, instead, negligently allowed the cremation of the dissevered limbs, and is therefore liable to the widow in damages. It becomes important, therefore, to inquire just what duty the railroad company was under, and just how far it assumed control over the injured man. This question must, in the main, be determined as one of first impression, as no case analogous has been cited, and our research has not been more successful than that of the learned counsel on either side of the case, who are to be commended for the exhaustive examination which they have given the subject. When this accident occurred, the common instincts of humanity forbade that this injured man be left to lie where he had fallen. His fellow workmen or any stranger would be impelled to minister to him, and the first impulse would be to call a surgeon and an ambulance, and see that he was taken where he could be treated. The yard foreman performed this plain duty, by notifying Dr. Johnson, the surgeon of the road, and calling the ambulance from police headquarters. By doing so, neither the foreman nor the railroad company can be said to have become bailee, or to have assumed such a control over the injured man as to preclude the relatives from assuming charge of the ministrations to him. But by Doxtator’s own request he was not taken to his home. The policeman in charge of the ambulance evidently did not look to the yard foreman or any other official for his instructions. It was at his suggestion, and without dissent from Doxtator or his fellow workman, Strickland, that he was taken to Butterworth Hospital, instead of to a Catholic hospital. On arriving at the hospital, the hospital authorities took charge of Rim and called Dr. Lupinski. Had Dr. Wooster not appeared, could it be successfully contended that those connected with the railroad company had done more than humanity required, or had rendered the company liable] for any further neglect of, or injury to, the unfortunate man ? To admit such a contention would amount to punisljing one for ministering to the comfort of a distressed fellow creature. Such cannot be held to be the obligation of -those concerned in removing this unfortunate man to an appropriate place for treatment. They did -precisely what they ought to have done, and are to be commended, rather than censured, for so doing. !
What, then, was the obligation assumed by Dr. Woostér ? He found the patient in an appropriate hospital, with another surgeon in attendance, apd, as he says, assumed charge of the case. Dr. Lupinpki continued to assist. Did Dr. Wooster, by thus assuming charge of the case, take upon himself, as the agent of jthe railroad company, the duty of seeing to it that, when death ensued, the body should be delivered to the widow, or did his duty consist merely of performing such operations as the nature of the case required, leaving it to the attendants at the hospital to make such disposition of the parts amputated as custom warranted ? We are of the opinion that the duty assumed by Dr. Wooster was the latter kind, merely, and that neither in purpose nor in fact did he assume to take charge of the dismembered parts. The assumption of the charge of the case was simply assuming charge of the operation, and the operation was performed under the conditions as Dr. Wooster found them. The patient was in a reputable hospital. Dr. Wooster had no knowledge of any direction as to the disposition of the amputated parts, and was not in fault in not assuming and guarding against an unwarranted disposition of them.
Under the testimony, the defendant was entitled to a directed verdict.
Judgment will be reversed, and a new trial ordered.
Hooker, Moore, and Long, JJ., concurred. Grant, C. J., did not sit. | [
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] |
Hooker, J.
The plaintiff’s husband is said to have met his death by reason of intoxication. The defendants are two saloon keepers and their respective bondsmen. A judgment was recovered against defendant Fisher and his bondsmen under the statute, and they have appealed. But few of the errors assigned are discussed in the brief of the appellants.
It is said that certain requests to charge, in effect stating that damages could be recovered only in case an unlawful sale was proved, were denied. The court repeatedly told the jury that the plaintiff was not entitled to a verdict unless the respective defendants, or their principals, were shown to have sold liquor to the deceased at a time when he was intoxicated. Such a sale would be unlawful, and we think the point was sufficiently covered.
It is contended that there was no basis for exemplary damages, and that it was error to permit the jury to find such. The instruction given was as follows:
“If, under the evidence and the instructions that I have given you, you find that the plaintiff is entitled to a verdict, she will be entitled to recover such damages as by the evidence it appears that she has suffered by reason of the death and loss of her husband. In estimating these damages, you should consider the loss of her means of support, her mental suffering, and the loss of her husband’s society and companionship, so far as the same may have been established by the evidence, and award .to the plaintiff such a sum as, in your sound judgment and discretion, you find will be a fair compensation for her loss and injuries.
“Something has been said, I think, upon the subject of exemplary damages. I do not think any damages should be allowed in the nature of mere punishment to the defendants. If any 'damages beyond actual damages are allowed, they should be based upon the idea of an aggravated injury to the feelings and sense of wrong to the plaintiff by reason of having sold these liquors to Mr. Lafler when he was intoxicated. No mere captious or punitory damages should be allowed, and, if any exemplary damages are allowed by you, they should be fixed and arrived, at by the exercise of a careful discretion and discrimination.”
There was testimony tending to show that liquor was sold to the deceased by the defendants while he was intoxicated, and that he soon after met his death, which, under the statute, authorizes the recover of exemplary damages, if the jury find that his death was caused by such intoxication. See Weiser v. Welch, 112 Mich. 137. We think there was evidence from which the jury might find that the liquor was sold with knowledge of the intoxicated condition of the déceased, and was therefore wanton. It is not necessary that the wrong-doer should be able to anticipate the particular injury to make him liable to damages therefor.
The plaintiff offered testimony tending to show that the husband earned about $700 a year, that he had a farm, and that he supported her well. She did not show the exact amount that he contributed, and counsel urge that there was no way for the jury to tell how much she received. We think there was sufficient to enable the jury to estimate her damages. In actions of tort for personal injury, the circumstances are shown, and the jury determine the amount of injury. We think the same rule applies here. It is, of course, necessary to show injury to her means of support, but it is not to be expected that an accurate statement of what had been furnished could be shown, and, in our opinion, the statute does not contemplate it. 3 How. Stat. § 2283e3.
The court instructed the jury in regard to what is meant by “intoxication” as follows:
“I want to say a word to you in reference to what may be deemed an ‘intoxicated person,’ within the meaning of the statute. When it is apparent that a person is under the influence of liquor, or when his manner is unusual or abnormal, and his inebriated condition is reflected in his walk or conversation, when his ordinary judgment and common sense are disturbed, or his usual will power is temporarily suspended, when these or similar symptoms result from the use of liquors, and are manifest, then, within the meaning of the statute, the person is intoxicated, and any one who makes a sale of liquor to such person violates the law of the State. It is not necessarj- that the person should be so-called ‘dead drunk,’ or hopelessly intoxicated; it is enough that his senses are obviously destroyed or distracted by the use of intoxicating liquors.”
We think that the defendants have no cause for complaint upon this subject.
We find no error, and the judgment is affirmed.
The other Justices concurred. | [
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Hooker, J.
Section 136 of the charter of Detroit, compilation of 1893, provides:
“ The said council shall have power to prohibit, prevent, and suppress the sale of every kind of unsound, nauseous, and unwholesome meat, poultry, fish, vegetables, or other articles of food and provisions, * * * and to punish all persons who shall knowingly sell the same, or offer or keep the same for sale.”
Section 19, chap. 97, tit. 9, of the city ordinances of 1895, is as follows:
“No butcher, forestalled grocer, trader, or other person shall sell, expose or offer for sale, in any public market, or at any place within the limits of the city of Detroit, any unsound, diseased, stale, rotten, fermented, nauseous, or unwholesome meat, poultry, fish,‘vegetables, fruits, or other articles of food or provisions. ”
Section 28 provides:
c ‘Any violations of the provisions of this ordinance shall be punished by a fine not to exceed three hundred dollars and costs of prosecution; and the offender, in case of any conviction, shall be sentenced to be confined in the Detroit House of Correction until the payment of the fine and costs imposed: Provided, such imprisonment shall not exceed the period of six months.”
The ordinance is said to have been passed in 1881.
The defendant was convicted upon a charge, laid under this ordinance, of selling unwholesome and unsound meat, to wit, hams. The case is brought to this court by certiorari. The important questions in the case are (1) whether the ordinance is invalid by reason of the omission of the word “knowingly,” and (2) whether the conviction can be sustained in the absence of proof of knowledge.
Counsel for the people endeavors to show that the ordinance was valid when passed, and that it was not affected by the provisions of section 136. In 1827 authority was given to the common council to make by-laws and ordinances relative to public markets within said city. Under this provision, an ordinance was passed punishing the manufacture or sale in the market of unsound or unwholesome food, and the sale of meat, etc., was prohibited, except in stalls of the public market houses rented from the corporation. There was a proviso that persons paying a license of $100 might sell meat by the carcass or quarter upon streets in the vicinity of the markets.
In 1857 (Act No. 55, Laws 1857) a new charter was enacted. This contained sections authorizing the council to erect and maintain market houses, and to provide fully for the good government and regulation thereof; also to provide for the preservation of the general health of the inhabitants of the city; to make regulations to secure the same; to prevent the introduction or spread of contagious or infectious diseases; to prevent and suppress diseases generally, and, if deemed necessary, to establish a board of health, and to prescribe and regulate its powers and duties; to prohibit, prevent, and suppress the sale of every kind of unsound, nauseous, or unwholesome meat, and to punish all persons who should knowingly sell the same, or offer or keep the same for sale. This charter also contained the provision which now constitutes section 136 of the compilation of 1893, as already stated; the same having been incorporated in the charter of 1883, as also was the provision regarding the public health, Counsel for the people says in his brief that the ordinance (section 19) under which the defendant was prosecuted is an exact reproduction of section 2 of the compilation of 1864. When it was passed does not appear, and it may have been before the word “knowingly” was incorporated in the charter provision relied on.
If, as counsel contends, the ordinance when passed was authorized by the provisions of the then existing charter, the provision mentioned is a modification of the old charter. It is now the only charter; and, if it is inconsistent with the provisions of ordinances which were passed before its enactment, such ordinances must give way. Section 136 of the charter authorizes the council to pass laws to punish those who knowingly sell unsound meat. It is an express provision upon the subject, and must be supposed to have been intended to take the place of the more general provisions of former charters. It stands as the only fundamental law of the corporation, and the ordi nances cannot go beyond its provisions in creating penal offenses. Sheldon v. Hill, 33 Mich. 171; People v. Bussell, 59 Mich. 109.
We are constrained to hold that the' ordinance became inoperative by the enactment of section 136, if it was then in force. The conviction is set aside, and the respondent is discharged.
The other Justices concurred. | [
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Grant, C. J.
(after stating the facts). The first four assignments of error relate to the admission of statements of Edward G. McBride relative to the progress of the collection, made from time to time, and the fifth relates to the admission in evidence of a statement by him that the firm had received a draft, which, on due inspection, they found did not belong to them. The ruling on the last question was not excepted to, but the court, on making an earlier ruling, stated that all testimony of the statements of Edward G. McBride was taken subject to exception. The character of the testimony admitted against the objections and exceptions noted under the first four assignments may be illustrated by a question put to Albert Lewis, and the answer. The question was:
“You may state what Ed. said to you in regard to this note and mortgage.”
The witness answered:
’ “I went there several different times * * * to see him about other matters; and incidentally he would talk about the Lyons mortgage. He said it was being foreclosed ; and one time he said a copy of the notice of foreclosure was being prepared by the printer, and would soon be through his hands, and we could have a copy of the paper. I asked him what paper it was being printed in, and he said he didn’t remember, but he would ascertain, and send us a copy. I think that was in April, 1897; can’t say definitely.”
As the evidence showed that the mortgage had been discharged and delivered up to Lyons in 1896, it is apparent that this statement, if made by respondent, would be very damaging, as it is an attempt to temporize by an untruth. The very fact that this testimony was important suggests the necessity of care in determining its admissibility. It was mere hearsay, unless it be held that it was a part of the res gestee, or that respondent’s partner was so far his agent as to bind him by an admission, or, rather, to reflect upon him an untruthful equivocation. It was clearly not a part of the res gestee.
“The declarations of third persons are not admissible in evidence as part of the res gestee, unless they in some way elucidate, or tend to give a character to, the act which they accompany, or may derive a degree of credit from the fact itself.” 1 Rosc. Cr. Ev. (8th Ed.) 41, note.
See, also, People v. Mead, 50 Mich. 228.
The case of Simpson v. Waldby, 63 Mich. 439, cited by the counsel for the people, is clearly distinguishable from this. In that case it was held that the statement of a clerk in a bank as to whether a draft had been paid was admissible. This was on the ground that the statement was made in the course of his agency, and constituted á part of the res gestee. It was a civil case, and the statement was one of fact, by one of whom the witness was, by the course of dealing, expected to inquire. This statement, under these circumstances, would bind the firm, for the reason that he spoke for the firm. So, in the case of a partnership, each partner speaks for the firm, and binds all as to its civil obligations. This is on the ground that each partner is agent for all partnership business. It is quite another question, however, whether a copartner may make an admission which will bind his copartner in a criminal proceeding; and it is still a greater stretch of the authority of an agent to say that he may, by an untruthful account of what has gone on in the business of his principal, subject that principal to punishment as for a crime. See Lambert v. People, 6 Abb. N. C. 181. Wharton states the rule as follows:
“When the relation of principal and agent in a particular transaction is established, the agent’s admissions may be imputed to. the principal, if his agency involves the making of such admissions.” Whart. Cr. Ev. § 695.
The illustrations given by the author consist of cases in which the statement of the agent was a part of the res gestee.
In 1 Rose. Cr. Ev. (8th Ed.) 85, it is said:
“An admission by an agent is never evidence in criminal, as it is sometimes in civil, cases, in the sense in which an admission by a party himself is evidence. An admission by the party himself is in all cases the best evidence which can be produced, and supersedes the necessity of all further proof; and in civil cases the rule is carried still further, for the admission o'f an agent, made in the course of his employment, and in accordance with his duty, is as binding upon the principal as an admission made by himself. But this has never been extended to criminal cases.”
We think this testimony inadmissible under either of the rules stated. The statements of Edward G. McBride were made 15 months after the commission of the alleged ■ offense. The statement is not claimed to be a matter of fact, but quite the contrary,— an untruthful account of the state of the business, from which the jury would naturally infer an attempt to cover up an offense.
It is next contended that it was error to permit the draft drawn by the Holland City Bank, payable to the order of the Puller & Puller Company, to be admitted. It is said that the draft was either the property of the Puller & Puller Company, or was a nullity; that is, it was dead paper in the hands of McBride & McBride. We think none of these objections are tenable. The testimony of the prosecution tended to show that this draft was in fact sent to McBride & McBride in payment for the Lyons mortgage, that by mistake it was made in- the name of the Fuller & Fuller Company, that it was in fact presented for payment by respondent, and that its payment to him was authorized by the drawer, and that the amount of the draft was in fact paid to him. If the jury believed this testimony, it would show, beyond cavil, that the respondent received this money as the proceeds of this collection, and was the attorney of Lewis. It was entirely competent to trace the money into respondent’s hands by the method pursued. The same considerations answer the respondent’s contention that the court should have directed an acquittal. The case was a proper one for the jury.
None of the other questions require discussion, as they are not likely to arise on a new trial.
For the errors pointed out, the conviction will be set aside, and a new trial ordered.
Montgomery, Hooker, and Long, JJ., concurred. Moore. J., did not sit | [
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] |
Hooker, J.
Alfred Johnston is moderator, Warren D. Clizbe director, and George H. Mitchell assessor, of a graded school district. The other two trustees resigned as early as January 5, 1899. Johnston and Clizbe joined in an application for a mandamus to compel Mitchell to meet with them and fill the vacancies caused by such resignations, he having refused to do so. Said application was sworn to on February 1, 1899. The circuit court granted the writ, and the case is before us on certiorari.
2 Comp. Laws 1897, § 4747, authorizes the board of trustees to fill vacancies in their number until the next annual meeting. A similar provision is found in section 4668, which provides for filling such vacancies in districts not graded. It provides that, in case of such vacancy, the two remaining officers shall immediately fill such vacancy, and, in case of two vacancies, the remaining officer shall immediately call a meeting of the district to fill the vacancies, and, in case the vacancies are not filled in one of these modes within 20 days, the board of school inspectors shall fill them. It is contended by counsel for the respondent that section 4747 contains a similar provision as to school inspectors; but we think the language of that section restricts the power of school inspectors to the election of the officers of the board. Section 4774 provides:
“All provisions of this act shall apply and be in force in every school district, township, city, and village in this State, except- such as may be inconsistent with the direct provisions of some special enactment of the legislature.”
This provision has the effect to make section 4668 applicable to graded school districts, and the provision of that section as to school inspectors would be applicable, unless it should be thought that section 4747 is inconsistent with section 4668. We do not so consider it, but, if it were, the other provisions of section 4668 are applicable, and the vacancies could have been filled by the trustees, or at a special election called by the board for the purpose. People v. Board of Education of Detroit, 18 Mich. 400; Keweenaw Ass’n v. School Dist. No. 1 of Hancock Tp., 98 Mich. 442. If it be said that the meeting could not be called, because Mitchell refused to join in a meeting for the purpose, the exigency could have been met under sections 4659, 4660, and 4661. Thus, there is full power in the district to fill such vacancies, either by a special meeting, or by action of the school inspectors, if such provision is applicable to graded districts. The record indicates that the respondent may have carried out the wishes of the district in not participating in an election to fill the vacancies. We are not advised that there would have been any difficulty in obtaining the desired written request of five legal voters of the district for a special meeting to fill these vacancies, or of any reason why the selection by the board would be preferable. It would certainly have been a more expeditious and less expensive way than to attempt to coerce a member of the board. We are of the opinion that this is not a case where there is no other remedy.
It appears to be thought that the petitioners could make the district a party to this proceeding; but the minority of the board had no such authority, and, notwithstanding the fact that they have petitioned as trustees, they have no standing here except as private litigants. It is as though any other voter of the district had instituted the proceeding, without showing that his personal rights were injured. See People v. Whipple, 41 Mich. 548.
The order of the circuit court is reversed, and the writ is denied, with costs of both courts against the relators personally. This is not a proceeding by or against the district.
The other Justices concurred. | [
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] |
Grant, J.
The issues in this case are the same as those in Lafferty v. People’s Savings Bank, 76 Mich. 35. The defendants in this case are the grantees of Martha Lafferty, the complainant in that suit, and are therefore her privies. After that case was decided, the plaintiff brought this action of ejectment against the defendants, who were in possession. In the present case each relies upon the same conveyances, the same proceedings, and the same facts as were those in the former suit. The issues and facts will be found fully stated in that opinion, and it is unnecessary to restate them now. That suit was planted upon the theory that Martha Lafferty had a good and valid title to the land in controversy, and that the title claimed by the People’s Savings Bank, obtained under a sale authorized by the probate court, was void, and created a cloud upon her title. The title of the bank was there held valid, and Martha Lafferty’s alleged title was held to constitute a cloud upon the title of the bank. The question is therefore res judicata. It is the well-settled rule that courts will not review former decisions made by the same court in the same cause, and on the same • facts. Hickox v. Railway Co., 94 Mich. 237, and authorities there cited.
Judgment affirmed.
The other Justices concurred. | [
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] |
McGrath, J.
Plaintiff sues in behalf of himself and some 40 others to recover for labor performed in mining at the Shafer iron mine in June, July, and August, 1891, and for certain board furnished the men, as hereinafter explained.
Defendant began operating the mine in 1889, and continued the mining operations until January 1, 1891, when it let the contract to take out the ore to one Jennings, who had up to that time been its superintendent, and from that time forward Jennings carried on the business of get ■ting out the ore in his own behalf, and paid the menfor the months of January to April, both inclusive. For the month of May defendant paid the men on Jenning’s ■account. Prior to January, 1891, a time slip or check was given to each employé on or about the 1st of each month. These slips were made out on printed blanks having the following caption:
“ MONTHLY PAY-ROLL ACCOUNT.
Sharer Mine.
“In account with Shafer Iron Go.
“ For the month of_, 189 .”
Each slip was filled out with the number of days worked, the per diem, and the aggregate earnings, from which was deducted the amount for rent, board, doctor, etc., and the balance due the employé was brought down. These checks were given to the men, who kept them until payday, which was about the 20th of the month. They were paid, sometimes by Chicago checks, signed by the Shafer Iron Company, at other times by local checks, signed by Jennings, and at other times in currency. No notice was given by the company to the men of any change. Defendant’s general manager, one Himrod, and its agent, one Biggers, remained at the mine, and occupied the company’s offices. There was in fact no change made in the manner •of conducting the business, except that the men were after-wards paid in checks signed by Jennings, or in currency. There was no visible change about the mine, except that at one of the skips a red cardboard, 12 by 20 inches in size, upon which was printed in large black letters the following: “Employés are positively forbidden to ride in the skip. Use ladders. Shafer Iron Co.,” — had been tacked ;up, and some time after January 1, 1891, several lead-pen- 6il lines had been drawn across the words “Shafer Iron Co.,” and the words “E. P. Jennings, Contractor,” had been written in pencil underneath. Jennings testified that, after January 1, 1891, he had carried on the business of mining the ore in his own name; had opened an account-with a bank, and with one or two material-men, in his own name; that he had never pretended from that time forth to do business for the Shafer Iron Company; never made a contract, or tried to make a contract, in the name of the Shafer Iron Company; and that whatever he did he did in his own name. The plaintiff and his assignors had all worked for the company up to January 1, 1891, and most-of them continually, until some time in August. A few had not been employed continuously after January 1. Time-checks were issued to the men as before, upon the same liantes, and it was upon these checks that defendant, in June, paid the men for May. Jennings was the only witness called for plaintiff.
The court instructed the jlrry as follows:
“ I think the rule of law is, gentlemen, that a person employed by an authorized agent, and set to work, as it. is conceded these men were by the undisputed evidence in this case, had a right to suppose that the same condition of things continued to exist after the employment as existed at the time of the employment, unless they had notice to-the contrary, or unless there was something in the circumstances surrounding the matter that was equivalent to them of notice. In other words, it seems to the court that the defendant corporation here owed these, men who were in its employ at the time it made this contract with Mr. Jennings, — which we will term the change in the way of doing business there, — that at that time the defendant-owed its employés there in the mine a duty; that it was-the duty of the defendant to have carried particular notice to them; to have brought notice home to them of this-change. In other words, the rule, as I understand it, is this (and it is said to be in the books a familiar principle of law): That when one has constituted and accredited another as his agent to carry on business, the authority of' the agent to bind his principal continues even after actual revocation of such authority, until notice of the revocation is given, and, as to persons who have been accustomed to deal with such an agent, until notice of the revocation is brought home to them. And it is said that the case of such an agency is analogous to that of partnership, and the notice of revocation of the agency is governed by the same rules as notice of dissolution of partnership; that is, as to persons who have been previously in the habit of dealing with the firm, it is requisite that actual notice should be brought home to the creditors, or at least that the credit should have been given under circumstances from Avhich notice can be inferred. When notice is sought to be inferred as a fact from circumstances, it becomes a question for the ¡jury.
“ The court here thinks this is a question of fact, and submits it to you, and the question is submitted to you as a matter of fact, whether this labor for which this suit is brought Avas done and performed under such circumstances as Avould operate as notice, or under such circumstances that it can be said that notice can be inferred on the part of these claimants of this change. If these parties had 2iotice of this change, they cannot recover here, for it is undisputed that a change took place; that the-authority of Jennings was revoked, and he entered into an independent contract; and the question here is, did these claimants have notice, or, under the circumstances surrounding them, can you infer from this evidence legitimately that they received notice? So, I say the question is submitted to you as a matter of fact, whether the defendant gave such notice as a prudent man should have given.
“ Something has been said here, and evidence has been given, Avith reference to some board bills. It is claimed on the part of the claimants here- that it had been a custom or universal practice .at that mine, and it is claimed that there is some evidence to support it, that certain boarding-house keepers had been in the habit of boarding the men, and that at the end of the month the amounts due to the boarding-house keeper from the several men he had boarded Avere reported to the superintendent or officers-of the mine, and that these amounts Avere deducted from the amounts due the men, and Avere by the mine paid over to the boarding-house keeper. It is claimed that-such was the practice; that it Avas generally acquiesced in by the men. It is claimed that this continued, after this- change, to be done in the same way it was done before. The court submits that matter to you.' Was there a custom or general, universal practice as to the boarding of the men by which the boarding-house keeper had received from the defendant the board of the men, — that is, during the time that this defendant was operating the mine, — • and was such course acquiesced in by the defendant and the miners, the men who owed for the board? And it is submitted to you whether the boarding-house keeper, this having been the practice, — had the boarding-house keeper, or any persons whose claims are represented in this suit, received any notice of the change in this business, such as would have led a prudent man to have acted differently? If there had been such custom or universal practice, and no notice had come to the knowledge of the boarding-house keepers, then I think they should recover for the boarding-house claims in this case; but if there had been such a universal practice, or if you shall find that there had been such practice, but that they had received notice of the change, or under the circumstances had notice of the change, then you should not allow these claims.”
It was claimed that four men (named) had not worked at the mine during January, February, March, or April, 1891, and one (named) had not worked in January, 1891.
“ As I understand it, there is uncontradicted evidence in the case that they were old employés under the prior management, had ceased to work for two or three months there during the time I have mentioned, or three or four months, as the case may be, and came back and resumed work at the mine under Mr. Jennings. Now, should the defendant in this case pay for these men’s labor? Counsel for defendant insists that they should not, because they had broken their relations, — they had gone away, — and claims that they came back like new men. I have deemed it my duty, gentlemen, to submit that question to you as to these men, and ask you, as matter of fact, whether, under all the circumstances of the case, these men, having worked there before, having entered the employment again, whether, considering the lapse of time between the prior labor and entering into the work again, considering the time between which the former labor ceased and the change took place between Jennings and the defendant corporation, — I leave it to you to determine whether the prior dealing between tbe parties, under the circumstances, were such as to warrant the laborers in believing in the continued existence of the authority of the agent or the superintendent to hire them; as to whether that authority was existing there at the time, — whether the same authority was existing as at the time of the former hiring. If you shall say that they were warranted, under all the circumstances surrounding the case, the lapse of time being taken into consideration, and everything there that the evidence shows that they saw and did there, — that they were warranted in supposing that Jennings continued with the same authority there as agent of the defendant, — then I think you should allow these claims; otherwise, not; they should be rejected.”
As to the parties who had been employed by the company, and therefore continued at work at the mine wi®iout cessation, the learned judge was undoubtedly correct. These men had been employed by defendant for an indefinite time. No new or other contract of employment was shown to have been made with them. The question was not as to whether Jennings had apparent authority to employ them. As to them, a prima facie case was made when they showed an employment by defendant at a given rate; that they continued at work in the same employment; that they had been paid in part, and that a balance was yet unpaid. The burden was then upon defendant to show that it had been in some way released and discharged. The case does not differ from any other case of an executory contract not terminated at the time of the revocation of the agency.
The case is different respecting the operatives who did not continue under the same engagement. The general rule undoubtedly is, as stated by the trial judge, that a former general agent, within the scope of his original authority, notwithstanding its revocation, continues to bind the former principal as to those parties who have been, and are still, dealing with him in good faith, in reliance upon his former authority, until they haVe notice of its revocation. Mechem, Ag. § 224. The case is said to be analogous to that of the dissolution of a partnership, and is governed by the same rules. To all persons who have had actual dealings with the agent, actual notice must be given, or such notice of the fact must be brought home to them as would be sufficient to put an ordinarily prudent man upon inquiry. Id. § 228; The reason for the rule in the case of a partnership is well stated by Butler, J., in Lyon v. Johnson, 28 Conn. 1, 4: A partnership “once existing, and publicly known to exist, the continuance of the connection will be presumed by the public till the contrary appears.”
It is contended by plaintiff that the burden of proof is upon the partner seeking to escape liability to show knowledge or notice. But this rule does not relieve plaintiff of the necessity of any showing, on the part of the parties who were re-employed, as to the circumstances of their re-employment, the character of the new contract, and their good faith. The language of the books is: Persons “dealing in good faith;” “relying upon the agent's former authority;” “ supposing that they were employed by defendant;” “ who gave the credit to the agent for defendant;” “ who believed that such agency continued;” “ dealing with one partner in ignorance of the dissolution;” “supposing them still to be in partnership;” “giving credit to the partnership.” As Lord Kenyon, in one of the cases, observes:
“It would be the hardest measure imaginable upon the creditor were the law otherwise, — if, while he supposed he was giving credit to a man having sufficient to satisfy the whole of his demands, he might be trusting a beggar.”
Did these parties deal in good faith? Did they rely, assume, suppose, believe? To whom did they in fact extend credit? With whom did they contract? These are pertinent inquiries. Plaintiff must recover, if at all, upon the theory that the employment was in fact continuous, or, if there was in fact a re-employment, that these parties were ■employed in the name of the defendant, or under such circumstances, and in such a manner, as to justify the assumption that they were employed for defendant, and that they in fact did so suppose, and extended the credit to the defendant. There must -be sufficient evidence to bring these parties within one of these propositions. Until they are so brought there is nothing to start with; nothing to cast any burden upon the defendant. Defendant is not liable upon all contracts made by Jennings, but only upon such as have been made in reliance upon his apparent authority to act for it. It cannot be assumed or presumed that any new contracts were made in its name, or for it, •or that credit was extended to it.
In the partnership cases the contracts were entered into ■on the faith of the partnership with one of the partners, in the name, and ostensibly for the benefit, of the partnership.
In Hall v. Heck, 92 Mich. 458, the notes were executed in the firm name.
In Uhl v. Harvey, 78 Ind. 26, the evidence tended to ■show that plaintiff acted upon the belief that defendant was still a member of the firm.
In Uhl v. Bingaman, Id. 305, 309, the court say:
“ There can be no doubt that the general burden of the issue was, as the court instructed, on the plaintiff; but, in order to show his right of recovery against the appellant, it was only necessary to show that the appellant had been a member of the firm; that, knowing the appellant's connection, he had dealt with the bank; that the business had been carried on without change in the name of the firm, and was being so conducted at the time he made the deposit which the action was brought to recover. He was hot bound to offer evidence of the negative fact that he had not received notice of the appellant's withdrawal.”
In Ketcham v. Clark, 6 Johns. 144, the draft was-accepted by oner-inbaber of the firm in the firm name.
In the leading case of Claflin v. Lenheim, 66 N. Y. 301, defendant had been carrying on business in two different cities, and plaintiffs had been furnishing goods in. both. Defendant's brother, as agent, managed the business in one of the places, and ordered the goods in the-name of defendant, as he had been doing, and the credit was given to defendant.
In Ulrich v. McCormick, 66 Ind. 243, money had been, paid - upon the note to a former agent of the payee. Held that, if the payor paid the note in question to the agent in good faith, without notice of the revocation of his agency, the payment was a satisfaction of the note. But the court say: “ The question still remains, was the payment bona fide?”
In Newcomet v. Brotzman, 69 Penn. St. 185, defendant had turned his business over to his son, who had formerly assisted in the management. Plaintiff testified that he had been misled; that he had supposed that he was dealing with the father.
In Rolling-Mill Co. v. Hyland, 94 Ind. 449, the court say:
"It is admitted by the appellant that. $60.25 of the-recovery was correct. But it is insisted that for the residue, being for work done after April 1, 1882, the appellant was not liable. The work prior to that time, about which there is no dispute, was performed by the appelleefor the appellant, at its coke works. The works were-operated by the appellant's agent, John J. Enders, who,, as such agent, employed and paid the workmen, the appellee among the others. Enders, having leased the works of the appellant, operated them upon his own responsibility, but in the appellant’s name, Avithout its consent, during the period for which the appellant disclaims liability to the appellee. The evidence tends to sIioav that up td May 16, 1882, the time to Avhich the finding Avas in appel lee’s favor, lie had no notice of the change in the management of the coke works, but supposed that he was working for the appellant under the employment of Enders as its agent. We cannot say that the facts and circumstances did not justify this impression, and, this being the case, we are of the opinion that the appellant was liable.”
In the present case there was testimony tending to show a re-employment of these men, but there was absolutely no testimony respecting the nature of that re-employment, except that of Jennings, who said that after January 1, 1891, he made no contract in the name of the company. In view of this testimony there should have been some evidence to repel tlie natural inference that Jennings made-the new contract in his own name, and to show that these parties supposed, at least, that they were dealing with the defendant, or that they relied upon the apparent authority of Jennings, and gave credit to defendant. If the language of the employment did not suggest the person employing, then it should appear that these parties supposed, at least, that they were being employed for the defendant.
Respecting the claims for board, the men to whom these amounts were payable were operatives in the mine. Irrespective of any custom or arrangement, these men, as assignees, would have the same right of recovery as their assignors. But the arrangement was that the amounts of these bills' should be furnished by the keepers, and, in the time-slips that were given, these amounts were charged up against the operative, and credited to the keeper, who relied upon this method, rather than upon the individual responsibility of the boarders. • The keepers were dealers with the defendant company, and are within the rule. No-notice appears to have been given to them, and there was no error in the court’s instruction to the jury.
It was competent to show the method of paying the men prior to January 1, 1891, as well as that followed after that date.
The November and December, 1S90, pay-rolls were competent for the purpose of showing that the operatives were in the defendant’s employ during those months.
Judgment is therefore reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
McGrath, J.
Plaintiff commenced proceedings under
Act No. 229, Laws of 1887, known as the “Log Lien Law," and on June 17, 1889, recovered judgment against the principal defendant for $325 and costs, and was given a lien on the products. The judgment entry is entitled “Cornelius Ready v. James Healy, Defendant, and Archibald P. Newton, Special Defendant," and recites that, the default of the principal defendant in said cause “ having been duly entered, and the same having become absolute, and Archibald P. Newton having claimed to be the owner and interested in the products seized, * * * and having filed his application in said cause, and served the .same upon the plaintiff's attorney, * * * and said plaintiff and Archibald P. Newton being in court, by their respective attorneys, ready for trial without a jury, and the court having heard the proofs and allegations of the parties," etc. On the rendition of the judgment the owner of the logs obtained an order extending the time for the preparation and presentation for settlement of a bill of exceptions for the period of 60 days, and staying all proceedings except the taxation of costs, upon condition that said owner file a bond within 20 days, pursuant to the provisions of the statute in such case made and provided. On June 26 said owner filed a bond in the sum of $650, which was approved by the clerk, containing the following recitation and condition:
“ Whereas, judgment has been rendered in the circuit court for the county of Mackinac in favor of said Oorne lius Healy and against said Archibald P. Newton for the sum of $325 damages and the costs of suit, in which judgment and proceeding the said Archibald P. Newton complains that there is error in substance, and to be relieved therefrom has obtained a stay of proceedings in said court to settle a, bill of exceptions and remove the same to the Supreme Court by writ of error, to the end that the error made therein may be corrected:
“Now, therefore, the condition of this obligation is such that, if said Archibald P. Newton shall prosecute his said writ of error to effect, and shall pay and satisfy such judgment as shall be rendered against him upon said writ of error in said Supreme Court, then this obligation to be void; otherwise to remain in full force and virtue."
Afterwards the attorney for plaintiff applied to the clerk for an execution, but the clerk refused to issue the same, giving as a reason' that a bond had been filed and a stay of proceedings had been entered. The time for preparing a bill of exceptions was extended from time to time until December 16, 1889, when the same was duly settled. The principal in said bond “took no further proceedings to take said cause to the Supreme Court on writ of error than the settlement of said bill of exceptions, and never sued out a writ of error in said cause, and did not prosecute said writ of error to effect.” Plaintiff sues upon the bond, and the court finds the facts, and as a conclusion of law “that the plaintiff has not made out such a case as entitles him to judgment,” and rendered judgment for defendants. No other reasons are assigned, except as they may be inferred from the motion for judgment made by counsel for defendants, who asked the court to find as a matter of law that the bond declared upon, being a bond given in a legal proceeding, and not by the acquiescence of the plaintiff in the case, is void, and not binding on the defendants, for the reason that it is not authorized by any law of this State; that it does not comply with the statute in reference to bonds given upon a stay of proceedings ordered by the circuit court; that it is void as a bond for a stay of proceedings upon a writ of error; that no writ of error was ever issued in this case; that the bond is without consideration; and that, no damages growing out of the breach alleged having been set forth in the declaration, and no proof, the plaintiff is entitled to nominal damages only.
The bond is in the form prescribed by How. Stat. § 8679. An order staying proceedings for 60 days had been entered at the instance of the principal obligor, conditioned upon the execution within 20 days of a bond. The bond was. filed and acquiesced in by plaintiff, who relied upon NewtoAs expressed intention to take out a writ of error. For six months thereafter Newton pursued a course indicating an intention to take the case to this. Court. In Howard v. Hess, 63 Mich. 725, there was no finding that the bond was ever delivered by defendants to the clerk, or meant to operate as a stay of proceedings, and it did not become effective by operation of the statute. Here the bond was. delivered and filed, evidently in pursuance of the order-staying proceedings, and was acquiesced in as such. The-bond must be held valid as a common-law bond, independent of the statute. Hester v. Keith, 1 Ala. 316; Lane v. Kasey, 1 Metc. (Ky.), 410; State v. Thompson, 49 Mo. 188; Williams v. Shelly, 2 Or. 144; Burroughs v. Lowder, 8 Mass. 373; Winthrop v. Dockendorff, 3 Greenl. 156; Kimm v. Steketee, 44 Mich. 527. In Hester v. Keith it was held that, though the condition of a bond for the prosecution of a supersedeas does not conform to the statute, yet, as the bond was effectual to delay the collection of the execution, upon discharging the supersedeas it. becomes absolute, and may be prosecuted as an obligation at common law. A bond for monejq to be void upon the doing of a certain thing, is held to be, in legal effect, a contract to do that thing. Waynick v. Richmond, 11 Kan. 488. A bond under seal imports a consideration.' Page v. Trufant, 2 Mass. 159; Harrell v. Watson, 63 N. C. 454; Harris v. Harris, 23 Grat. 737; Collins v. Blantern, 1 Smith, Lead. Cas. 636.
It is urged that there was no judgment in fact against the principal obligor in the bond. The judgment was á lien upon his property. It is a sufficient answer, however, that the bond recited a judgment against him. A recital in a bond concludes the parties as an admission of the facts recited. 2 Amer. & Eng. Enc. Law, 464. The declaration properly follows the bond.
Plaintiff, after the execution and delivery of the bond, bad one of two courses open to him, to wit, move to have the order staying the proceedings set aside, or acquiesce and rely upon the bond. Under the facts found in the present case, he will be presumed to have elected to take the latter course. The breach complained of is the failure to take out and prosecute the writ to effect. The court has found such breach, and the measure of plaintiff’s damages is the amount of the judgment recited in the bond, with costs and interest.
Pending the consideration of the case by the court below, the principal obligor died, and an order was entered reviving the case as to decedent in the name of the administrator. The statute (How. Stat. § 7401) provides that upon the death of one of several defendants the action shall proceed against the survivors. No objection seems to have been made to this order by counsel for either defendant, and it affirmatively appears by the judgment -entry that the “ attorney for the administrator of the •estate,” etc., joined in the motion for judgment.
The writ of error will be dismissed as to said adminis trator, and the judgment below reversed, and judgment entered here for plaintiff and against the surviving defendants for $449.98, with costs of both courts to plaintiff.
Hooker, C. J., Long and Montgomery, JJ,, concurred. Grant, J., did not sit.
The case was tried June 28, 1892. Archibald P. Newton died ■in August of that year, and his death was suggested, and the ■order of revivor entered, October 25, 1892, on which day judgment was rendered in favor of the administrator and the surviving ■defendants, who were the sureties in the bond. | [
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] |
Long, 'J.
On August 4, 1890, tbe defendant company entered into a contract with Wilson & Moore by which they were to erect for defendant an opera-house building for tbe sum of -$45,000, to be completed by July 1, 1891. The contract provided that should tbe contractors at any time refuse- or neglect to supply sufficient material of the proper quality, of fail in any respect to prosecute their work with promptness and diligence, or fail in the performance of any of the agreements on their part, such failure being certified by the architect, the owners should be .at liberty to supply the material, etc., and deduct the cost of the same from any moneys due or to become due to the contractors. The contract also contained the following provision:
“ Before each payment, if required, the contractors shall give the architect good and sufficient evidence that the premises are free from all liens and claims chargeable to the said contractors; and, further, if at any time there shall be any lien or claim for which, if established, the owners or the said premises might be made liable, and which would be chargeable to the said contractors, the •owners shall have the right to retain, out of any payment then due or thereafter to become due, an amount sufficient to completely indemnify them against such lien or claim, until the same shall be effectually satisfied, discharged, or canceled.”
Bice, Pendill & Co. were merchants doing business at Marquette, and the plaintiffs in this suit are the successorg to that firm, and have succeeded to all their rights by assignment. On August 28, 1890, and after the contract above specified had been made between defendant and Wilson & Moore, that firm submitted to Wilson & Moore a proposition, to furnish certain materials for the building for the' sum of $3,456.45. Their proposition was accepted, and the firm of Bice; Pendill & Co. furnished materials up to March 1, 1891, when they refused to furnish any more material upon the credit of Wilson & Moore unless the estimates for the material should be made directly to them, and the defendant should pay them directly therefor. Mr. Pendill called uq>on the architect, Mr. Charlton, and stated to him that they declined to furnish more materials unless they could see their way to get their pay. Mr. Charlton, who audited all the bills, advised Pendill that if he would get an order from Wilson & Moore he would have the estimates made directly to the “firm of Bice, Pendill & Co. The order was given by Wilson & Moore upon the defendant. This order became lost, and was not produced upon the trial; but Mr. Pendill testified that it was an order for the architect to make the monthly estimates for materials furnished by Bice, Pendill & Co. directly to them each month, and to pay to them directly upon such estimates; that he gave this order to Mr. Charlton, the architect, who agreed to make the payments directly to Bice, Pendill & Co. The whole of the materials were thereafter furnished, and son August 1, 1891, the following certificate given:
“Marquette, Mich., Aug. 1, 1891.
“Bice, Pendill & Co.,
“In account with Wilson & Moore, Contractors and Builders:
“ Due Bice, Pendill & Co. for material furnished for opera house...................-........- $3,595 51
April 1. Less estimate.......................... 933 00
Balance....................................- $2,602 51
“The above bill is correct.
“Wilson & Moore.
“I certify that the above material has been delivered, and has been built in the Marquette Opera-House Block, and is satisfactory.
“ D. Fred Charlton,. Architect.” .
Mr. Charlton testified that he did not remember distinctly about the order, but had a faint recollection that he saw it, or ivas told the amount. He admits, however, that he certified the- bill above set out.
This action is brought against the defendant company for the amount of the claim of Bice, Pendill & Co. for such materials. On the trial before a jury the plaintiffs had verdict and judgment for the amount of the claim. The court directed the jury that it was not claimed on the part of the plaintiffs that the defendant company purchased the materials from them, or Bice, Pendill & Co., as the plaintiffs'’ firm, was then known, “but that fact might not be controlling in this case. Did the defendant make the agreement that is claimed by the plaintiffs in their declaration? That is, did the defendant agree to pay direct to Bice, Pendill & Co.? * * * If you find that such agreement was made,- the court advises you that it was not within the statute of frauds.”
Substantially, the court advised the jury that if such an arrangement was made with the architect as plaintiffs claimed, and the architect had authority to buy materials, and pay for materials furnished by plaintiffs to Wilson & Moore, the plaintiffs might recover.
It is first contended by counsel for defendant that there is no proof to sustain the declaration. The declaration contains the common counts and a special count. The special count alleges, substantially, that Bice, Pendill & Co. refused to supply materials to Wilson & Moore unless the defendant would' promise and agree to pay directly to Bice, Pendill & Co. the entire amount which might accrue and be owing for such materials as the said Bice, Pendill & .Co. should thereafter furnish for the construction of said building, and to be paid to said Bice, Pendill & Co., according to estimates of the architect thereafter from time to time given; and that thereupon, at the request of said Wilson & Moore, and in consideration of the premises aforesaid, and that the construction of said building might not be delayed, the said defendant agreed with the said Bice, Pendill & Co. to pay to said Bice, Pendill & Co. directly all such sums of money as might be owing them for materials thereafter furnished by said Bice, Pendill & Co. in the aforesaid Marquette Opera-House building, from time to time, according to estimates made as aforesaid. The count then sets out the furnishing of the materials according to such agreement, and that such materials were used in the construction of the building.
The court stated the plaintiffs3 claim to the jury substantially as the claim is laid in the declaration, and directed them that the question in the case was whether the defendant made the agreement claimed in the declaration, and, if such agreement was made, plaintiffs could recover. The plaintiffs3 proofs, we think, tended to sustain this theory of the case. It is shown that the architect promised plaintiffs to make the estimates directly to them thereafter, provided they obtained an order from Wilson & Moore. Some dispute arises over this order, but the proofs tend to show that the architect was satisfied with the arrangement, and did make the estimates as agreed, and paid the April estimate of $933, and certified to the delivery of the balance of the material used in the building, furnished by the plaintiffs. The plaintiffs3 proofs tended to sustain' the theory of the declaration, and the court was not in error in stating that the case was not within the statute of frauds. The defendant company had a right, under its contract with Wilson & Moore, at any time when the contractors failed to prosecute the work with diligence, to provide materials themselves, and deduct the cost from the moneys due on the contract. Before it -made any payments on estimates to the contractors the defendant company had also the right to know of any liens or incumbrances which might be put upon the property, for which the company would be liable, and, if any such claims existed, to retain sufficient moneys out of any payment to meet such claims. Under these circumstances, when the defendant company found that plaintiffs would furnish no more material to Wilson & Moore, or upon their credit, it agreed to make the payments for such material directly to plaintiffs. The case, in principle, falls within the rule laid down in Calkins v. Chandler, 36 Mich. 320, 324; Bates v. Johnrowe, 57 Id. 521. It was not a promise to pay the debt of Wilson & Moore, but a promise to pay, for the materia^ put into the building, directly to Bice, Pendill & Co., and which Wilson & Moore agreed it might do. As was said by Chief Justice Shaw in Nelson v. Boynton, 3 Metc. 396, 402:
“ The rule to be derived from the decisions seems to be this: That cases are not considered as coming within the statute when the party promising has for his object a benefit which he did not before enjoy, accruing immediately to himself; but where the object of the promise is to obtain the release of a person or property of the debtor, or other forbearance or benefit to him, it is within the statute.”
The object to be accomplished by the defendant company was the immediate acquisition of those materials to put into the building. The purpose was not to benefit Wilson & Moore, or to obtain any forbearance for them, but to benefit the defendant company.
Some other reasons are argued and urged in this Court why the judgment should not stand. It is contended that the court was in error in leaving to the jury the question whether Charlton, the architect, had authority to' make the agreement relied upon. We think the evidence justified the charge and the verdict.
It was shown on the trial that the plaintiffs, before the trial of the present case, had commenced suit against Wilson & Moore, in which they had judgment, and garnished a third party, for the price of these materials, and had also, in another proceeding, sought to obtain a lien upon the opera-house building; and it is claimed that such proceedings conclusively negative the claim now made. The fact that the plaintiffs still made a claim against Wilson & Moore could not affect their rights in the present proceeding. It is not claimed that Wilson & Moore were released from their indebtedness, and a judgment against them would not bar the plaintiffs’ claim against the opera-house company, unless there was a satisfaction of the judgment. It was not the theory of the plaintiffs that the defendant purchased the material of them, but that the defendant agreed to pay to them directly for the material, 'if the plaintiffs would furnish it on the contract with Wilson & Moore; and under the rule in Calkins v. Chandler, supra, it would not matter whether Wilson & Moore remained liable or not.
We need not discuss the other errors assigned. We have examined them, and they are overruled.
The judgment must be affirmed, with costs.
Hooker, C. J., McGrath and Montgomery, JJ., concurred. Grant, J., did not sit. | [
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Hooker, O. J.
The respondent was convicted of the crime of rape. The alleged victim, Lizzie Schroder, together with one Minnie Ebans, attended a dance together, where they met the respondent and one Lemuel Allen, who is impleaded with him. The theory of the prosecution is that the young men induced these girls to permit them to take them to the girls’ homes in a buggy, but that, instead of doing so, they went in another direction. The Ebans girl jumped out of the buggy, and escaped, but the Schroder girl was forcibly taken to a secluded place,- and subjected to sexual intercourse by both of the young men, under threats of personal violence. The defense assert that the intercourse was voluntary.
Hpon the trial, Minnie Ebans was sworn as a witness for the people. She testified that she got out of the buggy, and went to a house, and that the last she knew of Lizzie she was “hollering” for help when she (Minnie) was getting out of the buggy. “ Q. by Prosecuting Attorney. That was after you got out of the buggy? A. Yes, sir. (Objected to by Mr. Lockwood as irrelevant and immaterial).” The court committed no error in overruling this objection. The fact was a part of the res gestee. The same may be said of the testimony in answer to the question, “Which way did the buggy go after you left?” This witness testified that she saw no .more of the boys or the buggy that evening, but that when she reached home Lizzie was at the witness’ house. She was asked where she went before going home, and she stated that she was at police headquarters for about half an hour. She was asked nothing about what she did there, nor did she attempt to state. We see no error in permitting this testimony. The conduct of both girls immediately after the transaction might reasonably be the subject of scrutiny.
The respondent was subsequently, confined in the jail, where the girls were taken by the sheriff, to whom Lizzie had stated that Flynn did not have intercourse with her. A conversation occurred there between the sheriff and the girls in the presence of Flynn. At this time Flynn stated to the sheriff that he had intercourse with the Schroder girl. The sheriff, who had been told by her that Flynn had not had intercourse with her, turned to her, and asked her if it was true, and she said it was. The sheriff then said, “Why didn't you tell me this yesterday?'' to which she responded that she was ashamed to confess it to him. The sheriff then asked her if she consented, and she said she did, whereupon he replied, “ Well, then you were perfectly willing that Mr. Flynn should have intercourse with you?'' She said, “No, I wasn't.” The Ebans girl then said, “Lizzie don't understand what you mean by consent.” This last remark was objected to and stricken out. The sheriff then explained to her that if she consented she -would be as guilty as Mr. Flynn, so far as the act was concerned, and then she said she did not consent; that she was not willing; it was against her will that they had intercourse with her. “Q. Did she say anything on that occasion, Mr. Dix, about the reason she permitted it?” Under objection the witness stated: “ She then showed me the marks on her neck, where Mr. Allen had choked her, and thrown her down. She said she was afraid to refuse Mr. Flynn, for fear, she would receive the same treatment, as he had threatened her previous to this. Flynn made no further remarks on it.” Similar testimony was given by the Ebans girl. This testimony was objected to, for the reason that it was hearsay, and immaterial, and that the admission of Flynn that he had intercourse with the Schroder girl was not voluntary. The sheriff stated that the statement was voluntary, and there is nothing to show that it was not. Flynn did not testify about the interview. It was therefore for the jury to say whether1 his statement was voluntary. It had no special significance, for Flynn admitted the intercourse upon the stand. The-statements of Lizzie in the presence of Flynn were admissible, in connection with Flynn’s failure to deny them. She stated the fact of the intercourse, which he had already admitted. She gave as a reason that she feared him because of his threats, which he did not deny. This failure to deny the charge of threats was a matter for the jury-
The court committed no error in permitting the witness-. Lizzie Schroder to testify, against the objection that she had disobeyed the order of the court. The record shows that she did not disobey the order. The remarks of the prosecutor to the court in opposition to the objection did not prejudice the respondent, for there is nothing upon which to base the presumption that the witness had been doing anything improper while in company with the other-witnesses.
The witness Lizzie Schroder was asked, “ Whether" you-believed that they intended to kill you.” And again, “Will you state whether or not it [the intercourse] caused you pain?” And again, “I will ask you whether or not, prior to this occurrence, you had experienced what is known as cmonthly periods.’” And again, “State why you did not struggle against Mr. Flynn.” It is plain that all of' these questions were admissible. The one in relation to menstruation was in connection with her statement that she found blood upon her garments after the act.
This covers the objections to the rulings .of the court upon the introduction of evidence.
Some questions are raised upon the charge. The court instructed the jury, in substance, that, if Flynn aided and assisted Allen to commit rape upon this girl, he was guilty of the offense. That is undoubtedly the law.
The court gave the eighth request to charge offered by the prosecution, as follows:
“I further instruct you, gentlemen, as requested in the people's eighth request as modified: The jury are instructed that it was not necessary for the complaining witness to tell her mother at once of the alleged rape upon her; and if the jury believe from the. evidence that the defendant is guilty of the crime charged in the information, and that she by reason of the threats made to her by her ravishers and the treatment that she had received was induced thereby to refrain from informing her mother of what had taken place, then the complaining witness would be excused from not communicating the knowledge of the injury to others.
“That is true, gentlemen. At the same time it is true that you may take into account, in'determining the truth of Lizzie Schroder's story, the circumstance whether she did or did not make complaint of it afterwards, and how recently. You may take that into account in connection with all of the facts and circumstances of the case. If you find that she did not complain of it because nothing of the kind happened, why, then, of course you would so consider it. If you find that she made no complaint because of the feelings of terror and mortification induced by what had happened to her, then, of course, she would be excused for not making the complaint."
Also the tenth, as follows:
“ If the jury find from all the evidence in the case that the respondent, Flynn, was acting in concert with his co-defendant, Allen, and that while they were so acting in «concert and together either or both of them, by the use ■of threats and other conduct calculated to intimidate the complaining witness, and that such threats and other conduct resulted in placing complaining witness in fear of great bodily harm, and that by reason thereof the respondent had sexual intercourse with said complaining witness, the jury find that she did not resist by reason of the threats and other conduct referred to, and the fears engendered thereby, but that said intercourse was against her will, — against the will of the said complaining witness,— then you should convict the respondent.
“Before proceeding to instruct you further, gentlemen, on my own motion, I will give you certain instructions which have been verbally requested by counsel for the respondent to give you.”
The jury were also instructed as follows, viz.:
“ I am also requested by counsel to instruct you that, to constitute the crime of rape, force must be used to overcome resistance of the woman to the sexual act; and that where no force is used the crime is not rape, even though the intercourse is against the will of the woman with whom the intercourse is had. I so instruct you in connection with what has already been said to you upon that subject. * * * To authorize a conviction for rape the jury must believe that the offense was accomplished by force, and against the will of the woman; and that there was the utmost reluctance and resistance on her part, or that her will was so overcome by fear that she did not dare to resist. And in this case, if the jury find that sexual connection was had with the witness Lizzie Schroder, and that said Lizzie Schroder was unwilling to submit to such intercourse, but finally consented or yielded through mere weakness of will, without any threats being made, or without fear of consequences if she resisted, then the offense would not be rape. But if the jury find that sexual intercourse was had with said Lizzie Schroder, and that she did not willingly submit to such intercourse, but submitted because of threats made against her if she did not yield to such intercourse, and through fear and apprehension of dangerous consequences or great bodily harm, and that her mind was so overpowered by fear that she did not dare to resist, then the offense would, be rape, although she may have made little or no physical resistance to such connection.”
“I am also requested by counsel for respondent to instruct you that, if you find that the act of intercourse by consent could have produced the injury, then it does not follow that the act of intercourse was by force because of the injury. That would be true, gentlemen, — that, if the injury would have resulted from consent, then it would not follow that force was used because of the injury. You may, however, take in consideration the injury as one fact or circumstance tending to aid you in determining whether the intercourse was forcible or by consent.”
“ But if -you do not find the respondent's statement with reference to the intercourse to be true, you should then examine, consider, and determine whether such intercourse was by Lizzie Schroder’s consent, or whether it was accomplished by so working upon her fears that she did not dare to resist; and, if the latter, what part or share the respondent had or took in the transaction. If, as you have already been told, she did not resist because she did not want to resist, and was not then under the influence of any fear of the consequences if she did resist, then the offense charged was not committed, and you should acquit the respondent. But if, on the contrary, you find that Allen and respondent, acting in concert, took the girl Lizzie Schroder by force to the place where the intercourse took place, and there, by means of threats of great bodily harm, so overcame her will that she did not dare to resist for fear of the consequences if she resisted, and then and there had carnal intercourse with her, while she was under the influence of such fear, and that the respondent as well as Allen took part in every step and stage of the transaction, then the respondent should be convicted.
“It is claimed by the people, and admitted by. the respondent, that both Flynn and Allen had intercourse with Lizzie Schroder on the occasion referred to in the information and in the testimony in the case. As you have already been instructed, if a rape was committed by Allen, as charged in the information, and the respondent knowingly and purposely assisted Allen in the commission of such rape, then the respondent as well as Allen would be guilty of the offense, without regard to the fact of the defendant having intercourse with her. If, however, you should find that Allen did not commit a rape on the witness Lizzie Schroder, then the defendant should not be convicted. Or, if you find that Allen did commit a rape on the witness Lizzie Schroder, but that respondent took no part in such offense in any way, either by making threats or assisting Allen in forcibly taking the girl to the place where the rape was committed, with the intent that she should be forcibly ravished, or in any other of the ways mentioned in these instructions, then the respondent should be acquitted. But if you find that the respondent as well as Allen made threats against the girl Lizzie Schroder, and that on such threats she was so put in fear of great bodily harm that she did not dare to make resistance to either Allen or the respondent for fear of the consequences if she resisted, and that while she was under the influence of such fear of great bodily harm the respondent had intercourse with her, then the respondent should be convicted.
“ In determining what was the character of the intercourse which is alleged to have taken place between Allen and Lizzie Schroder and between respondent and Lizzie Schroder, and whether such intercourse amounted to rape or not, and in deciding what share respondent took in the affair, you should, of course, take into account all of the evidence in the case, and consider the testimony of each witness as to any fact in the light of all the surrounding circumstances, and in the light of all the other evidence in the case, giving to each piece of testimony just such weight as you think it is entitled to, and then respond to the convictions which the evidence in the case taken as a whole makes on your minds.”
Several exceptions were taken to the foregoing quotations from the charge, but, taken together, these instructions state the law applicable to the case correctly.
Exception was also taken to the explanation of a “ reasonable doubt.” The language used was substantially the same as that approved in the case of People v. Finley, 38 Mich. 482.
We find no error in the record, and the judgment must therefore be affirmed.
The other Justices concurred. | [
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Hooker, C. J.
