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Danhof, C.J.
Plaintiff Robert Hamilton (hereinafter plaintiff) appeals an administrative decision awarding him worker’s compensation benefits as a permanently and totally disabled employee. Appealed is that portion of the hearing referee’s decision granting plaintiff "single” benefits only, rather than "double” benefits pursuant to subsection 161(b) of the Worker’s Disability Compensation Act of 1969, MCL 418.161(b); MSA 17.237(161)(b). The claim against defendant Superior Mushroom Company and its carrier has been redeemed. As to the remaining defendant, Second Injury Fund, the Workmen’s Compensation Appeal Board has affirmed the referee’s award of single benefits. We affirm the appeal board.
Superior Mushroom Company hired plaintiff’s father, d/b/a Hamilton Electric, to do electrical work on a building project. Plaintiff worked for his father, and was injured while on the Superior Mushroom building project. The accident has left him permanently and totally disabled. At the time of injury plaintiff was a minor under the age of 18, working without a permit. His father did not carry workmen’s compensation insurance.
On these facts plaintiff claims he is entitled to double compensation from the defendants pursuant to the Hittle Juvenile Employment Act, MCL 409.1 et seq.; MSA 17.701 et seq., and the Worker’s Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq. The Hittle act proscribes the employment of any minor without a permit, MCL 409.3; MSA 17.703, except by the parent of such minor in a trade in which the parent is self-employed or in a business owned and operated by the parent. MCL 409.14; MSA 17.714. Subsection 161(b) of the Worker’s Disability Compensation Act entitles a minor to double recovery for injuries related to an illegal employment. Section 171 of the compensation act provides that an employer (principal) subject to the act who contracts with any other person (contractor) who is not subject to the act or who does not have the requisite compensation coverage is liable to an injured employee of the contractor as "if that workman had been immediately employed by him [principal]”. Plaintiff acknowledges under this statutory scheme his employment was not in fact illegal, since he was immediately employed by his father. However, plaintiff seems to claim that, under § 171 of the Worker’s Disability Compensation Act, a principal’s liability for double compensation does not depend on whether the employment is in fact illegal. From the literal language of § 171, plaintiff reasons, the principal’s liability depends on whether the employment would be illegal if the principal were the immediate employer.
A majority of the Workmen’s Compensation Appeal Board held the plaintiff is not entitled to double benefits because his employment was in fact legal at the time of the injury. The majority reasoned that plaintiff’s literal application of the statutory language would be contrary to the statutory purposes. We affirm for that same reason.
Because the language of §§ 171 and 161 is ambiguous as applied to the facts of this case, we must construe the language by reference to the purpose of the statutes and the objects sought to be accomplished. See Royal Oak School Dist v Schulman, 68 Mich App 589; 243 NW2d 673 (1976).
Section 171 was intended to protect employees of contractors and. subcontractors against their employers’ failure to obtain adequate workmen’s compensation insurance. Davidson v Wayne County Board of Road Comm’rs, 86 Mich App 592; 272 NW2d 740 (1978). That object is accomplished by making the principal liable to pay benefits that the immediate employer otherwise would be obligated to pay. We agree with the majority of the appeal board that the Legislature apparently did not intend the liability of the principal to be greater than the liability of the immediate employer. This is evident, for example, from the method chosen to calculate benefits — "with reference to the earnings of the workman under the employer by whom he is immediately employed”— and by the provision for indemnification of the principal by the immediate employer. MCL 418.171; MSA 17.237(171).
The double compensation provision of § 161 was intended to be a penalty against employers to discourage the illegal employment of minors. See Farm Bureau Ins Co of Michigan v Pedlow, 3 Mich App 478; 142 NW2d 877 (1966).
Plaintiffs proposed construction of § 171 as applied to this case would be contrary to the apparent purposes of the statute because it would extend the liability of the principal beyond the liability of the immediate employer. Plaintiffs proposed construction would not further the purposes of § 161 because it would discourage employments that are legal.
In addition we note plaintiffs interpretation could lead to an absurdity. Because of the indemnification provision in § 171, plaintiffs interpretation would ultimately double the liability of the immediate employer, even though the immediate employer is in fact guilty of no misconduct for which he deserves to pay double compensation.
Affirmed. Costs to defendant-appellee.
We note at this point, while the Worker’s Disability Compensation Act was not in effect at the time of plaintiff’s injury, the sections relied on by plaintiff are in all material respects the same as prior statutes. Compare MCL 418.161; MSA 17.237(161) and MCL 418.171; MSA 17.237(171) with MCL 411.7; MSA 17.147 and MCL 411.10; MSA 17.150.
Thus, plaintiff concedes, "In a claim for worker’s compensation benefits against his own father, plaintiff would be entitled to receive only single compensation because the Hittle Act makes legal the employment of minors in a business owned and operated by his parents.” Although in the last part of his brief, plaintiff attempts to show this exclusion does not apply to employments that are "injurious to health or morals or unduly hazardous”, we find that claim to be insubstantial. See MCL 409.2, 409.14; MSA 17.702, 17.714. | [
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Cynar, P.J.
Plaintiff appeals by leave granted from a November 29, 1977, circuit court order vacating defendant’s district court conviction for violating a City of South Lyon ordinance. The basis for this order was that the ordinance, which adopted the traffic ordinance under which he was convicted, was void for lack of publication.
On January 3, 1977, defendant was convicted of driving under the influence of intoxicating liquor, a violation of City of South Lyon’s Ordinance No. 94, ch 5, § 5.15. Both prior to trial and subsequent thereto defendant alleged that the ordinance was invalid and moved to dismiss. These motions were denied and defendant was ordered to pay a $100 fine, $150 in costs, and a $5 statutory judgment fee. Defendant appealed to circuit court and obtained the order which plaintiff challenges at this time.
The ordinance in question, which was passed by the City of South Lyon City Council on February 2, 1959, contains very little substance. Instead, it adopts, by reference, the entire Uniform Traffic Code, without setting forth all the ordinances contained in that code.
The adopting ordinance was never published in full in any newspaper. Instead, a notice was published in the February 5, 1959, edition of the South Lyon Herald, indicating that the Uniform Traffic Code had been adopted by reference by the city council on February 2, 1959. This notice stated the code’s purpose, noted that complete copies of the code were available at the city clerk’s office, and stated that "no further or additional publications of the Uniform Traffic Code is required or contemplated”.
The Legislature has provided, as a general rule, that all ordinances must be published in a local newspaper within one week of their adoption. MCL 89.6; MSA 5.1722. As applied to statutes and ordinances, "publication” means "printing or oth erwise reproducing copies of them and distributing them in such a manner as to make their contents easily accessible to the public”. Black’s Law Dictionary (4th ed), p 1396.
However, the Legislature has provided a specific means of adopting and publishing the code involved here. MCL 257.951; MSA 9.2651 authorizes cities to adopt the Uniform Traffic Code by reference, stating:
"Any city, township or village is hereby authorized to adopt by reference any code or ordinance for the regulation of traffic within cities, townships and villages which has been promulgated by the commissioner of the state police. The commissioner of the state police is hereby authorized to promulgate a uniform traffic code subject to the provisions of Act No. 88 of the Public Acts of 1943, as amended, being sections 24.71 to 24.82, inclusive, of the Complied Laws of 1948.”
MCL 257.952; MSA 9.2652 provides the specific means of publishing the adoption ordinance. It reads:
"The code or ordinance, so passed, shall clearly identify the code so adopted by reference. Such code need not be published in full: Provided, however, That publication of the code or ordinance shall be supplemented by a notice of the purpose of such code and of the fact that complete copies of the code are available at the office of the city, township or village clerk for inspection by and distribution to the public at all times.”
Although the second sentence of MCL 257.952; MSA 9.2652 provides an exception to the general rule of publication insofar as the code being adopted is concerned, the third sentence clearly contemplates full publication of the adopting ordinance.
Plaintiff correctly concedes that the publication requirement of MCL 257.952; MSA 9.2652 was not complied with in this case. However, it contends that the failure to comply with state law does not render the ordinance ineffective. In this regard, plaintiff cites Vernakes v South Haven, 186 Mich 595; 152 NW 919 (1915), where the Court held that the failure of a city to publish an ordinance does not render it ineffective, in the absence of a city charter so specifying.
In the present case, however, the city charter of the City of South Lyon also requires publication of the adopting ordinance. Section 4.12 of the charter reads:
"Section 4.12. The Council may adopt in whole or in part any provision of state law or any detailed technical regulations as a city ordinance or code by citation of such provision of state law or by reference to any recognized standard code, official or unofficial, provided that any such provision of state law or standard code shall be clearly identified in the ordinance adopting the same as an ordinance of the city. Where any code or amendment thereto is so adopted, all requirements for its publication may be met, other provisions of this Charter notwithstanding, by publishing the ordinance citing such code and by keeping copies of the code itself available to the public in book or booklet form at a reasonable charge. ” (Emphasis added.)
Further, § 4.9 of the city charter provides that the effective date of an ordinance "shall not be less than ten days after its adoption nor before publication thereof’. (Emphasis added.) This language is substantially repeated in the adopting ordinance itself, which requires the city clerk to "publish this ordinance in the manner required by law” and which states that "The Uniform Traffic Code will be in effect in this governmental unit ten (10) days after publication of this adopting ordinance”.
Therefore, it is clear that plaintiff’s failure to publish the adopting ordinance violated the requirements of the ordinance and city charter, as well as the requirements of MCL 257.952; MSA 9.2652. Both the charter and the adopting ordinance clearly indicate that the publication of the adopting ordinance is a prerequisite to the legal effectiveness of the code being adopted. Under these circumstances, plaintiff cannot rely upon the holding in Vernakes, supra.
Plaintiff next urges us to adopt a "substantial compliance” standard in evaluating the charter and ordinance publication requirements. It argues that the notice that was published provided the same notice of the enactment of the code as would have the publication of the adopting ordinance.
We disagree. Although the adopting ordinance does not contain all the provisions of the Uniform Traffic Code, it does contain information that was not conveyed by virtue of the notice publication. Most prominent is the absence of reference to the effective date of the ordinance, which is required by § 4.9 of the city charter to be included in the ordinance. This valuable piece of information was conveyed nowhere in the notice sent to the newspaper for publication.
Nor does the case law of this state support a "substantial compliance” standard for publication. To the contrary, the prior opinions in this area tend to adhere to a policy of strict compliance with publication requirements. See L A Thompson Scenic R Co v McCabe, 211 Mich 133; 178 NW 662 (1920), Village of Durand v Love, 254 Mich 538; 236 NW 855 (1931), and Stevens v Madison Heights, 358 Mich 90; 99 NW2d 564 (1959). See also 5 McQuillian, Municipal Corporations (3d ed), § 16.78, pp 300-301, and 62 CJS, Municipal Corporations, § 427a, pp 816-817. Plaintiff has unambiguously required publication prior to the effective date of the ordinance and cannot now complain of a requirement the existence of which is totally its own responsibility.
Therefore, we conclude that the circuit court judge properly concluded that the ordinance under which defendant had been convicted was invalid for lack of publication of the adopting ordinance. In light of this conclusion, we hold the circuit judge properly vacated defendant’s conviction under the ordinance and properly ordered the charge dismissed.
Affirmed.
Ordinance No. 94, the ordinance in question, reads in full as follows:
"An ordinance to adopt by reference the Uniform Traffic Code for Michigan Cities, Townships and Villages.
"The City of South Lyon ordains:
"Sec. 1. CODE ADOPTED
"The Uniform Traffic Code for cities, townships and villages promulgated by the Commissioner of State Police on February 14, 1958, and published in Supplement No. 13, Michigan Administrative Code, pages 5 to 37, in accordance with Public Act 62 of 1956, State of Michigan, is hereby adopted by reference as in this ordinance modified.
"Sec. 2. REFERENCES IN CODE
"References in the Uniform Traffic Code for Michigan Cities, Townships and Villages to 'governmental unit’ shall mean the City of South Lyon.
"Sec. 3. NOTICE TO BE PUBLISHED
"The City Clerk shall publish this ordinance in the manner required by law and shall at the same time publish a supplementary notice setting forth the purpose of said Uniform Traffic Code and of the fact that complete copies of the Code are available at the office of the Clerk for inspection by and distribution to the public at all times.
"Sec. 4. CONFLICTING ORDINANCES REPEALED
"All ordinances and all provisions therein inconsistent with the provisions of the Uniform Traffic Code, to the extend of such inconsistency, are hereby repealed, effective when Uniform Traffic Code ordinance becomes effective.
"Sec. 5. EFFECTIVE DATE OF THIS ORDINANCE
"The Uniform Traffic Code will be in effect in this governmental unit ten (10) days after publication of this adopting ordinance. Adopted: February 2, 1959.”
The February 5, 1959, edition of the South Lyon Herald also contained an article referring to the enactment of the code, which improperly refers to it as the "Uniform Motor Vehicle Code”.
We note that MCL 257.625; MSA 9.2325 proscribes the same conduct, driving under the influence of intoxicating liquor, that was covered by the ordinance under which defendant was charged. We express no opinion at this time as to whether defendant can now be charged with a violation of the state statute. | [
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] |
M. F. Cavanagh, J.
Plaintiff appeals as of right from the Michigan Tax Tribunal’s decision to adopt the State Tax Commission’s appraisal of plaintiff’s James H. Campbell Electric Generating Plant, Port Sheldon Township, Ottawa County, for assessment purposes for tax years 1975, 1976 and 1977.
On appeal, the parties focus entirely upon the proper method to be used in valuating the subject property for the above tax years. Plaintiff’s expert considered two methods to arrive at the true cash value of the Campbell facility — a unit valuation, in which earnings of the entire system are first capitalized, and then a portion of those capitalized earnings is allocated to the power plant as its value; and a cost approach, based on original cost of the facility less accrued depreciation and less the economic obsolescence caused by rate regulation. These approaches resulted in the following values for assessment:
1975 $40,063,000
1976 $49,910,000
1977 $61,500,000
The State Tax Commission appraisal adopted a valuation method using the current reproduction cost of the Campbell plant less depreciation, which resulted in substantially higher appraisals for the same period, as follows:
1975 $ 93,467,000
1976 $105,719,000
1977 $116,788,000
The commission’s expert testified that he considered but rejected a unit valuation based on capitalized earnings on the grounds that the choice of the allocation factor presented innumerable practical problems when assessing power companies on a local basis.
In its opinion adopting the valuation of the Campbell facility determined by the State Tax Commission, the Michigan Tax Tribunal also indicated its concern with the practical problems of fairly and uniformly allocating an accurate portion of the capitalized earnings among the various power plants in the Consumers Power system, as well as with allocation of economic obsolescence created by rate-making done on a statewide basis. Plaintiff appeals from this adverse decision, arguing that the Tax Tribunal has adopted "wrong principles” by relying exclusively on a depreciated current reproduction cost approach to value the plaintiff’s plant.
All assessments for ad valorem property taxes must be based on a proportion of the property’s "true cash value”. 1963 Const, art 9, § 3. MCL 211.27; MSA 7.27 defines "true cash value” as:
"the usual selling price at the place where the property to which the term is applied shall be at the time of assessment, being the price which could be obtained for the property at private sale, and not at forced or auction sale. * * * the value attributed to the property of regulated public utilities by any governmental regulatory agency for rate making purposes, shall not be considered as controlling evidence of true cash value for assessment purposes. In determining the value the assessor shall also consider the advantages and disadvantages of location, quality of soil, zoning, existing use, [and] present economic income of structures.”
Because the concepts of " 'true cash value’ and 'fair market value’ are synonymous”, CAF Investment Co v State Tax Comm, 392 Mich 442, 450; 221 NW2d 588 (1974), the usual appraisal method is to posit a hypothetical market to value the property from both a buyer’s and a seller’s points of view in order to arrive at a usual sales price. A number of valuation methods, in addition to actual selling price, may legitimately be used to establish the "fair market value” of the property. It is the duty of the Tax Tribunal to weigh the values produced from the various valuation methods and to adopt the method that approaches true cash value most closely on "a cosmic scale of truth”. This weighing process involves a considerable amount of judgment and reasonable approximation. Consumers Power Co v Big Prairie Twp, 81 Mich App 120, 131; 265 NW2d 182 (1978).
Finally, we reiterate that the scope of review in property tax cases is limited by Const 1963, art 6, § 28, which prevents a court from substituting its own judgment in matters of valuation for that of the agency charged with administering property tax laws, in the absence of fraud, an error of law, or, as alleged here, the adoption of wrong principles by the agency. Pantlind Hotel Co v State Tax Comm, 3 Mich App 170, 176; 141 NW2d 699 (1966), aff'd 380 Mich 390; 157 NW2d 293 (1968).
With these principles in mind, we turn to the merits of this controversy. The dispute in the instant case centers on which valuation method is most properly utilized to assess an electric generating plant which is an integral part of an entire energy-producing system. Plaintiff contends primarily that a "unit valuation”, based on the capitalized earnings of the entire system, achieves the best approximation of the plant’s value. This approach rests on the theory that the primary purpose of a utility system like Consumers Power is to earn a return, that is "income”, on the investment in its various generating plants, distribution lines and other operating components. Plaintiff argues that, because an individual power plant has little value apart from its contribution to the system’s output expressed in terms of earnings, a plant’s value for property tax purposes should be synonymous with the portion of the system’s total earnings allocable to it. According to plaintiffs methods, this value is derived by applying an allocation multiplier, based on the original cost in the individual plant divided by the original cost of the entire system, to the system’s capitalized earnings. In support of this sytem income approach, plaintiff cites CAF Investment Co v State Tax Comm, supra, and Detroit v Detroit & Canada Tunnel Co, 92 F2d 833 (CA 6, 1937), as well as a number of cases from foreign jurisdictions.
We recognize that a company may be valued as a "unit”, based on its capitalized earnings. This income approach to property valuation has been approved by the Michigan Supreme Court, CAF Investment Co v State Tax Comm, supra. Defendant’s appraisal expert also testified that he normally considered income, among other indicators of value, when appraising utilities such as telephone companies and railroads, and admitted that little difference in valuation theory appeared between these utilities and a state-wide electric company. He further stated, in connection with the above utilities, that reasonable allocation factors may be developed to separate out the Michigan value for those doing business interstate. Plaintiff thus contends that the same approach may equally be employed in valuing a power generating system.
In Michigan, however, the unit method is used to value only those public utility properties which by statute must be centrally assessed. These include telephone, telegraph and rail companies assessed by the State Board of Assessors. MCL 207.4; MSA 7.254. Mineral properties are likewise centrally assessed by the State Geologist. MCL 211.24; MSA 7.24. These central assessment provisions do not include power generating public utilities, which thus remain under local assessment. MCL 211.3, 211.10; MSA 7.3, 7.10. In addition to authorizing central assessment by one assessing authority, the Legislature has also established uniform guidelines and allocation techniques applicable to all properties assessed under the above provisions. MCL 207.9, 207.275; MSA 7.259, 13.158(5).
By contrast, no statutory authority exists to permit local assessing officers to assess property located outside their individual districts, nor is there a state-wide uniform method to allocate income from a power-generating system to an individual plant.
Given the present property tax structure and the risk of arbitrariness in the allocation of a power system’s value among its various components, we are unable to conclude that the Michigan Tax Tribunal adopted wrong principles in declining to apply the unit valuation method in assessing plaintiff’s property.
Detroit v Detroit & Canada Tunnel Co, supra, is distinguishable from the case at bar; in the former case only one assessing unit was involved, unlike the present case where the plaintiff presumably has generating facilities in many townships, cities and villages. Nor is the holding in CAF Invest ment Co v State Tax Comm, supra, an unqualified endorsement of the income approach to valuation. The opinion indicates that the income approach may be rejected as too speculative in certain circumstances. It also reaffirms the proposition that:
"Any method for determination of true cash value which is recognized as accurate and reasonably related to fair market valuation will fill the statutory prescription and is an acceptable indicator of true cash value.” CAF Investment Co v State Tax Comm, supra, at 450, fn 2, 456.
Under the circumstances presented by this case, the adjusted current reproduction cost method employed by defendants meets the above criterion.
The plaintiff also argues that, if a cost approach is used to value the Campbell plant, the valuation must be based on the depreciated original cost of the plant, which is the basis on which Consumers Power must set its rates and thus earn its return, less the economic obsolescence (i.e., the deficiency in earnings) caused by rate regulation.
However, several considerations undermine plaintiffs argument. First, this Court has recognized a distinction between the value of property for rate-making purposes and ad valorem property tax purposes. Consumers Power Co v Big Prairie Twp, supra, at 137. Secondly, the Legislature recently amended MCL 211.27; MSA 7.27, to provide that:
"[t]he value attributed to the property of regulated public utilities by any governmental regulatory agency for rate making purposes, shall not be considered as controlling evidence of true cash value for assessment purposes.”
Although the statute took effect after the tax years in question, its express language indicates a legislative intent to reject assessments based on the depreciated original cost of public utility property, thus undermining plaintiffs basis for calculating economic obsolescence. Furthermore, while rate regulation may indeed contribute to economic obsolescence, a multitude of other factors, including management inefficiency, may create an earnings deficiency. Indeed, it appears that Consumers Power failed to earn for the tax years in question its authorized rate of return. To totally attribute an earnings shortfall to government regulation appears exaggerated. Finally, similar allocation problems appear to exist with this cost method as with the income approach, in light of the fact that rate-making is also done on a system-wide basis, and the economic obsolescence it presumably creates affects the total system’s earnings.
The decision of the Michigan Tax Tribunal is therefore affirmed. | [
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Per Curiam.
Defendant, Clark Equipment Company, appeals a summary judgment granted in favor of third-party defendant, Commodity Steel and Processing, Inc., because of defendant Clark’s failure to state a claim upon which relief can be granted under GCR 1963, 117.2(1).
The present controversy arises out of an action brought by primary plaintiff, Hilton Ready, Jr., an employee of Commodity Steel, who was injured while operating a forklift truck. The lift truck was designed, manufactured and owned by Clark Equipment Company. Clark had leased the truck to Commodity Steel under a written lease agreement.
Ready brought suit against Clark for damages. In his complaint against defendant Clark, he alleged negligent design and manufacture of the lift truck and its safety features, negligently failing to maintain and inspect the lift truck to determine the safety of the equipment, negligently failing to warn Commodity Steel and its employees of the dangerous condition of the lift truck and negligently failing to repair the defective lift truck. He also alleged breach of warranty.
Clark denied these allegations and added Commodity Steel as a third-party defendant based on the following indemnity clause contained in the lease:
"Liability.
"Lessee assumes all risk and liability arising from Lessee’s possession, use and operation of each unit of equipment from the moment of delivery to Lessee to the moment of return to Lessor and agrees to indemnify and hold Lessor harmless from any and all of the following, whether the same be actual or alleged unless directly caused by Lessor’s negligence: all loss, damage, claims, suits, taxes, liens, penalties, fines, liability and expense (including attorney’s fees) howsoever arising or incurred because of such possession, use and operation of equipment including, but not limited to, damages for injuries or death to persons or injury to or destruction of property, claims and liens for storage, labor and materials and all loss of and damage to equipment.” (Emphasis added.)
Commodity Steel moved for and was granted summary judgment claiming that Clark was being sued for its own direct negligence and, since direct negligence was specifically excluded from the indemnity agreement, no cause of action existed against Commodity Steel.
Clark opposed the motion, asserting that the indemnity clause in the lease agreement specifically includes such injuries and, thus, Commodity Steel is liable to indemnify Clark.
The recent cases hold that an employer may be joined as a third-party defendant on an indemnity theory without disturbing the exclusive remedy clause of the Worker’s Disability Compensation Act.
One instance is where "the parties have entered into a written contract in which one party has clearly agreed to indemnify the other”. Another example would be in the context of common-law indemnity where the principal defendant suffers vicarious liability due to its relationship with the third party. The case at bar deals with a relationship imposed by contract.
In Minster Machine Co v Diamond Stamping Co, the Court examined the correct standard of review for the granting of a motion for summary judgment under GCR 1963, 117.2(1):
" 'A motion based solely on subsection 1, challenges the legal sufficiency of a plaintiff’s claim and is to be considered by an examination of the pleadings alone. Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974). [The] job [of] a reviewing court is to accept as true the well-pleaded facts in plaintiff’s complaint, * * *, Weckler v Berrien County Road Commission, 55 Mich App 7, 9; 222 NW2d 9 (1974), and to determine whether these claims are so "clearly unenforceable as a matter of law that no factual development can possible [sic] justify a right to recovery.” Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 431; 202 NW2d 577 (1972).’ ”
Any conclusions which may reasonably be drawn from the factual allegations may be consid ered. Indemnity contracts, like other contracts, are to be enforced so as to effectuate the intentions of the parties. Intention is determined by considering not only the language used in the contract, but also the situation of the parties and the circumstances surrounding the contract. Indemnity contracts are construed most strictly against the party who drafts them and the indemnitee.
Applying these principles to the facts before us, we find that if the allegations of the principal complaint are proved to be true and the product is found to be defectively designed or manufactured or that Clark failed to inspect as alleged, then Clark is liable for its own acts, as they would constitute direct negligence and, under the agreement, there is no indemnification for direct acts of negligence by the lessor. However, we must also look to Clark’s third-party complaint to determine if summary judgment was correctly granted.
Paragraphs 3 through 5 of the third-party complaint state:
"3. That original plaintiffs Complaint alleges that original plaintiff was injured while operating some of the equipment which was leased to third party defendant.
"4. That third party defendant agreed by contract to indemnify and hold harmless third party plaintiffs from any claims arising out of the possession, use and operation of said equipment.
"5. If third party plaintiffs are held liable to the plaintiff, they would be entitled to indemnity from third party defendant because of its breach of contract, for contractual indemnity. A copy of said contract is in the possession of third party defendant.”
The words of the complaint indicate to us that there are some factual developments possible which may establish Clark’s right to indemnification. The averments of primary plaintiffs complaint state that there was a failure to maintain and inspect and a failure to correct and repair the lift truck. Such claims may have been intended to be covered by the indemnification agreement as not constituting direct negligence. Clark’s allegation that Commodity Steel agreed, by contract, to indemnify Clark for claims arising out of the possession, use and operation of the equipment is not so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. If Ready’s complaint had only alleged negligent design and manufacture of the forklift, we would hold that this would constitute direct negligence and summary judgment would have been appropriate. However, due to the further allegations, allegations which Clark claims are covered as indirect acts, we find that a right to recovery may exist.
Upon remand, under the court rules pertaining to third-party practice, the trial court has discretion to determine whether the issue of Commodity’s liability to Clark shall be determined in a separate trial or in the principal trial. In view of the fact that Clark has demanded a jury trial of the indemnification issue, the court should submit to the jury all issues of fact, theories or defenses presented with appropriate instructions regarding the law.
Reversed and remanded.
MCL 418.131; MSA 17.237(131); Nanasi v General Motors Corp, 56 Mich App 652, 656-657; 224 NW2d 914 (1974), citing McLouth Steel Corp v A E Anderson Construction Corp, 48 Mich App 424; 210 NW2d 448 (1973).
Dale v Whiteman, 388 Mich 698, 704; 202 NW2d 797 (1972).
Minster Machine Co v Diamond Stamping Co, 72 Mich App 58; 248 NW2d 676 (1976).
Id. at 61, citing to Bormans, Inc v Lake State Development Co, 60 Mich App 175, 179-180; 230 NW2d 363 (1975).
Rowe v Colwell, 67 Mich App 543, 547; 241 NW2d 284 (1976).
Title Guaranty & Surety Co v Roehm, 215 Mich 586; 184 NW 414 (1921).
Fireman’s Fund American Ins Cos v General Electric Co, 74 Mich App 318; 253 NW2d 748 (1977).
See, Diekevers v SCM Corp, 73 Mich App 78; 250 NW2d 548 (1976).
Third-party complainant Clark has appropriately proceeded under GCR 1963, 204 in making its claim against Commodity.
GCR 1963, 505.1, 505.2. | [
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Cynar, J.
In 1973, plaintiff American Amusement Company, Inc., was assessed a use tax of $14,378.84 for the exhibition of noncopyrighted "adult films”. In the same year, plaintiff Harry V. Mohney was assessed a tax of $2,414.65 as a result of his showing similar films. In each case, the plaintiff paid the tax under protest and instituted suit in the Court of Claims to recover the amount paid. They now appeal as of right from a decision of the Court of Claims denying their requests for refunds.
MCL 205.93; MSA 7.555(3) provides for the levying of a "specific tax for the privilege of using, storing or consuming tangible personal property in this state”. Other sections of the Use Tax Act, MCL 205.91 et seq.; MSA 7.555(1) et seq., provide numerous exemptions from this tax. It has also been held that property subject to sales tax under the sales tax act, MCL 205.51 et seq.; MSA 7.521 et seq., is also exempt from the use tax. Banner Laundering Co v State Board of Tax Administration, 297 Mich 419, 428; 298 NW 73 (1941).
Plaintiffs did not contend that they fit into any of the statutory or judge-made exemptions to the use tax. Rather, they noted that MCL 205.94(o); MSA 7.555(4)(o), provides an exemption for copyrighted motion-picture films and argued that the disparate treatment between copyrighted and non-copyrighted films violated equal protection. They further argued that both copyrighted and noncopyrighted films should fall within the statutory exemption.
The trial judge agreed that the distinction between the two types of films violated the equal protection clause of the Fourteenth Amendment of the United States Constitution. However, he concluded that this violation necessitated striking down the exemption for copyrighted films rather than applying it to all films. Accordingly, he concluded that the equal protection violation present in the use tax scheme did not relieve plaintiffs of their liability to pay the use tax in this instance.
We agree with the trial court’s conclusion that plaintiffs are liable for the payment of use tax under MCL 205.93; MSA 7.555(3). However, we disagree with his conclusion that equal protection is violated as a result of the disparate treatment of copyrighted and noncopyrighted films under the Use Tax Act.
As a general rule, the Legislature’s enactments are clothed with a presumption of constitutionality. People v McQuillan, 392 Mich 511, 536-537; 221 NW2d 569 (1974). This presumption appears to be especially strong where tax legislation is concerned. In Lehnhausen v Lake Shore Auto Parts Co, 410 US 356, 364; 93 S Ct 1001; 35 L Ed 2d 351 (1973), the United States Supreme Court stated:
" '[I]n taxation, even more than in other fields, legislatures possess the greatest freedom in classification.’ * * * There is a presumption of constitutionality which can be overcome 'only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes.’ ”
Similarly, in Thoman v Lansing, 315 Mich 566, 576; 24 NW2d 213 (1946), our Supreme Court noted:
" 'The presumption of constitutionality following tax ing statutes is stronger than applies to laws generally and only where a taxing system clearly and palpably violates the fundamental law will it be held invalid.’ ”
However, this is not to say that the states are exempt from the requirements of the equal protection clause of the Fourteenth Amendment when enacting taxation legislation. As stated in Allied Stores of Ohio, Inc v Bowers, 358 US 522, 527-528; 79 S Ct 437; 3 L Ed 2d 480 (1959):
"[T]here is a point beyond which the State cannot go without violating the Equal Protection Clause. The State must proceed upon a rational basis and may not resort to a classification that is palpably arbitrary. The rule often has been stated to be that the classification 'must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.’ * * * That statute may discriminate in favor of a certain class does not render it arbitrary if the discrimination is founded upon a reasonable distinction, or difference in state policy.”
See also WS Butterfield Theatres Inc, v Dep’t of Revenue, 353 Mich 345, 353; 91 NW2d 269 (1958).
In determining whether a particular taxation scheme is rationally based it must be remembered that the equal protection clause:
" 'imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products. It is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value.’ ” Lehnhausen v Lake Shore Auto Parts Co, supra, 359-360.
Our Supreme Court echoed this viewpoint in Ban ner Laundering Co v State Board of Tax Administration, supra, 433, stating:
" 'Granting the power of classification, we must grant Government the right to select the differences upon which the classification shall be based, and they need not be great or conspicuous. * * * The State is not bound by any rigid equality. This is the rule; its limitation is that it must not be exercised in "clear and hostile discriminations between particular persons and classes.” * * * Thus defined and thus limited, it is a vital principle, giving to the Government freedom to meet its exigencies, not binding its action by rigid formulas but apportioning its burdens and permitting it to make those "discriminations which the best interest of society require.” ’ ”
In order to prevail on their claim of an unconstitutional classification in the Use Tax Act, plaintiffs must "negative every conceivable basis which might support it”. Lehnhausen v Lake Shore Auto Parts Co, supra, 364. See also WS Butterfield Theatres Inc v Dep’t of Revenue, supra, 353. This burden extends beyond showing that the classification bears no rational basis to revenue raising. Classifications in tax schemes have been upheld on such bases as encouraging useful industries to locate within the state, Allied Stores of Ohio v Bowers, supra, 528-529, or promoting the operation of charitable, religious, or scientific organizations. Banner Laundering Co v State Board of Tax Administration, supra, 431.
Plaintiffs have failed to meet their burden in the present case. The different treatment between copyrighted and noncopyrighted films may be upheld on a number of different grounds. Since copyright protection extends only to "original works of authorship”, 17 USC 102(a), exempting copyrighted films from the Michigan use tax tends to promote originality and thereby advances knowledge generally. Further, by encouraging one to copyright one’s films, the use tax exemption promotes the development of a centralized body of information relating to the ownership of motion-picture films. Neither of these grounds have in any way been refuted by plaintiffs. We therefore conclude that the distinction between copyrighted and noncopyrighted films in the Michigan Use Tax Act is supported by a rational basis and thus comports with the requirements of the equal protection clause.
Thus, while we have traveled along a different road of reasoning, the journey ends with the same result. The judgment of the trial court, denying plaintiffs’ claims for refunds of the taxes paid under protest, is affirmed. Costs to defendant.
That section states:
"The tax levied shall not apply to:
"(o) Newspapers and periodicals, as admitted under present federal postal laws and regulations as second class mail matter or as controlled circulation publications or qualified to accept legal notices for publication in this state, as defined by law, or any other newspaper or periodical of general circulation, established at least 2 years, and published at least once a week, and copyrighted motion-picture ñlms. All tangible personal property used or consumed and not becoming a component part of newspapers and periodicals, and copyrighted motion-picture files is subject to tax.” (Emphasis added.)
We note that the trial judge also stated that the copyrighted film exemption in the use tax scheme violated the uniform taxation provision of Const 1963, art 9, § 3. Under this provision a classification in a taxing scheme is upheld if supported by a "reasonable basis”, Avis Rent-A-Car System, Inc v Romulus, 65 Mich App 119, 129; 237 NW2d 209 (1975), aff'd 400 Mich 337; 254 NW2d 555 (1977). Thus, for the same reasons that the classification here was upheld against the equal protection challenge, no violation of the uniform taxation clause is present here. | [
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D. C. Riley, J.
We answer a question of first impression: whether a defendant, ordered by the trial court to a drug rehabilitation center pursuant to the delayed sentencing statute, MCL 771.1; MSA 28.1131, is entitled to credit against his ultimate sentence for time expended therein?
Defendant pled guilty on September 19, 1977, to assault with intent to commit armed robbery, MCL 750.89; MSA 28.284. He remained incarcerated until December 15, 1977, at which time the lower court invoked the delayed sentencing statute, see infra, and directed defendant to the Odyssey-Rubicon House, a drug rehabilitation center. Sentencing would occur on June 21, 1978. Defendant was placed in the custody of the Genesee County jail until the probation department transported him to the center.
On June 9, 1978, the defendant left the center without permission. He was picked up by the police a day later and put in the Genesee County jail. On June 21, 1978, the lower court sentenced defendant to 6 to 15 years in prison with credit for 302 days served in jail awaiting sentence. This credit did not include the 170 days spent at the center. Defendant stated that he left the center with only a few days left because of a strenuous 36-hour marathon session where no one was permitted to sleep. Defendant now appeals this denial of credit.