Ryan Bros., of Detroit, dealers in knit goods, were succeeded by the Peninsular Knitting Works, of which John T. Ryan was vice-president, which, becoming-involved, on April 1, 1891, gave a mortgage upon its stock and property to one Balch to secure two notes, of $30,-101.03 and $15,000, respectively. On April 9 proceedings were begun in chancery to foreclose this mortgage, and defendant was appointed receiver, and ultimately sold the property mortgaged, by order of court.
The plaintiff is a dealer in yarn at Chicago, and had an arrangement with Ryan Bros, to send them yarn subject to their approval, to be returned if they did not subsequently agree upon a price. Plaintiff, being ignorant of the change in the firm of Ryan Bros., sent them a bundle of yarn under the arrangement. It was received by the Peninsular Knitting Works about a week before the foreclosure proceedings were begun, and was set aside by Ryan as plaintiff’s property. It was subsequently sold with the other property by the receiver, and the plaintiff brings trover against him.
Defendant’s counsel contend that his receivership protects him from an action, without leave of court first obtained; but this appears to be in conflict with the case of Gutsch v. McIlhargey, 69 Mich. 377, where.it was held that an officer of court obtains no immunity from liability for a tort by reason of his office.
It is also claimed that the jury should have been instructed that if the receiver sold in ignorance of plaintiff’s-ownership, and turned over the money as directed by the court, before notice, he was not liable. The court did instruct the jury that if Ryan did not notify, or attempt to notify, defendant of plaintiff’s ownership, a verdict should be rendered for the defendant. Under the proofs, this must have been understood by the jury as a direction that defendant could not be found guilty of the conversion if he acted in the belief that the yarn belonged to the Knitting Works, and was covered by the mortgage; and this was quite as favorable an instruction as the defendant, was entitled to. We understand it to be the settled law that when one, by a trespass, takes the property of another, and sells it, he is liable for the conversion, and that no demand is necessary, and the question of good or bad faith is not necessarily involved. This doctrine is applied daily in cases against sheriffs and constables, where property is unlawfully seized and sold upon execution. The defendant wrongfully took property of the plaintiff, and sold it. It is not a defense to say, ,CI supposed I had authority to do so.” He should have seen to it that he sold no property except that mortgaged. Gibbons v. Farwell, 63 Mich. 344; Pingree v. Railroad Co., 66 Id. 148; Allen v. Kinyon, 41 Id. 281; Scudder v. Ander son, 54 Id. 122; Hake v. Buell, 50 Id. 89; Daggett v. Davis, 58 Id. 35.
We find no error in the record, and tbe judgment will be affirmed.
McGrath, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
Defendant Martin L. Foster was the owner of the land in controyersy. At the date of his purchase it was subject to a mortgage of $600, dated October 15, 1881. Foster and his wife, who was the daughter of defendant Porter, executed to Mrs. Porter a mortgage for $1,419, October 6, 1883. September 12, 1884, they executed a third mortgage, for the sum of $700, to one Huff.- October 11, 1886, the Huff mortgage was discharged. On the same day another mortgage was executed by Foster and his wife to one Knowles, for $761.25. The consideration for this mortgage was the payment of the Huff mortgage, and a small amount which Foster owed Knowles. This mortgage, while dated and acknowledged October 9, was not, in fact, executed until the 11th. On October 11, Foster and his wife executed a warranty deed to Mrs. Porter, the expressed consideration in which was $3,000. It was made subject to the mortgage for $600, and also to the Knowles^ mortgage, and contained the statement that the grantee, Mrs. Porter, assumed and agreed to pay these mortgages. This deed and the Knowles mortgage were both recorded October 11, the former at 2:45 p. m., and the latter at 2:35 p. M.
A short time previous to the execution of this deed, Poster applied to Mrs. Porter for a further loan of money, which she refused. This request by Poster was for $42, with which to pay interest'on the first mortgage. Mrs. Porter testified that she then proposed to him that she would buy the first mortgage if he would give her a deed of the land, and that she would enter into a contract' with him, giving him the privilege of selling the farm, and making all he could over and above her claim. Foster, on the contrary, testified that her proposition was to pay the mortgages if he would deed to her, and give him the privilege of selling, and of making all he could over and above the mortgages. Foster finally accepted the proposition, and promised to make out the deed, and Mrs. Porter let him have the $42. Two days afterwards he wrote to Mrs. Porter that he had paid the $42 on the mortgage, and would make out the deed the next day. The deed was executed, and left by Foster with the register of deeds for record. Foster testified that he directed the register of deeds to send the deed by mail to Mrs. Porter. This, evidently, was not done, and when, some months afterwards, Mrs. Porter’s husband went to the register of deeds, with Foster, to see about the matter, Foster produced the deed from his pocket, and handed it to Mr. Porter. Until this time, neither Mrs. Porter nor her husband had any knowledge of the contents of the deed, and all they knew about it was what Foster had told them. Mr. Porter was present at the conversation between his wife and Foster in regard to the deed. On receiving the deed from Foster, he immediately read it, and returned it to him, stating that it was not such a deed as was agreed upon. He reported the fact to his wife, who thereupon repudiated the deed, and commenced a foreclosure of her mortgage by advertisement. The land was sold, bid in by Mrs. Porter, and a sheriffs deed executed to her. Mr. Porter, at the request of his wife, purchased the first mortgage. Mrs. Porter testified that she knew nothing about the Huff mortgage. Foster did not inform her that he intended to execute a new mortgage to Knowles, and make the deed subject to that. Foster remained in possession of the farm. Mrs. Porter’s mortgage was not discharged, nor was it or the note surrendered or canceled.
Complainant purchased the Knowles mortgage in reliance upon the record, and in the belief that Mrs. Porter’s mortgage was merged in the deed to her. Upon learning of the foreclosure proceedings, he filed the bill in this cause to set aside the sheriffs deed to defendant Porter, and to foreclose his mortgage. The court below entered a decree dismissing the bill.
1. The court below found that the deed from Foster to Mrs. Porter was fraudulent and void. The testimony was taken in open court, where the circuit judge had the opportunity to see the witnesses. It is conflicting, but we think that the conclusion of the learned circuit judge is fully justified by the evidence. It follows, therefore, that Mrs. Porter was justified, as against Foster, in repudiating the deed, and in foreclosing her mortgage. There can be no merger where the transaction is tainted with fraud on the part of the mortgagor and grantor,. and where the mortgagee and grantee has acted in good faith. Ann Arbor Savings Bank v. Webb, 56 Mich. 383.
It is the well-established rule, in determining the question of merger, that the intent is the controlling consideration. If it be for the interest of him in whom the estates are united to keep the mortgage alive, the law will not imply an intent to merge. 4 Kent, Comm. 103; 15 Amer. & Eng. Enc. Law, 324-327; Stantons v. Thompson, 49 N. H. 272; Campbell v. Carter, 14 Ill. 286; Ann Arbor Savings Bank v. Webb, supra. Where mortgaged premises were conveyed by a mortgagor to a mortgagee in satisfaction of the mortgage, and for the purpose of avoiding the expense of a foreclosure, and the notes and mortgage were surrendered, the conveyance was held not to operate a merger, where there was an intervening mortgage, of which the grantee was ignorant. Brooks v. Rice, 56 Cal. 428. See, also, Fuller v. Lamar, 53 Iowa, 477 (5 N. W. Rep. 606); Richardson v. Hockenhull, 85 Ill. 124.
In the well-considered case of Stantons v. Thompson, supra, after citing and commenting upon the authorities, the court say:
“We think it may be deduced from the authorities quoted that, when the estates of the mortgagee and mortgagor are united in the former, he has, in equity, an election to keep the mortgage title on foot, and that wherever it is for his interest, by reason of some intervening title or other cause, that the mortgage should be upheld as a source of title, it will not, at law, be regarded as merged.”
It was well said in Ann Arbor Savings Bank v. Webb, supra:
“Eew persons, unlearned in the law, are'acquainted with the doctrine or effect of merger.”
In the present case there was no change of possession of the mortgaged premises, no actual delivery of the deed, no knowledge of the intervening mortgage, no surrender of the mortgage or note, and there was a prompt repudiation of the fraudulent deed. Under these facts, it cannot be held that a merger was intended.
Campbell v. Garter, 14 Ill. 286, relied upon by complainant’s counsel, does not support his contention. In that case the mortgagee had recovered judgment on both the notes and mortgage, and was endeavoring to enforce satisfaction. The mortgage was not signed by the wife. The mortgagor proposed ' an absolute conveyance, with covenants of warranty and the release of dower, in satisfaction and discharge of the debt. The proposition was accepted, the deed executed, the judgment satisfied, and the mortgage discharged, and all evidence of indebtedness was canceled. The court held that there was no doubt as to the real intention of the mortgagee. The distinction between that case and the present one is apparent.
2. The logical result of this rule is that purchasers, intervening mortgagees, and their assignees are not justified in relying upon the record of the deed in the office of the register of deeds as showing merger, because this question of fact cannot be determined from the record of the deed alone. 1 Jones, Mortg. §§ 474, 872, and authorities there cited. The rule is founded in good sense. When mortgages are paid, it is common to discharge them of record. Had the mortgage in question been discharged of record, there would be much force in the contention that complainant had a right to rely upon the record, and that Mrs. Porter would thereby be estopped to deny the merger. But the mortgage was not discharged, and this was sufficient to put the complainant upon inquiry. Aiken v. Railway Co., 37 Wis. 469.
3. It is contended that the foreclosure sale is void because—
1. The notice of foreclosure sale included more than was due at the date of the notice.
2. The execution of the sheriff’s deed was not properly acknowledged.
The notice of sale was dated October 8, and included a sum which became due -on the 9th. The notice was not published until the 18th, and the publication was continued for the proper time thereafter. The statute requires that the notice shall state the amount claimed to be due thereon at the date of the notice. How. Stat. § 8500. It is not necessary that the notice be dated, in which case the time of the first publication will be taken as the date. 2 Jones, Mortg. § 1854; Reading v. Waterman, 46 Mich. 107, Ill. But there is no evidence that the defendant Porter acted in bad faith in including the sum of $300 more than was actually due at the date of the notice, nor that any one was misled thereby. It is said in Jones on Mortgages (vol. 2, § 1855):
“ The fact that the notice states a larger sum to be due than is actually due does not affect the validity of the •sale, if no actual injury or fraudulent purpose is shown.-’-’
This rule is sustained by the following authorities: Hamilton v. Lubukee, 51 Ill. 415; Klock v. Cronkhite, 1 Hill, 107; White v. McClellan, 62 Md. 347; Ramsey v. Merriam, 6 Minn. 168.
The deed was executed- by the under-sheriff, and the acknowledgment was taken by one Myron G. Wood, a notary public. Mr. Wood was at that time sheriff of the county. The statute provides that such sale shall be made by the person appointed for that purpose in' the mortgage, or by the sheriff, under-sheriff, or deputy-sheriff of the ■county, and the deed executed by the officer or person making the sale. How. Stat. §§ 8501, 8505. Mr. Wood, in taking the acknowledgment, did not act as sheriff, but as a notary public. We think the acknowledgment valid.
Decree affirmed, with costs.
Hooker, O. J., McGrath and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
This suit was instituted by Martha Ross. Upon her death the plaintiff, her executor, was duly admitted to prosecute the suit.
The declaration alleges that her claim for damages was presented to the common council for audit and allowance, and was rejected. Upon the trial this claim made by Mrs. Ross to the common council was introduced in evidence by the plaintiff. It stated that “she has decided to limit her claim to the sum of $2,000 on the basis of a prompt adjustment, but* without prejudice to her rights in the event of a suit.” During the trial, negotiations were entered upon for a settlement, and the trial was postponed, for that purpose. The negotiations, however, failed.
Counsel for the defendant, in his argument to the jury, said that they should not allow larger damages than she herself demanded. Counsel for the plaintiff, in his closing argument, said: “Why, gentlemen of the^jury, the city counselor himself has recommended to the council that a larger sum than this -be paid.” This statement was objected and excepted to, and the circuit judge made no comment to the jury upon it. There was no evidence in the case upon which to base such a statement, and it could hardly fail to prejudice the jury.
For this error the case must be reversed, and a new trial ordered.
The other Justices concurred. | [
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Montgomery, J.
The question of most importance involved in this case is that of the contributory negligence of the driver' of plaintiff’s vehicle when they approached the crossing where the accident occurred. The scene of the accident is indicated by the diagram appended to the opinion of Mr. Justice Grant. The highway and the railroad do not meet at right angles, so that in traveling from the east towards the railway track the view would not be directly in the face of an approaching train. The night when the injury occurred was very dark. The evidence shows that when approaching the crossing the horses were on a walk. No stop was made for the purpose of listening, but the driver and those in the vehicle testified that they looked for an approaching train, but saw none, and that they listened and did not hear any signal. The engine was running backward, and the testimony is conflicting as to whether there was any light at the rear end of the cab. The question presented is whether it was the duty of the driver, under the circumstances, to bring his team to a stop in order to listen for an approaching train.
Our decisions have settled the law as follows:
First. A railroad track is, in and of itself, a warning of danger, calling upon one about to cross to use his senses, and to look and disten for approaching trains. Lake Shore & M. S. R. R. Co. v. Miller, 25 Mich. 274,
Second. It is not incumbent in all cases for the driver to stop his team, if. the track is clear, and he can safely rely on his sense of sight. Guggenheim v. Railway Co., 66 Mich. 158; Thomas v. Railway Co., 86 Id. 504; Richmond v. Railway Co., 87 Id. 380.
Third. As to whether, in a particular case, the driver is justified in relying upon his sense of sight alone, must, we take it, depend upon the circumstances of the case presented.
No ease precisely analogous to the one under consideration has heen decided by this Court. In Mynning v. Railroad Co., 64 Mich. 93, it appeared that on a dark and stormy night the deceased was killed while crossing the track, under circumstances which showed conclusively the negligence of the railroad company; that he was acquainted with the railroad crossing at the street in question; that he walked at a rapid pace towards and upon the railroad track, without checking his speed, or stopping or looking or listening, or taking any precaution whatever, to ascertain whether a train was about to pass; that others who were about to cross, whose opportunities for observation were no better than those of deceased, saw and heard the train. Mr. Justice Ciiahpijn, in rendering the opinion of the Court, said:
“ Ordinary care would have required him to at least look up and down the track before crossing; and, if the night was so dark as to make it difficult to distinguish a train approaching, then ordinary care would have called upon him to resort to his sense of hearing, and to pause, if need be, and listen, before entering upon the place of danger."
In Brady v. Railroad Co., 81 Mich. 616, it appeared that the driver of the vehicle was familiar with the crossing; that the railroad track, for some distance before crossing the highway, runs through an orchard; that the trees coming near the surface of the ground, together with other trees and bushes there, partly obscured the view of persons going southward of any train going to the southeast. The track crosses the highway obliquely. The highway extends from north to south, and the track runs in a north-westerly and south-easterly direction. It appeared that the plaintiff, sitting on the hounds of his wagon between the two hind wheels, drove upon the track without stopping, although he testified that he looked in both directions. The Court held as matter of law that he was guilty of contributory negligence. In the opinion Mr. Justice Long states:
“The circumstances stated by the plaintiff himself show conclusively that he was not using ordinary care in approaching the crossing. Here was a crossing so much obstructed ■ by intervening objects that, according to his testimony, he could not see a train coming- from that direction — riding, as he was, upon the hounds of his wagon — until he was within 20 or 25 feet of the crossing, and then only a little distance up the track, — some few rods. He was riding with his back turned in the direction from which the train was approaching, and he knew that it was about time for its approach; and yet he drove along and upon the track without stopping; and even when his horse halted on reaching the track he urged her forward with the lines. * * * It was shown further that there was a mill near the crossing, which was in operation, and creating some noise and confusion. Others standing near there saw. the train approaching, and had heard the sounding of the whistle at the crossing above. Some of them attempted to call the attention of the plaintiff to the train's approach, but were unable to do so, as he appeared to take no note of what was passing. As the facts are presented by this record, it was the duty of the plaintiff to have stopped his team, and to have taken some precaution to ascertain if the train was approaching, which he knew was about due.''
And further, it was said:
“A greater duty was imposed upon the plaintiff in.the present case by the fact that he knew the crossing to be a dangerous one. He knew its condition, and that he would be unable to see the train until arriving .at the crossing. He had no right to close his ears, and drive along without stopping, when he must have known that the noise of his wagon and of the mill would shut off the sound from the approaching train.''
In the present case there was no obstruction other than the darkness, which, of course, would not have prevented the plaintiff and her companions from seeing a headlight. The sense of sight was therefore as safe a guide as in the daytime, unless it be held that travelers are guilty of contributory negligence as matter of law in not anticipating that trains will be run in the open country without headlights. We think the law ought not to be so. It is most unusual and. extraordinary for this to occur. And we think it should be at least a question for the jury as to whether a traveler is in fault in failing to anticipate and guard against such an unusual thing as the running of a train without a headlight. The case might be different in a yard where switching is done, and where cars are switched in the nighttime without the use of a headlight, as was the fact in the Mynning case.
Exception is taken to the language of the court in that portion of the charge where it is said:
“ The blowing of the whistle and the ringing of the bell a mile away from a crossing would, of course, give no warning to people about to cross a railroad track.”
The court added this :
“The object of it is to warn people who cross the railway track that a train is approaching, so that the warning should be given within such a reasonable distance as would fairly notify people who are about to cross the track of the approach of a train.”
We think there was no error in this part of the charge, when read in connection with the whole charge, and when it is considered in the light of the request of defendant’s counsel which had been given by the court immediately preceding, as follows:
“ The law requires of a railroad company that it cause the whistle to be blown not less than 40 rods from the crossing. It is not required to be blown within 40 rods of the crossing, nor within any other distance except a reasonable distance.”
The court added to this :
<fThe law does not require ‘the whistle to be blown within the 40 rods, nor does it specify the exact distance at which the whistle shall be blown and the train hands begin ringing the bell. That distance, however, should be a reasonable one. It must be more than 40 rods, but it would have to be a reasonable distance.”
It must be remembered that preceding this charge the court had already directed the jury that, if the whistle was sounded at St. John's crossing, and the plaintiff and her party could have heard it by remaining quiet and listening, and they were at such a point that it was their duty to remain quiet and listen at the time, they would be guilty of contributory negligence if they did not hear it. It is evident from this that the court was calling the attention of the jury merely to what would be a reasonable distance under the statute which requires the whistle to be sounded. We see no error in that part of the charge. • ,
Counsel for defendant requested the court to charge as follows:
ifIt does not appear from the testimony of the plaintiff herself that she looked and listened for a coming train when the vehicle in which she was riding was approaching the track; and, as she was more familiar with the locality than her driver, and as she has the burden of proving her personal freedom from contributory ’negligence, and as she was bound herself to look and listen for a coming train, she has not shown her personal freedom from contributory negligence, and she cannot recover in this action.”
The plaintiff was called as a witness, and testified that she could remember nothing except going to Hartford and .starting homeward. She was injured in her back, and her limbs paralyzed, so that she was unable to walk, and a .■great share of the time since the injury she had been ■entirely helpless. The last recollection, she testifies, she .has was the party leaving Hartford going towards home, and that it was a dark night. The witnesses called in her behalf/ who were her companions in the buggy in which •she was riding, however, testified that before they reached the crossing, and at some point which is not very definitely fixed, the plaintiff did look, and was apparently listening to see if she conld hear the approach of a train. We think there was some evidence from these witnesses proper to he submitted to the jury upon the question of her due care in approaching the crossing, and that the jury, under the general charge of the court, were fully and fairly instructed upon this branch of the case, and the rights of the defendant fully guarded.
Counsel for the defendant requested the court to submit the following special questions of fact to be found by the jury:
1. Did the train in question make a rumbling noise as it passed over the bridges before reaching the place of the accident?
2. If the driver, Cavanaugh, had been listening for the coming train as he drove towards the track, could he have heard the train in question as it crossed the bridges?
3. Was there any noise which prevented plaintiff and her party from hearing the approaching train when they were within 100 feet from the track?
4. Was the whistle blown at all after leaving Hartford, and before the place of the accident?
The court submitted the first three questions. To the fii-jt the jury answered, “Yes;” and to the second and third answered, “No.” The fourth question the court refused to submit to the jury, but directed them to answer “Yes,” which they did. It is contended upon the part of defendant that the direction of the court to answer “ Yes ” was prejudicial to the rights of the defendant, for the reason that it had a right to know whether the jury were finding the facts in accordance with the evidence, or whether the jury entirely overlooked and ignored the evidence upon a given point when it was all one way; and whether the jury were applying the law as given by the court to the facts as they found them.
The court was not in error in directing the answer to-this question, for, as was well said by the court in directing the answer, “the testimony was all one way.” It was shown by witnesses both for plaintiff and defendant, and not - disputed, that the whistle was blown after the train left Hartford and before it reached the crossing, and there-was no testimony tending in any degree to contradict this. Whether it was blown soon after the train left Hartford, at St. John’s crossing, or at some other point on the road, is in dispute; but the question was not directed as to the point where it was blown, but whether it was blown at all after the train left the village. These special questions to the jury are intended for the purpose of a finding upon some particular question of fact in dispute on the trial. Fowler v. Hoffman, 31 Mich. 215; Pigott v. Engle, 60 Id. 221. There could have been but one answer to the question, and that was the affirmative one, which the court properly directed.
Defendant further requested the court to charge as follows:
“It appears by the testimony on the part of the plaintiff that at the time of the accident the plaintiff was engaged in an unlawful occupation, in that she was driving from a railroad station on Sunday, for pleasure, and not in any work of charity or necessity, and for this reason the defendant is not liable to the plaintiff for injuries resulting from the negligence of its employés.”
This question was not presented by the oral argument, but we pass upon it because it is insisted upon in the brief of counsel. How. Stat. § 2015, provides:
“No person shall keep open his'shop, warehouse, or workhouse, or shall do any manner of labor, business, or work, or be present at any dancing, or at any public diversion, show, or entertainment, or take part in any sport, game, or play, on the first day of the week. The foregoing provisions shall not apply to works of necessity and charity, nor to the making of mutual promises of marriage, nor the solemnization of marriages. And every, person so offending shall be punished by fine not exceeding ten dollars for each offense."
It cannot be said that under the testimony in this case the plaintiff was engaged in any unlawful enterprise, even within the terms of this statute, in riding from the railway station to her home in a peaceable and quiet manner on a Sabbath evening. If she had been engaged in an unlawful enterprise within the meaning of the statute, she would be subject to the penalty fixed by the statute. In nearly all the states it has been held under quite similar statutes that a party traveling upon the highway upon a Sabbath, either from necessity or for pleasure or business, who is injured by a collision with a railway train at a crossing, is not barred from recovery against the railroad company for its negligence from the fact that the injury occurred on Sunday. Knowlton v. Railway Co., 59 Wis. 278 (18 N. W. Rep. 17); Jacobus v. Railway Co., 20 Minn. 130; Railway Co. v. Frawley, 110 Ind. 18 (9 N. E. Rep. 594); Smith v. Railroad Co., 46 N. J. Law, 7; Carroll v. Railroad Co., 58 N. Y. 126. It was held in Sharp v. Township of Evergreen, 67 Mich. 443, that—
“A person has the right to travel on a public highway on Sunday for any lawful purpose, and the township charged with the duty of keeping such highway in repair is liable for injuries received under such circumstances, the same as if received on a week-day."
The request was properly refused.
Judgment is affirmed, with costs.
McGrath, J., concurred with Montgomery, J. | [
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] |
Grant, J.
The declaration in this case was defective, in that it did not set forth the estate which the plaintiffs claimed. Iiow. Stat. § 7797. No demurrer was interposed, but the defendant pleaded the general issue, with notice of the statute of limitations, and a claim fox improvements. Hpon the trial, plaintiffs asked leave to amend their declaration, setting forth the estate claimed. The court refused to permit the amendment. Thereupon, plaintiffs asked leave to submit to a nonsuit, which was also denied, and the court directed a verdict for the defendant.
The plaintiffs claimed title under an execution sale. The judgment was rendered April 2, 1878, and execution issued and levy made on the same day. On March 29, 1888, the land was advertised for sale, was sold May 1C, 1888, and deed executed August 28, 1889.
The court erred in not permitting the plaintiffs to amend their declaration, and also, after refusing the amendment, in not permitting them to submit to a nonsuit.
The question raised upon the statute of limitations is not without difficulty. In this State a judgment creates no lien upon the property of the judgment debtor. No lien is created until the levy lias been made, and notice thereof filed in the office of the register of deeds. Until 1S89 no limitation was placed upon the existence of the lien by execution levy. A statute was then passed, enacting that all levies theretofore made should cease to be a lien at the expiration of five years from the time the act became a law, and that all levies thereafter made should become and be void after the expiration of five years from the making thereof. 3 How. Stat. § 6173®.
Actions upon judgments must be brought within 10 years after the entry of the judgment. How. Stat. § 8736. In the present case, proceedings for sale were commenced before the right to bring suit upon the judgment had expired by limitation, but the sale took place after it had expired. Executions cannot be issued, and levies made, after the right of action is barred. Jerome v. Williams, 13 Mich. 526; Parsons v. Circuit Judge, 37 Id. 287. The manifest reason on which these decisions are based is that when the judgment is dead no action can be taken to revive it. But they do not hold. that during the life of the judgment any action authorized by law may not be taken to enforce it, although the sale cannot take place till after the right of action upon the judgment is gone. They therefore throw no light upon the present controversy. A lien upon real estate by virtue of a levy under execution is not lost by delay in proceeding to sale, where no fraudulent purpose is shown on the part of the execution creditor. Ward v. Bank, 16, Mich. 332. It follows that the lien remains in .force until the statute of limitations has barred any right to proceed to foreclose it. The record of the levy is notice to every one of its existence, and is equivalent to actual possession of personal property taken under execution. Publication of the notice of sale before the right of action is barred is an open assertion of the non-payment of the judgment. The debtor is presumed to know that the lien is being enforced. If the judgment has been paid, or if he has lost any right by the failure to proceed earlier to a sale, for which the judgment creditor is responsible, the courts are open to him to restrain the sale. We think that, when any proceedings authorized by law to enforce the lien are instituted before the right of action upon the judgment is barred, they are valid, and the sale in pursuance thereof legal. Plaintiffs’ deed, therefore, was not void because the sale took place more than 10 years after the rendition of the judgment.
Judgment reversed, and new trial ordered, with costs, and leave to plaintiffs to amend their declaration.
The other Justices concurred.
See Snyder v. Hitchcock, 9f Mich. 313, holding that an action of assumpsit may be so brought. | [
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] |
Grant, J.
Defendant Finn was collector of taxes for -the Fourth, ward of the city of Port Huron. By virtue of his tax warrant he levied upon certain persona] prop■erty as belonging to one Lewis Potts, to satisfy a personal tax assessed against him. Plaintiff, claiming to own the property, brought this action of replevin to recover it. As evidence of title he introduced a bill of sale from Potts to him.
The court instructed the jury as follows:
“ It is the claim of plaintiff that at the time when the property .was taken he was the owner of it; that he had a bill of sale of the same from Lewis Potts, who had been previously the owner of most of the property; and that by virtue of that he was entitled to possession. The defendants, on the other hand, claim that at the time of the •commencement of this srrit the property in question was •owned by Lewis Potts, and in his possession, and not the property of plaintiff, or in the possession of plaintiff. It appears that, at the time the' property was taken by Mr. Finn and the other defendants, it was here, In the city of Port Huron, situate in a barn; and it is the claim of plaintiff that at that time it was in his possession; that he had it in his possession, and under his bill of sale. The defendants claim that as a matter •of fact it was not in his possession, but was at the time the property of Mr. Potts, and was in the possession of Mr. Potts; that the plaintiff was Mr. Potts5 hired man, and was taking charge of the horse, as usual, as he had before he claims to have bought it, and as usual for a man in his situation to be taking care of it. Now, in regard to the question of fact, as to the ownership and actual possession, and right of possession, of this property, it is for you to determine, from all the facts and circumstances of the case. The claim of defendants, yon will understand, is that the transaction between Potts .and Gray was simply a pretense; that it was a bill pretending sale, for the purpose of having it said that the property belonged to Mr. Gray, in order that Mr. Potts might avoid the payment of his taxes. On the contrary, Mr. Gray claims it was an actual transfer to him, in good faith. Now, as to whether it was a mere pretense is a matter for yon to.determine from all the facts and circumstances in the case. You should consider all the testimony that has been given in view of the transaction, in the light of the circumstances, and satisfy yourself, as ordinary, unbiased men, what the-truth is in that regard; and if the property is not the property of Mr. Gray, and was not in the possession of Mr. Gray, at the time it was taken, then the defendants, would be entitled to a verdict in this case.’”
The court further instructed the jury that if they found that -plaintiff was the owner of the property, and entitled to the possession, their verdict should be for the plaintiff;, but if they found that he was not the owner, and not, entitled to the possession, but that Mr. Potts was the-owner and in possession at the time the property was seized by the defendants, then their verdict should be for the defendants.
Under ^ the evidence and the charge of the court, the-jury settled the following facts:
1. That the title and possession were in Mr. Potts.
2. That the pretended bill of sale was given with no-intention to pass either title or possession to plaintiff, but. that it was given for the express purpose of preventing a. levy by the tax collector.
There was ample evidence to sustain the verdict.
Only judgment creditors can assail a transfer of property by a debtor as fraudulent, and a valid judgment is necessary to enable the creditor to make the attack. Millar v. Babcock, 29 Mich. 526. But we do not think this rule obtains where the person against whom a tax is assessed makes a pretended sale of the property for the express-purpose of preventing a levy, retains possession of it, receives no consideration, and the pretended vendee participates in the fraud, and takes the bill of sale in order to assist in defeating the collection of the tax. Such party stands in no better position than his pretended vendor to contest the validity of the tax. Otherwise the statute. (How. Stat. § 8318) which prohibits replevin for property-seized by virtue of a tax warrant could be very readily evaded. The question as to the validity of the tax warrant therefore becomes immaterial.
Judgment affirmed.
The other Justices concurred. | [
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Pee Gubia m.
The relator and several others, being engaged in making a set of abstract books of the titles to land in the county of Genesee, applied to the register of deeds for the privilege of access to the public records and files in his office. Several interviews were had and some letters passed between relator and the respondent in relation to the matter, which need not be set forth here. It is sufficient to say that relator asks the privilege of examining all records and files in the office, and of making memoranda therefrom, for the purpose of making a set of abstract books. The respondent refused this privilege on the g‘round that the public convenience would be interfered with thereby. He offered the pi’ivilege of making an abstract or search or of copying any instrument recorded, but declined to allow relator and his assistants to work continuously at the table provided for the use of the public, claiming that it was being monopolized by them to the exclusion of the public. Relator having in his hand one of the books of record of deeds, it was taken from him by respondent, and replaced in the vault, and its further use denied for the purpose mentioned. The answer of respondent sets forth the size of his office, and arrangement of the furniture therein, presumably to corroborate his claim that he cannot accommodate the 'relator and his clerks without inconvenience to himself -and the public. He further asserts that all such furniture is necessary for the general business of the office, and that it is impossible to accord the privileges demanded and perform the duties of the office.
The record seems to warrant the conclusion that respondent denies to relator the use of the records and a place to make memoranda for a set of abstract books, upon the ground that he has no legal right to the same. If the case of Webber v. Townley, 43 Mich. 534, justifies this contention, we think the decisions of this Court in the cases of Burton v. Tuite, 78 Mich. 363, 80 Id. 218, have overruled the'case of Webber v. Townley, and established the right of a person to look at the records and make memoranda for a set of abstract books. This right does not permit the register to be unduly annoyed by a large force, or by work at unseasonable hours, or by the monopoly of furniture, office room, or records to the exclusion of other persons, or interfere with his right to prescribe a reasonable use of the same. It does, however, require that he recognize relator as one of the public, and accord to him reasonable privileges for the accomplishment of his purpose. , We do not feel called upon to specify the number of persons that respondent must accommodate, or to prescribe the rules which he may require relator to observe. These should be made with reference to the circumstances, and with a view to the reasonable -use by relator of books and office. We assume that, the question of the right to use the same being settled, the parties can adjust their differences.
The writ must issue as prayed, requiring the respondent to permit relator to have reasonable access to the records and files in his office for the purpose aforesaid. | [
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Montgomery, J.
The sole question presented in this ease is whether the filing of an affidavit for transcript with a justice of the peace, and the filing of such transcript in the circuit court, after the expiration of five days from the rendition of judgment, and before a stay of execution has ever been entered with the justice, operate to divest the justice of jurisdiction of the cause, and to prevent the party against whom the judgment was entered from thereafter entering a stay with the justice.
We think this question should be answered in the affirmative. Section 6947, 3 How. Stat. (Act No. 173, Laws of 1885), provides that whenever an execution may by law be issued upon any judgment rendered by a justice of the peace for $20 or over, exclusive of costs, the party in whose favor such judgment shall have been rendered may proceed to take steps to file a transcript in the circuit court. Section 6948 provides for the filing of such transcript with the clerk of the circuit court. How. Stat. § 6949 is as follows:
“Such judgment shall have the same effect as a judgment rendered in the circuit or district court, and may in the same manner be enforced, discharged, and canceled; and execution may be issued thereon against both the surety and the person against whom the judgment was rendered, or either of them, in the same manner as if execution were to be issued by the justice."
Section 6993 provides:
“ Whenever a transcript of a judgment rendered by a justice of the peace shall have been filed and docketed by the clerk of the circuit or district court for the county, all executions thereon shall be issued out of and under the seal of such circuit or district court, and the power and authority of the justice in respect to such judgment shall cease."
We do not see any ambiguity or uncertainty in the language employed in these sections. At the expiration of five days from the rendition of the judgment execution “may by law be issued.” The transcript may therefore be taken out and entered. This is done, and the case docketed in the circuit, and the “power and authority of the justice in respect to such judgment shall cease.” The learned circuit judge took a different view, and set aside the judgment docketed in the circuit. In this, we think, he was in error, and the writ requiring the correction of this error should issue.
.Hooker, C. J., and Grant, J., concurred with Montgomery, J. | [
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] |
Per Curiam.
A motion for a rehearing having been made in this case, our attention is challenged to the fact that a larger sum was due upon the mortgage than the-amount due the complainants, and for the security of which it was • assigned to them. The appellant, Van. Wagoner, was entitled to this excess.
The case will be remanded to the court below to ascer tain and determine tbe amount actually due upon tbe mortgage, and tbe decree below will be modified to tbe extent that on the sale of tbe mortgaged premises, or on payment of tbe amount found due upon tbe mortgage into court, tbe money shall be applied, first, to tbe payment of tbe sum due complainants, with interest and costs; and, second, tbe balance, if any, shall be paid to tbe appellant, Yan Wagoner, to tbe amount of bis claim.
Neither party will recover costs in this Court. | [
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Montgomery, J.
Replevin for a cow. Plaintiff recovered, and defendant brings error.
The undisputed testimony showed that the plaintiff owned the cow in question; that, during the summer of 1890, plaintiff was boarding temporarily with her parents, in the south of Saginaw, while her husband was engaged in the saloon business at Jjansing. The cow in question was kept and cared for by the plaintiff. George D. Anderson, plaintiff’s husband, visited his family in Saginaw on Sunday, the 16th of November. He then informed his wife that a man named Crumb at Lansing would take the cow and keep her, free of charge, provided he could have the milk from her until the plaintiff and her children removed to Jjansing. Plaintiff assented to her husband’s shipping the cow to Lansing, and, on the morning of the 17th of November, the cow was taken to the train by the husband, and placed in the car for shipment. The cow was, however, the same day, and before leaving Saginaw, sold by plaintiff’s husband to one Brown, who lived in Kentucky. The plaintiff accompanied her husband to Lansing on the same day; and there is some testimony offered by the defense which tends to show that the plaintiff had admitted that she learned on her arrival at Lansing that the cow had been sold to Brown. The defendant called witnesses to testify that she had also stated that she. learned that the cow was at Crowley’s at this time; and it is insisted that it was her duty to take steps to reclaim the cow at once, and, not having done so until Crowley became the purchaser, a few days later, she is now estopped from claiming title.
Apart from the fact that it does not appear that plaintiff had any notice of any intended purchase by Crowley,, and the further fact that Brown, the only purchaser of whom she had then heard, has’ in no way changed his position since, the further fact appears conclusively by the defendant’s testimony that if the plaintiff had attempted to act upon the information, which she is alleged to have possessed, that the cow was at Crowley’s, any attempt to remove the property would have proven futile, for the cow was not then at Crowley’s, but at a livery stable kept by one Penoyer,
The circuit judge was right in holding that there was. no estoppel under these circumstances, and in directing a. verdict for plaintiff.
Judgment affirmed, with costs.
The other Justices concurred.
Counsel cited, in support of this contention, Dann v. Cudney, 13 Mich. 239; Case v. Erwin, 18 Id. 434; Paneling Co. v. Parsell, 38 Id. 480. | [
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Long, J.
The defendants were charged with fraud and conspiracy in obtaining certain moneys from the plaintiff. Defendants were arrested and held to bail on a capias. On the trial of the case it appeared that William Trick was a contractor and builder. The defendant Powell is an attorney-at-law. All the parties reside in the city of Detroit. Prior to the time the transactions occurred which led to the present controversy, Powell had done more or .less legal business for the plaintiff. Her husband had died, and she had received $1,800 for a dower interest in some lands. She also had a homestead in Detroit, upon which there was a mortgage of $1,400. The mortgage would become due in about six months from June 1, 1893, and part of the $1,800 had been put, under defendant Powell’s suggestion, into McLellan & Anderson’s Savings Bank, at 4 per cent, interest, to await the time when it could be used in the payment of the mortgage on the homestead. Plaintiff claims that on May 26, 1893, defendant Powell sent for her to come to his office in the Moffat Block, the same office being, and for some time had been, occupied by defendant Trick, who frequently consulted Powell about his business affairs. Apparently Powell was familiar with Trick’s affairs, and to some extent with the incumbrances on his property. Plaintiff testified that, when she went to Powell’s office on that occasion, he told her that Trick wanted to borrow $600, and that he would pay it back in six months, in time to pay the mortgage on her homestead, and said, “You are just as sure of it as the wheat.” She was asked by her counsel about the security that was then talked of, and testified:
“Mr. Powell said there was an incumbrance on it. Well, I said I disliked to make a loan, not knowing anything about business matters, except it be a first mortgage. I said I had often heard my husband say that you can make a loan on a first mortgage all right. And he says, ‘There is no first mortgage about it.’ He says, ‘You shall have a clear deed and title of the property, and I will look up the records, and see that you get it;’ knowing that I had confidence in him to transact the business. And he says, ‘It is better than a first mortgage.’ I says, ‘Is it as good as a first mortgage?’ ‘Why,’he says, ‘there is no mortgage about it. * * * You get a clear deed and title to the property, and you are very foolish not to make the loan.’ * * * There was an unfinished house on the property, and he was to go on and finish the house with a part of this money, so that it would be rentable.”
The arrangement was finally made, and the $600 paid over, with the agreement that plaintiff should have 7 per cent, interest, and a bonus of $30. The plaintiff testified, as to the security, that all that was given her was a land contract, which she and Trick each signed, but that she never knew of any deed being made; that, at the time the loan was made, Powell told her to come in a few days, and get the papers and the deed, as she says she supposed; that, when she called in, Powell said he could not find it, and told her to call again; that, when she went the second time, she asked if the deed was ready for her, and Powell told her that Annie Corbett (his mother-in-law) held the deed. Plaintiff then testified:
“ ‘Why,’ I says, ‘ that is strange. You told me that I was to have a clear deed and title.’ ‘Well,’ he says, ‘she comes first.’ And then it began to dawn on me that there was something wrong. ‘Well,’ I said, ‘I don’t see, — I can’t understand it, — when I was to be the first, and you told me that I was to have this clear deed and title, and that I was sure of the money.’ ”
Plaintiff testified, further, that she had been told by Powell that there was a $1,200 mortgage on the property, but that she was to have a clear deed and title, and that would be better than a first mortgage. It appears, how ever, that at that time, and as a part of the same transaction, the defendants drew up a deed, which was signed by Trick and his wife, and acknowledged before Powell as notary public, and witnessed by him, conveying lot 22, block 14, of Campau’s subdivision, etc., in the city of Detroit, to the plaintiff, the consideration being stated in the deed as $3,000, subject to a mortgage of $1,250, given by first parties to one Annie Corbett. On the same day a land contract was drawn up by the parties, which was signed by plaintiff and Trick, by which the plaintiff, as party of the first part, agreed to convey the premises mentioned in the deed as above to Trick—
“For the sum of $3,000, which the said party of the second part hereby agrees to pay to the said party of the first part as follows: $1,120 on the delivery of this agreement, and $630 on or before six months from date hereof, with interest at the rate of seven per cent, per annum, payable semi-annually. Said second party also agrees to assume and pay a mortgage of $1,250, held by Annie Corbett, with interest on all sums at any time unpaid hereon at the rate of seven per cent, per annum, payable semi-annually.”
The contract gave Trick the possession of the premises, but provided, as is usual in such contracts, for repossession by the first party. This was the security which Powell obtained for the plaintiff for the $600 loaned by her. Some time after this contract was made, Powell commenced foreclosure proceedings for the foreclosure of the Annie Corbett mortgage, and in August, 1894, he bid in the property for her at $1,414.24, that being the highest bid. The deed was made to Mrs. Corbett, and she now owns the property.
About four days after the above transaction, and on June 1, 1893, Powell induced the plaintiff to loan Trick another $600, and it is claimed that about the same representations were made to her to obtain it on another lot, Trick making to her the same form of deed as the former one. This property was incumbered with a mortgage to the People’s Savings Bank of $1,200. The deed was made subject to this mortgage. The land contract which was executed by the plaintiff back to Trick recited that he was to pay for it $3,000, as follows: $1,170 at the execution of the contract, to assume the mortgage of $1,200 against the property, and pay $630 on or before six months, with interest at 7 per cent. There was another mortgage, also, on this property at that time, which the plaintiff claims she was not informed of. It was given by Trick to Rollin Amsden for $293. The Amsden mortgage was thereafter foreclosed, and the property bid in by Amsden for $1,619.65, which about equaled the two mortgages, with interest thereon. Amsden has since acquired title to this property.
Defendant Powell was called as a witness in his own beialf, and on examination was asked:
“Whose idea was this in making this deed out and the contract back, instead of a mortgage, to secure the loan ?
“A. That was my suggestion, I suppose. * * * ”
On cross-examination he was asked:
“Now, in case Mr. Trick failed to pay this [the money to plaintiff], how was she to take care of the $1,250 that was due your mother-in-law ?
“A. I don’t know anything about that.
“ Q. Didn’t you think about the question, How will this woman take care of these things if Mr. Trick fails ?
“A. I don’t know that her relationship to me was so very close as that.
“ Q. You had been her lawyer ever since her husband died, hadn’t you ?
“A. I don’t know as I would put it in that way. We had not had such close relations.
“ Q. You had closed up the estate ?
“A. I had_done what was necessary here in this court.
“ Q. Didn’t you actually have some of this very money that you let Mr. Trick have — that Trick borrowed — in your hands at the time the negotiations were going on ?
“A. I may have had; I don’t think I had.”
Powell admitted that he had in his hands $600 of the $1,200 loaned to Trick; that he had it out of the estate of Mr. Hardy. He also testified that plaintiff might have relied upon him to see that she got the proper title or security on the lots; that he considered the piece of property upon which the first loan was made to be worth from $1,850 to $1,900; and that it had a mortgage on it, running to his mother-in-law, of $1,250.
Mr. Trick was called as a witness, and testified, in relation to the last deal, that he had lost the title to the property when he gave plaintiff the deed; that he had no property, at the time he received the money from her, that was unincumbered. He was asked:
“Who represented to you it was better to give a deed, or, if you were borrowing money on a second mortgage, why did you give a deed ?
“A. That is the way Mr. Powell chose to do it.
“ Q. The arrangement between you and him was made that you should take the money before he—
“A. No, sir; he offered me— He telephoned me, and asked me if I could take it. I didn’t know anything at all; neither had I instructed him to get the money for me at that time. * * *
‘ ‘ Q. According to this contract that you signed and had the woman take, it is put there that you had paid her $1,120 on the delivery of this .agreement. Now, did you pay her a cent?
“A. No, sir.
“ Q. Why was it put in that contract that you had paid her $1,120 on this contract?
“A. I cannot explain it.
“ Q. Do you know how you got at that $1,120 ?
“A. No, sir, I do not.
“ Q. That was all left to Mr. Powell, was it?
“A. Yes, sir.
“ Q. This whole planning of making the paper with that kind of thing was left to Mr. Powell ?
“A. Exactly.
“ Q. The fact is, you did not pay the woman any money ?
“A. I paid her $7 on lot 5.
“ Q. Now, the other contract that she recites, — that you were buying the property for $3,000, — there was no such agreement, was there ?
“A. No, sir.
“ Q. And it recites that you have paid on that $1,1?0?
‘‘A. Yes, sir.
“Q. You hadn’t done that, had you? You didn’t pay anything on that to her, either ?
“A. No, sir.
“ Q. Then that contract is not right ?
“A. That is so.
“ Q. There was an unfinished house, wasn’t there, in one of the transactions in connection with Mrs. Hardy ?
“A. Yes, sir.
“ Q. Did you finish that house ?
“A. No, sir.
“Q. Wasn’t this money given to finish that house with ?
“A. No, sir.
“ Q. Was there an understanding with Mrs. Hardy that she should let her money go, and that the house on the property should remain unfinished ?
“A. I don’t think so.
“ Q. You think she understood that it was to be finished, didn’t she ?
“A. Well, I had no conversation with her on that. I simply infer she. would think that.
“ Q. Didn’t you tell Mr. Powell that you were going to finish it ?
“A. Yes, sir.-
“ Q. Did you use the money that you got from Mrs. Hardy to finish the house on the corner of Twenty-Seventh and Hudson ?
“A. No, sir.
“ Q. Then you didn’t use any of the money to complete the building that was on the lot that you were turning out to her as security ?
“A. No, sir.
“ Q. Did you ever complete it?
“A. No, sir.
“ Q. Let it go without any more attempt at completion ?
“A. That is so.”
The cause was tried before a jury, who returned a verlict in favor of the plaintiff for the full amount of her claim. Defendants bring error.
It is contended in the brief of counsel for defendants that the testimony of the plaintiff herself disposes of the question of conspiracy to defraud her of her money. We cannot agree with this contention. Under her testimony it became a question of fact for the jury to determine, and the question was fully and fairly submitted to them.
It is also contended that there was a variance between the pleadings and the proof; that, while the affidavit for the capias and the declaration charged that the property she received as security was to be free from all incumbrances, the testimony of the plaintiff shows that she knew of the incumbrances, and took the property as security with full knowledge of the incumbrances. This cannot be said of the plaintiff’s testimony. Her testimony is that the deed was to be given to her as security, and it was to be a clear deed and title to the property, and that Powell assured her the deed was better than a first mortgage; that, if she took the deed, there was no mortgage about it, and she got a clear deed and title to the property, and that she was foolish if she did not make the loan. It is evident that the plaintiff was wholly unacquainted with land transactions, and believed that she was getting a title that was better than a first mortgage. There was no such variance as claimed between the pleadings and the proof.
It is also claimed that the court was in error in excluding a list of Trick’s property. The defendants could not have been prejudiced by this, as Trick, in his examination as a witness upon the stand, testified that he had no property but what was mortgaged.
Many other errors are claimed, all of which have been examined with care, and we find no error.
The judgment must be affirmed.
The other Justices concurred. | [
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Moore, J.
The plaintiff sued the defendant to recover taxes paid by it to the treasurer of the defendant, claiming the assessment was void, and that the taxes were paid under protest. The circuit judge directed the jury to return a verdict for the defendant. The. case is appealed here by the plaintiff.
The plaintiff was the owner of the lands upon which the taxes were assessed. As the taxes were not paid, the treasurer made a levy upon logs belonging to plaintiff, and advertised them for sale on the 5 th of March, at which time they were offered for sale to the highest bidder. Mr. Park, the superintendent of fhe plaintiff, ap peared in its behalf, and bid upon the logs. A man by the name of Stevenson also bid. After several bids were made, as Mr. Park was the highest bidder, the logs were struck off to him. Mr. Park’s version, upon the cross-examination, of what occurred, is as follows:
“I saw the notice that he had up for the sale. I think the date of the sale was March 5th. He offered the logs at that time to bidders. I don’t know who the first bidder was, out think it was a man from Lewiston, by the name of Stevenson. I don’t think any offer was made by the thousand, but an offer by the bulk. I have forgotten how much the first bid was. There was a certain amount offered for the logs. There were several bids. The next bid was a higher bid made by me. There was a bid made over me, and I bid over that again. I could not say how many bids there were made altogether. I made the highest bid made there that day. The logs were struck down to me as the highest bidder at that sale. I bought the logs in at that sale of the township treasurer. I did not pay him the money there for the logs I had bid in. The reason why I did not pay him the money there was because I wanted to counsel the members of the firm at Au Sable first. I had the money there to pay, but I did not want to pay until I heard from them. I paid for the logs on the 6th of March. I was bidding them in for the plaintiff. I think the amount of the bid was somewhere near the amount of the taxes. I think it was a trifle over.
“ Q. When Mr. Jones went down with you, he went down to get pay for the logs .that he had sold to you on that 5th day of March ?
“A. He went down to get pay for his taxes, — the amount of his taxes. * * * The sale was temporarily suspended at my request, until I could get the money and pay the taxes.”
Mr. Jones’ version of the transaction is as follows:
“Mr. Park made the last bid, and there were no more bids made after he made the bid, and it was struck off to him. The first bid made by Mr. Park did not come up to the amount of the tax. After the bidding was closed, there was something said about that he did not have the money to pay the hid that he had made on the logs, and he wanted I should go to Au Sable, and he would pay the money there. He said he did not have the money there to pay it, and, of course, I said then it would go to the next highest bidder, if he could not pay it. And he went on and said, if I would go down to Au Sable with him, he would get the money there, and pay it. I went. After we got there, they looked over the tax, and made out a receipt and a check, and presented them to me — the check and the receipt — to sign; and I said I did not think I could take this tax under protest. I got the money, and came home. ”
On cross-examination, witness, when shown the tax re-, ceipt, testified:
‘ ‘ That is my signature on the back of the tax receipt. When I signed that there, I think the writing, ‘Paid under protest after levy,’ was there immediately above my signature. I received the money on the 6th of March ”
No written protest specifying the grounds of protest was made by the plaintiff, and the record does not disclose any statement was made to the treasurer why the plaintiff claimed the right to pay the taxes under protest. In Hinds v. Township of Belvidere, 107 Mich. 664, it was held, in an action to recover taxes paid under protest, no showing can be made or recovery had upon any ground not named in the protest. This transaction is not a very creditable one to the plaintiff. Its representative appeared at the sale, and without protest took part in the bidding, and bid higher than another; and prevented the property from being sold to him. When the property was sold, it was represented that if the treasurer would go to the office of the plaintiff, which was not in the township where the sale was made, the amount of the bid would be paid to him. When he arrived there, an attempt was made by the plaintiff not to carry out the arrangement which induced the treasurer to be there, but to place him at a disadvantage.
The case is quite like that of Gachet v. McCall, 50 Ala. 307, where themwner appeared at the sale, and voluntarily promised the collector, if he would postpone the sale until the next day, he would pay the taxes and fees. The sale was postponed, and on the next day, pursuant to the promise, the owner paid the amount in full, but declared he paid the fees under protest. It was held this was a voluntary payment, and that no portion of the money could be recovered back.
Judgment is affirmed.
The other Justices concurred. | [
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] |
Moore, J.
This action was commenced in justice’s court, by summons, to recover the -statutory penalty for willfully obstructing a ditch. The declaration was in two counts, one alleging that defendant had obstructed a natural water-course, and the other count for obstructing a drain constructed for the purpose of draining a highway. The plea was the general issue. The trial in the justice’s court resulted in a judgment against defendant for $25. Defendant appealed to the circuit court, where the case was tried, and resulted in a verdict and judgment against the defendant in the sum of six cents and costs. The defendant brings the case into this court upon a writ of error, upon claimed errors in the charge as given, and refusals to give certain charges as requested by defendant. We do not deem it necessary to discuss the assignments of error relating to the refusal to give the requests to charge, for the reason they were either not proper to be given, or else were sufficiently stated in the general charge.
The statute under which this proceeding was begun reads as follows:
“Whoever shall willfully obstruct the navigation of any river or stream which is now or may hereafter be declared a public highway, by felling any tree therein, or by putting into any such river or stream any refuse lumber, slabs, or other waste materials, or who shall willfully obstruct any highway, or fill up or place any obstructions in any ditch constructed for draining the water from any highway, or who shall injure any highway by diverting any creek, or by obstructing any water-course or sluice, shall forfeit for every such offense a sum not exceeding twenty-five dollars.” 3 How. Stat. § 1403.
The record shows that defendant lives on the E. J,- of the S. E. £ of section 8, and has lived there since 1887. There is a highway running north and south on the east side of his farm, and one running east and west on the north side of it. A natural water-course has its rise in a northeasterly direction from the center of defendant’s farm as it lies on the north and south road, and it passes across the highway through a culvert which is about 6 feet wide and 16 feet long, and which has been in existence for upwards of 20 years; then running in a south and west direction, it becoming a ravine, with banks 20 feet high, across Mr. Sperling’s farm, it empties into the Tittabawassee river. Mr. Sperling constructed a dam of logs and dirt on his land west of the highway, between 3 and 4 feet high, and higher than the surface of the highway, and about 8 rods long. This dam was so constructed as to completely stop the water and leave no outlet for it. The effect of the dam is, in the springtime, to back the water up so that the highway is completely submerged from 6 inches to 2 feet in depth with water. Upon one occasion the culvert was floated out. It cost the township $6 to replace it.
It is the claim of defendant that the authorities had • constructed a ditch on the east side of the highway, which brought water from the north which would not, in its natural course, reach defendant’s lands, and projected it upon his lands, which action, it is claimed, justified him in erecting the dam. It is also claimed that defendant made an arrangement with the pathmaster, Munger, by which he was to cut a ditch along the highway which would carry this water to the river, and was given permission to build the dam in question. It is alleged that the court erred in his instructions to the jury in relation to these two defenses.
One does not find in all the testimony any authority to construct a dam. Mr. Munger testified that he never gave defendant authority to erect this dam. It is very doubtful, if he had attempted to do so, whether he would have been authorized to bind the township by any permission he could give; but it is very clear from the testimony that he did not give defendant permission. It is doubtful if any testimony was given fairly showing that any appreciable flow of water from the north was caused by reason of the ditch put upon the east side of the highway. Testimony was introduced on the part of the township that the only ditch put there was simply one just sufficiently large to drain the surface of the highway, and by reason of putting it there no water reached defendant’s land that would not naturally reach it. If the opening of this had that effect, it is possible that the defendant might hav.e the right to stop the flow of water from it into the channel of the natural stream, though we express no opinion upon that point; but it would not justify him in building a permanent dam across the channel of this stream.
The charge of the court was very long, and, in the main, we think it a fair and correct statement of the law; but whether it is or not we do not think it necessary to decide, in this case, for the reason that, according to defendant’s own version of the transaction, the plaintiff was entitled to a judgment against him, and the jury have made it as small as they could, and render any judgment at all.
Judgment is affirmed.
The other Justices concurred. | [
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Montgomery, J.
This case has once been considered in this court. A report of the former hearing will be found in 101 Mich. 590. The facts of the case as they appeared on that hearing are fully set out, and we need not repeat them here. It will suffice to refer to such additional facts as were made to appear on the second trial. On the former hearing the case was reversed for the reason that the testimony failed to show that the tender made on behalf of plaintiff was absolute, but that it was made a condition to the acceptance of such tender that the first mortgagee assign to plaintiff, not only the first mortgage, but certain notes containing the indorsement of John Hurley. On the second trial the testimony tended to show, and the jury found, that a tender was made, accompanied by a demand of an assignment of the mortgage only. This occurred after the 'first tender was made, and there is in the record abundant testimony to support the finding of the jury in that regard.
It is contended by defendants’ counsel that the effect of the tender, accompanied by a demand of an assignment of the mortgage, did not operate to discharge the first mortgage, and that the plaintiff’s remedy for the refusal to accept the tender is equitable, and not legal. This precise question was not considered in our former opinion, and, so far as the record discloses, has never been decided in this State. The decisions are abundant that a tender of absolute payment discharges the lien of the mortgage. It is equally clear that a subsequent incumbrancer may tender payment. Sager v. Tupper, 35 Mich. 134; Proctor v. Robinson, Id. 294; Lucking v. Wesson, 25 Mich. 443. But does a tender of payment, accompanied by a demand for an assignment, extinguish the mortgage ? It is not the purpose of such a tender. The purpose on the part of the subsequent incumbrancer is to keep the lien alive, and to enforce it against the general owner. In Proctor v. Robinson, supra, the question was whether Robinson had discharged the incumbrance by a tender. The court said:
“Before yielding to a defense of such a nature, and causing such a result, the court is bound to insist on clear proof, and such proof has not been given. On the contrary, the whole facts lead to an opinion that there was no tender, in the sense of an offer made and understood as one to cancel the lien, and the theory of the defense required the establishment of a tender of that kind. An offer of money by a subsequent incumbrancer for the purpose of acquiring a prior incumbrance, or as a step preparatory to a bill to redeem, is quite different in its spirit and equitable bearings.”
In Frost v. Yonkers Savings Bank, 70 N. Y. 553 (26 Am. Rep. 627), which was a case of refusal by the first mortgagee of a tender by a subsequent mortgagee, with a demand for an assignment, such as made in this case, the court say:
“ If one desires to make a tender which shall destroy the lien of an incumbrance, and have, so far as concerns it, the effect of payment, he must make an absolute tender of payment, which, if received, will discharge the debt and the incumbrance. Here no such tender was made. "What the plaintiff did was a tender in the exercise of his right of redemption, with a demand that the mortgage and judgment be transferred to him. He desired to become a purchaser of the securities, and in such case the tender does not operate to destroy the securities, but gives the party a footing in equity to compel the transfer demanded, if he is otherwise entitled to it. Hence it was properly held below that the tender did not cancel or discharge the lien of the mortgage or judgment.” •
In Sheld. Subr. § 16, the English rule is stated as follows:
“The prior mortgagee ought, without judicial proceedings, to accept an offer of payment made to him by a junior incumbrancer, and thereupon to convey to him the mortgaged estate', with or without the concurrence of the mortgagor; and, if he refuses to do so on demand, and subsequently acquires from the mortgagor the equity of redemption, which was of sufficient value to pay the junior incumbrance, he will be himself held for the amount of the latter. ”
We think that these authorities, to the extent that they assert that a tender of payment on condition that an assignment be made does not operate to discharge the prior incumbrance, state a reasonable and just doctrine.
The second mortgagee may or may not be damaged by the refusal of the prior incumbrancer to assign. If the prior incumbrance exceeds in amount or equals the value of the property, it is difficult to see how the second incumbrancer is in any way damaged by such a refusal. True, in the protection of his interest, the second mortgagee has the right to become a purchaser, but it would seem that, if this right be enforced in his favor iit equity, and particularly if he is fully protected to the extent of the value of his security as it was at the date of the tender, this is the extent to which the law ought to go in his protection. While the cases cited contain expressions indicating that there is a remedy in equity, we do not think it follows that the sole remedy is equitable. After such a tender, the first mortgagee is not entitled to cut off the right of the junior incumbrancer to the value of the property in excess of his (the first mortgagee’s) lien. The plaintiff, as mortgagee, may maintain trover for conversion of the property by one who, as against him, has no right to dispose of the property. Grove v. Wise, 39 Mich. 161; Wright v. Starks, 77 Mich. 221. After the tender by the plaintiff, the mortgagee had no right to dispose of the equity of redemption in such manner as to impair plaintiff’s rights.
The circuit judge stated in his charge that it was conceded that there was property enough to pay both mortgages. This does not appear to have been challenged at the time, although error has since been assigned on it; but we think it a fair statement of the testimony. This being so, the plaintiff’s damages would be the amount of his mortgage.
It is contended that Moore and Hurley were not responsible for the conversion. The assignment to Walsh was made after the demand, but with the intention of continuing the foreclosure proceedings to sale. This was in fact done, Mr. Atkinson acting on 'behalf of all the parties. We do not think any injustice was done in holding them all responsible.
Error is assigned on the charge of the court; but, in view of the special findings by the jury, we think no err'or to the prejudice of the defendants was committed.
Judgment affirmed.
The other Justices concurred. | [
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Moore, J.
This case has been in this court before, and is reported in 116 Mich. 245. A reference to the case as reported will make it unnecessary to make so full a statement of the case as would otherwise be necessary. When the case was here, it was held the contract was not so plain in its terms that it was not susceptible of explanation by parol evidence. Then, as now, the defendant urged that the trial court should have directed a verdict in favor of the defendant, but the court said the questions involved were for the determination of the jury, -under all the circumstances. The record in this trial is substantially the same as in the other, except that plaintiff offered more testimony to show that the notes which were given by the Howrys were received as payment of the saw bill, and more testimony was offered than before that defendant waived any lien it might have for the saw bill. There is no more reason now for saying the case is not one for the jury than there was when the case was here before. In the former opinion it was said:
“If the notes for the saw bill were given and received as payment, it was a waiver of the lien. If Mr. Linton surrendered possession of all the lumber to the plaintiff, and agreed that he might remove it, Mr. Linton at that time knowing that plaintiff claimed to have purchased it from the Howrys, that' would be a waiver of the lien. These were questions for the determination of the jury. * * * There were two questions for. the jury: First, whether the notes for the saw bill were received as payment for the sawing; second, whether there was such a surrender of the lumber by Linton, and taking possession of it by the plaintiff, as amounted to a delivery of the whole lumber purchased by plaintiff. ”
The errors assigned, m addition to the one already mentioned, relate to the admission of testimony, the refusal to give certain requests to charge, and the charge as given.
The deposition of the Howrys was taken. They testified the purpose in making .the. contract was to enable them to have paper to use and get discounted at the banks, and assist them in their lumberiDg operations, and that the saw bill for sawing was paid by notes of J. W. Howry & Sons. One of the Howrys said, “We agreed to pay them $1.75 for sawing, and they accepted'iri payment for same our notes.” Another one of them said, “ I don’t pretend to give the exact language that was used in regard to how the saw bill was to be paid, but we were to pay the saw bill with our notes, and we had the privilege of renewing them if we desired.” It is said this testimony is incompetent, because the contract was in writing, and also because one of the witnesses said the agreement was embraced in the writing, and his testimony called for his construction of the contract. The whole defense is based upon the theory that there was not, in fact, a sale of 7,000,000 feet of logs at $12 a thousand from Howry & Sons to the defendant, as indicated by the paper of April 5, 1895, nor a sale in fact of a. like quantity of lumber at $12 a thousand by the defendant to Howry & Sons, as indicated by the paper dated April 6, 1895, but that the entire transaction was for the purpose of securing the payment'of $25,000 of paper which had been given them by A. T. Bliss, president of the defendant company, and $40,000 which was to be advanced by the defendant company, and to enable it to get the sawing of the logs. The officers of the company testified there never was in fact a purchase of the logs by them at $12 a thousand, or a sale by them of the lumber at a like, sum, and it was never expected there would be. It is to be observed that the paper of April 5th does not indicate when or how the difference between the $65,000 of the paper mentioned therein and the $84,000, the price of the logs, is to be paid. The paper of April 6th is also silent as to the terms of payment for the lumber. It provides that notes shall be given for the saw bill, but it does not say by whom they shall be given, for what length of time, or the rate of interest, or whether they shall be received as payment of the saw bill. The most casual inspection of these papers indicates that, unexplained, they do not contain the contract of the parties. To establish the defense, parol testi mony was essential. .Without it, the defense could not be made. We think it was competent to explain the ambi-. guities of the contract, not for the purpose of varying it or contradicting it, but to show what, in fact, the contract was.
The court refused to give some of the written requests of counsel for defendant, but in his general charge he gave the substance of all of them which were competent to be given. Without quoting all of the charge, the jury were charged as follows:
‘ ‘ The defendant requests the court to charge you, and he does charge you, that the evidence shows that the defendant sawed for J. W. Howry & Sons, under the contracts made between them dated April 5, 1895, and April 6, 1895, put in evidence by the plaintiff, logs at $1.75 per M. feet, making a total saw bill of $14,137.78. Under the terms of said contract the defendant would acquire a lien upon the whole of the lumber sawed for the amount of the saw bill. The defendant would have a right to permit any part of the lumber to be removed by J. W. Howry & Sons, or by parties to whom they made sales of the lumber, and when so doing might retain a lien upon all of the lumber not yet removed for all of the saw bill not .paid, if they had not before that released it; that is, if they had not before that released their lien, if they had one. All that was necessary to retain a lien upon any part of the lumber was that the defendant keep possession of such lumber. The sale to Germain would be subject to the lien which defendant had upon the lumber, whether Germain in fact knew of the lien or not, if they had a lien.' The evidence shows that, when Mr. Germain bought the lumber, he knew it had been sawed by the defendant, and that it was upon the defendant’s docks and premises. These facts are notice to him of any lien the defendant had on the lumber for saw bill, if they had any. The plaintiff claims that the defendant did not have a lien 'on the lumber for saw bill. The burden of proof is upon the plaintiff to show, by preponderance of the evidence, that the defendant did not have such a lien. The giving of notes in renewal of notes first given for the saw bill would not discharge the lien, and any number of such renewals would not discharge the lien, unless the notes were taken as payment by agreement in the first instance.
c! The plaintiff requests the court to charge you, and he does so charge you, as follows: The construction of written contracts is for the courts, unless their terms are so ambiguous as to require explanation. The contract between the Howrys and the Central Lumber Company, in reference to the method of the payment of the saw bill, is not so plain in its terms as to whether or not the notes given for the saw bill were intended to be given in payment therefor, and evidence has been introduced on this question. I therefore charge you that if, from the evidence, you find it was the intention of the parties that the giving of the notes specified in the contract should be given and accepted in payment of the saw bill of the lumber in question, then the defendant had no lien for saw bill, and your verdict would be for plaintiff. If; from the evidence in the case, you find, by the condu'ct of the parties in the giving of the notes for the saw bill and the renewal of them for a period of time extending beyond the original six months specified in the contract, that it was understood between the Central Lumber Company, and J. W.-Howry & Sons that the lumber should be sold by the Howrys to obtain the money with which to pay the notes, then it is conduct that amounted to a waiver of any lien they had for saw bill, if they ever had one. If, from the evidence in the case, you find that the Central Lumber Company accepted the notes of J. W. Howry & Sons in payment for the saw bill, then the defendant would have no lien for saw bill; and the renewal of these notes, no matter how many of them were renewed, such renewals would not give the defendant any lien for the saw bill, and the plaintiff is entitled to. recover.”
We think this was a fair statement of the law applicable to the case.
There is a sharp conflict in the testimony, but it is claimed on the part of defendant that, giving the testimony of the plaintiff the most favorable construction possible, it does not show a relinquishment of the lien upon the lumber, and that the case is governed by Hughes v. Tanner, 96 Mich. 113; McEwan Bros. & Co. v. Carpenter, 111 Mich. 522. We do not think those cases control. In this case, not only were notes given for the saw bills, which were discounted by defendant, some of which were afterwards renewed, but there was testimony that, before plaintiff bought the lumber, he went upon the docks of defendant for the purpose of seeing the lumber. Mr. Linton, the manager of the defendant company, testified that he knew Mr. Germain was engaged in the business of buying' lumber, and was there looking at the lumber with a view of purchasing it; and he told him all of the lumber on the dock not marked up as sold belonged to the Howrys, and did not tell him the defendant had a claim on it for the saw bill. The plaintiff testified that, after he bought the lumber, he went upon the docks where the lumber was, and had a conversation with Mr. Linton, in which he informed him he had bought the balance of the Howry lumber, that he had also bought some lumber from Hargrave’s dock, and was pressed to move it, as they were limited for dock room, when Linton said “he was pleased I had bought it, but he was not so- pressed for dock room, but hoped I would move it when convenient for me; so long as they had dock room it was immaterial how soon I moved it.” The record also discloses that, as early as June 13th, Mr. Germain sent inspectors to the dock to inspect the lumber, and a lighter to carry some of it away, and that one of the inspectors made a list of all the piles of lumber which had been sold by Howry & Sons to Germain, and that Linton pointed out lumber which he said was the Howry lumber, and called attention to piles from which the mark had been removed as lumber that should go to Mr. Germain. There was evidence that Mr. Linton stated to the inspectors who were employed to inspect the. lumber that all the Howry lumber on the dock, except that sold to Randall & Boyd, belonged to Germain. One witness testified Linton said that Germain had bought all the Howry lumber, and that all the lumber on the dock marked “ J. W. H. & Sons” went to Germain, except some certain piles that were to go to Randall & Boyd, “part of which our inspectors had taken,” and Germain’s inspectors were to leave some of' the same kind for Randall & Boyd. He said the balance of the lot went to Germain, — was sold to Germain. Shipments were made by Germain’s inspectors from that time until July 16th, when the Howrys suspended, without defendant making any claim to anybody that it claimed a lien upon the lumber for the saw bill. We think there was abundant evidence from which the jury might find the lien had. been waived.
Judgment is affirmed.
The other Justices concurred. | [
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Long, J.
This action was brought to recover damages for an alleged injury to plaintiff on one of defendant’s sidewalks, which, it was claimed, was so far out of repair that it was not reasonably safe and fit for travel. Plaintiff had verdict and judgment for $675.
It is claimed that plaintiff,, while proceeding along this walk, stepped into a hole four or five inches deep, where a plank had been left out; that she was caught by her toes, which were turned up, and her foot and ankle sprained; that before this time she was a strong woman, but by reason of the injury the foot and ankle became swelled, and the skin from the toes to the ankle cracked open in fine cracks, developing into sores, from which she had not been able to be cured at the time of the trial, nearly two years after the injury. It is claimed that the defendant had notice of the defective condition of the walk before the accident, and neglected to repair it. On the trial the defense was that plaintiff’s limb was diseased with eczema, and had been for many years prior to the injury, and that plaintiff was suffering from disease, and not from the injury. It was further claimed that immediately after the injury the limb was not properly treated, and its condition at the time of the trial was the result of such improper treatment. The defense was also interposed that defendant had no notice or knowledge that the walk was out of repair.
Several assignments of error relate to the admission of testimony. The president of the village was called as a witness for plaintiff. He testified that he knew of the bad condition of the walk before and at the time of the plaintiff’s injury, and shortly before that time had called the attention of the village marshal to it; that he saw the loose plank, and noticed that one was gone; that on one occasion, before the plaintiff’s injury, he stepped into a hole there, and his foot was caught; and that it would not have taken 20 minutes to fix this place. Error is assigned upon the ruling of the court in permitting the witness to state how long it would have taken to fix the walk. The chairman of the street committee was called1 as a witness, and asked by defendant’s counsel if the president of the village called his attention to the condition of the walk. This was ruled out by the court. The court was not in error in its rulings upon these questions. It was proper to show the negligence of the village in permitting the walk to be out of repair. The president knew its condition, and that by 20 minutes’ work it could be remedied; he communicated this fact to the village marshal, whose duty it piay have to repair it; and these facts were properly permitted to be shown on the trial. Whether the president of the village called the attention of the chairman of the street committee to its condition or not could not matter. The village had notice of. the- defect, and time to repair it, before the accident.
The court directed the jury that the burden of proof was upon the plaintiff to show the defective condition of the walk, notice to the village, and that after such notice the village had had time to repair it. On the question of damages, the court gave certain requests which the defendant tendered, and fully and fairly covered the grounds of defense claimed.
It is said, however, that the court erred in permitting the plaintiff to exhibit her limb to the jury. There was no error in this. It was claimed by her that the swelling of' the limb and cracking of the skin was the result of the injury, and that this condition was continuous down to the time of the trial. She was asked to exhibit the limb, that the jury might see its then condition. It was for this purpose only that the limb was exhibited to the jury. This was not improper, under the ruling of this Court in Langworthy v. Township of Green, 95 Mich. 93; Graves v. City of Battle Creek, Id. 266.
Defendant introduced testimony of physicians tending to show that the condition of the limb at the time of the trial was due to a disease called “ eczema,” and not to the injury; and the plaintiff called other physicians, who gave their opinions that the condition was the result of the injury. The court directed the jury that if they believed the infirmity existed prior to the injury, and the disease was only aggravated by the injury, the plaintiff could not recover; that the burden was upon the plaintiff to show that her limb was sound and well at the time of the injury. Dr. Ikeler was called as a witness for defendant. He had examined the limb some time prior to the trial, and testified that the left or injured limb was covered from the ankle to the knee with inflammatory eczema and enlarged veins; that the right limb was dry about the middle of the leg, and that he found an old cicatrix, left by some former ulceration in that limb. Counsel for plaintiff asked to have stricken out what the physician said about former ulceration of the right limb. The court then asked, “You only judge by the appearance, I suppose?” and was answered in the affirmative. The court then struck out the answer. Witness was then asked what was the cause of the scar. This was objected to, and ruled out by the court. This was error. It was the vital question in the case whether the plaintiff was suffering from the injury received, or from the effect of disease, with which it was claimed she had formerly been afflicted. Her own physician testified that she had eczema, and the defendant contended that she had it before the injury. Dr. Ikeler was of the opinion that the scar upon the right leg was the effect of that disease before the injury, and the court should have permitted the defendant to make such proof as it could. The theory of the declaration and the tendency of the plaintiff’s proofs was that the condition of the limb at the time of the trial was wholly due to the injury, and not to disease; and the defendant had a right to rebut it. The answer given and proofs offered had a tendency to contradict the plaintiff’s claim.
Counsel, in opening the defense to the jury, stated that “the law does not require the village of Three Rivers — ” when he was interrupted by plaintiff’s counsel with the remark that the jury must take the law from the court; and the court interposed and said, “You have no right to state what the law is.” This ruling is assigned as error. The court was in error in confining counsel to a bare statement of facts. While counsel have no right to read law to the jury or to usurp the province of the court in this resjoect, they have the undoubted right to state so much of the law, as they claim it to be, as may enable them to lay before the jury an intelligent idea of the force, effect, and bearing of the testimony upon tbeir case, either before or after the testimony is in the case. Fosdick v. Van Arsdale, 74 Mich. 305.
Some other errors are claimed, but we do not think they are likely to occur on another trial, and they will not be noticed.
For the errors pointed out the judgment must be reversed, and a new trial ordered.
Hooker, C. J., McGrath and Montgomery, JJ., concurred. Grant, J., did not sit. | [
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Long, J.
Plaintiff recovered judgment against the defendant for $335, as damages in an action on the case for the malicious killing of her dog.
It was shown on the trial that plaintiff’s sons were walking along the highway. They were- accompanied by the plaintiff’s dog and two other dogs. When in front of defendant’s premises, the dog of plaintiff turned into the defendant’s grounds, just out of the highway, and approached a pond which ivas kept for lilies, apparently with intent to slake its thirst. Defendant, seeing it from the upper window of his house, went down into the lower hall, got his gun,' and, returning above, shot the dog from the upper window. It is not claimed that this dog had done any damage there at that or at any other time. On the trial the court permitted the defendant to show that upon several previous occasions other dogs had wallowed in this pond, destroying some of the plants there growing, and upon one occasion the owner of the dog, when remonstrated with by defendant, had called him vile names, and otherwise insulted and abused him. There was no fence in front of the premises, and this pond lay open to the highway.
At the close of the testimony, counsel for defendant asked the court to instruct the jury:
“3. If the court shall hold that this action can be maintained upon the facts disclosed in the plaintiff’s declaration, then we ask the court to .charge the jury that, in order to recover in thjs action, the plaintiff must show to the satisfaction of the jury that the defendant was moved to kill the dog through malice, either towards the dog or towards the plaintiff herself; that this must be shown by declarations of the defendant made before or at the time, showing a wicked and malicious purpose, or such facts and circumstances as naturally and logically lead to the conclusion that the defendant was actuated by malice, by ill will, hatred, or a desire for revenge.
“4. If the jury find from the evidence that the dog was committing a trespass upon the property of the defendant, and in shooting the dog the defendant was only seeking to prevent injury to his property, then there was no malice on his part, and plaintiff cannot recover,
“ 5. If the jury find that the plaintiff is entitled to recover, then, in estimating the* damages, they can only find the fair market value of the dog.
“ 6. In examining and weighing the testimony of the witnesses as to the value of the dog, they should scrutinize it closely, and see upon what knowledge they base their opinions. Mere opinions, not based upon a knowledge of the character and qualities of the dog, are not evidence of his value. Statements of witnesses of the market value of the dog in question, or of such dogs, who have never dealt in such dogs, nor ever known personally of dealings'by others, ought not to be received, except with great caution.”
These instructions were refused, and the court directed the jury substantially that the plaintiff was entitled to recover actual damages, which would consist of the value of the dog at the time it was killed; and that, even if the dog was committing a trespass at the time it was killed, and, in the opinion of the defendant, was about to destroy some of his plants, it would not be a justification for the killing, or in any way mitigate actual damages, because the law affords a remedy for the destruction of property caused by the beasts of another. The court further instructed the jury that there were but two questions for them to consider: (1) The value of the dog; and (2) was there malice?
Upon the last proposition the court directed the jury:
“If you find from the evidence that there was malice, and that these annoyances that I have mentioned did take place, you will consider those annoyances and those previous trespasses with a view of determining, in the first place, whether they fully rebut the claim of malice,— whether or not they afforded an excuse or cause for killing the dog, to the extent that it would take away the malice; and, if you find in the negative upon that question, you are at liberty to consider them, and ought to consider them, as mitigating damages which you would otherwise allow on account of the malice, if you find that the malice existed.”
It was claimed on the part of the plaintiff that, if the jury found that the killing of the dog was willful and malicious, the plaintiff, in addition to actual damages, was entitled to recover exemplary damages. IJpon this portion of the case the court directed the jury substantially that, while actual damages could not be mitigated by the fact that defendant had theretofore been annoyed by other dogs, yet, if they found that he had been so annoyed, or that he believed at the time that the plaintiff’s dog was about to destroy some of his property, they might consider whether these facts would entirely rebut malice; and if, notwithstanding those facts might be found to exist, they believed that defendant was actuated by malice, they might even then award exemplary damages, for, if the defendant-willfully and maliciously did the killing, exemplary damages would be recoverable.
We see no error in the charge. The testimony tended to show that the dog was valuable. It was a “ Gordon setter,’.’ eligible to registration, and some of the witnesses placed its value as high as $250. It had never, so far as this record shows, trespassed upon the defendant’s premises, nor had he in any manner been annoyed by it. On the day it was shot, it ran a few feet out of the highway to the edge of this lily pond, between which and the highway there was no fence, and, immediately as it reached the pond, defendant, without any warning to the boys who had it in charge, shot and killed it. The jury, under the charge as given, may or may not have found that the dog was killed willfully and maliciously, as the amount of the verdict is less than several of the witnesses placed its value; but there certainly was evidence which would have justified the jury in finding the act willful and malicious. The dog was not running at large, contrary to law, but was in the immediate charge of its keeper. It is settled in this State that dogs . have value, and are the property of the owner, as much as any other animal which one may have or keep. Heisrodt v. Hackett, 34 Mich. 283.
Usually, where an act is done with design, and from willful and malicious motives, the law compels full compensation, and full compensation may not be awarded by the payment of the actual value. Damages in excess of the real injury are never appropriate where the injury has-proceeded from misfortune, rather than from any blamable act; but, where the act or trespass complained of arises from willful and malicious conduct, exemplary damages-are recoverable. These damages are not awarded as a punishment to the wrong-doer, but to compensate the injured party. Wetherbee v. Green, 22 Mich. 311.
All redress in damages partakes to some extent of a punitory character, and the line between “actual” and what are called “exemplary” damages cannot be drawn, with much nicety. They are properly based upon all the circumstances of the aggravation attending it. The real purpose is to compensate the plaintiff for the injuries he-has suffered. Stilson v. Gibbs, 53 Mich. 280; Wilson v. Bowen, 64 Id. 133. It was said by Chief Justice Cooley,. in Stilson v. Gibbs, supra:
“ In other cases there may be a partial estimate of damages by a money standard, but the invasion of the plaintiff’s rights has been accompanied by circumstances of peculiar aggravation, which are calculated to vex and annoy the plaintiff, and cause him to suffer much beyond what he would suffer from the pecuniary loss. Here it is manifestly proper that the jury should estimate the damages with the aggravating circumstances in mind, and that they should endeavor fairly to compensate the plaintiff for the wrong he has suffered. But. in all cases it is to be distinctly borne in mind that compensation to the plaintiff is the purpose in view, and any instruction which is calculated to lead them to suppose that, besides compensating the plaintiff, they may punish the defendant, is erroneous.”
In the present case, the court below submitted to the jury the question whether the defendant was actuated by malice and was guilty of willful conduct in shooting the dog. The rights oí the defendant Yere fully protected, as all the circumstances prior to the commission of the act were permitted to be put in by the defendant, showing the annoyances he had had from other dogs, and the provoking and insolent conduct of the owners of the other dogs when remonstrated with by him. The jury found that these facts did not constitute an excuse for killing the plaintiff’s dog, and, we think, very properly. •
In eases of malicious injury, it is not necessary that there should be actual enmity towards the person injured. Brown v. State, 26 Ohio St. 176. In Wright v. Clark, 50 Vt. 130, it appeared that plaintiff’s dog drove a fox upon the land of defendant’s father. Defendant came up and shot the dog. On the trial he claimed that he was shooting at the fox, and accidentally shot the dog. No enmity appeared to have existed between the parties. The court charged that, if the defendant intentionally and wantonly shot the dog, they might give exemplary damages. It was held that such intentional and wanton shooting implied malice, and that the instruction given was correct.
Some other errors are claimed. We have examined them, and do not deem them of sufficient importance to notice, and they are overruled.
Judgment affirmed, with costs.
The other Justices concurred. | [
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Long, J.
This action was brought to recover upon two promissory notes, dated February 4, 1889, and executed and delivered to the plaintiffs’ agent in this State, but payable at plaintiffs’ office, at Toledo, Ohio. The defendant Peter Donnelly pleaded the general issue, and denied the execution of th‘e notes. The other defendants did not appear, and were defaulted:
It was admitted that, while the notes bore date as of Monday, they were in fact executed and delivered to the agent of the payees, in this State on Sunday. The court below ruled that, though the notes were executed and delivered in this State on Sunday, yet, the testimony showing that the office of the plaintiffs was in Ohio, and the contract to be performed there, that they were not void, under section 2015, How. Stat., as the laws of Ohio, and and not of Michigan, governed the transaction; and judgment was given in favor of the plaintiffs./'
It was not shown upon the trial what the statute laws of the state of Ohio were. The only contention upon this record is whether the question is to be determined by the law of the place where the notes were executed and delivered or by the law of the state where made payable. The notes were given for machinery. The contract of sale was made in this State, and the property delivered here. The notes were taken by the plaintiffs* agent on the delivery of the machinery; the whole transaction being closed on Sunday. How. Stat. § 2015, provides:
“No person shall keep open his shop, warehouse, or workhouse, or shall do any manner of labor, business, or work, or be present at any dancing, or at any public diversion, show, or entertainment, or take part in any sport, game, or play, on the first day of the week. The foregoing provisions shall not apply to works of necessity and charity, nor to the making of mutual promises of marriage, nor to the solemnization of marriages. And every person so offending shall be punished by fine not exceeding ten dollars for each offense.**
In Adams v. Hamell, 2 Doug. 73, it was held by this Court that a note made on Sunday was void, finder the provisions of the statute of 1838, which are similar to the provisions of How. Stat., above quoted.
In Tucker v. Mowrey, 12 Mich. 378, this Court, approving Adams v. Hamell, said:
“ The statute not only makes it a penal offense, but takes away the legal capacity of the parties to make a contract on that day. And, whether the supposed contract has been executed or remains executory, we think the rights of the parties are to be determined in the same manner as if no such contract had ever been made.”
/ The court below was in error in holding that the notes •could be enforced here by reason of being made payable in Ohio. Parties cannot be allowed to defy our laws, and recover upon a contract void from its inception under our ■statute, by making the place of payment out of the State.
It is an elementary principle that one who has himself participated in a violation of law cannot be permitted to assert in a court of justice any right founded upon or growing out of the illegal transaction. 7 Wait, Act. &. Def. p. 114; Myers v. Meirath, 3 Amer. Rep. 371.
The judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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Grant, J.
The respondent was cpnvicted of criminal libel under Act No. 210, Laws of 1885. Section 1 reads as follows:
“ That any person who shall falsely and maliciously, by word, writing, sign, or otherwise, accuse, attribute, or impute to another the commission of any crime, felony, or misdemeanor, or any infamous or degrading act, or impute or attribute to any female a want of chastity, shall be deemed guilty of a¡ misdemeanor, and, upon conviction thereof for the first offense before any court of competent jurisdiction, shall be punished by a fine not exceeding one hundred dollars and costs of prosecution, or imprisonment in the county jail of the county in which such conviction shall be had, not exceeding ninety days, or both such fine and imprisonment, in the discretion of the court."
Section 2 provides that no justice of the peace shall have jurisdiction to try any person for a second or subsequent violation, but that when one is charged with a second violation the justice must hold an examination, and bind the accused over for trial in the circuit court if he finds probable cause. 3 How. Stat. §§ 9315, 9315a.
The' portions of the three articles published in the Times, the newspaper edited by respondent, under the dates of October 20, 21, and 22, and set forth in the complaint, are as follows:
October 20: “The would-be humorous article in yesterday morning’s Mining Journal concerning the gasoline explosion in 'Berney, Black & Co.’s sweat box’ establishment on Saturday evening accused the editor of the Times of being sore, and endeavoring to do ‘ some roasting ’ himself. In that (as in thousands of other things) the ‘ monopoly sheet ’ was mistaken, and once more jumped at conclusions. ’Tis true the editor of the Times was the unlucky victim who was seated in the c infernal machine,’ and received a terrible roasting, but when the editorial item referred to was written he was unable to write or think of anything but his physical injuries. The author of that item is not classed as the editor of the Times, and does not desire to ‘roast'’ anybody, but while misfortune reigns he will endeavor to do business at the old stand. It is well understood that accidents will at times occur, but the •one of Saturday night was far more honorable than being ‘rotten-egged/ or having an ‘arm broken/ of which the, victims of both desire but little said."
October 21: “ The Times is not the only paper printed in Marquette at the present time that has been so unfortunate as to be represented by persons who do tricky things on the sly. But it intends to retain on its staff only such as can show a clean record for the past as well .as present life, and no man upon it can rise to the dignity of managing editor whose history is identified with institutions of a disreputable character, even if he does not bear upon his person the marks of adventure at such places."
October 22: “In ‘1873/while driving along a beautiful thoroughfare in 'Wisconsin, two vehicles collided, and, strange as it may seem, one person, an innocent, (?) peaceable, law-abiding citizen, was hurled to the ground, and received an injury, the marks of which he will carry to his grave. Again, strange as it may seem, the facts have just been •explained. There was no ‘ice in the wheels/and why the collision should occur is a mystery. It is fortunate that in this age of the world excuses are numberless, and even at the eleventh hour a sinner may try and seek redemption in various forms. About three years ago Dr. Goerrs (whom the victim of the above-claimed accident ridiculed as being a fakir) explained to the people of Marquette how the accident did happen, and produced $1,000 as a proof of his assertions, but the ‘Wisconsin unfortunate’ had neither money nor disposition to dispute the charge until after the doctor had left the city. Our ‘Wisconsin granger/ who brought nothing to this city aside from a brazen face, a vile tongue, contempt for his fellow men, and a hue and cry for monopoly, cannot expect, after eighteen years have elapsed, to try and pawn off such an unfortunate tale on an innocent public."
The complaining witness, Mr. Bussell, editor of the Mining Journal, met with an accident some years before these publications, in which his arm was broken. After the article of October 21 in the Times, Mr. Russell published an article in the Journal, stating how the accident occurred. ' The article of October 22 in the Times was written in reply to this. The complaint contained appropriate innuendoes, explaining the meaning of the article,- but did not set forth the exact language claimed to have been used by Dr. Goerrs in his speech to the people of Marquette. Respondent was convicted in both the justice's and circuit courts. In the circuit court his counsel moved, to quash the complaint for the following reasons:
1. Extrinsic matter should not have been introduced in. the complaint.
2. The complaint is bad for duplicity.
3. The articles published are not libelous in themselves..
4. While the complaint recites the statements of Dr. Goerrs, it does not allege that the libel was published of and concerning that matter.
This motion was overruled.
1. The extrinsic matter introduced into the complaint-was for the purpose of explaining the character and nature of the charge made in the publication complained of. It was not only proper, but essential, that the pleader should state this, where the meeting would otherwise be doubtful.' The article of October 22 referred to an explanation made-by Dr. Goerrs. The pleader stated that the respondent meant by this language to say that—
“Dr.- Goerrs had told and explained to the people of' Marquette correctly and truthfully * * * that the arm of said Russell had been broken while the said Russell was being ejected from a house of ill repute in Oshkosh, Wisconsin.”
This was sufficiently definite, and it was not necessary to-set forth the exact language claimed to have been used by Dr. Goerrs. The respondent fully understood the charge referred to, for one of his defenses was that he believed it to be true.
2. The complaint is not bad for duplicity. The three articles may fairly be construed together as making one charge and forming one offense. Not until the publication of the third article is any direct reference made to the specific charge that Mr. Russell's arm was broken in a house of ill fame, or to the specific charge made by Dr. Goerrs. The third article made clear what was meant by the first two, and thereby rendered the offense complete.
3. It requires no argument to show that the complaint charges an offense within the meaning of the statute. The act charged was degrading, and the complaint alleges that it was made falsely and maliciously.
4. ¥e think the complaint not open to the objection that it does not allege that the libel was published of and concerning the charge made by Dr. Goerrs. The reference in the third article to the statement made by Dr. Goerrs' rendered clear the meaning which before had been doubtful. It showed that the degrading act charged in the articles was that Mr. Russell was in a house of ill repute, and was ejected therefrom. By the publication respondent gave credit to the charge, and stated that it was true, and intended to do so. All that remained for the pleader to do was by the proper explanatory words to put the meaning beyond doubt, so that the respondent should know what he was required to meet.
5. Respondent offered to show by a witness that the facts alleged in the complaint as libelous had for a long time been currently reported and believed in the community, and that these facts had been so reported to him. This testimony was correctly rejected. The law does not permit persons to publish that one has been guilty of' criminal, infamous, or degrading acts, based upon public-rumors or current belief. The respondent made no effort, to determine the truth of the charge, nor upon the trial did he offer to prove its truth. In the heat of a newspaper controversy of no concern or interest to the public he published an article defaming the character of a citizen. Such conduct has no excuse, ■ either in law or morals. There were no justifiable ends to be accomplished by such publication.
I' think there is no error upon the record, and the court below should be directed to proceed to judgment.
Hooker, C. J.
Jackman was prosecuted for libel. The complaint and warrant (which take the place of an information) allege the publication of three articles in the issues of defendant’s newspaper, upon three consecutive days. The theory of the prosecution is that these article's, taken together, charge the complainant with a degrading-act, viz., of being at a house of prostitution in Wisconsin. The defendant’s counsel claim that each publication constitutes a separate and distinct charge.
The first says, in speaking of complainant and his business partner:
“ It is well understood that accidents will at times occur, but the one of Saturday night was far more honorable than being f rotten-egged,’ or having an farm broken,’ of which the victims of both desire but little said.”
The second says: “The Times, [defendant’s newspaper] intends to retain on its staff only such as can show a clean record for the past as well as present life, and no man upon it can rise to the dignity of managing editor whose history is identified with institutions of a disreputable character, even if he does' not bear upon his person the marks of adventure at such places.”
The third says, in substance: “In 1873, while driving * * * in Wisconsin, two vehicles collided, and, strange as it may seem, one person, an innocent, (?) peaceable, law-abiding citizen, * * * received an injury, the marks of which he will carry to his grave. Again, strange as it may seem, the facts have just been explained. * * * About three years ago Dr. G-oerrs (whom the victim of the above-claimed accident ridiculed as being a fakir) explained to the people of Marquette how the acci dent did happen, and produced $1,000 as a proof of his assertions, but the 'Wisconsin unfortunate’ had neither money nor disposition to dispute the charge until after the doctor had left the city. Our ' Wisconsin granger/ who brought nothing .to this city aside from a brazen face, a vile tongue, contempt for- his fellow men, and a hue and cry for monopoly, cannot expect, after eighteen years have elapsed, to try and pawn off such an unfortunate tale on an innocent public.”
The complaint alleges that some years before the publication complained of the complainant was injured, and his arm broken, by being thrown from a carriage in Fond du Lac, Wis., and that three years before making the complaint, at a public gathering of a large number of the citizens ,of Marquette, said injury was referred to in a public speech by a Dr. Goerrs, who then and there falsely gave the citizens of Marquette to understand, and charged indirectly, that said injury was occasioned by the forcible ejection of complainant from a house of prostitution in Oshkosh. The information charges that' the first of the articles was intended to charge that complainant had had an arm broken under dishonorable and disgraceful circumstances; that the second publication was intended to charge and give it out to be understood by the readers that the complainant did bear upon his person the marks of adventures at institutions of a disreputable character; and that the third publication meant that the statement of said Dr. Goerrs, that complainant’s arm had been broken while he was being ejected from a house of prostitution, was true. Each publication, as interpreted by the pleader, charges a degrading act, within the meaning of the statute. The information is therefore open to the objection of duplicity. 1 Bish. Grim. Proc. §§ 432-442; Tiff. Grim. Law (3d ed.) 375. Under this information and general verdict of guilty, it is possible that the jurors did not agree upon the commission of one and the same offense.
Upon other points we concur in the opinion of Mr. Justice Grant.
The conviction should be set aside, and a new trial ordered.
McGrath, Long, and Montgomery, JJ., concurred with Hooker, C. J. | [
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] |
Montgomery, J.
The plaintiff was the owner of land adjoining the right of way of defendant, and had planted trees upon the land within his inclosure, and very near to the fence which is claimed by him to mark the line. It is claimed by the defendant that as a' matter of fact the railroad company’s right of way included the lands upon which the trees were grown. It would appear, however, that the plaintiff had fenced in all the lands within his present inclosure many years ago, and it is probable that he has acquired title by adverse possession. However this may be, it appears to us that the case was tried below, on the part of counsel for both parties, with the understanding that the title to the soil upon which the -trees were growing was in the plaintiff. We shall treat the case, therefore, as though' the title to the land, up to the line of the fence, was in the plaintiff.
The branches of the trees in question overhung the right of way of defendant to such an extent that at times they brushed against the face of the engineer, when his duties required him to lean out of his cab for the purpose of maintaining a lookout. On the 24th of September, 1891, the employés of defendant trimmed the branches of the trees up to the line of the fence. No claim is made that the trees were damaged beyond this, or more than was necessary to remove the overhanging branches.
The questions presented are whether these overhanging branches constituted a nuisance; whether, as a nuisance, the defendant had a right to cause them to be removed; and whether, before removing them, it was necessary to serve notice upon the plaintiff, that he might have the opportunity to remove them; and, if so, whether the notice which he had of the defendant’s desire that they be removed was sufficient.
The plaintiff's testimony was as. follows:
“ These trees had grown so that their limbs and branches extended over the fence into the railroad company’s right of way 10 or 15 feet beyond the fence. In the spring of 1891, Mr. Sullivan, the road-master of the Michigan Central Railroad Company, came to me, and said that the trees and their overhanging branches were a nuisance to the railroad company for the reason that the engineers could not see ahead along the right of way on the curve there at my place. We talked awhile about the matter, and he finally offered me $10 for permission to cut down or remove the trees. I refused this offer. He said then,, ‘You had better take it, or some day I will get an order to cut down those trees, and then you won’t get anything.’ He also said that he would see the superintendent, and find out if the company would give me any more than $10 for the trees. Neither Sullivan nor any one else representing the railroad company ever-saw me about the trees after that, and I never received any other offer for my trees.”
The circuit judge instructed the jury as follows:
“ It is the view of the court that it was the duty of the railroad company, having operated that road with these branches there for so long a time, to have notified Mr. Hickey that they were an obstruction, to a certain extent, to the line of their road; that he must remove the branches, or remove his trees, or that they did not desire them any longer to grow upon their land,'which they had a right to do, without any reference to the obstruction of the view of the track; and that he must cut the branches, or remove the trees, or they would do so. Then, if he refused, they might, of their own motion, remove the branches from the line of the right of way. I base this opinion largely upon the case cited by counsel for the defendant, of Earl of Lonsdale v. Nelson, 2 Barn. & C. 302.”
We think this instruction was erroneous. It is stated, without limitation, in Wood on Nuisances (section 831):
“Any person injured by a nuisance, to the extent that he may maintain an action at law therefor, may remove so much of the nuisance as is necessary to secure to himself immunity from damage therefrom; but he must not be guilty of any excess therein, for, as to all excess of abatement, he will be a trespasser.”
At section 838 it is said:
“ The party judges at his peril, and if he errs in judgment he is answerable for all the damages that ensue; and if, in the exercise of the right, a breach of the peace is involved, he is answerable, by indictment, for the result.”
This general rule is, however, subject to exception. It is stated in Wade on Notice (section 4807¿):
“Where the act complained of is one of positive wrong or willful negligence, or the security of life or property is endangered, and the danger seems imminent, the party threatened with the injury may abate the same without giving notice to the wrong-doér, or waiting for him to remove it. Where, however, the nuisance is merely permitted to exist, and the case is not very urgent, notice, and an opportunity to remove it, is essential, before the complaining party would be justified in forcibly abating the same.”
The case of Earl of Lonsdale v. Nelson is understood to hold that nuisances created by act of omission may not be abated except after notice; but in the opinion in that case, by Justice Best, it was stated as follows:
“ There is no decided case which sanctions the abatement, by an individual, of nuisances from omission, except that of cutting the branches of trees which overhang a public road, or the private property of the person who cuts them. The permitting these branches to extend so far beyond the soil of the owner of the trees is a most unequivocal act of negligence, which distinguishes this case from most of the other cases that have occurred.”
This case is referred to in Jones v. Williams, 11 Mees. & W. 181, in which case the court, laying down the rule that the alienee of land upon which a nuisance .exists at the time of his purchase is not liable to an action without notice, said:
“We do not rely on the decision in The Earl of Lonsdale v. Nelson as establishing the necessity of notice in such a case, for there much more was claimed than a right to. remove a nuisance, viz., a right to construct a work on the plaintiff’s soil, which no authority warranted; but Lord Wynford’s dictum is in favor of this objection, for he states, that a notice is requisite in all cases of nuisance by omission, and the older authorities fully warrant that opinion, where the omission is the non-removal of a nuisance erected by another.”
It is worthy of noté that it was conceded in the briefs of the counsel in Jones v. Williams that the notice or request is unnecessary before abating the nuisance of overhanging branches, the reason being stated that any person may lawfully stand in the highway over which the trees hang, and there cut them.
In Cooley on Torts (page 567), it is stated:
“It is a nuisance if the branches of one’s trees extend over the premises of another, and the latter may abate it. by sawing them off.”
In Wood on Nuisances (section 112), it is said:
“ Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining' land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages, and an abatement of the nuisance, against the owner or occupant of the land on which they grow, but he may not cut down the tree; neither can he cut the branches thereof, beyond the extent to which they overhang his soil.”
See, also, Grandona v. Lovdal, 70 Cal. 161 (11 Pac. Rep. 623.)
The purpose of notice, in such case, when required, it is evident, is to give to the owner the opportunity of himself abating the nuisance. It is undisputed, from the testimony in this case, that the plaintiff knew that the railroad company claimed that these trees were a nuisance, and desired their removal. The fact that it went so far as to offer Mm $10 to do what he was legally bound to do did not, we think, confer upon Mm a right to exact further notice. He must be presumed to have known what his legal rights were. In the face of this, and with knowledge of the fact that the nuisance was objected to by the railroad company, he, in effect, said: “I refuse your offer of the gratuity of $10." We think he is not in a position to insist that' he was entitled to further notice.
The judgment will be reversed, with costs, and a new trial ordered.
Hooker, 0. J., McGrath and Grant, JJ., concurred. Long, J., did not sit. | [
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McGrath, J.
This is replevin for personal property seized by the defendant, a township treasurer, for the payment of taxes.
Unoccupied land, the title to a part of which was held by the son, by virtue of an unrecorded deed recently given by the father, was assessed as one parcel to the father, for a drain tax. After the seizure of the personal property, the father (plaintiff herein) tendered to defendant his proportionate share of the taxes, giving a notice in writing of the description of the parcel' owned by him, and refused to pay the remaining tax upon the parcel owned by his son, and, upon refusal of defendant to accept, demanded the return of the property seized; and, being refused by defendant unless he would pay the entire tax, the plaintiff brought replevin» The circuit judge held that, the authorities having jurisdiction to impose an assessment upon the plaintiff, and the same being in part valid, replevin would not lie for the property seized by the treasurer, and gave judgment against, plaintiff for the amount of the tax.
The property was seized for the payment of a tax regular-in form, and lawful on its face. Plaintiff was in no sense a stranger to the tax. Hill v. Wright, 49 Mich. 229.
The judgment is affirmed.
Long, Grant, and Montgomery, JJ., concurred. Hooker, G. J., took no part in the decision. | [
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Gribbs, J.
We concur in that part of Judge O’Connell’s opinion finding a fraudulent conveyance as discussed in part A of § vm of his opinion. However, the overwhelming evidence establishes fraud and an ample basis to pierce the corporate veil and permit plaintiff to recover the $697,952 for unpaid grocery products.*
Plaintiff argues that the trial court erred in not piercing the corporate veil of Metropolitan Grocery, Inc (New Metro), thereby permitting plaintiff to reach the assets of Amir Al-Naimi, Sandra Al-Naimi, and Atour Abro. We agree. In light of plaintiff’s evidence and the entire spectrum of relevant facts, the trial court should have pierced the corporate veil and per mitted plaintiff to recover against all individual defendants.
An appellate court’s review of a decision not to pierce the corporate veil is de novo because of the equitable nature of the remedy. Law Offices of Lawrence J Stockler, PC v Rose, 174 Mich App 14, 43; 436 NW2d 70 (1989).
As a general proposition, the law treats a corporation as an entirely separate entity from its stockholders, even where one person owns all the corporation’s stock. Kline v Kline, 104 Mich App 700, 702; 305 NW2d 297 (1981). This fiction is a convenience, introduced to serve the ends of justice. Allstate Ins Co v Citizens Ins Co of America, 118 Mich App 594, 600; 325 NW2d 505 (1982). However, when this fiction is invoked to subvert justice, it may be ignored by the courts. Id., citing Paul v Univ Motor Sales Co, 283 Mich 587, 602; 278 NW 714 (1938). See also Wells v Firestone Tire & Rubber Co, 421 Mich 641, 650, 651; 364 NW2d 670 (1984). The traditional basis for piercing the corporate veil has been to protect a corporation’s creditors where , there is a unity of interest of the stockholders and the corporation and where the stockholders have used the corporate structure in an attempt to avoid legal obligations. Allstate, swpra at 600.
There is no single rule delineating when the corporate entity may be disregarded. Papo v Aglo Restaurants of San Jose, Inc, 149 Mich App 285; 386 NW2d 177 (1986). As the Court held in Klager v Robert Meyer Co, 415 Mich 402, 411-412; 329 NW2d 721 (1982), “[t]he entire spectrum of relevant fact forms the background for such an inquiry, and the facts are to be assessed in light of the corporation’s economic justification to determine if the corporate form has been abused.” More recently, this Court has upheld the following standard for piercing the corporate veil:
“First, the corporate entity must be a mere instrumentality of another entity or individual. Second, the corporate entity must be used to commit a fraud or wrong. Third, there must have been an unjust loss or injury to the plaintiff.” [SCD Chemical Distributors, Inc v Medley, 203 Mich App 374, 381; 512 NW2d 86 (1994) (citation omitted).]
I
In the instant case, there was an abundance of evidence to show that New Metro was a “mere instrumentality” of Amir. There was evidence that Atour, New Metro’s president, took little, if any, active role in the business, and the trial court so found. The evidence was overwhelming that everyone knew that Amir was the de facto owner and operator of New Metro. Amir admitted that, over several years, his wholesale operations and his brothers’ stores loaned money back and forth to each other. Most importantly, New Metro assumed $400,000 in debt with no consideration as part of a package restructuring Amir and Sandra’s personal debt, and the trial court so found. Thus, upon review de novo, we conclude that New Metro was a “mere instrumentality” of Amir.
n
The second element required to pierce the corporate veil is that the corporate entity must be used to commit a fraud or wrong. This is, of course, the central issue of this appeal. It is true that fraud must be established by clear and convincing evidence and must never be presumed. See, e.g., Hi-Way Motor Co v Int’l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976). However, fraud may be established by circumstantial evidence. Goldberg v Goldberg, 295 Mich 380, 384; 295 NW 194 (1940). In other words, fraudulent or wrongful conduct may be inferred from other evidence. In light of this standard, the following evidence is relevant to the issue whether New Metro was used to commit a fraud or wrong upon plaintiff: .
(1) An extraordinary $400,000 inventory shortage in a three-month period. This is almost the entire portion of the total inventory received by New Metro during this time. Jerry Payne (plaintiff’s vice president of finance) testified that this was almost a one hundred percent inventory shortage and “typical” inventory shortages, in his experience, are in the neighborhood of one-tenth of one percent;
(2) Amir’s unpersuasive explanation that the inventory loss was due to “theft,” or labor problems.
(3) The dollar volume of New Metro’s orders increased dramatically (two to four times the prior weeks) in January 1991, and New Metro ceased paying for purchases. At the same time, Amir was facing foreclosure on his home if a restructuring of his and Sandra’s personal debt could not be reached; in less than a four-week period,.New Metro ran up a debt to plaintiff of about $690,000.
(4) Amir’s brothers owned and operated retail grocery stores that sometimes stored their grocery product at the Holden Street warehouse (increasing the likelihood that the $400,000 inventory was sold on the shelves of Amir’s brothers’ stores, even though no financial records of New Metro reflect this).
(5) In 1991, Amir’s expenses exceeded his reported income by over $200,000, based upon Van Conway’s calculations (Conway was plaintiff’s expert witness, a certified public accountant with forensic accounting experience).
(6) Even assuming that Amir’s testimony about borrowing funds from friends and family in 1991 is true, Amir’s personal lifestyle seemed unaffected by the major downturns in his business suggests that he was either incredibly optimistic or that he had another, unreported source of income (such as a $400,000 inventory would provide), and
(7) Amir negotiated a restructuring of his personal debt, in an agreement that saddles New Metro with $400,000 additional debt, at a time when New Metro’s own financial future was very uncertain (i.e., Amir had to know that putting a $675,000 debt load on New Metro was going to put it out of business).
It is generally held that fraud must be proved by “clear and convincing” evidence, rather than by the preponderance of the evidence. The voluminous transcript in this case reveals more than sufficient evidence to show fraud by a clear and convincing evidence standard. Fraud may be proved with “ ‘facts which are inconsistent with an honest purpose.’ ” Daugherty v Park, 289 Mich 561, 565; 286 NW 829 (1939) (citation omitted). In our view, certain of the individual transactions at issue (i.e., the inventory shortage, the increased purchases, the loans between Amir’s businesses and his brothers’ stores, and the discrepancy between Amir’s income and his expenses) when viewed with the portion of the restructure agreement that saddled New Metro with $400,000 in increased debt for no consideration, leads to but one conclusion: fraud. See Herman v Mobile Homes Corp, 317 Mich 233, 246; 26 NW2d 757 (1947):
“But after all it comes down to a question of good faith and honesty in the use of the corporate privilege for legitimate ends. If a corporation is owned and controlled by another and is manipulated by the owner for its own purposes and in its own interests to the prejudice of innocent third parties, or the public welfare, it may be necessary to limit such abuse of the corporate capacity or shield.” [Citation omitted.]
See also Papo v Aglo Restaurants, supra at 302, n 15, and the additional cases cited therein for the proposition that the corporate veil can be pierced even in the absence of fraud.
in
Finally, the third element necessary to pierce a corporate veil is that there must have been an unjust loss or injury to the plaintiff. The testimony reveals that New Metro placed orders in the $50,000 range for many months and that New Metro always timely paid its account from the inception of the business relationship until problems arose eight months later, in January 1991. Thus, the January incident was the first time any such problems had arisen. Additionally, as plaintiff notes, one accused of fraud may not raise as a defense the carelessness of the party defrauded. Rood v Midwest Matrix Mart, Inc, 350 Mich 559, 570; 87 NW2d 186 (1957). Plaintiff’s complaint seeks payment of $697,952 for unpaid grocery products.
The trial court clearly erred in its findings and conclusions. In light of plaintiff’s evidence and “[t]he entire spectrum of relevant fact,” Klager, supra at 411, the overwhelming evidence established fraud and an ample basis to pierce the corporate veil and permit plaintiff to recover against individual defendants Amir Al-Naimi, Sandra Al-Naimi, and Atour Abro.
Reversed and remanded. The trial court shall enter a judgment for plaintiff consistent with this opinion.
T. Pickard, J., concurred.
For a detailed summary of the facts of this case, see sections i-vn of Judge O’Connell’s opinion. | [
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White, J.
This is a suit under Michigan’s Environmental Response Act (mera) (Act 307), MCL 299.601 et seq.\ MSA 13.32(1) et seq., which arose after fuel oil stored in an above-ground tank connected to a residential furnace leaked, resulting in groundwater and soil contamination. The issue is whether defendant Porter & Heckman, Inc., a plumbing and heating repair business that serviced the furnace, was an “operator” of a facility or an “arrange[r] for disposal” of a hazardous substance under the mera, such that it may be held liable for contribution toward response costs incurred to remediate the contamination. The circuit court concluded that defendant neither operated the facility nor arranged for disposal of the fuel oil and granted defendant’s motion for partial sum mary disposition brought under MCR 2.116(C)(8) and (10). Farm Bureau appeals, and we affirm.
i
Farm Bureau Insurance Company (plaintiff) is the insurer and subrogee of the Carricos, who own property in Columbiaville, Michigan. The Carrico home on that property is heated by a furnace that uses oil; the oil is stored in an outdoor, above-ground storage tank that is connected to the furnace by a pipe. The tank holds approximately 200 to 250 gallons of fuel oil. Around the bottom of the fuel storage tank there is a spigot-like portion that connects to a small steel canister (the filter unit), within which sits a filter to trap impurities. This filter unit, like the fuel storage tank, is outdoors and is connected to the pipe that goes into the Carrico house and furnace.
In its complaint, plaintiff, as the Carricos’ subrogee, sought legal and equitable relief and alleged common-law negligence, malpractice, nuisance, violations of Michigan’s Environmental Protection Act, and violations of the mera. It alleged that defendant was in the business of supplying fuel to and servicing heating oil tanks and that at all times relevant to this action the Carricos contracted with defendant to supply and service their above-ground heating oil tank. Plaintiff’s complaint further alleged that on January 7, 1991, defendant made a service call to the Carrico home in response to a complaint that the house was not being heated, and that, after discovering that the stoppage was due to ice that had formed in a filter bowl (i.e., the filter unit) attached to the heating oil tank, defendant’s agent cleared the ice and installed a new filter, but did not install a new filter unit. The complaint alleged that because of ice expansion and corrosion of the filter unit, a hole had developed at the bottom of the filter bowl, which caused fuel oil to leak onto the ground, and that the leak caused extensive contamination of the Carricos’ and an adjacent neighbor’s properties. Plaintiff alleged that the contamination threatened the environment, including a lake around which many people live, and that it had been forced to spend large amounts of money to determine the extent of the contamination, which was not yet clear.
Defendant’s answer denied that it engaged in the business of supplying fuel. The answer admitted that on January 7, 1991, defendant replaced “the fuel filter which had become inoperative due to accumulation of water or condensation” within the heating oil tank, but that defendant did not replace the canister/filter unit because it was intact, was not leaking, and was functioning properly. Defendant denied that on January 7, 1991, the filter unit had a hole in it causing oil to leak out. Defendant’s answer included a host of affirmative defenses.
Defendant filed a third-party complaint against the Carricos, alleging that the Carricos were liable to defendant for all or part of the claims asserted against defendant, that the Carricos owed duties to owners of adjacent property that they breached by failing to inspect, test, or properly maintain heating equipment and its component parts, and that they failed to mitigate damages or take immediate corrective, action.
In response to an interrogatory asking if the allegedly defective equipment had been examined, plaintiff responded that a corrosion engineer and a mechanical engineer had examined the unit in June and July 1991 and April 10, 1992, and opined that the release occurred through a pin-size hole in the bottom of the filter canister. Plaintiffs answers also stated that the defect in the filter unit manifested itself when the tank “needed to be refilled earlier than normal. It was at that time, February 19, 1991, that the leak was found.” In response to an interrogatory asking plaintiff to state in detail what representations, if any, were made by defendant concerning mechanical repairs made, plaintiff responded that it had three invoices from defendant. Subsequent answers stated details about the three invoices. The first one was dated December 20, 1990, at which time no heat was being produced and defendant replaced the blower motor and v-belt; the second one was dated January 7, 1991, at which time no heat was being produced and defendant reset the electrodes and replaced a frozen fuel filter; and the third one was dated February 19, 1991, when defendant replaced the oil pump.
In subsequent interrogatories, plaintiff was asked to list all firms making fuel oil deliveries to the Carricos’ premises from January 1, 1989, through the date of the interrogatories. The Carricos answered by naming only Clark Fuel Oil. Plaintiff was also asked to state the date the furnace, tank, and component parts were purchased, along with the supplier and manufacturer, to which the Carricos responded, “I do not know when the furnace was purchased, it was in the house when I bought the house.”
Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), with respect to plaintiffs mera claim only, arguing it could not be joined for purposes of contribution under the act because it did not fall within any of the classes of potentially responsible persons set forth at MCL 299.612; MSA 13.32(12), quoted infra. Defendant attached to its motion an affidavit of Larry Porter, defendant’s president and co-owner, which averred that at all pertinent times defendant’s business generally included plumbing repair, heating and cooling, and the sale of water-conditioning equipment; that defendant at no time undertook to provide the Carricos with fuel oil or any other hazardous substance for consumption or heating purposes; that defendant at no relevant time arranged for disposal, treatment, or transport or engaged in the business of transporting fuel oil or any other similar hazardous substance; and that defendant at no relevant time had possession, ownership, or a possessory interest in either the Carrico or Smithson property.
Plaintiff’s response to defendant’s motion for summary disposition argued that a genuine issue of mate rial fact existed regarding whether defendant may be liable as having “otherwise arranged for disposal” of the heating oil under the mera, MCL 299.612(1)(d); MSA 13.32(12)(1)(d), quoted infra, and set forth the following factual statement: In its response to defendant’s motion, plaintiff noted that there was no dispute that there had been a release of a hazardous substance at the Carricos’ residence, which was a “facility” under the act, or that plaintiff had incurred response costs.
Around the first of January 1991, the Carricos noticed that the furnace which heated their residential dwelling at 721 Lakeshore Drive, Columbiaville, Michigan was not functioning. The furnace utilizes fuel oil for heat generation. The Carricos contacted Porter & Heckman, a company involved in the repair of furnace [sic] to come out and fix the problem. Unbeknownst to the Carricos, the canister [filter unit] housing the filter system attached to the fuel oil tank was damaged due to the freezing or excess water in the system. On January 7, 1991, Porter & Heckman’s repair person replaced a frozen fuel filter on the Carrico’s fuel oil tank. The repair person did not inspect nor [sic] replace the damaged canister housing. The water build up in the canister housing caused corrosion to the interior of the canister allowing fuel oil to flow out of the fuel oil tank. The leak was detected around February 19, 1991.