In pertinent part, MCL 771.1; MSA 28.1131 provides as follows:
"* * * in an action in which the court may place the defendant on probation, it may delay the imposing of sentence of the defendant for a period of not to exceed 1 year for the purpose of giving the defendant an opportunity to prove to the court his eligibility for probation or other leniency compatible with the ends of justice and the rehabilitation of the defendant. * * * The delay in passing sentence shall not deprive the court of jurisdiction to sentence the defendant at any time during the extended period.”
MCL 769.11b; MSA 28.1083(2) allows credit for pre-sentence incarceration under certain circumstances:
"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.”
The prosecution seeks to analogize the present case to decisions which hold that time spent in jail as part of a sentence of probation should not be credited in the event that probation is revoked. People v Lacy, 54 Mich App 471; 221 NW2d 199 (1974), People v Westman, 53 Mich App 662, 666; 220 NW2d 169 (1974), People v Jaynes, 23 Mich App 360; 178 NW2d 558 (1970). For two reasons, we do not agree.
First, the probation statute at issue evinces a legislative intent to permit, upon revocation of probation, the imposition of full punishment absent consideration of any previously imposed penalty. Second, under the probation statute, a defendant has been already sentenced at the time of his initial imprisonment, whereas, under the delayed sentencing statute, a defendant is not originally sentenced until a later date. Significantly, the crediting statute applies to the time spent in jail prior to sentencing, MCL 769.11b. However, jail time served as part of probation is subsequent to sentencing and, therefore, not entitled to any legislatively mandated credit upon revocation.
In the case at bar, the transcript reveals that defendant was not allowed bond and was ordered to the Odyssey-Rubicon House until graduation or express permission of the probation officer. The trial court delayed sentence until that time. As defendant comes, in this respect, within the ambit of the crediting statute, we must decide whether his term at the drug rehabilitation center is equivalent to time served in a "jail”.
Although no cases precisely decide the present issue, this Court has created an exiguous patchwork of other factual circumstances to which the crediting statute has been held to apply.
In People v Gravlin, 52 Mich App 467; 217 NW2d 404 (1974), defendant was adjudicated incompetent to stand trial and committed to the Ionia State Hospital. Three years later, he was tried and convicted for the crime. The lower court refused to give him credit against the eventual sentence. This Court reversed, holding that under a different statute, defendant was entitled to credit for time spent in the hospital. However, the Court further noted that the crediting statute here in issue dictated the same result.
Similarly, People v Ervin Thomas, 58 Mich App 9; 226 NW2d 734 (1975), held that defendant deserved credit for time spent in custody in a juvenile detention facility.
The crediting statute is remedial in nature, and as such deserves liberal construction in order to effectuate the legislative purpose. Brinson v Genesee Circuit Judge, 403 Mich 676, 686; 272 NW2d 513 (1978), People v Lyles, 76 Mich App 688, 690; 257 NW2d 220 (1977), People v Groeneveld, 54 Mich App 424, 427; 221 NW2d 254 (1974). Gravlin, supra, at 469 stated that:
"[a] 'jail’ means a place of confinement * * *. A defendant must be given credit against his sentence for time spent in confinement pursuant to governmental authority, regardless of the place of confinement.”
Here, we believe that the'circumstances under which defendant was ordered to the rehabilitation center amounts to a confinement analogous to jail. Defendant was placed in the Genesee County jail until he was transported to the center. Once there he was not permitted to leave except for one day of family visitation. When defendant left the center 12 days earlier than ordered by the lower court, he was arrested.
Hence, we conclude, for all the above reasons, that defendant must be given credit against sentence for the 170 days spent at the Odyssey-Rubicon House.
Reversed and remanded for resentencing.
MCL 771.4; MSA 28.1134 provides that:
"In case such probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made.” (Emphasis supplied.)
MCL 767.27a(9); MSA 28.966(H)(9), since repealed. See MCL 330.2042; MSA 14.800(1042). | [
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] |
Per Curiam.
On September 20, 1977, defendant entered a plea of guilty in the Schoolcraft County Circuit Court to the crime of criminal sexual conduct in the second degree, MCL 750.520c(l)(a); MSA 28.788(3)(l)(a), growing out of his alleged touching of the private parts of a boy below the age of 13 years. On October 21, 1977, he was sentenced to a prison term of 7 to 15 years.
Defendant appealed and filed a motion for remand to the trial court for an evidentiary hearing. He contended that his guilty plea was not understandingly made and also that he was denied the effective assistance of counsel. In support of these contentions he asserted that his court-appointed counsel knew, or had reason to know, that the defendant had an extended history of psychiatric disorders and treatments and yet made no attempt to obtain a forensic evaluation and hearing to determine the issue of his competency to stand trial, to explore the possibility of a defense of insanity or to submit the state of defendant’s mental condition to the court at the time of his plea and sentencing. On July 17, 1978, this Court granted the motion.
A hearing was held in the trial court on September 28 and 29, 1978. Testimony was received from defendant’s and the people’s psychiatrists, from defendant’s trial counsel, from a psychotherapist familiar with the defendant and from defendant’s probation officer. The trial court found the defendant capable of understanding the proceedings, and of assisting in his defense. The court further found that the defendant was not denied effective assistance of counsel.
Our review of the record confirms that the defendant had a history of psychiatric disorders going back several years and is alleged to have been hospitalized at age 20 or 21 for a similar offense. At the evidentiary hearing, defendant’s appointed trial counsel stated that he had been aware of defendant’s problems and thought that "we would be involved with an insanity defense because of the nature of the crime involved”. But when defendant denied his guilt, counsel testified, "I forgot about anything to do with an insanity defense”. Counsel later testified: "The probability in my judgment was that we were better advised to take the offered plea that we had than to proceed any further.”
An ineffective assistance of counsel claim is reviewable after a guilty plea. People v Kyllonen, 80 Mich App 327; 263 NW2d 55 (1977). Our Supreme Court in People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976), adopted the assistance-of-counsel standard enunciated in Beasley v United States, 491 F2d 687, 696 (CA 6, 1974):
"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law * *
Defendant’s representation in the instant case did not comply with this minimum standard. Although counsel was aware of the defendant’s psychiatric history and its bearing on the charged offense, counsel failed to arrange for a competency hearing before the plea and to seriously investigate and consider the possibility of an insanity defense. Counsel’s failure to appropriately proceed in these circumstances denied the defendant effective assistance of counsel, cf., People v Bryant, 77 Mich App 108; 258 NW2d 162 (1977), and leaves in substantial doubt the issue of defendant’s competency at the time of the guilty plea.
This resolution of defendant’s ineffective assistance of counsel issue makes consideration of other defense issues unnecessary.
Reversed and remanded. | [
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T. M. Burns, J.
This Court granted defendant leave to file an interlocutory appeal in this case to consider an important question concerning interpretation of the statute of limitations for criminal cases. MCL 767.24; MSA 28.964. The question is whether a criminal prosecution begun by filing a complaint, warrant and information more than six years after the date of the last act charged therein is barred where the same offenses had been charged in an indictment within the six-year period, but the indictment had been quashed.
Both the indictment which was quashed and the information which is in issue here alleged that defendant had on October 21, 1970, and diverse other dates between that date and January 1, 1971, engaged in conduct which amounted to obtaining funds over $100 by false pretenses, MCL 750.218; MSA 28.415, and was also a violation of the securities law. MCL 451.501, 451.809; MSA 19.776(101), 19.776(409).
The indictment was returned on October 17, 1975. For reasons not adequately explained by the record, the preliminary exam was not held until January 11, 1977. After the hearing, the district court issued an opinion and order quashing the indictment because the one-man grand jury had taken no testimony and the prosecution refused to comply with the discovery order issued by the circuit court. See People v Bellanca, 386 Mich 708; 194 NW2d 863 (1972), GCR 1963, 787. The order dismissing the indictment was filed February 3, 1977.
The prosecutor made no attempt to appeal the dismissal of the indictment. Instead, a different prosecution was begun by filing a new complaint, warrant and information on February 22, 1977. An examination was held and defendant bound over to circuit court on April 20, 1977. Defendant moved to quash the information on the ground that the statute of limitations had expired. The motion was denied. We granted leave June 23, 1978.
The statute at issue provided:
"An indictment for the crime of murder may be found at any period after the death of the person alleged to have been murdered; indictments for the crimes of kidnapping, extortion, assault with intent to commit murder and conspiracy to commit murder shall be found and filed within 10 years after the commission of the offense; all other indictments shall be found and filed within 6 years after the commission of the offense; but any period during which the party charged was not usually and publicly resident within this state shall not be reckoned as part of the time within which the respective indictments shall be found and filed.” MCL 767.24; MSA 28.964.
In denying the motion to dismiss, the trial court found there are three basic types of limitations statutes for criminal cases: (1) statutes which provide that an indictment must be found and returned within a specified time after the commission of the offense charged; (2) statutes which do not refer to the time of the finding of an indictment or the filing of an information, but merely provide that prosecutions must be commenced within the specified time; and, (3) statutes which provide that the statute of limitations is tolled for a specified period of time if an indictment or information is quashed, set aside, dismissed, or otherwise fails. See, Anno: Findings or returning of indictment or information within period of limitation as stopping running of limitation against prosecution, 90 ALR 452. Citing People v Clark, 33 Mich 112 (1876), People v Clement, 72 Mich 116; 40 NW 190 (1888), and People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959), the circuit court held that Michigan’s statute of limitations was a type 2 statute and the limitations period was tolled from the time the prosecution was "commenced”. The court further found that this prosecution was commenced with the return of the original indictment and thus properly brought within the six years allowed by the statute.
Both Clark and Clement were prosecutions for seduction. The statute under which these prosecu tions were had, How Stat § 9283, provided that "no prosecution shall be commenced under this * * * section, after one year from the time of committing the offense”. That statute was and is a "commencing” statute of limitations, but it is not applicable here and its language must be contrasted with the "found and filed” language of the applicable statute.
Hendershot involved the proper statute but answered a different question. In Hendershot, the complaint was filed and a warrant issued in 1951. Defendant was serving a term in prison so a detainer was filed with the prison authorities. Defendant was not prosecuted for that offense until 1958. The main question in the case dealt with an interpretation of the 180-day rule, MCL 780.131 et seq.; MSA 28.969(1) et seq. The Court’s entire analysis of the statute of limitations question is contained in a single paragraph:
"Defendant says the statute of limitations (CLS 1956, § 767.24 [Stat Ann 1954 Rev § 28.964]) has run because the warrant, when issued, was not placed in the hands of an officer for service, so as to toll the running of the statute. The record contains no support for the factual assertion. It does disclose that upon issue of the warrant a detainer was filed against the defendant with prison authorities. That is the extent of what an officer properly could have done about serving the warrant at the time. This served to toll the statute.” 357 Mich at 304.
The most that can be extracted from this brief passage is that for cases where no indictment is "found and filed” the statute is tolled by filing a complaint and having a warrant issued. In the present case the complaint was filed and the war rant was issued more than six years after the last act charged in the information.
The real problem lies with the effect to be given the indictment which was quashed. This question has not been faced in this state. In other jurisdictions, "Generally, the return of an indictment or the filing of an information on which no valid conviction or judgment can be had will not, in the absence of a statute expressly so providing, operate to stop the running of the statute of limitations pending the return or filing of another indictment or information.” 21 Am Jur 2d, Criminal Law, § 163, pp 229-330. See also, 22 CJS, Criminal Law, § 237 (stating a similar rule).
As noted above, our statute requires that the indictment be found and filed within six years. Under Hendershot, for prosecutions begun by complaint and warrant, they must be issued within six years. Under our statute, it is not enough that the prosecution merely be "commenced”, as might be sufficient in some states; certain acts must be done within the period of limitations or the prosecution is barred.
"Protection from prosecution under a statute of limitations is a substantive right, not a mere procedural one; in all cases subject to limitation the period prescribed by the statute is jurisdictional, the time within which an offense is committed is a jurisdictional fact, and it is incumbent on the state to prove that the offense was committed within the time fixed by the statute.
"Although statutes of limitation on criminal prosecutions are to be accorded a rational meaning in harmony with the obvious intent and the purpose of the law, such statutes are to be liberally construed in favor of the accused, and exceptions from the benefits of such statutes are to be construed narrowly or strictly against the state.” 21 Am Jur 2d, Criminal Law, §§ 154-155, pp 223-224 (footnotes omitted).
The trial court’s conclusion on this point was incorrect. Since Michigan has no statute specifically providing for tolling while the improper indictment was pending, the statute continued to run.
Having reached what we consider the correct interpretation of the statute as it relates to these facts it might seem that defendant is entitled to be discharged. However, the statute does not run during any period "during which the party charged was not usually and publicly resident within this state”.
There was some testimony at the preliminary exam that defendant was absent from this state from July 4, 1974, to November 26, 1975. The district court excluded defense testimony to the contrary and the circuit court, given its interpretation of the statute, did not reach this question. It is only fair that we remand for further evidence and fact-finding on this point if the prosecution desires to press it further. If defendant was not absent from the jurisdiction as claimed below, the statute was not tolled for this reason and defendant is entitled to be discharged.
Reversed and remanded for proceedings not inconsistent with this opinion.
This statute is currently MCL 750.532; MSA 28.800.
People v Curtis, 389 Mich 698; 209 NW2d 243 (1973), provides some support for this analysis. Curtis held that a prosecuting attorney had discretion to nol-pros at the magistrate level and that the circuit court could not require that the accused be examined on a higher charge than is alleged in the information. The Court pointed out that, prior to our nolle prosequi statute, a prosecutor could nolpros a prosecution on his own at any time and later retract the nolle prosequi and immediately proceed on the original indictment. The Court pointed out that the nolle prosequi statute "had the effect of requiring a prosecuting attorney who entered a nolle prosequi after indictment to obtain a new indictment and begin proceedings anew if he wished to reinstate the original charge”. The Court concluded: “Today, as long as jeopardy has not attached, or the statute of limitations not run, our law permits a prosecutor to reinstate the original charge on the basis of obtaining a new indictment and thus beginning the process anew.” 389 Mich at 706 (emphasis added).
This language was construed in People v McCausey, 65 Mich 72; 31 NW 770 (1887), and the holding in that case shall guide the circuit court on remand. | [
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V. J. Brennan, J.
The present case requires our review of the lower court’s order denying the State Appellate Defender’s motion to withdraw from its representation of Jessie Tate on appeal.
The facts giving rise to this controversy follow. Both Jessie Tate and his twin brother James were bound over to Saginaw County Circuit Court on charges of first-degree murder for the killing of Gregory Greer on June 30, 1977. Prior to trial, the lower court granted counsel’s request for separate counsel to represent each defendant.
On January 31, 1978, Jessie Tate pled guilty to the charge of second-degree murder. His brother proceeded to trial and was convicted by a jury on February 8, 1978. Both defendants below were sentenced to life imprisonment.
James Tate and Jessie Tate requested appoint ment of counsel for appellate review. On April 3, 1978, the trial court appointed the State Appellate Defender Office to represent James Tate. On April 7, 1978, the trial court appointed the State Appellate Defender Office to represent Jessie Tate.
On August 4, 1978, the State Appellate Defender Office moved to withdraw as appellate counsel in the case of Jessie Tate, alleging a conflict of interest. This motion was formally heard on October 3, 1978. Rather than withdrawing the appointment, the trial court directed the State Appellate Defender to continue representing each defendant with separate attorneys within the office representing each case. On or about November 3, 1978, a complaint for superintending control challenging this trial court order was filed in this Court. On December 1, 1978, this Court granted defendant Jessie Tate’s motion to show cause why superintending control should not be granted. In accordance with GCR 1963, 816.2(d), the parties filed briefs in this matter.
The defendant herein argues that the State Appellate Defender has not demonstrated any conflict of interest beyond "mere speculation”, and thus its order denying withdrawal is proper. In support defendant cites People v Jones, 64 Mich App 659; 236 NW2d 531 (1975), People v Osborn, 63 Mich App 719; 234 NW2d 767 (1975), People v Marshall, 53 Mich App 181; 218 NW2d 847 (1974).
The line of authority deals with conflict of interest insofar as it relates to ineffective assistance of counsel. We agree that any conflict warranting reversal of a defendant’s conviction must be actual not merely speculative. However from the standpoint of an attorney preparing an appeal prior to any actual prejudice to the defendant, the standard for conflict of interest relating to that attorney’s withdrawal is not as severe.
The attorney’s professional practice is governed by the Code of Professional Responsibility and the Disciplinary Rules. Canon 5 and DR 5-105 provide:
"A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client
"(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).
"(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).
"(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
"(D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.”
These rules contemplate a great measure of self-government by the practitioner in the realm of providing independent judgment. The practitioner’s own judgment and mode of operation play a key role in any decision regarding the acceptance of employment.
In the present case the State Appellate Defender perceives the strong possibility of a conflict on appeal regarding the trial-by-jury conviction and the guilty-plea conviction. Our review leaves us in agreement therewith.
At the hearing below it was disclosed that the entire State Appellate Defender staff has input in each case. On appeal Jessie Tate may attack the voluntariness of his plea and attempt to recant his testimony exonerating his brother James. James’s appeal could very well emphasize the fact that his brother admitted the crime. Needless to say the possibility for conflict places the State Appellate Defender staff in a very delicate position which under the facts of this case is unnecessary. The staff which normally works in concert may develop a division which both impairs communication and preparation of the appeals.
The lower court’s denial of the motion to withdraw is vacated. New counsel is to be appointed for Jessie Tate on appeal. | [
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Per Curiam.
Plaintiff appeals from the trial court’s grant of summary judgment for the defendant City of Detroit.
While playing in a public park operated by the City of Detroit, plaintiffs minor child broke her leg when she stepped through a three-inch space between a slide and the wooden platform to which it was attached. In her complaint, the plaintiff alleged that the city’s design, manufacture and construction of the slide created a hazard to the safety of those using it and that the slide, as a result, constituted a nuisance. The trial court granted summary judgment based on the city’s claim of governmental immunity from tort liability.
The Supreme Court has recently reexamined the impact of the nuisance doctrine on governmental immunity in Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways and a consolidated case, Fouchia v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978). Although no clear majority view has emerged from these cases, certain points of agreement exist between the five justices who concurred in reversal.
First, it is evident that governmental immunity does not bar liability for a nuisance per se. Furthermore, the maintenance of a nuisance in fact by a governmental body may also impose liability and overcome any claim of sovereign immunity.
The distinction between a nuisance per se and a nuisance in fact is an evidentiary one. A nuisance per se is an act, occupation or structure which is a nuisance at all times and under all circumstances. Once the act has been proved, the court decides as a matter of law whether the act complained of constitutes a nuisance per se. The defendant’s liability at that point is established.
A nuisance in fact, by contrast, is an act, occupation or structure which becomes a nuisance because of circumstances and surroundings. Whether or not a particular thing is a nuisance in fact is to be resolved by the trier of fact.
However, the five members of the Court voting for reversal in both Rosario and Gerzeski disagree as to whether all nuisances in fact may defeat a claim of governmental immunity. One view, represented by Justice Moody’s opinion in Gerzeski, supra, at 154, would hold that only intentionally-created nuisances in fact overcome this claim. The differing theory set out in Justice Fitzgerald’s opinion in Rosario does not gainsay this conclusion; it simply asserts that the distinction between negligently- and intentionally-created nuisances is irrelevant in fixing liability. Gerzeski, supra, at 154. Because the justices adopting the first view constituted the swing votes for reversal in both cases, a cautious reading of these cases persuades us that at present only intentionally-created or continued nuisances in fact will defeat a claim of governmental immunity.
The existence of this type of nuisance in fact must also be resolved by the trier of fact. To establish the necessary intent, a plaintiff must show that the defendant who created or continued the nuisance knew or must have known that harm to the plaintiff was substantially certain to follow as a result of defendant’s actions. Rosario, supra, at 143, fn 2 and Gerzeski, supra, at 161-162.
Applying the above principles to the case at bar we conclude, first, that the facts alleged by plaintiff would at most constitute a nuisance in fact and not a nuisance per se. However, we reverse and remand to the trial court for determination by the trier of fact whether (1) the conditions complained of constitute a nuisance in fact, and (2) if so, whether the nuisance was intentionally or negligently created.
Costs to abide the final outcome. | [
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] |
Danhof, C.J.
This appeal entails application of the governmental immunity statute, MCL 691.1407; MSA 3.996(107), to the operation of an emergency medical services (EMS) unit by a mu nicipal fire department. The trial judge has granted accelerated judgment for the City of Dear-born and Dearborn Fire Department on grounds that such an operation is a "governmental function”. We reverse.
Plaintiffs decedent was injured in an automobile collision. An emergency vehicle from the Dearborn Fire Department was summoned to the scene of the accident to administer first aid and transport victims to the hospital. Plaintiff alleges negligent delay by the vehicle’s attendants in transporting plaintiffs decedent to the hospital caused the decedent’s death. Plaintiff has brought suit against the City of Dearborn and Dearborn Fire Department on a theory of vicarious liability for the attendants’ negligence.
When moving for accelerated judgment, the city and fire department relied extensively on this Court’s decision in Parvu v Harrison Twp Fire Dep’t, 75 Mich App 484; 255 NW2d 655 (1977). In Parvu, we specifically held the operation of an EMS unit is a "governmental function” under the "common good of all” test formulated in Gunther v Cheboygan County Road Comm’rs, 225 Mich 619; 196 NW 386 (1923). The Parvu panel analogized the operation of an EMS unit to the operation of a public hospital, which had been held to be governmental in several cases under the "common good of all” test. See e.g., Nicholson v Detroit, 129 Mich 246; 88 NW 695 (1902). In their brief on appeal, the defendants city and fire department again relied on Parvu.
Since briefs were submitted in this case, the Supreme Court has altered the definition of "governmental function”. The test no longer is whether the operation in question is for the common good, but instead, whether it is "of essence to governing”. Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978).
Applying the "governmental essence” test in Parker v Highland Park, supra, a majority of four, composed of Justices Kavanagh, Levin, Fitzgerald and Moody, found the operation of a general hospital by a municipality to be nongovernmental. Thereby, the majority overruled Nicholson and, by apparent analogy, Parvu. In a companion case, Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), a different majority of four, composed of Justices Williams, Coleman, Ryan and Moody, found the operation of a mental hospital to be governmental.
In both cases, Justices Williams, Coleman and Ryan rejected the "governmental essence” test. They reasoned such a test was contrary to the legislative directive to look to the common law, as it stood at the time of the immunity statute’s enactment, for purpose of defining governmental tort liability. Justice Moody, who provided the swing vote in each case, adopted the "governmental essence” test, but found the operation of a mental hospital had attributes essential to governing. Specifically, he based his distinction between general and mental hospitals on differences in (1) competition between public and private hospitals, (2) financial involvement by the state, (3) state responsibility for the placing of patients, (4) public need for the segregation of patients, and (5) voluntary nature of commitment.
At oral argument in the instant case, the city and fire department responded to Parker and Perry in two ways. First, defense counsel contended the "governmental essence” test should be given prospective effect only, according to the principles announced in Parker v Port Huron Hospital, 361 Mich 1; 105 NW2d 1 (1960). Defense counsel asserted public bodies have substantially relied on the old rule, and have failed to protect themselves by purchasing available insurance. Therefore, counsel maintained, the operation of an EMS unit for purposes of this cause of action is governmental under the "common good of all” test as applied in Parvu. Secondly, the city and fire department claimed, even if the "governmental essence” test is given present effect, operation of the EMS unit in question here is governmental. Defense counsel argued the operation is more like the operation of a mental hospital than a general hospital, since it is part and parcel of a public fire department and since public fire departments are not in significant competition with private fire departments.
We hold the "governmental essence” test is applicable to the present case. If the test was not intended to have present effect, we believe the majority in Parker v Highland Park, supra, would have said so. In Parker v Port Huron Hospital, supra, and in other cases overruling longstanding precedent, e.g., Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961), Bricker v Green, 313 Mich 218; 21 NW2d 105 (1946), the Supreme Court has expressly delimited the effective dates of decision.
Moreover, even if the "governmental essence” test is to be given prospective effect, an exception should be made for cases, like the one here, that were pending when the test was adopted. In determining whether any rule of law should have retroactive or prospective effect, and to what extent, Justice Edwards has written:
"It is evident that there is no single rule of thumb which can be used to accomplish the maximum of justice in each varying set of circumstances. The involvement of vested property rights, the magnitude of the impact of decision on public bodies taken without warning or a showing of substantial reliance on the old rule may influence the result.” Williams v Detroit, supra, at 266.
No doubt the Supreme Court’s adoption of the "governmental essence” test will have a profound impact on public bodies in this state. The present appellees have not shown (merely asserted) substantial reliance on the old rule, but we can take notice of that probability. Still, the change was not entirely without warning. Courts of this state and other jurisdictions for years have been steadily eroding the doctrine of governmental immunity, especially as to municipalities. See Williams v Detroit, supra. Further, the detriment public bodies may have incurred in reliance on the old test for governmental immunity must be balanced against the injuries suffered by plaintiffs which, according to the most enlightened thinking, should be compensable by governmental agencies. Thus, we find no injustice in applying the "governmental essence” test to cases pending when the test was adopted.
Applying that test to the facts of this case, we hold the operation of the subject EMS unit is not a "governmental function”. Searching for the factors enumerated by Justice Moody in Parker and Perry, we do not find the attributes that would make the operation essentially governmental.
The appellees’ focus on competition between private and public fire departments in their principal operations is misplaced. Clearly, in Parvu the panel focused on the precise operation involved, rather than overall or principal departmental operations, in applying the then-accepted definition of "governmental”. That focus was correct under prior case law. See Dohm v Acme Twp, 354 Mich 447; 93 NW2d 323 (1958). The only relevant change in the law since Parvu has been in the definition of "governmental”.
Thus, we find the Dearborn Fire Department’s operation of the subject EMS unit is more like the operation of a general hospital than a mental hospital. According to Parker and consistent with Perry, therefore, the operation is not protected by the cloak of governmental immunity.
Reversed. No costs, a public question. | [
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M. F. Cavanagh, J.
Eagle-Ottawa Leather Company, and its worker’s compensation insurer, appeal from the findings and decision of the Workmen’s Compensation Appeal Board (WCAB) ordering both Eagle-Ottawa and Lakey Foundry to pay disability benefits to plaintiff.
Plaintiff Hughes was employed for 25 years by Lakey Foundry. His job required strenuous, repetitive movements of his back and exposed him to gas, sand and dust. Lakey Foundry closed in February, 1972. From November or December, 1972, to February, 1974, plaintiff worked at Eagle-Ottawa Leather Company, performing somewhat lighter work, but also involving twisting and bending of his back.
Medical evidence showed that plaintiff suffered from a permanent lung disability due to his years of exposure to the dust-laden environment at La-key. It also showed that plaintiff suffered as well from a degenerative back condition attributable to the strain from his foundry job but also aggravated by his job at Eagle-Ottawa in the proportion of 25 years to 15 months. This back condition unsuited him for all but sedentary work.
On the basis of the evidence, the WCAB found that the plaintiff’s lung condition totally disabled him from foundry work. However, in the field of common labor, due to his combined lung and back conditions, plaintiff was only partially disabled. The WCAB further found that the job at Eagle-Ottawa aggravated, accelerated or contributed to his back condition only, resulting in plaintiff’s, total disability in the field of common labor. The board declined however to apportion liability for the back condition, pursuant to MCL 418.435; MSA 17.237(435) and Derwinski v Eureka Tire Co, 79 Mich App 750; 263 NW2d 30 (1977), lv gtd 403 Mich 846 (1978). Based on these findings and conclusions of law, the WCAB ordered Lakey and the Self-Insurers Fund to pay benefits in the amount of $33.67 per week beginning June 17, 1974, until further notice. It ordered Eagle-Ottawa to pay concurrently benefits of $100 per week for the back condition, for the period beginning with plaintiff’s last day of work, through the hearing period and thereafter until further order. The combined award for partial and total disabilities equaled $133.67.
On appeal defendant Eagle-Ottawa argues that no competent evidence existed to support WCAB’s finding that plaintiffs back condition was aggravated by his employment at Eagle-Ottawa. It further asserts that the board erred in refusing to apportion liability for the disabling back condition. Defendant Lakey argues the board erred in awarding plaintiff partial disability benefits for his lungs while finding him at the same time totally disabled. Both defendants argue that the award to plaintiff improperly exceeds the statutory maximum.
Findings of fact by the WCAB acting within its power are conclusive and binding on the reviewing court, absent fraud. Const 1963, art 6, § 28, MCL 418.861; MSA 17.237(861). These findings of fact, however, must be supported by competent evidence. Deziel v Difco Laboratories, Inc, 403 Mich 1, 37; 268 NW2d 1 (1978). We conclude, after review of the record, that competent evidence existed to show that plaintiffs employment at Eagle-Ottawa aggravated his back condition.
We next consider Eagle-Ottawa’s claim that the WCAB erred in refusing to apportion liability for plaintiffs back condition between his two employers. Under MCL 418.435; MSA 17.237(435), the last employer of a disabled plaintiff may seek apportionment of disability benefits where a plaintiff suffers from an occupational disease and where it is shown that the prior employment contributed to the disease. English v Lescoa, Inc, 67 Mich App 403, 405-406; 241 NW2d 225 (1976), lv den 399 Mich 822 (1977). In the instant case, the WCAB concluded that plaintiffs prior employment indeed "caused, aggravated, accelerated or contributed to” the arthritic changes in his back.
The apportionment statute, however, does not define an occupational disease. Although Derwinski v Eureka Tire Co, supra, does treat a back condition similar to the one at issue here as an apportional disease, the WCAB declined to apply its holding. The board distinguished the Derwinski case from the case at bar based on the absence of identical tasks and differing degrees of effort involved in plaintiffs two jobs.
We are aware, as was the WCAB, of the split in authority on this issue between the Derwinski holding and Skowronski v Ajax Forging & Casting Co, 54 Mich App 136; 220 NW2d 725 (1974). There, the Court declined to apportion liability for a work-related gradual hearing loss. The opinion noted that the law distinguished between a disease and an injury not attributable to a single event to conclude that the hearing loss fell into the latter category. Skowronski, supra, at 141-142; see MCL 418.301(1); MSA 17.237(301X1).
We are persuaded that the approach adopted in Derwinski, supra, is more consonant with case law and the intent of MCL 418.435; MSA 17.237(435).
While the present statute does not define an occupational disease, it is apparent that such a disease characteristically involves a long history of exposure without actual disability until its effects force an entire cessation of work. 4 Larson, Workmen’s Compensation Law, § 95.21. In Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 256-257; 262 NW2d 629 (1978), the Supreme Court quotes this definition with approval and acknowledges that a number of Michigan cases have treated back conditions as occupational diseases where they have arisen gradually because of repeated bending, lifting and twisting. The Dressier opinion distinguishes this type of back injury from one due to single or multiple event trauma and subsequent aggravation. Logically and legally, therefore, a back injury that has arisen from continuous exposure to such strenuous job-related conditions may fairly be classed as an occupational disease.
Given this reasoning, we are unimpressed with the WCAB’s attempt to distinguish Derwinski from the case at bar. It is sufficient, for purposes of apportionment, for the prior employment to have contributed to the disability, even though the employee may not have been subjected to identically disabling conditions. Mundy v Detroit Grey Iron Foundry, 57 Mich App 331; 225 NW2d 754 (1975). In our view, differences in severity of the work conditions between employers have relevance only in calculating the proportion of each employer’s contribution to the disability.
We therefore hold that the WCAB erred by refusing to apportion financial liability for plaintiff’s back condition between the two defendant employers.
The WCAB ordered defendant Eagle-Ottawa to pay $100 per week to plaintiff for his total disability, based on two-thirds of his weekly salary ($150). It previously found that defendant Lakey had contributed to plaintiff’s back condition in the proportion of 25 years to 15 months. Based on this finding, we remand for entry of an order pursuant to MCL 418.435; MSA 17.237(435), apportioning liability for the above award as follows: Lakey Foundry and SISF, 95%; Eagle-Ottawa, 5%; and for entry of a separate order in favor of Eagle-Ottawa to enforce its claim for reimbursement of 95% of its payments to plaintiff against Lakey Foundry and the SISF.
We next address the issue of whether the WCAB improperly awarded plaintiff compensation for partial disability of his lungs concurrently with compensation for his total disability due to his back condition.
An employee may receive concurrent disability awards where he establishes that two distinct earning capacities have been destroyed by disability. Hebert v Ford Motor Co, 285 Mich 607, 613-614; 281 NW 374 (1938), Thumser v Lakey Foundry Corp, 84 Mich App 319, 323; 269 NW2d 583 (1978). These cases involved situations where the employee had first lost an earning capacity in a skilled occupation due to total disability and then lost a second earning capacity in an unskilled occupation. However, it is clear that the test of "earning capacity” is established by the "actual earning of wages”, Dalton v Candler-Rusche, Inc, 65 Mich App 282, 288; 237 NW2d 290 (1975), rather than the degree of skill an individual employee possesses. It is therefore conceivable that a given employee may establish several earning capacities throughout his working life based on his actual wages in any individual job. He may likewise lose, due to separate disabilities, more than one ability to earn a certain wage; in such circumstances, the employee should also be entitled to concurrent compensation awards.
We are persuaded that this situation exists in the case at bar. Due to his lung disability, plaintiff had a net loss of $50 in earning capacity, based on the difference between his wages at Lakey Foundry and those at Eagle-Ottawa. For this loss, the WCAB properly awarded plaintiff two-thirds of this difference, or $33.67 in weekly benefits pursuant to MCL 418.361; MSA 17.237(361).
We next address the issue of whether the WCAB’s award of $133.67 exceeded the statutory maximum of $106 per week. In Thumser v Lakey Foundry, supra, another panel addressed an identical contention on facts analogous to the case at bar and concluded that the weekly benefits could not exceed the statutory maximum. Applying the Thumser reduction method to the case at bar, we find that Lakey’s maximum award equals $128.67 ($95 for the back injury after apportionment, and $33.67 for plaintiff’s lung disability). After reduction, we hereby direct defendants Lakey Foundry and the SISF to pay plaintiff $102.03 per week in benefits. Defendant Eagle-Ottawa’s maximum award equals $5, representing its proportionate liability for plaintiff’s total back disability; after reduction, Eagle-Ottawa is hereby ordered to pay plaintiff benefits of $3.97 per Week.
To summarize, we affirm the WCAB’s findings of fact and award of $100 per week compensation to plaintiff based on his employment at Eagle-Ottawa, and its award of $33.67 per week based on his employment at Lakey Foundry. We reverse the board’s refusal to apportion liability for the plain tiffs back condition and remand for entry of an order apportioning liability for the benefits awarded, 95% as to Lakey Foundry and SISF and 5% as to Eagle-Ottawa. We further find that the WCAB erred as a matter of law in awarding plaintiff compensation in excess of the statutory maximum of $106 per week, and reduce it to conform to that maximum.
Reversed and remanded for entry of an order consistent with this opinion.
Lakey Foundry went bankrupt in 1972. Pursuant to MCL 418.537(2); MSA 17.237(537X2), the Self-Insurers Security Fund has been made a party to this action.
This apportionment is calculated as follows:
Plaintiffs total years worked,
expressed as months = 315 months (26 years, 3 months)
Years worked at Lakey = 300 months (25 years)
Years worked at Eagle-Ottawa = 15 months (1 year, 3 months)
To arrive at the proportion each employment contributed to the disability (expressed as a rounded percent):
Lakey: 300 = .9524 or 95% 315
Eagle-Ottawa: _15 = .0476 or 5% 315
The reduction formula set out in Thumser v Lakey Foundry, supra, at 324, fn 4, is applied as follows to the awards at issue in the instant case:
$106 divided by $133.67 (the total maximum awards) equals .7929976, the reduction fraction. Hence, Lakey’s liability equals $128.67 times .7929976, or $102,035, say $102.03; Eagle-Ottawa’s liability equals $5 times .7929976, or $3,965, say $3.97. | [
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Allen, J.
Where an officer stops a hitchhiker on the freeway in violation of MCL 257.679a; MSA 9.2379(1) and, in lieu of issuing a citation under MCL 257.728; MSA 9.2428, intends to transport the hitchhiker in the officer’s patrol car off the freeway so that he can continue to hitchhike legally, can the officer conduct a pat-down search for weapons prior to having the hitchhiker enter the patrol car in the absence of any showing of specific and articulable facts that the hitchhiker is armed and dangerous? On this question of first impression, the trial court answered in the affirmative, and defendant appeals by leave granted.
At approximately 11:15 a.m., on October 1, 1978, Trooper Charles D. McCord was patroling northbound Interstate 75 near Six Mile Road when he observed the defendant and a female companion hitchhiking on the freeway. Trooper McCord stopped and asked if they had a vehicle breakdown. He then gave defendant and his companion a verbal warning that they were in violation of MCL 257.679a; MSA 9.2379(1) when defendant responded that he and his companion were just trying to make it to Eight Mile Road, just a couple of miles north of where they were. Trooper McCord obtained identification from both parties and called in a file check to determine if there were any outstanding warrants. No warrant was outstanding for defendant but there was an outstand ing trafile warrant for his companion. Trooper McCord then told the parties he would transport both of them off the expressway, taking them to Eight Mile Road in his patrol car. Neither party was placed under arrest. Before putting defendant in the patrol car, McCord conducted a pat-down search of defendant. During the pat-down he felt a hard bulge on the left side of defendant’s black leather jacket.
"As I was frisking him he had a black leather jacket on with a hard bulge right over his breast, on the left side, and at that time I felt on the outside pocket and I —then I went on the inside of his coat. On the inside of his jacket there was a pocket and at that time I removed a .25 caliber Gallesi automatic pistol with one round in the magazine.”
McCord admitted on cross-examination that he had to go inside defendant’s jacket to remove the gun.
At the preliminary examination, defense counsel moved to dismiss but defendant was bound over on the charge of carrying a concealed weapon contrary to MCL 750.227; MSA 28.424. On November 17, 1978, defendant moved in Detroit Recorder’s Court to suppress the evidence and, in the alternative, for an evidentiary hearing. The motion to suppress was denied but an evidentiary hearing was granted, limited to taking the testimony of the defendant only. At the evidentiary hearing the defendant testified substantially as he did at the preliminary examination.
Defendant concedes that the original "stop” was legal and proper because at that time he was violating a state statute, but argues that the "stop and frisk” exception under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), cannot justify a warrantless search where there are no specific and articulable facts from which the officer could reasonably conclude that the defendant was armed and dangerous. As was stated in Terry, at 30:
"We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” (Emphasis supplied.)
Defendant strengthens this argument by pointing out that under settled law warrantless searches are per se unreasonable, subject only to a few specifically and well established exceptions of which only the Terry exception could possibly apply in the case before us. People v Harold Williams, 63 Mich App 398; 234 NW2d 541 (1975).
"A warrantless search and seizure is unreasonable per se and violates the Fourth Amendment of the United States Constitution and art 1, § 11 of the Michigan Constitution unless the prosecution satisfies its burden that the search is within one of the recognized exceptions to the warrant requirement. People v Reed, 393 Mich 342, 362; 224 NW2d 867 (1975).” 63 Mich App at 401. (Emphasis supplied.)
The file check had shown defendant clean and his companion subject only to a routine traffic viola tion. Thus, unless it is reasonable to assume that all hitchhikers are armed and dangerous—an assumption we decline to make—nothing in the instant case suggested defendant was either dangerous or armed. Ergo, defendant argues, the Terry exception does not apply.
Plaintiff answers by arguing that defendant construes the law too narrowly as is evidenced by the fact that the United States Supreme Court, in a subsequent case, Pennsylvania v Mimms, 434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977), broadened the Terry holding where the frisk was reasonable under the circumstances in which it was made. In that case, two officers on routine patrol stopped defendant Mimms when they observed him driving with an expired license. One of the officers asked Mimms to step out of the car and produce his driver’s license. When Mimms did so, the officers noticed a large bulge under his jacket whereupon defendant was frisked and a loaded revolver found on his person. The Pennsylvania Supreme Court held the warrantless search illegal on the identical grounds urged here, viz: that the officer’s order to get out of the car was impermissible because there were no " 'objective observable facts to support a suspicion that criminal activity was afoot or that the occupant of the vehicle posed a threat to public safety’ ”, Mimms, 434 US at 108, and, since it was this order which led to the observance of the bulge under defendant’s jacket, the revolver was the fruit of an unconstitutional search. That conclusion was rejected, the Supreme Court saying:
"We do not agree with this conclusion. The touchstone of our analysis under the Fourth Amendment is always ’the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s per sonal security.’ Terry v Ohio, 392 US 1, 19 [88 S Ct 1868; 20 L Ed 2d 889] (1968). Reasonableness, of course, depends 'on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’ United States v Brignoni-Ponce, 422 US 873, 878 [95 S Ct 2574; 45 L Ed 2d 607] (1975).
"In this case, unlike Terry v Ohio, there is no question about the propriety of the initial restrictions on respondent’s freedom of movement. Respondent was driving an automobile with expired license tags in violation of the Pennsylvania Motor Vehicle Code. Deferring for a moment the legality of the ’frisk’ once the bulge had been observed, we need presently deal only with the narrow question of whether the order to get out of the car, issued after the driver was lawfully detained, was reasonable and thus permissible under the Fourth Amendment.” 434 US at 108-109. (Emphasis supplied.) (Footnotes omitted.)
Recently our Court quoted with approval the paragraph from Mimms cited above and, in doing so, concluded that "[u]nder the circumstances the only 'sensible thing’ for the police officer to do was to see if the purse contained a weapon”. People v White, 84 Mich App 351, 354; 269 NW2d 598 (1978).
In the instant case it was the officer’s decision to transport the defendant to the next exit and thereby take him off the freeway, which led to the pat-down. Employing the rationale of Mimms and White we inquire whether the officer’s decision was reasonable under the circumstances. We find that it was. Trooper McCord had no authority to arrest the defendant and could have only issued a citation. This being so, the trooper’s decision was limited to issuing a citation or to transporting the offenders off the freeway to the next exit. We believe the officer wisely chose the latter course of action; for had a citation been issued, the hitchhikers would continue on the freeway in violation of the law. As such, defendant and his female companion could either be the prey of individuals who rob and assault individuals stranded or walking along the highway or could themselves be suspect of criminal conduct on the highway. Recently, several instances of suspected foul play by hitchhikers or pedestrians on the interstate highways have received wide attention.
Having concluded that the decision to personally transport defendant and his companion off the highway was not in itself an illegal seizure, we have no trouble in sustaining the subsequent pat-down as being reasonable under the circumstances. The alternate to the frisk would be to handcuff defendant but that in itself would be a greater intrusion than a pat-down. Frisks, when made for the officer’s own protection, are justified under both Terry and Mimms. As the Terry court noted:
"Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.” 392 US at 23-24.
In Mimms, the Supreme Court noted that a significant number of killings of police officers occurred in connection with traffic stops. While the instant case is not the usual traffic stop where the officer on foot approaches the stopped vehicle, it is obvious that an officer whose hands are on the wheel of his own vehicle is an easy victim of an armed passenger sitting behind him.
We are aware of People v Scott, 16 Cal 3d 242; 128 Cal Rptr 39; 546 P2d 327 (1976), where the defendant and his young son, while near an exit ramp on a freeway, were stopped by police officers. The defendant appeared to be intoxicated and had no identification. He told the officers he was trying to get his son to his ex-wife in San Francisco. Out of apparent compassion and concern the officers offered to drive the two to San Francisco. No arrest was made, although one could have been made. Before permitting the defendant into the patrol car, an officer frisked defendant and discovered a bag of marijuana which the California Supreme Court found to be illegally obtained. In doing so it emphasized the totally discretionary action of the officers. The California court also noted that the defendant could have been arrested and then searched, but was never arrested.
In the instant case the options of the officer were more circumscribed by the situation. The defendant could not have been arrested, and yet it was not unreasonable to assist defendant in leaving the expressway. Looking at "all the circumstances of the particular governmental invasion of [defendant’s] personal security” (434 US at 109), we conclude that the frisk of defendant was reasonable.
The flaw in defendant’s position is that, here, an offense was occurring and would continue to occur unless the offender was taken off the freeway. In this respect the case for the people is stronger than in Terry where there was only the suspicion that something wrong might occur. It is for this reason that we reject defendant’s claim that if this Court affirms, a new legal standard would be created covering countless situations where an officer places a citizen in his vehicle. In none of the situations is there an ongoing offense, much less an offense which will continue once the officer leaves. Further, Trooper McCord first inquired whether defendant had sustained a vehicle breakdown and it was not until he was informed that defendant and his companion were hitchhiking that he asked them to enter the police car. An armed officer sitting in a parked patrol car taking information from a stranded or injured motorist is in an entirely different situation than the same officer when driving his car in traffic on the freeway. Our opinion is limited to only the instant situation where, if the officer merely issues a warning or citation and departs, he could be leaving the offender or others in danger. In such a situation it makes sense to remove the danger, and the resulting limited intrusion on the individual’s privacy is overcome by the public interest of protecting human life.
Affirmed.
MCL 257.679a; MSA 9.2379(1) provides that, "A person shall not operate a motorcycle with less than 125 cubic centimeter engine, moped, farm tractor, or other self-propelled farm implement, nor shall any pedestrian, bicycle, except as herein provided, or other nonmotorized traffic be permitted on any limited access highway in this state.” (Emphasis added.) Limited access highway is defined in MCL 252.51; MSA 9.1094(1) to include freeways.
MCL 257.728; MSA 9:2428 provides that where a violation occurs the officer may issue a citation and release the offender, unless the person is charged with driving under the influence, reckless driving, driving without a permit, or negligent homicide.
Defendant gives the following illustrations: persons running out of gas and walking towards the nearest gas station; persons involved in an auto accident and who are asked to sit in the police vehicle while the officer obtains information; persons injured in an auto accident; neighborhood disturbances where the police decide to transport the apparent victim from the scene for his own protection.
While we do not rely on it as a reason for affirming, we do note that as stated in Terry, "since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct”. 392 US at 12. In the instant case Trooper McCord’s conduct could hardly be termed lawless or offensive; rather, the officer was befriending the offenders. The purpose of the exclusionary rule hardly supports the suppression of evidence in the instant case. | [
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Bashara, J.
The majority of this panel adopts the factual determination set forth by Judge Burns. However, we reach a different conclusion and would affirm the conviction.
MCL 763.3; MSA 28.856 provides that the "waiver of trial by jury must be made in open court after the said defendant has been arraigned and has had opportunity to consult with counsel”.
A review of the record reveals that defendant was accompanied by counsel when he signed the proper waiver form in open court before a clerk of the court.
Immediately prior to trial, the judge indicated on the record that the defendant had executed the waiver. At the time of that pronouncement, defendant and his attorney were in the courtroom.
The cases cited by the dissent can be distinguished. In People v Edwards, 51 Mich App 403; 214 NW2d 909 (1974), and People v Polhamus, 59 Mich App 609; 230 NW2d 171 (1975), lv den 394 Mich 819 (1975), no written waiver was made a part of the record. In People v Rimmer, 59 Mich App 645; 230 NW2d 170 (1975), and People v Word, 67 Mich App 663; 242 NW2d 471 (1976), no oral acknowledgment was made in open court.
Rather, we rely on our majority opinion in People v McKaig, 89 Mich App 746; 282 NW2d 209 (1979), People v Little, 87 Mich App 50; 273 NW2d 583 (1978), and People v Slappy, 59 Mich App 525; 230 NW2d 4 (1975).
Affirmed.
N. J. Kaufman, P.J., concurred. | [
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J. H. Gillis, P.J.
Defendant was convicted of two counts of first-degree criminal sexual conduct, MCL 750.520(b)(1); MSA 28.788(2)(1), and one count of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to life imprisonment on each count and appeals by right.
On July 17, 1976, Linda Hollins was at a motel with a friend, Stephen Harris. At or about 3:30 a.m., defendant forcibly entered the room with a gun in his hand. He ordered Harris to get into the closet. Defendant then asked Ms. Hollins for money and dope and took approximately $25 from her purse.
After taking the money, defendant made Ms. Hollins perform fellatio while he held the gun to her head. He then told her to get into the closet and stay there for five minutes. When Harris and Ms. Hollins came out of the closet they noted that Harris’s shoes and money from his pants were missing.
Defendant was identified by Ms. Hollins in a lineup held on November 26, 1976.
Defendant’s initial arguments concern the trial court’s instructions. He contends the trial court failed to specifically instruct the jury that to be guilty of first-degree criminal sexual conduct defendant must have committed a sexual act. Furthermore, defendant contends the trial court failed to instruct the jury on intent and asportation as elements of armed robbery.
While defendant did not object to the court’s instructions at trial, it is incumbent upon the judge to instruct on all elements of the charged crime even in the absence of a request by the defendant. Failure to object does not waive the defendant’s right to review in these circumstances. People v Price, 21 Mich App 694; 176 NW2d 426 (1970).
Defendant’s contention that the trial court should have given CJI 20:2:04 which defines "sexual act” is without merit. The note to that section indicates the instruction must be given when there is any question about the sexual nature of the act. Here, the facts indicate defendant forced Ms. Hollins to perform fellatio. There is no question about the sexual nature of this act. Hence, it was not error to omit CJI 20:2:04.
We also reject defendant’s argument concerning' the armed robbery instructions. A review of the transcript reveals that the jury was instructed on both specific intent and asportation.
Defendant next argues that the trial court committed reversible error by sua sponte instructing the jury regarding the disposition of defendant should he be found not guilty by reason of insanity. In the absence of an objection this Court will not reverse unless manifest injustice is shown. People v Samuelson, 75 Mich App 228; 254 NW2d 849 (1977). Defendant has failed to demonstrate such a result.
Defendant also argues that the prosecutor’s comments regarding the disposition of defendant as a result of a verdict of. not guilty by reason of insanity mandate reversal. While the general rule proscribes such comment by either counsel, no reversible error occurs where, as here, the comments of the prosecutor were in response to defense counsel’s remarks and were brief and not prejudicial. People v Hall, 83 Mich App 632; 269 NW2d 476 (1978), People v Blake, 58 Mich App 685; 228 NW2d 519 (1975).
Defendant also argues that the trial court committed reversible error by admitting the testimony of an expert witness, Dr. Margolis, who testified that in his opinion defendant was not insane at the time of the offense.
Dr. Margolis was a psychiatrist who examined the defendant pursuant to a court ordered evaluation. Dr. Margolis based his opinion, in part, upon a chart compiled during defendant’s 30-day stay at the forensic center. MCL 330.2028(3); MSA 14.800(1028)(3) provides in part:
"Information gathered in the course of a prior examination that is of historical value to the examining qualified clinician may be utilized in the formulation of an opinion in any subsequent court ordered evaluation.”
We find that Dr. Margolis’s testimony was admissible under this provision. Furthermore, a foundation did not have to be laid prior to the witness’s testimony, but was properly brought out upon cross-examination. GCR 1963, 605, People v King, 58 Mich App 390; 228 NW2d 391 (1975).
Defendant’s argument that the trial court erred in considering incorrect information contained in the presentencing report was not preserved for appeal. See People v Powell, 87 Mich App 192, 194; 274 NW2d 16 (1978). .
Defendant’s contention that the constitutional protection against double jeopardy was violated when he was convicted on two separate counts of criminal sexual conduct where there was only one act is correct. People v Willie Johnson, 406 Mich 320; 279 NW2d 534 (1979). Therefore, his convic tion on the second count of first-degree criminal sexual conduct is reversed and the sentence imposed for that charge is vacated.
Defendant’s other two convictions are affirmed. | [
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V. J. Brennan, P.J.
On October 12, 1977, defendant Theodore Rice, D.O., was charged with two counts of unlawfully dispensing and/or delivering a controlled substance in violation of MCL 335.341(l)(c); MSA 18.1070(41)(l)(c). Defendant moved to quash the information claiming that a physician dispensing controlled substances by prescription cannot be prosecuted under the above statute. The trial court noted this Court’s split of authority on this issue as set forth in People v Kerwin, 56 Mich App 483; 224 NW2d 113 (1974), and People v Alford, 73 Mich App 604; 251 NW2d 314 (1977). In reliance upon Kerwin, the trial court granted defendant’s motion to dismiss. The people appeal as of right.
The Supreme Court in People v Alford, 405 Mich 570, 589; 275 NW2d 484 (1979), resolved the conflict in the Court of Appeals as to whether a physician may be convicted of violation of the controlled substances act. The Court stated:
"We hold that physicians can dispense controlled substances only 'to the extent authorized by their registration and in conformity with the other provisions of this chapter.’ MCL 335.332(2); MSA 18.1070(32X2).
"A physician dispensing controlled substances not in the course of professional practice or research can be prosecuted for unlawful delivery of a controlled substance. Whether a physician or any other person listed in MCL 335.307(3)(a); MSA 18.1070(7)(3)(a) is acting in good faith in the course of professional practice or research is a question of fact.”
Under the authority of Alford, the lower court’s order quashing the information is vacated.
Reversed. | [
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Per Curiam.
Defendant was plea convicted of the charged offense of armed robbery, contrary to MCL 750.529; MSA 28.797, and was sentenced to prison for a term of 7-1/2 to 20 years. He appeals of right and asserts he did not enter his guilty plea understandingly.
Defendant claims error in the trial judge’s informing him as follows:
"The armed robbery charge can carry with it, upon conviction, a maximum of life. There is no minimum sentence required under that statute. It is one which does not permit probation as á sentence.”
Defendant asserts that there is a mandatory minimum sentence—even though the Courts have not as yet determined what it is. The statute reads in pertinent part: "punishable by imprisonment for life or for any term of years”.
We choose to follow the opinion in the case of People v Freeman, 73 Mich App 568; 252 NW2d 518 (1977), which .ruled that there is no mandatory minimum sentence for armed robbery, therefore, a court at a guilty plea proceeding need not advise a defendant of a mandatory minimum prison sentence for armed robbery.
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Cynar, P.J.
Plaintiffs appeal as of right from a directed verdict entered against them at the close of their proofs.
Plaintiffs filed this action in 1973 alleging several causes of action against various defendants. Various parties and claims were subsequently dropped and, after one appeal to this Court, Wynn v Cole, 68 Mich App 706; 243 NW2d 923 (1976), the case was remanded for trial on plaintiffs’ defamation claim against defendant. The substance of this claim was that Victoria Wynn’s prospective employer, the Red Cross, had requested information concerning her abilities as a nurse from previous employers, including the Flint Department of Public Health (hereinafter FDPH). Plaintiffs alleged that defendant, in her capacity as director of the FDPH, had maliciously published to the Red Cross false and defamatory statements regarding plaintiff’s previous employment with the FDPH (references to "plaintiff” hereinafter refer to plaintiff Victoria Wynn). The allegedly libelous publication consisted of a form sent out by the Red Cross requesting evaluation of various qualities and abilities of plaintiff. This form also indicated the information would be held in strict confidence. The form was completed and returned to the Red Cross under the names of S. Collins, Supervisor, and M. Cole, Director, FDPH. Although the form does not indicate who filled it out, other than being sent out under both names, the answers were formulated by either Shirley Collins or Verna Cole. The evaluation of ability as fair was made by Shirley Collins. Ability to work in a group was evaluated by Shirley Collins as fair. Intelligence and ability to grasp ideas was evaluated as fair by Shirley Collins. Personality was evaluated by Verna Cole as poor. Stability and dependability was evaluated as fair by Shirley Collins. Character, integrity and honesty was marked fair. Personal appearance was marked average. Under personal handicaps, Shirley Collins wrote "disgruntled about something most of the time”. Attendance record is indicated as good. Under the item "would you hire this person into your organization”, is "no”, and Shirley Collins would not give this evaluation. The reason for leaving was "resignation-sick” and may have been written by Shirley Collins. The additional words "Felt Vicki did not really apply herself to the best of her ability. Eager to get on the bandwagon if trouble existed” were the observations of Shirley Collins.
Plaintiff testified that after finishing her nurses training in June 1968, she was employed by the Flint Visiting Nurses Association (hereinafter FVNA) for about 19 months. Her immediate supervisor was Betty Anderson. Plaintiff first met the defendant when the defendant came to the FVNA on a social visit. Plaintiff had a feeling defendant did not like her because she did not speak to her at that time. At a point when she was with the FVNA for about a year, defendant came to work at the FVNA as a director of nursing. Sometime between the fall of 1969 and February 1970, after defendant would come in to speak to different employees but not to plaintiff, the plaintiff asked the defendant what she had done or if there was something she wasn’t doing that was upsetting her. Defendant told her, "I just don’t like you”. The plaintiff also indicated the defendant contended plaintiff talked too much and wasted time coming back to the office when house calls were over. During a conference between plaintiff and defendant, the defendant gave to the plaintiff some literature to read to enable her to have a better insight about herself. A few days after receiving the literature, she was called into the defendant’s office and, without given a reason, was presented with a choice either to quit or be fired. Plaintiff resigned from the FVNA on the promise she would have a better evaluation for another job.
In the spring, sometime in March or April 1970, plaintiff took a civil service test to work as a junior public health nurse with the FDPH. The director of nursing was Helen Bruening and her immediate supervisor was Shirley Collins. Plaintiff’s work was reviewed regularly, and, one time, she was told she talked too much. After plaintiff had worked for about six months, defendant was hired as a director of the FDPH, replacing Mrs. Bruening. Plaintiff had limited personal contact with the defendant. During the 13-month period while plaintiff worked at the FDPH, two specific incidents took place. Once, after helping to locate a lost chart, plaintiff took the chart to the defendant, put her hand on her shoulder and asked her if that is what she was looking for. Defendant shook plaintiff’s hand off her shoulder, said "Don’t ever touch me”, turned around, went to her office and slammed the door. On another day after she was fired she took her written resignation in and was stopped by the defendant, who asked, "What did you do to Mrs. So-and so. We are getting phone calls what you said to her and what she said to you.” "I said, well I didn’t do anything to her.” After the defendant was there two to three months, plaintiff went to her and asked if she could be put to work where she could have easy access to the bathroom until the time she was going to have surgery performed or take personal leave, since she did not have sufficient sick leave accumulated. The reason given by defendant for not granting leave was that the City of Flint was having a financial crisis, and the job would not be filled if she left. She was told to resign or be fired, and she resigned. The plaintiff submitted a letter of resignation but denied the choice of words were hers. Although this was a civil service position, she did not become aware of a grievance procedure until three to four years after she left.
Plaintiff was working in a private nursing home in Flint when she applied for a position as a nurse with the Red Cross and had an interview about the first week of February, 1973. Plaintiff left the interview with a feeling she was hired subject to work recommendations being received from past employers. She submitted her resignation to the nursing home. One day before her last day at the nursing home, plaintiff received a call from the director of nursing at the Red Cross, stating she was not fit for work with the Red Cross because she received an unsatisfactory work rating from an undisclosed party.
Defendant testified she was the director of nursing at the FDPH when she received a reference form from the Flint Red Cross regarding the plaintiff. After a discussion, the form was filled out by Shirley Collins with her approval. The completed form contained the combined opinion of Shirley Collins and defendant, and Shirley Collins signed the completed form with her approval. Opinions of Verna Cole were based on what she learned herself and from various people, including Mrs. Collins.
Defendant was hired on December 1, 1970. Plaintiff called in sick on December 16, 1970, and did not return until early February when she said she had to have surgery and inquired about sick leave. She was told she could have sick leave. She was on sick leave until she wrote a letter of resignation sometime later in February.
According to Carol Krumbach, who was a director at the American National Red Cross at the time plaintiff sought employment as a nurse, it was standard procedure to send out reference forms to former employers. A response was received from the FDPH and it was a factor in the decision not to employ the plaintiff. While not knowing how to describe it, the reference form played a part in not employing the plaintiff.
At the close of the evidence, defendant moved for a directed verdict on several grounds. The trial judge characterizing the motion as one "to dismiss for failure to carry the burden of proof’, granted defendant’s motion. In support thereof he stated:
"The record is woefully weak when showing malice. The burden is upon the plaintiff quite clearly to show malice, and the Court cannot find, other than the testimony of the plaintiff alone, nobody else but plaintiff alone, that the defendant had a malicious intent to do her harm.”
On appeal, plaintiff correctly concedes that defendant’s publication of the allegedly defamatory statements were clothed with a qualified privilege which can only be overcome by a showing of "actual malice”. See Parks v Johnson, 84 Mich App 162, 168-169; 269 NW2d 514 (1978), Tumbarella v The Kroger Co, 85 Mich App 482, 493-494; 271 NW2d 284 (1978). However, there is a split among the panels of this Court as to what is meant by "actual malice”. Some cases define "malice” as some species of ill will or bad faith. Wynn v Cole, supra, 714, Iacco v Bohannon, 70 Mich App 463, 467; 245 NW2d 791 (1976). Others have adopted the definition set forth in New York Times v Sullivan, 376 US 254, 280; 84 S Ct 710; 11 L Ed 2d 686 (1964), and have concluded that malice is established by proof that the defamatory statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not”. Tumbarella v The Kroger Co, supra, 495, Peisner v Detroit Free Press, Inc, 82 Mich App 153, 164; 266 NW2d 693 (1978), Brunn v Weiss, 32 Mich App 428, 431; 188 NW2d 904 (1971). Although previous decisions of the Michigan Supreme Court have employed the former definition, e.g. Powers v Vaughan, 312 Mich 297, 306-307; 20 NW2d 196 (1945), in the most recent pronouncement from that Court on the subject it appears to have adopted the New York Times definition. See Arber v Stahlin, 382 Mich 300, 308; 170 NW2d 45 (1969). Therefore, notwithstanding dicta to the contrary in the initial appeal of this case, Wynn v Cole, supra, 714, we will apply the New York Times standard to the case at bar.
In determining whether the trial court erred in entering a directed verdict, this Court views the evidence in a light most favorable to the nonmoving party. Humenik v Sternberg, 371 Mich 667, 669; 124 NW2d 778 (1963). If the evidence, when viewed in this manner, establishes a prima facie case, then a directed verdict is improper. Caldwell v Fox, 394 Mich. 401, 407; 231 NW2d 46 (1975).
We conclude that a directed verdict was properly entered in this case. Plaintiff offered no evidence of defendant’s state of mind at the time the allegedly defamatory statement was made. Although plaintiff did testify as to several incidents which tend to indicate that defendant did not particularly like her, this, without more, is insuffi cient to raise the inference that defendant committed the alleged libel with knowledge that the statements were false or with reckless disregard for their truth. In the absence of any evidence of malice, defendant’s statements are protected by her qualified privilege and the case was properly taken from the jury’s consideration.
Affirmed. Costs to defendant.
D. E. Holbrook, Jr., J., concurred.
There exists a qualified privilege to defame where "the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty.” Bacon v Michigan Central R Co, 66 Mich 166, 170; 33 NW 181 (1887), Wynn v Cole, supra, 713.
Under the circumstances of this case, there is no basis for treating plaintiffs motion as a motion to dismiss. See GCR 1963, 504. Therefore, for purposes of this appeal, we will consider the trial judge’s order as granting plaintiffs motion for a directed verdict.
We note, however, that in ruling on the motion, the trial judge improperly discredited plaintiffs testimony. The credibility of the witnesses is for the jury to decide. Sacred Heart Aid Society v Aetna Casualty & Surety Co, 355 Mich 480, 486; 94 NW2d 850 (1959). | [
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Per Curiam.
Defendant appeals, by delayed appeal, his conviction for statutory rape, a violation of former MCL 750.520; MSA 28.788, and from the trial court’s subsequent order denying his delayed motion for new trial.
Defendant’s conviction was originally affirmed by this Court in an unpublished per curiam opinion, People v Jackson (Docket No. 17698, decided December 2, 1974). Delayed appeal was eventually filed by the State Appellate De fender and denied by the Supreme Court. 401 Mich 804 (1977). The present appeal raises issues which were not raised in the prior appeal.
At trial, the only evidence connecting defendant to the crime was his identification by the victim. A chemist from the Department of Public Health in the division of Crime Detection, who conducted microscopic, chemical, and biological examinations on trace evidence for law enforcement agencies in Michigan, testified on behalf of the prosecution. He testified that the victim’s underwear contained seminal stains. He testified there was nothing in the tests connecting defendant with the specimen he examined, and although he could never make a specific connection between the person and the seminal secretion, in some instances he was able to eliminate particular people from the connection. However, he was not given any blood or sperm samples of defendant.
On February 3, 1977, upon the request of the State Appellate Defender office, the chemist analyzed blood and saliva samples taken from defendant in order to determine his blood type and secretor status. He determined from these tests that defendant was a blood type O and confirmed that he was a type O secretor.
At a June 30, 1977, evidentiary hearing on defendant’s motion for a new trial, the chemist testified that he recalled, with the help of notes taken during his original sperm tests, that the victim’s assailant was a nonsecretor. The notes on his tests indicated that the person involved did not secrete either A, B or H antigenic substances. In his expert opinion, defendant did not leave the secretions that were found on the panties. He did admit he was not absolutely certain that any method could be positively determinative of se cretor or nonsecretor status, but he was confident these tests were accurate.
The trial court denied defendant’s motion on the grounds that the newly-discovered evidence was of such a speculative nature that it would not likely render a different result probable on a retrial. It found that the chemist was not positive of the test as to whether the semen was from a secretor or a nonsecretor and performed no test to confirm his initial tentative finding. Additionally it found that such evidence could have been introduced by defendant at trial.
A new trial will be granted for newly-discovered evidence only if there is a showing: (a) that the evidence is newly discovered; (b) that the evidence is not merely cumulative; (c) that the evidence is such as to render a different result probable on retrial; and (d) that the defendant could not with reasonable diligence have produced it at trial. People v Terry Burton, 74 Mich App 215; 253 NW2d 710 (1977).
The lower court apparently agreed that the evidence was newly discovered and that it was not cumulative. The question then is whether the evidence was too speculative to make a different result probable on retrial and whether defendant could not with reasonable diligence have produced it at trial. The lower court’s finding that the evidence was too speculative to make a different result probable on retrial is, in our opinion, erroneous. The chemist was confident that the tests were accurate and that in his expert opinion the tests done on stains from the victim’s panties seriously question whether defendant was in fact her assailant. The fact that he could not assign a degree of certainty to his opinion is a matter which can be weighed by the jury. This evidence could well make a different result possible on retrial, since the only evidence against defendant at the original trial was his identification by the victim.
The lower court’s finding that this evidence could have been produced by defendant at trial is also of doubtful validity. The chemist’s report and notes were apparently not introduced at trial, and defendant had no reason to rebut his testimony that the underwear contained seminal stains. Moreover there is no evidence that defendant and his counsel possessed the required scientific knowledge to interpret the notes.
Because there was a showing of all four requirements necessary for the granting of a new trial based on newly discovered evidence as set forth in Burton, supra, the lower court reversibly erred when it denied defendant’s motion for a new trial. Defendant’s conviction is reversed and the cause is remanded for a new trial.
Reversed and remanded. | [
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T. M. Burns, P.J.
After jury selection had begun in this case, defendant entered a guilty plea to criminal sexual conduct in the third degree, MCL 750.520d(l)(b); MSA 28.788(4)(l)(b). In exchange for the plea the prosecution agreed to dismiss the amended supplemental information which had been filed charging defendant with having been convicted of two prior felonies and seeking to have his punishment in the present case increased. MCL 769.11; MSA 28.1083. The people further agreed not to seek a warrant for absconding on bond by defendant’s failure to appear in this case, MCL 750.199a; MSA 28.396(1), and to recommend a sentence of no more than 6 to 15 years in prison. The court agreed to be bound by the prosecution’s recommendation of maximum sentence before the plea was accepted.
At sentencing, defendant sought to withdraw his plea because of a "misunderstanding” about the possible sentence which he would or could have received had he continued with the trial on the supplemental information. After a discussion between defense counsel and the court, defendant was informed that the information he had received from defense counsel was correct—if he had been convicted as an habitual offender he could be sentenced to 20 to 30 years. The court was still willing to allow defendant to withdraw his plea, but defendant agreed to proceed with sentencing when the court informed him that he was getting a good deal and that if his plea were withdrawn, the prosecution would start over on the original charges. It is clear from this record that the possibility of sentencing under the habitual offender provisions played a substantial part in defendant’s decision to plead guilty.
Defendant does not allege any error in the plea-taking proceeding relating to the criminal sexual conduct charge itself. He does claim that his plea was coerced because the bargain was partially illusory. Defendant claims the two convictions charged in the amended supplemental information were the results of pleas which are constitutionally infirm. This alleged infirmity was raised for the first time in this appeal._
The two convictions charged in the supplemental information were based on guilty pleas in two incidents of bad checks in 1972. Defendant was represented by counsel in these prior cases but was not informed, at the actual plea proceeding, that he was waiving his right to remain silent by pleading guilty. The entire record for these two prior convictions has not been provided on appeal, but only the transcripts were furnished as an appendix to appellant’s brief. This practice has been and should be, discouraged. It is, therefore, impossible to say with certainty whether the required information for a valid guilty plea was imparted in some other way.
We start our analysis of the question by accepting the proposition that an habitual offender information is a proper subject of bargaining which, in itself, raises no problem of involuntariness of the plea. Bordenkircher v Hayes, 434 US 357; 98 S Ct 663; 54 L Ed 2d 604 (1978). However,
"Implicit in the proper use of a habitual offender charge as a plea bargaining tool is the legal applicability of the recidivist statutes to the particular defendant. The accused must be in fact a potential subject of habitual offender supplementation if this factor is to play a part in the plea negotiations. If the plea is induced by a promise to forego a recidivist proceeding, when no such proceeding would be warranted, the defendant is per se misinformed as to the benefit of his plea and the bargain is illusory. See, People v Lawson, 75 Mich App 726; 255 NW2d 748 (1977), Hammond v United States, 528 F2d 15 (CA 4, 1975).” People v Roderick Johnson, 86 Mich App 77, 79; 272 NW2d 200 (1978).
The supplemental information in this case charged defendant with prior convictions on two occasions. The information is valid on its face since neither of the prior convictions has been appealed or vacated. That raises two questions: Can defendant attack those prior convictions in this proceeding or at this stage of the present proceeding and, if so, could the prosecution "go back” and obtain new convictions in a manner which would subject defendant to habitual offender liability in this case?
There is a line of cases involving actual conviction under the habitual offender act holding that a defendant cannot collaterally attack the underlying plea-based convictions in an appeal of the habitual offender convictions. These cases would require a defendant to have the prior conviction set aside in other proceedings before allowing him to raise the invalidity as part of an attack on the habitual offender finding. See, e.g., People v Mays, 77 Mich App 389; 258 NW2d 87 (1977), People v Pangburn, 81 Mich App 324; 265 NW2d 138 (1978) (defendant can collaterally attack prior pleas only on the grounds of denial of the right to counsel).
These cases rely in part on my prior opinion in People v Hendrick, 52 Mich App 201; 217 NW2d 112 (1974), which in turn relied on People v Gavin, 50 Mich App 743; 213 NW2d 758 (1973). Gavin was reversed on this point by the Supreme Court, 391 Mich 837; 218 NW2d 144 (1974), on the authority of People v Moore, 391 Mich 426; 216 NW2d 770 (1974). And, while the Supreme Court affirmed Hendrick on another question, 398 Mich 410; 247 NW2d 840 (1976), in the order which granted leave and restricted the grant to the question ultimately decided, the Court referred to Moore as controlling on the point in question here. 394 Mich 839 (1975). Based on these considerations, we find the cases restricting collateral attack of a prior guilty plea to be improperly grounded in precedent and do not follow them. It is also clear from the Supreme Court’s action in the same cases that the attack is not restricted to denial of the right to counsel.
The cases just discussed involve conviction under the habitual offender provisions and are thus distinguishable from the present situation where the habitual offender information was dismissed in exchange for a plea. However, it is a distinction without a difference. Since the validity of the bargain, and thus the plea, depends on the validity of the charge, People v Roderick Johnson, supra, the defendant in this case should be allowed the same standing to challenge possibly invalid prior convictions as one in which the supplemental information had been pursued. Any other rule would allow a plea to stand even though part of the consideration was legally improper. We cannot allow pleas based on illusory plea bargains to stand. People v Lawson, 75 Mich App 726; 255 NW2d 748 (1977).