Since discovery of the release, the Carricos and Farm Bureau have had to retain the services of environmental consultants to investigate the extent of the contamination caused by the release. During an initial excavation phase, approximately 420 cubic yards of soil were removed. Further investigations are continuing to fully define the extent of the remaining soil and groundwater [contamination] at the Carrico residence. [ ]
The Smithsons, who are not parties to this appeal, also opposed defendant’s motion, arguing that defendant was either an “operator” under MCL 299.612(1)(b), (c); MSA 13.32(12)(1)(b), (c),. or “otherwise arranged for disposal” under MCL 299.612(1)(d); MSA 13.32(12)(1)(d).
The parties relied on cases interpreting the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (cercla), as amended, 42 USC 9601 et seq. The MERA is similar in intent to, and patterned after, the CERCLA; both provide for the identification of environmental contamination and for response activity to remediate it. Flanders Industries, Inc, v Michigan, 203 Mich App 15, 21; 512 NW2d 328 (1993). Both acts impose strict liability for cleanup costs on persons who fall within one of the enumerated categories of potentially responsible persons. MCL 299.612; MSA 13.32(12); 42 USC 9607(a). See Michigan Environmental Law Deskbook, vol I, § 6.43, pp 6-32, 6-33, and § 6-44, Kelley v Thomas Solvent Co, 727 F Supp 1532, 1539 (WD Mich, 1989), and Nurad, Inc v William E Hooper & Sons Co, 966 F2d 837, 841 (CA 4, 1992).
After hearing extensive argument from counsel at the hearing regarding defendant’s motion, the circuit court stated its conclusions from the bench:
The question presented in this particular motion simply refers to the Michigan Environment [sic] Response Act 307, in particular MCLA 299.601 et seq., whether Porter and Heckman is liable under that Act.
Porter and Heckman claim that the intent of the statute is to place liability upon the owner or operator of the property where [sic] hazardous substance has been released or becomes otherwise located, claiming they didn’t transport the contaminants and they don’t have an ownership interest in the contaminated property. Porter and Heckman argue that the Act does not apply to them.
Plaintiffs respond that the Act should be expansively construed to place the burden of clean-up on the parties responsible, for that party to arrange for the disposal.
. .. [N]umerous cases have been submitted, most of them . . . deal with the Federal cercla Act which is similar to the state Act with some differences and they’re the ones that interpret, they’re the ones that are being relied upon by Counsel and this Court to interpret the state Act.
In this particular situation, a release occurred of hazardous substances, that’s not in dispute. Furthermore, the home of the Plaintiffs can be classified as a facility under the Act. The language, or otherwise arranged for the disposal, is not defined in the Act. While the Courts outside Michigan have interpreted the disputed language in different situations, it’s up to this Court to determine how the language of the Michigan Act applies,- not the Federal Act.
Porter and Heckman came to the Plaintiff’s residence' to make repairs. It is alleged that these repairs were defective, thus causing contamination.
At this point, based upon the case law submitted and the arguments submitted, the Court does not see that there was any disposal conducted by Porter and Heckman. The Court does not see that they arranged for the disposal of any property, or any contaminants. The Court does not see that they were the operator of this particular valve, and at this point based upon the argument and the cases submitted, the Court has indicated the Court will grant the motion for partial summary disposition in regards to Act 307.
An order granting defendant’s motion for partial summary disposition was entered for the reasons stated on the record. This appeal ensued.
n
To establish a prima facie case under the CERCLA, a plaintiff must show that (1) a release of hazardous substances has occurred, (2) at a facility, (3) causing a plaintiff to incur response costs, and (4) the defendant is a responsible party. CPC Int'l, Inc v AerojetGeneral Corp, 777 F Supp 549, 570 (WD Mich, 1991), aff’d in part and rev’d in part on other grounds 59 F3d 584 (CA 6, 1995); 3550 Stevens Creek Associates v Barclays Bank of California, 915 F2d 1355 (CA 9, 1990); Hastings Bldg Products, Inc v Nat’l Aluminum Corp, 815 F Supp 228 (WD Mich, 1993) (stating that “[p]rivate suits under CERCLA are those which are brought against responsible parties in order to gain reimbursement for response costs”); Warwick Administrative Group v Avon Products, Inc, 820 F Supp 116 (SD NY, 1993), aff’d in part, reversed in part, and remanded sub nom United States v Cordova Chemcial Co of Michigan, 59 F3d 584 (CA 6, 1995).
The mera sets forth five categories of potentially responsible persons. MCL 299.612; MSA 13.32(12) states in pertinent part:
(1) Notwithstanding any other provision or rule of law and subject only to the defenses set forth in sections 12a and 12b, if there is a release or threatened release from a facility that causes the incurrence of response activity costs, the following persons shall be liable under his section:
(a) The owner or operator of the facility.
(b) The owner or operator of the facility at the time of disposal of a hazardous substance.
(c) The owner or operator of the facility since the time of disposal of a hazardous substance not included in subdivision (a) or (b).
(d) A person that by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of a hazardous substance owned or possessed by the person, by any other person, at the facility owned or operated by another person and containing the hazardous substance.
(e) A person that accepts or accepted any hazardous substance for transport to the facility selected by that person.
The term “person” is defined as:
“Person” means an individual, sole proprietorship, partnership, joint venture, trust, firm, joint stock company, corporation ... or any other legal entity. [MCL 299.603(w); MSA 13.32(3)(w).]
The terms “owner,” “operator,” and “facility” are defined in pertinent part as:
“Owner” means a person that owns a facility. Owner does not include [six exceptions are listed, none of which is at issue here]. [MCL 299.603(u); MSA 13.32(3)(u).]
“Operator” means a person that is in control of or responsible for the operation of a facility. Operator does not include any of the following [six exceptions are listed, none of which is alleged to apply here]. [MCL 299.603(f); MSA 13.32(3)(t).]
“Facility” means any area, place, or property where a hazardous substance has been released, deposited, stored, disposed of, or otherwise comes to be located. [MCL 299.603(m); MSA 13.32(3)(m).]
The cercla’s provisions are analogous.
m
Plaintiffs first argument on appeal is that defendant is liable under the MERA as an “owner or operator of the facility,” MCL 299.612(l)(a); MSA 13.32(12)(l)(a), and that to establish “operator” liability it is the authority to control the facility that houses the hazardous substance that must be established, and not the authority to control the hazardous substance. We first observe that plaintiff did not assert that defendant was an owner or operator in its brief in response to defendant’s motion; the brief argued only in favor of arranger liability. Counsel briefly addressed the operator issue during argument, referring to it as “Mr. Smithson’s argument,” and volunteering that the focus should be on the system and not the hazardous substance. The circuit court ruled on this issue only because it was raised by the Smith-sons. In any event, we are not persuaded that defendant is an owner or operator under the statute.*
With regard to the issue of operator, I only want to say this, that’s Mr. Smithson’s argument, and Don Hadden [counsel for the Smithsons below] will argue their position.
The statement that in order to be an operator you have to have the right, or the ability, or the authority to control the hazardous substance, I think absolutely misses the point. The issue here is the ability, if you will, to control the system which controls the hazardous substance. In this particular instance they had not only the authority, they had the ability to control the system. They had the ability to remedy the defect, or to protect against the very defect which delivered the hazardous substance into the environment. [Emphasis added.]
It is undisputed that defendant has never had an ownership interest in the property or the facility. The question is whether defendant is an operator under the statute. Because the scope of “operator” liability under MCL 299.612(b) or (c); MSA 13.32(12)(1)(b) or (c) has not been addressed by a Michigan state court, we look to federal case law interpreting similar issues under the cercla for guidance. See Haworth, Inc. v Wickes Mfg Co, 210 Mich App 222, 227-228; 532 NW2d 903 (1995), and Flanders, supra at 21.
Plaintiff first observes that “operator” has been defined as one with authority to control. This is correct. Nurad, supra at 841-844. We also accept plaintiffs contention that the focus is not simply on the authority to control the hazardous substance, but the facility. The Nurad court focused on “authority to control the operations involving the disposal of hazardous substances.” The Nurad court determined that the district court erred in finding that the “facility” was confined to the underground storage tanks (usts) where hazardous substances had been stored, but also rejected the plaintiffs argument that the entire site was the “facility.” Id. at 842-843. The court noted that, under § 9601(9), the only area where hazardous substances had “come to be located” was in and around the storage tanks:
The fact that those tenants may have had control over a building that was adjacent to the usts is irrelevant under the statute; a defendant operates a “facility” only if it has authority to control the area where the hazardous substances were located. Thus, while liability under § 9607(a)(2) is strict, it nonetheless extends only to those who have authority over the area where hazardous substances are stored. The statute places accountability in the hands of those capable of abating further environmental harm, while Nurad’s proposed definition of “facility” would rope in parties who were powerless to act. [Id. at 843 (citation omitted).]
Under Nurad, we conclude that while the focus is on the facility, an “operator” of the facility must have authority to control the operations or decisions involving the disposal of the hazardous substance. That defendant here was called to service the Carricos’ furnace, which was not producing heat, and at that time allegedly did not detect a pinhole in the filter bowl when checking the filter unit, does not render defendant a person with authority to control the Carricos’ furnace system and fuel storage tank. One who services a system does not automatically control the operation of the system.
Plaintiff also cites Kaiser Aluminum & Chemical Corp v Catellus Development Corp, 976 F2d 1338, 1341 (CA 9, 1992), for the proposition that “operator” liability attaches to the party that had “authority to control the cause of the contamination at the time the hazardous substances were released into the environment.” In Kaiser, Catellus’ predecessor sold land to the City of Richmond. The City of Richmond hired an excavator, Ferry, to excavate and grade a portion of the land for a proposed housing development. Id. at 1339. The City of Richmond later sued Catellus to recover part of the cost of removing contaminated soil from the property, and Catellus filed a third-party complaint against Ferry for contribution under the CERCLA. Id. at 1340. Catellus alleged that Ferry performed excavation, dredging, filling, grading, and other construction and demolition operations on the property in 1982. Catellus alleged that in the course of these operations, Ferry mixed substances, which plaintiff alleged were contaminants, with soil and other fill materials, and then dispersed the resulting mixture throughout portions of the property. Id. at 1342, n 6.
The district court concluded that Ferry was not a person who could be held liable under § 9607(a) and dismissed Catellus’ complaint for failure to state a claim. Id. at 1342. The Ninth Circuit Court of Appeals reversed, concluding that Catellus alleged facts sufficient to state a claim against Ferry under § 9607(a)(2), on the ground that Ferry was the operator of a facility, i.e., the development site, at which it disposed of hazardous substances. Noting that the activity that produced the contamination — the excavation and grading of the development site-occurred during the construction process, the court concluded that “Catellus’s allegations of Ferry’s operations on the property tend to show that Ferry had sufficient control over this phase of development to be an ‘operator’ under section 9607(a)(2).” Id.
The Kaiser court also discussed the potential “operator” liability of contractors, and interpreted a case involving contractor liability, Edward Hines Lumber Co v Vulcan Materials Co, 861 F2d 155 (CA 7, 1988), as reiterating the “well-settled rule that ‘operator’ liability under section 9607(a)(2) only attaches if the defendant had authority to control the cause of the contamination at the time the hazardous substances were released into the environment.” Kaiser, supra at 1341, citing Nurad, supra at 842.
In Hines, the owner of a plant at which wood was preserved brought suit against a contractor, Osmose, who had designed and built another wood-treatment plant, trained the plaintiff’s employees to operate the machinery, licensed the plaintiff to use its trademark in connection with treated wood, and supplied the plaintiff with the toxic chemical. The plaintiff promised to buy from Osmose its next five years’ requirements of chromated copper arsenate, which makes wood suitable for prolonged exposure to the elements if treated properly. Id. at 156. The plaintiff also gave Osmose “full and immediate access to the plant and to all chemical processes and products located thereon or produced thereby for the purposes of insuring quality control according to the osmose standards.” Id. Osmose promised to construct a system that would prevent the escape of the toxic preservative, and built the plant on a concrete platform, which would better trap any leaking chemicals. The plaintiff operated this plant for two years until 1978 and then sold it to another coiporation. In 1981, toxic sub stances, including chromated copper arsenate, were found in the groundwater. The Environmental Protection Agency asked the plaintiff and the successor corporation to remove the chemicals, and the plaintiff then filed suit seeking contribution from suppliers of wood-preserving chemicals, including Osmose. The Seventh Circuit Court of Appeals affirmed the district court’s grant of summary judgment in Osmose’s favor, expressing reasoning that is instructive in the instant case:
Osmose designed and built the plant, furnished the toxic chemical, trained Hines’s employees, and reserved a right to inspect ongoing operations. This must be enough, Hines submits, to make Osmose an “operator” within the meaning of the Superfund Act. It is easy to see the attraction of sweeping Osmose into the category of responsible persons. Since the facts and inferences must be taken favorably to Hines, the party resisting the motion for summary judgment, we must assume that Osmose came up with a defective design, did not build the plant to standard, trained Hines’s employees poorly in how to control the toxic chemicals, and hid all of this from the management at Hines and its successor Mid-South so that they omitted steps that could have rectified the problem sooner and cheaper. . . . The prospect of liability under cercla would induce a firm in Osmose’s position to take greater care in design, construction, and training, all of which would be beneficial____
It is not our function to design rules of liability from the ground up, however. We are enforcing a statute rather than modifying rules of common law. Osmose surely was not an “owner” of the Mena site, so it is potentially liable only if it was an “operator.” The statute does not fix liability on-slipshod architects, clumsy engineers, poor construction contractors, or negligent suppliers of on-the-job training — and the fact that Osmose might have been all four rolled into one does not change matters. The liability falls on owners and operators; architects, engineers, construction contractors, and instructors must chip in only to the extent that they have agreed to do so by contract. To the point that courts could achieve “more” of the legislative objectives by adding to the lists of those responsible, it is enough to respond that statutes have not only ends but also limits. [861 F2d 157 (emphasis added).]
We conclude that neither Kaiser nor Hines supports plaintiffs position. As in Nurad, the defendants in Kaiser and Hines were required to have authority to control the operation or process by which the contamination occurred. The Kaiser court determined that operator liability may attach by virtue of the defendant’s extensive operations on the property showing sufficient control over the construction process during which the contamination occurred. In fact, the defendant actually performed the operations that caused the contamination. In Hines, the court looked to the defendant’s lack of control of the work at the plant and its day-to-day operations.
Defendant’s involvement and authority in the instant case is not comparable. For purposes of this appeal, we accept as true plaintiff’s version of the facts, i.e., that a leak existed when defendant serviced the filter system on January 7. Defendant is not, however, rendered an operator simply because it failed to take action that might have prevented the contamination. Hines makes this clear. Defendant is in the business of plumbing and heating. The Carricos called defendant to service their furnace system. Defendant’s authority, which was temporary and very short-term, extended to inspecting and repairing the furnace in response to the January 7 and February 18 or 19 calls. There is no evidence of a written contract or agreement granting defendant general authority to operate and control the furnace system or fuel oil. Defendant’s authority and control were not that of an operator, but of a service company called to inspect and repair in response to a specific complaint. Further, there is no evidence that any operation of the system by defendant caused the leak and contamination or that defendant had control over the system as the oil was leaking and causing the contamination.
Plaintiff next cites United States v Northeastern Pharmaceutical & Chemical Co, Inc (NEPACCO), 810 F2d 726 (CA 8, 1986), for the proposition that a defendant need not own or possess the hazardous substance at issue to be liable under the CERCLA. Although this case does assert the proposition plaintiff relies on, that in order to be an owner or operator, one need not own or possess the hazardous substance involved, it does not support plaintiff, in that the court required that authority to control the disposal and handling of the hazardous substance be shown before extending liability. Id. at 743.
Plaintiff also cites United States v Consolidated Rail Corp, 729 F Supp 1461 (D Del, 1990), a case involving § 9607(a)(2) and (3), where several of the defendants, after being sued by the United States under the cercla, sought indemnification or contribution from a third-party defendant, Burke-ParsonsBowlby Corp. (bpb). The court rejected the third-party plaintiffs’ arguments, and granted bpb’s motion for summary judgment, concluding that bpb was not an operator of the involved facility under § 9607(a)(2):
“[T]he term ‘owner or operator’ means . . . any person who owned, operated, or otherwise controlled activities at such facility . . . .” Only those who “actually operate or exercise control over the facility that creates an environmental risk can be held liable under cercla for the costs of reducing that risk.” Edward Hines Lumber Co v Vulcan Materials Co, 685 F Supp 651, 657 (ND Ill, 1988) [aff'd 861 F2d 155 (CA 7, 1988)].
Although interpreted broadly, the statute requires that a person be actively participating in the management of the facility to be held liable for the disposal of hazardous wastes. [729 F Supp 1467-1468.]
This case provides no additional support for plaintiffs position.
Defendant cites Stilloe v Almy Bros, Inc, 782 F Supp 731 (ND NY, 1992), for the proposition that in order for “operator” liability to attach, there must be a nexus between a defendant and the hazardous substance, or control thereof. We agree.
In Stilloe, the plaintiff property owner had brought suit under the CERCLA, alleging that the defendant New York State Department of Environmental Conservation (dec) was an “operator”, of a facility and thus a potentially responsible party. The DEC moved for summary judgment, arguing that it was entitled to immunity and its only connection to the hazardous waste site at issue resulted from its remedial cleanup efforts. The district court initially denied the dec’s motion to dismiss, relying heavily on a statement in CPC Int’l, Inc v Aerojet-General Corp (Aerojet), 731 F Supp 783 (WD Mich, 1989), also a case involving a governmental defendant that invoked immunity, that “where a party assumes control of an activity and then fails to perform, that party should bear the responsibility for any pollution which results.” 782 F Supp 733, citing Aerojet, supra at 788.
On reconsideration, the Stilloe court abandoned its adherence to Aerojet:
Having now had the opportunity to review the facts of Aerojet in light of [several subsequent decisions], this court finds that dec’s activities are sufficiently different from those of the Michigan Department of Natural Resources (“mdnr”) in Aerojet to render that decision inapposite. In Aerojet, mdnr entered into a contract with the owner of a hazardous waste site under which mdnr assumed responsibility to operate groundwater purge wells to help reduce pollution and improve waste disposal at the site. See Stilloe, 759 F Supp at 102-03. In Aerojet, this contract provided the nexus between the owner of the property and mdnr by establishing an ongoing relationship. Here there is no such nexus. Nor do Stilloe or Almy Brothers allege that DEC took control of the site for any reason other than to perform its statutory responsibility to clean up the site. Accordingly, the court now concludes that Aerojet does not provide a basis for holding that under the circumstances of this case DEC is an operator within the meaning of cercla. [782 F Supp 733.]
The Stilloe court dismissed the dec on reconsideration, noting that the dec’s handling of hazardous waste barrels during cleanup activities, which barrels broke open while being moved, did not, standing alone, rise to the level of “operator” activity:
[N] either Stilloe nor Almy Brothers allege that dec had any nexus to the site other than by reason of its remedial clean-up activities ....
Even if . . . dec’s physical handling of the hazardous waste during its clean-up activities resulted in damage to plaintiff, this activity, without more, does not convert DEC into an operator within the meaning of cercla. Stilloe as well as Almy Brothers may very well have claims against dec, but they are not cercla claims. Rather, any claims that they might have against dec for its handling of the clean-up effort are state law tort claims which section 107(d)(2) specifically does not preclude. [782 F Supp 736.]
Although involving a governmental immunity arguments, the Stilloe court’s decision on reconsideration is instructive. Where the defendant’s nexus to the site of the hazardous substance is attenuated or limited— e.g., there is no ongoing contractual relationship between the defendant and the property owner, or the activity being performed is limited in nature — the requisite authority to control is not established, and operator liability may not be imposed.
We agree with defendant that Nurad, Stilloe, NEPACCO, Catellus, and Aerojet require that in order for operator status to apply, a defendant must have had authority to control the operations or decisions involving the disposal of the hazardous substance, or assumed responsibility of control over the disposition of the hazardous substance, and we conclude that these cases do not support imposition of operator liability on defendant under the MERA. The only connec tion defendant is alleged to have with the Carricos’ fuel tank is having been called to repair it. Plaintiff presented no evidence from which one could infer that defendant had any authority to control, manage, or operate the fuel tank as contemplated under the mera. Defendant was not involved in the purchase, sale, manufacture, transportation, or processing of the heating oil, nor did defendant possess the requisite authority to control the heating oil or the fuel tank. Defendant’s activities in this case were limited to taking action to remedy specific problems when called to do so and are too remote to rise to the level of operator liability. Even assuming that defendant was negligent in failing to discover a leak, and that by failing to take further action defendant failed to prevent the contamination, defendant still did not operate the facility.
We conclude that cases interpreting the mera’s analog, the CERCLA, do not support extension of liability to defendant under the circumstances presented here. A defendant’s involvement or activities vis-a-vis the hazardous substance at issue must rise to a certain level to invoke operator liability. Absent either actual ownership or possession of a facility, a nexus must exist between the defendant and the facility by which the defendant has assumed responsibility for, or managed, or had authority to control, or controlled, the operations involving the disposition or handling of the hazardous substance. We conclude that defendant’s repair activities on the Carricos’ furnace system do not rise to that level and that the circuit court properly dismissed claims of operator liability.
IV
Plaintiff last argues defendant is liable as one who “otherwise arranged for disposal” of a hazardous substance, i.e., the fuel oil that leaked from the Carricos’ fuel storage tank. Plaintiff relies on Florida Power & Light Co v Allis Chalmers Corp, 893 F2d 1313, 1318 (CA 11, 1990), for the proposition that such liability may be imposed on persons without active involve- merit in the timing, manner, or location of the hazardous waste disposal.
In Florida Power, the plaintiff purchaser and recycler of PCB-contaminated electrical transformers brought suit for contribution against manufacturers of the transformers, alleging that the manufacturers “arranged for” the disposal of hazardous substances under § 9607(a)(3). Id. at 1317. The plaintiff had, after purchase, utilized the transformers in the course of business for about forty years and then sold them to a third company as scrap. Id. at 1315. During that company’s reclamation process, its site was contaminated. The court noted:
Whether an “arrangement for” disposal exists depends on the facts of each case. If a party merely sells a product, without additional evidence that the transaction includes an “arrangement” for the ultimate disposal of a hazardous substance, cercla liability would not be imposed. [Id. at 1317.]
The Eleventh Circuit Court of Appeals affirmed the district court’s grant of summary judgment to the manufacturers, noting that the plaintiffs had not met their burden of demonstrating that the transactions involved were anything more than a sale, and that nothing in the record supported an inference that the manufacturers arranged for the disposal of hazardous waste by selling the transformers. Id. at 1319. While active involvement in the disposal is not essential, as in Florida Power, plaintiff here failed to otherwise establish arranger liability.
Plaintiff’s reliance on NEPACCO, Consolidated Rail, and Burlington Northern R Co v Woods Industries, Inc, 815 F Supp 1384 (ED Wash, 1993), is also misplaced. Although the NEPACCO court did note that actual ownership or possession of the hazardous substance is not a requisite to “arranger” liability, 810 F2d 743, it expressly stated that authority to control the handling and disposal of the hazardous substance “is critical under the [CERCLA] statutory scheme.” Plaintiff cites Consolidated Rail as supporting the proposition that “arranger” liability is imposed on parties responsible for disposal whether or not they generated the hazardous substances, but ignores that the court in that case relied on NEPACCO’s “authority to control” test:
The inquiry under section 9607(a)(3) turns on the determination of who made the crucial decision to dispose of hazardous substances under the Act, and thus falls within the class of responsible persons described in section 9607(a)(3). “It is the authority to control the handling and disposal of hazardous substances that is critical under the statutory scheme.” NEPACCO, 810 F2d at 743. [729 F Supp 1469 (additional citations omitted).]
Although the Burlington Northern court did state, as plaintiff argues, that ownership of the hazardous substance is not an essential element under § 9607(a)(3), the test the court relied on and applied was the “authority to control” test of NEPACCO. 815 F Supp 1392.
Another case plaintiff cites for the proposition that one need not have ownership or possession of the hazardous substance to be liable under the cercla, United States v Aceto Agricultural Chemicals Corp, 872 F2d 1373 (CA 8, 1989), does not support “arranger” liability here. The plaintiffs in Aceto alleged that six defendants were liable under the CERCLA because they “arranged for” the disposal of a hazardous substance by contract, agreement, or otherwise when they contracted with Aidex Corporation, which operated a pesticide formulation facility, to formulate (mix) their technical grade pesticides into commercial grade pesticides. Id. at 1375, 1378. The plaintiffs alleged that the generation of wastes containing hazardous substances was an inherent part of the formulation process, that the defendants retained ownership of their pesticides throughout the formulation and packaging process, and that Aidex in fact generated such wastes and disposed of them on the Aidex site. Id. at 1378. The district court held that the plaintiffs’ allegations were sufficient to hold the defendants hable as having “arranged for” the disposal of hazardous substances.
On appeal, the defendants argued that Aidex was hired to formulate, and not to “dispose,” and that Aidex, not they, owned the hazardous waste and made the decisions regarding how it would be disposed of or treated, and by whom. Id. at 1379. The defendants also argued that the plain meaning of the statute requires an intent to dispose of some waste, or, at the very least, the authority to control the disposal process, and that plaintiffs alleged neither. The Eighth Circuit Court of Appeals rejected the defendants’ arguments, and affirmed the denial of the defendants’ motion to dismiss, noting that there was no transfer of ownership of the hazardous substances, because the defendants retained ownership throughout:
Aidex is performing a process on products owned by defendants for defendants’ benefit and at their direction; waste is generated and disposed of contemporaneously with the process. . . .
Defendants nonetheless contend they should escape liability because they had no authority to control Aidex’s operations, and our NEPAGCO decision states “[i]t is the authority to control the handling and disposal of hazardous substances that is critical under the statutory scheme.” In NEPAGCO, we were confronted with the argument that only individuals who owned or possessed hazardous substances could be hable under cercla. We rejected that notion and imposed liability, in addition, on those who had the authority to control the disposal, even without ownership or possession. Defendants in this case, of course, actually owned the hazardous substances, as well as the work in process. NEPAGCO does not mandate dismissal of plaintiffs’ complaint under these circumstances. [872 F2d 1381-1382 (citations omitted; emphasis in original).] ■
Thus, the Aceto defendants’ liability was predicated on their having retained ownership of the hazardous substance, a situation not present in the instant case.
We conclude that defendant did not “arrange for disposal” of the heating oil. Plaintiff presented no evidence that defendant’s repair of the Carricos’ furnace system included any arrangement or representations other than those pertinent to repair, nor did plaintiff present evidence from which it could be inferred that defendant had authority to control the handling and disposal of the hazardous substance. Further, there is no evidence that defendant disposed of or arranged for the disposal of any substance.
Additionally, defendant’s supplemental brief on appeal cites a case decided during the pendency of this appeal, United States v Cello-Foil Products, Inc, 848 F Supp 1352, 1356 (WD Mich, 1994), rev’d 100 F3d 1227 (CA 6, 1996), which “tests the periphery of the meaning of ‘otherwise arranged for disposal.’ ” In Cello-Foil, a producer of solvents, Thomas Solvents, sold solvents to the defendants and delivered them to the defendants in fifty-five-gallon drums, generally charging its customers, including the defendants, a deposit, which was returned when the drums were returned. 848 F Supp 1355. The returned drums were generally taken to a facility of Thomas Solvents, where they were inspected, and then either sent for reconditioning or refilled. Those that were refilled were sometimes rinsed before being refilled, and the rinse dumped on the ground. Id. at 1355-1356. The district court rejected the government’s argument that the defendants’ agreement to return drums for their deposit to Thomas Solvents was an arrangement for disposal of the solvents. The Cello-Foil court held that the “arranged for” provisions in both the CERCLA and the mera are inapplicable absent a showing that the defendant intended to dispose of the hazardous substance. Id. at 1357. The court found persuasive the Seventh Circuit Court of Appeals’ analysis of the words “arranged for” — that the words “imply inten tional actions.” 848 F Supp 1357-1358, citing Amcast Industrial Corp v Detrex Corp, 2 F3d 746, 751 (CA 7, 1993) (Posner, J.). The court also noted that the Sixth Circuit Court of Appeals and the District Court for the Western District of Michigan had recognized the principle that arranger liability is dependent upon intentional conduct. 848 F Supp 1357-1358, citing AM Int’l, Inc v Int’l Forging Equipment Corp, 982 F2d 989, 999 (CA 6, 1993), and Kelley v Arco Industries Corp, 739 F Supp 354, 358 (WD Mich, 1990). On appeal, the Sixth Circuit Court of Appeals reversed, noting that although the district court correctly incorporated a state-of-mind requirement into the “otherwise arranged for disposal” concept, the court had employed an overly restrictive view regarding what is necessary to prove intent, state of mind, or purpose by assuming that intent could not be inferred from the indirect action of the parties and had overlooked genuine issues of material fact.
Here, the record is devoid of any evidence tending to show that defendant intended to dispose of the heating oil. Cello-Foil and the authority cited therein bolsters our conclusion that plaintiff failed to establish that defendant “otherwise arranged for disposal” of the hazardous substance. The circuit court properly granted summary disposition with regard to this claim.
We decline to address plaintiffs argument that a claim of negligent workmanship creates a separate cause of action under the mera, because the issue lacks apparent merit and was neither briefed nor argued below.
Finally, we observe that defendant’s summary disposition motion and this appeal address only defendant’s liability under the MERA. Plaintiff’s numerous remaining claims against defendant, alleging negligence and other theories, remain.
Affirmed.
The Legislature enacted the original mera in 1982 and, in 1990, added extensive amendments, including the provision codified at MCL 299.612; MSA 13.32(12). In 1994, Public Act 451 recodified the mera as Part 201 of the Natural Resources and Environmental Protection Act (nrepa), MCL 324.20101 et seq., MSA 13A.20101 et seq., and the recodified provisions took effect March 30, 1995. See Cipri v Bellingham Frozen Foods, Inc, 213 Mich App 32, 36; 539 NW2d 526 (1995), and Michigan Environmental Law Deskbook, vol I (1996 Supp), § 6.36, p 6-93.
MCL 299.612(1)(a)-(c); MSA 13.32(12)(1)(a)-(c), quoted infra.
MCL 299.612(1)(d); MSA 13.32(12)(1)(d), quoted infra.
At the times pertinent to this suit, MCL 299.612c; MSA 13.32(12c) stated in pertinent part:
(3) A person may seek contribution from any other person who is liable or may be liable under section 12 [quoted infra] during or following a civil action brought under this act.
On appeal, plaintiff alleges that the tank holds 270 gallons. This is not a material fact for purposes of our review, but we note that the record does not support that figure. Plaintiff’s counsel stated at the motion hearing that the tank held 200 to 250 gallons and cites that statement in support of the 270-gallon figure. Defendant attached to its appellate brief the deposition testimony of the Clark Oil representative who testified that he had been supplying the Carricos with fuel for a number of years. He testified that when he arrived at the Carricos on February 19, 1991, the tank was “approximately half full,” and had about one hundred gallons left in it.
The adjacent neighbors are the Smithsons, whose case was consolidated with the instant case by stipulation below. The Smithsons are not parties to this appeal.
Plaintiffs complaint had alleged that defendant supplied the Carricos with heating oil, but plaintiff dropped that allegation after defendant filed its motion for summary disposition.
Defendant opposes plaintiffs factual statement on appeal. Plaintiffs initial appellate brief included a factual statement devoid of citations of the record, and some facts included in the brief were not presented in plaintiffs response to defendant’s motion, although those facts were contained, to an extent, in answers to interrogatories contained in the lower court record. Plaintiff later filed a response brief to defendant’s appellate brief, which included the same factual statement, but with citations of the hearing transcript on defendant’s motion and of plaintiffs pleadings.
Defendant filed a response entitled “Appellee’s Response to Appellants’ Revised Statement of Facts,” which argued that plaintiffs citations in sup port of its “amended” factual statement were citations either of plaintiffs counsel’s statements at the hearing or of plaintiffs pleadings and argued that neither of these is evidence. Defendant further argued that a number of the factual statements were contradicted by the record.
On appeal, plaintiff’s statement of facts expands on the February 1991 sequence of events, stating that during February 1991, the Carricos were again without heat and, thinking their fuel tank was empty, contacted a local supplier of fuel oil, Clark Fuel Oil and Gas Service, for their tank to be filled. A Clark representative came to the Carricos’ house and noticed there was fuel oil left in the tank, topped off the tank, and suggested to the Carricos that they contact a heating repair person.
In excerpts of deposition testimony of one of defendant’s employees, attached to defendant’s appellate brief, the employee testified that on February 18, 1991, the employee and defendant’s service manager went to the Carricos’ house, after the Carricos complained to defendant’s service manager of losing oil from the tank. The employee testified that they arrived and inspected the area surrounding the tank and saw no indication or evidence of a leak. They had brought five gallons of oil with them to test for leaks, and during that test they noticed a slight wetness on the bottom of the canister housing the filter. They shut off the oil supply valve and examined the canister, seeing a slight wetness in one bottom portion, which the employee described as a “minute spot,” and although he testified that “there had to have been a leak there somewhere,” he testified that the leak was not visible. He testified that they went back to the shop to pick up parts, that he returned to the Carricos’ house later on the same day to replace the old canister unit, and that upon returning there was no evidence of leaking. He testified that he removed the oil line, removed the old canister, rebuilt the supply lines, screwed the new canister unit on, and turned on the supply valve, filled the unit back up with fuel oil, reconnected the supply line, bled the air off, and checked for leaks. The employee further testified that he returned to the Carricos’ house on February 19, 1991, after the Carricos complained they had no heat. He discovered the oil pump had failed mechanically, went to the shop for parts, and returned that afternoon and replaced the oil pump. He testified that on the 19th he had to go outside to shut off the oil supply and that he neither observed nor smelled any leaking. He further testified that after replacing the oil pump, turning on the oil supply, and seeing no evidence of leaks, he restarted the furnace.
In excerpts of deposition testimony of the Clark Fuel Oil representative that delivered fuel oil to the Carricos, also attached to defendant’s appellate brief, the Clark employee stated-that he had delivered fuel oil to the Carricos since September of 1988 for Clark, and before that for another business, and that his last delivery was on February 19, 1991. He testified that he delivered one hundred gallons of oil on February 19 in response to a specific request by the Carricos for that amount, and that they had told him they were out of fuel oil and that he should deliver one hundred gallons. When he arrived and put one hundred gallons of fuel in the tank, he could tell it had not been empty, and he advised the Carricos to get a furnace repair person. He further testified that when he made the delivery of fuel oil on February 19, 1991, he saw no evidence of any leaking. He testified that within a few days after February 19, Mrs. Carrico called him and told him the tank was leaking oil and asked if he could pump out the tank. He testified that by the time he arrived at the Carricos’ house within four or five days of the 19th, the tank was empty and the oil had been absorbed by the snow.
Attached to defendant’s second appellate brief, its response to plaintiff’s amended statement of facts, is a letter to Farm Bureau from an engineering firm dated July 24, 1991, the subject of which is “Report on Corrosion of Oil Filter Canister” on the Carrico file. It states in part:
1. CONCLUSIONS
Leakage of oil has come from a pinhole in the bottom of the canister. The pinhole has been caused by internal corrosion pitting. Pitting is attributed to water from the bottom of the tank entering the filter and settling to the bottom of the canister.
The leak rate we measured was such that 150 gallons or so of oil could have been lost in a month’s time.
2. TEST PROCEDURES
We visually examined the canister when we received it and could see no evidence of internal or external corrosion nor [sic] any pinholes. We next filled the can with water and noticed that dripping occurred from one point on the canister bottom. Upon wiping out the interior of the canister, we discovered pitting clustered about one area of the bottom. There was only one penetration, although there were several corrosion pits in the area near the penetration.
In order to simulate leakage under field conditions, we piped the filter up to a reservoir.
Thus, it is somewhat unclear exactly when the leak was discovered. There is also some inconsistency between the Clark Oil employee’s testimony that he delivered one hundred gallons on February 19 to a tank that already had one hundred gallons in it, and that when he returned four or five days later, after being called regarding a leak, he found the tank empty, and the report’s conclusion that the pinhole would allow the leakage of 150 gallons in a month’s time.
Also attached to defendant’s second appellate brief are excerpts from the Carricos’ deposition testimony indicating that neither of them observed the leaking.
It is not clear that the canister was damaged as of January 7, 1991, although we review these allegations in the light most favorable to plaintiff. The repair person’s deposition testimony was that, in addition to replacing the frozen filter, he inspected the canister carefully, by wiping it clean and shining a flashlight into it. He testified that he made sure that it was “clean as a bell on the interior,” and that it was sealed properly after he replaced the filter. He further testified that after he reassembled the unit, he checked for leaks.
In any event, defendant’s motion addressed defendant’s status under the mera, not the validity of plaintiff’s claims.
The comparable cercla provisions provide:
(a) Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section—
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be hable for—
(A) all costs of removal or remedial action incurred by the United States Government or a State .... [42 USC 9607.]
The term “person” “means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity . . . .” 42 USC 9601(21). The term “owner or operator” is defined at § 9601(20), in pertinent part, as:
(ii) in the case of an onshore facility . . . any person owning or operating such facility .... Such term does not include a person, who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect his security interest in the . . . facility.
The term “facility” is defined as:
(A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use . . . .” [42 USC 9601(9)].
Counsel stated:
We note as well that plaintiff relies on MCL 299.612(1)(a); MSA 13.32(12Xl)(a), while the Smithsons relied on subsections b and c. Subsection a, however, is clearly inapplicable. The terms “owner” and “operator” are defined under the mera in the present tense, see MCL 299.603(t)-(u); MSA 13.32(3)(t)-(u). MCL 299.612(1)(a); MSA 13.32(12)(1)(a) states that liability for incurrence of response activity shall attach to “the owner or operator of the facility.” We thus interpret this provision as applying to current owners or operators of a facility. This interpretation is consistent with MCL 299.612(1)(b) and (c); MSA 13.32(12)(1)(b) and (c), the remaining “operator” provisions, in that they apply to noncurrent operators; provision b applies to operators of the facility at the time the disposal occurred, i.e., former operators, and provision c to operators of the facility since the time of disposal of the hazardous substance. Our inteipretation is also in accord with decisions interpreting the analogous cercla provision, § 9607(a)(1), which, although worded in the conjunctive, has been interpreted as applying to current owners and operators, generally meaning the individual or entity owning or operating the facility at the time a lawsuit is brought. Kerr-McGee Chemical Corp v Lefton Iron & Metal Co, 14 F3d 321, 325 (CA 7, 1994) (interpreting § 9607(a)(1) as written, in the conjunctive); United States v Fleet Factors Corp, 901 F2d 1550, 1554 (CA 11, 1990) (interpreting provision in the disjunctive, as applying to either current owners or current operators); Tanglewood East Homeowners v Charles-Thomas, Inc, 849 F2d 1568, 1572 (CA 5, 1988) (applying provision to present owner of property previously contaminated, apparently applying disjunctive interpretation); New York v Shore Realty Corp, 759 F2d 1032, 1044 (CA 2, 1985) (applying provision to all current owners and operators).
Defendant asserts that a particularly helpful case regarding both “operator” and “arranger” liability is United States v New Castle Co, 727 F Supp 854 (D Del, 1989). Defendant argues, and we agree, that the New Castle court stated that the clear language of the cercla imposes liability upon those who actually operate or control a “facility” under the statute. New Castle involved lybouts Comer, a site envisioned as a model landfill that would be regulated by the State of Delaware under a then newly enacted Solid Waste Disposal Code. Id. at 862. Because the site was to be a model, the state involved itself in the site selection, planning, design, operations, and determination of suitable types of wastes for disposal. As part of the permit approval process, the state required the submission of detailed information about the site, its surrounding area, and proposed operational procedures, in order to ensure to the greatest extent possible that approval would be given to sites that were designed and operated to be environmentally safe. The state argued that the language of § 107(a) of the cercla plainly indicates that the State is not a potentially responsible party, and that the mere granting of permits, and regulatory actions, does not rise to the level of actions of an operator or one who arranges for the disposal of hazardous wastes. Id. at 864. The New Castle court noted that the cercla definition of “operator” gives little guidance to the courts and concluded, after analyzing a number of cases, including NEPACCO, supra, that “ ‘[mjere ability to exercise control as a result of the financial rela tionship of the parties is insufficient for liability to attach. The entity [or person sought to be strapped with liability] must actually exercise control,’ ” New Castle, supra at 866, quoting Rockwell Int’l Corp v IU Int’l Corp, 702 F Supp 1384, 1390 (ND Ill, 1988), and that this “ ‘does not include the designer or builder of a manufacturing system at a site containing the facility,’ ” New Castle, supra at 866, quoting Edward Hines Lumber Co v Vulcan Materials Co, 685 F Supp 651, 657 (ND Ill, 1988). The New Castle court distinguished the case before it from cases in which liability “was asserted against a person who had commercial, financial or proprietary interests at stake in relation to the hazardous substance” and noted that the state “did not participate or have the ability to control the Site with any proprietary or financial [or commercial] interests at stake.” 727 F Supp 866.
Plaintiff also argues that the circuit court’s ruling ignored the driving force behind the mera and the cercla that response costs are charged to persons who caused contamination, and that defendant is liable “because it caused contamination.” Plaintiff at one point argues in this regard that defendant should be held responsible for response costs, “not necessarily because it had authority over the tank or the fuel oil, but simply because its negligence caused contamination.”
Case law is legion stating that under the cercla a plaintiff must establish that a defendant falls within one of the categories of potentially responsible persons. 3550 Stevens Creek Associates v Barclays Bank of California, 915 F2d 1355 (CA 9, 1990); Hastings Bldg Products, Inc v Nat’l Aluminum Corp, 815 F Supp 228 (WD Mich, 1993) (stating that “[pjrivate suits under cercla are those which are brought against responsible parties in order to gain reimbursement for response costs”); Warwick Administrative Group v Avon Products, Inc, 820 F Supp 116 (SD NY, 1993), aff’d in part, rev’d in part, and remanded sub nom United States v Cordova Chemical Co of Michigan, 59 F3d 584 (CA 6, 1995). Plaintiff cannot circumvent this prima facie requirement by broad-brush references to legislative histories. The CPC Int’l case, which clearly states this prima facie requirement, is one of the cases plaintiff relies on to support its argument that defendant is liable because it caused contamination.
In NEPACCO, supra, the court also discussed individual liability under the cercla for any person who arranged for the disposal or transportation for disposal of hazardous substances. The Eighth Circuit Court of Appeals rejected a defendant’s argument that he could not be held individually hable because he did not personally own or possess the hazardous substances. 810 F2d 743. The court agreed with the government that as NEPACCO’s plant supervisor, the defendant had actual control over the hazardous substances and thus “possessed” the hazardous substances within the meaning of § 9607(a)(3). The court noted:
It is the authority to control the handling and disposal of hazardous substances that is critical under the statutory scheme. The district court found that Lee, as plant supervisor, actually knew about, had immediate supervision over, and was directly responsible for arranging for the transportation and disposal of the NEPACCO plant’s hazardous substances at the Denney farm site. We believe requiring proof of personal ownership or actual possession of hazardous substances as a precondition for liability under cercla § 107(a)(3), 42 USC § 9607(a)(3), would be inconsistent with the broad remedial purposes of cercla. [Id. at 743.]
AM Int’l was an action brought by the seller of real estate and manufacturing equipment against the purchasers. The Sixth Circuit Court of Appeals held that the sale of a building containing useful chemicals does not constitute an arrangement for disposal by the seller, where the seller intended that the chemicals be used in the continued operations at the building, and the chemicals were not transferred with disposal in mind. 982 F2d 998. The court noted that liability only attaches to parties that have taken an affirmative act to dispose of a hazardous substance as opposed to conveying a useful substance for a useful purpose. Id. at 999.
Kelley involved a suit by a manufacturer against a supplier of neoprene compounds it used in manufacturing rubber products. The manufacturing process included leaching the rubber products manufactured from the neoprene and disposing of the resulting wastewater in a lagoon behind its plant. 739 F Supp 356. Neoprene contained hazardous substances that were leached out in this process. The manufacturer argued that sellers of a hazardous substance should be liable under § 107(a)(3) where the hazardous substance is not a necessary component of a useful product. Id. at 357. The Kelley court noted the rule that the sale of a useful product that contains a contaminant does not subject a seller to cercla liability, and that an affirmative act beyond the sale is necessary for liability for having “arranged for disposal” to attach. Id. at 358. | [
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Per Curiam.
Claimants Robert Robinson and his father, Carey Robinson, Jr., appeal as of right a 1994 order forfeiting property relating to Robert’s drug-dealing activities. We vacate in part and remand in part with respect to the forfeiture of cash found in Carey’s basement ceiling and reverse with respect to the furniture found in Robert’s apartment.
Claimants first contend that the trial court erred in denying their motion for a directed verdict. They claim that the prosecutor failed to produce evidence to prove that the cash and furniture at issue were proceeds of drug trafficking. “Any thing of value that is furnished or intended to be furnished in exchange for a controlled substance, . . . that is traceable to an exchange for a controlled substance, ... or that is used or intended to be used to facilitate any violation of [the controlled substances act],” is subject to forfeiture. MCL 333.7521(1)(f); MSA 14.15(7521)(1)(f). “In Michigan, forfeiture proceedings are in rem civil proceedings and the government has the burden of proving its case by a preponderance of the evidence.” In re Forfeiture of $15,232, 183 Mich App 833, 836; 455 NW2d 428 (1990). To evaluate a motion for a directed verdict, a court considers the evidence in a light most favorable to the nonmoving party, making all reasonable inferences in favor of the nonmoving party. Garavaglia v Centra, Inc, 211 Mich App 625, 632; 536 NW2d 805 (1995). “Possession of [United States currency] is prima facie evidence of ownership and the burden of producing evidence regarding ownership rests upon the person disputing such ownership.” In re Forfeiture of $19,250, 209 Mich App 20, 27; 530 NW2d 759 (1995).
The prosecution met its burden of proof regarding the cash found in the ceiling of Carey’s basement. The prosecution demonstrated that Robert was involved in drug trafficking and had probably concealed his cash proceeds. It established that he had access to his father’s residence, that he collected mail there, and that he used that address when he registered his vehicles. The officers who conducted the search testified that Carey was surprised when he learned of the cash found in his basement. The cash at issue was a large amount and was found in the ceiling of Carey’s basement. Considering the evidence in the light most favorable to the prosecution, the prosecution carried its burden of proving by a preponderance of the evidence that the cash seized was substantially related to the drug trafficking. The trial court properly denied claimants’ motion for a directed verdict regarding the seized cash.
However, we find that the prosecution failed to meet its burden regarding the furniture found at Robert’s apartment. The prosecution provided compelling evidence that Robert was involved in drug trafficking. But it failed to produce evidence establishing any link between the furniture and the drug trafficking that would make the furniture subject to forfeiture under § 7521(l)(f). Obviously, many factors may be relevant in determining whether seized property is linked to drug trafficking. For example, a prosecutor might meet this burden by presenting evidence showing that a claimant purchased the property at issue at a time when he had no alternative source of income or savings other than drug trafficking. Evidence regarding the value of seized property, the manner of payment therefor, and the connection in time of such purchases to drug deals may also aid the prosecution in meeting its burden. Here, a police officer testified that he assumed that the furniture was the proceeds of the drug trafficking because Robert had been unemployed for some time when arrested. This is mere supposition and insufficient to establish that Robert used drug proceeds to purchase the furniture. The trial court simply concluded that “all of the items he owned were more than likely purchased with proceeds from the illegal sale of drags.” Section 7521(l)(f) requires more than such conclusory evidence linking property to drag activities in order to subject the property to forfeiture. In the absence of more substantial evidence indicating that the furniture was purchased with drag proceeds, the trial court erred in denying claimants’ motion for a directed verdict with respect to the furniture.
Claimants next contend that the officers’ failure to comply with MCL 780.655; MSA 28.1259(5) mandates reversal of the forfeiture order. MCL 780.655; MSA 28.1259(5) states, in pertinent part:
When an officer in the execution of a search warrant finds any property or seizes any of the other things for which a search warrant is allowed by this act, the officer, in the presence of the person from whose possession or premises the property or thing was taken, if present, or in the presence of at least 1 other person, shall make a complete and accurate tabulation of the property and things so seized... . The property and things so seized shall be safely kept by the officer so long as necessary for the purpose of being produced or used as evidence on any trial.
Here, the officers did not count the cash in Carey’s presence. Nor did they sequester the cash to preserve it for trial. They merely deposited it in a bank account. Plaintiff does not dispute the contention that the police failed to comply with § 5; - we therefore assume, without deciding, that the police violated § 5 here. We believe that such conduct seriously undermines the balance established by the Legislature between the encouragement of effective law enforcement activities and the maintenance of the integrity of such activities. Carey contends that these violations of the statute prejudiced him because they inhibited his ability to prove his claims that the police seized more than the $25,505 in cash reported and that the money was his, rather than his son’s, e.g., by testing the cash for fingerprints or traces of drugs.
In People v Tennon, 70 Mich App 447, 448; 245 NW2d 756 (1976), the lower court found that there was no evidence that a tabulation of seized evidence was made in the defendant’s presence as required by § 5. The Tennon Court noted that no evidence suggested that the search warrant at issue had been issued or executed illegally. Id. at 449. It stated:
Rather, the conduct questioned involved the ministerial duty to tabulate an inventory or property in a certain manner, primarily so as to avoid any possible mistake, theft, wrongful inclusion or later surprise at trial by parties handling defendant’s property. [Id. ]
The Court held that the reasoning behind § 5 “cannot be related to or tested by the constitutional rights and safeguards that Mapp [v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961)] and its progeny were meant to protect.” Tennon, supra at 449. It concluded that such a ministerial defect “ ‘did not void the effectiveness of the warrant or contaminate the evidentiary value of the property seized under the warrant.’ ” Id. at 450, quoting People v Phillips, 163 Cal App 2d 541, 548; 329 P2d 621 (1958). In People v Myers, 163 Mich App 120, 122; 413 NW2d 749 (1987), this Court held that “ [i]t is clear that not every violation of MCL 780.655; MSA 28.1259(5) amounts to error requiring reversal.” It held that any defect in failing to give the defendant a copy of the search warrant at issue was “hypertechnical in nature and did not prejudice defendant and, as a result, the evidence seized pursuant to the search warrant should not be suppressed.” Myers, supra at 122. Similarly, this Court held in People v Lucas, 188 Mich App 554, 573; 470 NW2d 460 (1991), that a “hypertechnical” violation of § 5 did not require suppression of the evidence, “particularly where defendant cannot articulate any harm or prejudice that resulted.” Accordingly, even in the context of criminal proceedings, suppression of the evidence is not a necessary remedy for a violation of § 5.
To determine the appropriate remedy for a violation of § 5 where a claimant alleges prejudice arising therefrom in a forfeiture proceeding, we first consider the interests protected by § 5. The Tennon Court expressed the interest behind the tabulation require ment as avoiding “any possible mistake, theft, wrongful inclusion or later surprise at trial by parties handling defendant’s property.” Id. at 449. We note that § 5 states that if the person from whom property is seized is not present, it is sufficient for “at least 1 other person” to be present when the officer makes a tabulation. This language suggests to us that the principal focus of the statute is to ensure police integrity rather than to create a personal legal right in the claimant. The preservation of evidence for the benefit of a party from whom property is seized is a clear benefit of § 5 but only an incidental one. In light of this purpose, the principal guarantor of § 5 will be the internal disciplinary procedures of the police themselves and the direction of responsible officials within the communities within which the police operate. As indicated above, we believe that violations of such statutory requirements must be treated seriously.
Next, we consider whether there are remedies, short of summarily returning seized property to a claimant, that would effectively redress violations of § 5. Here, Carey claims that the officers seized more than the amount of cash reported and that the money seized belonged to him, not to his son. He argues that the violations of § 5 prejudiced his ability to prove these claims. Because § 5 places procedural obligations on the police, a remedy must be fashioned to attempt to make a claimant whole when police violations of § 5 result in the loss of relevant evidence. Recognizing that any remedy must balance competing interests, we conclude that an effective remedy for a violation of § 5 is normally to instruct the factfinder that it may infer that evidence unpreserved because of violations of the statute would have favored the claimant. In other words, a violation of § 5 resulting in the loss of relevant evidence raises a rebuttable presumption that the unpreserved evidence would have been adverse to the police. The police thus act at their peril when they fail to observe the requirements of § 5. The effect on a forfeiture proceeding of this presumption that unpreserved evidence would have favored the claimant will, of course, depend on how probative the lost evidence is of the ultimate issue: whether the property is linked to criminal activity. Although not at issue here, we specifically note that evidence that the police intentionally violated § 5 might make a property seizure sufficiently questionable that the factfinder might conclude that the seized property must be returned to the claimant regardless of evidence connecting it to criminal activity.
Here, the effect of this remedy would be that the factfinder could presume that Carey’s fingerprints would have been found on the seized cash and that neither Robert’s fingerprints nor traces of cocaine would have been found on it. We believe that even if such evidence could have been obtained from the cash, it would not have excluded the possibility that the cash at issue was proceeds of Robert’s drug activity. Indeed, we do not believe that such evidence would have been likely to have resulted in a contrary decision by the factfinder. In ruling with regard to claimants’ motion for summary disposition, the trial court drew a similar conclusion:
Even assuming what you say is trae, the remedy is, at most, that the fact finder is instructed . . . that if this money had not been removed from the ability of the defendant to have it tested, that it would have showed that he had his fingerprints on it. And then the judge would give whatever weight for that, potentially. I could see that as a likely remedy since I think you’re right that the statute says, and I’ve indicated this before, that the police or prosecutor at their own peril don’t keep all property they want to forfeit available, whether it’s cash or anything else.
Further, the issue whether the police seized more than the amount of money reported becomes an issue of credibility for the factfinder. The trial court’s findings at the conclusion of the forfeiture hearing indicate that it considered Carey’s contentions that the police seized more cash than was reported and that the cash found belonged to him, not Robert. However, because we here delineate a rebuttable presumption as an appropriate remedy for violations of § 5, we vacate the forfeiture order regarding the cash seized from Carey’s basement ceiling and remand for consideration of the effect of the police violations of § 5 on this forfeiture in light of this opinion.
Carey next claims that the trial court erred in finding that he was a less credible witness than the officers. “This Court reviews a trial court’s findings of fact for clear error.” Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App 165, 171; 530 NW2d 772 (1995). “[(Questions of credibility and intent are properly resolved by the trier of fact.” Id. at 174. Carey claims that the trial court resolved the credibility dispute on the basis of a mistaken understanding of a connection between a robbery at Carey’s mother’s house and his acquisition of false-bottom cans for storing money. Even if we assume that the trial court misunderstood the connection between these factors, there was ample basis for the court to question and disbelieve Carey’s testimony indicating that the money seized was his own. He also complains that the trial court failed to discount the credibility of the police officers on the basis of discrediting evidence (e.g., inconsistencies between their testimony and evidence that they failed to comply with the requirements of § 5.) The record indicates that the court was aware of this evidence. We find no clear error in the trial court’s assessment of the credibility of Carey and the police officers. See MCR 2.613(C).
Carey next claims that the cash was seized pursuant to an invalid warrant. He claims that the warrant was invalid because it did not state with particularity the items to be seized and because it was based on the uncorroborated allegations of an informant. “Under both federal constitutional law and Michigan search and seizure law, the purpose of the particularization requirement in the description of items to be seized is to provide reasonable guidance to the executing officers and to prevent their exercise of undirected discretion in determining what is subject to seizure.” People v Zuccarini, 172 Mich App 11, 15; 431 NW2d 446 (1988). “The degree of specificity required depends on the circumstances and types of items involved.” Id.
Here, the search warrant covered “[a]ll monetary and material proceeds of controlled substance trafficking including safe deposit box keys, real estate records, phone books, magnetic storage material and items indicative of controlled substance trafficking . . . .” This language is similar to the language found sufficiently specific in Zuccarini. Id. at 15-16. The specification that the items be related to drug trafficking placed an adequate limit upon the officers’ discretion. Accordingly, the search warrant at issue met the particularization requirement. The search warrant at issue was based on a police officer’s affidavit. Although the officer alleged that he first learned of Robert’s drug activities through a confidential informant, the remainder of the allegations in the affidavit were based on the police investigation of Robert. The affidavit fully complied with MCL 780.653; MSA 28.1259(3).
Finally, claimants claim that the forfeiture order violated Austin v United States, 509 US 602; 113 S Ct 2801; 125 L Ed 2d 488 (1993). In Austin, the United States Supreme Court held that statutory in rem forfeitures are, at least in part, punitive in nature. Id. at 619. Accordingly, it held that they were subject to the limitations of the Eighth Amendment’s Excessive Fines Clause. Id. at 622. Relying on Austin, claimants argue that the forfeiture violated the Double Jeopardy Clause, US Const, Am V; Const 1963, art 1, § 15. However, the United States Supreme Court recently held that “civil forfeitures generally ... do not constitute ‘punishment’ for purposes of the Double Jeopardy Clause.” United States v Ursery, 518 US_; 116 S Ct 2135, 2138; 135 L Ed 2d 549, 557 (1996). Accordingly, the forfeiture here did not violate the Double Jeopardy Clause.
Claimants also argue that the seizure of the cash in Carey’s basement constituted a violation of the Excessive Fines Clause. However, the United States Supreme Court has never determined that the Excessive Fines Clause is applicable to the states through the Fourteenth Amendment. People v Antolovich, 207 Mich App 714, 716; 525 NW2d 513 (1994). Cf. TXO Production Corp v Alliance Resources Corp, 509 US 443, 470; 113 S Ct 2711; 125 L Ed 2d 366 (1993) (Justice Scalia concurring). Nevertheless, we will briefly consider whether the seizure of the cash violated Michigan’s counterpart to the Excessive Fines Clause, Const 1963, art 1, § 16. Here, the money in Carey’s basement was seized as the proceeds of Robert’s drug sales. In United States v Tilley, 18 F3d 295, 299-300 (CA 5, 1994), the court held that Austin was inapplicable to forfeiture of drug proceeds. The Tilley Court distinguished drug proceeds forfeitures from real estate forfeitures on the basis that the latter are not necessarily proportional to the costs and harms of the criminal activity. Tilley, supra at 300. It held that
the' forfeiture of drug proceeds will always be directly proportional to the amount of drugs sold. The more drugs sold, the more proceeds that will be forfeited. As we have held, these proceeds are roughly proportional to the harm inflicted upon government and society by the drug sale. [Id.]