The question remains whether the attack can start in this Court. Because of the factual development upon which the legal analysis depends, the appellate courts of this state have been very reluctant to pass on these questions in the first instance. People v Moore, supra. The appropriate relief, if any, is to remand to the trial court to allow defendant to raise the invalidity of the prior pleas of guilty. People v Jones, 83 Mich App 559; 269 NW2d 224 (1978).
The prosecution suggests that even if the prior pleas are invalid, defendant’s plea in this case should stand because, if nothing else, the prosecution could obtain new convictions in the check cases and thus bring the situation back to what it was at the time the bargain was offered in this case. If the prosecution’s theory is correct, then the plea bargain in this case would not be illusory. However, the argument ignores the language of the habitual offender act under which the prosecution proceeded. MCL 769.11; MSA 28.1083. As this Court has held in People v Cobington, 70 Mich App 188; 245 NW2d 558 (1976), lv den 402 Mich 843 (1977), and People v Roderick Johnson, supra, the convictions on the prior offenses must precede the commission of the supplemented offense. Obviously, if the prosecution must rely on a conviction obtained now, the statute would not apply.
Having held that defendant may attack the validity of the plea in this cáse by showing that the convictions upon which the supplemental information is based are invalid, we hold that the appropriate remedy is to remand to the circuit court to allow defendant to establish the invalidity of the prior convictions. If the circuit court finds that defendant was not advised of his right to remain silent before pleading guilty to the two check offenses in 1972, see, People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972), the plea in this case shall be set aside as the product of an illusory bargain. If defendant was so advised the plea and bargain should stand. We do not retain jurisdiction.
Defendant was released on a $1,000 recognizance bond when he was not tried within six months of his arrest. After being released, defendant fled and was arrested in Florida on another charge. He was returned to Michigan through extradition to stand trial in this case.
The possibility of "reconvicting” defendant on the prior charges was raised at oral argument to rebut the assertion that defendant could not legally be charged as an habitual offender in this case.
It appears that defendant had prior convictions other than the two charged in this supplemental information. Since the prosecution had actually filed a supplemental information before the plea in this case, we must consider only the offenses actually charged therein.
The holding on the validity of the plea renders discussion of defendant’s sentencing claim unnecessary since it is based on an assertion that the same two prior convictions are invalid. | [
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Allen, J.
We are asked in this appeal to determine whether an employee who has voluntarily quit his employment through no fault of the employer and who has thereafter served the requisite statutory period so as to be requalified for unemployment benefits under § 29(3) of MCL 421.29; MSA 17.531 is again made ineligible for benefits if the same employer offers the same job to the employee and the employee, without good cause, refuses the job offer. Defendant Michigan Employment Security Commission answered this question in the affirmative. The trial court reversed, holding that as a matter of law the employee could not, by such offer, be made ineligible for benefits. On this question of apparent first impression, we hold the trial court erred.
Plaintiff commenced working for defendant, Morang Drive Greenhouses, Inc. (Morang), July 1, 1974, in a salaried position as supervisor of the retail employees, ordering merchandise and routing and dispatching of deliveries. Some 10-1/2 months later, on May 16, 1975, plaintiff voluntarily quit his job. Since he voluntarily qiiit he was disqualified for unemployment benefits for six weeks pursuant to § 29(3) of the Michigan Employment Security Act. MCL 421.29; MSA 17.531. At the end of the six-week period, defendant Michigan Employment Security Commission (MESC) made an initial determination that plaintiff was entitled to receive benefits, and so notified Mórang. Morang promptly notified MESC that "claimant’s position with us is still open”.
Upon instruction from MESC, plaintiff then presented Verification of Availability to Employers form (Form 1323) to his employer who completed the form, writing thereon that there was work available consisting of "the same job as he left” but the employee "refused the job due to a personality conflict with the general manager after leaving”. On November 12, 1975, MESC determined that plaintiff had failed without good cause to accept suitable work when offered him. When plaintiff protested, MESC issued a redetermination stating "claimant was disqualified for refusal of work with his former employer”. Plaintiff appealed to a referee who, following a full hearing, affirmed the MESC, and plaintiff appealed to the Michigan Employment Security Appeal Board. On June 9, 1977, the appeal board affirmed the decision of the referee.
Appeal was then taken to the Wayne County Circuit Court, which heard the matter on briefs and oral arguments, and, on May 25, 1978, reversed the decision of MESC saying:
■ "I think the issue in this case is whether or not, when the Legislature determined what the penalty is for a voluntary quit; that is, giving up a certain amount of weeks, getting benefits, whether or not they meant that to apply to the job that the man quit. And the question really is whether or not, if he’s offered that same job back, that amounts to the suitable employment that the Legislature talks about.
"I wouldn’t go so far as to say that the interpretation of the MESC would amount to a violation of the 13th Amendment to the United States Constitution, based upon involuntary servitude, but I think in one respect it comes close to it; and that is in this respect: I think they are losing sight of the fact that people aren’t cattle, but they are individuals with feelings and dignity and it would appear to this Court that being offered the same employment that this fellow voluntarily quit, and that he served a penalty, that is, whatever weeks the Legislature set, he’s disqualified. After serving this penalty, to be offered the same thing, I think amounts to a debasing of the individual.
"There’s nothing in the statute and there wouldn’t necessarily have to be, which says that being offered the same employment is equivalent to suitable offer of a job. However, I think it’s implicit, where the Legislature: first, didn’t mention the same employment, and second, where a penalty is specifically set for voluntarily quitting that employment. I don’t know whether I would use the word 'piggyback,’ but I think that its almost in the nature of something — that a penalty is served, and maybe trying to give a man a double penalty, because once he quit the job and serves a penalty, to say that not going back to that exact same job, he should serve that exact same penalty ad inñnitum, I think would be to greatly debase the individual.”
Two issues, each of public importance, are raised on appeal.
I.
After an employee has voluntarily quit his job and has served the requaliñcation period prescribed in §29(3) of the statute, does an offer by the same employer of the same job constitute an offer of suitable work, or is it as a matter of law an offer of unsuitable work?
From 1943 to 1965, an employee who voluntarily quit his employment without good cause attributable to his employer was disqualified from unemployment benefits "for the duration of his unemployment”. Since the disqualification from benefits for a voluntary quit without good cause was for the duration of the unemployment, the question of a subsequent disqualification for refusing to accept suitable work never arose. By 1965 PA 281, the Legislature removed the absolute bar from benefits for persons who had voluntarily quit without good cause by removing the language that made the disqualification "for the duration of the unemployment”. At the same time, § 29(3) was added to permit requalification for benefits.
The 1965 amendment gives rise to the question presented in this case, that being: Did the Legislature intend that a disqualification for refusal to accept suitable employment pursuant to § 29(l)(e) could follow a disqualification for a voluntary quit pursuant to § 29(l)(a), where there had been a requalification pursuant to § 29(3) and the job refused was the job from which the claimant had voluntarily quit? Two interpretations of the Legislature’s intent, each reasonable, may be made.
On the one hand, it can be said to mean that once an employee who voluntarily quits serves the initial requalification period he is fully eligible for benefits — § 29(l)(e) being only applicable to persons who leave their employer by some means other than voluntary quitting. This is the construction given the statute by plaintiff and the trial court.
On the other hand, it can be said that the legislation was a matter of compromise between those who would allow all voluntary quits and those who opposed such liberalization; that as a part of the compromise the Legislature intentionally restricted benefits for voluntary quits, the restriction being that if at the end of the disqualification period the employer again offered the same job to the quitting employee and the offer was turned down without cause, benefits would not be payable. Under this interpretation, § 29(l)(e) applies to all persons who leave employment, including persons leaving by voluntary quit. This is the interpretation adopted by MESC.
Five reasons persuade us that the latter interpretation of the statute is correct.
First, the agency charged with the administration of the statute has from the date of enactment of the statute construed the voluntary quit provision as being restricted by the re-offer of the same job. In the absence of cogent reasons, which we do not find here, the construction given a statute by the agency charged with its administration is persuasive. Magreta v Ambassador Steel Co, 380 Mich 513, 519-520; 158 NW2d 473 (1968). An almost identical factual situation arose in Bingham v American Screw Products, 57 Mich App 21; 225 NW2d 199 (1974), rev’d on other grds 398 Mich 546; 248 NW2d 537 (1976). There, plaintiff voluntarily quit his job and, as in the instant case, was disqualified from receiving benefits for six weeks. During the waiting period he returned to his home in Kentucky. At the end of the six-week waiting period he was offered his old job back but refused on grounds the distance from Kentucky to Michigan gave good cause to refuse. MESC agreed, not because it opposed the offer of the job but because it felt plaintiff had good grounds to refuse. The circuit court reversed. This Court affirmed, saying:
"It therefore follows that the offer of the same job at the same location that claimant voluntarily left without good cause attributable to the employer or employing unit is suitable work within the meaning of § 29(6). Since plaintiff does not claim that the old job was unsuitable for any reason other than the distance from the locality in which he presently resides, the work offered was suitable work as a matter of law. Plaintiff did not have ’good cause’ to refuse to report to his former employer and thus he is disqualifíed under § 29(l)(d) by reason of his failure to report to his former employer upon receiving notice of the availability of his old job.” (Emphasis added.) 57 Mich App at 29.
Because both our Court and the Supreme Court presumed, without deciding, in Bingham that a re-offer of the former job was a permissible practice, the language quoted above is technically dicta. Nevertheless, Bingham is persuasive to defendants’ cause because it clearly shows that both employers and the MESC interpreted the 1965 amendment as being qualified by the right of the employer to offer the same job at the end of the six-week period.
Second, when the Legislature amended the statute in 1975, no language was added to provide that a re-offer of the same job was not an offer of suitable employment. In 1975, House Bill 4843 was introduced proposing major increases in unemployment compensation benefits. As the bill moved through the Legislature, amendments were made so that the bill would also eliminate some of the abuses in the earlier statute. Among the abuses was the voluntary quit provision. As appears from the Third Analysis of HB 4843 prepared by the Analysis Section of the House of Representatives:
"There are many areas of potential abuse in the present act. Of particular concern to employers are the so-called 'voluntary quits’, i.e. persons who leave their jobs voluntarily and yet still collect unemployment benefits. By requiring a longer requalification period for such persons, the bill would discourage an employee from quitting a job in order to draw unemployment.”
No change was made in § 29(l)(e) so as to limit its application to persons leaving their employment by means other than by voluntarily quitting, nor was any language proposed to adopt a construction different from the interpretation made by the agency from 1965 on. Obviously, the Legislature knew of the long-standing MESC construction of the statute and was aware of Bingham. The failure of the Legislature to make any changes other than to increase the disqualification period from 6 to 13 weeks indicates legislative acquiescence to the agency’s interpretation.
Third, in ruling that as a matter of law an offer by the same employer of the same job cannot constitute suitable work under § 29(l)(e), the trial court impermissibly enlarged the provisions of § 29(7) of the statute. Section 29(7) lists the condition under which work is deemed unsuitable. It reads:
"Notwithstanding any other provisions of this act, work shall not be deemed suitable and benefits shall not be denied under this act to an otherwise eligible individual for refusing to accept new work under any of the following conditions: (a) If the position offered is vacant due directly to a strike, lockout, or other labor dispute; (b) if the remuneration, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; (c) if as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining a bona fide labor organization.”
Express mention in a statute implies the exclusion of other things. Valenti Homes, Inc v Sterling Heights, 61 Mich App 537, 540; 233 NW2d 72 (1976). The conditions listed in § 29(7) do not include the condition set forth by the trial court. If the statute is to be enlarged, it should be the Legislature which should do so rather than the Court.
Fourth, other jurisdictions having the occasion to rule on this issue have held that an offer of the former job which the employee has voluntarily quit constitutes suitable work which, if refused without good cause, disqualifies the employee from benefits. SS Kresge Co v Unemployment Compensation Comm, 349 Mo 590; 162 SW2d 838 (1942). In Claim of Crowe, 280 App Div 427; 113 NYS2d 433, 435 (1952), aff'd 305 NY 699; 112 NE2d 780 (1953), a laundry worker voluntarily quit and, after serving her disqualification period, refused to accept a job offered by her employer. The appeal board held in favor of the employee, but the court reversed, saying:
"The statute however, carefully separates voluntary separation from refusal of employment. If they are separate events, as they certainly are in the record, they may not be given unitary treatment. The Division of Placement and Unemployment Insurance itself set in motion the 'offer of employment’ which was distinct in time and circumstance from the original separation.
"This offer of employment, even though from the former employer, fulñlled the statutory deñnition of an offer of employment and the effect of the separately provided penalty for 'refusal of employment’ cannot be avoided by the fact that the State agency selected the same employer to make an offer or renewed instead of entirely new employment.” (Emphasis added.)
Fifth, our statute, like New York’s, separates voluntarily leaving a job (§ 29[l][a]) from refusal to accept subsequent employment (§ 29[l][e]). In the instant case, the two events are long separated in time. The voluntary quit occurred in May, 1975, and the offer of the former job occurred five months later in October. Disparate acts are defined in disparate and separate sections of the statute. This, in itself, suggests the Legislature intended to deny benefits where the former job was refused without cause. Under plaintiff’s construction of the statute, § 29(l)(e) must be read as not applying to persons leaving their employment by voluntary quit. This is contrary to the plain language of the section which refers to all persons.
II.
Did the MESC properly ñnd that plaintiff failed without good cause to accept suitable employment when offered him?
The offer of former employment does not in itself disqualify an employee from drawing benefits. The employee may still draw benefits if he has good cause to reject the proffered job. Bingham, supra. Plaintiff argues that he is entitled to benefits because: (a) though there was some discussion about re-employment, there was no real offer made; (b) if an offer of employment was made, the employment was not suitable, and (c) plaintiff had good cause to reject the offer because he had job offers elsewhere, defendant had failed to keep past promises, and he had a personality conflict with the general manager of the store.
The standard of review of decisions of the referee or the appeal board is set forth in § 38 of the statute, MCL 421.38; MSA 17.540. That section provides that such determinations may be reversed "only if it [the Court] finds that the order or decision is contrary to law or is not supported by competent, material and substantial evidence on the whole record”. The record is clear that a job offer was made to plaintiff at the end of the disqualification period. Even the trial court so found when it stated "the facts in this case are pretty clear, that the claimant was offered, at least substantially the same job at substantially the same wages that he voluntarily quit”.
With respect to plaintiff’s claim (b) we are governed by the definition of job suitability as defined in § 29(6) of the statute. MCL 421.29(6); MSA 17.531(6). Under the criteria set forth therein, plaintiff’s former job appears suitable. Plaintiff had performed the job well for 10-1/2 months. He did not allege any risk to his health or safety and, unlike the situation in Bingham, supra, distance from residence to job was no problem.
Finally, we must decide whether plaintiff had good cause to reject the employment offered. In his decision of May 14, 1976, the referee found "that although claimant had good personal reasons for not wishing to return to the involved employer without an increase in pay, said reasons were not of such a nature to show good cause for refusing to accept suitable employment under § 29(l)(e), 29(6), and 29(7)(b) of the Act”. The testimony in the record discloses that plaintiff felt there was no room for advancement at the greenhouse, that he had been passed over for the management of another store, that he had a personality conflict with the store manager, and that he had other job offers.
The issue raised is a question of law. Do such reasons constitute "good cause” for refusal to work as that term is used in the statute? That question is answered in Losada v Chrysler Corp, 24 Mich App 656, 660; 180 NW2d 844 (1970), lv den 383 Mich 827 (1970), which held that personal reasons were not good cause under the statute. That decision was followed in a split decision in Keith v Chrysler Corp, 41 Mich App 708; 200 NW2d 764 (1972), affirmed by an equally divided Court 390 Mich 458; 213 NW2d 147 (1973). While the split in the Supreme Court decision casts doubt on the vitality of the Losada ruling, we are bound by the decision until it is changed by the higher Court. See Lasher v Mueller Brass Co, 62 Mich App 171; 233 NW2d 513 (1975).
Accordingly, we hold that plaintiff refused without good cause an offer of suitable work and thereby is disqualified for six weeks of unemployment benefits. Reversed. No costs, a public question being involved.
In 1975, the period of disqualification in § 29(3) was increased from 6 weeks to 13 weeks. 1975 PA 110, effective June 6, 1975.
"We have reviewed the Referee’s decision in the light of the evidence appearing in the record. It is our opinion that said decision is in conformity with the law and the facts.”
It should be noted that when originally enacted in 1936, the Michigan Employment Security Act, then known as the Michigan Unemployment Compensation Act, provided that the disqualification from benefits for voluntarily quitting one’s employment without good cause was temporarily limited. See 1936 (Ex Sess) PA 1, § 29. It was only with the enactment of 1943 PA 246 that the disqualification from benefits for a voluntary quit was extended to the duration of the unemployment. While the pre-1941 language provided the opportunity for a situation not unlike that presented in this case, we have been unable to find any reported decision that would be of assistance herein.
The changes made by the 1965 amendments were recognized in a Precedent Manual issued by the Michigan Employment Security Commission. Prior to issuance, the Manual is reviewed by the Attorney General’s office and approval given. Section 76.131 of the Manual, entitled "Suitable Work”, recognized that the employee may be offered the same job by the same employer and if the offer is refused without good cause may be disqualified more than once. It states:
"76.131 Refusal Following a Prior DisqualiScation With Same Employer. Situations will occur where an employer will protest a claimant’s right to benefits because the claimant has failed to apply for, accept, or report to a former employer concerning, available suitable work and where there has been a prior adjudication on a previous offer, or where there has been a prior adjudication under other disqualifying provisions of Section 29 of the Act, such as voluntary leaving. The Commission cannot refuse to impose a disqualification for a subsequent refusal of work merely because the claimant had already been disqualified for quitting, or for refusing a previous offer, with the same employer. * * * It is recognized that adjudication of distinct acts, separations or discharges involving the same employer may result in the claimant being disqualiñed more than once, e.g., under the voluntary leaving and suitable work provisions of the Act. However, if the proper application requires a disqualification based on the issue at hand, then such disqualification must be made.” (Emphasis added.)
The appeal in plaintiffs interpretation of the statute rests on the apparent inconsistency of allowing an employee to quit and draw benefits, but then denying benefits upon the re-offer of the same job. The flaw in the argument is that it assumes that when the Legislature granted the privilege it did so without qualification or restriction. The Legislature had reason to place some limits on the privilege. The number of voluntary quits is high. In 1977, there were 112,000 voluntary quits, even though the disqualification period had been raised to 13 weeks. | [
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Per Curiam.
Plaintiffs appeal by right from the Clinton County Circuit Court’s order of July 20, 1978, dismissing, on jurisdictional grounds, plaintiffs’ complaint for injunctive relief. Plaintiffs’ complaint alleges that a drain project undertaken by defendant in Stoney Creek in Clinton County violates certain provisions of the Environmental Protection Act of 1970, MCL 691.1201 et seq.; MSA 14.528(201) et seq. (hereinafter referred to as the EPA).
The defendant contends that plaintiffs must exhaust the remedies provided in the special drain enactments before the court can take jurisdiction under the EPA. This legislation consists of the Drain Code of 1956, MCL 280.1 et seq.; MSA 11.1001 et seq., and the Soil Erosion and Sedimentation Control Act of 1972, MCL 282.101 et seq.; MSA 13.1820(1) et seq.
Section 2 of the EPA allows plaintiffs in the instant case to bring an action in the circuit court "for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction”. MCL 691.1202(1); MSA 14.528(202)(1). Section 4, paragraph 1 of the act specifically provides that the circuit court "may grant temporary and permanent equitable relief, or may impose conditions on the defendant that are required to protect the air, water and other natural resources or the public trust therein from pollution, impairment or destruction”. MCL 691.1204(1); MSA 14.528(204X1).
In Ray v Mason County Drain Comm’r, 393 Mich 294; 224 NW2d 883 (1975), our Supreme Court considered the kind of findings of fact required from a trial judge in deciding an action brought under the EPA. That suit involved a drainage project that had been approved under the Michigan Drain Code, supra. In its opinion, the Court considered the purpose of the EPA. The Court stated:
"But the EPA does more than give standing to the public and grant equitable powers to the circuit courts, it also imposes a duty on individuals and organizations both in the public and private sectors to prevent or minimize degradation of the environment which is caused or is likely to be caused by their activities.” Ray, supra, at 306.
We conclude that plaintiffs are authorized to proceed in the circuit court under the express provisions of the EPA and, accordingly, we reverse and remand.
It was disclosed in oral argument that while this drainage project has been completed, nevertheless, other similar ones are in planning stages. It can be argued that the work having been completed, the question is now moot. However, we consider this issue of sufficient importance that the question will be addressed. Lafayette Dramatic Productions, Inc v Ferentz, 305 Mich 193, 218; 9 NW2d 57 (1943), Wayne County Republican Committee v Wayne County Board of Comm’rs, 70 Mich App 620, 624; 247 NW2d 571 (1976). | [
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Hoekstra, J.
Plaintiff appeals as of right an order of the Ingham Circuit Court denying attorney fees under the Michigan Environmental Protection Act (mepa), MCL 324.1701 et seq.; MSA 13A.1701 et seq We affirm.
In this appeal, plaintiff overtly challenges this Court’s decision in Attorney General v Piller (After Remand), 204 Mich App 228; 514 NW2d 210 (1994). Plaintiff recognizes that the Piller opinion, upon which the trial court relied, is controlling; however, plaintiff requests that this panel express disagreement with the holding in Piller pursuant to Administrative Order No. 1996-4.
Plaintiff, a nonprofit corporation formed by property owners on Platte Lake and Platte River, filed suit against defendant in 1986, claiming that phosphorous emissions from defendant’s salmon hatchery was causing environmental pollution in the lake and river. Following a bench trial in 1988, the trial court determined that defendant was violating the mepa and awarded plaintiff injunctive relief. Plaintiff was also awarded costs, including attorney fees, pursuant to MCL 691.1203(3); MSA 14.528(203)(3) for expenses incurred through the date of the 1988 judgment. In August 1993, plaintiff filed a supplemental motion for apportionment of costs, including attorney fees, incurred after entry of the 1988 judgment. That motion was granted in an opinion and order dated March 9, 1994. However, on March 21, 1994, this Court announced its decision in Piller, prompting defendant to request reconsideration of the award of postjudgment attorney fees. Using Piller as authority, the trial court reluctantly reversed the original award of postjudgment attorney fees, and this appeal ensued.
Since the enactment of MCL 691.1203(3); MSA 14.528(203)(3), this Court has repeatedly addressed the question whether attorney fees are assessable costs under the mepa. The first case to mention the issue, Taxpayer & Citizens in the Public Interest v Dep’t of State Hwys, 70 Mich App 385; 245 NW2d 761 (1976), has been cited by subsequent cases for the proposition that an award of attorney fees was authorized by this subsection. See Superior Public Rights, Inc v Dep’t of Natural Resources, 80 Mich App 72; 263 NW2d 290 (1977), Three Lakes Ass’n v Kessler, 101 Mich App 170; 300 NW2d 485 (1980), and Dafter Twp v Reid, 131 Mich App 283; 345 NW2d 689 (1983). A panel of this Court adopted the opposite position in Oscoda Chapter of PBB Action Committee, Inc v Dep’t of Natural Resources, 115 Mich App 356; 320 NW2d 376 (1982). The Piller decision agreed with the reasoning in the PBB case and held that an award of costs pursuant to MCL 691.1203(3); MSA 14.528(203)(3) could not include attorney fees. We are now asked to revisit the issue on the basis of the arguments raised in this appeal.
For us, the issue presents a question of statutory interpretation. The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Golf Concepts v Rochester Hills, 217 Mich App 21;_NW2d_(1996). The Legislature is presumed to intend the meaning plainly expressed in a statute, and judicial construction is not allowed where the plain and ordinary meaning of the language is clear. Id.
Here, MCL 691.1203(3); MSA 14.528(203) (3) states that “[c]osts may be apportioned to the parties if the interests of justice require.” The word “costs,” when used in a legal context, is a word that has a distinct meaning that is different than the meaning of the word in everyday parlance. MCL 600.2401; MSA 27A.2401 provides that the taxation of costs related to a legal proceeding is regulated by statute or court rule. MCL 600.2405; MSA 27A.2405 then defines which items may be taxed and awarded as costs as follows:
The following items may be taxed and awarded as costs unless otherwise directed:
(6) Any attorney fees authorized by statute or by court rule.
Thus, by statutory definition, costs do not include attorney fees except when specifically authorized by . statute or court rule. In addition, our Supreme Court has held that attorney fees ordinarily are not recoverable at common law and can be awarded only where a statute specifically so provides. Matras v Amoco Oil Co, 424 Mich 675, 695; 385 NW2d 586 (1986).
The issue then is reduced to deciding whether the Legislature intended to create a statutory exception to the above definition of costs by the enactment of MCL 691.1203(3); MSA 14.528(203)(3). A panel of this Court in Oscoda, supra, concluded that it did not. The panel concluded that “[w]hile the statute permits apportionment of costs, it does not purport to alter the ordinary definition of ‘costs’ or to allow taxation of costs for items which may not be taxed as costs in ordinary civil actions.” Id. at 362. We have no basis upon which to challenge the accuracy of the Oscoda panel’s conclusion.
When the mepa is examined in the context of other environmental legislation, it is apparent that the Legislature understands the significance of the word “costs” because in other environmental legislation the Legislature has specifically provided for the payment of attorney fees. For example, § 10 of the Water Resources Commission act, MCL 323.10; MSA 3.529(1), provides for a discretionary award of reasonable attorney fees and costs to the prevailing party. Similarly, § 48 of the Hazardous Waste Management Act, MCL 299.548; MSA 13.30(48), allows a trial court to award costs of litigation, including reasonable attorney fees, to a party if appropriate.
In these instances, the Legislature has expressly provided for the recovery of attorney fees. The MEPA, conspicuously devoid of any similar provisions, cannot be read to authorize them. Thus, we are constrained to agree with Piller that costs under the MEPA do not include attorney fees.
Plaintiff claims that previous MEPA cases, such as Taxpayers, supra, and the cases that rely upon Taxpayers, have established a rule of common-law that an award of costs under the MEPA includes attorney fees. Accordingly, plaintiff asks us to disregard the statutory nature of costs and find that the inclusion of attorney fees as costs in these early cases has created a common-law precedent that we should follow. While our Supreme Court in Ray v Mason Co Drain Comm’r, 393 Mich 294, 306; 224 NW2d 883 (1975), recognized that the Legislature “left to the courts the important task of giving substance to the standard by developing a common law of environmental quality,” this common law of environmental quality refers not to the meaning to be afforded well-defined legal terms such as “costs,” but rather to inteipreting what constitutes environmental pollution or impairment. Thus, we find that the concept of a common law of environmental quality, as stated in Ray, does not encompass misinterpretations of terms of art such as “costs” and does not support plaintiffs position.
Plaintiff also alleges that the Piller decision contravenes the doctrine of stare decisis. However, before Piller, this Court had issued opinions deciding the issue both ways. The Piller panel found that the holding in Taxpayer, as it relates to attorney fees, was essentially dicta and concluded that the reasoning of the PBB case was more persuasive. Furthermore, before Administrative Order No. 1990-6, prior opinions of this Court were not binding on subsequent panels addressing the same issue. Consequently, for purposes of stare decisis, the Piller case, as the first case addressing the issue since 1990, represents the precedent-setting opinion and the one we are bound to follow.
Lastly, plaintiff argues that, as a matter of public policy, this Court should disagree with the Piller opinion because to hold that citizens who initiate environmental cases cannot recover attorney fees will have a chilling effect on such litigation. Although we are completely sympathetic to plaintiffs concern in this regard, we believe that this is a policy matter to be resolved by the Legislature, and not by this Court. As the statutory sections at issue are now written, we have no choice but to conclude that the Legislature did not intend for attorney fees to be recoverable under the mepa.
Affirmed.
At the time plaintiff’s suit was filed, the mepa was codified at MCL 691.1201 et seq.; MSA 14.528(201) et seq. During the time this appeal was pending, those sections were repealed and the mepa was moved to MCL 324.1701 et seq.; MSA 13A.1701 et seq. The provision at issue in this appeal was not altered substantively in any way. For the remainder of this opinion, the mepa will be referred to under its former codification. | [
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] |
Per Curiam.
Plaintiff appeals as of right from a judgment of no cause of action entered following a jury trial. We reverse and remand for a new trial.
Plaintiff was the owner of a business known as Mr. Ted’s Lounge. On February 22, 1991, plaintiff purchased a fire insurance policy from defendant that covered Mr. Ted’s Lounge. On May 27, 1991, Mr. Ted’s Lounge was destroyed by a fire. Subsequent investigation established that the fire had been intentionally set. Plaintiff notified defendant of the loss, but defendant denied the claim on the basis of fraud, false swearing, and arson.
On December 11, 1991, plaintiff filed a complaint claiming that he was entitled to the insurance proceeds for the loss of his property and the interruption of his business. Defendant raised the affirmative defenses of arson, fraud, and false swearing.
Trial began on December 2, 1993. The jury found that defendant had not established that plaintiff set or procured the setting of the fire. However, the jury also found that plaintiff had misrepresented and concealed material facts or committed fraud and false swearing. The trial court entered a judgment of no cause of action. Plaintiff’s motion for a new trial was denied.
i
Plaintiff first raises several claims of defects in the jury instructions. However, plaintiff did not object to the instructions at trial. To preserve for review an issue concerning a jury instruction, a party must object on the record before the jury retires to deliberate. MCR 2.516(C). This Court will review an unpreserved issue concerning an error in jury instruction only when necessary to prevent manifest injustice. Phillips v Deihm, 213 Mich App 389, 403; 541 NW2d 566 (1995). Manifest injustice results where the defect in instruction is of such magnitude as to constitute plain error, requiring a new trial, or where it pertains to a basic and controlling issue in the case. Joba Construction Co, Inc v Burns & Roe, Inc, 121 Mich App 615, 639; 329 NW2d 760 (1982).
A
Plaintiff argues that the trial court erred in instructing the jury that defendant had the burden of proving its affirmative defense of fraud and false swearing by a preponderance of the evidence. Plaintiff asserts that the jury should have been instructed that the defendant had to prove fraud by clear and convincing evidence.
In reaching its decision, the trial court relied on Campbell v Great Lakes Ins Co, 228 Mich 636, 638; 200 NW 457 (1924). In Campbell, the Supreme Court held that when an insurer raises fraud and false swearing as an affirmative defense, it is only required to prove the misconduct by a preponderance of the evidence. Id. at 640-641. The Supreme Court has not overruled or otherwise modified its holding in Campbell. Notwithstanding this fact, plaintiff argues that the trial court erred in instructing the jury that defendant’s affirmative defense of fraud and false swearing had to be proved by a preponderance of the evidence because more recent Michigan case law holds that the proper burden of proof for allegations of fraud is clear and convincing evidence.
For many years, in actions at law, the Supreme Court upheld jury instructions stating that fraud must be proved by a preponderance of the evidence. See McNaughton v Smith, 136 Mich 368, 377, 381; 99 NW 382 (1904); Hinchman v Weeks, 85 Mich 535, 545-546; 48 NW 790 (1891). Furthermore, the Court rejected instructions that required a greater degree of proof than preponderance of the evidence. See Silverstone v London Assurance Corp, 176 Mich 525, 533; 142 NW 776 (1913); Sweeney v Devens, 72 Mich 301, 303-304; 40 NW 454 (1888); Watkins v Wallace, 19 Mich 56, 76 (1869).
In other cases in which jury instructions were not at issue, the Court required fraud to be established by a preponderance of the evidence. See Columbus Pipe & Equipment Co v Sefansky, 352 Mich 539, 545; 90 NW2d 492 (1958); Essenburg v Russell, 346 Mich 319, 325; 78 NW2d 136 (1956); Kirk v Vaccaro, 344 Mich 226, 231; 73 NW2d 871 (1955); Howard v Reaume, 310 Mich 119, 125; 16 NW2d 686 (1944).
However, in Grimshaw v Aske, 332 Mich 146, 157; 50 NW2d 866 (1952), the Court stated, without citing any authority, that fraud “must be affirmatively established by clear and convincing evidence.” The next year the Court, relying on Grimshaw, again stated that fraud must be established by clear and convincing evidence in Tel-Craft Civic Ass’n v Detroit, 337 Mich 326, 332; 60 NW2d 294 (1953). In 1959, the Court stated in Vargo v Ihlenfeldt, 359 Mich 265, 268; 102 NW2d 550 (1960), that fraud “must be proved clearly and convincingly,” but cited only the trial court opinion in support of the proposition.
In equity cases, the Supreme Court also has been inconsistent. In some cases, the Court has stated that fraud must be proved by clear and convincing evidence. See Flynn v Korneffel, 451 Mich 186, 199; 547 NW2d 249 (1996); Margolis v Benton, 343 Mich 34, 38; 72 NW2d 213 (1955); see also Broaden v Doncea, 340 Mich 564; 66 NW2d 216 (1954) (requiring “clear and satisfactory proof”); Buck v Sherman, 2 Doug 176, 182 (Mich, 1845) (stating that proof of fraud must be “so clear and conclusive as to leave no rational doubt upon the mind as to its existence”). In other equity cases, the Court has required that fraud be proved only by a preponderance of the evidence. See Franko v Olszewski, 316 Mich 485, 491; 25 NW2d 593 (1947); Goodrich v Waller, 314 Mich 456, 461; 22 NW2d 862 (1946); Collins v Norris, 314 Mich 145, 148; 22 NW2d 249 (1946); Fahey v Pell, 310 Mich 280, 281; 17 NW2d 183 (1945); Steele v Shaffer, 241 Mich 632, 633-634; 217 NW 777 (1928); Allison v Ward, 63 Mich 128, 138; 29 NW 528 (1886). In still other cases, the Court has merely stated that “convincing” evidence was required, or that fraud must be “clearly proved,” without further elaborating on the burden of proof.
Perhaps the clearest example of the confusion in Michigan case law regarding the question of the burden of proof in fraud cases can be found in Modern Displays, Inc v Hennecke, 350 Mich 67; 85 NW2d 80 (1957). In Modern Displays, a case sounding in both law and equity, the Court quoted both standards, on the same page, with apparent approval. See id. at 73.
In recent years, Hi-Way Motor Co v Int’l Harvester Co, 398 Mich 330; 247 NW2d 813 (1976), and its progeny have generally been relied upon for the burden of proof in fraud cases. In Hi-Way Motor, the Court stated that fraud must be established by “clear, satisfactory and convincing evidence.” Id. at 336. Unfortunately, in the Hi-Way Motor opinion, the Supreme Court did not overrule its previous cases holding that fraud had to be proved by a preponderance of the evidence. In fact, the opinion made, no mention of them. In Jim-Bob, Inc v Mehling, 178 Mich App 71, 90; 443 NW2d 451 (1989), and Gorman v Soble, 120 Mich App 831, 840; 328 NW2d 119 (1982), this Court cited Hi-Way Motor in support of statements that fraud must be proved by “clear, satisfactory and convincing evidence,” without noting any conflict with precedent.
After considering the above, we are unable to say with any degree of certainty exactly what standard of proof courts should apply in fraud cases.* * The Supreme Court has alternately required fraud to be established by a preponderance of the evidence and by clear and convincing proof, with little consistency and no detailed analysis. While the most recent Supreme Court pronouncements regarding the question have stated that fraud must be proved by clear and convincing evidence, we think it unlikely that the Supreme Court would overrule a significant body of case law without at least mentioning that it was doing so.
Therefore, unless and until the Supreme Court offers us additional guidance on this issue, we cannot find that the trial court erred in relying on Campbell, supra. In Campbell, the Supreme Court addressed the identical issue that is presented in the present case. The Supreme Court has never overruled Campbell. Accordingly, the trial court properly followed Campbell and instructed the jury that defendant had to prove its defense of fraud and false swearing by a preponderance of the evidence. Hence, manifest injustice did not result.