In United States v Salinas, 65 F3d 551, 554 (CA 6, 1995), the court held:
Not only are drug proceeds inherently proportional to the damages caused by the illegal activity, . . . but also one never acquires a property right to proceeds, which include not only cash but also property secured with the proceeds of illegal activity.
We believe these cases to be persuasive and conclude that a legitimate forfeiture of drug proceeds will by definition be proportional to the amount of drugs sold and the harm inflicted by the drug sale. Accordingly, forfeitures of drug proceeds do not implicate the excessive fines provision of art 1, § 16.
For these reasons, we reverse the forfeiture order with respect to the forfeiture of Robert’s furniture, vacate in part and remand for reconsideration of the effect of the police violations of § 5 on the forfeiture of the cash seized from Carey’s basement ceiling, and otherwise affirm the order. | [
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Wahls, P.J.
Plaintiff appeals as of right from the trial court’s grant of defendants’ motion for summary disposition in this case brought under the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.\ MSA 3.550(101) et seq. The trial court granted defendants’ motion on the basis that smoking is not a handicap within the meaning of the hcra and specifically that “[nicotine] addiction is [not] synonymous with handicap.” We affirm.
Plaintiff began working as a security guard with defendant Inland Waters, Inc., in September 1983. Defendant Benjamin Rusch became plaintiffs supervisor. Although plaintiff admitted that he knew that smoking was prohibited in the guardhouse, he disputed whether Inland Waters had a general policy against smoking by its employees. In October 1992, there were two incidents in which Rusch called plaintiff at work and asked plaintiff if he was smoking. Plaintiff answered in the affirmative both times. After the first incident, plaintiff received an “Employee Warning Report” stating that there was no smoking on company property. Plaintiff alleges that, the night after the second incident, Rusch told him that he wanted only nonsmoking guards at the company and that he wanted plaintiff to quit smoking entirely whether on or off the job. When plaintiff responded that he had a constitutional right to smoke, Rusch terminated plaintiff’s employment.
Plaintiff argues that the trial court erred in granting defendants’ motion for summary disposition. We disagree. In reviewing a trial court’s decision regarding a motion for summary disposition brought pursuant to MCR 2.116(C)(10), this Court examines all relevant affidavits, depositions, admissions, and other documentary evidence and construes the evidence in favor of the nonmoving party. Sanchez v Lagoudakis (On Remand), 217 Mich App 535, 539; 552 NW2d 472 (1996). The Court then determines whether a genuine issue of material fact exists on which reasonable minds could differ. Id. We review de novo a trial court’s grant or denial of a motion for summary disposition. Id.
Section 202(1)(b) of the hcra, MCL 37.1202(1)(b); MSA 3.550(202)(1)(b), provides that an employer shall not “[discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.” Sanchez, supra, p 539. To establish a prima facie case of discrimination under the hcra, it must be shown that (1) the plaintiff is “handicapped” as defined in the hcra, (2) the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute. Id. The HCRA defines a “handicap” for purposes of this statute as a “determinable physical or mental characteristic of an individual ... if the characteristic . . . substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion.” MCL 37.1103(e)(i)(A); MSA SASOClOSXeXiXA).
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Sanchez, supra, p 540. The first criterion in determining intent is the specific language of the statute. Id. Courts may not speculate about the probable intent of the Legislature beyond the words expressed in the statute. Id. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Id.
Under the plain language of the HCRA, to fall within the definition of a handicap, an individual’s condition must substantially limit at least one of his major life activities. Chmielewski v Xermac, Inc, 216 Mich App 707, 714; 550 NW2d 797 (1996). However, the statute does not further define the terms “substantially limits” or “major life activity.” Nevertheless, we may turn to two federal statutes for guidance in defining these terms.
The purpose of the HCRA is similar to the purposes of the Americans with Disabilities Act (ada), 42 USC 12101 et seq., and the Rehabilitation Act of 1973, 29 USC 701 et seq. The purpose of the hcra is to ensure that all persons be accorded equal opportunities to obtain employment, housing, and the utilization of public accommodations, services, and facilities. Adkerson v MK-Ferguson Co, 191 Mich App 129, 137; 477 NW2d 465 (1991). This is echoed in the Rehabilitation Act’s stated desire “to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society, through . . . the guarantee of equal opportunity.” 29- USC 701(b)(1)(F). Similarly, the ADA was enacted to eliminate discrimination against people with disabilities and to create causes of. action for qualified people who have faced discrimination. In re Torrance P, 187 Wis App 2d 10, 16; 522 NW2d 243 (1994).
In addition to the similarity of purpose, the hcra, the Rehabilitation Act, and the ADA share definitional similarities. Under the ADA, the term “disability” means “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 USC 12102(2). Similarly, under the Rehabilitation Act, 29 USC 706(8)(b)(i), a handicapped individual is a person who “has a physical or mental impairment which substantially limits one or more of such person’s major life activities.” The hcra’s definition of “handicap,” the Rehabilitation Act’s definition of “handicap,” and the ada’s definition of “disability” all share the requirement that a handicap or disability must be a condition that “substantially limits” one or more of a person’s “major life activities.” See Sanchez v Lagoudakis, 440 Mich 496, 504, n 25; 486 NW2d 657 (1992) (stating that the ADA’s definition of “disability” is similar to the Rehabilitation Act’s definition of “handicap”). Because of the similarity in purpose and the similarity in definitions, we believe it is appropriate to look to the Rehabilitation Act and the ada for guidance in interpreting the terms “substantially limits” and “major life activities” under the HCRA. See In re Subpoena Duces Tecum to the Wayne Co Prosecutor, 191 Mich App 90, 94; 477 NW2d 412 (1991); see also Pulver v Dundee Cement Co, 445 Mich 68, 75; 515 NW2d 728 (1994).
For purposes of both the ADA and the Rehabilitation Act, administrative regulations define “major life activities” as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 CFR 1630.2(i); Dutcher v Ingalls Shipbuilding, 53 F3d 723, 726 (CA 5, 1995); Jasany v United States Postal Service, 755 F2d 1244, 1248 (CA 6, 1985). Whether an impairment substantially limits a major life activity is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term effect. 29 CFR 1630.2(j) (2)(i)-(iii); Dutcher, supra, p 726. An impairment that interferes with an individual’s ability to do a particular job, but does not significantly decrease that individual’s ability to obtain satisfactory employment elsewhere, does not substantially limit the major life activity of working. 29 CFR 1630.2(j)(3)(i); Dutcher, supra, p 727; Jasany, supra, p 1248; see E E Black, Ltd v Marshall, 497 F Supp 1088, 1099-1101 (D Hawaii, 1980). We adopt these definitions and holdings for purposes of interpreting the HCRA.
Here, even if plaintiff’s addiction to nicotine affected his “ability to choose not to smoke” and limited his “body’s ability to be without discomfort when not smoking,” it did not substantially limit his life’s major activities. His smoking and addiction to nicotine did not interfere with caring for himself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working. Plaintiff has not provided evidence of any permanent or long-term effect of his alleged impairment. If this alleged impairment had any effect on his ability to perform the job of a security guard at Inland Waters, it did not significantly decrease his ability to find satisfactory employment elsewhere.
Plaintiff’s argument that nicotine addiction is like alcoholism ignores the fact that alcoholism is included in the HCRA’s definition of a “handicap,” whereas nicotine addiction is not. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii). Similarly, plaintiff has provided no support for his assertion that Governor John Engler vetoed a bill prohibiting discrimination against people for using tobacco outside the work environment because of a belief that discrimination against smokers was already prohibited by the hcra. Indeed, plaintiffs argument that the Legislature was ignorant of the legal effect of the hcra contradicts the well-established presumption that, when enacting a law, a Legislature has knowledge of existing laws regarding that subject. Lumley v Univ of Michigan Bd of Regents, 215 Mich App 125, 129-130; 544 NW2d 692 (1996).
As was the case in Chmielewski, supra, p 715, plaintiffs claimed “handicap” is shared by countless other individuals in the workplace and in society as a whole. To automatically label this condition as one that substantially impairs a major life activity is inconsistent with the hcra and would do a gross disservice to the truly handicapped. Id. Accordingly, the trial court did not err in granting defendants’ motion for summary disposition. Id; Dutcher, supra, pp 726-727; Jasany, supra, pp 1248-1250.
Affirmed.
The definition of handicap also includes a history of such determinable physical or mental characteristic and being regarded as having such a determinable physical or mental characteristic. MCL 37.1103(e) (ii) and (in); MSA 3.550(103)(e)(ii) and (in).
Like the hcra’s definition, the definition of a handicapped person or a person with a disability under the ada and the Rehabilitation Act also includes a person with a record of such an impairment or that is regarded as having such an impairment. 42 USC 12102(2)(B) and (C); 29 USC 706(8)(B)(ii) and (iii). | [
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Bandstra, J.
Defendant appeals as of right the trial court order that denied his request for a change of custody of the parties’ minor children, Matthew August Dehring and Michael Jaymes Dehring. We affirm.
The parties were divorced on March 8, 1994. Joint legal custody of the minor children was awarded to the parties, while primary physical custody was granted to plaintiff. On June 21, 1995, defendant filed a petition requesting the court to award him physical custody of the children because plaintiff intended to move with the children from Alpena to the Kalamazoo area so that she could attend Western Michigan University beginning in the fall of 1995. After a hearing and oral arguments were held in September 1995, the trial court found as a matter of law that plaintiff’s proposed intrastate move was not per se a sufficient change in circumstances to warrant review of the custody issue. The court denied defendant’s request for change in custody on that basis.
Defendant argues that the trial court erred in finding that the proposed change in domicile of the children did not present a sufficient change in circumstances to warrant a reanalysis of the statutory best interest factors pursuant to MCL 722.23; MSA 25.312(3). We disagree. MCL 722.27(1)(c); MSA 25.312(7)(1)(c) provides that a trial court may amend or modify its previous custody judgment or order only “for proper cause shown or because of change of circumstances.” In addition, this Court has stated:
The plain and ordinary language used in MCL 722.27(l)(c); MSA 25.312(7)(l)(c) evinces the Legislature’s intent to condition a trial court’s reconsideration of the statutory best interest factors on a determination by the court that the party seeking the change has demonstrated either a proper cause shown or a change of circumstances. It therefore follows as a corollary that where the party seeking to change custody has not carried the initial burden of establishing either proper cause or a change of circumstances, the trial court is not authorized by statute to revisit an otherwise valid prior custody decision and engage in a reconsideration of the statutory best interest factors. [Rossow v Aranda, 206 Mich App 456, 458; 522 NW2d 874 (1994).]
No Michigan cases have addressed the precise issue whether an intrastate change of domicile constitutes “proper cause” or a “change of circumstances” sufficient to reopen the custody question. However, this Court has repeatedly refused to revisit the best interest factors in interstate change of domicile cases. Overall v Overall, 203 Mich App 450, 457-460; 512 NW2d 851 (1994); Anderson v Anderson, 170 Mich App 305, 309; 427 NW2d 627 (1988); Mills v Mills, 152 Mich App 388, 393-395; 393 NW2d 903 (1986); Dick v Dick, 147 Mich App 513, 517-518; 383 NW2d 240 (1985); Bielawski v Bielawski, 137 Mich App 587, 591-592; 358 NW2d 383 (1984); Scott v Scott, 124 Mich App 448, 451-452; 335 NW2d 68 (1983); Henry v Henry, 119 Mich App 319, 323-324; 326 NW2d 497 (1982). See also Costantini v Costantini, 446 Mich 870, 870-871 (1994) (Riley, J., concurring) (change of domicile of the parties’ minor children from Michigan to New Jersey does not warrant a review of the best interest factors); Becker v Becker, 694 P2d 608, 609-611 (Utah, 1984) (a change of domicile of the parties’ minor child from Utah to Washington does not constitute “a substantial change in circumstances” to justify reopening the question of custody). Interstate moves involve an additional factor, the removal of a child from the jurisdiction of the Michigan courts. These precedents are compelling authority not to revisit the custody question as a result of an intrastate move, where the child stays within the jurisdiction of our courts.
We conclude that defendant has failed to establish either proper cause or a change of circumstances warranting a change of custody. Accordingly, the trial court was not required by MCL 722.27(l)(c); MSA 25.312(7)(l)(c) to address the statutory best interest factors. Furthermore, pursuant to the judgment of divorce, plaintiff was not required to obtain permission from the court to make an intrastate move from Alpena to Kalamazoo. MCR 3.211(C)(1) states that “the domicile or residence of the minor may not be moved from Michigan without the approval of the judge who awarded custody or the judge’s successor . . . .” MCR 3.211(C)(1) strongly suggests that, in contrast to an interstate move where a child is taken outside the jurisdiction of the Michigan courts, an intrastate change of domicile does not require any pre-approval by the trial court. Instead, plaintiff is only required to notify the friend of the court concerning the intrastate move. MCR 3.211(C)(2). We conclude that these rule provisions are consistent with the statute and that the intrastate move was not “proper cause shown or . . . change of circumstances” sufficient to allow the court to reconsider its custody decision.
In reaching this conclusion, we recognize that noncustodial parents may be hindered in visiting their children as a result of an intrastate move. However, a decision to award custody cannot necessarily tie a custodial parent to a particular community until the minor children reach the age of majority, nor should the custodial parent be fearful of losing custody if a decision is made to make an intrastate move. Although community ties are important to a child, we conclude that the tie with the custodial parent is paramount and overrides ties to the community, meaning that a custodial parent’s decision to make an intrastate move must be honored. While a reconsideration of custody is inappropriate at this time, defendant may request a modification of his visitation rights, in light of the move to Kalamazoo, if he has not already made such a request. MCL 722.27a; MSA 25.312(7a); see also Mauro v Mauro, 196 Mich App 1, 4; 492 NW2d 758 (1992).
Defendant also argues that the trial court erred in applying the four-factor test enunciated in D’Onofrio v D’Onofrio, 144 NJ Super 200; 365 A2d 27 (1976), because there was no petition for a change of domicile before the court. See Overall, supra at 458-459; Anderson, supra at 308-309. However, the trial court’s analysis of the D’Onofrio factors was not the basis for its decision. The trial court discussed D’Onofrio apparently to provide an alternative justification for the decision. In any event, the application of the D’Onofrio factors is irrelevant when dealing with an intrastate move as in this case. Any error by the trial court was harmless.
We affirm.
But see cases in which this Court considered the best interest factors: Schubring v Schubring, 190 Mich App 468, 470; 476 NW2d 434 (1991); Watters v Watters, 112 Mich App 1, 11-12; 314 NW2d 778 (1981); Hutchins v Hutchins, 84 Mich App 236, 238; 269 NW2d 539 (1978). | [
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Corrigan, J.
In this interlocutory appeal in a medical malpractice action, defendant Detroit Osteopathic Hospital Corporation appeals by leave granted the order compelling it to reveal the name of a patient who shared a hospital room with plaintiff Deborah Dorris.* We reverse.
On June 18, 1993, plaintiff visited the Riverside Osteopathic Hospital emergency room complaining of nausea, vomiting, and diarrhea. The emergency room physician prescribed the drug Compazine, which was administered intravenously, and plaintiff experienced an abrupt drop in blood pressure from the medication. Plaintiffs condition later stabilized and she was discharged within twenty-four hours.
Plaintiff filed suit in March 1994 and alleged that defendant’s employees negligently administered Compazine to her. She claimed that she had refused the Compazine because she had a history of allergic reactions to medicines. Plaintiff alleged that she instead requested Lomatil, which she previously had taken without incident, but the emergency room physician refused her request. Plaintiff stated that she also told the nurse who put Compazine into the intravenous bag that she did not want the medicine.
Plaintiff claims that the patient who shared her hospital room witnessed plaintiff’s refusals of Com pazine. During discovery, plaintiff moved to compel defendant to disclose the name of that patient; the circuit court granted the motion. Defendant then applied for leave to appeal to this Court and moved for a stay of the proceedings. This Court granted leave and the stay.
Defendant contends that the circuit court abused its discretion in ordering it to disclose the name of the nonparty patient because that information is privileged under the physician-patient privilege statute, MCL 600.2157; MSA 27A.2157. We agree. This Court reviews a trial court’s grant or denial of discovery under an “abuse of discretion” standard. SCD Chemical Distributors, Inc v Medley, 203 Mich App 374, 382; 512 NW2d 86 (1994).
MCR 2.302(B)(1) provides that parties may obtain discovery regarding any subject relevant to the pending action, including the identity of persons having knowledge of a discoverable matter. The rule does not, however, permit discovery of privileged matters. MCL 600.2157; MSA 27A.2157 provides in part:
Except as otherwise provided by law, a person duly authorized to practice medicine or surgery shall not disclose any information that the person has acquired in attending a patient in a professional character, if the information was necessary to enable the person to prescribe for the patient as a physician, or to do any act for the patient as a surgeon. . . .
Our Supreme Court resolved the question whether patient names are discoverable in Schechet v Kesten, 372 Mich 346; 126 NW2d 718 (1964). As in the instant case, MCL 600.2157; MSA 27A.2157 was at issue in Schechet. The Court stated that the statute “prohibits the physician from disclosing, in the course of any action wherein his patient or patients are not involved and do not consent, even the names of such noninvolved patients.” Id. at 351. This Court follows, as it must, precedent from our Supreme Court. Hatfield v St Mary’s Medical Center, 211 Mich App 321, 327-328; 535 NW2d 272 (1995).
In support of her argument that defendant is obliged to provide the patient’s name, plaintiff relies on Porter v Michigan Osteopathic Hosp Ass’n, Inc, 170 Mich App 619; 428 NW2d 719 (1988). The plaintiff in Porter, a schizophrenic, alleged that two other patients raped her after she was admitted to the defendant hospital. The trial court ordered the defendant to produce information regarding any suspected assailants, including their names. Id. at 621-622. This Court determined that the names were not privileged because they were not necessary for diagnosis or treatment. Id. at 623.
The majority opinion in Porter neglected to mention Schechet, a case we are bound to follow. The Porter dissent, however, referred to Schechet and noted that the physician-patient privilege statute “has not been construed as limited to information solely necessary for treatment.” Id. at 626-627 (Mackenzie, J., dissenting). Our Supreme Court subsequently denied leave to appeal in Porter. 432 Mich 915 (1989). In any event, Porter is distinguishable from the instant case on its facts. The Porter plaintiff sought the names of patients who allegedly attacked her. In this case, plaintiff seeks the name of a patient who may or may not have overheard a conversation between plaintiff and medical personnel. Porter therefore presents stronger policy reasons than this case for disclosure.
Nonetheless, Schechet remains binding precedent that we are not empowered to overrule.
Reversed.
Because the claims of plaintiff Raymond Dorris are derivative, for the purposes of this opinion, “plaintiff” will refer to Deborah Dorris only.
Defendant oversees Riverside Osteopathic Hospital.
The emergency room physician denies that he administered Compazine against plaintiff’s wishes.
The portion of the statute quoted above is the same version that was in effect in 1964, when the Court decided Schechet. | [
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Per Curiam.
Plaintiff brought this declaratory judgment action after defendant Civil Service Commission modified a collective bargaining agreement that had been negotiated between plaintiff and the Office of the State Employer. On cross motions for summary disposition, the circuit court granted plaintiffs motion pursuant to MCR 2.116(C)(9) and (10). Defendants appeal as of right, and we affirm.
Plaintiff and the Office of the State Employer (OSE) negotiated a tentative collective bargaining agreement, effective January 13, 1992, through December 31, 1994. The tentative agreement was published and submitted to the Civil Service Commission, which ratified the agreement. In late 1992, plaintiff and the OSE reopened negotiations pursuant to a “wage reopener clause” in Article 53 of the agreement. Article 53 provided, in pertinent part:
This Agreement shall be effective as of January 13, 1992, and shall continue in full force and effect until midnight, December 31, 1994, and thereafter from year to year unless ■ either party gives written notice to the other of its intention to amend or terminate this Agreement by April 1st of the final year of this Agreement. Article 43, Section A, Wages for Fiscal Year 93-94 shall be subject to negotiations during 1992 by either party giving written notice of its intent to bargain such provisions by April 1st, 1992.
The newly negotiated tentative agreement included a wage provision in Article 43 for fiscal years 1993-94, 1994-95, 1995-96, and 1996-97, an extension of the contract until December 31, 1995, and incorporated the remaining provisions of the primary agreement by reference. The tentative agreement was published and submitted to the commission for review in accordance with Civil Service Commission Rule 6-9.5, which provides, in pertinent part:
It is the policy of the Civil Service Commission to encourage agreement between the parties in the contract negotiations. Upon publication the commission will review and ratify or modify negotiated agreements ... in accordance with the [certain enumerated] criteria[.] [Emphasis added.]
At its January 26, 1993, meeting, the commission ratified the newly negotiated wage agreement after adding a four-paragraph modification that did not directly affect the wage provision. At the commission’s July 31, 1993, meeting, plaintiff objected to the modification, but the commission refused plaintiff’s request to rescind it. Plaintiff then brought this declaratory judgment action, arguing among other things that defendant commission had violated its own rules and consequently had exceeded its authority under the state constitution.
Pursuant to Const 1963, art 11, § 5, the Civil Service Commission has plenary authority to regulate the conditions of employment for classified state employ ees. See Viculin v Dep’t of Civil Service, 386 Mich 375, 398; 192 NW2d 449 (1971). This plenary authority is evidenced in Rule 6-9.5, which provides for review and ratification or modification of negotiated agreements. See James v Dep’t of Mental Health, 145 Mich App 229, 232; 377 NW2d 824 (1985).
In this case, the circuit court granted plaintiffs motion for summary disposition, holding as follows:
The Court is of the opinion that Defendants violated the Commission rules. Commission Rule 6-9.5 allows for the Commission to review and ratify or modify negotiated agreements upon their publication. The entire Collective Bargaining Agreement was not negotiated, nor was it published. Only the wage and compensation issues pursuant to the wage reopener clause and the one-year extension of the existing contract were negotiated. Furthermore, although Defendants claim the entire agreement was published by incorporation, in this Court’s opinion, that does not constitute actual publication. Therefore, because the entire agreement was not negotiated or published, Defendants violated Rule 6-9.5, which allows the Commission to review and ratify or modify agreements only when they are negotiated and published.
Moreover, the Court agrees with Plaintiff that the Commission’s actions also violate the entire collective bargaining scheme set forth in the rules, which provide for the parties to enter into negotiated, binding contracts.
We find no error in the circuit court’s analysis with respect to fact or law. We would add, however, that notwithstanding its broad constitutional authority, the commission cannot modify a previously ratified and unexpired contract. To hold otherwise would undermine the collective bargaining process and would run contrary to well-established principles of contract law. Here, while the agreement reached pursuant to the wage reopener clause of the original agreement was subject to review and ratification or modification, the other nonnegotiated provisions were not subject to modification because they continued to be “in full force and effect until midnight, December 31, 1994,” in accordance with Article 53 of the primary agreement. Accordingly, because the modification made by the commission at its January 26, 1993, meeting was not confined to the renegotiated wage provision of the original agreement, it is void and severable from the otherwise ratified provisions of the agreement.
Because plaintiff has not filed a cross appeal, the remaining arguments raised in its appellate brief are not properly before this Court for review. See Barnell v Taubman Co, Inc, 203 Mich App 110, 123; 512 NW2d 13 (1993).
Affirmed.
The record is somewhat confusing in this regard. The tentative agreement of over forty pages submitted to the commission included, in addition to the renegotiated Article 43 wage provision, certain “letters of understanding” that pertained to Article 7, Section D (Administrative Leave Bank), Article 8 (Grievance Procedure), and Article 11 (Seniority). Pursuant to the first sentence of Article 53, the primary agreement was to “continue in full force and effect until midnight, December 31, 1994, and thereafter from year to year unless either party gives written notice to the other of its intention to amend or terminate this Agreement. . . .” The record does not indicate that either party gave written notice to the other of its intention to amend or terminate the agreement. Instead, both parties seem to agree that negotiations were reopened only pursuant to the wage reopener clause found in the second sentence of Article 53, but defendants argue that the result was to reopen the entire agreement for review and ratification or modification by the commission.
Indeed, If 11 of plaintiff’s complaint alleged:
Pursuant to the above-referenced wage reopener clause, msea and the State of Michigan negotiated and reached a new wage agreement for fiscal year 1993-94. No other portion of the Collective Bargaining Agreement was renegotiated or altered by MSEA and the State of Michigan. [Emphasis added.]
In their answer, defendants admitted the allegations in ¶ 11. Similar representations were made by plaintiff’s counsel at the hearing on the motion for summary disposition and in the subsequent affidavits of John Dennis-ton, plaintiff’s president and chief negotiator. At the hearing, defense counsel posited an apparent change of position regarding this issue in the following colloquy with the court:
The Court: Is it your position that more than just wages were open for discussion with that reopener?
Mr. Cohan [Defense Counsel]: That is — that is our — that is, in fact, our position, your Honor.
* * *
The Court: Usually, as I understand labor law and the classes I had and the few cases I was involved in where there’s a wage reopener in the contract — I mean, parties are always welcome to renegotiate things that they mutually agree upon. But, where in their bargaining agreement they state, this is our contract and we will only reopen wages, they won’t reopen other aspects of that agreement without the mutual consent of both sides, is how I understand it. Now, wasn’t this just a wage reopener?
Mr. Cohan: Well, I believed it was a wage reopener. I have not — I don’t know what the specific clause says, but, I guess it would be— it is our position that, again, the Civil Service rule does not limit the Commission’s modification of a collective bargaining agreement to a particular subject which reopened the agreement to' review by the Commission. In other words, if it’s brought to the Commission for a wage reopener or for whatever other subject, then the Commission has the authority under [Rule] 6-9.5 to review the other aspects of the agreement.
There is nothing in rule 6-9.5 that prohibits the Commission from doing that.
In an affidavit submitted to the court by defendants, Dennis Skog, an administrative assistant to the state personnel director, averred that, because “a complete and entire collective bargaining agreement” was submitted to the commission for review, all wage and nonwage provisions had been subject to renegotiation.
Having reviewed this somewhat confusing record, we conclude that the parties have agreed in principle that only Article 43 wages were actually renegotiated and that neither party considered the letters of understanding relating to other articles to be of significance in this matter. | [
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] |
The Court orders that a special panel shall be convened pursuant to Administrative Order No. 1996-4 to resolve the conflict between this case and Cooper v Wade, 218 Mich App 649 (1996).
The Court further orders that the opinion on rehearing released November 26, 1966, is hearby vacated.
The appellant shall file a supplemental brief within 28 days of the clerk’s certification of this order. Appellee may file a supplemental brief within 21 days of service of appellant’s brief. Nine copies must be filed with the Clerk of the Court. | [
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Doctoroff, C.J.
Defendant appeals as of right from his convictions of being a felon in possession of a firearm, MCL 750.224f; MSA 28.421(6), and possession of marijuana, MCL 333.7403(2)(d); MSA 14.15(7403)(2)(d). Defendant was sentenced to concurrent terms of six months in jail. We reverse and remand.
In 1989, defendant was convicted, apparently by guilty plea, of attempted possession of cocaine. He was sentenced to probation, from which he was discharged in 1991. On May 4, 1994, police officers of Sherman Township conducted a search warrant at a residence used by defendant. The officers possessed a search warrant for the premises, however the affidavit in support of the warrant was not signed by its affiant. While on the premises by virtue of the warrant, the officers witnessed defendant departing the residence with a shotgun. Defendant was apparently unaware of the police presence as he left the house, and he dropped the weapon upon being ordered to do so by the police. During their search, the police noted a “stale marijuana smell” in the house and also discovered a quantity of marijuana in some dresser drawers. Defendant was subsequently arrested, tried, and convicted. He now appeals both convictions.
MCL 750.224f; MSA 28.421(6) prohibits an individual from possessing a firearm within five years of being discharged from probation. On the basis of his February 24, 1989, conviction of attempted possession of cocaine, defendant was convicted under the felon in possession statute. MCL 750.224f; MSA 28.421(6) became effective October 13, 1992. Because the statute was not yet in effect at the time of defendant’s original conviction in February 1989, he contends that his conviction under the law violated the Ex Post Facto Clauses of the United States and Michigan Constitutions. A statute that affects the prosecution or disposition of criminal cases involving crimes committed before the effective date of the statute violates the Ex Post Facto Clauses if it increases the punishment for the crime. Riley v Parole Bd, 216 Mich App 242, 244; 548 NW2d 686 (1996). Defendant contends that application of MCL 750.224f; MSA 28.421(6) served to impermissibly increase his punishment for the conviction that predated the enactment of the statute. We disagree.
In Taylor v Secretary of State, 216 Mich App 333; 548 NW2d 710 (1996), this Court rejected a similar ex post facto argument. The petitioner complained of legislation that, on the basis of his previous driving record, prevented him from obtaining a license to drive certain industrial vehicles. The prohibitive legislation became effective after the petitioner had already incurred the previous driving infractions, thus petitioner claimed the law imposed ex post facto punishment for the earlier infractions. This Court stated:
While this may appear, from petitioner’s perspective, to be additional punishment for past driving infractions, it is actually an exercise of the state’s power to enhance safety, and the concomitant life, health, and welfare of the public, in the use of the state’s road system. This case, accordingly, comes within the ambit of Hawker v New York, 170 US 189; 18 S Ct 573; 42 L Ed 1002 (1898).
In Hawker, the plaintiff had been convicted of a felony and sentenced to prison. After he served his sentence and was released, he sought to become a licensed physician. However, after his incarceration, the State of New York had passed a law absolutely prohibiting former felons from being licensed to practice medicine. The United States Supreme Court found that, because the state’s predominant interest was in prescribing qualifications for admission to the practice of medicine, there was no violation of the Ex Post Facto Clause. [Id. at 340.]
The Taylor Court went on to find that “the legislation in issue, directed to considerations of health and safety and having only incidental punitive aspect, does not violate the prohibition against ex post facto laws.” Id. at 342.
In this case, the statute MCL 750.224f; MSA 28.421(6) is obviously punitive in that it imposes criminal penalties for its violation. This does not, however, establish that the statute impermissibly punished defendant for acts that preceded the date the statute took effect. To the contrary, the conduct being punished in this case was defendant’s possession of a firearm at a time after the enactment of the statute. While tied to defendant’s status as a convicted felon, the punishment was not imposed for the prior crime, but for his recent act of possessing a firearm. Furthermore, the state’s predominant interest in enacting MCL 750.224Í; MSA 28.421(6) was not the infliction of further punishment on those who had been convicted of previous felonies. Instead, the primary purpose of the statute was to protect the public by precluding certain convicted felons from possessing firearms. Because the protection of public safety is a valid exercise of the police power, Taylor, supra, we find that application of MCL 750.224f; MSA 28.421(6) to a person who is a convicted felon as a result of a conviction of a felony committed before the date that statute took effect does not violate the Ex Post Facto Clauses of the United States and Michigan Constitutions.
Defendant next contends that he was denied his right to be free from unreasonable searches and seizures where police searched his residence pursuant to a warrant that was based on an unsigned affidavit. We find that this case should be remanded for a determination concerning whether the facts set forth in the unsigned affidavit were also made under oath to a magistrate.
A search warrant that lacks an affiant’s signature is presumed to be invalid, but the presumption can be rebutted by a showing that the facts in the affidavit were presented under oath to the magistrate who authorized the warrant. People v Mitchell, 428 Mich 364, 365-366; 408 NW2d 798 (1987). In this case, the affidavit for a search warrant contained a space where the magistrate was to put his signature, however the space was blank. Pursuant to Mitchell, the critical question is whether the affidavit was made “on oath to a magistrate.” Id. at 368-369. Mitchell indicates that it would suffice if the information in the affidavit was sworn to before a magistrate. Id. Thus, though the affidavit was unsigned, it could still be valid if the prosecution could show that the factual allegations offered in support of the affidavit were made by the affiant under oath to the magistrate. Id. at 369.
In this case, there is no evidence on the record regarding the circumstances under which the affidavit supporting the search warrant was presented to the magistrate. Had the issue been raised below, the prosecution might have been able to offer evidence showing that the affiant also presented the facts set forth in the affidavit under oath to the magistrate. As the record stands before us on appeal, however, we are unable to determine the circumstances under which the affiant presented the facts on which the warrant was based. Accordingly, we remand to the trial court for a determination whether the facts set forth in the affidavit were also presented to the magistrate under some form of oath or affirmation. If the trial court finds on remand that the facts set forth in the affidavit were so presented, defendant’s convictions should not be disturbed on the basis of this issue. However, if the trial court finds that the facts set forth in the affidavit were not so presented, then suppression of the evidence obtained pursuant to the warrant is the proper remedy. People v Chambers, 195 Mich App 118, 120; 489 NW2d 168 (1992).
Finally, defendant contends that the trial court erred in instructing the jury that defendant was a convicted felon. Defendant argues that this invaded the jury’s province by establishing an element of the crime of being a felon in possession of a firearm, MCL 750.224f; MSA 28.421(6). We agree and reverse.
MCL 750.224f(2); MSA 28.421(6)(2) makes it clear that an element of the crime is a defendant’s status as a convicted felon. The statute provides in pertinent part:
A person convicted of a specified felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until all of the following circumstances exist. [Emphasis added.]
On the record, but outside the presence of the jury, defendant told the trial judge that he had been convicted of “a two-year high court misdemeanor,” but not a felony. Defendant thus contended that he should not be considered a convicted felon for purposes of MCL 750.224f; MSA 28.421(6). The trial court responded to defendant’s argument as follows:
Mr. Tice, under the law in which you’re charged, the Court is charged with making a determination whether it’s a three-year or a five-year probationary period depending on the definition of the crimes in which you have been convicted of [sic]. The court has read that over and made the determination that you are a convicted felon. In the context of that law the probationary period is five years. [Emphasis added.]
Thereafter, the trial court instructed the jury as follows:
The second question is, was Mr. Tice a convicted felon? Within the context of the crime in which he stands here charged, he was a convicted felon. [Emphasis added.]
As noted above, whether defendant was a convicted felon was an element of the crime of being a felon in possession of a firearm. When a trial court instructs that an essential element of a criminal offense exists as a matter of law, error requiring reversal will be found. People v Allensworth, 401 Mich 67, 70-71; 257 NW2d 81 (1977), quoting People v Reed, 393 Mich 342, 349; 224 NW2d 867 (1975); see also People v Gaydosh, 203 Mich App 235, 238; 512 NW2d 65 (1994). Because the jury was not allowed to consider defendant’s argument that he was convicted of a misdemeanor as opposed to a felony, the trial court impermissibly undermined the essential fact-finding function of the jury and freed the prosecution from its duty to prove each element of the crime charged beyond a reasonable doubt. Accordingly, defendant’s conviction of being a felon in possession of a firearm is reversed, and the case is remanded for a new trial on that charge.
Reversed and remanded. On remand, the trial court is instructed to determine whether the facts set forth in the unsigned affidavit in support of the warrant were also presented to the magistrate under some form of oath or affirmation. In addition, the trial court is to conduct a new trial with respect to the charge of being a felon in possession of a firearm. | [
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The judges of this Court having been polled pursuant to Administrative Order No. 19964, and the result of the poll being a majority of the judges opposed convening a special panel, it is ordered that a special panel shall not be convened.
Corrigan, C.J., did not participate. | [
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Mackenzie, P.J.
Plaintiff was dismissed as an elementary school principal, allegedly because of defendants’ interference. This lawsuit followed. The matter went to mediation and resulted in the mediation panel’s determination that plaintiff’s complaint was frivolous. Plaintiff rejected the mediators’ evaluation and chose to proceed to trial. The trial court subsequently dismissed the action with prejudice because plaintiff failed to post the bond required under MCR 2.403(N)(1) after the mediation panel found her complaint was frivolous. Plaintiff appeals as of right. We reverse and remand.
MCR 2.403(N)(1) provides in relevant part:
If all or part of the evaluation of the mediation panel is rejected, the action proceeds to trial in the normal fashion. In a tort action to which . . . MCL 600.4963(2); MSA 27A.4963(2) [tort action mediation] applies, if the evalua tion indicates that the panel unanimously found that a party’s action or defense as to any other party is frivolous, the following provisions apply:
(a) The party whose action or defense was found to be frivolous shall post a cash or surety bond, pursuant to MCE 3.604, in the amount of $5,000 for each party against whom the action or defense was determined to be frivolous.
* * *
(d) If the bond is not posted as required by this 'rule, the court shall dismiss the claim found to have been frivolous, and enter the default of the person whose defense was found to be frivolous. [Emphasis added.]
In Knoke v Michlin Chemical Corp, 188 Mich App 456; 470 NW2d 420 (1991), this Court determined that a party is not required to post the bond mandated under MCR 2.403(N)(1)(a) until the circuit court has conducted a review de novo of the mediators’ decision that a claim is frivolous. The Supreme Court granted leave in Knoke on June 1, 1992, 439 Mich 1019 (1992), but on July 28, 1992, the appeal was “dismissed upon stipulation of the parties . . . with prejudice and without costs.” 439 Mich 1019 (1992).
In this case, the trial court acknowledged this Court’s opinion in Knoke, but ruled that the Supreme Court’s order dismissing the applications for leave to appeal had the effect of vacating the Knoke opinion— as opposed to terminating the proceedings in the Supreme Court — thus leaving Knoke without effect or precedential value. The trial court then ruled, contrary to Knoke, that dismissal of plaintiff’s action without judicial review of the mediators’ decision was appropriate under MCR 2.403(N)(1)(d) because she had not posted the requisite bond.
On appeal, plaintiff argues, first, that the trail court erred in determining that this Court’s decision in Knoke lacked precedential value and, second, that under Knoke the trial court also erred when it dismissed her complaint. We agree.
MCR 7.215(C)(2), addressing the effect of this Court’s opinions, provides:
A published opinion of the Court of Appeals has precedential effect under the rule of stare decisis. The filing of an application for leave to appeal to the Supreme Court or a Supreme Court order granting leave to appeal does not diminish the precedential effect of a published opinion of the Court of Appeals.
Thus, the publication of an opinion of this Court creates binding precedent statewide, and, contrary to past practice as reflected by People v Phillips, 416 Mich 63; 330 NW2d 366 (1982), the opinion remains binding “until such time as a decision of the Supreme Court enters altering the lower court decision or questioning its rationale.” 6 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), p 315. See also Michigan Millers Mutual Ins Co v Bronson Plating Co, 197 Mich App 482; 496 NW2d 373 (1992) (holdings of this Court not addressed on the merits by the Supreme Court remain binding despite reversal on other grounds).
Applying these principles to the Knoke decision, it is clear that the case remains precedent that is binding on the trial court under MCR 7.215(c)(2) and also on this Court under Administrative Order No. 1996-4, see 451 Mich xxxii (1996). The Supreme Court’s order merely dismissed the applications for leave to appeal on the basis of the parties’ stipulation. The order did not address the merits of this Court’s opinion in Knoke, it did not alter this Court’s decision, and it did not question this Court’s rationale. Thus, stare decisis required the trial court to follow Knoke in this case.
Under Knoke, plaintiff, without posting a bond, was entitled to a review de novo of the mediators’ determination that her complaint was frivolous. Because the trial court dismissed her complaint for failure to post such a bond, we must reverse. Consistent with Knoke, we remand to the trial court for a review de novo of the mediators’ determination that plaintiff’s claim was frivolous. If the court upholds that determination, then plaintiff will be required to post a bond as required by MCR 403(N)(1), and her failure to do so will constitute grounds for dismissal.
Reversed and remanded for further proceedings consistent with this opinion. We retain no further jurisdiction. | [
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Smolensk, P.J.
Defendant was convicted after a bench trial of felonious assault, MCL 750.82; MSA 28.277, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to a term of two years’ imprisonment for the felony-firearm conviction and a consecutive term of five years’ probation for the felonious assault conviction. Defendant appeals by leave granted. We remand.
In reliance on subsection two of the felony-firearm statute, defendant argues that the consecutive nature of his sentence of probation is an impermissible sentence. Defendant failed to raise this issue below. Generally, this Court declines to consider an issue not decided by the trial court. However, we may consider the question if the issue is, as in this case, one of law and the record is factually sufficient. Aetna Casualty & Surety Co v American Community Mutual Ins Co, 199 Mich App 30, 34; 501 NW2d 174 (1993); People v Lumsden, 168 Mich App 286, 292; 423 NW2d 645 (1988).
Subsection two of the felony-firearm statute provides as follows:
A term of imprisonment prescribed by this section is in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony. [MCL 750.227b(2); MSA 28.424(2)(2) (emphasis supplied).]
Specifically, defendant contends that the plain meaning of subsection two does not allow the imposition of a consecutive sentence where the sentence for the underlying felony is a term of probation and not a term of imprisonment. We agree. We have found several published decisions where a sentence of a term of probation for the underlying felony has been imposed consecutively to the mandatory two-year prison term for a felony-firearm conviction. See, e.g., People v Vann, 448 Mich 47, 50; 528 NW2d 693 (1995); People v McShan, 120 Mich App 496, 498-499; 327 NW2d 509 (1982). However, we have been unable to find any published cases actually addressing the propriety of consecutive sentencing under such circumstances. Thus, the issue appears to be one of first impression.
The goal of statutory construction is to effect the intent of the Legislature. People v Morris, 450 Mich 316, 326; 537 NW2d 842 (1995). If the.statute is clear, we enforce its directive. Id. Only where a statute is unclear and susceptible to more than one interpretation is judicial construction allowed. Id.
In this jurisdiction, concurrent sentencing is the norm. People v Alvarado, 192 Mich App 718, 720; 481 NW2d 822 (1992). A consecutive sentence may be imposed only if specifically authorized by statute. People v Nantelle, 215 Mich App 77, 79; 544 NW2d 667 (1996); Alvarado, supra. Although probation is a substitute for imprisonment, it-is, in fact, an actual sentence. People v Moon, 125 Mich App 773, 780; 337 NW2d 293 (1983). Probation is within the province of the sentencing judge and appellate courts will not interfere absent a showing of a violation or abuse of statutory authority or a violation of some constitu tional right. People v Lemon, 80 Mich App 737, 742; 265 NW2d 31 (1978).
Under the plain language of the first phrase of the sentence contained in MCL 750.227b(2); MSA 28.424(2)(2), the term of imprisonment imposed for defendant’s felony-firearm conviction is in addition to the sentence of probation imposed for the felonious assault conviction. However, the plain language of the second phrase of this sentence provides that the term of imprisonment imposed for defendant’s felony-firearm conviction shall only be served consecutively with and before a sentence of imprisonment for the underlying felony. People v Sawyer, 410 Mich 531, 535; 302 NW2d 534 (1981). Clearly, the second phrase of MCL 750.227b(2); MSA 28.424(2)(2) does not provide statutory authority for the imposition of a consecutive sentence of probation.
Subsection three of the felony-firearm statute provides as follows:
A term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section is not eligible for parole or probation during the mandatory term imposed pursuant to subsection (1). [MCL 750.227b(3); MSA 28.424(2)(3).]
Arguably, the second sentence of this subsection only prohibits parole or probation with respect to the felony-firearm sentence itself, in the same way that the first sentence of this subsection only prohibits suspension of the prison sentence imposed for the felony-firearm conviction itself, not the sentence imposed for the conviction of the underlying felony. In any event, the second sentence of this subsection speaks only to eligibility for parole or probation. Thus, even assuming that the second sentence concerns eligibility for parole or probation for sentences imposed for both the felony-firearm conviction and the underlying felony conviction, we do not interpret this sentence as automatically delaying the commencement of any sentence of probation imposed for the underlying felony until the expiration of the two-year term of the felony-firearm sentence.
Nor do we find in the statutes concerning probation, MCL 771.1 et seq.] MSA 28.1131 et seq., any authority for the imposition of a consecutive sentence of probation in this case. MCL 771.2; MSA 28.1132 provides, in relevant part, as follows:
(1) Except as provided in section 2a of this chapter, if the defendant is convicted for an offense that is not a felony, the period of probation shall not exceed 2 years. Except as provided in section 2a of this chapter, if the defendant is convicted of a felony that is not a major controlled substance offense, the period of probation shall not exceed 5 years.
(2) The court shall by order, to be filed or entered in the cause as the court may direct by general rule or in each case, fix and determine the period and conditions of probation. [Emphasis supplied.]
Although subsection two authorizes the sentencing court to fix and determine the period of probation, this authorization clearly extends only to determining the length of the sentence of probation, not when the sentence of probation shall commence.
With respect to a defendant who may be placed on probation, MCL 771.1(2); MSA 28.1131(2) allows the sentencing court to delay the imposition of sentence for the purpose of giving the defendant an opportunity to prove his eligibility for probation. However, in this case, defendant’s sentencing was not delayed. Rather, defendant was actually sentenced. Moreover, MCL 771.1(2); MSA 28.1131(2) provides that sentencing may be delayed for not more than one year.
Finally, MCL 771.3(4); MSA 28.1133(4) provides that a sentencing court may impose other lawful conditions of probation as required or warranted by the circumstances of the case. Again, the plain language of this subsection does not concern the commencement of a sentence of probation.
For the reasons stated above, we conclude that the sentencing court erred in sentencing defendant to a consecutive sentence of probation in this case. The Legislature is, of course, free to make statutory changes that will in the future prevent the result we have reached in this case.
Because the sentencing court sentenced defendant under a mistaken belief in the law, we remand for the ministerial task of correcting the judgment of sentence to reflect that defendant’s sentences of two years’ imprisonment for the felony-firearm conviction and five years’ probation for the felonious assault are to run concurrently. People v Green, 205 Mich App 342, 346; 517 NW2d 782 (1994). The trial court shall ensure that the corrected judgment of sentence is transmitted to the Department of Corrections. We do not retain jurisdiction.
Remanded. | [
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Per Curiam.
Following a jury trial in December 1989, the 36th District Court entered judgments of $115,000 in favor of plaintiff Vincent Hurt and $175,000 in favor of plaintiff Darrell Hicks. On appeal, the Wayne Circuit Court affirmed Hurt’s judgment, but reversed Hicks’ judgment on the ground that defendant Michael Food Centers, Inc., was denied a fair trial when Hicks’ time-barred claim for false imprisonment went to the jury along with his claim of malicious prosecution and remanded Hicks’ case for further proceedings in the district court. In these consolidated cases, defendant appeals by leave granted, and plaintiffs cross appeal, the circuit court’s affirmance of Hurt’s judgment, while Hicks appeals on leave granted, and defendant cross appeals, the circuit court’s reversal of Hicks’ judgment. We affirm the reversal of Hicks’ judgment, reverse the affirmance of Hurt’s judgment, and remand both cases for further proceedings in the district court.
A
The instant cases arise out of the arrest of plaintiffs by a security guard at defendant’s store for shoplifting a jar of peanut butter on February 24, 1983: At trial, plaintiffs denied that they stole the jar of peanut butter, whereas defendant claimed it had probable cause to arrest plaintiffs for shoplifting. Plaintiffs testified that they entered the store to purchase a pack of cigarettes and walked out of the store together without making a purchase. According to defendant’s stockboy, Hicks took a jar of peanut butter and the stockboy informed the store’s security guard, who followed plaintiffs outside. The security guard testified that he saw Hicks take the jar of peanut butter out from under his jacket and toss it into the car. When plaintiffs refused to return to the store, the security guard grabbed Hurt as Hicks ran away. The security guard testified that after finding the jar of peanut butter in the car, he handcuffed Hurt and took him into the store, informing him that he was under arrest for shoplifting. According to plaintiffs, defendant’s security guard followed them into the parking lot and had a verbal confrontation with Hicks, who ran to the end of the parking lot when he saw that the security guard had a gun. Hurt testified that the security guard then took out his gun and grabbed him around the neck. The stockboy and the security guard denied that the guard drew his gun on plaintiffs.
Shortly thereafter, Hicks returned to the store and was apprehended by the stockboy. Plaintiffs were then taken to a back room of the store. According to plaintiffs, the security guard, brandishing his gun, handcuffed them to a pole or ladder. Hicks testified that the security guard accused him of taking the jar of peanut butter but could not find it after searching his jacket. Plaintiffs testified that they were at the store for Vh to 2 hours before they were taken to the police station. According to defendant’s stockboy, plaintiffs were at the store for about fifteen or twenty minutes before the police arrived. Hurt was released uncharged after spending a half-hour at the police station, while Hicks was charged with the misdemeanor offense of larceny under $100 and released after spending about IV2 hours at the station. Subsequently, the misdemeanor charge against Hicks was dismissed.
Hurt testified that he felt pain when he was first grabbed by the security guard and that he was frightened when the guard had the gun in his face, causing an “emotional problem . . . since that now I can’t stand security guards” because he feels they look at him for no reason. However, on cross-examination, Hurt admitted that he had worked as a security guard on two occasions after the incident. Hurt also testified that he felt embarrassed because people were looking at him when he was handcuffed in the store and when he was led out of the store handcuffed. Hicks testified that he also felt upset, humiliated, and embarrassed because he had to walk through the store handcuffed. Hicks testified that he was upset about the incident until the end of 1983 and that he sometimes had nightmares “about being in prison and things like that.” On cross-examination, Hicks acknowledged that the incident was “the most stressful thing that’s ever happened to [him].”
On February 25, 1985, Hurt filed his original complaint in the circuit court alleging false imprisonment and assault and battery. In an amended complaint filed on March 18, 1985, Hicks was added as a party plaintiff alleging false imprisonment and malicious prosecution. Subsequently, the circuit court denied defendant’s motion for summary disposition, rejecting its claim that Hicks’ false imprisonment claim was time-barred. After the parties rejected the mediation evaluation, the case was remanded to the district court for trial.
B
In its direct appeal, defendant argues that the trial court committed error when it disallowed the use of evidence of Hicks’ 1985 armed robbery conviction for the purpose of impeachment under MRE 609 and as substantive evidence with regard to the issue of Hicks’ damages. The district court disallowed the use of evidence of the conviction on the ground that it was not relevant because the conviction occurred after the alleged shoplifting incident. The circuit court, sitting as an appellate court, held:
This Court concludes that the Trial Court did not use [the] proper criteria for its denying the admission of Hicks’ conviction for robbery armed for the purpose of challenging his credibility under MRE 609 and therefore in this respect abused its discretion. The Trial Court did not discuss the probative value of the theft element of robbery armed on the issue of credibility, or the extent to which the prejudicial affect [sic] of admitting the conviction might outweigh such probative value. The Court further concludes that the Trial Court did use proper criteria (under MRE 403) for the exclusion of the prior conviction for the purpose of challenging Hicks’ damage claim and did not abuse its discretion in excluding the conviction as it related to damages.
While the circuit court properly ruled that the trial court abused its discretion under MRE 609 in refusing to admit evidence of Hicks’ 1985 conviction of armed robbery for the purpose of impeachment, we conclude that the error required reversal with respect to both plaintiffs. We also conclude that the trial court abused its discretion in excluding evidence of Hicks’ conviction as substantive evidence related to Hicks’ damages.
MRE 609 provides in pertinent part:
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross examination, and
(2) the crime contained an element of theft, and
(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and
(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.
(b) Determining probative value and prejudicial effect. For the purposes of the probative value determination required by subrule (a)(2)(B), the court shall consider only the age of the conviction and the degree to which a conviction of the crime is indicative of veracity. If a determination of prejudicial effect is required, the court shall consider only the conviction’s similarity to the charged offense and the possible effects on the decisional process if admitting the evidence causes the defendant to elect not to testify. The court must articulate, on the record, the analysis of each factor.
(c) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.
In People v Allen, 429 Mich 558, 608; 420 NW2d 499 (1988), the Supreme Court held:
[Wjhere a party seeks to impeach a nonaccused witness, the bright lines will apply. Where the relevant offense is a theft crime, the judge need only determine that the prior offense, in light of its nature and vintage, is significantly probative of veracity. If so, the impeachment evidence should be admitted. If not, it should be excluded.
The Court also added:
We continue the ten-year cutoff for the use of any prior convictions. In addition, for those theft convictions occurring less than ten years prior to the relevant case the vintage of the prior conviction and the defendant’s behavior subsequent to that conviction are relevant to probativeness. [Id. at 606, n 32.]
In the instant case, it was undisputed that Hicks’ 1985 armed robbery conviction was established by public record, contained an element of theft, and was punishable by imprisonment in excess of one year. However, contrary to the circuit court’s statement, the trial court conducts a balancing test to determine whether the probative value of the evidence outweighs its prejudicial effect under MRE 609(a)(2)(b) only if “the witness is the defendant in a criminal trial” (emphasis added). In the instant case, the balancing test was not required because Hicks was not a defendant in a criminal trial. Thus, the trial court was only required to determine whether the evidence had significant probative value with regard to the issue of credibility. Allen, supra.
The circuit court properly concluded that the trial court erred in disallowing the use of evidence of the conviction under MRE 609 just because plaintiff’s conviction occurred after the incident in question. Under subsection c, evidence of the conviction is not admissible if a period of ten years has elapsed since the date of the conviction or the release of the witness from confinement for that conviction, whichever is later. As defendant observed, “[n]othing in MRE 609 restricts impeachment to ‘events preceding the matter on trial.’ ” Rather, MRE 609 directs the trial court to consider only the age of the conviction and the degree to which the conviction bears on the veracity of the witness. Allen, supra. In this case, Hicks’ 1985 armed robbery conviction, which occurred between the alleged shoplifting incident and the time of the trial, had significant probative value with regard to the issue of Hicks’ veracity.
While the circuit court did not reverse Hicks’ judgment on this basis, and while defendant on appeal did not ask for reversal of Hurt’s judgment on this basis, we believe that reversal is required with respect to both plaintiffs because the trial court’s error was not harmless. Considering that the instant cases essentially came down to a credibility contest, the issue of Hicks’ credibility was critical to the outcome of both cases. At trial, plaintiffs testified that defendant falsely imprisoned them, whereas defendant’s security guard and stockboy testified that there was probable cause to arrest plaintiffs for shoplifting. By excluding evidence of Hicks’ 1985 armed robbery conviction, the trial court denied the jury key information about Hicks that could have influenced the jury’s decision to accept plaintiffs’ version of the events. If the jury had concluded that Hicks was not a credible witness, then it might well have decided to believe defendant’s version that there was probable cause for their arrest. Therefore, reversal is required with respect to both plaintiffs because the error might have resulted in a miscarriage of justice by rewarding two suspected shoplifters with windfall judgments. MRE 103(a); People v Mateo, 453 Mich 203, 214-215; 551 NW2d 891 (1996); People v Travis, 443 Mich 668, 686; 505 NW2d 563 (1993).
We also hold that the circuit court erred in ruling that the trial court did not abuse its discretion in excluding evidence of Hicks’ conviction as substantive evidence relevant to the issue of his damages. Dacon v Transue, 441 Mich 315, 329; 490 NW2d 369 (1992); Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). The evidence of his armed robbery conviction was relevant under MRE 401 because it cast doubt on Hicks’ testimony that the incident in the store was “the most stressful event that ever happened to [him].” Further, the evidence of the armed robbery conviction had significant probative value that was not substantially outweighed by the danger of unfair prejudice under MRE 403. People v Vander-Vliet, 444 Mich 52, 60-61; 508 NW2d 114 (1993); Rodriguez v Solar of Michigan, Inc, 191 Mich App 483, 487; 478 NW2d 914 (1991). Therefore, in the event of a retrial, defendant is permitted to introduce evidence of Hicks’ 1985 armed robbery conviction for the purpose of impeachment, as well as substantive evidence relevant to the issue of Hicks’ damages.
Finally, in reversing plaintiffs’ judgments, we need not address defendant’s claim that the trial court abused its discretion in not granting remittitur.
c
In his direct appeal, plaintiff Hicks claims that the circuit court erred in reversing his judgment on the ground that defendant was denied a fair trial because Hicks’ false imprisonment claim was barred by the two-year statute of limitations and thus was improperly submitted to the jury along with his timely mali cious prosecution claim. Hicks argues that the circuit court erred in not extending the relation-back rule to the addition of Hicks as a party plaintiff and his false imprisonment claim.
MCR 2.118(D) provides:
Relation Back of Amendments. Except to demand a trial by jury under MCR 2.508, an amendment relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading.
In Employers Mutual Casualty Co v Petroleum Equipment, Inc, 190 Mich App 57, 63; 475 NW2d 418 (1991), this Court held:
Although an amendment generally relates back to the date of the original filing if the new claim asserted arises out of the conduct, transaction, or occurrence set forth in the original pleading, MCR 2.118(D), the relation-back doctrine does not extend to the addition of new parties.
Pursuant to Administrative Order No. 1996-4, we are constrained to follow Employers Mutual and affirm the circuit court’s ruling barring plaintiff Hicks’ false imprisonment claim as untimely because the relation-back rule does not extend to the addition of a new party. However, were it not for the administrative order, we would follow Hayes-Albion Corp v Whiting Corp, 184 Mich App 410; 459 NW2d 47 (1990), and hold that the relation-back rule extends to the addition of a new party.
In contrast to Employers Mutual, where the plaintiff sought to add a party defendant, Hayes-Albion addressed whether the defendant was given notice when an added plaintiff sought to join the action by means of an amended complaint. In Hayes-Albion, this Court held:
[W]here the original plaintiff had, in any capacity, an interest in the subject matter of the controversy, the defendant had notice of the interest of the person sought to be added as a plaintiff, and the new plaintiff’s claim arises out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, then a new plaintiff may be added and the defendant is not permitted to invoke a limitations defense. [Id. at 418.]
We believe that Hayes-Albion represents the better-reasoned rule. As noted in Hayes-Albion:
A key consideration in whether the court will allow the addition of a plaintiff is whether the defendant had notice within the statutory period of the “added” plaintiff and his claims. ... If the defendant had the requisite notice of the “added” plaintiff, and since the transactional base of the claim would have been pled before the period of limitation ran . . . the defendant would be prepared to defend all claims arising out of the transaction and would not be prejudiced by the addition of a plaintiff.