B
Plaintiff also contends that the trial court erred in instructing the jury that certain statements he made regarding his financial status were material. Plaintiff argues that this issue should have been decided by the jury rather than the trial court.
The trial court advised the jury as follows:
I instruct you that the facts relating to the status of the plaintiff’s debts, including debts with the City of Detroit, State of Michigan, Comerica Bank, attempts to sell the business and [the] financial condition of George Mina and Mr. Ted’s Lounge are material.
The insurer’s defense of “false swearing” is an allegation that the insured submitted fraudulent proof of loss. Fraud or false swearing implies something more than mistake of fact or honest misstatements on the part of the insured. It may consist of knowingly and intentionally stating upon oath what is not true, or stating a fact to be true although the declarant does not know if it is true and has no grounds to believe that it is true. In order to prevail, the insurer must prove not only that the swearing was false, but also that it was done knowingly, wilfully, and with intent to defraud. Fraud cannot be established from the mere fact that the loss was less than was claimed in the preliminary proofs furnished to the insurer. Campbell, supra at 638; Foreman v Badger Mutual Ins Co, 169 Mich App 772, 775; 426 NW2d 808 (1988).
To void a policy because the insured has wilfully misrepresented a material fact, an insurer must show that (1) the misrepresentation was material, (2) that it was false, (3) that the insured knew that it was false at the time it was made or that it was made recklessly, without any knowledge of its truth, and (4) that the insured made the material misrepresentation with the intention that the insurer would act upon it. Rayis v Shelby Mutual Ins Co of Shelby Ohio, 80 Mich App 387, 393; 264 NW2d 5 (1978). A statement is material if it is reasonably relevant to the insurer’s investigation of a claim. Dadurian v Underwriters at Lloyd’s, London, 787 F2d 756, 759-760 (CA 1, 1986); Fine v Bellefonte Underwriters Ins Co, 725 F2d 179, 183 (CA 2, 1984), cert den 469 US 874 (1985).
Defendant contends that the evidence set forth at trial clearly established that plaintiffs statements regarding the financial condition of Mr. Ted’s Lounge were false. However, after reviewing the record, we cannot conclude that the evidence was overwhelmingly in defendant’s favor. Reasonable minds could differ with respect to whether plaintiff deliberately made misrepresentations to defendant and whether those misrepresentations, if any, were reasonably relevant to defendant’s investigation of plaintiff’s claim. Accordingly, the trial court erred in instructing the jury that plaintiff’s statements regarding his finances were material. Because the erroneous instruction pertained to a basic and controlling issue in the case, we conclude that manifest injustice resulted. Joba Construction Co, supra. Accordingly, we reverse the jury verdict and remand for a new trial.
n
Because of our resolution of the previous issue, it is not necessary to address plaintiff’s other issues. However, because it is likely to come up again at a new trial, we briefly address plaintiff’s claim that the trial court erred in granting defendant’s motion to exclude evidence of plaintiff’s postfire payments to creditors. We review a trial court’s evidentiary rulings for an abuse of discretion. Koester v Novi, 213 Mich App 653, 663; 540 NW2d 765 (1995). An abuse of discretion exists when the result is so palpably and grossly violative of fact and logic that it evidences perversity of will or the exercise of passion or bias rather than the exercise of discretion. Dacon v Transite, 441 Mich 315, 329; 490 NW2d 369 (1992).
Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401; Koester, supra. Plaintiff argued to the trial court that he wished to introduce evidence that he paid his creditors after the fire to show that he was not insolvent at the time of the fire.
We conclude that the trial court did not abuse its discretion in ruling that the proffered evidence was not relevant. Defendant’s defenses were that plaintiff set, or procured the setting of, the fire and that plaintiff swore falsely regarding the proof of his loss. Thus, only evidence of plaintiff’s financial condition at the time of the fire would be relevant. Evidence that plaintiff paid bills after the fire does not prove that he was solvent when the fire occurred. Moreover, such evidence does not shed light on plaintiff’s state of mind at the time of the fire.
Reversed and remanded for a new trial.
In support of its statement that clear and convincing evidence is the proper standard of proof in fraud cases, the Court cited Marble v Butler, 249 Mich 276; 228 NW 677 (1930), and Palmer v Palmer, 194 Mich 79, 81; 160 NW 404 (1916). However, Marble makes no mention of the burden of proof borne by one alleging fraud, and Palmer states only that fraud must be “clearly proved.” See Palmer, supra at 81.
See, e.g., Gardner v Gardner, 311 Mich 615; 19 NW2d 118 (1945); Zimmerman v Feldman, 217 Mich 390; 186 NW 495 (1922).
See, e.g., Palmer, supra at 81; Campau v Lafferty, 50 Mich 114, 117; 15 NW 40 (1883).
Hi-Way Motor involved an action at law. As support for the statement that fraud must be established by “clear, satisfactory and convincing evidence,” the Court cited Youngs v Tuttle Hill Corp, 373 Mich 145, 147; 128 NW2d 472 (1964), an equity case. In Higgins v Kenneth R Lawrence, DPM, PC, 107 Mich App 178, 184; 309 NW2d 194 (1981), this Court also relied on Youngs in stating that fraud must be proved by clear, satisfactory, and convincing evidence. The Youngs Court relied on another equity case, A & M Land Development Co v Miller, 354 Mich 681; 94 NW2d 197 (1959), overruled in part on other grounds in Lenawee Co Bd of Health v Messerly, 417 Mich 17, 29; 331 NW2d 203 (1982). In turn, A & M Land Development cited three cases: Columbus Pipe, supra, Marshall v Ullman, 335 Mich 66; 55 NW2d 731 (1952), and Candler v Heigho, 208 Mich 115; 175 NW 141 (1919), overruled in part on other grounds in United States Fidelity & Guaranty Co v Black, 412 Mich 99, 120-121; 313 NW2d 77 (1981). None of these cases state that “clear and convincing evidence” is necessary to prove fraud. Rather, all three cases state that fraud must be proved to “a reasonable degree of certainty.” Columbus Pipe, supra at 544; Marshall, supra at 74; Candler, supra at 121. Moreover, in Columbus Pipe, the Court reversed the judgment because the findings of the trial court were “against the clear preponderance of the evidence.” Columbus Pipe, supra at 545.
The unsettled state of Michigan law regarding the burden of proof in fraud cases was noted in Disner v Westinghouse Electric Corp, 726 F2d 1106, 1112-1115 (CA 6, 1984) (Contie, J., dissenting).
See Flynn, supra-, Hi-Way Motor, supra.
We note that the trial court did allow plaintiff to testify concerning why certain bills had not been paid at the time of the fire. | [
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] |
Marilyn Kelly, J.
Defendant Cottman Transmission Systems, Inc. appeals from grants of partial summary disposition for plaintiffs in two cases, consolidated on appeal. Cottman asserts that plaintiff Leonardo Martino’s action for rescission is barred by res judicata, because a prior Pennsylvania judgment should be given full faith and credit by Michigan courts. It argues that plaintiffs Martino and Trans One II, Inc., failed to state a cause of action for rescission under MCL 445.1531; MSA 19.854(31), because Pennsylvania rather than Michigan law controls the franchise agreement. Cottman asserts that plaintiffs have unclean hands which bar their claim for rescission. Finally, it alleges that issues of material fact remain unresolved, precluding summary disposition. We affirm in part and remand for further findings.
i
Cottman is a Pennsylvania corporation which licenses automotive transmission service centers in various states. Due to financial problems, Cottman and A-l Transmissions entered into an agreement where Cottman would offer existing A-l franchisees the opportunity to convert to Cottman Transmission franchises. The converted franchises would operate as A-l/Cottman Transmission Centers. Cottman also agreed to manage all franchise services on behalf of A-l for franchisees who opted not to convert. Upon signing the agreement with A-l Transmissions, Cottman held meetings with the A-l franchisees. Cottman provided plaintiffs with a modified Uniform Transmission Offering Circular, but did not give them a separate Michigan Circular. Plaintiffs converted to an A-1/Cottman franchise.
In December, 1991, Cottman allegedly discovered that Martino was underreporting his gross sales and defrauding Cottman of licensing and advertising fees. On March 3, 1992, Cottman filed a lawsuit against Martino in Pennsylvania for breach of the franchise contract. Instead of responding to the complaint, Martino filed this action for rescission. He claimed that Cottman failed to provide proper notice that certain of its contract’s provisions are void and unenforceable under Michigan law, as required by MCL 445.1508(3); MSA 19.854(8)(3). Meanwhile, a default judgment was entered against Martino in the Pennsylvania action.
In this case, the trial court granted Martino’s motion for summary disposition, holding Cottman failed to comply with MCL 445.1508(3); MSA 19.854(8)(3) and MCL 445.1531(2); MSA 19.854(31)(2). It granted plaintiffs’ request for a rescission.
n
We review a trial court’s grant of summary disposition de novo examining the record 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).
Defendant argues that res judicata bars Martino’s action for rescission. The doctrine of res judicata is applied broadly. It includes issues which the parties sought to have adjudicated as well as “every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at that time.” Van Pembrook v Zero Mfg Co, 146 Mich App 87, 100-101; 380 NW2d 60 (1985).
Cottman instituted the Pennsylvania action for breach of the franchise contract. It alleged that Martino was systematically underreporting his gross sales and defrauding Cottman. The cause of action in Michigan seeks rescission of the franchise agreement for Cottman’s failure to provide proper notice as required by the Michigan Franchise Investment Law (MFIL), MCL 445.1501 et seq.) MSA 19.854(1) et seq. A different set of proofs is required for each of the two causes. Moreover, the subject matter is different. As a consequence, res judicata does not bar plaintiffs’ claim for rescission. Van Pembrook, supra at 101.
Nor does plaintiffs’ failure to raise rescission as a counterclaim to the Pennsylvania complaint bar this action. The full faith and credit clause of the federal Constitution requires that judgments be given the same full faith and credit in every court within the United States as they have by law or usage in the courts of such State from which they are taken. US Const, art IV, § 1. Its purpose is to prevent the litigation of issues in one state that have already been decided in another. Van Pembrook, supra at 104.
Were the issue before us the enforcement of the Pennsylvania judgment, we would conclude that the judgment must be enforced. Int’l Recovery Systems, Inc v Gabler (On Rehearing'), 210 Mich App 422, 424; 527 NW2d 20 (1995). However, the issue before us today, notwithstanding the Pennsylvania judgment, is whether plaintiffs are nevertheless entitled to rescission.
We find that the full faith and credit clause in conjunction with res judicata does not preclude plaintiffs’ action for rescission. Plaintiffs’ rescission claim is grounded in Michigan’s franchise statute. Pennsylvania’s laws contain no analogous right. Therefore, because the Pennsylvania court did not apply Michigan law in deciding the breach of contract action, plaintiffs could not have raised Michigan’s statutory remedy of rescission. In effect, plaintiffs would have to forfeit the claim. The full faith and credit clause does not compel such a result. See Van Pembrook, supra at 104-105.
The dissent argues that plaintiffs could have brought a fraud claim in Pennsylvania or attempted to change venue to Michigan. However, the issue before us today is not what could have been done differently in Pennsylvania, but rather, whether plaintiffs’ rescission claim is barred. The hypotheticals posed by the dissent are irrelevant to the issue before us.
Finally, we must determine whether Pennsylvania’s, rather than Michigan’s, franchise laws should be given effect out of comity.
We are hesitant to overrule Michigan law where the laws of another state would contravene Michigan’s public policy. The public policy of this state is fixed by its constitution, its statutes and the decisions of its courts. Van Pembrook, supra at 105.
The mfil has deemed that certain contractual provisions are void and unenforceable as between franchisors and franchisees. MCL 445.1508(1) and (3); MSA 19.854(8)(1) and (3). The provisions are found in MCL 445.1527; MSA 19.854(27). Included is the requirement that, at least ten business days before executing a franchise agreement, the franchisor must notify the prospective franchisee of contractual provisions which the statute renders unenforceable.
Pennsylvania law contains no such requirement. If we were to apply Pennsylvania’s law in ruling on this Michigan case, we would effectively override Michigan’s law. The effect would be to abrogate plaintiffs’ right to rescind. We find that Pennsylvania law should not be given preclusive effect where it would nullify the law of this state as expressed in the MFU.
m
Alternatively, defendant argues that Pennsylvania law must be followed, because the franchise agreement stated that Pennsylvania law controlled the franchise agreement.
In a similar situation, the Michigan Supreme Court ruled that, when determining the applicable law, we are required to balance the expectations of the parties with the interests of the States. Chrysler Corp v Skyline Industrial Services, Inc, 448 Mich 113, 125; 528 NW2d 698 (1995). In doing so, the Court adopted, as guidelines, §§ 187 and 188 of the Second Restatement of Conflicts.
Section 187(1) permits the application of the parties’ choice of law if the issue is one the parties could have resolved by an express contractual provision. However, there are two exceptions. The parties’ choice of law will not be followed if (1) the chosen state has no substantial relationship to the parties or the transaction, or (2) there is no reasonable basis for choosing that state’s law. Section 187(2)(a). Also, § 187(2)(b) bars the application of the chosen state’s law when it “would be contrary to the fundamental policy of a state which has a materially greater inter est than the chosen state in the determination of the particular issue, and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.”
Here, we find compelling evidence that, in this state, Michigan has a materially greater interest than Pennsylvania in applying its franchise laws. A fundamental policy may be embodied in a statute which (1) makes one or more kinds of contracts illegal or (2) which is designed to protect a person against the oppressive use of superior bargaining power. Comment g to § 187 of the Restatement 2d, p 568. As gleaned from the mfil, Michigan’s notice requirements are designed to make certain contract provisions illegal and to protect potential franchisees from the superior bargaining power of franchisors.
Applying Pennsylvania, rather than Michigan, law would result in a substantial loss of protection provided by the mfil. As franchisors under Pennsylvania law do not have to provide the notice required by the MFIL, Pennsylvania’s franchise law violates the fundamental public policy of Michigan. Therefore, Michigan law, not Pennsylvania law, applies.
IV
Cottman asserts that, if Michigan law applies, plaintiffs’ claim for rescission is foreclosed by their own unclean hands and material breach of the franchise agreement. We find that no language in the statute suggests that the fact a franchisee’s hands are unclean is considered in deciding whether to allow rescission. Moreover, in Interstate Automatic Trans mission Co, Inc v Harvey this Court allowed rescission even though the franchisee was being sued for failure to pay royalties in violation of the franchise agreement. We did not require that the franchisee have clean hands before allowing rescission. We will not impose the requirement of clean hands on a franchisee where the mfil gives a franchisee an unqualified right to rescission upon a franchisor’s violation of the mfil.
The dissent relies on Stanton v Dachille for the proposition that “absent express legislative instruction to the contrary, a trial court should not grant rescission unless the party requesting it is blameless.” However, Stanton does not stand for that proposition. Stanton involves a generic contract case. It does not mention the absence of legislative instruction. It does not involve a situation, such as is present here, where rescission is a remedy afforded by statute.
v
Even so, Cottman argues that there are genuine issues of material fact as to whether plaintiffs have established a claim for rescission, precluding summary disposition. Cottman argues that a factual question exists concerning whether this was a sale or the voluntary transfer of a franchise. The mfil provides an exemption from its notice requirements where “(t)here is an extension or renewal of an existing franchise or the exchange or substitution of a modified or amended franchise agreement where there is no interruption in the operation of the franchise busi ness of the franchisee, and no material change in the franchise relationship.” MCL 445.1506(l)(e); MSA 19.854(6)(l)(e).
Here, the evidence showed that the A-l franchise was terminated, and a new agreement was negotiated and signed. The identity of the franchisor changed. We find that no reasonable person could conclude that a material change did not occur in the relationship.
VI
Next, defendant argues that a material question of fact existed as to whether plaintiffs waited unduly before seeking rescission. In Interstate, supra, we allowed rescission, even though two years had passed. We ruled that the franchisor was entitled to recover the fair value of benefits provided to the franchisee during the time the agreement was in place. In this case, we find that any delay on plaintiffs’ part in seeking rescission did not create a genuine issue of material fact.
vn
Finally, Cottman argues that a question of fact exists as to whether Cottman was returned to the status quo ante. Following the trial court’s grant of summary disposition for plaintiffs on the issue of rescission, it ordered that Cottman be returned to its existing state before the contract. At the August 14, 1992 hearing, the trial court directed the parties to submit proposed orders detailing the amounts owed to Cottman by plaintiffs, in order to properly effectuate the pre-contract status quo. Although orders were submitted, the final disposition of the issue is unclear. Therefore, we remand this matter to the trial court with the direction that it return Cottman to the status quo ante. Interstate Automatic Transmission Co, supra at 502-503.
Affirmed in part and remanded. We do not retain jurisdiction.
J. R. Cooper, J., concurred.
134 Mich App 498; 350 NW2d 907 (1984).
186 Mich App 247; 463 NW2d 479 (1990). | [
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Per Curiam.
This case arose out of litigation regarding a trust created by the decedent, William W. Freeman. Following the disposition of the case by the Washtenaw County Probate Court, the law firm of Kantner & Associates appealed the probate court’s ruling regarding payment of attorney fees from the trust account. Appellant argues that its legal work for relatives of the decedent involved the trust and, therefore, the lower court should have ordered that full compensation for the law firm’s services be taken from funds in the trust. We find that this Court lacks jurisdiction to hear this matter and, thus, dismiss appellant’s appeal.
John Freeman, the son of the decedent, was formerly married to Dianne Freeman Scharrer, with two male children resulting from the marriage. Following their divorce, Scharrer retained physical custody of the boys. In 1990, Scharrer hired attorney Robert W. Roddis of appellant law firm, Kantner & Associates. In addition to performing other legal work for Scharrer, Roddis was asked to protect the interests of the two minor children with respect to the trust formed by the decedent. Roddis represented the two boys regarding their interests until August 4, 1993. At that time, the probate court found that the two children of John Freeman and Dianne Freeman Scharrer should be represented by an independent counsel and, thus, appointed a guardian ad litem for the minor boys.
By stipulation, the parties to the probate court lawsuit agreed regarding the construction of the trust left by the decedent. Decedent’s original inter vivos trust was construed as two subtrusts; a marital trust and a family trust. The original trust was divided, in part, to permit the estate to take maximum advantage of the marital deduction for federal estate tax purposes. The majority of the estate was transferred to the marital trust, while the amount in the family trust was not to exceed $640,000. The parties to the probate corut proceedings further agreed that the guardian ad litem’s legal fees, the tax attorney’s legal fees, and the accountant’s fees would be paid from one of the resulting trusts. The parties stipulated that the probate court would decide what proportion of Scharrer’s legal bills, which were owed to appellant, would be paid out of the trusts.
On October 4, 1994, the probate court held a hearing at which Roddis testified. He stated that he was initially hired by Scharrer to represent her in a family law matter, but that she also asked him to represent her and her children regarding their rights in the trust left by the decedent. Roddis further testified that he advised his client that he would attempt to have his fees paid from the estate or the trusts, but that ultimately she would be responsible for the fees.
On November 23, 1994, the probate court entered an order that the family trust would pay one half of appellant’s fees that were incurred by Dianne Freeman Scharrer regarding her sons’ interest in the trusts. Scharrer and the law firm then filed a petition to amend the order, but the probate court affirmed its order apportioning the attorney fees. On January 4, 1995, Roddis’ law firm, Kantner & Associates, filed this appeal, seeking full payment from the trusts for its legal fees regarding the representation of the minor sons of Scharrer. On July 12, 1995, appellees moved to dismiss the appeal, and on August 8, 1995, appellant moved to add Dianne Freeman Scharrer as a party to the appeal. A previous panel of this Court denied both motions. Unpublished order of the Court of Appeals, entered December 27, 1995 (Docket No. 182083). Appellees now contend that, because appellant was not a party aggrieved by the probate court’s order, this Court has no jurisdiction to hear the appeal. We agree and dismiss the appeal.
MCR 7.203 provides in relevant part:
(A) Appeal of Right The court has jurisdiction of an appeal of right filed by an aggrieved party from the following:
* * *
(2) A judgment or order of a court or tribunal from which appeal of right to the Court of Appeals has been established by law. [Emphasis added.]
Under MCR 7.203, the term “aggrieved party” is defined as “one whose legal right is invaded by an action, or whose pecuniary interest is directly or adversely affected by a judgment or order. It is a party who has an interest in the subject matter of the litigation.” 6 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed, 1992), authors’ comment regarding Rule 7.203, § 1, pp 138-139. “[I]f a person has not been represented at trial and the judgment of the [lower] court directly affects the interests of the person, that person will be considered an aggrieved party on appeal. Such persons clearly have an interest in the subject matter of the litigation.” Michigan Court Rules Practice, supra at § 1, p 139. Thus, we must determine whether the law firm has an interest in the subject matter of the litigation, i.e., decedent’s estate and the two trusts. Under the Revised Probate Code, MCL 700.1 et seq.; MSA 27.5001 et seq., the law firm is not an heir to decedent’s estate, MCL 700.6(3); MSA 27.5006(3), is not a devisee from decedent’s will, MCL 700.4(2); MSA 27.5004(2), is not a distributee, MCL 700.4(5); MSA 27.5004(5), and is not a beneficiary of either trust, MCL 700.3(2); MSA 27.5003(2). In addition, a lawyer is forbidden by the Michigan Rules of Professional Conduct from acquiring a proprietary interest in a cause of action or the subject matter of litigation. MRPC 1.8Q). Accordingly, the law firm does not have, and ethically may not acquire, an interest in the subject matter of the litigation. Thus, the law firm is not an “aggrieved party” pursuant to MCR 7.203, and it lacked standing to file this appeal.
The finding that this Court lacks jurisdiction to hear this appeal is further supported by MCL 600.308; MSA 27A.308:
(1) The court of appeals has jurisdiction on appeals from the following orders and judgments which shall be appealable as a matter of right:
XXX
(b) Those orders of the probate court from which an appeal as of right may be taken under section 861 [MCL 600.861; MSA 27A.861],
MCL 600.861(a); MSA 27A.861(a) states that a party to a proceeding in the probate court may appeal the following, as a matter of right, to the Court of Appeals:
A final order affecting the rights or interests of any interested person in an estate or trust.
As noted above, the Michigan Rules of Professional Conduct forbid a lawyer from acquiring a proprietary interest in a cause of action or the subject matter of litigation. MRPC 1.8®. Accordingly, appellant could not ethically acquire a “right or interest” in the estate or trusts, and thus it could not meet the requirements of the statute. Because appellant could not comply with MCL 600.861; MSA 27A.861, this Court lacks jurisdiction to hear this matter.
Although it may appear that the law firm’s pecuniary interest was directly affected or has been adversely affected by the probate court’s decision, such a position assumes that the fees must be paid by the estate or the trusts. Under the American rule, in the absence of a statute to the contrary, each party in a lawsuit is responsible to pay its own attorney fees. Howard v Canteen Corp, 192 Mich App 427, 437; 481 NW2d 718 (1992). Thus, because there is no statute requiring the estate to pay her legal fees, Dianne Freeman Scharrer, the individual who hired appellant, was responsible for its fees. The law firm’s sole pecuniary interest lay in collecting its fees. Appellant would gain no benefit by having its fees paid from one of the trusts as opposed to receiving its payment from Scharrer. Thus, the law firm is not a party aggrieved by the probate court’s ruling, and it lacks standing to proceed in this matter. The only person who was potentially aggrieved by the probate court’s order of payment of attorney fees was Scharrer. Because the allegedly aggrieved individual was not a party to this appeal, this Court lacks jurisdiction over the matter.
With respect to the order apportioning payment of legal fees from the family trust, appellant was not an “aggrieved party” pursuant to MCR 7.203. In addition, appellant was forbidden from acquiring an interest in the decedent’s estate or trusts and thus could not comply with the standing requirement of MCL 600.861; MSA 27A.861. Accordingly, appellant’s claim is dismissed for lack of jurisdiction.
Dismissed. | [
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Fitzgerald, J.
In this medical malpractice action arising out of the death of plaintiffs thirty-year-old wife from complications arising from undiagnosed diabetes, plaintiff appeals as of right the trial court’s finding that MCL 600.2169(1); MSA 27A.2169(1) is constitutional and that plaintiff’s only expert, Dr. Mark Robia, did not meet the qualifications set forth in the statute to testify against defendant Reuben D. Eliuk, D.O. The trial court also held that, if the issue of competency was resolved solely under MRE 702, plaintiff’s expert would be qualified to testify. In this case of first impression, plaintiff appeals the trial court’s dismissal of the claim against Dr. Eliuk.
The parties agree that the Supreme Court’s rule-making power in matters of practice and procedure is superior to that of the Legislature. Const 1963, art 6, § 5. The rules of practice and procedure include the rules of evidence. Perin v Peuler (On Rehearing), 373 Mich 531, 541; 130 NW2d 4 (1964); Mumaw v Mumaw, 124 Mich App 114, 120; 333 NW2d 599 (1983). The parties also agree that a statutory rule of evidence not in conflict with the Michigan Rules of Evidence remains effective until superseded by rule or decision of the Supreme Court. MRE 101. Despite their rhetoric, the parties also agree that MCL 600.2169(1); MSA 27A.2169(1) prevents, and was intended to prevent, some experts from testifying in malpractice cases who would have been able to testify if their qualifications had been tested solely under MRE 702. The narrow issue presented, therefore, is whether the Supreme Court’s adoption of MRE 702 precludes the Legislature from enacting a statute that imposes additional competency requirements beyond those listed in the court rule for qualification of an expert.
The general rule in Michigan regarding qualification of expert witnesses is MRE 702:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
In 1986, the Michigan Legislature passed a series of bills commonly referred to as the tort reform acts of 1986. One of the acts established new and more stringent standards for the qualification of expert witnesses in medical malpractice actions:
(1) In an action alleging medical malpractice, if the defendant is a specialist, a person shall not give expert testimony on the appropriate standard of care unless the person is or was a physician licensed to practice medicine or osteopathic medicine and surgery or a dentist licensed to practice dentistry in this or another state and meets both of the following criteria:
(a) Specializes, or specialized at the time of the occurrence which is the basis for the action, in the same specialty or a related, relevant area of medicine or osteopathic medicine and surgery or dentistry as the specialist who is the defendant in the medical malpractice action.
(b) Devotes, or devoted at the time of the occurrence which is the basis for the action, a substantial portion of his or her professional time to the active clinical practice of medicine or osteopathic medicine and surgery or the active clinical practice of dentistry, or to the instruction of students in an accredited medical school, osteopathic medical school, or dental school in the same specialty or a related, relevant area of health care as the specialist who is the defendant in the medical malpractice action. [MCL 600.2169; MSA 27A.2169. ]
In determining whether there is a real conflict between a statute and a court rule, both should be read according to their plain meaning, Buscaino v Rhodes, 385 Mich 474, 481; 189 NW2d 202 (1971), and the common-sense meaning of the words should be given the effect most likely understood by those who adopted them. Id.
First, the conflict between § 2169 and MRE 702 is readily apparent. The plain language of MRE 702 grants the trial court discretion to qualify a witness as an expert if the expert possesses the requisite “knowledge, skill, experience, training or education.” By contrast, the trial court may not exercise discre tion under § 2169(2) unless the competency requirements of § 2169(1) are met.
Second, in giving effect to the common-sense meaning of each provision, the evidentiary rule clearly embodies the same determination made by the Michigan Legislature that expert testimony is required to establish the standard of care in a medical malpractice case. However, the evidentiary rule does not exclude experts who are qualified by their knowledge, skill, experience, training, or education, from testifying against a specialist solely because the expert does not specialize in the same or a related area of medicine as the defendant and does not devote a substantial portion of professional time to the practice or instruction of the same or a related area of medicine as the defendant. While the statute barred the qualification of Dr. Robia as an expert in the present case, the trial court determined that Dr. Robia would have been qualified as an expert under the evidentiary rule.
Thus, it is evident that the two provisions are not redundant, but rather reflect two different approaches in determining the qualification of an expert as a witness. Inasmuch as the two provisions stand at odds, the evidentiary rule must be found to supersede § 2169(1). See, e.g., Mumaw, supra (this Court found a direct conflict between a statute that declared that a spouse was incompetent to testify on the issue of adultery in a divorce action and a court rule declaring that all persons are competent to testify), and Dahn v Sheets, 104 Mich App 584; 305 NW2d 547 (1981) (this Court found a conflict between the dead man’s stat ute and the court rule regarding competence to testify). Thus, to the extent that § 2169(1) conflicts with the procedural mandates of MRE 702, it is unconstitutional.
We disagree with the dissent’s conclusion that cases such as People v Adair, 452 Mich 473; 550 NW2d 505 (1996), have narrowed Perm's holding that the Supreme Court’s rule-making power in matters of practice and procedure is superior to that of the Legislature. In Adair, the Court was not confronted with a conflict between the rape-shield statute (which calls for exclusion of evidence of past sexual conduct not incident to the alleged sexual assault when the probative value is merely outweighed by prejudicial consideration) and MRE 403 (which calls for the exclusion of probative evidence when “substantially” outweighed by prejudicial considerations). Rather, in analyzing the statute as a backdrop to a determination of the meaning of the word “past” in the rape-shield statute, the Court noted that the Legislature determined that past sexual conduct is legally irrelevant and inadmissible as a matter of law. Id. at 482. The Court was not confronted with the issue that is presented in the instant case. Further, MRE 101 merely echoes Const 1963, art 6, § 5, which gives the Supreme Court rule-making power in matters of practice and procedure.
The dissent suggests that it is “antimajoritarian” in a republican form of government for the judiciary to declare unconstitutional an act of the Legislature. We vehemently disagree. Const 1963, art 3, § 2 provides: “The powers of government are divided into three branches: legislative, executive, and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” The three branches of government are equal and independent. The constitution has given the Supreme Court rule-making power in matters of practice and procedure. Const 1963, art 6, § 5. Where the Legislature exercises powers belonging to the Supreme Court by enacting a statutory rule of evidence in conflict with an existing rule of evidence, it acts unconstitutionally. There is nothing antimajoritarian about the judiciary so declaring.
On cross appeal, defendant argues that the trial court abused its discretion in finding that Dr. Robia was qualified to testify as an expert under MRE 702. We disagree.
A party offering the testimony of an expert must demonstrate the witness’ knowledge of the applicable standard of care. Bahr v Harper-Grace Hosps, 448 Mich 135, 141; 528 NW2d 170 (1995). The plaintiff bears the burden of showing that his expert possesses the necessary learning, knowledge, skill, and experience to testify. Siirila v Barrios, 398 Mich 576, 591; 248 NW2d 171 (1976). A trial court’s decision to qualify a witness as an expert is reviewed for an abuse of discretion. Bahr, supra at 141.
Dr. Robia testified to the trial court’s satisfaction regarding his qualifications and familiarity, based on education and training, with the standard of care applicable to an internist. The trial court noted that Dr. Robia is board-certified in internal medicine. Dr. Robia actively practiced as an internist until 1982 and currently spends a small percentage of his professional time in consultation. Dr. Robia regularly keeps abreast of the medical literature and testified that he is aware of the applicable standard of care for an internist. Given Dr. Robia’s knowledge, experience, education, and training, we cannot conclude that the trial court abused its discretion in finding Dr. Robia qualified to testify as an expert under MRE 702.
Affirmed in pari and reversed in pari.
R D. Houk, J., concurred.
Circuit judge, sitting on the Court of Appeals by assignment.
Plaintiff stipulated that Dr. Robia did not meet the qualifications set forth in the statute because he did not specialize in the field of internal medicine at the time of the proceedings below or at the time of the alleged malpractice.
1986 PA 178, effective October 1, 1986.
The statute was subsequently further amended to require that an expert who testifies against a specialist must specialize in the same field, not merely in a related relevant area. Also under the amendment an expert may not testify in a medical malpractice action against a board-certified specialist unless the witness is also board-certified in the same specialty and during the year preceding the occurrence a majority of the witness’ time was devoted to either the clinical practice or the teaching of that particular specialty. MCL 600.2169(lXb)(i) and (ii); MSA 27A2169(l)(b)(i) and (ii).
MCL 600.2169(2); MSA 27A.2169(2). | [
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Neff, J.
Defendant pleaded guilty of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to twenty-five to fifty years’ imprisonment and two years’ imprisonment for the respective convictions. Defendant appealed, claiming that the prosecutor breached the sentencing agreement by recommending a sentence of twenty-five years for the armed robbery conviction, which represented the top end of the guidelines’ minimum sentence range, instead of honoring an alleged promise to make a general recommendation of a sentence of five to twenty-five years. This Court found that the record was somewhat ambiguous with regard to the parties’ intent and that the true nature of the prosecutor’s promise was inadequately developed. The case was then remanded to the trial court for a determination of the actual terms of the agreement regarding the prosecutor’s intent and for resentencing if the trial court concluded that the prosecutor’s promise was breached. People v Swirles, 206 Mich App 416; 522 NW2d 665 (1994). On remand, the trial court found no violation of the sentencing agreement. Defendant appeals as of right, and we affirm.
i
The first question on appeal is whether the trial court properly interpreted the ambiguity in the sentencing agreement on the basis of the evidentiary hearing held on remand. In reviewing this issue, we are mindful that the agreement must be reviewed in the context of its function to serve the administration of justice. People v Jackson, 192 Mich App 10, 15; 480 NW2d 283 (1991). Contractual analogies may be applied in the context of a plea agreement, although strict adherence to contractual theories and principles peculiar to commercial transactions may not be applicable. Id.; People v Walton, 176 Mich App 821, 825; 440 NW2d 114 (1989). In other words, contractual theories will not be applied if to do so would subvert the ends of justice. Id.
The cardinal rule of contract interpretation is to ascertain the parties’ intent. Rasheed v Chrysler Corp, 445 Mich 109, 127, n 28; 517 NW2d 19 (1994). A valid contract requires a meeting of the minds, meaning mutual assent with respect to all the material facts. Kamalnath v Mercy Memorial Hosp Corp, 194 Mich App 543, 548; 487 NW2d 499 (1992).
In the prior appeal, this Court found ambiguous the prosecutor’s statement at the plea hearing that he would make a “ ‘sentence recommendation that the defendant receive an initial sentence within that recommended by the sentencing guidelines as determined by the court at the time of sentencing.’ ” Swirles, supra, p 418. Specifically, this Court determined that it could not resolve whether this statement indicated an intent to recommend generally that defendant’s sentence fall within the guidelines’ range or whether it evinced an intent to recommend a specific sentence that would fall within the guidelines’ range. Id.
A
Because the trial court’s interpretation of the ambiguity in the sentencing agreement was a factual issue, we will review the trial court’s decision under the clearly erroneous standard. MCR 6.001(D) and MCR 2.613(C). A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made. People v Passeno, 195 Mich App 91, 103; 489 NW2d 152 (1992).
B
At the evidentiary hearing held on remand, the prosecutor gave testimony regarding his understanding of the agreement and his negotiations with defendant’s attorney. The prosecutor testified that he understood the agreement to mean that he was free to argue any sentence within the guidelines. The pros ecutor also testified that he understood defendant’s biggest concern to be that, in light of sentences that defendant had already received in other cases, he receive no more than twenty-five years’ imprisonment. However, the prosecutor would not agree to a twenty-five-year cap on the minimum sentence because he believed that the guidelines’ minimum sentence range might be higher than he and defense counsel anticipated, and he did not want to be restricted from recommending a stiffer sentence.
The only other witness to testify at the evidentiary hearing was defendant. Defendant’s testimony regarded his efforts during the relevant period to negotiate sentences in three counties. Most notably, defendant admitted that he understood that the recommendation from the prosecutor’s office in this case would be any number that satisfied the guidelines’ range.
c
Limiting this analysis to the factual record developed in the lower court, we conclude that defense counsel and defendant acquiesced in the prosecutor’s interpretation of the sentencing agreement by not objecting to the recommendation made by the prosecutor at sentencing. See Hague v DeLong, 282 Mich 330, 333; 276 NW 467 (1937).
In any event, considering the factual record as a whole, we conclude that the parties reached a meeting of the minds that the minimum sentence would fall within the guidelines’ minimum sentence range, as determined by the trial court at sentencing, but that the prosecutor was nonetheless free to argue at sentencing for any minimum sentence within the guidelines’ minimum sentence range. Therefore, upon applying general contract principles for construing ambiguous agreements and having due regard for the fact that a plea agreement must also be reviewed in light of its function to serve the administration of criminal justice, we hold that the trial court did not err in finding that the prosecutor complied with the sentencing agreement.
D
Defendant also argues that, although he failed to call his attorney as a witness, additional support for his construction of the sentencing agreement can be found by presuming that his attorney would have interpreted the agreement as containing a prosecutorial promise to make a general recommendation because, without such a promise, his attorney allegedly would have rendered ineffective assistance of counsel. We find no merit in this argument.
When ineffective assistance of counsel is claimed in the context of a plea, the pertinent inquiry is whether the defendant tendered the plea voluntarily and understandingly. People v Bordash, 208 Mich App 1; 527 NW2d 17 (1994). The instant issue does not turn on whether defendant’s attorney rendered effective assistance of counsel, but rather on how the sentencing agreement entered into by defendant and the prosecutor should be interpreted. In other words, defendant did not argue below, and does not argue on appeal, that some failure by his trial counsel kept him from understanding the plea to which he agreed. Indeed, defendant testified at the evidentiary hearing that he understood the sentencing agreement to be that which the prosecutor argues it to be. Accord ingly, we find that defendant’s counsel was not ineffective.
n
Next, we disagree with defendant’s contention that the outcome of this case is governed by People v Nixten, 183 Mich App 95; 454 NW2d 160 (1990), and its progeny.
A
Were it not for the fact that the holding in Nixten was affirmed by a post-Administrative Order No. 1990-6 case, People v Shuler, 188 Mich App 548; 470 NW2d 492 (1991), we would overturn its holding. We find that a statement like the one made in Nixten, that the prosecutor will recommend a sentence “not to exceed” a certain number of years, or “not more than” a certain number of years, is most properly understood as a promise that the recommendation at sentencing will be any number including and below the number stated. In other words, if the prosecutor states, “I will recommend a sentence not to exceed eight years,” we would conclude that statement is plainly understood as a promise that any number of years, eight or below, will be recommended. To follow the rule set forth in Nixten would render an appearance by the prosecutor at the sentencing hearing meaningless because the prosecutor would be precluded from making any statement other than the one made at the plea hearing.
We also disagree with the Nixten Court’s conclusion that the prosecutor’s sentencing recommendation somehow limits the trial court’s sentencing discretion. Nixten, supra, p 99. To the contrary, a sentencing recommendation is just that, a recommendation, and in no way does it restrict the sentencing court’s discretion. The only potential limit to the court’s sentencing discretion is the plea agreement itself, but the court is free to disregard the agreement as long as it affords the defendant the opportunity to withdraw his guilty plea. See People v Killebrew, 416 Mich 189, 208-210; 330 NW2d 834 (1982).
B
In any event, we find Nixten and its progeny to be distinguishable from this case. In Nixten, supra, p 98, this Court determined that the prosecutor’s agreement to recommend a minimum sentence not to exceed eight years was breached when the prosecutor recommended a sentence of seven years, eleven months, and twenty-eight days. This Court concluded that the prosecution breached its promise because, although it agreed to recommend a general sentence, it recommended a specific one, and thereby “unnecessarily restricted the court’s discretion and left unfulfilled the prosecution’s assurance of leniency.” Id., p 99.
Here, by contrast, the prosecutor at the plea hearing indicated that he would recommend a sentence within the guidelines. This is not a general promise similar to the one in Nixten, but a promise that some specific number, within the guidelines, will be recommended. We conclude that defendant could not have fairly interpreted the prosecutor’s statement as a statement of leniency, nor could the sentencing court have believed that the prosecutor would make no recommendation at sentencing other than to simply restate the guidelines’ range.
Accordingly, we agree with the trial court that Nixten and its progeny do not control the outcome of this case.
m
In view of our holding that the sentencing agreement was not breached, we need not consider the prosecutor’s suggestion that we revisit this Court’s prior decision in this case, and we hold pursuant to People v Grant, 445 Mich 535; 520 NW2d 123 (1994), that defendant was not entitled to relief because he did not demonstrate plain error. We note in passing that Grant was decided before this Court rendered a decision in defendant’s prior appeal and that the prosecutor has failed to show any reason for not applying the law of the case doctrine to the question whether the lack of a defense objection at sentencing should preclude appellate review. Freeman v DEC Int’l, Inc, 212 Mich App 34, 37-38; 536 NW2d 815 (1995). However, if this issue was properly before us, we would require an objection as a prerequisite to appellate review for the reasons set forth in the concurring opinion in Swirles, supra, pp 419-420, at least in a case where there is ambiguity in the sentencing agreement and, hence, no plain error.
Affirmed.
Doctoroff, C.J. concurred.
Fitzgerald, J., I concur in the result only.
The sentencing guidelines’ range was five to twenty-five years.
436 Mich lxxxiv. Administrative Order No. 1990-6 was extended several times, and has now been replaced by Administrative Order No. 1996-4. | [
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Per Curiam.
Following a jury trial, defendant, Richard Halliday, D.D.S., was found liable to plaintiff, Angela Marie Becker, for dental malpractice. Plaintiff appeals as of right from the circuit court’s posttrial refusal to award costs and attorney fees pursuant to MCR 2.403. Defendant cross appeals, alleging that the plaintiff’s appeal is barred because the plaintiff and her attorney signed a satisfaction of judgment that expressly provided that all “interests, costs, and attorney fees” were included. We affirm the circuit court’s ruling for the reasons stated herein.
Plaintiff sued Dr. Halliday for dental malpractice, alleging that the defendant negligently injected local anesthesia into her upper jaw in such a manner as to cause the needle of the syringe to break off and lodge in her upper jaw. The claim was mediated, resulting in an evaluation of $150,000, which both parties rejected. Before trial, numerous attempts at settlement proved unsuccessful. On May 10, 1994, plaintiff received a jury award of $200,000.
On May 27, 1994, plaintiff filed a motion for costs and attorney fees. Oral arguments on the motion were heard on June 13, 1994. On July 7, 1994, both plaintiff and her counsel signed a satisfaction of judgment, which was entered on July 15, 1994. Thereafter, on July 22, 1994, the trial court denied the plaintiff’s request for mediation penalties, including interest and attorney fees.
Plaintiff argues on appeal that the trial court’s denial of attorney fees was an abuse of discretion. In response, defendant cross appeals, arguing that the satisfaction of judgment precludes a subsequent award of attorney fees.
The general rule states that a satisfaction of judgment is the end of proceedings and bars any further effort to alter or amend the final judgment. See Ideal Furnance Co v Int’l Molders’ Union of North America, 204 Mich 311; 169 NW 946 (1918). However, there are exceptions to this rule. In Wolhfert v Kresge, 120 Mich App 178; 327 NW2d 427 (1982), this Court addressed whether a plaintiff had waived her right to appeal when she accepted payment and signed a satisfaction of judgment in a wrongful death action. This Court held that a party who accepts satisfaction in whole or in part waives the right to maintain an appeal or seek review of the judgment for error, as long as the appeal or review might result in putting at issue the right to the relief already received. On the other hand, there is no waiver of appeal where the appeal addresses an issue collateral to the benefits already accepted. Id.
The case at hand falls squarely within the Wohlfert exception. The amount already received by the plaintiff will not be relitigated. Plaintiff’s appeal addresses solely whether plaintiff is entitled to additional costs and attorney fees as provided under court rule. Therefore, this Court must determine whether plaintiff is entitled to seek appeal of the circuit court’s order denying costs and attorney fees when both plaintiff and her counsel signed a satisfaction of judgment that expressly provided that it included “all interests, costs, and attorney fees.”
This is an issue of first impression in Michigan. Therefore, to answer this inquiry, we must be guided, first, by the principles underlying satisfaction of judgment, and, second, by the judicial policy of furthering the intentions and legitimate expectations of the parties. The principle guiding enforcement of a satisfaction of judgment is the promotion of certainty and finality. A satisfaction of judgment extinguishes the claim and, as discussed previously, may be reviewed on a very limited basis. Next, it is judicial policy to further the intent and expectations of the parties. The intent of any party entering into a satisfaction of judgment generally extends to the entire claim. These were the factors considered by the Colorado Supreme Court in its well-reasoned decision in Dooley v Cal-Cut Pipe & Supply, Inc, 197 Colo 362, 364; 593 P2d 360 (1979), which also addressed the issue presently before this Court.
In the case at hand, plaintiff and her counsel signed a satisfaction of judgment that expressly provided that attorney fees were included. The language was unqualified and unequivocal. Had the plaintiff intended not to release the claim relating to any attorney fees she might be entitled to under court rule, the satisfaction of judgment could have been so limited. No such limiting phrases were used. Because the plaintiff had already filed her motion for costs and attorney fees at the time the satisfaction of judgment was entered, it is reasonable to assume that the intent of the parties was to preclude any pending motions.
Therefore, we hold that when parties enter into a satisfaction of judgment that expressly provides that it includes costs and attorney fees, there is a waiver of any additional costs or attorney fees to which a party may be entitled under the court rules. This result is consistent with that of other jurisdictions addressing this issue. See id. at 365; Johnson v BMW of North America, Inc, 583 So 2d 133 (Ala, 1991); Acadian Bank of Thibodaux v Bates, 470 So 2d 898 (La App, 1985); Ashley v Atlantic Richfield, 794 F2d 128 (CA 3, 1986); Wakefield v Mathews, 852 F2d 482 (CA 9, 1988).
Affirmed. Defendant’s cross appeal is dismissed as moot.
Circuit judge, sitting on the Court of Appeals by assignment.
Because the plaintiff may have been entitled to actual costs pursuant to MCR 2.403 and MCR 2.405, the earlier rejection under MCR 2.405 would have controlled. Freysinger v Taylor Supply Co, 197 Mich App 349, 354; 494 NW2d 870 (1992). | [
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Per Curiam.
Defendant Progressive Casualty Insurance Company appeals as of right orders of the Wayne Circuit Court granting plaintiff Jason Gold-stein’s and defendant United Services Automobile Association Insurance Company’s (usaa) motions for summary disposition. We affirm.
Plaintiff, a college student from another state, was injured when the car in which he was a passenger was involved in a head-on collision on 1-94 in Detroit. The vehicle in which plaintiff was riding was registered in New Jersey and insured by defendant USAA. Plaintiff also claimed coverage under a liability insurance policy issued by defendant Progressive to his father, who resided in Maryland. Plaintiff had also resided in Maryland in his parents’ home before attending college in St. Louis, Missouri.
Pursuant to MCL 500.3163; MSA 24.13163, both insurers had filed a certification with the State of Michigan subjecting them to Michigan’s no-fault insurance act if any insureds were involved in accidents in this state. Plaintiff filed applications to receive personal injury protection (pip) benefits under the no-fault act with both insurers and was rejected by both. Progressive claimed that plaintiff was not covered under his father’s policy, and USAA claimed that Progressive was the party responsible for coverage. Plaintiff then filed this declaratory judgment action against both Progressive and usaa in order to determine liability for first-party no-fault benefits. Both plaintiff and usaa filed motions for summary disposition pursuant to MCR 2.116(C)(10). After finding that, as a matter of law, plaintiff was covered by the Progressive policy at the time of the accident and was domiciled at his parents’ home, the trial court determined that plaintiff and USAA were entitled to summary disposition and that Progressive was responsible for paying plaintiff’s pip benefits.
i
Progressive first argues that the trial court erred in granting plaintiff’s and USAA’s motions for summary disposition and finding that Progressive could be liable for plaintiff’s no-fault benefits under MCL 500.3163; MSA 24.13163. Section 3163 provides, in pertinent part:
(1) An insurer authorized to transact automobile liability insurance and personal and property protection insurance in this state shall file and maintain a written certification that any accidental bodily injury or property damage occurring in this state arising from the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle by an out-of-state resident who is insured under its automobile liability insurance policies, shall be subject to the personal and property protection insurance system set forth in this act.
An insurer becomes liable under § .3163 when (1) it is certified in Michigan, (2) there exists an automobile liability policy between the nonresident and the certified carrier, and (3) there is a sufficient causal relationship between the nonresident’s injuries and the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. Transport Ins Co v Home Ins Co, 134 Mich App 645, 651; 352 NW2d 701 (1984). Here, Progressive challenges only the second and third conditions.
With regard to the second condition, Progressive argues that plaintiff was not a covered insured under the policy issued by Progressive to plaintiff’s father and no other policy between plaintiff and Progressive existed. Specifically, Progressive argues that because plaintiff was not covered under the bodily injury liability section of the policy at issue, plaintiff should not be considered to be “insured under its automobile liability insurance polic[y]” and, therefore, Progressive is not liable for no-fault benefits pursuant to § 3163. We disagree. Whether plaintiff is covered under the bodily injury section of the policy, which would provide coverage in situations where the insured incurs legal responsibility to another and is liable as a tortfeasor, is wholly irrelevant in our opinion because that exclusion has no applicability to this case, in which plaintiff is attempting to recover only for personal injuries.
We reject Progressive’s attempt to equate the Legislature’s use of the term “automobile liability insurance policies” in § 3163 to a requirement that an injured party trying to collect pip benefits be covered under the tort liability portion of a policy that, like the instant policy, includes the injured party as a covered insured under different sections of the policy. Such an interpretation is too narrow and would negate the apparent intent of § 3163, which is to guarantee that insured nonresidents injured in Michigan are protected against economic losses to the same extent as Michigan residents. See Jones v State Farm Mutual Automobile Ins Co, 202 Mich App 393, 407; 509 NW2d 829 (1993). Here, plaintiff was covered under other sections of the policy, including a section concerning payment for personal injuries. Looking at the policy as a whole, instead of focusing on the different areas of coverage as Progressive suggests, it is clear that plaintiff was insured under an automobile liability policy issued by Progressive.
Progressive also challenges the third condition by denying that plaintiff was “using” the vehicle at the time of the accident. Progressive argues that plaintiffs mere presence in the vehicle as a passenger cannot constitute “use” of the vehicle sufficient to trigger coverage under § 3163. Again, we disagree. In Michigan Mutual Ins Co v Dowell, 204 Mich App 81; 514 NW2d 185 (1994), this Court determined that a reasonable interpretation of the word “use” of an automobile under the no-fault act included riding in a vehicle as a passenger for transportation purposes. Because no one disputes that plaintiff was riding in the vehicle as a passenger for purposes of transportation, we believe that the third condition for imposing liability upon Progressive was also met.
Because all three conditions for subjecting Progressive to liability under § 3163 were met, we believe that the trial court correctly concluded that no genuine issue of material fact existed. Summary disposition with regard to this issue was properly granted.
n
Progressive next argues that the trial court erred in determining that no genuine issue of material fact existed regarding whether plaintiff was domiciled in the same household as his parents. While Progressive is correct in asserting that if plaintiff were not domiciled in the same household as his parents, usaa would be responsible for paying plaintiff’s no-fault benefits pursuant to the priority established by MCL 500.3114; MSA 24.13114, the facts do not support such a finding. Accordingly, the trial court did not err in finding that plaintiff was domiciled in his parents’ home for the purpose of determining priority.
The determination of domicile is a question of fact to be resolved by the trial court, and this Court will not reverse the trial court’s determination unless the evidence clearly preponderates in the opposite direction. Bronson Methodist Hosp v Forshee, 198 Mich App 617, 631; 499 NW2d 423 (1993). The relevant factors to be considered in determining whether a person is domiciled in the same household as the insured include: (1) the subjective or declared intent of the person to remain in the place contended to be the domicile; (2) the formality of the relationship between the person and the members of the household; (3) whether the place where the person lives is the same house, within the same curtilage, or upon the same premises; and (4) the existence of another place of lodging by the person alleging residence. Workman v DAIIE, 404 Mich 477, 496-497; 274 NW2d 373 (1979). When considering whether a child is domiciled with the child’s parents, other relevant indicia of domicile include: (1) whether the child continues to use the parents’ home as the child’s mailing address; (2) whether the child maintains some possessions with the parents; (3) whether the child uses the parents’ address on the child’s driver’s license or other documents; (4) whether a room is maintained for the child at the parents’ home, and (5) whether the child is dependent upon the parents for support. Dairlyand Ins Co v Auto-Owners Ins Co, 123 Mich App 675, 682; 333 NW2d 322 (1983).
Here, the evidence indicated that plaintiff kept the majority of his personal possessions at his parents’ home in Maryland, used his parents’ address on his Maryland driver’s license, had his own bedroom at his parents’ home, which remained empty in his absence, and returned to Maryland during holiday breaks and between school years. The evidence further established that plaintiff was financially dependent upon his parents, who were paying for his college education, and that plaintiff’s father claimed him as a dependent on his tax returns.
Given the above evidence, we cannot say that the evidence clearly preponderates in the opposite direction. Consequently, we find no error in the trial court’s determination that plaintiff was domiciled with his parents at the time of the accident. Summary disposition was properly granted on this issue as well.
Affirmed.
Usaa concedes that if Progressive is not subject to liability under the terms of § 3163, then it would be liable for plaintiffs no-fault coverage. However, if Progressive as well as usaa are covered by § 3163, then the priority provisions of MCL 500.3114; MSA 24.13114 mandate that Progressive be responsible for plaintiffs coverage if plaintiff is domiciled with his parents. Accordingly, Progressive challenges both the applicability of § 3163 and plaintiffs domicile, which will be discussed in issue n.
We note that another panel of this Court reached a similar conclusion in American States Ins Co v USAA Casualty Ins Corp, unpublished opinion per curiam of the Court of Appeals, issued May 23, 1994 (Docket No. 146539). | [
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] |
Doctoroff, C.J.
This case involves a golf course proposed by Robert A. Kuras, the owner of the Homestead Resort in Glen Arbor Township. Kuras seeks to develop an eighteen-hole golf course on property contiguous to the resort. The area proposed for the development includes wetlands and portions of land along the Crystal River. Plaintiff, Friends of Crystal River (focr), opposes the issuance of a proposed construction permit by defendant Department of Natural Resources (dnr). Plaintiff argues that the proposed construction would violate the Wetland Protection Act (wpa), MCL 281.701 et seq.; MSA 18.595(51) et seq., and the Michigan Environmental Protection Act (MEPA), MCL 691.1201 et seq.; MSA 14.528(201) et seq.
The Homestead is a resort covering approximately 492 acres, including over a mile of frontage on Lake Michigan and approximately 3.6 miles of shoreline of the Crystal River. The resort contains over four hundred condominium units, over fifty single-family homesites, and seventy-seven hotel rooms. In addition, there are restaurants, clay tennis courts, platform tennis courts, swimming pools, and numerous specialty shops on the property. However, Kuras argues that, because of the increasing popularity of golf as a vacation attraction, the Homestead has lost business to its competitors, each of which possesses at least one eighteen-hole golf course on its resort premises. Kuras determined that, in order to remain competitive with the other upscale resorts in northern Michigan, the Homestead would have to construct an eighteen-hole, championship golf course that would be contiguous to the resort. Kuras also sought to construct the golf course to attract more visitors in the spring and fall, when the weather is less conducive to beach and water activities. In the past, the Homestead had attempted to associate with preexisting golf courses located in the area, but the distances to the courses and the Homestead’s lack of control over course availability proved too problematic.
Six different locations were considered for the new golf course. However, the options were limited by unavailability of land, lack of access, or distance from the resort. In order to make the Homestead competitive in the marketplace, Kuras sought a course location that was contiguous to the resort property. According to Kuras, the site that was eventually chosen was the only feasible, contiguous location available. Kuras hired golf course architect Robert Walker to design the course. Although both Kuras and Walker sought to minimize environmental disturbance, the proposed golf course required that 3.68 acres of wetlands be filled.
On January 5, 1988, Kuras filed a permit application with the dnr, pursuant to the wpa, seeking permission to fill portions of wetland area during construction of the golf course. This original application was denied because of Kuras’ failure to demonstrate that no feasible and prudent alternatives to filling the wetlands existed and to show that an unacceptable disruption of aquatic resources would not occur. Kuras then submitted additional studies to the dnr regarding the potential effect on aquatic resources and the lack of an alternate site. The dnr agreed with Kuras that there were no feasible and prudent alternatives to building the course on the proposed site, but the DNR found that an unacceptable disruption of aquatic resources would occur unless certain conditions were met during the construction and operation of the golf course. After negotiations, Kuras and the dnr signed a draft permit and a proposed consent judgment applicable to several cases in the Leelanau Circuit Court in which Kuras sought judicial review of dnr actions. Under the consent judgment, Kuras agreed to comply with certain environmental safeguards during the construction and operation of the facility. However, because there had been no administrative hearing, the Leelanau Circuit Court refused to enter the consent judgment and eventually dismissed the actions.
Thereafter, the Michigan United Conservation Clubs (MUCC) filed an action in the Ingham Circuit Court, seeking to block the issuance of a permit to Kuras. The trial court remitted the case to the dnr for development of the record with regard to all issues. On June 7, 1989, plaintiff FOCR was granted intervenor status by dnr Hearing Referee William C. Fulkerson. Following extensive administrative hearings, the hearing referee issued an exhaustive, eighty-eight-page proposal for decision on August 27, 1990, recommending that the dnr issue the proposed permit to Kuras. On November 14, 1990, the Natural Resources Commission (nrc) affirmed the proposal of the hearing referee and adopted it as its findings of fact and conclusions of law. On March 11, 1992, the mucc was dismissed as a party. The case then returned to the trial court, which issued an opinion on April 14, 1994, affirming the findings of the NRC and the hearing referee. Plaintiff now appeals, claiming that the proposed development would violate the wpa and the mepa. We affirm.
Plaintiff first contends that the trial court erred in affirming the hearing referee’s findings with respect to the wpa. Under the wpa, the court was required to determine whether a proposal that would affect wetlands “is in the public interest” and whether the “permit is necessary to realize the benefits derived from the activity.” MCL 281.709(1); MSA 18.595(59)(1). In determining whether a proposed activity is in the public interest, the benefit that reasonably may be expected to accrue from the proposal is to be balanced against the reasonably foreseeable detriments of the activity. MCL 281.709(2); MSA 18.595(59)(2).
Undisputed testimony showed that the project would benefit the public by stabilizing year-round employment levels and increasing tourism. However, another factor to be considered when determining the public interest is the “availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity.” MCL 281.709(2)(b); MSA . 18.595(59)(2)(b) (emphasis added). Similarly, MCL 281.709(4); MSA 18.595(59)(4) states that if a proposal involves wetland disruption, a permit will not be issued unless the applicant shows either that the proposed activity is primarily dependent on being located in the wetland or that a feasible and prudent alternative does not exist. In the context of the WPA, the term “feasible and prudent alternative” has not been defined by the statute or the courts.
This Court has had the opportunity to interpret the phrase “feasible and prudent alternative” as used in the MEPA, MCL 691.1203(1); MSA 14.528(203)(1). Wayne Co Dep’t of Health v Olsonite Corp, 79 Mich App 668, 700-706; 263 NW2d 778 (1977). In that case, this Court adopted language from federal courts that had defined “feasible” and “prudent” in other contexts and applied the same definitions to the terms in § 3(1) of the mepa. However, we find that the definitions set forth in Olsonite are inapplicable to the simi lar phrase in the WPA. In Olsonite, this Court interpreted language of the mepa that shifted the burden of proof to the defendant when asserting an affirmative defense to a charge of pollution. Id. at 701. The portions of the WPA containing the “feasible and prudent” language merely involve questions of alternative options to wetland disruption, and do not implicate issues of affirmative defenses or burden shifting. MCL 281.709(2)(b); MSA 18.595(59)(2)(b), MCL 281.709(4); MSA 18.595(59) (4). Because of the differing context of the phrase as it is used in § 3(1) of the mepa, the Olsonite interpretation of “reasonable and prudent” is inapplicable to our inquiry under the WPA.
In addition, in interpreting the language of § 3(1) of the mepa, the Olsonite panel expressly rejected the notion that the phrase “prudent alternative” requires a comprehensive balancing of competing interests. Olsonite, supra at 705. Conversely, the WPA expressly requires that “the benefit which reasonably may be expected to accrue from the proposal shall be balanced against the reasonably foreseeable detriments of the activity.” MCL 281.709(2); MSA 18.595(59)(2) (emphasis added). It is clear that the “feasible and prudent” language of § 3(1) of the mepa, which was interpreted in Olsonite, bears little resemblance to the same language in the WPA, which we are now called to construe. Thus, Olsonite offers little guidance for interpretation of the instant statute.
Thus, we are left with the task of giving meaning to the phrase “feasible and prudent alternative” as used in the WPA. Our duty is to identify and effectuate the intent of the Legislature and, if necessary, interpret language that does not on its face reveal legislative intent. Piper v Pettibone Corp, 450 Mich 565, 571; 542 NW2d 269 (1995). A fundamental rule of statutory construction is that the Legislature is presumed to have intended the plain meaning of words used in a statute. Attorney General v Sanilac Co Drain Comm’r, 173 Mich App 526, 531; 434 NW2d 181 (1988). Because the words “feasible” and “prudent” are not defined by the statute, an acceptable method of determining intent is to refer to a dictionary for the common usage of the words. Nelson v Grays, 209 Mich App 661, 664; 531 NW2d 826 (1995). A “feasible” alternative is one that is “capable of being put into effect or accomplished; practicable” or “capable of being successfully utilized; suitable.” Funk & Wagnalls Standard Dictionary (1980). “Prudent” is defined as “exercising sound judgment.” Id.
In Ray v Mason Co Drain Comm’r, 393 Mich 294; 224 NW2d 883 (1975), the Court noted the Legislature’s imprecise language in the area of environmental regulation:
The Legislature in establishing environmental rights set the parameters for the standard of environmental quality but did not attempt to set forth an elaborate scheme of detailed provisions designed to cover every conceivable type of environmental pollution or impairment. Rather, the Legislature spoke as precisely as the subject matter permits and in its wisdom left to the courts the important task of giving substance to the standard by developing a common law of environmental quality. [Id. at 306.]
Given the flexibility offered the courts by Ray, and using the dictionary definitions above, we find that defendant met his burden of showing that there existed no “feasible and prudent” alternative to the proposed golf course. Kuras’ goal in proposing the golf course was to reduce the seasonality of the resort and to increase its competitiveness in the marketplace, where each other destination resort possessed at least one contiguous eighteen-hole golf course. The evidence showed that much of the property near the Homestead was owned by the National Park Service or the Department of the Interior, was underwater, or was otherwise unavailable. Kuras demonstrated that, in order to be competitive with other northern Michigan destination resorts, the Homestead golf course needed to be contiguous to the resort as opposed to several miles away. The evidence at the administrative hearing established that the proposed site was the only location that could accomplish Kuras’ goals of being competitive in the marketplace and reducing the seasonality of the resort. Accordingly, we find that Kuras satisfied his burden of showing the lack of “availability of feasible and prudent alternative locations.” MCL 281.709(2)(b); MSA 18.595(59)(2)(b). In accomplishing Kuras’ legitimate objectives, no other location was “practicable,” “suitable,” or “capable of being successfully utilized,” nor would building the course in another location constitute the “exercis[e] [of] sound judgment.” Funk & Wagnalls Standard Dictionary (1980).
Having found that construction of the golf course was in the public interest, and no feasible and prudent alternatives existed, the next question is whether Kuras showed that “an unacceptable disruption will not result to the aquatic resources.” MCL 281.709(4); MSA 18.595(59)(4). We find that Kuras satisfied his burden. Charles Wolverton of the dnr spent an “unprecedented” sixteen days reviewing the site of the proposed golf course. Wolverton suggested over ninety revisions to Kuras’ plan, which revisions were designed to minimize the effect on wetlands. Each suggested change was incorporated into the course design. Although the golf course construction would necessitate the destruction of 3.68 acres of wetlands, 6.63 acres of new wetlands were to be created in mitigation. Expert testimony indicated that such mitigation would more than compensate for the lost wetlands. In addition, on the subject property, approximately eighty-four acres of wetlands would remain in their natural state.
The evidence further indicated that construction and maintenance of the golf course would not negatively affect the wetlands or the nearby Crystal River. The course was intentionally designed to prevent pesticide and fertilizer runoff into the river and surrounding waters, and a buffer zone was included between the course and the river. In proposing to issue a permit to Kuras, the dnr imposed conditions that were aimed at preventing disruption of aquatic resources. The scope of these conditions went beyond restrictions on the course construction to include regulation of the golf course operations. After extensive studies of the proposed chemicals, soil, grass type, and course design, DNR experts, as well as those hired by Kuras, agreed that the effect of any potential migration of nutrients or pesticides would be negligible. Thus, Kuras met his statutory burden of showing that no unacceptable disruption of the aquatic resources would occur during the construction and maintenance of the proposed golf course. MCL 281.709(4); MSA 18.595(59)(4).
Plaintiff next argues that Kuras should not be granted a permit under the wpa because the statute requires that the proposal be “otherwise lawful.” MCL 281.709(1); MSA 18.595(59)(1). Plaintiff contends that Kuras has not yet received a permit under the Water Resources Commission act (WRCA), MCL 323.1 et seq.; MSA 3.521 et seq., or a federal permit from the United States Corps of Engineers, and thus has not shown that the project is “otherwise lawful.” However, the wpa does not require that all other permits be first obtained before a party may seek a permit under the statute, and plaintiff cites no authority for its position. Thus, plaintiff’s argument is waived. In re Powers, 208 Mich App 582, 588; 528 NW2d 799 (1995). Plaintiff contends that the quality of the Crystal River would be degraded by the proposed project, thus violating the WRCA, 1986 AACS, R 323.1098(9), and causing the project not to be “otherwise lawful.” However, the evidence from the administrative hearing demonstrated that the proposed project would have little, if any, negative ecological effect. There has been no showing that the proposal would likely be found “otherwise” unlawful or that the WPA requires that all other permits be obtained before the wpa permit is considered. Plaintiff’s arguments in this regard are without merit.
Because no feasible and prudent alternative existed to building the golf course on the proposed site, there would be no unacceptable disruption of aquatic resources, and there was no evidence that the proposal was not “otherwise lawful,” we find that, with respect to the wpa, MCL 281.709; MSA 18.595(59), the circuit court did not err in finding that a permit could properly be granted to Kuras.
Plaintiff next argues that Kuras should have been denied the permit on the basis of the mepa, MCL 691.1205; MSA 14.528(205). Under the statute, the trial court was obliged to determine whether the proposed conduct represented an “impairment or destruction” of any natural resources. If such impairment were found, the court could not authorize the project “so long as there is a feasible and prudent alternative consistent with the reasonable requirements of public health, safety and welfare.” MCL 691.1205(2); MSA 14.528(205)(2). The opinion rendered by the trial court shows a thorough review de novo of the entire record and reflects a finding that plaintiff failed to make a prima facie showing that the proposed action would impair or destroy a natural resource. The court therefore never reached the question whether a prudent and feasible alternative existed under § 5(2) of the MEPA. We affirm the trial court’s finding that plaintiff failed to show that the proposed project would cause an impairment or destruction of natural resources.
As set forth above, defendants’ plan was to replace the destroyed wetlands with almost twice as many acres of mitigation wetlands. The benefits that flow from a wetland, and that have been recognized by the Legislature, are inherent in the wetland whether it “was fashioned by the hand of nature or of man.” Citizens Disposal, Inc v Dep’t of Natural Resources, 172 Mich App 541, 551-553; 432 NW2d 315 (1988). In addition, scientific evidence and testimony presented before the hearing referee indicated that the construction and operation of the proposed golf course would not cause damage to the Crystal River or the neighboring wetlands. The DNR secured Kuras’ continuing adherence to the environmental protection plan by making the proposed permit conditional on the following of certain construction and operational safeguards. Accordingly, we affirm the trial court’s finding that no impairment or destruction of natural resources was likely. Thus, we find that the mepa does not prevent Kuras from obtaining the permit to build the proposed golf course.
Plaintiff next contends that the trial court erred in using the “substantial evidence” test to review the hearing referee’s findings regarding the wpa, as opposed to conducting a review de novo. When a court remits a matter to an administrative agency, the court retains jurisdiction and reviews the case de novo. West Michigan Environmental Action Council v Natural Resources Comm, 405 Mich 741, 752-753; 275 NW2d 538 (1979). Thus, the circuit court erred in stating it would use the “substantial evidence” test in reviewing the wpa findings of the hearing referee, which were adopted by the NRC. However, the error was harmless.
The trial court fully explored the issues regarding the WPA, and the analysis withstands review de novo. Furthermore, in analyzing the MEPA claim, the trial court conducted a thorough review de novo of the entire record. The trial court reviewed the testimony of witnesses who established that construction of the golf course was in the public interest and that there were no feasible and prudent alternative sites for the proposed project. The trial court further set forth a detailed summary of defendants’ mitigation plan and the agreement relating to environmental accommodations during the construction and operation of the golf course. Even under a review de novo, the trial court’s analysis was sufficient to show that, under the wpa, there existed no feasible and prudent alternatives to the proposed project and that the proposal would cause no unacceptable disruption of aquatic resources. Thus, although the trial court erred in stating that it was using the “substantial evidence” test to review the hearing referee’s findings regarding the WPA, the error was harmless.
Plaintiff next argues that the hearing referee should have given it subpoena power and that the trial court erred in failing to allow plaintiff to conduct discovery or present new evidence. We disagree. An agency or a hearing referee must be authorized by statute to issue subpoenas. MCL 24.273; MSA 3.560(173). Plaintiff points to no statute allowing the dnr to do so in a hearing involving the wpa. Similarly, the trial court did not err in denying plaintiff’s motion for discovery. A trial court’s decision to grant or deny discovery is reviewed for an abuse of discretion. SCD Chemical Distributors, Inc v Medley, 203 Mich App 374, 382; 512 NW2d 86 (1994). Defendant Kuras had twice applied for a permit with the dnr and he provided the agency with all requested documents. The dnr com piled an extensive file, which was available to plaintiff. In addition, plaintiff had the opportunity to cross-examine each witness at the administrative hearing and could have called any further witnesses to testify at that time. Accordingly, we find that the record compiled at the hearing before the dnr was fully developed, and, thus, the trial court did not abuse its discretion in denying plaintiffs motion for discovery.
Plaintiff also claims that the trial court abused its discretion in failing to allow plaintiff to present new evidence regarding the Homestead’s construction of a nine-hole golf course. On the same basis, plaintiff filed a motion for reconsideration of the trial court’s decision. However, undisputed evidence established that, to accomplish the goals of reducing seasonality and increasing its competitiveness, the Homestead required an eighteen-hole golf course contiguous to the resort. Accordingly, evidence of a nine-hole course was irrelevant to the question whether there was a feasible and prudent alternative to the proposed project. MRE 401. A showing that the Homestead opted for a diminished project during these proceedings would have no effect on the issues to be decided in this action. Thus, the trial court properly denied plaintiffs’ motions for admission of new evidence and reconsideration.
Finally, plaintiff argues that the proposed golf course violates the doctrine of public trust because golfers would be hitting over the river, thus violating the airspace above the public waterway. We disagree. A public trust protects navigable waters so as to preserve the valuable fish and game habitat and assure the public’s right to fish and boat in the subject area. People v Babcock, 38 Mich App 336, 350-351; 196 NW2d 489 (1972). Plaintiff cites no authority supporting the argument that any use of the airspace over the navigable waterway impinges on the public trust doctrine. The issue is effectively abandoned. Powers, supra at 588.
On the basis of the above analysis, we affirm the findings of fact and conclusions of law by the Ingham Circuit Court. We find that neither the WPA nor the mepa prevents the Homestead from constructing the proposed golf course. However, we make no determination regarding any other permits Kuras may need to obtain before constructing the proposed golf course.
Affirmed.