Although Michigan’s relation-back rule was borrowed from FR Civ P 15(c), the federal rule now has an additional provision addressing the addition of party defendants, thus making the application of the rule to plaintiffs easier by analogy. However, we find that the interpretation of the federal rule as applied to adding plaintiffs is helpful in looking at the question before us.
“As long as defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action against him, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense. This seems particularly sound inasmuch as the courts will require the scope of the amended pleading to stay within the ambit of the conduct, transaction, or occurrence set forth in the original pleading. [6A Wright, Miller & Kane, Federal Practice & Procedure (2d ed), § 1501, pp 154-155.]” [184 Mich App 417-418.]
See also Doan v Chesapeake & O R Co, 18 Mich App 271; 171 NW2d 27 (1969); Plowman v Satkowiak, 22 Mich App 425; 177 NW2d 641 (1970).
In the instant case, defendant had notice within the statutory period of Hicks and his claims and was prepared to defend all claims arising out of the February 24, 1983, incident. Thus, were it not for the administrative order, we would hold that defendant was not entitled to invoke a limitations defense because Hicks’ false imprisonment claim arises out of the conduct, transaction, or occurrence set forth in Hurt’s original complaint.
D
Contrary to defendant’s contention, these cases are properly remanded to the district court where they were originally tried after being removed from circuit court following the rejection of a mediation award that was less than the circuit court’s jurisdictional limit. Defendant’s reliance on MCR 4.003(E) to support its argument that the circuit court erred in refusing to retain Hicks’ case in the circuit court is misplaced because the court rule does not address the removal of actions when the circuit court is acting as an appellate court. On remand, we note that defendant may move in the district court to have both cases transferred to the circuit court in accordance with MCR 4.002(B).
E
We consider the remaining issues to the extent they will recur on retrial. First, defendant was not denied a fair trial when the trial court refused to rule on objections in the security guard’s videotaped deposition. MCR 2.315(F). On retrial, defendant should move in the trial court to rule on the objections in the videotaped deposition before trial in accordance with MCR 2.308(C)(3)(d). We also note that the trial court’s various other evidentiary rulings did not deny defendant a fair trial. Further, the trial court did not err in denying defendant’s motion for directed verdicts with respect to plaintiffs’ claims of false imprisonment, Clarke v K mart Corp, 197 Mich App 541, 546-547; 495 NW2d 820 (1992), Hurt’s claim of assault and battery, Espinoza v Thomas, 189 Mich App 110, 119; 472 NW2d 16 (1991), or Hicks’ claim of malicious prosecution, Payton v Detroit, 211 Mich App 375, 394-395; 536 NW2d 233 (1995). Finally, we note that the chief judge of the Wayne Circuit Court did not err in disqualifying the original circuit judge from deciding defendant’s appeal in the circuit court. MCL 600.306; MSA 27A.306; Crampton v Dep’t of State, 395 Mich 347, 351; 235 NW2d 352 (1975).
Affirmed in part, reversed in part, and remanded for further proceedings in the district court. Jurisdiction is not retained. | [
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Corrigan, J.
In this medical malpractice action involving mediation sanctions, plaintiffs appeal by leave granted the circuit court’s reversal of the district court’s order granting plaintiffs’ motion to compel, the distribution of attorney fees and costs. We affirm.
After mediation, the panel issued an evaluation in favor of plaintiffs Cynthia and James Bennett for $7,500, which all parties rejected. The jury later rendered a $5,000 verdict for plaintiffs. Because the adjusted verdict of $5,787.40 was more than ten percent below the mediation evaluation, defendants were entitled to mediation sanctions. The district court ruled that plaintiffs owed defendants $6,389.65 in mediation sanctions plus interest.
Plaintiffs then moved for reimbursement from defendants of $1,687.39 in costs and $1,366.66 for their attorney’s one-third contingency fee. The district court granted plaintiffs’ motion and ordered defendants to pay the costs and contingency fee. The circuit court, however, denied plaintiffs’ motion, opining that defendants were not bound by the .terms of the contingency agreement for attorney fees because they were not parties to the agreement. Plaintiffs appeal.
Plaintiffs assert that their counsel is entitled to the satisfaction of his attorney fees and costs from the judgment before defendants’ mediation sanctions are offset because the attorney’s lien is enforceable against a third party with, actual knowledge of the lien. We disagree.
Michigan recognizes a common-law attorney’s lien on a judgment or fund resulting from the attorney’s services. George v Sandor M Gelman, PC, 201 Mich App 474, 476-477; 506 NW2d 583 (1993); Doxtader v Sivertsen, 183 Mich App 812, 815; 455 NW2d 437 (1990). A special or charging lien is an attorney’s equitable right to have the fees due for services secured from the judgment in a particular suit. George, supra at 476. In accordance with that theory, plaintiffs’ counsel would be entitled to a one-third contingency fee from the judgment.
In Doxtader, supra, a case cited by both parties regarding a common-law attorney lien, the trial court, entered a default judgment against the defendant for $25,000. The plaintiff, without informing his attorney, later entered a satisfaction of judgment agreement for only $1,500. The plaintiffs attorney moved to set aside the satisfaction, arguing that he had a lien on the default judgment. Doxtader, supra at 813-814. This Court addressed whether the plaintiff had the right to discharge a judgment without his attorney’s consent and decided that the plaintiff could not discharge the claim if it prejudiced the lien. Id. at 815. Doxtader is distinguishable from the instant case because mediation sanctions were not at issue in Doxtader. Also, the Doxtader plaintiff was entitléd to a $25,000 judgment, whereas in this case, plaintiffs’ judgment amounts to a negative number. Further, the Doxtader plaintiff attempted to satisfy the judgment without his attorney’s knowledge; in this case, plaintiffs’ attorney knew that plaintiffs rejected the mediation evaluation.
Also, the action at bar is unlike cases with multiple defendants where one defendant has settled with the plaintiff, and then the verdict at trial is more favorable to another defendant, to whom the court later awards mediation sanctions. Under that circumstance, the plaintiff’s counsel is entitled to collect his contingency fee from the settlement, which was separate and apart from the verdict. Moreover, in that instance another defendant had paid the settlement, which is not the situation here.
The current action also does not present facts similar to those in cases where counsel seeks reimbursement of attorney fees from an existing fund. See Aetna Casualty & Surety Co v Starkey, 116 Mich App 640; 323 NW2d 325 (1982); Miles v Krainik, 16 Mich App 7; 167 NW2d 479 (1969). In this case, no fund exists from which plaintiffs’ counsel may collect his fee.
In contrast with the common-law principles illustrated above, MCR 2.403, the mediation sanctions court rule, provides that the party to whom the verdict was more favorable is entitled to sanctions. Under that rule, defendants are entitled to sanctions against plaintiffs in an amount that exceeds the sum of the verdict. Whether defendants must pay plaintiffs’ attorney fees from the judgment before offsetting the mediation sanctions is an issue of first impression and is a question of law subject to review de novo. McCaw v T & L Operations, Inc, 217 Mich App 181, 185; 550 NW2d 852 (1996); Lockhart v 36th Dist Court Judge, 204 Mich App 684, 688; 516 NW2d 76 (1994).
We must decide whether the court rules regarding attorney fees and mediation sanctions take precedence over a common-law attorney lien. This Court applies the rules of statutory construction when interpreting court rules. Smith v Henry Ford Hosp, 219 Mich App 555; 557 NW2d 154 (1996); Larson v Auto-Owners Ins Co, 194 Mich App 329, 332; 486 NW2d 128 (1992). When the language of a statute conflicts with the common law, the unambiguous language of the statute takes precedence. Barker Bros Construction v Bureau of Safety & Regulation, 212 Mich App 132, 140; 536 NW2d 845 (1995). Also, the Legislature presumably is aware of contrary common-law rules that a statute will abrogate. Dep’t of Treasury v Campbell, 107 Mich App 561, 568; 309 NW2d 668 (1981). Simi larly, our Supreme Court presumably is aware of contrary common-law rules when fashioning court rules.
MCR 8.121 governs the contingency fees of attorneys in actions for personal injury. MCR 8.121(B) and (C) provide:
(B) Maximum Pee. The maximum allowable fee for the claims and actions referred to in subrule (A) is one-third of the amount recovered.
(C) Computation. The amount referred to in subrule (B) shall be computed on the net sum recovered after deducting from the amount recovered all disbursements 'properly chargeable to the enforcement of the claim or prosecution of the action. In computing the fee, the costs as taxed and any interest included in or upon the amount of a judgment shall be deemed part of the amount recovered. In the case of a settlement payable in installments, the amount referred to in subrale (B) shall be computed using the present value of the future payments. [Emphasis supplied.]
MCR 8.121 provides that the maximum allowable contingency fee is one-third of “the amount recovered.” In this case, plaintiffs will not recover any money as a result of the litigation. Although the jury awarded plaintiffs a $5,000 verdict, plaintiffs owe defendants $6,389.65 in mediation sanctions. Because plaintiffs recovered nothing in the litigation, no “recovery” exists upon which an attorney’s lien may attach. The court rule specifies that the fee operates against the net recovered amount. The unambiguous language of the court rule takes precedence over the common law upon which plaintiffs rely. Barker Bros, supra.
MCR 2.403 delimits mediation sanctions and describes a rejecting party’s liability for costs. MCR 2.403(O)(l) and (3) provide:
(1) If a party has rejected an evaluation and the action proceeds to trial, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the mediation evaluation.
(3) For the purpose of subrale (0)(1), a verdict must be adjusted by adding to it assessable costs and interest on the amount of the verdict from the filing of the complaint to the date of the mediation evaluation. After this adjustment, the verdict is considered more favorable to a defendant if it is more than 10 percent below the evaluation, and is considered more favorable to the plaintiff if it is more than 10 percent above the evaluation. If the evaluation was zero, a verdict finding that a defendant is not liable to the plaintiff shall be deemed more favorable to the defendant.
This Court construes a court rule in accordance with the ordinary and approved usage of the language, considering the purpose of the court rule. Larson, supra at 332. The purpose of MCR 2.403 is to expedite and simplify the final settlement of cases to avoid a trial. Neal v Neal, 219 Mich App 490; 557 NW2d 133 (1996). The sanction condition places the burden of litigation costs on the party who demands a trial by rejecting a proposed mediation award. Id. Because plaintiffs rejected the mediation award, which necessitated the additional time and expense of trial, plaintiffs should bear the costs of litigation. This Court declines to force defendants to pay plaintiffs’ attorney fees, which would impose the additional burden on defendants of attempting to collect a larger amount of mediation sanctions from plaintiffs.
Additionally, we decline to impose a duty upon defendants to pay the contingency fee of plaintiffs’ counsel as a matter of policy. Under the traditional “American rule,” each side must bear its own litigation expenses, unless the law or court rules specify an exception. Roan v Murray, 219 Mich App 562; 556 NW2d 893 (1996); State Farm Mutual Automobile Ins Co v Allen, 50 Mich App 71, 74; 212 NW2d 821 (1973). This rule was designed to ensure that private parties who pursue individual remedies bear the expense of litigation under most circumstances. Roan, swpra. By rejecting the mediation award, plaintiffs and their counsel assumed the risk that the verdict would be lower than the award. Defendants should not be made to pay plaintiffs’ attorney fees merely because plaintiffs lost their gamble. No special equitable circumstances exist to support the collection of plaintiffs’ contingent attorney fees from defendants.
Affirmed.
This figure represents one-third of the judgment after costs were subtracted (or one-third of $4,100).
The common-law right to an attorney’s lien is not codified in a statute. George, supra at 477. | [
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Markey, J.
This appeal of a September 24, 1993, opinion and order of the Worker’s Compensation Appellate Commission, one member dissenting, comes to this Court “for consideration as on leave granted” pursuant to the order of the Michigan Supreme Court, Tyler v Livonia Public Schools, 447 Mich 970 (1994). The wcac decision affirms the decision of the magistrate, which, while awarding plaintiff worker’s compensation disability benefits, allows defendant Livonia Public Schools to coordinate those benefits with plaintiffs disability pension provided pursuant to MCL 38.1386; MSA 15.893(196). We affirm.
The pertinent facts are not in dispute. After many years of employment in the public school system as a general laborer, plaintiff suffered work-related back injuries that have disabled him from further employment. His last day of work was November 9, 1989. Plaintiff is receiving a disability pension pursuant to the Public School Employees Retirement Act, MCL 38.1386; MSA 15.893(196). The sole question presented is whether those disability pension benefits can be coordinated against defendant’s worker’s compensation liability.
Plaintiff presents two issues for review:
I. Did the wcac err as a matter of law in concluding that plaintiff’s disability pension may BE utilized for coordination
PURPOSES UNDER § 354 OF THE WDCA TO FUND A PORTION OF DEFENDANT’S WORKER’S COMPENSATION LIABILITY TO PLAINTIFF?
II. If DEFENDANT MAY UTILIZE PLAINTIFF’S PENSION BENEFIT TO FUND A PORTION OF ITS WORKER’S COMPENSATION LIABILITY TO PLAINTIFF, DOES THIS VIOLATE CONST 1963, ART 1, § 10 AND CONST 1963, ART 9, § 24?
The legal questions presented were not decided by the WCAC on the basis of a longstanding administrative interpretation of the relevant statutory provisions, but as an issue of first impression. Accordingly, we review such legal issues de novo, according only minimal deference to the administrative construction of the statute, and set aside an agency’s ruling regarding a question of law only where a party’s substantial rights were prejudiced because of a substantial and material error of law. Schuhknecht v State Plumbing Bd, 277 Mich 183, 186-187; 269 NW 136 (1936); Ron ney v Dep’t of Social Services, 210 Mich App 312, 315; 532 NW2d 910 (1995).
The pertinent portions of § 354 of the Worker’s Disability Compensation Act (wdca), MCL 418.354(1)(d) and (14); MSA 17.237(354)(1)(d) and (14), are as follows:
(1) This section is applicable when either weekly or lump sum payments are made to an employee as a result of liability pursuant to section 351, 361, or 835 with respect to the same time period for which . . . payments under ... a disability insurance policy provided by the employer; or pension or retirement payments pursuant to a plan or program established or maintained by the employer, are also received or being received by the employee. Except as otherwise provided in this section, the employer’s obligation to pay or cause to be paid weekly benefits other than specific loss benefits under section 361(2) and (3) shall be reduced by these amounts:
* * *
(d) The after-tax amount of the pension or retirement payments received or being received pursuant to a plan or program established or maintained by the same employer from whom benefits under section 351, 361, or 835 are received, if the employee did not contribute directly to the pension or retirement plan or program. Subsequent increases in a pension or retirement program shall not affect the coordination of these benefits.
* * *
(14) This section does not apply to any payments received or to be received under a disability pension plan provided by the same employer which plan is in existence on March 31, 1982. Any disability pension plan entered into or renewed after March 31, 1982 may provide that the payments under that disability pension plan provided by the employer shall not be coordinated pursuant to this section.
The WCAC unanimously viewed subparagraph 14 as addressing disability pension arrangements resulting from collective bargaining, and this assessment is correct. What the parties and the wcac seem to have overlooked, however, is the delicate phraseological distinctions the Legislature made between subparagraphs 1 and 14. In subparagraph 1, the Legislature authorized coordination for, inter alia, “pension or retirement payments pursuant to a plan or program established or maintained by the employer.” By comparison, in subparagraph 14, an exception was made for payments received or to be received under a “disability pension plan provided by the same employer which plan is in existence on March 31, 1982.”
Section 354 was initially added to the WDCA by 1981 PA 203, effective March 31, 1982. The Legislature linked the effective date of the statute with its disavowal of intent to affect preexisting disability pension plans for a reason that becomes obvious when the distinction between “plans” and “programs” is understood. Section 354(1), which deals collectively with plans and programs, is distinguished from subparagraph 14, which deals only with “plans,” because a “plan” is a reflection of a contractual relationship between an employer and an employee, subject to regulation under the Employee Retirement Income Security Act (erisa), 29 USC 1001 el seq.
By the same token, the erisa provides a blanket exemption from its regulatory ambit for “government plans” established or maintained by the government of any state or political subdivision for its employees. 29 USC 1002(2)(a)(32) and 1321(b)(2). Although the Legislature did not provide a glossary in 1981 PA 203 (which became, inter alia, § 354 of the wdca), we must construe the statute in a manner that recognizes that phraseological distinctions in the subparagraphs of a statutory section presumably reflect a legislative intent to treat some things differently. Stowers v Wolodzko, 386 Mich 119, 133-134; 191 NW2d 355 (1971); In re Brzezinski, 214 Mich App 652, 663-664; 542 NW2d 871 (1995).
We think the distinction between a “program” and a “plan” as used in § 354 is based on a “program” as being a reference to a govemmentally created system of reimbursement, protection, or remuneration. The disability pension benefits called for by the Public School Employees Retirement Act constitute a “program” that, albeit “established” by the Legislature, is “maintained” by the individual school district employer funding the program. For this purpose, funding is equivalent to “maintaining” such a program. Dezwaan v Holland Motor Express, 189 Mich App 575, 578; 473 NW2d 788 (1991). Plaintiff thus errs in contending that, if the disability pension benefits he receives are not immune from coordination because they are not a “plan” for purposes of subparagraph 14, they are likewise not a “plan” for purposes of coordination under subparagraph 1. This argument overlooks the crucial fact that subparagraph 1 applies to “programs” as well as “plans.”
In recognizing that the reference in subparagraph 14 to “plans” refers only to contractual obligations, the Legislature reveals that it properly concerned itself with constitutional limitations on its authority. But for its inclusion of such a provision, the entire section might be declared unconstitutional as an impairment of the obligation of contracts, in violation of Const 1963, art 1, § 10 and US Const, art I, § 10. See Monroe Beverage Co, Inc v Stroh Brewery Co, 211 Mich App 286, 297; 535 NW2d 253 (1995); Washtenaw Community College Ed Ass’n v Washtenaw Community College Bd of Trustees, 50 Mich App 467, 471-473; 213 NW2d 567 (1973). The Legislature thus applied coordination to contractual plans only if such plans are renewed or created after March 31, 1982, because the constitutional impediment does not apply to contracts made after the effective date of a statute. See, e.g., Seitz v Probate Judges Retirement System, 189 Mich App 445, 451-452, 455; 474 NW2d 125 (1991).
In contrast, government benefits payable pursuant to statute are not contractual in nature. See Powers v Peoples Community Hosp Authority, 183 Mich App 550, 554; 455 NW2d 371 (1990); Guilbault v Dep’t of Mental Health, 160 Mich App 781, 784-785; 408 NW2d 558 (1987). Hence, the Legislature is not constrained by the Impairment of Contracts Clauses of the state and federal constitutions in modifying or amending statutory pension programs before the time that rights thereunder become fixed.
Plaintiff attempts to turn this prophylaxis on its head by arguing that the effect of coordinating his disability pension is to impair a contractual obligation. Plaintiff argues that, while under the Constitution of 1908, pensions granted by public authorities were not deemed to be contractual obligations but rather gratuitous allowances that could be revoked at will, Const 1963, art 9, § 24 declares that the accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions “shall be a contractual obligation thereof which shall not be diminished or impaired.” Thus, the Constitution of 1963 treats pension benefits as contractual obliga tions that may not be impaired by legislative enactment. Advisory Opinion re Constitutionality of 1972 PA 258, 389 Mich 659, 662-663; 209 NW2d 200 (1973); Campbell v Judges’ Retirement Bd, 378 Mich 169, 180-182; 143 NW2d 755 (1966).
Accepting that principle, we find that it simply does not apply to disability pensions, except for persons who are already disabled and therefore whose right to such pension has vested (“accrued”). See, e.g., Campbell, supra at 180-181. In Advisory Opinion, supra, our Supreme Court quoted from the constitutional convention debates where proponents of what became art 9, § 24 aptly described nondisability pension benefits as simply deferred compensation for work performed. The same cannot be said of a disability pension for a person not yet disabled. Because plaintiff was not disabled on March 31, 1982, and had no right to a disability pension at that time, the subsequent adoption of coordination of such disability pensions with worker’s compensation benefits neither deprived him of any vested right nor impaired the obligation of any contract. Yet, had plaintiff been potentially entitled to a disability pension under a collective bargaining agreement or other contractual form of obligation that was not entered into or renewed after March 31, 1982, subparagraph 14 of § 354 would be necessary to prevent an impairment of the obligation of such a contract. See Kosa v State Treasurer, 408 Mich 356, 371-372; 292 NW2d 452 (1980); Washtenaw Community College Ed Ass’n, supra.
In failing to recognize the distinction between “plans” and “programs,” the wcac lost itself in a thicket of reasoning from which it could not logically extricate itself. The wcac majority argued that, although the Public School Employees Retirement Act was not in relevant part amended after 1979, technical amendments after March 31, 1982, constituted a “renewal” or “entering into” of a disability pension plan. The original statute had no expiration date or sunset clause, however, and thus the Legislature simply “continued” the program rather than “renewed” it. Likewise, the Legislature, if it did anything, “created” a pension program rather than “entered into” one, the latter term usually applying to contractual obligations, not statutory enactments.
For like reason, it is irrelevant to this case, as the WCAC majority concluded, whether plaintiff or defendant had the burden of proof with respect to the application of subparagraph 14. Because that subparagraph does not apply by its terms, being limited to “plans” and having no application to “programs,” evidentiary technicalities need not be considered. It may be that the employee should have the burden of proof, but the employer, who knows the details and dates of “entering into” and “renewing” such plans, may have the burden of coming forward with evidence— an issue to be addressed in some proper case and on which at this time we express no opinion.
Affirmed.
R J. Sullivan, J., concurred. | [
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Jansen, J.
Following a juiy trial, defendant was convicted of delivery of a controlled substance (codeine), MCL 333.7401(2)(b); MSA 14.15(7401)(2)(b). He thereafter pleaded guilty of being a fourth-offense habitual offender, MCL 769.12; MSA 28.1084, and was sen tenced to seven to twenty years’ imprisonment. Defendant appeals as of right and we affirm.
This case arises out of an undercover buy of a controlled substance on May 11, 1993. Defendant sold ten generic tablets, which contained codeine, to an undercover police officer for $30. The police officer had been brought to defendant’s home by an informant. Defendant testified that he abused prescription drugs that had been prescribed to him for back pain and that he abused alcohol as well. Defendant, however, denied selling any drugs to the undercover officer, but admitted buying drugs from the informant in the past.
On appeal, defendant raises a total of six issues. He claims that the trial court erred in refusing to instruct the jury regarding the defense of intoxication, that the prosecutor improperly injected into the trial the issue of defendant’s alleged assault of a police officer while armed with a shotgun, and that his sentence violates the principle of proportionality. In his brief filed in propria persona, defendant argues that he was denied the . effective assistance of counsel, that the prosecutor’s failure to produce the police informant at trial was a denial of due process, and that the cumulative effect of the errors at trial denied him a fair trial. We do not find any issue to require reversal.
i
Defendant first argues that the trial court erred in refusing to instruct the jury regarding the defense of intoxication. A review of the lower court record indicates that although the issue of voluntary intoxication was discussed in connection with the giving of an instruction regarding insanity or diminished capacity, defendant did not request an instruction regarding voluntary intoxication or object to the instructions that were given- Pursuant to MCL 768.29; MSA 28.1052, a verdict shall not be set aside where the court fails to instruct with regard to any point of law unless the defendant requests such an instruction. Further, a trial court is not required to present an instruction of the defendant’s theory to the jury unless the defendant makes such a request. People v Mills, 450 Mich 61, 81; 537 NW2d 909 (1995). Because defendant did not request this instruction at trial and did not object to the trial court’s instructions to the jury, we review this issue only to determine if manifest injustice resulted. People v Van Dorsten, 441 Mich 540, 544-545; 494 NW2d 737 (1993).
There is no manifest injustice in this case. The trial court properly instructed the jury that voluntary intoxication is not a defense to the crime of delivery of codeine. Voluntary intoxication is a defense only to a specific intent crime.. People v Langworthy, 416 Mich 630, 638; 331 NW2d 171 (1982); People v King, 210 Mich App 425, 428; 534 NW2d 534 (1995). Defendant argues that delivery of a controlled substance is a specific intent crime. We disagree.
Delivery is defined in MCL 333.7105(1); MSA 14.15(7105)(1) as the actual, constructive, or attempted transfer from one person to another of a controlled substance. Neither that definition nor the provision proscribing the delivery of a controlled substance, MCL 333.7401; MSA 14.15(7401), contains any language regarding the actor’s intent. The distinction between specific intent and general intent crimes is that specific intent crimes involve a particular criminal intent beyond the act done, while general intent crimes involve merely the intent to do the physical act. People v Beaudin, 417 Mich 570, 573-574; 339 NW2d 461 (1983). The cases are well settled that the act of transferring a controlled substance is sufficient to sustain a finding of an actual delivery. See People v Edwards, 107 Mich App 767; 309 NW2d 607 (1981); People v Steele, 429 Mich 13, 25-26; 412 NW2d 206 (1987). Those cases do not require an intent involving a particular criminal intent beyond the act of delivering the controlled substance. Moreover, our Supreme Court has stated that knowledge is not required as an element in the statute. Id., p 26, n 10; People v Delgado, 404 Mich 76, 86; 273 NW2d 395 (1978). Finally, we note that this Court has stated that there was no error in the trial court’s refusal to give a specific intent instruction where the defendant was convicted of delivery of cocaine. People v Tate, 134 Mich App 682, 694; 352 NW2d 297 (1984).
Accordingly, we conclude that delivery of a controlled substance is a general intent crime and that voluntary intoxication is not a defense to this offense. The trial court properly instructed the jury that voluntary intoxication is not a defense to a charge of delivery of a controlled substance.
n
Defendant next argues that the prosecutor improperly injected the issue of defendant’s alleged assault on a police officer while armed with a shotgun. On direct examination, defendant testified that he had been convicted of resisting and obstructing a police officer and he discussed the circumstances surrounding the offense. On cross-examination, the prosecutor asked defendant whether he had aimed a shotgun at a police officer and was originally charged with assault with a dangerous weapon. Defense counsel objected, citing MRE 609, on the ground that the question improperly referred to the charge rather than the conviction.
On appeal, defendant argues that the prosecutor’s question was designed to inflame the jury. Defendant did not object on this basis below, and, generally, an objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground. People v Stimage, 202 Mich App 28, 30; 507 NW2d 778 (1993). Further, no substantial right of defendant’s was affected, MRE 103(a)(1), because defendant’s testimony on direct examination opened the door to the questions asked by the prosecutor with regard to the circumstances surrounding the conviction. People v Paquette, 214 Mich App 336, 342; 543 NW2d 342 (1995).
m
Next, defendant claims that he was denied the effective assistance of counsel at trial because counsel failed to raise the defense of entrapment. Defendant did not move for a new trial or an evidentiary hearing on this basis below. Failure to so move precludes appellate review unless the record contains sufficient detail to support defendant’s claims, and, if so, review is limited to the record. People v Barclay, 208 Mich App 670, 672; 528 NW2d 842 (1995).
A review of the trial testimony does not reveal that defendant could have proffered a successful entrapment defense under either test set forth in People v Fabiano, 192 Mich App 523, 526; 482 NW2d 467 (1992). Therefore, we cannot conclude from the record before us that defense counsel’s performance fell below an objective standard of reasonableness or that the representation prejudiced defendant. People v Pickens, 446 Mich 298, 309; 521 NW2d 797 (1994).
rv
Defendant also argues that the prosecutor failed to use due diligence to produce the police informant at trial. A careful review of the record indicates that defendant is not entitled to relief with regard to this issue.
Before the jury was selected, the prosecutor informed the trial court that the confidential police informant, Larry Karcher, had been subpoenaed but would not be present for trial. The prosecutor further stated that he did not know why Karcher would not be present, but had only been informed that Karcher would not be returning to this state for trial. The prosecutor then requested that the trial court permit him to use Karcher’s preliminary examination testimony in lieu of Karcher’s live testimony. The trial court denied this request, ruling that allowing the prosecutor to use the preliminary examination testimony would be prejudicial ahd an unfair surprise to defense counsel. Because of this ruling, the prosecutor then moved to sever counts I and H (delivery of codeine and delivery of hydrocodone) of the felony complaint, adjourn trial on those two counts, and proceed to trial only on count m (delivery of codeine).
In not allowing the prosecutor to use the preliminary examination testimony, the trial court specifically stated that it assumed that the prosecutor had used due diligence in attempting to produce Karcher for trial. Ultimately, defense counsel agreed that he would assume that the prosecutor had used due diligence in attempting to produce Karcher for trial and that he had no objection to severing counts I and n and adjourning those two counts while proceeding to trial with regard to count m only. Further, the prosecutor was not entitled to use Karcher’s preliminary examination testimony at trial.
Under MCL 767.40a(4); MSA 28.980(1)(4), a witness to be called at trial may be deleted from the witness list by the prosecutor at any time upon leave of the court and for good cause shown or by stipulation of the parties. Here, the parties stipulated deleting Karcher from the witness list, and the trial court fashioned an appropriate remedy in defendant’s favor.. Defendant has not identified any error requiring reversal regarding this issue.
v
Defendant also contends that the cumulative effect of the errors deprived him of a fair trial, citing an unpublished opinion per curiam of this Court. First, we note that an unpublished opinion is not precedentially binding under the rule of stare decisis. MCR 7.215(C)(1). Second, we reject the merits of defendant’s claim because we have concluded that no errors occurred at trial; thus, we reject the argument that the cumulative effect of the errors requires reversal. People v Wilson, 196 Mich App 604, 610; 493 NW2d 471 (1992).
VI
Last, defendant claims that his sentence of seven to twenty years violates the principle of proportionality. First, although the sentence recommended by sen- fencing guidelines for the underlying conviction of delivery of codeine was IV2 to 4 years, defendant was sentenced as a fourth-offense habitual offender. Appellate review of habitual offender sentences using the sentencing guidelines is inappropriate. People v Gatewood, 450 Mich 1025 (1996); People v Gatewood (On Remand), 216 Mich App 559, 560; 550 NW2d 265 (1996). Our review of defendant’s fourth-offense habitual offender sentence is limited to whether the sentence violates the principle of proportionality without reference to the guidelines. Id. In light of the circumstances of this case and the background of the offender (four prior felony convictions and twenty-two prior misdemeanor convictions), we cannot conclude that the sentence violates the principle of proportionality. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).
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] |
Marilyn Kelly, J.
Plaintiff appeals as of right and defendant cross-appeals from an order granting summary disposition to defendant in this wrongful death action pursuant to MCR 2.116(C)(8). Plaintiff argues that it was for the jury to decide whether defendant could be held liable for giving a handgun to his mentally impaired son who used it to kill plaintiffs decedent. We reverse.
i
On September 29, 1991, Anthony Glaser was outside his parents’ home. Four friends of decedent’s family engaged him in a verbal altercation. Apparently, there was a history of tension between the Glaser family and the Ross family. Members of the Ross family and neighborhood rivals had assaulted or harassed Anthony, who suffered from a psychosis and other mental disturbances. The encounters caused Anthony to purchase three guns in the summer of 1991.
On the day in question, neighborhood youths had been taunting Anthony. In an agitated state, he entered the family house and yelled to defendant to hand him one of the guns. Defendant complied. Anthony obscured the gun from view behind his waistband and returned outside. Defendant followed and attempted to physically restrain Anthony while calling for neighbors to contact the police.
When police officers arrived, defendant and his wife argued with them regarding the ineffectiveness of the police in dealing with the harassment. In the meantime, Anthony got into his automobile and drove away. Within minutes, he encountered plaintiffs decedent outside a neighborhood store and shot him to death. Anthony was found guilty but mentally ill of second-degree murder.
Plaintiff then filed this wrongful death action against defendant. In it, she claims that defendant was negligent for handing a loaded gun to his unstable son, knowing his agitated state and the history of confrontation between the families.
Defendant moved for summary disposition, arguing that he owed no duty to protect third parties from Anthony’s criminal acts. He also claimed that his act of handing Anthony the gun was not the proximate cause of the death. The trial court relied on Bell & Hudson, PC v Buhl Realty Co, 185 Mich App 714; 462 NW2d 851 (1990). It ruled that the familial relationship was insufficient to impose a duty upon defend ant to protect the general public or plaintiffs decedent from Anthony’s criminal acts.
n
As part of a prima facie case of negligence, a plaintiff must prove that the defendant owed him a duty. Schultz v Consumers Power Co, 443 Mich 445, 449; 506 NW2d 175 (1993). Duty is a legally recognized obligation to conform to a particular standard of conduct toward another. Chivas v Koehler, 182 Mich App 467, 475; 453 NW2d 264 (1990). Duty comprehends whether the defendant is under any obligation to the plaintiff to avoid negligent conduct; it does not include the nature of the obligation. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977). If the court determines as a matter of law that a defendant owed no duty to a plaintiff, summary disposition is properly granted under MCR 2.116(C)(8). Dykema v Gus Macker Enterprises, Inc, 196 Mich App 6, 9; 492 NW2d 472 (1992).
In this case, defendant argues that he has no duty to control the conduct of third parties absent a special relationship to them, particularly when the conduct is criminal. See 2 Restatement Torts, 2d, §§ 314-315, pp 116-123. He asserts that the father-son relationship is insufficient to establish the required special relationship that would impose a duty on him. See generally Bell & Hudson, PC, supra.
The argument is unavailing. Michigan courts have distinguished active misconduct causing personal injury (misfeasance) and passive inaction or the failure to protect others from harm (nonfeasance). Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 498; 418 NW2d 381 (1988). Generally, with respect to nonfeasance, there is no legal duty that obligates a person to aid or protect another. Id. at 498-499. An exception has developed where a special relationship exists between the persons. Id. at 499; Dykema, supra at 8; Bell & Hudson, supra.
However, defendant’s act of handing a loaded gun to Anthony was not one of nonfeasance, but rather misfeasance. Therefore, the special relationship doctrine is inapplicable, and the trial court erred in relying on Bell & Hudson, supra. Instead, we must determine whether defendant had a duty to refrain from handing Anthony a loaded weapon.
Several considerations underlie the determination whether a duty exists: (1) the foreseeability of the harm; (2) the degree of certainty of injury; (3) the closeness of the connection between the conduct and the injury; (4) the moral blame attached to the conduct; (5) the public policy of preventing future harm; and (6) the burdens and consequences of imposing a duty and the resulting liability for breach. Buczkowski v McKay, 441 Mich 96, 101, n 4; 490 NW2d 330 (1992); Babula v Robertson, 212 Mich App 45, 49; 536 NW2d 834 (1995).
As to foreseeability, we determine whether it is foreseeable that the conduct may create a risk of harm to the victim and whether the result and intervening causes were foreseeable. Moning, supra at 439; Berry v J & D Auto Dismantlers, Inc, 195 Mich App 476, 481; 491 NW2d 585 (1992).
Looking at the record in this case, Anthony was chronically mentally unstable, having been diagnosed as paranoid schizophrenic and hospitalized numerous times. An intense neighborhood conflict existed between Anthony and the Ross family and their “backers.” Numerous police reports were filed because of this conflict during the summer and fall of 1991. As a result of the conflict, Anthony purchased three guns that summer. On the day of the shooting, four young men harassed Anthony. He ran into the house and yelled to defendant to get his gun. Despite his knowledge of his son’s mental instability and his awareness of the neighborhood conflict which was manifesting itself at that very moment, defendant handed the gun to Anthony.
Under these circumstances, the harm was foreseeable. When defendant handed the gun to Anthony, it was foreseeable that Anthony would shoot someone. It is true that the harm did not befall one of the four antagonists while outside the Glaser home. Nevertheless, when defendant gave the gun to Anthony, it was foreseeable that he would respond to a perceived threat by firing it at a member of the Ross family. The Rosses were at the center of the antagonism. It is not necessary that the mariner in which a person might suffer injury be foreseen or anticipated in specific detail. Babula, supra at 53.
With respect to the issue of duty, the dissent erroneously maintains that a duty should not be imposed here, for the sole reason that the shooting was unforeseeable. Our Supreme Court has held that the question of duty depends only in part on foreseeability. Other considerations are usually more important. Buczkowski, supra at 101.
In Buczkowski, the Court held that a duty should not be imposed on a retailer who sold ammunition to an allegedly incompetent person who later injured another while using the ammunition. The Court noted that it was unforeseeable what action the customer would take with the ammunition. The Court further stated:
Where foreseeability fails as an adequate template for the existence of a duty, recourse must be had to the basic issues of policy underlying the core problem whether the plaintiffs interests are entitled to legal protection against the defendant’s conduct. [Id. at 102.]
The Court noted that a duty could be imposed despite the actual lack of foreseeability. Id. at 108. In Buckzkowski, because there was no evidence that the customer acted in a threatening manner or was legally incompetent, the Court declined to impose, a duty on the defendant. Id. at 109.
Here, the relationship between the parties is much different from that in Buczkowski. Defendant knew that his son was mentally incompetent, had been hospitalized several times due to his mental illness and was subject to “rage attacks” at the slightest provocation. Under those circumstances, defendant had a duty not to hand his son a loaded weapon. The likelihood of injury is high when a mentally ill individual is handed a loaded gun while in an agitated state and in conflict with antagonists.
Moreover, the proximity in time between defendant’s conduct and the shooting of one of Anthony’s antagonists is sufficiently close to give rise to a duty. Anthony is the one most blameworthy for the shooting death of plaintiff’s decedent. However, defendant put the gun, in his hands. Under the circumstances, his conduct carries some degree of moral blame.
Finally, the determination that defendant owed a duty not to create an unreasonable risk of harm to others enforces a public policy that prevents harm to third persons. Moreover, the burden on members of the public in imposing a duty under these circumstances is slight. In Buczkowski, the Court examined whether a duty should be placed on a retailer to inquire into every customer’s possible use of potentially harmful products which the retailer sells. The Court concluded that such a duty would cause potentially harmful products either to become unavailable to law-abiding citizens or become more expensive as sellers redistributed the costs of potential liability to all consumers. Buczkowski, supra at 108. Therefore, the burden placed on the general public by imposing a duty on retailers was high.
Here, however, there is no increased burden, financial or otherwise, placed on members of the public, other than those who would give loaded weapons to mentally impaired individuals. They now have an increased burden to refrain from taking such action.
We note that we are not finding that defendant had a duty to act where he failed to act. Rather, he had a duty not to act if, by doing so, he would create an unreasonable risk of harm.
Further authority for our position is found in 2 of the Restatement Torts 2d, § 302B, p 88, which states:
An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.
sidered. Baker v Arbor Drugs, Inc, 215 Mich App 198, 203; 544 NW2d 727 (1996).
Illustration 11 gives the following example:
A gives an air rifle to B, a boy six years old. B intentionally shoots C, putting out C’s eye. A may be found to be negligent towards C. [Id. at 92.]
Here, even though Anthony is not a youngster, the evidence reveals that he was undergoing treatment for recurrent mental illness. Defendant knew this, but nevertheless gave him a loaded gun. He should have realized that the action could reasonably result in injury to another. Defendant did not merely fail to prevent harm; he increased the risk of harm by providing Anthony with the loaded gun.
The dissent states that a duty should not be imposed in this case because of a lack of evidence that Anthony’s problems had ever before manifested themselves in violence. However, the deposition testimony reveals that, in early childhood, Anthony began to develop severe obsessions and compulsions. Everything in his life had to be controlled and orderly. When it was not, he would “fly into rage attacks and be uncontrollable at times.” As he grew up, the rage reactions continued; he would become violent, break things and punch holes in walls. During adolescence, he was diagnosed as a paranoid schizophrenic. He felt persecuted and often felt things were worse than they actually were. While the dissent apparently would wait until the first person was injured before imposing a duty on defendant not to hand such an individual a loaded weapon, it is preferable to prevent the first incidence of violence from occurring. Therefore, the trial court erred in dismissing this case pursuant to MCR 2.116(C)(8), on the basis that defendant owed no duty to plaintiffs decedent.
m
The dissent reasons that this action was appropriately dismissed because defendant’s conduct cannot be characterized as a cause-in-fact of the shooting. However, defendant does not raise the issue of cause-in-fact in his cross-appeal. Defendant argues in his cross-appeal only that Anthony’s conduct was an intervening superseding cause and that his actions were not the legal cause of decedent’s death. Therefore, the cause-in-fact issue is not properly before this Court. Froling v Carpenter, 203 Mich App 368, 373; 512 NW2d 6 (1994).
Even if the issue were properly before us, a question of fact exists as to whether defendant’s handing a loaded weapon to Anthony was a cause-in-fact of the shooting. By giving Anthony a loaded weapon, defendant was in effect telling him that it was permissible to use it. Anthony did just that when he encountered decedent. But for defendant giving Anthony the gun, the shooting might not have occurred.
IV
In his cross-appeal, defendant argues that, even if a duty is found, summary disposition is still appropriate, because his actions were not the proximate cause of the death. The trial court specifically declined to address this issue. Because the facts are undisputed, we will address it now.
The question of proximate cause, like duty, depends in part on foreseeability. Moning, supra at 439. Proximate cause is that which operates to pro duce particular consequences without the intervention of any independent, unforeseen cause, without which the injuries would not have occurred. McMillan v Vliet, 422 Mich 570, 576; 374 NW2d 679 (1985); Babula, supra at 54. It involves a determination that the connection between the wrongful conduct and the injury is of such a nature that it is socially and economically desirable to hold the wrongdoer liable. Adas v Ames Color-File, 160 Mich App 297, 301; 407 NW2d 640 (1987). Proximate cause is usually a factual question to be decided by the jury. Schutte v Celotex Corp, 196 Mich App 135, 138; 492 NW2d 773 (1992).
Here, defendant argues that Anthony’s intervening acts of getting into the car, driving to a store and shooting decedent were superseding acts which cut off liability. However, an intervening act is not a superseding act if the injury was reasonably foreseeable. Hickey v Zezulka (On Resubmission), 439 Mich 408, 437 (Brickley, J), 447 (Riley, J); 487 NW2d 106 (1992). When a defendant’s negligence enhances the likelihood that the intervening act will occur, the act is reasonably foreseeable, and the defendant remains liable. Hickey, supra at 438 (Brickley, J), 447 (Riley, J).
Here, reasonable minds could differ on whether Anthony’s intervening actions superseded defendant’s actions, thus cutting off his liability. Arbelius v Poletti, 188 Mich App 14, 21; 469 NW2d 436 (1991). Anthony did not shoot a stranger. Nor did he shoot decedent weeks, days or even hours after the confrontation outside his parents’ home. Rather, Anthony shot decedent just minutes after defendant handed him a loaded gun, and just minutes after the confrontation outside his parents’ home had ended. It is argu able, then, that the trier of fact could find that Anthony’s intervening acts were foreseeable and should not relieve defendant of liability. Arbelius, supra at 19. Under the facts presented in this case, we conclude that summary disposition was inappropriate.
We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
L. V. Bucci, J., I concur in the result only.
We do not, as the dissent suggests, focus only on moral blame in imposing a duty on defendant. It is but one of several factors to be con- | [
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Doctoroff, C.J.
The complainant in this case, William Madden, was attacked in his hotel room after answering a knock on the door. Following a struggle with his attacker, Madden was briefly rendered unconscious. When he awoke, he discovered that his wallet and keys were missing. Madden saw the assailant attempt to unlock Madden’s car. Madden went to the parking lot and yelled at the assailant, who then attacked Madden again. This attack was witnessed by several people. As Madden fell down, the assailant fled across a parking lot and through a Sears store, outside of which defendant was apprehended and detained by Sears security personnel. Madden’s wallet was found at the spot where defendant was hiding, and Madden’s keys were in defendant’s possession. Defendant was convicted of unarmed robbery, MCL 750.530; MSA 28.798. Following his conviction, defendant acknowledged his status as an habitual offender, fourth offense. He was sentenced to twenty-five to forty years’ imprisonment. He now appeals as of right. We affirm.
i
Defendant first argues that the trial court erred in finding that the police had probable cause to arrest him and thereafter subject him to a full incidental search. We disagree.
This Court will not disturb a trial court’s ruling at a suppression hearing unless that ruling is found to be clearly erroneous. People v Bordeau, 206 Mich App 89, 92; 520 NW2d 374 (1994). The exception to the warrant requirement regarding a search incident to a lawful arrest allows an arresting officer to search the person arrested and seize any evidence to prevent its concealment or destruction. People v Arterberry, 431 Mich 381, 384; 429 NW2d 574 (1988). The exception applies whenever there is probable cause to arrest, even if an arrest is not made at the time the search is actually conducted. Id.
Here, before defendant was searched, both arresting officers had separately obtained a description of defendant, they were aware of the fact that they were pursuing a fleeing robbery suspect, both spoke to eyewitnesses upon their arrival at the scene, and both were briefed by Sears security personnel concerning the chase and apprehension of defendant. Upon seeing defendant in the Sears security room, the officers agreed that defendant matched the description given by those who witnessed the robbery. Considering the facts known by the officers before defendant was searched, we are not left with a definite and firm conviction that the trial court erred in finding that the officers had probable cause to arrest defendant and conduct a search incident to the arrest. People v Chambers, 195 Mich App 118, 121; 489 NW2d 168 (1992).
n
Defendant next argues that he was denied a fair trial because Madden was allowed to positively identify him in court. We disagree. Even if Madden’s in-court identification of defendant was tainted and unreliable, the court’s decision to allow the identification was harmless in light of the overwhelming evi dence against defendant, including his identification by several other witnesses.
At a lineup that occurred at the time of the preliminary examination, Madden was unable to positively identify defendant as his assailant, but was “leaning towards” choosing defendant. Over defendant’s motion to suppress, Madden testified at the preliminary examination that he was now sure that defendant was the assailant. Madden indicated that, although he could identify his assailant strictly from his memory of the attack, he also was able to positively identify defendant as the attacker after seeing the suspect being escorted down the hallway outside the courtroom. Again, over objection, defendant was allowed to give an in-court identification of defendant at trial.
Although Madden’s identification raises reliability concerns, any error would warrant reversal only if it was not harmless beyond a reasonable doubt. People v Winans, 187 Mich App 294, 299; 466 NW2d 731 (1991). Considering the overwhelming evidence of guilt, including the testimony of several other witnesses who positively identified defendant as the assailant, Madden’s identification was merely cumulative in nature and therefore harmless. Accordingly, the admission of Madden’s identification of defendant did not deny the defendant a fair trial.
m
Next, defendant argues that the trial court denied him his right to a fair trial by keeping him in shackles throughout the trial without a finding that he was disruptive or dangerous. However, the record lacks any discussion concerning the basis for defendant’s being shackled, there is no indication that the defense objected to the shackling or called upon the trial court to unshackle defendant, and there was no showing of actual prejudice. Thus, we find that the present issue was not properly preserved for our review. See People v Stanaway, 446 Mich 643, 694; 521 NW2d 557 (1994), cert den sub nom Michigan v Caruso, 513 US _; 115 S Ct 923; 130 L Ed 2d 802 (1995). We therefore decline to assess whether the court abused its discretion in allowing the jury to see defendant in shackles.
iv
Defendant next argues that the trial court abused its discretion and denied him a fundamental right in denying him the opportunity to testify in his own behalf. We agree that the trial court committed error, but find the error harmless beyond a reasonable doubt.
“Generally, the reopening of proofs for either the prosecution or defense rests within the sound discretion of the trial judge. Relevant in ruling on a motion to reopen proofs is whether any undue advantage would be taken by the moving party and whether there is any showing of surprise or prejudice to the nonmoving party.” [People v Collier, 168 Mich App 687, 694-695; 425 NW2d 118 (1988) (citations omitted).]
At the trial of this case, after the prosecution rested, the defense called two witnesses and then it, too, rested. The jury was then dismissed, and jury instructions were reviewed by the court and the attorneys. During this discussion, defendant’s attorney argued that an instruction regarding intent should be given to the jury. Defense counsel indicated that defendant lacked intent because “the keys just happened to stay with [defendant] because this individual came at him with the keys.” The trial court denied the request for an instruction regarding intent, stating, “I really don’t know that you presented any evidence of that or really even argued that.”
The court reconvened approximately twenty-nine minutes later, and the trial court then inquired whether the parties were ready for closing arguments before the jury. It was at that time that defense counsel informed the court that defendant had advised him that he had planned to take the stand to testify. After discussing the issue with defendant and counsel, the court concluded that defendant was merely “playing games” in a tardy attempt to change his trial strategy. Accordingly, the court denied defendant’s request to reopen the proofs. We find that the trial court erred in denying defendant’s request to testify.
When speaking of the importance of a defendant’s constitutional right to testify, the United States Supreme Court stated the following in Rock v Arkansas, 483 US 44, 51-52; 107 S Ct 2704; 97 L Ed 2d 37 (1987):
The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that “are essential to due process of law in a fair adversary process.” The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony. [Citation omitted.]
... In fact, the most important witness for the defense in many criminal cases is the defendant himself. There is no justification today for a rule that denies an accused the opportunity to offer his own testimony.
* * *
. . . Even more fundamental to a personal defense than the right of self-representation ... is an accused’s right to present his own version of events in his own words. A defendant’s opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness.
After reviewing the importance of a defendant’s right to testify, the Court also noted that the right was not without limitation, stating that the right may “ ‘bow to accommodate other legitimate interests in the criminal trial process.’ ” Id. at 55, quoting Chambers v Mississippi, 410 US 284, 295; 93 S Ct 1038; 35 L Ed 2d 297 (1973).
In Collier, supra, the trial court had denied the defendant’s motion to reopen the proofs to present a late-arriving defense witness. The request to reopen was made after both the prosecution and the defense had rested, but before closing arguments. This Court found that the trial court abused its discretion in arbitrarily deciding to not allow the testimony. 168 Mich App 694-697. However, in People v Moore, 164 Mich App 378, 383-384; 417 NW2d 508 (1987), modified 433 Mich 851; 509 NW2d 155 (1989), the defendant requested that the proofs be reopened for his testimony after closing arguments and after the defendant had already waived his right to testify. This Court found that the request to reopen the proofs was “very tardy” and that the trial court did not abuse its discretion in denying defendant’s request to testify “at that stage of the trial.”
In this case, there was no indication that defendant waived his right to testify, nor was there any indication that defendant would have gained any undue advantage or that the prosecution would have suffered any surprise or prejudice if defendant had testified. Furthermore, only twenty to thirty minutes passed between the time the defense rested and the time defendant indicated that he wished to take the stand, and neither party had yet delivered its closing arguments to the jury. Accordingly, we find that allowing defendant to exercise his constitutional right to testify would not have disrupted the flow of the trial in any significant way. Therefore, we conclude that the trial court abused its discretion in denying defendant’s motion to reopen the proofs.
Although we find that the trial court erred in refusing to reopen the proofs to allow defendant’s testimony, we further find that such error was harmless beyond a reasonable doubt, in light of the overwhelming evidence against defendant. The question whether a harmless-error analysis can be applied to a denial of a defendant’s right to testify is an issue of first impression in Michigan. Thus, we look to the decisions of other jurisdictions for guidance. We agree with the majority of jurisdictions that have decided this issue and we hold that a harmless-error analysis is proper in this situation.
A constitutional error does not automatically require reversal. The United States Supreme Court has held that most constitutional errors can be harmless. Arizona v Fulminante, 499 US 279, 306; 111 S Ct 1246; 113 L Ed 2d 302 (1991). However, there are certain constitutional errors entailing a “ ‘structural defect[] in the constitution of the trial mechanism, which def[ies] analysis by “harmless-error” standards.’ ” People v Anderson (After Remand), 446 Mich 392, 405; 521 NW2d 538 (1994), quoting Fulminante, supra at 309. These errors can never be said to be harmless, and, upon finding any of these errors, a court must automatically reverse. Anderson, supra. Defendant contends that the denial of his right to testify is an error to which harmless-error analysis cannot be applied. We disagree.
“[T]he harmless error doctrine is essential to preserve the ‘principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.’ ” Fulminante, supra at 308, quoting Delaware v Van Arsdall, 475 US 673, 681; 106 S Ct 1431; 89 L Ed 2d 674 (1986). Violations of the constitution that are subject to a harmless-error analysis are errors that “occurred during the presentation of the case to the jury, and that may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Fulminante, supra at 307-308. A conviction will be upheld even in the face of a violation of a defendant’s constitutional rights if, under the circumstances of the case, it can be shown beyond a reasonable doubt that a “trial error” as opposed to “structural defects in the constitution of the trial mechanism” did not contribute to the guilty verdict. Fulminante, supra at 309; Chapman v California, 386 US 18, 24; 87 S Ct 824; 17 L Ed 2d 705 (1967). We agree with the great weight of authority that has concluded that denial of the right to testify is a “trial error” and is thus subject to a harmless-error analysis.
In Wright v Estelle, 572 F2d 1071 (CA 5, 1978), cert den 439 US 1004 (1978), the United States Court of Appeals for the Fifth Circuit, upon rehearing and in a decision en banc, affirmed the panel opinion as it was published in 549 F2d 971 (CA 5, 1977). In that case, the court decided:
Even if petitioner was deprived of [the constitutional right to testify in his own behalf] we are convinced, as the court below was, it was harmless error beyond a reasonable doubt. Chapman v California, 386 US 18, 24; 87 S Ct 824, 828, 17 L Ed 2d 705, 710 (1967). It was harmless error beyond a reasonable doubt because we have no doubt that petitioner’s testimony would not have altered the verdict. The evidence connecting [the petitioner] to this crime was overwhelming. [549 F2d 974.]
Similarly, in Ortega v O’Leary, 843 F2d 258 (CA 2, 1988), cert den 488 US 841 (1988), the United States Court of Appeals for the Second Circuit found that the trial court abused its discretion in failing to allow the defendant to testify on his own behalf. However, the court found that a harmless-error analysis applied and that the error was harmless beyond a reasonable doubt. 843 F2d 262-263. A similar analysis was also applied in Wisconsin v Flynn, 190 Wis App 2d 31, 53-57; 527 NW2d 343 (1994), cert den_US_; 115 S Ct 1389; 131 L Ed 2d 241 (1995), where the court found that the defendant “has had a fair trial, and there is no reasonable likelihood of a different outcome on a retrial should he testify.” 190 Wis App 2d 52. Harmless-error analysis was also applied to a denial of the right to testify in Martinez v Ylst, 951 F2d 1153, 1157 (CA 9, 1991), and LaVigne v Alaska, 812 P2d 217, 220-222 (Alas, 1991). We could find only one court that determined that a defendant’s right to testify is “so basic to a fair trial that its infraction can never be treated as harmless error.” United States v Butts, 630 F Supp 1145, 1148 (D Me, 1986) (citing the dissent of Judge Godbold in Wright v Estelle, 572 F2d 1081-1082). We have found no court that followed the Butts conclusion that denial of the right to testify can never be considered harmless error.
In finding that denial of a defendant’s right to testify is subject to a harmless-error analysis, we recognize that the prosecution bears a heavy burden to show that the error was harmless beyond a reasonable doubt in light of the uncertain effect of the defendant’s testimony on the jury. Ylst, supra at 1157; LaVigne, supra at 221. However, application of the harmless-error rule will promote judicial economy without sacrificing fairness in those cases where the prosecution can prove beyond a reasonable doubt that the error was harmless. Id. at 222. In this case, the evidence against defendant was overwhelming, and the prosecution met its burden of showing that the error was harmless beyond a reasonable doubt.
The prosecution presented the following evidence against defendant. The complainant described his' assailant as a black male wearing a dark blue and red warm-up suit and a dark baseball cap. At trial, the complainant identified defendant as the individual who attacked him and stole his wallet and keys. Several other witnesses identified defendant as the individual they saw assault the complainant in the hotel parking lot, and their descriptions of the assailant and his attire matched that given by the complainant. Fol lowing the attack, these same witnesses called the police and followed the assailant as he ran into a nearby Sears. Inside Sears, one of the witnesses notified Sears’ security of the assailant’s presence. Sears personnel then pursued the individual into a nearby wooded area, and soon thereafter emerged with defendant in handcuffs. The security personnel found the complainant’s wallet at the base of the tree where defendant was hiding and found the complainant’s car keys in defendant’s pocket.
We find that the evidence presented by the prosecution constituted overwhelming evidence of defendant’s guilt. Witnesses saw defendant assault the complainant, they saw him flee the scene, and, upon his apprehension, defendant was in possession of the items stolen from the complainant. Several witnesses positively identified defendant as the assailant. We can fathom no possible testimony by defendant, no matter how sincere or convincing, that could have affected the jury’s determination of guilt in this case. The evidence that defendant committed a robbery against the complainant was overwhelming, and we have no doubt that defendant’s testimony would not have altered the verdict. See Wright, 549 F2d 974. Thus, this is the relatively rare instance in which the reviewing court can confidently assert that the denial of the right to testify was so insignificant as to constitute harmless error beyond a reasonable doubt. See LaVigne, supra at 221-222.
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Taylor, P.J.
Following a jury trial, defendant was convicted of carrying a concealed weapon (a double-edged dagger), MCL 750.227; MSA 28.424, and possessing a dangerous weapon (billy or bludgeon), MCL 750.224(l)(d); MSA 28.421(l)(d). Defendant subsequently pleaded guilty of being a third-offense habitual offender, MCL 769.11; MSA 28.1083. Defendant was sentenced as an habitual offender to concurrent terms of 30 to 120 months in prison. Defendant appeals his sentences as of right. We affirm.
Defendant argues that his habitual offender sentences are disproportionate. The sentencing guidelines for the underlying offenses were zero to twelve months. As a third-time habitual offender, the court was authorized to double the authorized sentences for the crimes of which he was convicted. MCL 769.11; MSA 28.1083. Defendant notes that doubling the recommended guidelines’ range produces an “enhanced guideline” range of zero to twenty-four months and argues that his thirty-month minimum sentences are disproportionate because they exceed those “enhanced guidelines.” While acknowledging that the sentencing guidelines do not apply to habitual offender sentences, he argues that the trial court made the sentencing guidelines an issue in this case because it filled out a sentencing information report (SIR) departure form, explaining why it was departing from the sentencing guidelines, and did not list adequate reasons for departing from the guidelines.
A defendant who is found guilty by a jury, or in a bench trial, or who pleads guilty or nolo contendere, must thereafter be sentenced in accordance with the law by the court. Since March 1, 1984, the Michigan Supreme Court, through a series of administrative orders, and now MCR 6.425(D)(1), has required all circuit court and Recorder’s Court judges to calculate a sentencing guidelines’ range pursuant to the applicable Michigan Sentencing Guidelines for the minimum term of imprisonment for those offenses included in the guidelines. People v Broden, 428 Mich 343, 344-346; 408 NW2d 789 (1987). MCR 6.425(D)(1) states the court “must use the applicable sentencing guidelines when imposing a sentence for an offense that is included in the guidelines.” While the sentenc ing court is not required to impose a minimum sentence within the guidelines’ range, should the court impose a minimum sentence less than or greater than the guidelines’ range, it must complete a section of the SIR labeled “departure reason.” MCR 6.425(D)(1).
The reference to offenses “included in the guidelines” in MCR 6.425(D)(1) alerts the reader to the fact that certain offenses are not included in the guidelines. It is only those crimes listed on pages 11-22 of the Michigan Sentencing Guidelines (2d ed) that are presently covered by the guidelines. The crimes listed on these pages are all crimes that allow for indeterminate sentences, i.e., those sentences in which the trial court is authorized to impose a minimum sentence and a maximum sentence.
Indeed, the sentencing guidelines do not apply to a surprisingly large number of circumstances. 3****They do not apply to offenses for which the Legislature has removed all discretion from the sentencing court, e.g., all offenses that require a nonparolable term of life imprisonment, and flat sentences such as those legislatively required for possession of a firearm during the commission of a felony, i.e., felony-firearm convictions (two years for a first offense, five years for a second offense, and ten years for a third or subsequent offense). MCL 750.227b; MSA 28.424(2). There are also no sentencing guidelines for felony driving offenses, such as operating a motor vehicle while under the influence of intoxicating liquor, third offense, MCL 257.625(7)(d); MSA 9.2325(7)(d), or for adultery, MCL 750.30; MSA 28.219; escape from prison, MCL 750.193; MSA 28.390; and perjury, MCL 750.422; MSA 28.664, as well as many offenses created by the Legislature since October 1, 1988 (when the second edition of the sentencing guidelines became effective), including first-degree retail fraud, MCL 750.356c; MSA 28.588(3); child abuse, MCL 750.136b; MSA 28.331(2); carjacking, MCL 750.529a; MSA 28.797a; aggravated stalking, MCL 750.411i; MSA 28.643(9); and home invasion, MCL 750.110a; MSA 28.305(a). In addition, the sentencing guidelines do not apply to certain drug offenses where the Legislature requires a certain minimum sentence from which departures may be made only for substantial and compelling reasons. See People v Perry, 216 Mich App 277; 549 NW2d 42 (1996). Further, they do not apply to probation violation sentences, although the guidelines will have been calculated for crimes that are covered by the guidelines at the earlier sentencing when the defendant was given a probationary sen tence. See People v Cotton, 209 Mich App 82, 83-84; 530 NW2d 495 (1995). Also, the sentencing guidelines do not apply to defendants whose sentences are enhanced under the subsequent offender provisions of the controlled substances act. People v White, 208 Mich App 126, 135; 527 NW2d 34 (1994). Finally, and most applicable to the case at bar, the sentencing guidelines do not apply to habitual offender sentences. When sentencing an habitual offender, the trial court is required to complete the SIR (which requires calculation of the sentencing guidelines) for the underlying offense if the offense is included in the guidelines. Michigan Sentencing Guidelines (2d ed), p 1; People v Zinn, 217 Mich App 340, 350; 551 NW2d 704 (1996). But the trial court is not required to fill out the SIR departure reason form when it sentences an habitual offender to a term of imprisonment in excess of the range indicated by the sentencing guidelines for the underlying offense. We note in this regard that the sentencing guidelines explicitly state that the guidelines do not apply to habitual offender sentences. Michigan Sentencing Guidelines (2d ed), pp 1, 6.
Nevertheless, as the jurisprudence surrounding the review of habitual offender sentences developed, this Court has looked to the guidelines’ range for the underlying offense in reviewing claims that habitual offender sentences were disproportionate. See, e.g., People v Finstrom, 186 Mich App 342, 345-346; 463 NW2d 272 (1990) (habitual offender sentence that exceeded guidelines for underlying offense by more than a factor of three was found disproportionate). That the authority to so evaluate habitual offender sentences was dubious can be seen in People v Wil liams, 191 Mich App 685, 686-687; 479 NW2d 36 (1991), People v Oelberg, 197 Mich App 346, 347; 494 NW2d 869 (1992), People v Cutchall, 200 Mich App 396, 409-410; 504 NW2d 666 (1993), People v Derbeck, 202 Mich App 443, 448; 509 NW2d 534 (1993), and People v Spivey, 202 Mich App 719, 728; 509 NW2d 908 (1993), where this Court acknowledged the fact that the guidelines do not apply to habitual offender sentences, but went on to state that the proportionality of an habitual offender sentence could be measured by comparing the guidelines’ recommended range with the degree of sentence enhancement authorized by the particular habitual offender statute, thereby applying the guidelines by analogy. This led to the practice of calculating an “enhanced” guideline range that was then compared to the actual sentence that was imposed.
Other panels of this Court described the guidelines for the underlying offense as being helpful in reviewing the proportionality of habitual offender sentences. See, e.g., People v Malkowski, 198 Mich App 610, 615; 499 NW2d 450 (1993) (useful reference point), People v Odendahl, 200 Mich App 539, 540; 505 NW2d 16 (1993) (useful reference point), People v Williams, 205 Mich App 229, 234; 517 NW2d 315 (1994) (the starting point for our review), People v Bordeau, 206 Mich App 89, 94; 520 NW2d 374 (1994) (a tool to assist), People v Martin, 209 Mich App 362, 364; 531 NW2d 755 (1995) (useful starting point or barometer), People v Martinez (After Remand), 210 Mich App 199, 201; 532 NW2d 863 (1995) (helpful tool to be considered), and People v Chandler, 211 Mich App 604, 615; 536 NW2d 799 (1995) (useful starting point).
This judicially created construct of utilizing the guidelines or the “enhanced guidelines” in reviewing the proportionality of habitual offender sentences was first questioned by the three justices who signed the lead opinion in People v Cervantes, 448 Mich 620, 625-626; 532 NW2d 831 (1995), where the Court stated:
There was no consideration of habitual offender sentencing in the creation of the existing sentencing guidelines; therefore, it would be both misleading and statistically invalid to attempt in any way to apply the existing guidelines to the sentencing of habitual offenders.
There was some misunderstanding of the import of the Cervantes holding by this Court in People v Gatewood, 214 Mich App 211; 542 NW2d 605 (1995), which held that the lack of a Supreme Court majority opinion in Cervantes did not operate so as to overrule our past jurisprudence regarding guideline usage. The Supreme Court removed all doubt in People v Gatewood, 450 Mich 1025; 546 NW2d 252 (1996), where it entered a peremptory order vacating this Court’s opinion and stated that “appellate review of habitual offender sentences using the sentencing guidelines is inappropriate.” This Court subsequently held in People v Gatewood (On Remand), 216 Mich App 559, 560; 550 NW2d 265 (1996), that “appellate review of habitual offender sentences using the sentencing guidelines in any fashion is inappropriate.” (Emphasis supplied.)
Accordingly, it is now settled that we are not to calculate an enhanced guideline range and we are not to consider the guidelines’ range for the underlying offense. In fact, we are not to consider the underlying guidelines as a “barometer,” “starting point,” “useful reference point,” or a “helpful tool” in determining whether defendant’s habitual offender sentences are proportionate. All prior opinions of this Court that did so have been overruled to the extent that they did so. As stated in People v Yeoman, 218 Mich App 406, 419; 554 NW2d 577 (1996), the proportionality of an habitual offender’s sentence is still reviewed under the abuse of discretion standard, but the guidelines have “no bearing” with regard to whether an abuse has occurred. Further, given the fact that the guidelines are irrelevant in reviewing the proportionality of habitual offender sentences, logic dictates that a defendant sentenced as an habitual offender may not challenge on appeal the trial court’s calculation of the guidelines for the underlying offense. Cf. People v Strickland, 181 Mich App 344, 346; 448 NW2d 848 (1989). Whether the trial court properly calculated the guidelines’ range for the underlying offense is of no moment given that this Court may not, in any case, consider the guidelines’ range in determining the proportionality of an habitual offender sentence.
Carrying a concealed weapon and possessing a dangerous weapon are both felonies punishable by imprisonment for not more than five years. Pursuant to the two-thirds rule of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), defendant could have received sentences of 3 V3 to 5 years for the underlying convictions. As a third-time habitual offender, defendant could have received sentences of 6 % to 10 years. The thirty-month minimum sentences imposed in this case were substantially less than the statutory maximum the court could have imposed. Defendant’s two prior felony convictions were of breaking and entering, MCL 750.110; MSA 28.305, and attempted breaking and entering, MCL 750.92; MSA 28.287. Defendant also had a prior probation violation and three prior misdemeanor convictions. Defendant had a double-edged knife attached with duct tape to the steering column of his vehicle and a billy club under the vehicle’s seat. The court stated at sentencing that defendant lacked any remorse for his behavior and that defendant presented “clear, knowing, false” testimony at trial. The fact that the trial court unnecessarily filled out a SIR departure reason form does not somehow make the underlying guidelines an issue. Under the circumstances of this case, we find that the court did not abuse its discretion and that defendant’s concurrent sentences of 30 to 120 months are proportionate to the offense and the offender, People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), and reflect the seriousness of the matter. People v Houston, 448 Mich 312, 320; 532 NW2d 508 (1995).
Affirmed.
In 1994, 8.1 percent of the sentences for covered offenses were below the guidelines’ range and 3.8 percent were above the guidelines’ range. See Girard, Michigan Prison Sentences: A Guide for Defense Attorneys (MAACS, 1996), p 25.
In 1994, only about fifty-six percent of all criminal sentences were covered by the guidelines. See Michigan Prison Sentences, n 1 supra, p 21. See also People v Milbourn, 435 Mich 630, 661, n 29; 461 NW2d 1 (1990) (the guidelines do not address all crimes or even all felonies).
Offenses that require a nonparolable life sentence include: first-degree premeditated murder and first-degree felony murder, MCL 750.316; MSA 28.548, certain drug offenses involving over 650 grams, treason, MCL 750.544; MSA 28.812, placing explosives with intent to destroy which causes injury to a person, MCL 750.207; MSA 28.404, and certain repeat drug offenses. See People v Poole, 218 Mich App 702, 715, n 7; 555 NW2d 485 (1996).
MCL 750.30; MSA 28.219 provides:
Any person who shall commit adultery shall be guilty of a felony; and when the crime is committed between a married woman and a man who is unmarried, the man shall be guilty of adultery, and liable to the same punishment.
Generally, second-time habitual offenders may have their sentences increased by 1‘A times, MCL 769.10; MSA 28.1082, third-time habitual offenders may have their sentences doubled, MCL 769.11; MSA 28.1083, and fourth-time habitual offenders convicted of a felony whose maximum term is five years or more may be imprisoned for parolable life or for a lesser term while, if the conviction is for a felony whose máximum term is less than five years, the court may imprison the defendant for not more than fifteen years. MCL 769.12; MSA 28.1084. Because the fourth-offense habitual offender statute does not provide any specific degree of sentence enhancement, Derbeck, supra at 448, stated that there is no way to evaluate the degree of enhancement allowed under the statute. As stated in the body of this opinion, the degree of enhancement is irrelevant in determining the proportionality of an habitual offender sentence.
Supreme Court peremptory orders are binding precedent when they can be understood. See People v Crall, 444 Mich 463, 464, n 8; 510 NW2d 182 (1993).
We note that the Supreme Court rulings in Cervantes and Catewood were made in the context of a defense appeal. We are not certain that the Supreme Court would apply the same rule in the context of a prosecution appeal that alleges an habitual offender sentence was disproportionately lenient because the sentence is less than the guidelines’ range for the underlying offense. See People v Brooks (On Remand), 203 Mich App 199; 511 NW2d 710 (1993), which the Supreme Court deprived of precedential effect at 445 Mich 926 (1994). Perry, supra, lists several cases where a sentence was found to have been disproportionately lenient as a result of a prosecution appeal.
This is an acceptable sentencing consideration. People v Adams, 430 Mich 679; 425 NW2d 437 (1988). | [
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Hoekstra, P. J.
Following a jury trial, defendant was convicted of possession of less than twenty-five grams of cocaine, MCL 333.7403(2)(a)(v); MSA 14.15 (7403)(2)(a)(v), and was sentenced to four to eight years’ imprisonment. He appeals as of right his conviction and the sentencing court’s scoring of Offense Variable (ov) 8 and ov 16. We affirm.
Defendant first argues that his conviction of possession of a controlled substance following the civil forfeiture of his car, $32, $17 in food stamps, and a wristwatch pursuant to MCL 333.7521 et seq.; MSA 14.15(7521) et seq. violated the Double Jeopardy Clauses of the United States Constitution, US Const, Am V, and the Michigan Constitution, Const 1963, art 1, § 15. We disagree. The double jeopardy provisions contained in the federal and state constitutions are intended to protect citizens from suffering multiple punishments and successive prosecutions for the same offense. People v White, 212 Mich App 298, 305; 536 NW2d 876 (1995).
Defendant claims that his criminal conviction following the civil forfeiture of his property pursuant to statute violated his right to be free from multiple punishments. In support of his argument, defendant relies upon United States v Ursery, 59 F3d 568 (CA 6, 1995), a case in which the Sixth Circuit Court of Appeals determined that a civil forfeiture, coupled with a criminal conviction arising out of the same criminal transaction, constituted a violation of double jeopardy principles. However, after defendant’s supplemental brief was filed, the United States Supreme Court reversed that decision and clarified that civil in rem forfeitures are generally not “punishment” and, therefore, a criminal conviction and sentence following a civil forfeiture ordinarily do not violate the Double Jeopardy Clause of the United States Constitution. United States v Ursery, 518 US_; 116 S Ct 2135; 135 L Ed 2d 549 (1996). The Court stated that although in rem civil forfeitures are not per se exempt from the scope of the Double Jeopardy Clause, the fact that a forfeiture is designated as civil and proceeds in rem establishes a presumption that is not subject to double jeopardy analysis unless the “clearest proof” indicates that the in rem forfeiture is “so punitive either in purpose or effect” as to be equivalent to a criminal proceeding. Ursery, 135 L Ed 2d 569, n 3.
Given the United States Supreme Court’s opinion in Ursery, we believe the test to be applied to the instant case, involving a criminal conviction following a civil forfeiture under MCL 333.7521 et seq.-, MSA 14.15 (7521) et seq., is whether defendant has presented the “clearest proof” indicating that the forfeiture is “so punitive in purpose or effect” that it is equivalent to a criminal proceeding. Because forfeitures under MCL 333.7521 et seq.-, MSA 14.15(7521) et seq., are in rem civil proceedings, see In re Forfeiture of $18,000;. 189 Mich App 1; 471 NW2d 628 (1991), we begin with á presumption that double jeopardy analysis does not apply. This presumption can be rebutted only by the “clearest proof” of an excessive punitive purpose or effect. Here, because there is no evidence, let alone the “clearest proof,” indicating that the instant forfeiture was so punitive in form or effect as to render it criminal, Ursery, 135 L Ed 2d 569, n 3, we find defendant’s double jeopardy claims to be without merit.
Defendant next argues that the trial court erred in determining that he voluntarily consented to the police search of his automobile and in refusing to suppress evidence found in the automobile. On appeal, defendant concedes that he consented to the search, but argues that his consent was involuntary because it was given while he was in police custody and, therefore, was the product of coercion. We disagree. The evidence indicates that after defendant got out of his car at the officers’ request, he was patted down for weapons and asked if there were any drugs or weapons in the car. Defendant then consented to a search of his car and was placed in the back of the patrol car. On the basis of the foregoing, it is clear that at the time he consented to the search, defendant was merely the subject of a Terry -type stop and frisk. The United States Supreme Court has noted that Terry stops are not inherently coercive in nature. Berkemer v McCarty, 468 US 420, 437-439; 104 S Ct 3138; 82 L Ed 2d 317 (1984). Therefore, we are not persuaded that defendant’s consent here was involuntary. We have examined defendant’s remaining challenges to the search at issue and find that they are likewise without merit.
Finally, defendant challenges the scoring of ov 8 and ov 16. We find that these claims must fail and the scoring decisions must be upheld because there was evidence to support the scores. People v Haacke, 217 Mich App 434, 435; 553 NW2d 15 (1996).
Affirmed.
Michigan's forfeiture law pertaining to controlled substances, MCL 333.7521 et seq.; MSA 14.15(7521) et seq., is modeled after its federal counterpart, 21 USC 881, the statute at issue in Ursery. See In re Forfeiture of $5,264, 432 Mich 242, 257; 439 NW2d 246 (1989). Therefore, we believe the analysis contained in Ursery is equally applicable to the statute at issue in this case.
We recognize that this Court has previously discussed civil forfeitures under this same statute and applied a slightly different test in People v Hellis, 211 Mich App 634; 536 NW2d 587 (1995). Because that decision was released before Ursery and addressed only a challenge to double jeopardy under the federal constitution, see Hellis, supra at 640, n 3, we believe it to be no longer authoritative with regard to this issue. Accordingly, in deciding this case, we have followed the analysis set forth in Ursery.
Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). | [
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O’Connell, J.
The issue before this Court is whether the Michigan Public Service Commission (psc) can “approve” a long-term purchase of electric capacity from Ontario Hydro without conducting a contested case proceeding under MCL 460.6j; MSA 22.13(6j) or MCL 460.6a; MSA 22.13(6a). We conclude that the PSC could so proceed in this case, and we affirm the PSC’s October 25, 1995, order in Public Service Commission Case No. U-10939 authorizing Detroit Edison to recover from its customers the costs associated with its purchase of the capacity from Ontario Hydro.
Detroit Edison has an ownership interest in a hydroelectric plant known as the Ludington Pumped Storage Hydroelectric Plant. Detroit Edison considered the Ludington facility to be underutilized. In April 1995, Detroit Edison contracted with the Toledo Edison Company to lease about one-third of the Lud ington capacity to Toledo Edison for six years, from June 1, 1996, through May 31, 2002. About 312 megawatts were leased with estimated lease payments to Detroit Edison over the term of the lease amounting to about $94 million. This arrangement did not require psc approval.
In August 1995, Detroit Edison executed a contract with Ontario Hydro to purchase about three hundred megawatts of electric capacity from Ontario Hydro on a seasonal basis from mid-May through mid-September for the years 1996 through 2001. Detroit Edison believed it needed the capacity in order to satisfy peak demand during the summer months. Taking into account escalator clauses, Detroit Edison estimated that over the term of the lease its maximum charge would be about $20 million. Detroit Edison’s arrangement with Ontario Hydro required PSC approval because it involved the recovery of the cost of power purchased from Ontario Hydro for a period in excess of six months. MCL 460.6j(13)(b); MSA 22.13(6j)(13)(b).
In September 1995, Detroit Edison filed an application with the psc for approval of its purchase from Ontario Hydro. Detroit Edison asserted that the “swap” involving Toledo Edison and Ontario Hydro would save Detroit Edison and its customers about $74 million over the six years of the arrangement. Detroit Edison submitted copies of its contracts with both Toledo Edison and Ontario Hydro to the PSC. Detroit Edison claimed that the price it was paying Ontario Hydro was quite favorable (pointing out that the cost matched Detroit Edison’s lowest cost for purchases during the summers of 1994 and 1995) and that the Ontario Hydro capacity was not limited and was highly reliable. Detroit Edison further asserted that its “combined transaction” would not result in any increase in the rates of its customers and that Detroit Edison “committed” itself not to pass through to its customers any unanticipated costs associated with the combined transaction.
Several parties, including the Attorney General, filed requests for a hearing. In its October 25, 1995, decision, the PSC approved Detroit Edison’s purchase from Ontario Hydro and denied the requests for a hearing. The PSC found that the net effect of Detroit Edison’s arrangement was to reduce costs. The PSC reasoned that the purchase of capacity from Ontario Hydro was merely a substitute for the leased Ludington capacity, that MCL 460.6j(13)(b); MSA 22.13(6j)(13)(b) permitted approval by means other than a contested case proceeding, and that a hearing was not required under MCL 460.6a; MSA 22.13(6a), because the purchase from Ontario Hydro would not increase the cost of service to customers.
MCL 460.6j(13)(b); MSA 22.13(6j)(13)(b) requires the PSC to disallow capacity charges associated with purchased power for periods in excess of six months unless the utility has obtained the “prior approval” of the PSC. Subsection 6j(13) is part of a complex statute (1982 PA 304) seeking to protect utility customers from rate increases due to upward adjustments in the cost of power. The statute requires utilities to file an annual “power supply cost recovery plan” and provides for annual power supply cost recovery reconciliation hearings that are contested cases, following which the PSC determines the extent to which a utility may recover its power supply costs. MCL 460.6j(12); MSA 22.13(6j)(12).
At issue in the instant case is whether the “prior approval” authorized by subsection 6j(13)(b) can be given by the PSC without a hearing. In this case, the PSC had before it only the filing of Detroit Edison and the pleadings in opposition filed by the Attorney General and other parties.
The cardinal rule of statutory construction is to discern and give effect to the intent of the Legislature. Drouillard v Stroh Brewery Co, 449 Mich 293, 302; 536 NW2d 530 (1995). Statutory language should be construed reasonably, keeping in mind the purpose of the statute. In re Estes Estate, 207 Mich App 194, 208; 523 NW2d 863 (1994). In this case we also give some deference to the construction of the statute by the agency that enforces it. Telephone Ass’n of Michigan v Public Service Comm, 210 Mich App 662, 670-671; 534 NW2d 223 (1995).
Here, subsection 6j(13) on its face does not require a hearing or a contested case proceeding; it requires merely “prior approval” of the PSC. In contrast, the Legislature clearly provided for formal contested case proceedings at least once a year for reconciliation purposes elsewhere in § 6j. MCL 460.6j(12); MSA 22.13(6j)(12). Thus, the Legislature was capable of requiring a hearing when it thought one necessary. There is no persuasive indication that the Legislature thought a hearing was necessary in every instance where the PSC gives prior approval under subsection 6j(13)(b).
This reading of subsection 6j(13) is reasonable. The Legislature elsewhere provided for contested cases as part of the annual review process for power supply cost recovery. Thus, within a relatively short time after the PSC grants “prior approval,” parties are able to bring forward whatever evidence the PSC might not have initially considered and the PSC will have an opportunity to further reflect on the reasonableness and prudence of the utility’s purchased power costs. The Legislature’s scheme permits a utility to react to changing business circumstances without becoming bogged down in regulatory proceedings while at the same time the scheme protects customers.
Indeed, it would seem unreasonable to require a contested case proceeding for every purchase of power for a period exceeding six months when within a year the purchase can be considered in a contested case proceeding. The Legislature did not prevent the PSC from conducting a contested case proceeding or from considering in the first instance a purchased power contract in a power supply cost recovery proceeding. Rather, the Legislature gave the PSC discretion in dealing with requests for approval, with the understanding that any party could dispute the reasonableness and prudence of the purchase at least in a power supply cost recovery case and perhaps in a general rate case. The Attorney General’s construction would add an unnecessary degree of expense and time-consuming oversight in many, if not most, cases.
The Attorney General also argues that a hearing was required under MCL 460.6a(l); MSA 22.13(6a)(l). That statute deals with general rate cases. It requires notice and a hearing whenever a utility increases its rates or alters rates, “the effect of which will be to increase the cost of service to its customers . . . .” Subsection 6a(l) provides:
When a finding or order is sought by a gas or electric utility to increase its rates and charges or to alter, change, or amend any rate or rate schedules, the effect of which will be to increase the cost of services to its customers, notice shall be given within the service area to be affected. The utility shall place in evidence facts relied upon to support the utility’s petition or application to increase its rates and charges, or to alter, change, or amend any rate or rate schedules. After first having given notice to the interested parties within the service area to be affected and affording interested parties a reasonable opportunity for a full and complete hearing, the commission, after submission of all proofs by any interested party, may in its discretion and upon written motion by the utility make a finding and enter an order granting partial and immediate relief. A finding or order shall not be authorized or approved ex parte, nor until the commission’s technical staff has made an investigation and report. An alteration or amendment in rates or rate schedules applied for by a public utility that will not result in an increase in the cost of service to its customers may be authorized and approved without notice or hearing. There shall be no increase in rates based upon changes in cost of fuel or purchased gas unless notice has been given within the service area to be affected, and there has been an opportunity for a full and complete hearing on the cost of fuel or purchased gas. The rates charged by any utility pursuant to an automatic fuel or purchased gas adjustment clause shall not be altered, changed, or amended unless notice has been given within the service area to be affected, and there has been an opportunity for a full and complete hearing on the cost of the fuel or purchased gas. [Emphasis added.]
This statute does not apply here because the effect of Detroit Edison’s contract, and its approval by the PSC, is not to raise rates. In fact, the “swap” arrangement seems likely to result in a net savings of $74 million. In addition, Detroit Edison committed itself to absorbing unanticipated costs associated with either the Ontario Hydro purchase or the Toledo Edison lease. The evidence available to the PSC and to this Court indicates there will be no increase in rates from the “swap” arranged by Detroit Edison.
While it is true Detroit Edison will purchase power from Ontario Hydro that Detroit Edison did not purchase before, there will not be an increase in the cost of services to customers because of the advantage obtained from the overall transaction. It does not follow that the PSC could not consider the lease with Toledo Edison just because the lease with Toledo Edison was beyond the regulatory authority of the PSC. The lease is part of the undeniable reality in which rates are set. The PSC’s view that the leased Ludington capacity was “substituted” for the purchased Ontario Hydro capacity is a fair characterization of what Detroit Edison has done.
Appellant has not shown by clear and satisfactory evidence that the PSC’s order appealed from is unlawful or unreasonable. MCL 462.26(8); MSA 22.45(8); Attorney General v Public Service Comm, 206 Mich App 290, 294; 520 NW2d 636 (1994).
Affirmed. | [
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] |
Cavanagh, P.J.
Houston General Insurance Company (hereafter defendant) appeals as of right the trial court order granting plaintiffs motion for summary disposition and denying defendant’s motion for summary disposition. We affirm.
In 1986, Commuter Transportation Company entered into an agreement with Wayne County to provide ground transportation services at Detroit Metropolitan Wayne County Airport. On February 25, 1994, Donna Miller, who was employed as a flight attendant with Northwest Airlines, was injured when the shuttle bus on which she was traveling collided with a snowplow. At the time of the accident, plaintiff, USAA Insurance Company, was the no-fault insurance car rier for defendant Donna Miller and her husband, Charles Miller. Defendant Houston had issued a policy to Commuter.
Dpnna Miller submitted claims to both plaintiff and defendant. On July 11, 1994, plaintiff filed a complaint for declaratory relief to determine the priority for payment of the no-fault insurance benefits. Plaintiff claimed that the shuttle was in the business of transporting passengers and, therefore, under MCL 500.3114(2); MSA 24.13114(2) defendant had priority to pay the no-fault insurance benefits. Plaintiff requested the trial court to enter an order declaring that defendant was primarily liable for payment of insurance benefits.
On May 2, 1995, plaintiff brought a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10), arguing that defendant was primarily liable for the payment of no-fault benefits. On May 10, 1995, defendant filed a cross motion for summary disposition and declaratory relief. Defendant asserted that because the airport was a nonprofit organization, under MCL 500.3114(2) (d); MSA 24.13114(2)(d) defendant did not have priority for the payment of nofaült benefits. On May 19, 1995, the trial court held a hearing regarding the motions for summary disposition, at which time it indicated that it would take the rtiatter under advisement. On June 13, 1995, the trial court entered an order granting plaintiffs motion for summary disposition and denying defendant’s motion. Defendant appeals.
MCL 500.3114(2); MSA 24.13114(2) provides in pertinent part:
A person suffering accidental bodily injury while an operator or a passenger of a motor vehicle operated in the busi ness of transporting passengers shall receive the personal protection insurance benefits to which the person is entitled from the insurer of the motor vehicle. This subsection shall not apply to a passenger in the following, unless that passenger is not entitled to personal protection insurance benefits under any other policy:
* * *
(c) A bus operating under a government sponsored transportation program.
(d) A bus operated by or providing service to a nonprofit organization.
Defendant argues that Commuter does not have priority because it is both a government-sponsored transport program and it provides service to the Wayne County Metropolitan Airport Authority, a nonprofit organization. Thus, defendant asserts, under MCL 500.3114(2); MSA 24.13114(2), it is not primarily liable for Donna Miller’s injuries.
Statutory interpretation is a question of law subject to review de novo on appeal. Golf Concepts v Rochester Hills, 217 Mich App 21, 26; 550 NW2d 803 (1996). The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). Statutory language should be construed reasonably, keeping in mind the purpose of the statute. The first criterion in determining intent is the specific language of the statute. If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written. Barr v Mt Brighton Inc, 215 Mich App 512, 516-517; 546 NW2d 273 (1996). However, if reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate. Yaldo v North Pointe Ins Co, 217 Mich App 617, 620-621; 552 NW2d 657 (1996).
We first address defendant’s contention that Commuter’s operation at the airport constitutes a “government sponsored transportation program.” Under the agreement between Commuter and Wayne County, Commuter is given the exclusive right to operate the employee shuttle bus. Commuter is to be paid a management fee of $12,500 a month. The contract contains a provision entitled “Insurance and Indemnification” wherein Commuter agrees to indemnify and hold the county harmless from liability for personal injury. This section also requires Commuter to provide a comprehensive automobile insurance policy to cover injuries sustained in the course of Commuter’s operations. In addition, the agreement specifically states that the contract does not render Commuter an agent or representative of the county for any purpose and that Commuter is to provide all services as an independent contractor.
We conclude that the transportation service provided by Commuter does not constitute a “government sponsored transportation program.” The contract does not place the county in the position of a sponsor. In fact, the agreement specifically states that Commuter was not thereby made an agent of the county. Rather, the county merely hired Commuter to perform a service. The county did not undertake responsibility for the operation of the shuttle service. In fact, the contract requires that Commuter indemnify the county for any potential liability and that Commuter retain its own liability insurance. We conclude that payment for a service by a government agency is not enough to render the service a government-sponsored activity. Were that the case, any contract entered into by a government entity to obtain a service would constitute a government-sponsored program.
Defendant also argues that Commuter was providing a service to a nonprofit organization. Defendant, citing the affidavit of Richard Noelke, the manager of tenant relations at Detroit Metropolitan Wayne County Airport, contends that the airport is not operated for the purpose of providing a profit. Defendant further argues that the airport is a subdivision of Wayne County, which defendant asserts is clearly a nonprofit organization.
The statute does not define the term “nonprofit organization.” If a statute fails to define a term, the term will be interpreted in accordance with the Legislature’s intent and the common and approved usage of the term. Pendzsu v Beazer East, Inc, 219 Mich App 405, 410; 557 NW2d 127 (1996).
The operation of Detroit Metropolitan Wayne County Airport by Wayne County constitutes a governmental function. Codd v Wayne Co, 210 Mich App 133, 135; 537 NW2d 453 (1995); see MCL 691.1401(f); MSA 3.996(101)(f), MCL 259.126; MSA 10.226. Thus, the question presented is whether the Legislature intended that government entities be considered “nonprofit organizations” under the statute.
Courts may examine the legislative history of an act to ascertain the reason for the act and the meaning of its provisions. In re Brzezinski, 214 Mich App 652, 665; 542 NW2d 871 (1995). MCL 500.3114; MSA 24.13114 was amended by 1976 PA 356 for the purpose of easing the financial burden on the operators of vehicles used in government-sponsored transportation programs or providing service to nonprofit organizations. The legislative analysis states: ■ ■
The bus operations which would be exempted under the bill are all under a severe financial burden. Common carriers, including inner-city bus companies, must pay enormous insurance premiums at a time when many of them are under a serious competitive strain. Government sponsored . programs, such as the Southeastern Michigan Transportation Authority (semta) and the Capital Area Transportation Authority (cata) are already receiving public subsidies and are subject to the same large insurance premium costs. Non-profit organizations of all kinds are traditionally short of funds and would benefit greatly from being relieved of the cost of large insurance premiums. [House Legislative Analysis, HB 6448, September 27, 1976.]
After carefully considering the issue, we conclude that the Legislature did not intend that government entities be considered “nonprofit organizations” under the statute. First, we do not believe that, in its common and approved usage, the term “nonprofit organization” refers to government entities. While government entities do not exist to make a profit, they are nevertheless not in the normal course of things referred to as “nonprofit organizations.”
We draw additional support for this conclusion from the fact that the Legislature used separate subsections to provide the exemptions to buses operating under government-sponsored programs and buses providing service to nonprofit organizations. We therefore infer that the Legislature did not intend “government” and “nonprofit organization” to be synonymous.
Moreover, a court must look to the object of the statute and the harm that it was designed to remedy and apply a reasonable construction in order to accomplish the purpose of the statute. ABC Supply Co v River Rouge, 216 Mich App 396, 398; 549 NW2d 73 (1996). The statute was designed to spare government-sponsored transportation programs and nonprofit organizations the cost of high insurance premiums. See House Legislative Analysis, supra. The purpose of the statute is simply not implicated in this case. Here, the cost of the insurance was borne not by the airport or Wayne County, but by Commuter, which defendant concedes is a for-profit corporation,
In sum, we find that the shuttle bus in which Donna Miller was riding when she was injured was neither operating under a government-sponsored transportation program nor providing a service to a nonprofit organization. Accordingly, the trial court properly granted plaintiffs motion for summary disposition.
Affirmed.
C. W. Simon, Jr., J., concurred. | [
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V. J. Brennan, J.
On March 31, 1978, a judgment of divorce was granted to the plaintiff, Eileen Holbern, against defendant, Vernon Holbern. The lower court’s order, in pertinent part, awarded to plaintiff $600 per month combined alimony and child support for six years. In addition, plaintiff received the marital home valued at $16,000, which was encumbered by a $5,500 mortgage. However, the award provided that for a period of five years, if the plaintiff became more than 60 days in arrears in mortgage or tax payments, defendant could repossess the premises "free and clear of any claim of plaintiff’. Plaintiff appeals from that portion of the judgment concerning property settlement and alimony.
Plaintiff contends that the lower court’s findings of fact regarding alimony were nonspecific and conclusory thus warranting remand. GCR 1963, 517.1 as applicable provides:
"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. It will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts.”
The rule contemplates that level of specificity that will disclose to the reviewing court the controlling choices made as between competing factual assertions. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 594. Insomuch as the lower court’s findings merely state conclusions without factual bases, they are inadequate. However remand is unnecessary since in equity cases our review is de novo, and we may make our findings based upon the record before us. Burdick v Hartwig, 37 Mich App 704; 195 NW2d 334 (1972). Our review will thus address plaintiiFs various claims of abuse of discretion regarding alimony and property division.
Any determination as to alimony and property division necessitates an examination of "(1) duration of the marriage, (2) contributions of the parties to the joint estate [sources of property], (3) age, (4) health, (5) station in life, (6) necessities and circumstances and (7) earning ability” of the parties. Charlton v Charlton, 397 Mich 84, 95, fn 5; 243 NW2d 261 (1976), see Ross v Ross, 24 Mich App 19; 179 NW2d 703 (1970), Hoffman v Hoffman, 9 Mich App 715; 158 NW2d 78 (1968).
The defendant in the present case has been employed as an oiler for United States Steel’s Great Lakes fleet since 1957. His income in 1973 was $18,480.26; in 1974, $23,130.35; in 1975, $28,615.70; in 1976, $28,210.92 and in 1977, $25,427.03. At trial defendant anticipated his 1978 income to be $19,584. Additionally defendant testified that he would receive $103 per week in unemployment from the State of Minnesota during the three winter months. Defendant’s present status of employment was that of oiler; but, on occasions, he served as a relief engineer. Defendant testified that his future earnings would decrease because, in order to protect his pension and 21 years seniority as an oiler, he had to turn down the job of permanent engineer. Defendant would have a job as an oiler so long as one boat of U.S. Steel’s Great Lakes fleet was sailing. However, if he took the permanent engineer’s job, he would have no seniority and as soon as one boat was laid up his job would vanish.
As an oiler, defendant would receive a pension estimated at around $420 per month when he turned 65. Defendant would also receive social security but was unsure of the amount.
The marital home carried a $5,500 mortgage, and there was a $1,500 balance on a home improvement loan. In addition, $380 was due in past taxes on the home. Defendant was willing to release all title to the home.
Plaintiff testified that the monthly household bills were $1,014.50. She further stated that the $400 she was receiving every two weeks was occasionally not enough to provide for the family. Her own health was bad because of a nervous condition which prevented her from working. Other than babysitting she had not worked outside of the home for 15 to 20 years.
The nature of defendant’s job classification (oiler/engineer) was unclear at trial and the cause was remanded by this Court for further findings. On remand it was disclosed that in 1978, defendant, while still classified as an oiler, worked as an engineer (which paid an additional $10 per day) in a temporary capacity 50% of the time. Defendant then projected his 1978 earnings to be some $3,000 above the 1977 income level. However, the 1978 income projection included defendant’s being hired on to the winter crew in 1978. The defendant was unable to hire on to the winter crew in 1979 due to lack of seniority, and his 1979 income would be reduced accordingly.
Taking into account the nature of the combined alimony and child support award along with the plaintiff’s limited ability to supplement her income, the $600 per month award is well within the discretionary guidelines. We point out that either party may petition the lower court for a review due to changed circumstances.
We next address the lower court’s award of the marital home to plaintiff contingent upon her keeping taxes and mortgage payments current. Such an award is without legal precedent in this state and is improper. The contingency effectively circumvents plaintiff’s redemption rights, which are designed to protect those who are necessitous during financial crisis. The burden placed upon plaintiff by the lower court almost guarantees the defendant possession of the home in the future and, therefore, greatly diminishes the award. The contingency portion of the reward is vacated.
As to plaintiff’s other allegations of error, we find that defendant’s pension was taken into account by the lower court in its award. In addition, the defendant’s action in turning down the permanent engineer’s job did not amount to a manipulation of employment classifications intended to de prive the plaintiff of her rights but rather was a protective measure by defendant to insure his employability and pension rights. In this regard, plaintiff’s rights were also protected.
Remanded to the lower court with directions to modify the property settlement in accordance with this opinion.
The trial court’s award in this regard is rather ambiguous as to whether the $600 figure will decrease as three of the four children of the marriage reach majority. Our review of the transcript reveals defendant’s willingness to pay the sum of $600 a month for six years irrespective of the children’s coming of age, and as such the award is so interpreted.
Reversed in a memorandum opinion, 387 Mich 770 (1972). However, it is unclear in this decision whether the Supreme Court rendered appellate courts powerless to make findings in equity cases, or whether the Supreme Court made its own findings contrary to those of the Court of Appeals. In any event the summary decision is of no precedential value. | [
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Murphy, J.
Defendant, Patrick Sheko, appeals the trial court’s grant of summary disposition for plaintiff pursuant to MCR 2.116(C)(9) (failure to state a valid defense) and MCR 2.116(C)(10) (no genuine issue of material fact). We affirm.
In September 1991, defendant was in jail and was unable to make the payments due on his house. Defendant’s brother agreed to lend defendant the $4,050 due on the house. In return, defendant agreed to repay his brother out of proceeds defendant was to receive from the settlement of a lawsuit in which he was involved.
On November 13, 1991, defendant was sentenced to prison and became subject to the jurisdiction of the Michigan Department of Corrections. Subsequently, plaintiff became aware that defendant’s attorneys were holding a check for defendant in the amount of $2,620.57, representing defendant’s share of an arbitration award in settlement of the lawsuit. Plaintiff then instituted this action pursuant to the State Correctional Facility Reimbursement Act (SCFRA), MCL 800.401 et seq.; MSA 28.1701 et seq., to recover the amount of the check.
Plaintiff filed a motion for summary disposition pursuant to MCR 2.116(C)(9) and (10), arguing that defendant had failed to assert a tenable defense and no factual development could defeat plaintiffs right to recovery. The trial court granted plaintiffs motion and issued an order requiring defendant’s attorneys to turn over to plaintiff $2,358.51, ninety percent of the amount of defendant’s settlement check.
Defendant appeals as of right. We review the trial court’s grant of summary disposition de novo. Parcher v Detroit Edison Co, 209 Mich App 495, 497; 531 NW2d 724 (1995).
On appeal, defendant argues that the trial court’s grant of summary disposition for plaintiff was error because the trial court failed to consider defendant’s common-law right to prefer creditors; defendant’s preference being that the arbitration award be used to pay his brother. Defendant cites several cases in support of his claim. For example, our Supreme Court stated in Scripps v Crawford, 123 Mich 173, 178; 81 NW 1098 (1900): “It is not the province of a court to prefer creditors. That is a privilege of the debtor.” However, Scripps and the other cases cited by defendant are not on point because they deal with debts between private parties. Whereas, in this case, we have a statutory duty on the part of defendant, a state prisoner, to pay for the cost of his incarceration. Dep’t of Treasury v Turner, 110 Mich App 228, 231; 312 NW2d 418 (1981). Even assuming, arguendo, that defendant has a common-law right to prefer creditors, we find that no such right exists in an action brought under the SCFRA.
While we will not abrogate the common law through implication, Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 653; 513 NW2d 799 (1994), the mandate of the SCFRA is plain. The act clearly creates an obligation on the part of the prisoner and a right to reimbursement in the state. Because the Legislature is presumed by the courts to legislate with an understanding of common-law principles, Nummer v Dep’t of Treasury, 448 Mich 534, 544; 533 NW2d 250 (1995), we find that any common-law right defendant may have had to prefer creditors does not apply to actions under the SCFRA. Accepting defendant’s position would lead to the absurd result of the state receiving reimbursement only when a prisoner has no other financial obligations or, having other financial obligations, does not object to the state securing reimbursement from the prisoner’s assets. We decline to interpret the act in such a manner. Densmore v Dep’t of Corrections, 203 Mich App 363, 364; 512 NW2d 72 (1994). Our inteipretation is supported by the fact that MCL 800.404(5); MSA 28.1704(5) requires the circuit court to “take into consideration” any legal or moral obligation the prisoner may have to support dependents, but does not allow the prisoner the opportunity to choose to pay these support obligations instead of or before his statutory obligation to reimburse the state for the cost of his care. Also, the fact that our Supreme Court has stated that the statutory obligation created by the SCFRA is not a “personal judgment or liability against the prisoner,” but “a lien upon his estate,” Auditor General v Hall, 300 Mich 215, 221; 1 NW2d 516 (1942), and that when acting pursuant to the scfra, the state is not a “creditor,” Auditor General v Olezniczak, 302 Mich 336, 350; 4 NW2d 679 (1942), lends credence to our conclusion.
In sum, we hold that a prisoner cannot impede the state’s clear statutory right to reimbursement by claiming that he would prefer to use his assets to pay the obligation of his choice.
Next, defendant argues that the trial court erred in granting summary disposition before discovery was complete. We disagree.
Because defendant failed to file a motion to compel plaintiff to respond to his interrogatories concerning the actual cost of care of defendant’s incarceration, defendant has waived this issue absent manifest injustice. Masters v Highland Park, 97 Mich App 56, 59; 294 NW2d 246 (1980).
Generally, summary disposition is premature if granted before discovery on a disputed issue is complete. Dep’t of Social Services v Aetna Casualty & Surety Co, 177 Mich App 440, 446; 443 NW2d 420 (1989). However, summary disposition is not premature if the discovery does not stand a fair chance of uncovering factual support for opposing the motion for summary disposition. Id. at 446-447.
In the present case, there does not appear to be a fair chance of uncovering factual support for defendant’s claim that his actual cost of care for his minimum twenty-year sentence will not exceed $2,358.51. We find no manifest injustice.
The trial court did not err in granting plaintiff’s motion for summary disposition.
Affirmed.
The scfra. allows the state to secure reimbursement, from the assets of a prisoner, for the expenses incurred by the state for the cost of care of the prisoner during the entire period of his incarceration. MCL 800.404(8); MSA 28.1704(8). The act defines “assets” as any “property, tangible or intangible, real or personal, belonging to or due a prisoner or former prisoner including income or payments to such prisoner from social security, worker’s compensation, veteran’s compensation, pension benefits, previously earned salary or wages, bonuses, annuities, retirement benefits, or from any other source whatsoever,” MCL 800.401a(a); MSA 28.1701(l)(a), and “cost of care” as “the cost of the department of corrections for providing transportation, room, board, clothing, security, medical, and other normal living expenses of prisoners under the jurisdiction of the department,” MCL 800.401a(b); MSA 28.1701(l)(b).
MCL 800.403(3); MSA 28.1703(3) provides that “[n]ot more than 90% of the value of the assets of the prisoner may be used for purposes of securing costs and reimbursement under this act.”
In Olezniczak, supra at 350, our Supreme Court relied on In re Lewis’ Estate, 287 Mich 179, 186-187; 283 NW 21 (1938), in which it was held that the state was not barred by 38 USC 454a, which exempted veterans’ pension payments from the claims of creditors, from seeking reimbursement under 1929 CL 6894, for the care and maintenance of Lewis, a ward of a state mental hospital, and applied its holding, by analogy, to the scfra. | [
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D. E. Holbrook, J.
On Thursday, April 21, 1977, at approximately 6:30 p.m., the defendant-appellant, Vesper Clay, stabbed to death the victim, Carl Gehringer, in an upstairs bedroom of the Tessmer Adult Foster Care Home, in the City of Ypsilanti, Washtenaw County, Michigan.
The defendant was almost immediately arrested at the scene of the crime. The defendant was charged with the crime of open murder, MCL 750.316; MSA 28.548, on April 22, 1977. The defendant was subsequently arraigned in the 14th District Court for Washtenaw County and preliminary examination was set for and held on April 28, 1977. The defendant was represented by counsel at his preliminary examination and also at his trial. Counsel for defendant urged the magistrate to find a lack of evidence to bind defendant over to circuit court for first-degree murder. The district court ruled that even though the court was not bound to find premeditation, there was sufficient evidence produced at the preliminary examination to show premeditation.
The defendant was bound over to circuit court for trial at the conclusion of the aforementioned preliminary examination. Defendant’s arraignment in the Circuit Court for Washtenaw County occurred on May 26, 1977. At arraignment, the defendant stood mute and a plea of not guilty was entered by the court. A pretrial conference was ultimately held on July 14, 1977, at which time a firm trial date of October 17, 1977, was set. The defendant’s counsel made several pretrial motions including a motion for a Walker hearing, which was granted, and a motion to quash. The Walker hearing was held on October 17, 1977, at which time the motion to quash was also heard.
At the conclusion of the Walker hearing, the trial court ruled that the defendant’s statement, made after having been advised of his rights per Miranda, was admissible. It should be noted at this juncture that the district court magistrate had also ruled, at the preliminary examination, that the defendant’s statement was admissible. _
Defendant’s motion to quash was also denied by the trial court.
At trial, the prosecution produced evidence to show that the defendant and the deceased were residents of the Tessmer Adult Foster Care Home in Ypsilanti, where they shared a room. On April 21, 1977, both the defendant and the victim had dinner at the home, during which time they had a slight argument. After the dinner, the victim went up to his room and the defendant went outside the home for a few minutes. The defendant later went upstairs to the room, whereupon he and the victim continued their argument. The testimony at trial showed that approximately five minutes passed between the first argument at the dinner table and the second argument upstairs in the bedroom. Trial testimony further showed that the resident manager, Gerald Fortier, was called upstairs by another resident, because of a fight between the defendant and the victim. Mr. Fortier, upon going upstairs, found the two men standing about eight to ten feet apart, the victim with an incision in his neck, and the defendant with a knife in his hand. After observing this, Mr. Fortier left the room to call the police. When Mr. Fortier returned, after notifying the police, he found the victim slumped over the bed pleading for help. Mr. Fortier then went downstairs to wait for the ambulance and observed the defendant cleaning off his knife in the crack of the sidewalk.
By the time the police arrived, the victim was dead. Dr. Robert C. Hendrix, an expert pathologist, testified that the victim died from loss of blood from two- stab wounds in the chest and lung.
Testimony was introduced by the prosecution to show that Detective William Stenning took a taped statement from the defendant after having advised him of his Miranda rights. The taped statement was played in its entirety for the jury.
After the people had rested, the defendant called Professor Hutt and Doctor Danto, a psychologist and psychiatrist respectively, who testified that at the time of the killing, the defendant was legally insane.
In rebuttal of the defense witnesses, the prosecution called Dr. Charles Hattaway, a psychiatrist from the Center for Forensic Psychiatry, who testified that the defendant was neither mentally ill nor legally insane at the time of the killing. Prior to Doctor Hattaway’s testimony, the prosecutor learned that Doctor Hattaway had taped an interview between the defendant and himself. The prosecuting attorney ultimately moved for admission of the tape recording, which was objected to by defendant’s trial counsel. However, the defendant’s trial counsel’s objection was not based on evidentiary grounds but rather on the fact that if the court were to admit the tape recording it should also admit defendant’s written reports from Doctor Hutt and Doctor Danto. The tape recording of the interview with Doctor Hattaway was ultimately admitted and played to the jury. Doctor Hattaway stated that he had relied on the information received from the tape recorded interview in forming his opinion as to the defendant’s sanity.
The written reports of Doctor Hutt and Doctor Danto were also admitted into evidence at trial. It should be noted at this point that Doctor Hutt’s and Doctor Danto’s reports contained several references to the defendant’s prior incarcerations and prior criminal record.
After both sides had rested, the court then heard final arguments and gave instructions to the jury. Prior to the court’s instructions to the jury, the defendant’s counsel objected to the giving of the Michigan Judges Association instructions on insanity, for the reason that a presumption of sanity instruction was included therein.
The jury found the defendant guilty of murder in the second degree. Thereafter, the defendant was sentenced to a term of 20 to 40 years with the Michigan Department of Corrections. Defendant now appeals his conviction and sentence by right.
The defendant claims four errors which we consider in proper order.
I. The trial court’s failure to give the Michigan Criminal Jury Instructions on insanity was error. Further, the instructions given from the Michigan Judges Association instructions improperly contained a statement on "presumption of sanity” and failed to state a burden of proof as to mental illness.
We reject the defendant’s claims of error. The presumption of sanity has been the law from the very beginning and is still a viable part of our law. People v Garbutt, 17 Mich 9 (1868), People v Eggleston, 186 Mich 510, 514; 152 NW 944 (1915), and People v Woody, 380 Mich 332, 338; 157 NW2d 201 (1968). The trial court properly instructed the jury in accord with the rules laid down in the cases just cited. The proposed Michigan Criminal Jury Instructions (not mandatory at the time of trial of this case) also contain a commentary on the presumption of sanity. 1 MCJI (Ann Arbor, Institute of Continuing Legal Education), p 7-145.
The trial judge instructed on burden of proof as to sanity in the following words:
"Once however there is any evidence tending to show that the defendant was insane, the people then have the burden of proof of establishing beyond a reasonable doubt that the defendant was legally sane at the time of the alleged offense. In order for you to render a just verdict, it will be necessary for you to consider separately the questions of the presence or absence of mental illness and the presence or absence of legal sanity. In determining whether or not the defendant was mentally ill at the time of the alleged offense, you are to apply the following definitions of mental illness. Mental illness means a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality or the ability to cope with the ordinary demands of life.”
The defendant claims that the trial judge should have expanded further on the insanity instructions. The defendant failed to object to this aspect of the instructions so the issue is not preserved for appeal. GCR 1963, 516.2. The instructions, considered as a whole, fairly and accurately presented the issues to the jury.
II. (A) The district court committed error in binding defendant over to circuit court for trial on a charge of open murder, and determining that premeditation was shown on the record.
(B) The trial judge committed error in denying defendant’s motion to quash the information, and denying defendant’s motion for directed verdict as to first-degree murder.
A. First we point out that the district judge is not, on preliminary examination, required to determine the degree of murder. The degree of murder is for the trier of fact. People v Strutenski, 39 Mich App 72; 197 NW2d 296 (1972), and People v Norwood, 68 Mich App 730; 243 NW2d 719 (1976).
We also point out that there was some evidence aliunde defendant’s confession in the examination record that indicated premeditation. The resident manager, Gerald Fortier, went upstairs to the room that Gehringer and defendant shared, and saw them standing a distance apart, with a cut on Gehringer’s neck and with defendant swinging a knife in Gehringer’s direction, but not reaching him. He did not describe any other cutting on Gehringer at that time. Both men were standing when Fortier observed them for a short time. Fortier then left the room and went to his apartment next door and called for the police and an ambulance. When he returned to the room, defendant had left and Gehringer, the victim, was partially on the floor and partially on the bed—and he called to Fortier to help him. According to the evidence several minutes elapsed before the fatal stabbings took place. The pathologist, Dr. Hendrix, testified at the preliminary examination in part as follows:
"Q. Would you relate for the Court please, what signs of trauma you found, ah * * * on the body of Mr. Gehringer?
"A. There was a cut on the left ear, was a horizontal cut * * * 'bout mid-point in the ear, it also extended back onto the scalp a little bit behind the ear. Also on the left side of the head on the scalp there was a large cut, it was vertical in position, it was sort of a tangential slice, it was about two and a half (2 1/2) inches in length. There was a cut on the neck on the left side of the neck which extended from the mid-line well around onto the left side. Ahmmm * * * it was about four (4) inches long. It was very shallow; it extended down to the muscle to the neck, but it did not cut any of the major blood vessels of the neck. On the right side of the chest, there were two (2) stabbing or cutting wounds, ahmmm * * * one (1) of them was about eight (8) inches below the shoulder and four (4) inches from the mid-line. This extended, ah * * * it was vertical in position and it was about one and a half (1 1/2) inches long and three-quarters an inch wide. It extended downward through the soft tissues and the * * * third rib was cut. The defect then entered the chest cavity and penetrated the lung. There was another cutting or stabbing wound on the right side of the chest. This was about ten (10) inches below the shoulder and it was an inch from the mid-line; it measured one and a quarter by three-quarters of an inch. Ah * * * it was in an oblique position pointing upwards and towards the center of the body. This ex—cut went through the fifth rib and entered the chest cavity and penetrated the lung. There was about a quart o’ blood free and clotted in the chest cavity. Also on the right side o’ the chest right up near the armpit, slightly above the armpit, there were two (2) vertical very shallow scratches; one of these was about two and a half (2 1/2) inches long and the other about one (1) inch. On the left shoulder * * * there was a rather deep cut about three-quarters of an inch long, ah * * * it was way out on the tip o’ the shoulder; it extended through the skin into the muscle, no farther. And also on the left upper arm on the lateral side, just above the elbow, there was a two (2) inch, very shallow cut. There were no other injuries.
From the evidence it could be inferred that the fatal stabbings in the chest took place several minutes after the infliction of the neck wound that was shallow and not fatal. This we believe would be a sufficient length of time for defendant to take a 'second look’ and satisfy the element of premeditation and for deliberation to be present. People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971), and People v Meier, 47 Mich App 179, 191-192; 209 NW2d 311 (1973).
We cannot say that the magistrate abused his discretion in binding defendant over to circuit court for trial on the charge of murder. People v Melvin, 70 Mich App 138; 245 NW2d 178 (1976).
B. Did the trial court err in denying defendant’s motion to quash the information and in denying the defendant’s motion for a directed verdict on the charge of first-degree murder?
We have already ruled that there was sufficient evidence in the preliminary examination testimony to permit the magistrate to bind defendant over on the charge of murder. By the same token it was not error for the trial court to deny defendant’s motion to quash the information.
Where defendant at trial claims that the issue of first-degree murder should not have been submitted to the jury, the prosecution’s evidence must be taken as true and viewed in the light most favorable to the prosecution with the state receiving the benefit of every reasonable inference to be drawn from the evidence. People v Watkins, 36 Mich App 380; 193 NW2d 914 (1971), aff’d 388 Mich 717; 202 NW2d 780 (1972).
We find there was more evidence favorable to the state on the issue presented at trial than at the preliminary examination, and that it was sufficient to permit the trial court to submit the issue of first-degree murder to the jury. People v Charles, 58 Mich App 371; 227 NW2d 348 (1975), lv den 397 Mich 815 (1976), reconsideration den 401 Mich 805 (1977), People v Vail, 393 Mich 460; 227 NW2d 535 (1975), and People v Meier, supra, 191-192.
III. The trial judge erred in determining that defendant’s confession was voluntary and admitting the same into evidence.
The defendant made a taped statement to the police on the evening Gehringer was killed. Following a Walker hearing the trial court held that the statement was admissible. We review the record to determine the issue. The trial court’s ruling will not be reversed unless this Court is convinced that a mistake has been committed and the decision of the trial court is clearly erroneous. People v Robinson, 79 Mich App 145, 153; 261 NW2d 544 (1977). Our review of the record convinces us that the required warnings set forth in Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966), were given to the defendant before the statement was taken. The defendant also stated in response to the warnings that he understood them and that he would give a statement.
Dr. Max Hutt, a clinical psychologist, testified that he saw defendant on June 29 and July 15, 1977, and obtained a history of the incident from defendant. Dr. Hutt gave him two series of psychological tests. In the doctor’s opinion, defendant was in a confused post-epileptic state at the time he made the statement to the police.
Dr. Hutt felt that defendant’s recall in his statement was correct in the sense that he voluntarily offered everything he could but was totally incorrect in terms of accuracy in that he did not recall many of the events.
On cross-examination, Dr. Hutt made the following comments regarding defendant’s understanding of his rights:
"Q. Professor Hutt, if Mr. Clay were read, 'You have the right to remain silent,’ would he have understood that at the time?
"A. I think he would have understood it. I don’t know whether he would have accepted that. I think he had a great need to talk.
"Q. There’s no reason, you have no basis for assuming he wouldn’t understand the simple statement, 'You have a right to remain silent,’ isn’t that correct?
"A. No, no, I don’t think he would have known what that meant, what it’s implications were, not at that time.
"Q. Well, aren’t you changing your testimony? Didn’t you just say he would have understood it?
"A. He would have understood the literal aspects of that question, that he had a right to remain silent, but I am saying he would not have understood the implications of that in terms of defense or what he was being charged. I’m saying that that didn’t probably enter into his consideration at all.”