The provisions of the wpa were repealed by 1995 PA 59, effective May 24, 1995, and were replaced with substantially similar provisions in the Natural Resources and Environmental Protection Act. See MCL 324.30301 et seq.; MSA 13A.30301 et seq. The repealed language of the wpa that is relevant to this case, MCL 281.709; MSA 18.595[59], is identical to the current language of MCL 324.30311; MSA 13A.30311.
This language is currently found in MCL 324.30311(1); MSA 13A.30311(1).
This language is currently found in MCL 324.30311(2); MSA 13A.30311(2).
This language is currently found in MCL 324.30311(4); MSA 13A.30311(4).
In Harkins v Dep’t of Natural Resources, 206 Mich App 317; 520 NW2d 653 (1994), a panel of this Court applied the term “feasible and prudent alternatives” in the context of the wpa, but did not define the language.
The “feasible and prudent” language of the mepa that was interpreted in Olsonite is found in MCL 691.1203(1); MSA 14.528(203)(1). We make no determination regarding Olsonite’s effect on the construction of the same phrase in a different section of the mepa, MCL 691.1205(2); MSA 14.528(205)(2).
This language is currently found in MCL 324.30311(1); MSA 13A.30311(1).
These provisions of the mepa were repealed by 1994 PA 451 and were replaced with substantially similar language in MCL 324.1705; MSA 13A.1705. | [
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] |
Saad, P.J.
Defendant appeals, and plaintiff cross appeals, from an order of judgment entered on a jury verdict in this products liability case. Although the parties both raise numerous arguments, one issue is dispositive, and we need not address the other issues. We vacate the jury verdict and remand for a new trial.
i
FACTS
On October 21, 1995, the brake indicator light came on in plaintiff’s 1982 Chevette. Plaintiff went first to a Midas repair shop, where he was told that the master brake cylinder was faulty, and then to a Muffler Man repair shop, where he was told the same thing. Muffler Man then replaced the master cylinder. Ten days later, while driving his 1982 Chevette, plaintiff approached a “T” intersection, the brakes failed, and plaintiff suffered injuries as a result of a collision.
Although numerous defendants were originally named, plaintiff proceeded to trial against The Allied Corporation, the manufacturer of the master cylinder. Plaintiff alleged defective manufacture of the master cylinder under the alternative theories of negligence and breach of implied warranty. The jury found in favor of plaintiff, completing the verdict form in relevant part as follows:
1(a) Was the defendant negligent?
ANSWER: Yes.
1(b) Did defendant breach its implied warranty?
ANSWER: No.
Defendant argues that, under the facts of this case, this verdict is illogical and hopelessly inconsistent and that the trial court committed error requiring reversal of its decision when it failed to grant a new trial in response to defendant’s motion. We agree.
n
ANALYSIS
The general rule is that where a verdict in a civil case is inconsistent and contradictory, it will be set aside and a new trial will be granted. Clark v Seagrave Fire Apparatus, Inc, 170 Mich App 147, 150-151; 427 NW2d 913 (1988). Ordinarily, a verdict may and should be set aside and a new trial should be granted where the verdict is self-contradictory, inconsistent, or incongruous, and such relief should, as a rule, be granted where more than one verdict is returned in the same action and they are inconsistent and irreconcilable. Id.; Harrington v Velat, 395 Mich 359, 360; 235 NW2d 357 (1975), quoting 66 CJS, New Trial, § 66, pp 197-198. However, every attempt must be made to harmonize a jury’s verdicts; the verdicts should be disturbed only where they are “so logically and legally inconsistent that they cannot be reconciled.” Granger v Fruehauf Corp, 429 Mich 1, 9; 412 NW2d 199 (1987). If there is an interpretation of the evidence that provides a logical explanation for the findings of the jury, the verdict is not inconsistent. Id. at 7. Here, defendant argues that a verdict imposing liability under a negligence theory, but not under an implied warranty theory, is logically inconsistent.
To prove a breach of implied warranty, a plaintiff must show that the product left the manufacturer in a defective condition and that the defect caused the plaintiff’s injuries. Jodway v Kennametal, Inc, 207 Mich App 622, 629; 525 NW2d 883 (1994). Our Supreme Court has noted the similarity between this test and that for negligence:
Like the courts in every other state, whether a suit is based upon negligence or implied warranty, we require the plaintiff to prove that the product itself is actionable — that something is wrong with it that makes it dangerous. This idea of “something wrong” is usually expressed by the adjective “defective” and the plaintiff must, in every case, in every jurisdiction, show that the product was defective. [Prentis v Yale Mfg Co, 421 Mich 670, 683; 365 NW2d 176 (1984) (emphasis in original).]
When both theories are premised on a claim of improper design, “the legal elements of the two theories converge to the point of identicalness; proofs that suffice for one theory will suffice for the other.” Reeves v Cincinnati, Inc, 176 Mich App 181, 184; 439 NW2d 326 (1989). The same is true where the plaintiff alleges that the manufacturer breached a duty to give a warning. Id. However, plaintiff argues that the theories of negligence and implied warranty do not converge where, as here, the claim is one of defective manufacture.
The primary difference between the two theories is that “the negligence theory generally focuses on the defendant’s conduct, requiring a showing that it was unreasonable, while warranty generally focuses upon the fitness of the product, irrespective of the defendant’s conduct.” Prentis, supra at 692. This Court has stated:
The key appears to he in the term defect. When proceeding under a theory of negligence, the element of defect is established by proofs that the manufacturer failed to do what a reasonably prudent person would do or did what a reasonably prudent person would not have done under the circumstances. Under implied warranty imposed by law a defect is established by proof that the product is not reasonably fit for the use intended, anticipated or reasonably foreseeable. [Dooms v Stewart Bolling & Co, 68 Mich App 5, 14; 241 NW2d 738 (1976).]
In Prentis, supra at 692-693 (which was a design defect case, rather than a defective manufacture case, as in the instant case), the Court explained how the distinction between a negligence claim and an implied warranty claim can disappear:
A manufacturer has a duty to design its product so as to eliminate any unreasonable risk of foreseeable injury. Owens v Allis-Chalmers Corp, 414 Mich 413, 425; 326 NW2d 372 (1982). For the lack of reasonable care in the face of such duty, the manufacturer may be answerable in a negligence action. Elsasser v American Motors Corp, 81 Mich App 379, 384; 265 NW2d 339 (1978). When proceeding under a theory of implied warranty, a design defect is established by proof that the product is not reasonably safe for the uses intended, anticipated, or reasonably foreseeable. Dooms v Stewart Bolling & Co, 68 Mich App 5, 14; 241 NW2d 738 (1976), Iv den 397 Mich 862 (1976). For the sale of a product defective in such respect, the seller may be answerable for breach of an implied warranty. Elsasser, supra. Thus, when the issue is liability of a manufacturer who was also the seller, it is inconceivable that a jury could determine that the manufacturer had not breached its duty of reasonable care and at the same time find that the product was not reasonably safe for its reasonably foreseeable uses. The question in either case turns on reasonable care and reasonable safety, and as pointed out by Dean Prosser, the liability of the manufacturer rests “upon a departure from proper standards of care so that the tort is essentially a matter of negligence.”
This same logic applies to a claim premised upon an alleged manufacturing defect, as in the instant case. In a negligent manufacture claim, a plaintiff must show that the manufacturer failed to manufacture its product so as to eliminate any unreasonable risk of foreseeable injury; a “defect” can be shown if the product is not reasonably fit for its intended, anticipated, or reasonably foreseeable use. Fabbrini Family Foods, Inc v United Canning Corp, 90 Mich App 80, 92; 280 NW2d 877 (1979); Rutherford v Chrysler Motors Corp, 60 Mich App 392, 400; 231 NW2d 413 (1975). In an implied warranty claim, a plaintiff must show that “the product left the manufacturer in a defective condition, and that the defect caused the plaintiffs injuries.” Jodway, supra at 629.
Whether proceeding under a negligence theory or a breach of warranty theory, and whether the alleged defect is one of design or of manufacturing, the plaintiff “must prove a defect attributable to the manufacturer and causal connection between that defect and the injury or damage of which he complains.” Caldwell v Fox, 394 Mich 401, 410; 231 NW2d 46 (1975), quoting Piercefield v Remington Arms Co, Inc, 375 Mich 85, 98-99; 133 NW2d 129 (1965). The plaintiff must show that “the product itself is actionable — that something is wrong with it that makes it dangerous.” Prentis, supra at 683. Under the facts of this case, however, if defendant’s product was actionable, it was actionable under both theories. That is, if defendant breached its duty of reasonable care by manufacturing a defective master cylinder that caused plaintiff’s accident, then necessarily the master cylinder was not fit for its intended and anticipated use. Conversely, if the cylinder was not defective under the implied warranty — i.e., if it was reasonably safe for its intended use — then defendant did not breach its duty of reasonable care.
We have carefully reviewed the cases upon which plaintiff relies in support of his argument that the two responses noted on the jury verdict form are consistent. We find inapposite Granger v Fruehauf Corp, 429 Mich 1; 412 NW2d 199 (1987), in which our Supreme Court upheld seemingly inconsistent jury verdicts that the defendant was negligent, but did not breach its implied warranty of fitness. There, the defendant had originally manufactured and sold the trailer and then later regained possession of it before reselling it “as is” to the plaintiff’s employer. As the Court noted, the jury’s verdicts could be reconciled— the jury could have found that, in the intervening sale, the “as is” disclaimer negated any claim for breach of warranty, but that the defendant was negligent in the original design of the trailer. Id. at 7. Here, however, defendant’s manufacture and sale of the master cylin der were part of the same transaction for purposes of tort liability; both of plaintiffs theories turned on defendant’s actions at the time it manufactured the cylinder and sold it to Muffler Man.
We believe that the Court in Awedian v Theodore Efron Mfg Co, 66 Mich App 353; 239 NW2d 611 (1976), reached the incorrect result. In Awedian, the plaintiff sued the manufacturer of a glass bathtub door through which he had accidentally thrust his arm. The jury found the manufacturer liable on a negligence theory, but not on a breach of warranty theory. Affirming these verdicts against the manufacturer’s claim that they were irreconcilably inconsistent, the Awedian Court stated:
A review of Michigan case law, most notably the seminal case of Spence v Three Rivers Builders and Masonry Supply, Inc, 353 Mich 120; 90 NW2d 873 (1958), and the significant analysis of Cova v Harley Davidson Motor Co, 26 Mich App 602; 182 NW2d 800 (1970), clearly demonstrates that negligence and implied warranty are theories different in both legal content and factual requisites. In Spence, the Supreme Court analyzed past precedent and specifically rejected language which indicated that the theories were identical. The Court held that recovery should have been granted “either on a theory of negligence or implied warranty.” 353 Mich at 135. (Emphasis supplied.)
In Cova, this Court emphasized the differing proof required. Through now Justice Levin, we stated that, in warranty theory, either the contractual warranty or tort warranty of fitness, a plaintiff need not prove negligence to recover. 26 Mich App at 611-612. In warranty theory, a plaintiff need not show negligence but must show the existence of a defect and a causal relationship to the injury. Under negligence theory, a plaintiff must show the existence of a duty, the breach of that duty and a causal relationship between the breach and the injury. Thus, the theories may be plead [sic] together, and a failure to recover on one does not preclude recovery on the other. [Id. at 355-356.]
A review of Spence and Cova, however, reveals that the Awedian Court misunderstood the import of these cases.
In Spence, the plaintiff sued the manufacturer of certain cinder blocks, but there was no privity of contract between the plaintiff and the manufacturer of the blocks. The Court noted that past Michigan cases provided some “authority for treating actions of this kind based on implied warranty by the manufacturer as though they were explicitly grounded upon negligence.” Spence, supra at 130. The modem trend in other jurisdictions, said the Court, was “to permit recovery by remote vendees against the manufacturer whether the action sounds in negligence or on an implied warranty or both.” Id. at 132. Thus, the Spence Court did make the statement quoted in Awedian: “[W]e think [the trial court] should have permitted recovery either on a theory of negligence or implied warranty.” Id. at 135. The Court’s focus, however, was not the differentiation between the two theories, as Awedian suggests, but rather the availability of both theories regardless of privity.
In Cova, the other case referenced in Awedian, the purchasers of certain golf carts sued the manufacturer of the carts, alleging breach of an implied warranty of quality. Cova, supra at 603. The trial court in Cova dismissed the complaint, ruling that a plaintiff cannot premise a claim for solely economic damages on a breach of warranty theory. Id. at 603-604. This Court reversed, holding that a plaintiff so situated may proceed under either a negligence or a warranty theory. As the Awedian Court observed, the Cova Court did restate the primary difference between a negligence action and one brought for breach of an implied warranty: under the latter theory, the plaintiff need not show negligence. Id. at 611-612. The Cova Court said nothing, however, that logically implied the sweeping legal conclusion reached in Awedian (“Thus, ... a failure to recover on one [theory] does not preclude recovery on other.” Awedian, supra at 353).
We also reject plaintiffs attempt to harmonize the jury verdicts by arguing that the master cylinder could have been in good working order when it left defendant’s control, but subsequently could have been rendered unsafe ten days later. This distinction is illusory. Whether an action is based on negligence or breach of implied warranty, the plaintiff must show that the defect existed at the time the product left the manufacturer. Manzoni v Detroit Coca-Cola Bottling Co, 363 Mich 235, 241-242; 109 NW2d 918 (1961); Reeves v Cincinnati, Inc, supra at 184. Thus, in this case, if defendant was negligent, then the master cylinder was defective when it left defendant’s control— by definition then, defendant breached its implied warranty.
We are unable to reconcile these jury verdicts. The jury verdict is vacated, and, therefore, the matter is remanded for a new trial. The remaining issues raised by both parties are denied as moot.
Reversed and remanded for a new trial. We do not retain jurisdiction.
Indeed, the Spence majority’s only express distinction between the two theories was that “the burden of proof might in some cases be more onerous in [a negligence action],” Spence, supra at 131, a statement that fits perfectly with the fact that a negligence action requires proof of the manufacturer’s fault, whereas an action in implied warranty requires only a showing of a defect. | [
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Per Curiam.
Plaintiff appeals an order of the Worker’s Compensation Appellate Commission that affirmed a magistrate’s decision that plaintiff’s petition for benefits was untimely. Because we agree with plaintiff that his petition for benefits was timely, we reverse and remand for further proceedings.
i
Plaintiff began working for defendant city in 1961. In 1980, he was promoted to foreman. He testified that he experienced no physical difficulties until 1986, at which time he began to notice numbness and pain in his fingers and wrists. He was eventually diagnosed as suffering from bilateral carpal tunnel syndrome.
Plaintiff underwent surgeries in August 1987 for relief from the syndrome. He was off work from August 3, 1987, until February 7, 1988. During this time, he received weekly worker’s compensation benefits. Forms filed with the Worker’s Disability Compensation Bureau by the employer indicate a date of injury of February 11, 1987. The significance of this date is unknown. Plaintiff returned to work on February 8, 1988. He testified that although he wore braces on his hands and was unable to do some work because of continuing problems, he never filed any additional injury reports or otherwise complained of specific injuries.
In June 1988, plaintiff went on vacation and never returned to active work. He retired some time in August 1988, at the age of sixty-three. He testified that he had planned to work until he was sixty-five and would have done so in order to receive more pension benefits, but he continued to have problems with his hands and wrists.
On August 1, 1990, plaintiff filed a petition for hearing, claiming disability as a result of his carpal tunnel syndrome, as well as additional difficulties including loss of industrial use of his upper extremities. His original petition alleged that he last worked in June 1988. However, he amended the petition on October 8, 1990, to include an injury date of February 11, 1987.
In an opinion and order mailed on November 6, 1991, the magistrate found that plaintiff had not proved that he lost the industrial use of his upper extremities, but did prove that he suffers from job-related bilateral carpal tunnel syndrome. However, the magistrate found that plaintiff was not entitled to benefits because he filed his claim more than two years after his last day of active work in June 1988, contrary to § 381(1) of the Worker’s Disability Compensation Act, MCL 418.381(1); MSA 17.237(381)(1), which provides in part:
A claim shall not be valid or effectual for any purpose under this chapter unless made within 2 years after the later of the date of injury, the date disability manifests itself, or the last day of employment with the employer against whom claim is being made. If an employee claims benefits for a work injury and is thereafter compensated for the disability by worker’s compensation or benefits other than worker’s compensation, or is provided favored work by the employer because of the disability, the period of time within which a claim shall be made for benefits under this act shall be extended by the time during which the benefits are paid or the favored work is provided.
Plaintiff appealed, and in an opinion and order dated January 14, 1994, the wcac affirmed.
Plaintiff’s application for leave to appeal to this Court was denied on May 17, 1994. Plaintiff applied to the Supreme Court for leave to appeal. In lieu of granting leave, the Supreme Court remanded to this Court for consideration as on leave granted and also instructed the parties to brief an issue not raised in plaintiff’s applications to this Court or the Supreme Court:
The parties are to include among the issues to be briefed whether, for purposes of Section 381 of the Worker’s Disability Compensation Act, the plaintiff’s “last day of employment” with the defendant was the date of retirement in August, 1988, and thus his ... claim fell within the two-year period. [448 Mich 869 (1995).]
n
The phrase “last day of employment” is not defined in the act. The meaning of this phrase in a factual context like that at issue here is an issue of first impression. We hold that the last day of employment with a given employer is not necessarily the same as the last day of work for that employer.
As a matter of common experience, the mere fact that a person is not actively working for an employer does not necessarily mean that the person is not employed by that employer. Individuals who are on sick or disability leave or who are on vacation remain employed, even though not actively working at the time. Indeed, it is a common practice for individuals whose employment will be terminated to be given an opportunity to exhaust vacation or other leave time before the actual and formal severance of the employment relationship. During that period, the inactive workers are treated like employees, receiving pay and health care coverage and accruing service credits for retirement purposes.
In the present case, plaintiff testified and defendant city’s records agree that plaintiff last actively worked for the city in June 1988. The testimony and records further show that plaintiff then went on vacation until some time in August 1988, when he retired. Because plaintiff’s petition for benefits was filed on August 1, 1990, we hold that it was filed within two years after “the last day of employment” within the meaning of § 381(1).
We find support for our analysis in the retiree presumption of § 373(1) of the act, MCL 418.373(1); MSA 17.237(373)(1), which applies when a retiree who “terminates active employment and is receiving nondisability pension or retirement benefits” petitions for worker’s compensation benefits. In a series of cases, this Court has construed the term “active employment” as meaning being engaged in actual work for the employer before retirement, thus holding that the retiree presumption does not apply when a worker was on sick or disability leave for some period before retiring. See McDonald v Holland Motor Express, Inc, 201 Mich App 285, 287-289; 506 NW2d 234 (1993), and cases discussed therein. These decisions recognize a statutory distinction between active and inactive employment in the retiree presumption. Inteipreting “the last day of employment” in § 381(1) as being synonymous with “the last day of work” would be equivalent to interpreting it as being synonymous with “the last day of active employment.” This would read the word “active” into § 381(1) when it is not there, or it would ignore the distinction between active and inactive employment otherwise recognized in the statute. The last day of employment should not be interpreted as being the same as the last day of work.
We conclude that the WCAC erred in affirming the magistrate’s holding that plaintiff’s petition was untimely under § 381(1).
in
Plaintiff argues that the WCAC erred in failing to give effect to stipulations by the parties regarding an injury date of February 11, 1987, and in failing to reverse the magistrate’s finding that plaintiff failed to prove that he suffered the loss of the industrial use of his hands. We find it unnecessary to address these issues in light of the above analysis and our remand to the wcac for further proceedings. We also find it inappropriate to address the second issue because the wcac has not yet addressed its merits.
We reverse and remand to the wcac for consideration of any claims of error preserved for review. We do not retain jurisdiction. | [
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Markman, J.
As the result of complaints regarding plaintiffs behavior at several youth soccer league functions, and following notice and a hearing, plaintiff was found to have violated thé rules and regulations of the Michigan State Youth Soccer Association (msysa), a private association. Consequently, plaintiff was suspended for a six-month period from participating in MSYSA activities. As a result of this suspension, it appears that plaintiff was subsequently discharged from his employment as head coach and director of player personnel by the Detroit Wheels professional soccer club and that an offer of employment from the Detroit Neon professional soccer team was also withdrawn. Plaintiff subsequently sued defendants for breach of contract, tortious interference with a contractual relationship, fraud, and violations of constitutional due process. Plaintiff appeals as of right from a December 28, 1994, order denying his motion for a declaratory judgment and granting defendants’ motion for summary disposition. We affirm.
Plaintiff first argues that the trial court erred in granting summary disposition in favor of defendants of plaintiff’s claim for breach of contract. Specifically, plaintiff argues that defendants breached their contract with plaintiff because of their failure to establish a state soccer appeals panel, their failure to conform to the required penalty for first-time offenders, their failure to forward copies of official game reports to the appropriate persons, their failure to convene a hearing at the site of the alleged misconduct, and their failure to convene a disciplinary hearing in a timely manner. We disagree. Where a private association has provided a reasonably effective means of resolving controversies before it, and where there is no evidence of fraud by the association in its treatment of the complaining member, courts, should not interfere with the orderly governing of the association. James v Midland Co Agricultural & Horticultural Society, 107 Mich App 1, 7; 308 NW2d 688 (1981). Courts have no business regulating the procedures of private associations absent a compelling showing that substantial rights of a member are implicated and that there is no reasonable opportunity for the member to effectively assert those rights within the confines of the group. The record here reveals that plaintiff- failed to exhaust his internal remedies within the msysa. Plaintiff could have appealed the msysa’s suspension decision; however, he elected not to avail himself of this opportunity because he believed that he would ultimately be successful in negotiating a settlement with the msysa. Because this Court explicitly rejects the entanglement of the judiciary in the rules of a private association such as the msysa, and because the MSYSA has provided a reasonably effective means of deciding internal controversies, the trial court properly abstained from reviewing the dispute before plaintiff had exhausted all his intraorganizational remedies. Therefore, summary disposition was properly granted in favor of defendants of plaintiffs breach of contract claims.
Next, plaintiff argues that judicial review of his claims before exhaustion of intraorganizational remedies would be proper because an appeal would have been futile. In the context of an administrative agency, there is a judicially created exception to the exhaustion requirement for cases where an appeal to the administrative agency would be futile. Manor House v Warren, 204 Mich App 603, 605; 516 NW2d 530 (1994). However, it must be “clear that an appeal to an administrative board [would be] an exercise in futility and nothing more than a formal step on the way to the courthouse.” Id. By analogy to the administrative context, plaintiffs entitlement to an appeal in the instant case would not be such an exercise in futility because of the specificity with which the msysa appeal procedure is described. No showing has been made that the results of an appeal are foreordained or that plaintiff would not have a reasonable opportunity to prevail on the basis of the merits of his position. Thus, plaintiffs appeal would not necessarily have been futile, and summary disposition was proper because plaintiff failed to exhaust his available administrative remedies.
Plaintiff next contends that summary disposition was not properly granted because discovery had not been completed with regard to all the issues plaintiff alleged in his complaint. We again disagree. Because discovery was necessary to support plaintiff’s substantive claims, and because these claims were not properly before the court but should have been brought before the msysa’s appeals committee, summary disposition before discovery was completed was proper.
Plaintiff next claims that he was not afforded due process when the msysa imposed a six-month suspension followed by a six-month probationary period. However, plaintiff has cited no Michigan law that would entitle a member of a private association to “due process” of the law beyond what is provided for by the rules and bylaws of the organization itself. The msysa is not a state entity under the Fourteenth Amendment of the United States Constitution or Art 1, § 17 of the Michigan Constitution. Woodland v Michigan Citizens Lobby, 423 Mich 188, 204-212; 378 NW2d 337 (1985), citing Cramer v Metropolitan Savings & Loan Ass’n, 401 Mich 252, 258-259; 258 NW2d 20 (1977); People v Farrow, 183 Mich App 436, 441; 455 NW2d 325 (1990); Dearborn v Freeman-Darling, Inc, 119 Mich App 439, 442; 326 NW2d 831 (1982); Cole v Dow Chemical Co, 112 Mich App 198, 203; 315 NW2d 565 (1982).
There is no provision of law that imposes upon private associations the same panoply of procedural rules imposed on public entities by the Due Process Clauses of these constitutions. Rather, these documents set forth a distinction between things that are public and things that are private, which this Court has no interest in obscuring. As the Supreme Court has observed, “It is at the heart of the American libertarian tradition that the individual be given wide rein in structuring his relationships with other individuals, if only because the alternative of close government control threatens liberty itself.” Woodland, supra at 211, quoting Burke & Reber, State action, congressional power and creditors’ rights, 46 S Cal L R 1003, 1016 (1973). We do not find that the activities of the MSYSA can be deemed to be “state action” by any reasonable conception of that term. The trial court properly granted summary disposition in favor of defendants of plaintiffs claim of violations of due process.
Plaintiff cites Dietz v American Dental Ass’n, 479 F Supp 554, 557 (ED Mich, 1979), for the proposition that
where a professional association [American Board of Endodentists] has monopoly power and membership in the association significantly affects the member’s practice of his profession, courts will hold the association has a fiduciary duty to be substantively rational and procedurally fair.
However, we do not believe that the determinant of whether an organization must independently comply with the Due Process Clauses is whether it possesses an alleged “monopolistic” status in some realm of activity, but rather whether there is a “sufficiently close nexus between the state and the challenged action so that acts may be fairly treated as those of the state itself.” Farrow, supra at 441.
Even by the standards of Dietz, however, we find that plaintiff has failed to bring forth evidence that the msysa is a professional association with “monopoly power” or that membership in the MSYSA “significantly affects” a member’s practice of his profession. Further, all Dietz says is that in cases involving disciplinary actions by professional associations, due process requires notice and an opportunity to be heard. Id. at 557-558. Plaintiff was, in fact, provided with full notice of the charges against him by the MSYSA, a hearing was held regarding the charges, and plaintiff had the opportunity to present his own version of the events. Such procedures would afford plaintiff sufficient “due process” even if this Court were to accept the proposition that a private association such as the msysa is somehow governed by the requirements of US Const, Am XTV or Const 1963, art 1, § 17.
Plaintiff’s final claim is that the trial court erred in granting summary disposition in favor of defendants of plaintiff’s claim of fraud or misrepresentation. Plaintiff contends that assurances were made by defendants that his suspension would not affect his soccer career and that he relied on these assurances, causing him to change his position with resultant injury. We disagree. To show fraud or misrepresentation, plaintiff must prove: (1) defendants made a misrepresentation; (2) defendants knew that they were making a misrepresentation or made it in a reckless manner; (3) such misrepresentation was material; (4) defendants made the misrepresentation with the intent that plaintiff would act upon it; (5) plaintiff acted in reliance upon it; and (6) plaintiff suffered damage. Arim v General Motors Corp, 206 Mich App 178, 195; 520 NW2d 695 (1994).
Here, plaintiff has failed to show how he has been injured by defendants’ representations to him regarding his suspension. Plaintiff was allegedly assured by defendants that, despite his suspension, he would be permitted to compete in certain soccer activities but was subsequently terminated from a professional soccer position and not hired for another after employers were informed about his suspension by the MSYSA. However, it was ultimately the Detroit Wheels and the Detroit Neon, not the msysa, who decided to terminate employment and withdraw an offer of employment. Although plaintiff may have relied on defendants’ assurances in obtaining employment, these assurances played no role in the ultimate decisions of the Wheels or the Neon and were not responsible for injuries suffered by plaintiff. The MSYSA merely supplied information regarding plaintiff’s suspension. Defendants never said that they would not provide such information to anyone who asked but merely asserted their belief that plaintiffs suspension would not prohibit him from participating in other soccer activities. Because there is no evidence of any misrepresentations on defendants’ part that caused plaintiff injury, there was no genuine issue of material fact, and defendants’ motion for summary disposition of the fraud claim was properly granted.
Because plaintiff had not yet exhausted the internal processes of the msysa, summary disposition was also properly granted with regard to plaintiff’s claim that defendants intentionally interfered with his contractual relationships as a result of the same events.
Affirmed.
Judicial review in a case where fraud is present is proper even where the plaintiff has failed to exhaust intraorganizational remedies. See James, supra at 7. | [
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Markman, J.
Defendants appeal as of right their 1992 jury trial convictions of first-degree murder, MCL 750.316; MSA 28.548, and possession of a fire arm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The Court of Appeals consolidated the appeals. The Court of Appeals granted Truong’s motion to remand to the trial court to allow him to move for a new trial and seek other relief. Unpublished order of the Court of Appeals, entered April 14, 1994 (Docket No. 162306). On remand, the trial court denied Truong’s motions. The Court of Appeals granted Nguyen’s motion to remand to the trial court to allow him to move for a new trial. Unpublished order of the Court of Appeals, entered November 8, 1994 (Docket No. 162307). On remand, the trial court denied Nguyen’s motion. After remand, we affirm.
Defendants both shot at the decedent, who died of multiple gunshot injuries. Defendants, who had had previous altercations with the decedent, claimed that they shot him in self-defense. They testified that, two days before the shooting at issue, the decedent and some of his friends broke into defendants’ apartment and beat them up while searching for the decedent’s gun, which defendant Nguyen had stolen. Defendant Truong testified that the decedent threatened to kill them the next time that he saw them.
On appeal, Truong first claims that his convictions should be vacated because the circuit court did not have valid jurisdiction over him because he was only fourteen years old at the time of the offense. He initially raised this issue in a suppression hearing before trial and it was one of the issues on which this Court remanded this matter to the circuit court after trial. Truong’s immigration papers list his birth year as 1978. Before he was arrested, however, he successfully petitioned the Kent County Probate Court to cor rect his birth date to May 5, 1974. Among the evidence presented to the probate court by Truong was a letter from a dentist indicating that, on the basis of his dental radiographs, Truong was at least sixteen years old in July 1990. A caseworker who assisted Truong when he moved to Michigan testified that Truong consistently told her that he was bom in 1974. Truong now contends that he was lying when he petitioned the probate court to change his birth date and that he did so only to make himself appear eighteen years old to facilitate getting a job. On remand, Truong produced a document purporting to be a birth certificate that indicates a birth date of June 4, 1978. This differs from his resident alien card, which lists his birth date as December 31, 1978. The birth certificate and immigration papers also differ regarding the birth dates of his parents.
The trial court held that the probate court order raised a rebuttable presumption that Truong’s birth date was May 5, 1974. It found that Truong failed to produce evidence to overcome this presumption. The trial court correctly held that the birth certificate did not meet the self-authentication requirements of MRE 902(3). It also found the birth certificate untrustworthy because it was a report of a birth made eleven years after the alleged birth, when Truong’s father may have had an incentive to make Truong appear as young as possible to facilitate his emigration from Vietnam. The trial court denied Truong’s motion for a new trial or for relief from judgment.
This Court reviews trial court findings of fact for clear error. MCR 2.613(C). The trial court reasonably found that the probate court order, solicited by Truong himself and supported by dental and other evidence, raised a rebuttable presumption regarding his age that the birth certificate and immigration papers were insufficiently reliable to overcome. Therefore, we find no clear error in the trial court’s reliance on the probate court’s determination of Truong’s age.
Truong also now claims, for the first time, that the trial court’s reliance on the birth date indicated in the probate court order violated the Supremacy Clause, US Const, art VI, cl 2. “Generally, the existence of federal laws or regulations in a particular area can preempt state action in the same field where preemption is either express, implied, or the result of a conflict between state and federal law.” People v Hegedus, 432 Mich 598, 607; 443 NW2d 127 (1989). “Consideration of any issue arising under the Supremacy Clause begins with the assumption that the historic police powers of the state are not to be superseded by federal law unless that is the clear and manifest purpose of Congress.” Ryan v Brunswick Corp, 209 Mich App 519, 521; 531 NW2d 793 (1995), lv gtd 451 Mich 883 (1996).
States have the authority to determine the age of their residents. The historic police power of a state to determine age is necessary to state governance of such issues as compulsory education, marriage, eligibility for public benefits, and driver’s licenses. The United States Constitution does not bar states from making such determinations.
However, Congress has broad authority to regulate matters relating to immigration, Graham v Richardson, 403 US 365, 379; 91 S Ct 1848; 29 L Ed 2d 534 (1971), and age is a factor that may sometimes bear on an alien’s immigration status. Accordingly, we must decide if a state determination of an immigrant’s age, which differs from an Immigration and Naturalization Service (ins) determination, interferes with the exercise of federal authority over immigration.
Here, the probate proceeding at issue merely determined Truong’s age, not any immigration matter. Truong has presented this Court with no authority that would preclude a state from making, for any of a variety of legal purposes, a determination of the age of one of its citizens or residents. The fact that a person’s age may also have consequences for immigration matters, e.g., when or how the person may apply for citizenship, does not make a state’s determination of an immigrant’s age an infringement on Congress’ authority over immigration. There is nothing in the probate court’s order here that impinges upon the ability of the ins to fully carry out its responsibilities. Similarly, the conviction of an alien for a felony might affect the alien’s immigration status, but such consequences do not preclude states from prosecuting aliens on felony charges. State determinations that have such incidental consequences on immigration do not usurp federal authority over immigration. Indeed, we recognize that the ins could, if it so chose, continue to rely on its own determination of Truong’s age for immigration purposes. Parties must meet a heavy burden to establish a Supremacy Clause violation as the result of a state’s legitimate exercise of the police power. Ryan, supra. Here, Truong argues generally that age bears on an alien’s immigration status but fails to demonstrate how the probate court’s determination of his age has affected his immigration status in any manner. There is no indication that the authority of the INS over immigration has been, or will be, compromised in any way by the probate court’s determination of Truong’s age. Truong accordingly fails to establish a Supremacy Clause violation. For these reasons, we find that the probate court’s determination of Truong’s age was not preempted by Congress’ authority over immigration matters.
Truong next claims that he was denied simultaneous translation of the trial proceedings in violation of his constitutional rights to due process, confrontation, and to be present at trial. The trial court found that there was a word-for-word translation of all questioning of witnesses but that there may have been instances where the translator summarized attorney colloquy. The only mistranslations, however, cited by Truong were with respect to the translation of his testimony to the jury. The court concluded that Truong received a fair trial in light of all the circumstances and denied Truong’s motion for a new trial or for relief from the judgment.
This Court recently addressed this issue in People v Cunningham, 215 Mich App 652, 654-655; 546 NW2d 715 (1996), in which it stated:
As a general rule, the proceedings or testimony at a criminal trial are to be interpreted in a simultaneous, continuous, and literal manner, without delay, interruption, omission from, addition to, or alteration of the matter spoken, so that the participants receive a timely, accurate, and complete translation of what has been said. Although occasional lapses will not render a trial fundamentally unfair, adequate translation of trial proceedings requires translation of everything relating to the trial that someone conversant in English would be privy to hear. [Citation omitted.]
The evidence here indicated that a translator was present during all stages of this matter and that Truong received a word-for-word translation of all questions to and answers from witnesses. The only evidence of summarized translation to Truong was during attorney colloquies. At most, these constituted occasional, minor lapses in simultaneous translation that, under Cunningham, did not render the trial unfair or deprive Truong of his rights to due process, confrontation, or to be present at trial.
Truong next claims that the trial court erred in denying his motion to suppress his statement to the police. He contends that he did not knowingly, intelligently, and voluntarily waive his constitutional right to counsel or privilege against self-incrimination. He contends that his lack of basic language skills made it impossible for him to understand the translation of the Miranda rights. The trial court found that the police read him his rights, a translator translated them into Vietnamese, defendant said that he understood them, and he signed and initialed the waiver form. It found that Truong then proceeded to respond to police questions in a logical manner that belied any claim that he did not understand what was being asked of him. The court noted that Truong did not allege that the police coerced him or made any false promises to him and acknowledged that he understood the words used in translating the rights to him, but contended that he did not understand the meaning of the rights. The court held that the translator appropriately attempted to translate the rights word-for-word instead of trying to explain them. It found that the police were within their rights in taking Truong at his word that he understood the rights and waived them, in this context. It concluded that Truong’s statement to the police was voluntary.