Detective Stenning testified at the Walker hearing and stated that he gave defendant warnings of his Miranda rights and that he knew defendant was epileptic and on medication. Stenning testified that defendant moved "like in slow motion”, his answers were slow and halting and he rambled some. Stenning testified that defendant was coherent, "pretty” logical and gave a continuous narration. We believe that defendant’s memory was somewhat confused as to events but that he voluntarily and understandably made the statement to the police. The trial court’s finding was proper and not clearly erroneous. The present case is distinguishable from People v Stanis, 41 Mich App 565; 200 NW2d 473 (1972).
IV. It was reversible error to allow the forensic center’s psychiatrist to testify as to defendant’s statements and admit a taped interview between the forensic center’s psychiatrist and the defendant for the purposes of rebuttal of an insanity defense.
Defendant claims the trial court should not have allowed the forensic center’s psychiatrist to testify as to defendant’s statements made to the psychiatrist at the time of his forensic evaluation. While the plaintiff-appellee agrees with the defendant’s quotation of the applicable statute, to-wit: MCL 768.20a(5); MSA 28.1043(1)(5), the plaintiff submits that the statements were clearly admissible because they had a bearing on the issue of the defendant’s mental illness or insanity at the time of the alleged offense.
In People v Woody, supra, our Supreme Court stated:
"When the defense-called psychiatrist testified that in his opinion the defendant was legally insane, it became the burden of the people to prove his sanity, like every other element of an offense, beyond a reasonable doubt. Testimony of prior arrests, convictions, assaultive and antisocial conduct, ordinarily completely inadmissible as bearing on the general guilt or innocence of the accused of the offense charged, became material and admissible as bearing on the issue of his sanity.” 380 Mich 332, 338.
See also People v Musser, 53 Mich App 683, 686; 219 NW2d 781 (1974), People v Culpepper, 59 Mich App 262, 266; 229 NW2d 407 (1975), and People v Hammack, 63 Mich App 87, 93; 234 NW2d 415 (1975). Contrary to the defendant’s position, Doctor Hattaway did rely on the information received from the defendant, during his two interviews with Dr. Hattaway, in forming an opinion as to defendant’s sanity.
It is true that certain references were made in the taped interview to defendant’s prior criminal record and incarceration. The defendant claims that the forensic psychiatrist may testify to facts learned at a compulsory mental examination only for purposes of rebutting an insanity defense. The plaintiff replies that that is exactly the reason that Doctor Hattaway was called to the stand; to rebut the insanity defense put before the jury by defen dant’s witnesses, Doctor Hutt and Doctor Danto. There was no error here.
The defendant objected at trial to the admission of the taped interview but not for the reason now advanced. Counsel for defendant, during the discussion with the trial court, argued that it would not be fair to permit the taped interview with Doctor Hattaway to be admitted unless the reports of defendant’s Doctors Hutt and Danto were likewise admitted. We note that these reports were admitted. We also note that the references on the tape to defendant’s prior criminal record and incarceration were likewise contained in Doctor Hutt’s and Doctor Danto’s reports. These facts were properly used by all of the doctors in evaluating the defendant’s sanity.
Affirmed.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
The defendant and the victim had an argument at dinner and defendant went outside for about five minutes and then went up to his room where the victim was present and the argument was renewed. The defendant used a knife on the victim and cut his neck before Mr. Fortier entered the room for a few minutes. | [
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V. J. Brennan, J.
Plaintiff is the owner of five rental homes in the City of Brighton which comprise the subject matter of this lawsuit. At a time when the homes were vacant, the water service was shut off by the city in order to enforce its building code regulations. This action was precipitated by the belief that the homes were in violation of the building code and were thus uninhabitable.
Plaintiff then brought this suit in Livingston County Circuit Court seeking restoration of the water service and damages.
After trial without a jury the lower court found in pertinent part that:
"G. The action of the city of Brighton in suspending the water services to the five properties in question was warranted by the peculiar situation that existed.
"H. In failing to appeal to the Brighton Housing Board of Appeals from the action of the City Manager and City inspectors, the Plaintiff unreasonably failed to exhaust his administrative remedy.
"I. The Plaintiff did not establish that such an appeal would have been a useless gesture.
"J. The Plaintiff did not establish that a majority of the seven members of the Housing Board of Appeals would have been prejudiced.
"M. The Plaintiff has not demonstrated that he was legally damaged.
"N. The properties in question were not rented but this was equally due to the inaction or action of the Plaintiff as well as to the suspension of the water service.”
The lower court then issued the following orders:
"IT IS HEREBY ORDERED that the Plaintiff take nothing by his Complaint.
"IT IS FURTHER ORDERED AND ADJUDGED that the City of Brighton shall, upon request of the Plaintiff, resume water service to the five premises in question so that the Plaintiff may comply with all of the housing regulations of the City of Brighton.
"IT IS FURTHER ORDERED AND ADJUDGED that the Plaintiff shall not occupy any of the five properties in question until such time as there has been an inspection by the City of Brighton and compliance by the Plaintiff with all of the requirements of the Ordinances and regulations of the City of Brighton.
"IT IS FURTHER ORDERED AND ADJUDGED that if any of the five properties involved in this litigation are occupied prior to the inspection and compliance as required in the preceding paragraph, the City, without notice to the Plaintiff and without Order of the Court, may immediately suspend water services to said properties.”
Plaintiff appeals by right raising three issues, only two of which warrant discussion here.
Plaintiff first claims that the trial court’s finding that the city was justified in suspending water service in order to enforce building regulations was error. We agree.
The leading case on this subject is Ten Broek v Miller, 240 Mich 667; 216 NW 385 (1927), Anno: Right of public utility corporation to refuse its service because of collateral matter not related to that service, 55 ALR 771. In Miller plaintiff sought injunctive relief and damages against defendant for the discontinuance of electric and water service which was predicated upon plaintiffs failure to install a septic tank. (Plaintiff had already installed a cesspool.) In ruling in favor of plaintiff the Court held:
"There is no claim that plaintiff refused to pay the rate charged for water and light, nor is there any claim that he did not pay in accordance with the rules, but defendants- now say the service was cut off because plaintiff would not install a septic tank when ordered to do so. The plaintiff denies that the resort company had any rule or regulation that septic tanks should be installed, and no such rule is shown in the evidence. But even if it did have such a rule, and it was not complied with by plaintiff, that would furnish no adequate reason for refusing to furnish him water and light.
"20 C.J. p. 333, in discussing this question, says:
" 'Payment of proper charges for service supplied is a reasonable condition of the right to receive it, and for nonpayment of such charges the service may be discontinued. But service cannot be cut off to enforce payment of a disputed claim, or a claim for service rendered at some other place, or of a collateral liability not connected with the particular service. ’
"The installing of a septic tank was purely a collateral matter, and had no relation to the duty of defendant company to furnish the light and water and receive its pay therefor. See, also, Phelan v Boone Gas Co, 147 Iowa, 626 (125 NW 208 31 LRA [NS] 319). If plaintiff were violating a rule of the State health department he could be proceeded against for its infraction in the proper forum. This would be a more orderly way of disposing of the dispute than for defendant to substitute itself for a court and punish plaintiff by shutting off his water and light.” 240 Mich 670-671.
In the present case the housing code violations are purely collateral to the discontinuance of the water service and thus Miller controls. In addition, Chapter 60 of the Housing Regulations for the City of Brighton more than adequately provides for enforcement, thus collateral attack is unnecessary. Insofar as the lower court’s ruling is contrary to the above, it is set aside.
Next the plaintiff claims that the trial court erred in holding that he failed to demonstrate any damages flowing from the city’s action.
The plaintiff devotes much attention in his brief to the fact that Chapter 60 of the building regulations was not complied with and the water was shut off before any formal inspection. In addition only one house was inspected under GCR 1963, 310 after plaintiff commenced his suit, and two houses were never inspected. The plaintiff is thus endeavoring to point out improprieties in the city’s activities. However these improprieties do not alleviate the plaintiff from his burden of proving damages.
In order to sustain this burden the plaintiff must show that due to the discontinuance of the water service, the premises in question were uninhabitable or could not have been repaired so as to be made inhabitable. Our review of the record indicates that the premises in question were replete with various code improprieties including falling plaster, defective steps, water seepage and exposed electrical wires. These conditions existed prior to the water service interruption and there was no showing that the city’s action in any way affected the plaintiff’s ability to repair the premises. In this light we cannot say that the lower court’s ruling on damages was clearly erroneous. GCR 1963, 517.1.
The lower court’s order is modified in accordance with this opinion.
G. W. Crockett, Jr., J., concurred.
Plaintiff also assailed the constitutionality of the city’s housing regulations but does not appeal from the lower court’s adverse ruling. | [
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Bashara, J.
Defendant appeals from a denial of a motion for rehearing and for a new trial. A judgment of filiation and an order for support were entered after the trial court found the defendant was the father of Kendall Wayne Smith, a child born to plaintiff.
Plaintiff filed a complaint seeking an order of filiation, alleging the defendant fathered her child. Plaintiff claims the child was conceived about April 5, 1970, and born January 27, 1971.
Defendant then filed a motion for summary judgment, alléging that plaintiff had not stated a claim upon which relief could be granted, GCR 1963, 117.2(1), because the child was conceived and born while plaintiff was married to Clinton Smith, Jr.
On the same day, the parties filed a stipulation of facts which stated that the plaintiff and Smith were married on June 7, 1969; that from January 10, 1970, to January 27, 1971, Smith was in the Army and plaintiff neither saw nor cohabited with him during that period; that the child was born January 27, 1971; that in June, 1971, Smith filed a complaint for divorce, which alleged he was not the natural father of the child. An amended complaint for divorce was filed June 22, 1972, alleging that there were no children born of the marriage, and on November 13, 1972, divorce was granted, the judgment making no reference to children.
The trial court, in denying the motion for summary judgment, ruled that the preamble, §§ l(a)-(c) and § 16 of the Michigan Paternity Act, MCL 722.711(a)-(c); MSA 25.491(a)-(c), MCL 722.726; MSA 25.506, were unconstitutional on equal protection grounds.
The action proceeded to trial where testimony was taken from plaintiff, defendant and Smith’s family, with whom plaintiff resided while he was in the service.
The court found that defendant was the biological father, and made the following findings of fact: that defendant and plaintiff had sexual intercourse in March and April of 1970; that plaintiff did not have sexual intercourse with any other individual during that time period; that defendant and plaintiff took no precautions to avoid pregnancy; and that plaintiffs last menstrual period before the child’s birth was in March of 1970.
On appeal, defendant raises numerous issues, only three of which merit discussion.
I
Constitutionality of the Michigan Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq.
The trial court found that the Michigan Paternity Act denies equal protection to a child conceived and born during his mother’s marriage to other than the biological father.
A child born during marriage is accorded a strong but not irrebuttable presumption of legitimacy. People v Case, 171 Mich 282, 284; 137 NW 55 (1912). The possibility of the presumption being overcome has been greatly enhanced since "Lord Mansfield’s Rule” barring testimony of nonaccess during marriage has been found to be invalid. Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977).
The adverse consequences once attendant upon the status of illegitimacy have been greatly diminished by statutory enactments.
Under the Michigan Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq., an illegitimate child Can require his biological father to provide support, Section 2(a) of the act provides that the "parents of a child so born out of wedlock are liable for the necessary support and education of the child”. "Out of wedlock” is defined in section 1(a) of the act as,
"A child born out of wedlock is a child begotten and born to any woman who was unmarried from the conception to the date of birth of the child.”
Defendant argues that since Kendall Wayne Smith was born while his mother was married, he is prohibited by the terms of the statute to turn to his biological father for support.
An individual is entitled to equal protection under the law. US Const, Am XIV; Const 1963, art 1, § 2. A legislative classification may not be arbitrary. There must be a rational relation between the classification and the purpose of the act in which it is found. United States Dep’t of Agriculture v Moreno, 413 US 528, 533; 93 S Ct 2821; 37 L Ed 2d 782 (1973), Fox v Employment Security Comm, 379 Mich 579, 588; 153 NW2d 644 (1967).
Numerous recent United States Supreme Court decisions have found disparate statutory treatment between illegitimate and legitimate children to be constitutionally invalid.
If our paternity statute is interpreted as creating a distinction between support provided for an illegitimate child of an unwed mother and the illegitimate child of a married mother, a clearly irrational classification exists and the statute will be rendered unconstitutional. This was the finding of the trial court.
However, we seek to construe statutes so as to sustain the constitutionality of the statutory scheme. Schwartz v Secretary of State, 393 Mich 42, 50; 222 NW2d 517 (1974). The primary rule of statutory construction is to determine and effectuate the Legislature’s intent. Toward that end, statutory language should be given a reasonable construction considering the purpose of the statute and the object sought to be accomplished. King v Director of The Midland County Dep’t of Social Services, 73 Mich App 253, 258; 251 NW2d 270 (1977).
The purpose of the Paternity Act is to provide for the support of an illegitimate child. The announced public policy of this state is to treat children born out of wedlock as no less deserving of support than those born in wedlock. Boyles v Brown, 69 Mich App 480; 245 NW2d 100 (1976).
Other jurisdictions, when faced with defining "out of wedlock”, have determined that no distinction exists between the true illegitimate and the social illegitimate.
In State v Coliton, 73 ND 582, 586; 17 NW2d 546 (1945), the Supreme Court of North Dakota embarked upon a detailed analysis of the common-law concepts of illegitimacy and construction of the nature of wedlock in light of common-law notions. The court concluded that, since a married woman may have an illegitimate child:
"The term 'wedlock’ refers to the status of the man and his wife, not the status of the woman and her paramour. As to the latter, there is no wedlock and the child born to them is born out of wedlock. Because it is thus born out of wedlock and is therefore illegitimate, the natural father can be required to support it.”
The Supreme Court of North Carolina in Wright v Gann, 27 NC App 45, 47; 217 SE2d 761 (1975), held that:
"The father of an illegitimate child has a legal duty to support his child. * * * Where a married woman has an illegitimate child, the father has the duty to support his child and not the woman’s husband. * * *
"North Carolina does not impose upon a husband the burden of supporting another man’s offspring. The legislature, by enacting G.S. 49-14, intended to establish a means of support for illegitimate children. Statutory construction should seek to accomplish that purpose and not frustrate legislative intent. We interpret the phrase 'out of wedlock’ in the statute as referring to the status of the child and not to the status of the mother.”
As emphasized in Martin v Lane, 57 Misc 2d 4, 6; 291 NYS2d 135 (1968):
"The layman’s understanding of the term 'child born out of wedlock’ means unquestionably 'a child whose father is not the mother’s husband’ * * *. To hold otherwise * * * would infer that the Legislature was not cognizant of the common understanding of men.”
See also Leonard v Leonard, 360 So 2d 710 (Ala, 1978), In the Matter of the Estate of Robert A. Marriott, Deceased, 515 P2d 571, 573 (Okla, 1973), Pursley v Hisch, 119 Ind App 232; 85 NE2d 270 (1949).
The main objective sought to be accomplished by use of these various interpretations is to uphold legislation that mandates a child be supported by the biological father. B V O, 50 NJ 93; 232 A2d 401 (1967), Ingalls Shipbuilding Corp v Neuman, 322 F Supp 1229, 1241 (SD Miss, 1970), King v King 544 SW2d 795 (Tex Civ App, 1976).
Although the Michigan act adds an additional element, that of "unmarried”, to the definition of an illegitimate child, "unmarried” and "out of wedlock” are not so substantially different that a construction of unmarried to include not lawfully married to the father of the child unduly strains the statutory language.
Judge V. J. Brennan, in a dissenting opinion in the recent case of Pruitt v Pruitt, 90 Mich App 230, 236; 282 NW2d 785 (1979), recognized the possible constitutional violation in the statute, although the majority did not reach the issue. He stated that "[a] literal reading * * * places the child in the case at bar (since the mother was married at the time of birth) outside the ambit of that act. Such a result is unacceptable. I would hold the Paternity Act operative where the mother of the child is not lawfully married to the father of the child”.
We join with Judge Brennan in his interpretation of the Paternity Act.
II
Standard of Proof
The next issue raised is whether there was sufficient evidence for the trial court’s determination that defendant was the father of the child.
Paternity proceedings are quasi-criminal in nature. Artibee v Cheboygan Circuit Judge, 397 Mich 54, 57; 243 NW2d 248 (1976). The defendant is afforded the right to a jury trial, to appointed counsel, and protection against double jeopardy. Pruitt v Pruitt, supra.
However, the full panoply of criminal procedural protections have not been extended to paternity defendants. The standard of proof in a paternity proceeding is not, as defendant claims, proof beyond a reasonable doubt, but proof by a preponderance of the evidence. Huggins v Rahfeldt, 83 Mich App 740; 269 NW2d 286 (1978).
A review of the evidence convinces us that the findings of the trial judge were not clearly erroneous.
Ill
Representation of the Child
Defendant also claims that the trial court’s finding of illegitimacy is voidable since the child was not represented by counsel at the divorce proceeding or in the paternity action, and cannot be bound by plaintiffs and defendant’s stipulation of facts.
Although paternity of a third party cannot be determined as part of a divorce proceeding, Pruitt v Pruitt, supra, a paternity question involving the parties in a divorce action can be resolved by the court. Gallison v Gallison, 5 Mich App 460; 146 NW2d 812 (1966), Maxwell v Maxwell, 15 Mich App 607, 616; 167 NW2d 114 (1969).
Defendant cites no authority for his proposition. It must be emphasized that a child is protected by the still strong and viable presumption of legitimacy that can only be rebutted by clear and convincing evidence. Serafin, supra, Shepherd v Shepherd, 81 Mich App 465, 469; 265 NW2d 374 (1978).
In reaching its determination, the trial court considered collectively the divorce judgment, the stipulation, and the testimony of witnesses. A review of the evidence convinces us that the trial court properly found the presumption of legitimacy rebutted by clear and convincing evidence.
Affirmed.
MCL 702.81; MSA 27.3178(151) provides that an illegitimate may inherit from his or her mother. MCL 702.83; MSA 27.3178(153) allows an illegitimate to be legitimatized by the parents even absent their marriage, and if legitimatized, the child has the identical status, rights and duties of a child born in lawful wedlock.
Defendant supports his claim by citing the case of Winsett v Donaldson, 69 Mich App 36; 244 NW2d 355 (1976). In that case the defendant was seeking a formal determination of his paternity prior to taking further action to obtain custody of the child. The court found that since the mother of the child had been married to someone other than defendant at the time of the alleged conception, defendant could not proceed under the Paternity Act. It must be noted that this action was prior to Serafin, supra, and defendant could have proceeded under the child custody act of 1970.
In Gomez v Perez, 409 US 535; 93 S Ct 872; 35 L Ed 2d 56 (1973), a law granting legitimate children support rights from their natural fathers while denying the same to illegitimate children was declared unconstitutional.
Trimble v Gordon, 430 US 762; 97 S Ct 1459; 52 L Ed 2d 31 (1977), struck down a statute allowing an illegitimate child to inherit only through his mother.
Glona v American Guarantee & Liability Ins Co, 391 US 73; 88 S Ct 1515; 20 L Ed 2d 441 (1968), invalidated Louisiana’s wrongful death statute providing that parents could only recover from the death of their legitimate children and only legitimate children could sue for the death of their parents. See also Levy v Louisiana, 391 US 68; 88 S Ct 1509; 20 L Ed 2d 436 (1968).
In Weber v Aetna Casualty & Surety Co, 406 US 164; 92 S Ct 1400; 31 L Ed 2d 768 (1972), a workmen’s compensation law that did not allow illegitimate children to recover benefits from the death of their wage earning parent was found unconstitutional.
It should be noted that Webster’s Third New International Dictionary defines illegitimate as being "born of parents not married to each other”. | [
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Allen, J.
At the conclusion of plaintiffs proofs in a trial by jury on plaintiffs claim against defendant for breach of an oral contract of employment, defendant’s motion for a directed verdict against plaintiff was granted. In granting the motion on May 3, 1978, the trial court stated it found Toussaint v Blue Cross & Blue Shield of Michigan, 79 Mich App 429; 262 NW2d 848 (1977), controlling and that plaintiffs claim should be denied because the contract (1) was for more than one year and therefore was in violation of the statute of frauds, and (2) was a contract for permanent employment which, under Michigan law, is a contract at will terminable with or without cause by either party at any time. Plaintiff appeals of right.
To the extent that the trial court granted the directed verdict on the basis of the statute of frauds defense, we find error. While it is true that the contract of employment was intended to continue for more than one year, it is also true that, technically speaking, it could have been performed within one year. Plaintiff testified that when defendant sought his services he was told that after he had worked for defendant for 45 days he would become a member of the union, after which he could only be fired for just cause. At another point, plaintiff testified he was informed "that the only way I would get laid off is if the company closed down”. Since the company could have been closed down within one year or since plaintiff could have performed his assigned duties so poorly as to give bis employer just cause to discharge him, the contract oí' employment could have been for less than a year.
Where an oral contract may be completed in less than a year, even though it is clear that in all probability the contract will extend for a period of years, the statute of frauds is not violated. Fothergill v McKay Press, 361 Mich 666, 668; 106 NW2d 215 (1960), quoted with approval the following language from Smalley v Mitchell, 110 Mich 650, 652; 68 NW 978 (1896):
"The mere fact that the contract may or may not be performed within the year does not bring it within the statute. The rule is that if, by any possibility, it is capable of being completed within a year, it is not within the statute, though the parties may have intended and thought it probable that it would extend over a longer period, and though it does so extend.” (Emphasis supplied.)
Furthermore, it appears that under the rationale of Pursell v Wolverine-Pentronix, Inc, 44 Mich App 416, 419-420; 205 NW2d 504 (1973), and Conel Development, Inc v River Rouge Savings Bank, 84 Mich App 415, 423; 269 NW2d 621 (1978), plaintiff’s giving up of his prior job where he had been employed for 13-1/2 years, and his soon-to-vest retirement benefits constituted a reliance sufficient to circumvent the statute of frauds, at least by raising a question of fact to be resolved by the jury.
The question of whether the trial court was correct in concluding that the oral agreement was for employment of indefinite duration and, as such, was a contract terminable at will, is more difficult to resolve. In Michigan, as well as in a majority of states, the rule is well established that, in the absence of some special consideration passing from the employee to the employer, other than the services to be performed by the employee, a contract for employment for an indefinite term is a contract which may be terminated at any time by either party for any reason or for no reason at all. Lynas v Maxwell Farms, 279 Mich 684, 689; 273 NW 315 (1937), Adolph v Cookware Co of America, 283 Mich 561, 568; 278 NW 687 (1938), McLaughlin v Ford Motor Co, 269 F2d 120, 125 (CA 6, 1959), Percival v General Motors Corp, 539 F2d 1126 (CA 8, 1976), Milligan v The Union Corp, 87 Mich App 179; 274 NW2d 10 (1978). Cf. Anno: Employee’s arbitrary dismissal as breach of employment contract terminable at will, 62 ALR3d 271. Further, in a majority of jurisdictions, relinquishment by the employee of a job, business or profession in order to accept the new position of permanent employment does not constitute special consideration sufficient to support the contract. Anno: Validity and duration of contract purporting to be for permanent employment, 60 ALR3d 226, 264-266, Lynas, supra, Adolph, supra.
But, because the rule is sometimes harsh and offers opportunities for arbitrary dismissal, the courts have been quick to find exceptions. As is stated in Anno: "Validity and duration of contract purporting to be for permanent employment”, 60 ALR3d 226, 232:
"Notwithstanding the above-stated rule that an employment contract which is indefinite as to duration will be considered terminable at will, many courts will hesitate to hold an employment contract unenforceable merely because it fails to specify a term of employment. Before holding an employment contract indefinite for such a reason, the courts will look to the intention of the parties for clues as to the intended duration of the contract, this understanding and intent of the parties to be ascertained from the written and oral negotiations of the parties, business custom and usage, the situation of the parties, the nature of the employment, and the particular circumstances of the case.” (Footnotes omitted, emphasis supplied.)
Likewise, an exception to the rule is recognized where it is clear that the employer knew at the time of the hiring that the employee would not have left his former position except for the offer of a permanent position. 60 ALR3d 267 and cases cited. Thus, where the job which is given up is "tenured” or permanent and the new job offer is also tenured or permanent, special consideration is found to exist. Collins v Parsons College, 203 NW2d 594 (Iowa, 1973).
This brings us to the key issue. Does the situation in the case before us fall within the general rule or within one of the exceptions? Or, stated another way, is the instant employment contract a Toussaint v Blue Cross or McLaughlin v Ford Motor Co situation, or is it something else? We conclude it is something else.
Plaintiff’s testimony was clear and straightforward. He stated that for 13-1/2 years he was the "fix-it man of all types” in charge of maintenance work at Muskegon Aluminum where he was paid $4.52 an hour working 50 to 60 hours a week. He stated that he was close to having a vested pension with only a year and one-half remaining before his pension vested; that without any solicitation from him, Nils Bodman, an employee of defendant Noren Pattern & Foundry Company (Noren), contacted him saying that Noren needed a maintenance man and "how much better they could do” him; that he was contacted by Bodman three or four times until finally a meeting was arranged at the Noren plant where Bodman introduced plaintiff to Jim Surge, personnel manager at Noren; that Noren was particularly interested in whether plaintiff knew how to keep a Hunter Automatic Molding Machine operating; that plaintiff had been operating a Hunter machine for several years at Muskegon Aluminum and had taken schooling for it; that Noren offered $5.30 an hour to begin work; that Surge stated he wanted plaintiff to come to work for him and wanted to know what else he could do to get plaintiff to come to work. At this point the transcript of plaintiff’s testimony shows:
"Q [counsel for plaintiff] Did you explain what else he could do to get you to come there?
"A Yes. I asked him what kind of a guarantee could he give me that I would work for—that I wouldn’t be laid off in a week or two weeks or a year or what have you. And he said that he couldn’t give me a written agreement because there was a union there and I had to join the union in 45 days. But he said in 45 days I would have to join the union.
"Q When you were talking about job security, what was said?
"A He said that he couldn’t give me a written thing— a guarantee—that I would work there, but that I would work for 45 days and I would join the union. Then I would be covered under the union contract and—
"Q Did Mr. Surge ever tell you that the 45 days was a probation period?
"A No. In fact, he told me that it wasn’t. He said—He told me: 'You don’t have to worry about that. You are the man we want. You got the qualifications, and you sure don’t have to worry about—'You know, that they wanted me to come there. There is no way I would have went there for one minute if I didn’t figure that, you know, that I would belong to the union.
"Q During the conversation with Mr. Surge, was the possibility of layoff discussed?
"A Yes, it was.
"Q Would you relate to the Court—
"A I asked him about getting laid off. He said there was no one in the plant that could bump me because there was nobody qualified for that job. They already posted it and they couldn’t get no one to fill it. And he said—[h]e went on to say that the only way that I would get laid off is if the company closed down.
"Q Were you given, at any time prior to your termination, a copy of the union contract?
"A No.
"Q Were you ever told that you had to undergo a 45-day probation period?
"A No, sir. It was the opposite. He told me that—led me to believe just exactly the opposite—that I would not be on probation, that they knew what I could so. They wanted me there. It was just a matter of—I had to be there 45 days before I could join the union.”
Plaintiff’s testimony was not rebutted since defendant’s motion came at the conclusion of plaintiff’s proofs. Neither was plaintiff’s testimony damaged or otherwise qualified by cross-examination. Therefore, it must be taken at face value. As such, we are persuaded that the agreement was not the typical "you come to work for us and you may have a job forever or until retirement as long as your work is satisfactory” employment agreement. That is the type agreement found in Toussaint, supra, McLaughlin, supra, Percival, supra and Milligan, supra. In the case before us we find an agreement that plaintiff would work a specific period of 45 days, after which he would be a union member and would continue working subject to the protections given in the normal union contract. The protection of a union contract is an added ingredient which is not present in Toussaint, Milligan or the other cases supportive of the general rule. Further, plaintiffs unrefuted and unshaken testimony that even with the higher salary he would not have switched jobs without coming under the protective umbrella of union membership is a meaningful and significant factor. In an article entitled Employment at Will vs. Individual Freedom: On Limiting The Abusive Exercise of Employer Power, 67 Columbia L Rev 1404, 1405, 1410 (1967), Professor Blades levels a sharp criticism of the contract at will doctrine, saying:
"Despite this irreversible trend, the law has adhered to the age-old rule that all employers 'may dismiss their employees at will * * * for good cause, for no cause, or even for cause morally wrong [emphasis by Prof. Blades] without being thereby guilty of legal wrong.’ This traditional rule, which forces the nonunion employee to rely on the whim of his employer for preservation of his livelihood, is what most tends to make him a docile follower of his employer’s every wish. [Emphasis supplied.]
"The labor union, of course, has been a significant source of protection for the employee from all sorts of arbitrary action by the employer. Among the many managerial rights which have been limited by collective bargaining agreements is the right of discharge. Through the 'just cause’ provisions typically found in collective agreements unions not only protect their constituents from discharges for ulterior purposes, but also prohibit discharges for no reason or for reasons erroneously believed by the employer to be justified.” (Footnotes omitted.)
Under the collective bargaining agreement, plaintiff could have only been discharged "for good cause”. When plaintiff was summarily fired on the 43rd day of work he was denied the protection without which he would not have taken the position in the first place. Further, he was denied the protection referred to at footnote 2 in Percival, supra.
Finally, we note that the instant case also differs from Toussaint and the earlier Michigan cases cited in that plaintiff was giving up a virtually assured position and pension for the rest of his life. In this respect the instant case is similar to Collins v Parsons College, supra, where the court refused to follow the fire-at-will doctrine when a tenured or secured position was being given up. While Michigan has not yet adopted the rule relied on there and as stated in 60 ALR3d 267, supra, neither has Michigan rejected the doctrine.
Our decision to reverse the grant of summary judgment in favor of defendant and remand to the trial court in no way suggests that defendant was without just cause to discharge plaintiff. On that issue we take no position but leave defendant to put in its proofs. Likewise we take no position on the quantum of proof of damages.
Reversed, costs to plaintiff.
R. B. Burns, P.J., concurred.
Admittedly, there are cases to the contrary. Relinquishment of prior employment has been held sufficient consideration to support a contract for permanent employment in Jones v Carolina Power & Light Co, 206 NC 862; 175 SE 167 (1934), Millsap v National Funding Corp of California, 57 Cal App 2d 772; 135 P2d 407 (1943), 60 ALR3d 268, supra.
Counsel for defendant elected not to cross-examine plaintiff but to call plaintiff for cross-examination as part of defendant’s case.
At oral argument defendant said that the firing was for just cause and that if summary judgment were set aside defendant’s proofs would establish that just cause existed. | [
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] |
D. C. Riley, J.
The issue is whether an individual elected to membership on one city’s board of education can accept a full-time paid position as superintendent of schools for another city and still retain his first position.
Plaintiff was elected to a vacancy on the board of education of the Wayne-Westland schools in 1974, and two years later was elected to an additional four-year term. In January, 1978, he was appointed superintendent of the Taylor public schools. Subsequently, the Wayne-Westland School Board, after requesting an opinion from the State Attorney General’s office, adopted a resolution declaring plaintiffs seat vacant due to the incompatibility of the two positions.
Plaintiff filed his complaint on . July 21, 1978, contesting the board’s action. Defendants moved for summary judgment, alleging that plaintiff had failed to state a claim upon which relief could be given, GCR 1963, 117.2(1). Defendants’ motion was granted by the lower court and plaintiff appeals that determination.
The trial court held plaintiffs claim unenforceable as a matter of law based upon the common-law doctrine of incompatibility. A review of Michigan authority discloses only two cases which have dealt with the doctrine at length. In Attorney General ex rel Moreland v Detroit Common Council, 112 Mich 145; 70 NW 450 (1897), the question raised was whether the mayor of Detroit could also serve as the governor of Michigan. The Court found the two offices to be incompatible, and that, by occupying the second office, a person ipso facto vacated his holding of the first.
The rule of incompatibility was discussed as follows:
"The authorities are in substantial agreement as to the rule of incompatibility, and Mechem states it as follows: 'This incompatibility which shall operate to vacate the first office exists where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one person to retain both.’ Mechem, Pub. Off. § 422. In State v Goff the test is thus stated:
"'The test of incompatibility is the character and relation of the offices; as where one is subordinate to the other, and subject in some degree to its revisory power, or where the functions of the two offices are inherently inconsistent and repugnant. In such cases it has uniformly been held that the same person cannot hold both offices. ’
"In State v Thompson, 20 N.J. Law, 689 [1846], it is said:
" 'Where there is no express provision, the true test is whether the two offices are incompatible in their natures, in the rights, duties, or obligations connected with or flowing out of them. Offices, says Bacon, are incompatible or inconsistent when they cannot be executed by the same person; or when they cannot be executed with care and ability; or where one is subordinate to or interferes with another ([Bacon’s Abridgement, title] "Office” K); or where one office is under the control of another ([Comyn’s Digest, title] "Office”). ‡ *
"The sole difficulty lies in the application of the rule, and in every case the question must be determined from an ascertainment of the duties imposed by law upon the two officers. If one has supervision over the other, or if one has the removal of the other, the incongruity of one person holding both offices is apparent, and the incompatibility must be held to exist so that the acceptance of the latter vacates the former.
"The remoteness of the necessity for the removal of a mayor by the governor is urged by counsel for the respondent as a reason why a legal incompatibility does not exist at the common law. The question, however, is one of the existence of the power, and not the remoteness of its exercise.
"The power of removal is ever present, ready for use when its exercise is required. The argument that the contingency for its use is very remote is without force. We have been unable to find a decision which holds that one person may hold two offices, in one of which he is clothed with power to remove the person holding the other. It follows that the offices of mayor and governor are incompatible.” (Emphasis supplied.) 112 Mich at 168-169, 172-173.
As is readily apparent, the Court premised a finding of incompatibility upon a showing that (1) one office is subordinate, or subject to review or revision, by the second, or (2) the functions of the two offices are inherently inconsistent and repugnant.
Weza v Auditor General, 297 Mich 686; 298 NW 368 (1941), did not deviate from these considerations. In addition to citing the quoted language from Moreland, the opinion also stated that:
" 'It is extremely difficult to lay down any clear and comprehensive rule as to what constitutes incompatibility of offices. * * * Sometimes it is said that incompatibility exists where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one incumbent to retain both. * * * It is not an essential element of incompatibility at common law that a clash of duty should exist in all, or in the greater part, of the official functions.
" 'One of the most important tests as to whether offices are incompatible is found in the principle that the incompatibility is recognized whenever one is subordinate to the other in some of its important and principal duties, or is subject to supervision by the other, or where a contrariety and antagonism would result in the attempt by one person to discharge the duties of both.’ ” 297 Mich at 689-690.
The Weza Court focused upon the problem of subordination when it held that a legislator could not be appointed to fill a vacancy for county school commissioner:
"Clearly the office of county school commissioner is subordinate to that of a member of the legislature. The former owes its creation and continuation to legislative enactment and is completely subject to legislative control. Further, as a matter of sound public policy, these two offices should be held incompatible. If a controlling faction in the legislature was composed of county school commissioners, it is conceivable that the legislature might materially increase salaries of county school commissioners, enlarge their powers, or diminish their duties.” 297 Mich at 688.
Based upon these decisions, we are unable to conclude, as did the lower court, that the two positions here in issue are incompatible as a matter of law. There is no indication in either the trial court opinion or the briefs that a subordination issue exists between a board member of one district and a superintendent of another. Nor can we say that the two offices are inherently "inconsistent and repugnant”. Though there may be some potential for conflict, this resolution properly belongs within the realm of lower court proceedings in conjunction with a complete factual exploration of the duties and responsibilities imposed by law upon the two positions. Moreland, supra, at 169.
Reversed and remanded for trial.
Although not dispositive of the present case, we note that 1978 PA 566, effective December 29, 1978, provides standards of conduct for public officers. Section 2 of that act prohibits the holding of incompatible offices. MCL 15.181 et seq.; MSA 15.1120(121) et seq. Section 1 defines incompatible offices:
"(b) 'Incompatible offices’ means public offices held by a public official which, when the official is performing the duties of any of the public offices held by the official, results in any of the following with respect to those offices held:
"(i) The subordination of 1 public office to another.
"(ii) The supervision of 1 public office by another.
"(iii) A breach of duty of public office.” MCL 15.181(b); MSA 15.1120(121)(b).
Section 3 provides that the act
"shall not be construed to prohibit a member of a school board of 1 school district from being a superintendent of schools of another school district." MCL 15.183(2); MSA 15.1120(123X2). (Emphasis supplied.) | [
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T. M. Burns, J.
Defendant was convicted in the 35th District Court of a violation of MCL 430.53; MSA 18.663, unlawful display of an emblem or insignia on a motor vehicle. Criminal penalties were imposed. On appeal, the circuit court reversed the conviction, finding the statute to be unconstitutionally overbroad on its face. The people appeal by leave granted and we affirm.
The statute, § 3 of 1929 PA .269, provides:
"It shall be unlawful for any person to display or permit to be displayed on his or her motor vehicle any emblem or insignia of any organization, association, fraternity, lodge, club or order, unless the owner of such motor vehicle be a member of the organization, association, fraternity, lodge, club or order, the emblem or insignia of which is so displayed: Provided, That the provisions of this act shall not apply to the owner or owners of any motor vehicles upon which such emblem or insignia is displayed solely for the purposes of participation in any public parade, or at any public fair, exhibit, or carnival.” MCL 430.53; MSA 18.663.
Under established first amendment analysis, an overbreadth challenge to a statute may properly be accepted when the state attempts to prohibit protected "speech” and not merely conduct associated with speech. Because of the possible chilling effect that the statute may have on others, even one whose speech might constitutionally be regulated under a different, more narrowly drawn statute is allowed to raise a constitutional challenge by presenting claims of others not actually before the court. Broadrick v Oklahoma, 413 US 601, 611-616; 93 S Ct 2908; 37 L Ed 2d 830 (1973). Even recognizing that these rules are exceptions to normal rules of standing and adjudication, we conclude that it was proper for the circuit court to accept this overbreadth challenge to the statute.
In this case we are dealing with a type of "pure speech”. The state is attempting to control the content of certain displays on automobiles by imposing criminal penalties. In such cases the people are required to demonstrate a compelling state interest in regulating the content of the "speech” before such regulations must be upheld. Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich 465, 481; 242 NW2d 3 (1976).
The people contend that the statute is a valid attempt to punish individuals who attempt to fraudulently obtain the benefits of membership in an association or organization without actually being a member. The people use as an example the possibility that an emblem might entitle the member to free parking or other use of an organization’s assets and that the fraudulent use of the emblem by a nonmember would lead to the demise of these organizations.
Assuming that prevention of petty frauds is indeed the statute’s intent, its sweep is clearly overbroad. The statute does not limit its application to attempts to defraud or gain improper advantage from use of an organization’s emblem or insignia. Its ban is absolute without reference to intent or purpose. Every display on a vehicle owned by a nonmember subjects the owner to fine and imprisonment.
If the statute is applied as written, an individual nonmember displaying the emblem of the Boy Scouts, the Knights of Columbus or the Masonic Lodge subjects himself to criminal prosecution. This is so regardless of the absence of any intent to defraud or even if done in connection with other words to express an opinion. We have no doubt that the statute as written sweeps with too broad a broom and it is invalid on its face.
The trial court correctly concluded that the statute is invalid on its face. It does not even attempt to differentiate between legitimate and nonlegitimate use of an organization’s emblem or insignia. The sole test of a valid use is membership in the organization. This is improper.
Affirmed.
Defendant was stopped for defective equipment by a police officer. When the officer noted that defendant had a POAM (Police Officers Association of Michigan) sticker on the windshield of the car he was driving he asked defendant if he or any member of his family was a policeman. When defendant stated he had no connection with the police, a citation was issued.
For an overview of the overbreadth doctrine, see, Anno: Supreme Court’s views as to overbreadth of legislation in connection with ñrst amendment rights, 45 L Ed 2d 725.
Cf. Wooley v Maynard, 430 US 705; 97 S Ct 1428; 51 L Ed 2d 752 (1977), where the Supreme Court held that the State of New Hampshire could not constitutionally require the Maynards to display the state motto, "Live Free or Die”, on their automobile license plate. The case is relevant to show the reach of the amendment’s protection even though in this case we are dealing with a prohibition and not a compulsion.
The title to 1929 PA 269 provides: "An Act to protect benevolent, humane, fraternal or charitable corporations in the use of their names and emblems; to provide penalties for the violation thereof; and to repeal act number two hundred fifty-five [255] of the public acts of nineteen hundred nine [1909].” | [
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On Remand
D. E. Holbrook, Jr., P.J.
Defendant was convicted by a jury of breaking and entering with intent to commit larceny contrary to MCL 750.110; MSA 28.305. The case was subsequently appealed to this Court, People v Price, 86 Mich App 641; 273 NW2d 97 (1978), and we reversed his conviction. The people applied for leave to appeal to the Michigan Supreme Court and that Court, in lieu of granting leave to appeal, by its order of March 9, 1979, 406 Mich 881 (1979), remanded the case to the Court of Appeals for reconsideration in light of Franks v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978).
The basis of our decision in Price, supra, was that the order to submit the fingerprints was issued without probable cause, and that the fingerprints taken pursuant to the order and their fruits must be suppressed as violative of US Const, Am IV, and Const 1963, art 1, § 11. The order to submit fingerprints was issued based upon an affidavit which contained the following statement:
"That Juanita Clark stated that Albert Price, Jr. attempted to give her the .25 Caliber gun on August 22, 1975 at Claude’s Bar in Saginaw, Michigan and that she did not take it.” (Emphasis supplied.)
During the course of a hearing on defendant’s pretrial motion to suppress, the affiant acknowledged that this statement was in error. Rather than' "the .25 caliber gun” the statement should have read "a gun”. Relying on People v Broilo, 58 Mich App 547; 228 NW2d 456 (1975), and People v Staffney, 70 Mich App 737; 246 NW2d 364 (1976), the erroneous statement was deleted from the affidavit and our finding that there was no probable cause to issue the order to submit fingerprints was based upon review of the affidavit absent the erroneous statement.
The United States Supreme Court’s decision in Franks v Delaware, supra, held that in order to contest the presumption of validity that an affidavit supporting a search warrant is entitled to, there must be allegations of deliberate falsehood or reckless disregard for the truth, and that these allegations must be accompanied by an offer of proof. Such a preliminary showing would entitle the defendant to a hearing at which, if he can establish by a preponderance of the evidence that the allegations contained were perjurious or made in reckless disregard for the truth, he would be entitled to have the determination of probable cause reviewed with the affidavit’s false material set to one side.
In this instance no allegations of perjury or reckless disregard for the truth were made, but rather defendant based his claim on the fact that the statements were admittedly erroneous. The record reflects the affiant testified in open court that he had unintentionally misrepresented Juanita Clark’s statement to him regarding the gun in question. Rather than "the .25 caliber gun” his statement should have read "a gun”. This misstatement on the affiant’s part was not a deliberate falsehood or statement made in reckless disregard for the truth, but rather an innocent mistake on his part. Franks v Delaware, supra, 438 US at 171, held that clear proof of negligent or innocent mistakes in affidavits is not a sufficient showing to justify the deletion of the statements involved from the affidavits when reviewing for the existence of probable cause. In this instance, we are convinced that our prior decision to delete affiant’s misstatement from the affidavit should no longer be sustained, and our review of the magistrate’s decision to order the submission of fingerprints should be based upon the affidavit as actually presented to him.
Having determined that the misstatement of facts should not have been deleted from the affidavit, we must now determine whether the affidavit justified the magistrate’s determination that there was probable cause to require defendant to submit his fingerprints. This Court may not substitute its judgment for that of the magistrate unless there has been a clear abuse of discretion in his determination of probable cause. See People v Iaconis, 29 Mich App 443, 462; 185 NW2d 609 (1971), People v Thomas, 86 Mich App 752, 759; 273 NW2d 548 (1978). The affidavit submitted in this instance indicates that three individuals had been shot and killed on August 21, 1975, at 1414 Mott, Saginaw, Michigan. Juanita Clark was arrested and charged with the murder of two other individuals and a search warrant was executed on August 23, 1975, at her apartment and a .25-caliber automatic handgun was taken. Examinations of bullets from this .25-caliber automatic weapon by the Michigan State Police crime lab indicated that this was the weapon that had been used to commit the three homicides on August 21, 1975. Juanita Clark stated to the affiant that Albert Price, Jr. attempted to give her the .25-caliber automatic handgun on August 22, 1975, at Claude’s Bar in Saginaw and that she did not take it. We find that the trial court, based upon the affidavit submitted to it, did not abuse its discretion in finding that probable cause existed to order defendant to submit his fingerprints. Accordingly, our previous determination that there was no probable cause to require defendant to submit his fingerprints, and our reversal of his conviction based upon this lack of probable cause, is vacated, and defendant’s conviction and sentence are affirmed.
W. Van Valkenburg, J., did not participate. | [
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N. J. Kaufman, J.
We accept the facts as presented by Chief Judge Danhof in his dissent and generally agree with his presentation of the law. Additionally, for the reasons stated in the dissent, we specifically note our disagreement with People v Allen, 79 Mich App 100; 261 NW2d 225 (1977). However, under the instant facts, we feel compelled to remand the case for resentencing and direct the trial judge to secure an updated presentence report prior to resentencing. See my dissent in People v Triplett, 91 Mich App 82; 283 NW2d 658 (1979).
When the Supreme Court remanded this case for resentencing because defendant was not assisted by counsel at the original sentencing, they meant just that. At the resentencing, defendant was entitled to an updated presentence report and an opportunity for allocution. Those steps were necessary to insure that the trial judge was fully and accurately acquainted with defendant’s background. See MCL 771.14; MSA 28.1144, People v Brown, 393 Mich 174; 224 NW2d 38 (1974), People v Lee, 391 Mich 618, 634-635; 218 NW2d 655 (1974), People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973).
Defense counsel and defendant presented some evidence of defendant’s prison conduct to the re-sentencing court, but it is not at all clear that the court considered this information in resentencing defendant to the same prison terms he had received more than 10 years before. In light of the court’s statement that defendant was being sentenced nunc pro tunc, it is possible that the judge ignored defendant’s prison conduct altogether. An updated presentence report would have assured due consideration of defendant’s prison conduct.
Remanded for resentencing.
D. C. Riley, J., concurred. | [
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] |
R. B. Burns, P.J.
In this action plaintiffs J. B. Warren and Elvie R. Warren alleged defendant Michigan Gas Utilities Company caused them injury through negligent or wilful and wanton mis conduct. A jury returned a verdict of no cause of action in favor of defendant. Plaintiffs appeal, and we affirm.
Plaintiff J. B. Warren was an employee of Woodruff & Sons Construction Company. In 1973, Woodruff & Sons was a contractor on a sewer construction project in the City of Benton Harbor. Defendant had employees on the construction site to assist Woodruff & Sons in locating its gas lines and to supervise construction around the gas lines. On December 14, 1973, Woodruff & Sons unearthed leaking gas pipes. Defendant’s employees made some repairs, and Woodruff & Sons backfilled the area. On December 18, 1973, J. B. Warren and a co-worker, Ollie Venters, entered a manhole to do work in the sewer. After three minutes Venters yelled "I smell gas”, and an explosion occurred a moment later.
The causes of the explosion were disputed. One of the unearthed pipes was subsequently found to be cracked. Plaintiffs argued that the leaks had been inadequately repaired, and that defendant’s employees did not adequately supervise Woodruff & Sons’ backfilling around the pipes. Defendant responded that the pipes were adequately repaired, and that Woodruff & Sons improperly backfilled, cracking the pipe, after defendant’s employees had left the area. Defendant also asserted that Woodruff & Sons should have tested for gas before sending J. B. Warren into the manhole, and that J. B. Warren triggered the explosion by attempting to light a cigarette.
Plaintiffs made a motion in limine to exclude proof of Woodruff & Sons’ negligent failure to test for gas, arguing on the authority of Parks v Starks, 342 Mich 443; 70 NW2d 805 (1955), that such evidence would not, as a matter of law, establish superseding intervening negligence. Defendant responded that such evidence was admissible to prove that the sole proximate cause of the explosion was Woodruff & Sons’ negligence, irrespective of any probative value the evidence might have as an intervening cause. The trial court initially granted plaintiffs’ motion, but subsequently reversed itself, holding that Woodruff & Sons’ negligent failure to test for gas would create a fact issue for the jury on superseding intervening cause.
Relying again upon Parks, plaintiffs argue on appeal that the trial court erred by admitting evidence of Woodruff & Sons’ passive negligence, for such passive negligence, they allege, cannot, as a matter of law, be a superseding intervening cause. Parks, however, not only does not support plaintiffs’ argument, but suggests a conclusion that the evidence raised a fact issue on superseding cause, and therefore was relevant.
In Parks, a defendant Grant argued that the negligent failure of other defendants to erect barriers around a hazard negligently created by Grant amounted to superseding intervening cause as a matter of law. Grant had run his automobile into the pillar of a service station canopy, which later collapsed on the plaintiff. The Court held that such intervening passive negligence was not a superseding cause as a matter of law where the other defendants had not assumed a duty which they failed to perform, or had not undertaken to do some act and performed it improperly. The Court also held that the record presented a fact question as to whether the danger was foreseeable and whether plaintiffs injuries were the natural and probable consequences of Grant’s negligence.
Assuming that the evidence of intervening pas sive negligence in the instant case did not, under Parks, establish superseding cause as a matter of law, it does not follow, as plaintiffs suggest, that such evidence did not, therefore, raise a fact issue concerning superseding cause. On the contrary, the Court in Parks concluded that there was a fact issue on proximate causation in that case. The mere fact that evidence of intervening passive negligence does not establish superseding cause as a matter of law does not mean that such evidence cannot establish superseding cause as a matter of fact. Where reasonable men could disagree as to foreseeability of the intervening negligence the issue is one for the jury. Moning v Alfono, 400 Mich 425, 458; 254 NW2d 759, 774 (1977), Davis v Thornton, 384 Mich 138; 180 NW2d 11 (1970). In the instant case, as in Parks, the evidence created a fact issue for the jury, and was, therefore, admissible under the rationale advanced by the trial court.
The issue was and is, however, a red herring. Defendant has never argued that Woodruff & Sons’ negligent failure to test for gas was a superseding intervening cause. Rather, defendant denied that it was negligent, and sought to establish that the sole proximate causes of the explosion were the negligence of J. B. Warren and Woodruff & Sons. The evidence was relevant when admitted for the purpose advanced by defendant.
For the same reason, plaintiffs’ argument that the jury instructions on superseding intervening cause were not sufficiently explicit to prevent jury speculation, see McKine v Sydor, 387 Mich 82, 89; 194 NW2d 841, 845 (1972), are without merit. The standard jury instructions given by the trial court adequately set forth the law applicable to the factual issues actually raised by the parties. SJI 15.01, 15.02, 15.03, 15.05. Superseding intervening cause was not an issue. Plaintiffs’ explicit instruction on superseding negligence would only have drawn the jury’s attention to another route of reasoning by which it might find defendant not liable, to plaintiffs’ detriment. There was no error.
Plaintiffs also objected to the trial court’s instructions on two construction industry safety rules requiring gas detectors and tests in tunnels. MCL 408.717; MSA 17.469(7), repealed, 1974 PA 154, 1964-1965 AACS R 408.2402, R 408.2410. It is plaintiffs’ theory that the rules are inapplicable to the determination of Woodruff & Sons’ negligence because a sewer is not a tunnel. However, tunnel, in everyday parlance, would encompass the sewer, and the construction industry safety code contains no restrictive definition of tunnel. 1964-1965 AACS R 408.1201, et seq. The rules upon which the trial court instructed are contained in part 14 of the code, entitled "Tunnels”. Several rules under part 14 deal specifically with sewers. 1964-1965 AACS R 408.2407, R 408.2408. It thus appears that sewers are types of tunnels, and the trial court properly instructed the jury.
At the conclusion of proofs the trial court granted defendant’s motion to amend its answer to allege contributory wilful and wanton misconduct on the part of plaintiff J. B. Warren. GCR 1963, 118.3. Plaintiffs argue in a conclusory manner that the late amendment prejudiced them because they were unable to address the issue through trial preparation, strategy and evidentiary content. However, it appears that the same evidence relied upon by both parties regarding the presence or absence of contributory negligence by J. B. Warren was the evidence relied upon by the parties regarding wilful and wanton misconduct. Aside from conclusory allegations of prejudice, plaintiffs have demonstrated no actual way in which trial preparation, strategy, and presentation of evidence was affected. There was no error.
Plaintiffs also argue that there was not sufficient evidence to raise a jury issue on contributory wilful and wanton misconduct. We disagree. A jury could infer from the evidence presented that plaintiff was aware of the danger of smoking where gas is present, knew gas might be present, but recklessly attempted to light a cigarette anyway. See, e.g., Gibbard v Cursan, 225 Mich 311, 318-324; 196 NW 398, 400-402 (1923), Thone v Nicholson, 84 Mich App 538; 269 NW2d 665 (1978).
Plaintiffs argue that an exhibit offered by defendant consisting of 11 pages of specifications on excavating and backfilling contained in a contract between the City of Benton Harbor and Woodruff & Sons should not have been admitted because it violated the spirit of a pretrial order to exchange exhibits where defendant provided plaintiffs with the specifications, but not the rest of the contract. Plaintiffs’ argument in essence is that no foundation for admission of the exhibit as having been a part of the contract was established. However, plaintiffs failed to object to the exhibit on the basis of lack of foundation prior to trial as required by the pretrial order. The exhibit was admissible.
Affirmed. Costs to defendant.
An issue never raised by defendant, and the resolution of which is unnecessary in this appeal. | [
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Beasley, J.
Defendant was convicted by jury of assault with intent to rob being armed, in violation of MCL 750.89; MSA 28.284, and assault with intent to do great bodily harm less than murder, in violation of MCL 750.84; MSA 28.279. On the first charge he was sentenced to not less than 40 nor more than 60 years in prison and, on the second charge, not less than six and two-thirds nor more than ten years in prison; the sentences to run concurrently with each other and with a previous life sentence for a first-degree murder conviction. Defendant appeals as of right.
At trial, the following discussion occurred between defense counsel and the trial court:
"Mr. Arduin [defense counsel]: I also want to state for the record, Your Honor, that I’ve had a conference with Mr. Lewis in regards to any lesser that he could be charged with lesser included offenses. At this time, Your Honor, he wishes to inform this Court that he does not [sic] you to charge the jury on lesser included offenses.
"The Court: All right.
"Mr. Morgan [the prosecutor]: Could some inquiry be made of the Defendant?
"The Court: Is that true, Mr. Lewis?
"Mr. Lewis [the defendant]: Yes.
"The Court: All right.”
Subsequently, the court instructed the jury on both counts of the information, but no instructions were given as to lesser included offenses. At the end of its charge to the jury, the trial court stated:
"Now, members of the jury, your possible verdicts in this case are as follows: As to Count I, the charge of assault with intent to rob while being armed, the verdict may be guilty or not guilty. As to Count II, assault with intent to commit murder, your verdict may be guilty or not guilty. You may find the Defendant guilty of one count and not guilty or vice versa. Your verdict, however, must be unanimous. It must be the verdict of all 12.”
Nevertheless, the jury returned with the following verdicts:
"The Clerk: How do you find the defendant, Charles Lewis of Count One, Assault with Intent to Rob Being Armed?
"The Foreman: Guilty.
"The Clerk: How do you find the defendant, Charles Lewis, of the charge of Assault with Intent to Murder?
"The Foreman: We found him guilty of Assault with Intent to do great bodily harm less than the crime of murder.”
Defendant claims the trial judge erred in accepting a verdict to an offense which was neither given the jury as a possible verdict, nor whose elements were defined to the jury. We find defendant’s claim to be meritorious and reverse.
The right to a jury trial includes the right of a defendant to have a properly instructed jury pass upon the evidence.
In the instant case, the court instructed the jury as to the possible verdicts. Defendant had been charged with assault with intent to commit murder. Defense counsel requested that the court not charge the jury with any lesser included offenses and the court agreed. At no time did the court discuss any lesser charges in the presence of the jury. Thus, only two choices were available to the jury as possible verdicts on the assault with intent to murder charge. They could find defendant guilty of the charge or they could find him not guilty.
It is the trial judge’s duty to inform the jury on the law, so that they may understand and apply the law to the facts of the case. A defendant has a right to have a properly instructed jury pass upon the evidence, and the instructions must include all the elements of the crime charged.
A jury cannot disregard the court’s instructions and return what appears to them to be an appropriate verdict.
The instant jury was not instructed as to the elements of assault with intent to do great bodily harm less than murder. If a jury is not instructed on lesser included offenses, such offenses are, for all practical purposes, excluded from the jury’s consideration. By rendering a verdict absent any instruction by the court as to the elements of the crime, the jury impermissibly usurped the function of the trial judge. _
In view of the fact that the jurors response to the judge’s inquiry as to their verdict on the assault with intent to murder charge was a lesser offense, we must conclude that the jury found defendant not guilty of the only charge which was available to them.
We, therefore, reverse defendant’s conviction of assault with intent to do great bodily harm less than murder. The conviction for assault with intent to rob being armed is affirmed._
People v Cooper, 73 Mich App 660; 252 NW2d 564 (1977), People v Rappuhn, 78 Mich App 348; 260 NW2d 90 (1977).
People v Lambert, 395 Mich 296, 304; 235 NW2d 338 (1975).
People v Reed, 393 Mich 342, 349-350; 224 NW2d 867 (1975), People v Liggett, 378 Mich 706, 714; 148 NW2d 784 (1967).
See, People v Gardner, 143 Mich 104, 117; 106 NW 541 (1906).
People v Henry, 395 Mich 367; 236 NW2d 489 (1975).
The duty of a judge at trial is stated in MCL 768.29; MSA 28.1052:
"It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. The court shall instruct the jury as to the law applicable to the case and in his charge make such comment on the evidence, the testimony and character of any witnesses, as in his opinion the interest of justice may require. The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.” | [
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