This Court reviews trial court rulings regarding suppression motions under the clearly erroneous standard. People v Bordean, 206 Mich App 89, 92; 520 NW2d 374 (1994). However, “[application of constitutional standards by the trial court is not entitled to the same deference as factual findings.” Id.
In People v Garwood, 205 Mich App 553, 556; 517 NW2d 843 (1994), this Court cited with favor the following language from Colorado v Spring, 479 US 564, 573; 107 S Ct 851; 93 L Ed 2d 954 (1987):
First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
Here, the evidence bears out the trial court’s findings summarized above. By his own admission, Truong understood the words used in translating the rights, told the police that he understood the rights, signed and initialed the waiver form, did not request any clarification, and responded in a logical manner to the subsequent questioning by the police. We emphasize that a person speaking to the police through a translator is subject to the same standards as a person fluent in English. There is no greater obligation on the part of the police to ascertain comprehension of Miranda rights with respect to a person using a translator than with respect to a person fluent in English. The trial court did not clearly err in determining that Truong had a requisite level of understanding under these circumstances.
Truong next claims that he was denied a fair trial when the jury heard evidence that codefendant Nguyen exercised his right to silence during a custodial interrogation. He claims that this information raised an improper inference that Nguyen had something to hide that tainted the proceedings against Truong as well. Improper testimony concerning a codefendant’s assertion of constitutional rights may prejudice a defendant’s defense to the extent that reversal of the defendant’s conviction is required. People v Gallon, 121 Mich App 183, 191; 328 NW2d 615 (1982). Here, the prosecutor questioned a police officer regarding Nguyen’s interview and the fact that it was interrupted for a gun residue test. The prosecutor asked if “no further interviewing took place” after the test and the officer responded affirmatively and continued, “at that point [Nguyen] said that he wanted an attorney and didn’t want to talk to us anymore.” Neither defendant objected to this exchange. When preserved, this Court reviews claims of prosecutorial misconduct by evaluating the prosecutor’s comments in context to determine if the defendant was denied a fair and impartial trial. People v Allen, 201 Mich App 98, 104; 505 NW2d 869 (1993). This Court is precluded from review of prosecutorial misconduct allegations that were not objected to at trial unless the prejudicial effect could not have been cured by a jury instruction or failure to consider the issue would result in manifest injustice. Id.
It is generally inappropriate for the prosecution to comment regarding an accused’s exercise of the constitutional privilege against self-incrimination. People v Sain, 407 Mich 412, 415; 285 NW2d 772 (1979). However, reversal is not required where such a comment is not a “studied attempt by the prosecution to place [the] matter before the jury.” Id. Here, the prosecutor’s question required only a “yes” or “no” answer and did not elicit the officer’s comment regarding Nguyen’s exercise of his constitutional rights. Further, Nguyen’s exercise of his constitutional rights was not mentioned by the prosecutor during closing argument. This trial involved overwhelming evidence that defendants shot the decedent; defendants’ sole theory was self-defense. The comment at issue did not undermine their self-defense theory. Under these circumstances, the comment did not deprive Nguyen of a fair trial. As a consequence, it did not deprive Truong of a fair trial.
We now turn to Nguyen’s claims on appeal. Nguyen first claims that there was insufficient evidence to disprove his self-defense claim. To review claims of insufficiency of the evidence to sustain a verdict, this Court views the evidence in the light most favorable to the prosecution to determine if a rational factfinder could find the essential elements of the crime proved beyond a reasonable doubt. People v Reddick, 187 Mich App 547, 551; 468 NW2d 278 (1991). “Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of a crime.” People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993).
In People v Fortson, 202 Mich App 13, 19-20; 507 NW2d 763 (1993), this Court held:
“[T]he killing of another in self-defense is justifiable homicide if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm.” People v Heflin, 434 Mich 482, 502; 456 NW2d 10 (1990). Once evidence of self-defense is introduced, the prosecutor bears the burden of disproving it beyond a reasonable doubt.
Here, while defendants had reason to fear the decedent on the basis of prior assaults and threats, the evidence did not indicate that they were in imminent danger from him at the time they shot him. A gun was found on the decedent, but it was in still in his waistband. Evidence demonstrated that defendants shot the decedent eight times in the back. At a posttrial hearing regarding Nguyen’s motion for a new trial, the trial court aptly stated:
[Defendants executed what might be called a preemptive strike on a man who had previously beaten them and threatened them, and shot him in the back before he could come around and bother them again. Whatever else it may be, a preemptive strike is not, under Anglo-American law, any form of self-defense.
We specifically affirm the trial court’s focus on “Anglo-American” law. We recognize that other cultures may have adopted legal doctrines that differ from American legal doctrine — as in what constitutes self-defense, for example. However, persons in America are bound to abide by American legal doctrine and American courts are obligated to apply such doctrine. Accordingly, the evidence was sufficient for a rational factfinder to find beyond a reasonable doubt that the prosecution disproved Nguyen’s self-defense theory.
Nguyen next argues that he was denied effective assistance of counsel. His main contention is that his rejection of a plea to the lesser offense of second-degree murder resulted from ineffective assistance of counsel. In order to justify reversal of an otherwise valid conviction on the basis of ineffective assistance of counsel, “a defendant must show that counsel’s performance fell below an objective standard of reasonableness, and that the representation so prejudiced the defendant as to deprive him of a fair trial.” People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994).
The trial court considered this claim in a posttrial motion for a new trial, which it denied. Nguyen’s trial counsel testified that he recommended that Nguyen consider the plea bargain, that he explained the meaning of mandatory life (the maximum penalty if Nguyen went to trial), and that he went to the prison with an interpreter on at least one occasion. He testified that Nguyen indicated that he understood the plea bargain but would not plead guilty because he felt he had not done anything wrong. The trial court recalled that on the morning of the trial, it allowed defense counsel additional time with defendants to resolve the matter but counsel “insisted with some exasperation that their clients were adamant that they would not admit guilt.” It found that Nguyen’s counsel met regularly with him and clearly laid out the options and that Nguyen understood the options. It concluded that trial counsel’s representation of Nguyen was effective. We agree. Nguyen’s other claims of ineffective assistance of counsel are conclusory claims relating to alleged failures to prepare for trial, appropriately cross-examine witnesses, and object to hearsay testimony. Here, the only disputed issue was whether defendants acted in self-defense. In the context of overwhelming evidence that they were not in immediate fear for their lives, any such errors did not prejudice Nguyen’s right to a fair trial. Accordingly, they do not constitute ineffective assistance of counsel.
Nguyen next claims that the prosecutor engaged in misconduct during closing argument by vouching for the truthfulness of witnesses, denigrating Nguyen, and making a civic-duty argument. Here, there was no objection to the prosecutor’s argument. The disputed comments were simply arguments based on the evidence. The prosecutor neither vouched for witnesses nor denigrated Nguyen. His final comment that “on behalf of the Wyoming Police Department and on behalf of the State of Michigan, I am asking you to convict Tai Van Nguyen” was not a “civic-duty” argument because it neither injected issues broader than Nguyen’s guilt or innocence of the charges nor encouraged the jurors to suspend their powers of judgment. See People v Crawford, 187 Mich App 344, 354; 467 NW2d 818 (1991). Accordingly, none of the disputed comments denied Nguyen a fair trial. See Allen, supra.
Finally, Nguyen contends that the trial court improperly failed to instruct the jury in connection with his self-defense theory that a person has no duty to retreat from his place of business. He also claims that his counsel was ineffective in failing to request such an instruction.
In People v Dabish, 181 Mich App 469; 450 NW2d 44 (1989), this Court contemplated possible extensions of the rule that there is no duty to retreat and avoid using deadly force in one’s home. It considered People v Johnson, 75 Mich App 337; 254 NW2d 667 (1977), in which a private security guard was found to have no duty to retreat when acting in the course of his employment, and People v Crow, 128 Mich App 477; 340 NW2d 838 (1983), in which a defendant was found not to have a duty to retreat from his car when attacked by a hitchhiker. Dabish at 475-476. The Dabish Court concluded at 476:
Presently, Michigan simply does not apply a broad rale allowing no-retreat from a place of business.
Here, Nguyen testified that he worked part-time at the restaurant where the shooting occurred but that on the day at issue he told his boss he could not work. Because he was not working at the time of the shooting, the present case does not properly raise the issue whether the “no retreat” rule should be extended to one’s place of business. Here, Nguyen did not request such an instruction. The failure of a trial court to instruct on any point of law is not grounds for setting aside a jury verdict unless such an instruction is requested by the accused. MCL 768.29; MSA 28.1052. Trial counsel's failure to request an instruction inapplicable to the facts at bar does not constitute ineffective assistance of counsel. See Pickens, supra.
For these reasons, we affirm defendants’ judgments of sentence.
Affirmed.
Truong contends that the trial court should have granted relief from the probate court judgment on the basis of Truong’s admitted fraud on that court pursuant to MCR 2.612(C)(1)(f) or (C)(3). However, if Truong seeks relief from the probate court order, the appropriate remedy would appear to be for him to petition the probate court directly for such relief, so that the court that received the evidence and entered the order may consider the effect of his current contention that he lied.
To characterize the ins as having “determined” Truong’s age probably suggests more of an affirmative investigation on the part of the ins than the facts here indicate. In “determining” Truong’s age, the ins apparently accepted at face value information provided by Truong.
However, we believe that if the ins reconsidered the issue on the basis of the physical evidence available to the probate court, it would likely agree with the birth date determined by the court. We also believe that defendant Truong has a much greater incentive to falsify his age in the instant context than when he sought probate court redetermination of his age.
There was evidence that individual words in Truong’s testimony were mistranslated to the jury (e.g., the threat from the decedent that he would “shoot” defendants was translated that he would “kill” them). These imperfect translations did not prejudice defendants, and, if anything, aided their claim of self-defense.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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O’Connell, P.J.
Following a jury trial, defendant was convicted of inserting an instrument into a money changer with the intent to steal, MCL 752.811(a); MSA 28.643(101)(a), and being an habitual offender with three previous felonies. MCL 769.12; MSA 28.1084. Defendant was sentenced to four to fifteen years in prison. We affirm defendant’s conviction, but remand for the purely administrative function of the preparation of a sentencing information report (sir).
After midnight on September 15, 1992, police officer Robert Anderson observed Doug Lawrence using a money changer at a car wash. When Officer Anderson pulled into the car wash parking lot, Lawrence abruptly left the money changer, got into a vehicle driven by defendant, and rode away. After defendant’s vehicle left the car wash, Officer Anderson noted that several dollars’ worth of quarters had been left in the change tray of the money changer. Moments later, Officer Anderson observed defendant’s vehicle drive past the car wash, as if its occupants were checking if Anderson had left. Officer Anderson left the car wash and pulled defendant’s vehicle to the side of the road. During a subsequent search of the occupants and the vehicle, officers obtained 104 quarters, empty quarter rolls, scissors, cellophane tape, and dollar bills that had cellophane tape on the edges. Testimony at trial later established that bills altered in this manner could be used to defraud the type of money changers used at the car wash.
i
Defendant first claims that the trial court erred in failing to suppress the evidence found on defendant and in his vehicle after the vehicle was stopped by police. Defendant argues that the circumstances did not justify an investigative stop under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and, accordingly, that any evidence obtained incident to the stop must be suppressed. We will affirm the decision of the circuit court unless clearly erroneous, that is, unless this Court is left with the definite and firm conviction that a mistake has been made. People v Christie (On Remand), 206 Mich App 304, 308; 520 NW2d 647 (1994).
In order for law enforcement officers to make a constitutionally proper investigative stop, the “totality of the circumstances as understood and interpreted by law enforcement officers, not legal scholars, must yield a particular suspicion that the individual being investigated has been, is, or is about to be engaged in criminal activity,” and “[t]hat suspicion must be reasonable and articulable.” People v Nelson, 443 Mich 626, 632; 505 NW2d 266 (1993). In analyzing the totality of the circumstances, common sense and everyday life experiences predominate over uncompromising standards, and law enforcement officers are permitted, if not required, to consider the modes or patterns of operation of certain kinds of lawbreakers. Id. at 635-636. “The question is not whether the conduct is innocent or guilty. Very often what appears to be innocence is in fact guilt, and what is indeed entirely innocent may in some circumstances provide the basis for the suspicion required to make an investigatory stop.” Id. at 632.
When dealing with a vehicle, the reasonable and articulable suspicion must be directed at the vehicle. People v Bordeau, 206 Mich App 89, 93; 520 NW2d 374 (1994). Fewer foundational facts are necessary to support a finding of reasonableness where a moving vehicle is involved than where a house or home is involved. Christie, supra at 308-309. Also, a stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search are conducted by the police. Id.
Although the events observed by Officer Anderson at the car wash may have had innocent explanations, they were also sufficient, under the circumstances, to reasonably arouse his suspicion. The previous night, Officer Anderson had been involved in the arrest of suspects who had defrauded vending machines by placing dollar bills into the machines and retrieving them after a selection had been made. Considering the totality of the circumstances — the time of night, the fact that it appeared that the money changer was not used for the purchase of car wash services, Lawrence’s hurried retreat from the area when Officer Anderson arrived, the abandonment of quarters in the change tray, defendant’s subsequent driving past the car wash, and Officer Anderson’s previous experience with the “modes or patterns of operation [characteristic] of” this type of criminal behavior — we cannot say that we are left with the definite and firm conviction that the trial court made a mistake and clearly erred in ruling that Officer Anderson’s suspicions were reasonable as perceived by a law enforcement officer. Nelson, supra. Therefore, finding no clear error, we affirm the court’s conclusion that the incident in question was a proper Terry investigation stop.
Because the stop itself was proper, Officer Anderson was permitted to briefly detain the vehicle and make reasonable inquiries aimed at confirming or dispelling his suspicions. Nelson, supra at 637. During Officer Anderson’s inquiry, he received information from another officer that the owner of the car wash had reported money missing from the money changer. This information, that a felony had been committed, coupled with the immediately preceding events giving the officer a reasonable suspicion that the occupants of the vehicle had been engaged in criminal activity, justified the arrest of defendant without a warrant. MCL 764.15(l)(c); MSA 28.874(l)(c); People v Richardson, 204 Mich App 71, 79; 514 NW2d 503 (1994).
Once an officer has made a lawful arrest of the occupant of a vehicle, the officer may search the occupant, see People v Daniel, 207 Mich App 47, 52; 523 NW2d 830 (1994), as well as the entire passenger compartment of the vehicle. People v Catanzarite, 211 Mich App 573, 581; 536 NW2d 570 (1995). Therefore, the evidence seized during the search of defendant and the vehicle was properly obtained, and the trial court did not clearly err in failing to suppress it.
n
Next, defendant claims that the prosecution improperly bolstered the credibility of the primary police witness, thereby depriving defendant of a fair trial. During his opening statement, the prosecutor referred to Officer Anderson as a “good cop.” Defendant failed to object to this remark at trial. Because an objection and concomitant curative instruction could have rectified any error and a failure to review this issue would not result in a miscarriage of justice, we decline to review further this allegation of error. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).
in
Next, defendant claims that he was prejudiced by the trial court’s failure to compel witnesses on his behalf to testify during the suppression hearing. We review the trial court’s decision regarding compulsory process for an abuse of discretion. People v Loyer, 169 Mich App 105, 113; 425 NW2d 714 (1988).
Defendant contends that because the trial court failed to compel certain witnesses to testify on his behalf during the suppression hearing, he was unable to establish that the evidence against him was illegally obtained. Defendant submits that he was detained for far longer than was justifiable and that these witnesses were necessary to establish the timing of the incidents surrounding the stop, arrest, and search. However, because the investigating officer was diligently pursuing a means of investigation likely to confirm or deny quickly his suspicions, the detention, even if as long as forty-five minutes as defendant claims, was not improper. People v Chambers, 195 Mich App 118, 121, 123; 489 NW2d 168 (1992). Therefore, the trial court did not abuse its discretion in declining to compel the witnesses to testify.
IV
Next, defendant claims that he was charged under the wrong statute. The specific charge to file against a defendant is a decision that rests in the prosecutor’s discretion, and such decisions will be reviewed for an abuse of that discretion. People v Ford, 417 Mich 66, 93; 331 NW2d 878 (1982).
Defendant was charged under MCL 752.811; MSA 28.643(101), which states that a person shall be guilty of a felony if he “[e]nters or forces an entrance, alters or inserts any part of an instrument into any parking meter, vending machine dispensing goods or services, money changer or any other device designed to receive currency or coins with the intent to steal.” Clearly, under the circumstances of this case, defendant’s conduct — aiding and abetting in the insertion of doctored currency into a money changer in an attempt to defraud the machine — falls within the type of conduct prohibited by the statute.
Defendant submits that he should instead have been charged with the misdemeanor of use of a “slug” in a vending machine. MCL 752.801; MSA 28.471. Even assuming that MCL 752.801; MSA 28.471 applies to this offense, the prosecutor is the chief law enforcement officer of the county and has the right to exercise broad discretion in determining under which of two arguably applicable statutes a prosecution will be instituted. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693 (1972). If warranted by the facts, the prosecutor has the discretion to proceed under any applicable statute. Id. at 684. This is true even where one applicable offense is a felony and one is a misdemeanor. Ford, supra at 93.
Therefore, because the facts warranted initiating a prosecution under MCL 752.811; MSA 28.643(101), it was proper for the prosecutor to bring such a charge against defendant.
v
Next, defendant claims that his constitutional rights were violated because he was denied access to a law library to further his in propria persona defense. We disagree. The state satisfied its constitutional obligation when it offered defendant the assistance of counsel, which he declined. People v Mack, 190 Mich App 7, 24; 475 NW2d 830 (1991). The state was not required to offer defendant law library access once it fulfilled its obligation to provide him with competent legal assistance. Id.
VI
Last, defendant claims error in his sentencing. Specifically, defendant argues that he must be resentenced because the trial court failed to prepare an SIR and, as a result, imposed a disproportionate sentence. As will be explained, we would conclude that, though it was error for the trial court to fail to prepare an SIR, recent Supreme Court treatment of this area of the law deprives defendant of standing to raise this issue. Accordingly, finding defendant’s sentence proportionate, we would affirm. However, we are constrained to remand for the administrative task of the preparation of an SIR because this Court, in People v Zinn, 217 Mich App 340; _ NW2d ___ (1996), recently con-
We agree that an SIR should have been prepared in the present case. At defendant’s sentencing, the court mistakenly concluded that a conviction of inserting an instrument into a money changer with intent to steal, MCL 752.811(a); MSA 28.643(101)(a), was a felony to which the sentencing guidelines do not apply. However, the crime of which defendant was convicted is but a subset of the crime of breaking and entering a coin-operated device, MCL 752.811; MSA 28.643(101), a felony that is part of the burglary crime list. Michigan Sentencing Guidelines (2d ed), pp 1, 12. Thus, the guidelines do apply to this offense, and the sentencing court should have completed an sir before sentencing defendant.
However, in light of recent Supreme Court clarification of this area of the law, we do not believe that defendant has standing to raise this issue, because, regardless of what a properly prepared sir would have reflected, it would have had no effect on defendant’s sentence.
The law pertaining to the preparation of sentencing information reports in the context of habitual offenders has been in something of a state of tumult recently. Before our Supreme Court’s decision in People v Cervantes, 448 Mich 620; 532 NW2d 831 (1995), the sentencing guidelines were considered a “helpful tool” when determining proportionate sentences in the context of habitual offenders despite the fact that the guidelines do not, strictly speaking, apply to habitual offender sentences. See, e.g., People v Martinez (After Remand), 210 Mich App 199, 201; 532 NW2d 863 (1995); People v Derbeck, 202 Mich App 443, 446-447; 509 NW2d 534 (1993). However, because the guidelines were considered useful, sentencing courts were required to compute them before sentencing habitual offenders. Martinez, supra at 201; Derbeck, supra at 446.
The Supreme Court altered this established rule of law in Cervantes. In that case, a majority of our Supreme Court concluded that the sentencing guidelines have no place in the sentencing of habitual offenders. However, no one rationale for so holding garnered the signatures of a majority of the justices. See Cervantes, supra at 621-630 (opinion of Justice Riley, joined by Justices Mallett and Weaver), 637-638 (opinion of Justice Boyle). In short, a majority agreed concerning the result, but not concerning the rationale for reaching that result.
This Court, in its initial attempt to apply Cervantes, concluded that because a majority of the Supreme Court had not agreed concerning the rationale underlying its holding, no new rule of law had been established. In People v Gatewood, 214 Mich App 211, 213; 542 NW2d 605 (1995), vacated 450 Mich 1021 (1996), a defendant convicted of being an habitual offender claimed that he was entitled to be resentenced because the sentencing court had erred in scoring the sentencing guidelines. This Court was thus called upon, in the wake of Cervantes, to “determine whether the sentencing guidelines are still pertinent in determining an habitual offender’s sentence.” Id. at 212. Given that “if a majority of the court agree[s] on a decision in [a] case, but less than a majority could agree on the reasoning for that decision, the decision has no stare decisis effect,” 20 Am Jur 2d, Courts, § 159, p 443, citing Grimm v Ford Motor Co, 157 Mich App 633; 403 NW2d 482 (1986), this Court concluded that because “the Cervantes opinion does not present a majority opinion concerning this issue[, w]e are bound to follow past precedent and will continue to use the guidelines as a starting point and useful tool in determining whether an habitual offender’s sentence is proportionate.” Gatewood, supra at 213. Finding that the defendant’s argument had merit, this Court, accordingly, remanded the case for recalculation under the guidelines and resentencing. Id. at 213-214.
Gatewood was a short-lived decision. Four months after Gatewood was released, the Supreme Court, in lieu of granting leave to appeal, vacated this Court’s decision and remanded the case back to this Court. People v Gatewood, 450 Mich 1021 (1996). The Supreme Court stated that this Court “erred” in its interpretation of Cervantes because “a majority of this Court agreed that appellate review of habitual offender sentences using the sentencing guidelines is inappropriate.” Id. The order vacating Gatewood made no mention of the differing rationales adduced by the justices in reaching their decision.
On remand, this Court held that review of an habitual offender sentence is limited to considering whether the sentence violates the principle of proportionality as set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), without reference to the guidelines. People v Gatewood (On Remand), 216 Mich App 559; 550 NW2d 265 (1996). Thus, the Gatewood (On Remand) panel, in effect, adopted the rationale advanced by the lead opinion in Cervantes, that signed by Justices Riley, Mallett, and Weaver.* **
In summary, regardless of the law of stare decisis, our Supreme Court has made clear that the sentencing guidelines no longer have a place in determining the proportionality of an habitual offender’s sentence. While the proportionality of an habitual offender’s sentence is still reviewed under the abuse of discretion standard, the guidelines have no bearing with regard to whether an abuse has occurred.
Returning to the present case, defendant, an habitual offender, contends that the sentencing court erred in failing to prepare an sir before imposing sentence. The law in this area is clear: “the trial court must fill out a sentencing information report” when sentencing an habitual offender. Derbeck, supra at 446; see also Michigan Sentencing Guidelines (2d ed), p 1. Therefore, we agree that error occurred.
However, we would find that, in light of the case law discussed above, defendant has no standing to raise this issue. As set forth in House Speaker v State Administrative Bd, 441 Mich 547, 554; 495 NW2d 539 (1993): “Standing is a legal term used to denote the existence of a party’s interest in the outcome of litigation that will ensure sincere and vigorous advocacy. However, evidence that a party will engage in full and vigorous advocacy, by itself, is insufficient to establish standing.” To be deemed to have standing, “one must have a legally protected interest that is in jeopardy of being adversely affected.” Tallman v Milton, 192 Mich App 606, 612-613; 482 NW2d 187 (1992). In other words, “[standing requires a demonstration that the plaintiff’s substantial interest will be detrimentally affected in a manner different from the citizenry at large.” House Speaker, supra at 554. Although usually raised in the civil context, the question of standing pertains to criminal matters as well. People v Smith, 420 Mich 1, 11-12; 360 NW2d 841 (1984). An appellate court need not review an issue in which the party alleging error lacks standing. Grace Petroleum Corp v Public Service Comm, 178 Mich App 309, 312; 443 NW2d 790 (1989).
Thus, though a somewhat “amorphous” concept, Smith, supra at 11, quoting Flast v Cohen, 392 US 83, 99; 88 S Ct 1942; 20 L Ed 2d 947 (1968), standing requires a showing of two elements: first, that the party will devote himself to the sincere and vigorous advocacy of his position, and, second, that the party has a legally protected interest at stake that differs from the interest of the citizenry at large.
In the present case, we have no doubt that defendant satisfies the first prong. A criminal defendant has an interest like no other in the sentence he receives. His vigorous advocacy of error in Ms sentence may be presumed.
However, in light of Cervantes and Gatewood (On Remand), defendant fails to satisfy the second prong, wMch is to say, he has no legally protected interest in the preparation of an SIR. As explained in the sentencing gmdelines themselves, the preparation of an SIR in the case of an habitual offender is not for the benefit of the defendant himself — “This information will aid in the development of gmdelines to cover habitual offenders.” MicMgan Sentencing Gmdelines (2d ed), p 1. As elucidated by tMs Court in People v Strickland, 181 Mich App 344, 346; 448 NW2d 848 (1989), the preparation of an sir in the case of an habitual offender “is done to aid in the development of guidelines for habitual offender sentencings, rather than to guide the sentencing court in determining the habitual offender’s sentence.” Further, as made clear in Gatewood (On Remand), supra at 560, “appellate review of habitual offender sentences using the sentencing guidelines in any fasMon is inappropriate.” Thus, defendant urges us to remand the case for resentencing despite the fact the requirement that an sir be prepared was not established for his benefit, MicMgan Sentencing Guidelines (2d ed), p 1, and will in no way benefit Mm on remand, Gatewood (On Remand), supra at 560.
We would conclude that defendant lacks standing in the present context. In short, defendant seeks to benefit from an error in the purely “admimstrative function” of preparing an SIR. Strickland, supra. Given the defendant’s lack of standing, “[w]e see no need ... to engage the trial court in the futile exercise of marching up the sentencing hill again, oMy to hand out the same sentence and march back down again.” People v Ristich, 169 Mich App 754, 759; 426 NW2d 801 (1988), citing United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972).
Therefore, having concluded that defendant lacks standing with respect to his contention that the sentencing court failed to prepare an SIR, our only remaining inquiry is the proportionality of the sentence itself. The sentence of an habitual offender must be proportionate as set forth in People v Milbourn, supra. Gatewood (On Remand), supra. Here, while the offense itself was relatively minor, defendant’s criminal history includes three prior felonies and twenty-nine prior misdemeanors. In light of defendant’s criminal history and the present offense, we find no abuse of discretion in the four- to fifteen-year sentence imposed. Id.
However, as alluded to above, this Court has previously addressed the issue of preparation of an SIR in the case of an habitual offender and has come to the conclusion that a remand for the preparation of an SIR is required despite the fact that it will have no effect on the defendant’s sentence. In Zinn, supra, this Court was faced with a substantially identical factual situation. Though conceding that preparation of an SIR under facts as those presently before this Court would be a “solely . . . administrative task,” this Court held that a remand was required because the preparation of an SIR was mandatoiy. Id. at 350.
The Zinn panel did not, however, address the issue of standing. While we agree that the preparation of an sir is, indeed, required, we do not believe that a defendant has standing to raise the issue. We axe confident that had the issue of standing been addressed, the Zinn Court would have reached the conclusion set forth in this opinion.
Nevertheless, we are presently bound by the Zinn decision and respectfully follow it. Therefore, we order this case remanded for the preparation of an SIR.
Affirmed, but remanded for the purely administrative function of the preparation of a sentencing information report.
Because it is not necessary to our resolution of this issue on appeal, we do not consider whether the use of an altered dollar bill, that is, paper currency, may be considered a violation of MCL 752.801; MSA 28.471, which prohibits the use of “slugs” with respect to vending machines “operated by lawful coin.”
See People v Haacke, 217 Mich App 434;_NW2d_(1996).
A panel of this Court, in People v Kerperien, (Docket No. 148785), issued an opinion on March 8, 1996, that relied on this Court’s first Gate-wood opinion in concluding that where a court fails to prepare an SIR when sentencing an habitual offender, the proper remedy is to vacate the defendant’s sentence and to remand for the completion of an sir and for resentencing after consulting the applicable guidelines range. However, the Kerperien panel, following the Supreme Court’s vacation of Gatewood, withdrew from publication and vacated its original opinion, albeit in the highly unorthodox fashion of issuing an unpublished opinion to that effect on rehearing. People v Kerperien (On Rehearing), unpublished opinion per curiam of the Court of Appeals, issued June 28, 1996 (Docket No. 148785). Thus, Kerperien is not binding precedent.
We would note that the Gatewood (On Remand) panel subtly indicated its disagreement with the Supreme Court’s order vacating the original Gatewood opinion where it stated “[pjursuant to that order, appellate review of habitual offender sentences using the sentencing guidelines in any fashion is inappropriate,” Gatewood (On Remand), supra at 560 (emphasis supplied), rather than “pursuant to People v Cervantes." By this choice of words, the panel suggested that it was not the Cervantes opinion itself that established this new rule of law, but, rather, the Supreme Court’s subsequent order in Gatewood.
This decision should not be read as condonation of a trial court’s failure to complete an sir when sentencing an habitual offender. The sir must still be completed to aid in the development of guidelines for habitual offenders. Michigan Sentencing Guidelines (2d ed), p 1; Derbeck, supra at 446.
The treatment of this issue in Zinn at 350 is set forth, in toto:
Nonetheless, although the sentencing guidelines do not apply to habitual offenders, the trial court must fill out an sir for the trader-lying offense. People v Derbeck, 202 Mich App 443, 446; 509 NW2d 534 (1993); Michigan Sentencing Guidelines (2d ed), p 1. “This is done to aid in the development of guidelines for habitual offender sentencings, rather than to aid the sentencing court in determining the habitual offender’s sentence.” People v Strickland, 181 Mich App 344, 346; 448 NW2d 848 (1989). Thus, we remand this matter to the trial court solely for the administrative task of completing a written sir. | [
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Moore, C. J.
The complainants are members of the defendant corporation. The bill in this case was filed to obtain an injunction restraining the Arbeiter Unterstuetzungs Verein, and the other defendants, who are its officers, from a claimed misappropriation of $500 which complainants and the other members of the verein had paid into its treasury. A restraining order was issued on filing the bill, and at the hearing a final decree granting a perpetual injunction was rendered. The appellant defendants bring the case here by appeal.
The circuit judge filed a written opinion, which states so clearly the issue involved that we quote from it as follows:
“Complainants filed a bill in this court against the defendant, asking for an injunction restraining the Arbeiter Unterstuetzungs Verein, of Saginaw City, Michigan, from paying to the beneficiaries of Charles Stocker moneys in their possession or under their control which had been paid in by members of the Arbeiter Unterstuetzungs Verein as dues or otherwise.
“ It is claimed in the bill filed that the defendant the Arbeiter Unterstuetzungs Verein is a corporation organized under the laws of the State of Michigan, pursuant to Act No. 42 of the Public Acts of 188?.
‘£ The Allgemeiner Arbeiter Bund, a State corporation, organized under the laws of the State of Michigan, is composed of the different arbeiter societies in the State of Michigan; being 81 similar'associations. No person can become a member of the State bund unless he is a member of the local association. The bund issues to every member who is in good standing in one of the local societies a benefit certificate payable to the beneficiaries named in the certificate, upon the payment of annual dues to the local society of eight dollars; five dollars of the dues to belong to the death fund for bund dues, and three dollars to the general fund.
“It is further claimed that the defendant society, its trustees or officers, have no right to pay the claim or benefits out of any of the fund contributed as herein by the complainants or any members of the association.
“ It is further claimed that Charles Stocker was a member in good standing on the 13th day of September, 1903; that he died, and that his heirs or other lawful beneficiaries, after filing with the State bund proofs of death, are entitled to the death benefit of $500; that the heirs or beneficiaries have no right to demand or be paid this amount from the local society.
“It is further claimed that since the death of Charles Stocker a resolution was passed by the local society to pay the death-benefit claim out of the funds in the hands of the local society, which should be paid only by the State bund, as the local society never issued a benefit certificate to Charles Stocker, deceased; that there are now 944 members of the Arbeiter Unterstuetzungs Verein of Saginaw City, and that there are 9,500 members of the Allgemeiner Arbeiter Bund, being the State society; that if the local society pays its dues, as provided by the by-laws, to the State bund — being ten cents for each and all members in good standing — it would only cost the local society $94.40; but, if the full amount of said death benefit is paid by the local society, it will cost said local society $500, or more than ten times as much as they are legally liable to pay or contribute.
“ It is further claimed that it would be a gross breach of trust by defendant, which would result in great and irreparable loss and damage to the complainant and other members of the local society, and that the bill is filed in behalf of the complainants and other members of the society, as they are too numerous to be made all parties complainant or defendant. And they pray that this suit may be treated and regarded as commenced and carried on in behalf of all such persons, as well as in the names of the complainants, and that the defendants may be perpetually restrained and enjoined from paying the heirs or other beneficiaries of the late Charles Stocker anything out of money in their possession or under their control which has been paid in by members of the Arbeiter Unterstuetzungs Verein, as dues or otherwise, and that the defendants be authorized, when properly required, to pay over to the Allgemeiner Arbeiter Bund of the State of Michigan, out of the funds in its hands, towards paying the Stocker benefit certificate, the sum of ten cents for each member of said defendant society.
‘ ‘ A demurrer to said bill was filed, and an order was made requiring the complainants to amend their bill, and the same was amended pursuant to said order.
“An answer has been filed by the defendants, claim ing that they have full power and authority to pay the benefit certificate, as they are no longer members of the State bund; that they are a separate and distinct corporation, and, under the constitution and by-laws of the State bund and the constitution and by-laws of the defendant society, they have a right to withdraw from said bund, as they have done, and they were not a member of the State bund when said bill was filed. That the reason for withdrawing from said bund is the fact that for the past 15 years the local society has paid into the State bund, on account of benefits arising from the deaths of members of the several societies, the aggregate sum of $86,516.50, and that they have only received through the bund, as benefits, the sum of $57,400. That they have paid $29,116.50 in excess of any and all benefits derived through the affiliation.
“ It is conceded that the local society, as long as they remained a member of the State bund, have paid each year the sum of five dollars per member as dues, and they believe that it is for the best interests of the members of the local society to no longer remain a member and be affiliated with the State bund. That a committee on constitution and by-laws was appointed, which on the 5th day of July, 1903, reported to the society, in writing, the changes that were necessary to be made for the purpose of carrying into effect the withdrawal of said local society from said bund. That due notice was given to all the members of the local society, by postal cards being sent to each member, and that only seven of the postal cards were returned as not having been received by the members to whom they were addressed. That there were 309 members present at said meeting. That 222 voted in favor of withdrawing from the State bund, and 78 voted against it. That at the same meeting the report of the committee to amend the constitution and by-laws was adopted unanimously. This meeting was held on August 5, 1903. That due notice was given to the State bund, notifying them of the action taken by the local society, and that since that time they have had no further transaction or business connection with the State bund. And that they have a right to pay the "benefit certificate held by the heirs or beneficiaries of Charles Stocker, deceased. That a resolution was passed directing the society to pay over from its treasury the sum of $500 for the benefit of the widow and children of said Charles Stocker, deceased.
“ It is further claimed by the defendants that it is within the corporate power of the defendant corporation to take care of all such claims arising on account of the death of its members; that it is eminently fitting and proper that it should do so, under the act of its incorporation, its constitution, and by-laws.
“Testimony was taken in open court, and the only question for me to pass upon is, Has the local society a right to pay the death-benefit certificate that was issued by the State bund to Charles Stocker, in which bund the local society is a member, and Charles Stocker being a member of the local society ? It is not claimed that the benefit certificate was ever surrendered and canceled by Charles Stocker in his lifetime, and a new certificate issued by the local society pursuant to their amended constitution and by-laws. If this had been done, it would present a different question. But what right has the local society to pay a certificate which is issued by the State bund, and where it is claimed by the complainants in this particular case they would be paying a little over five times as much in paying this certificate through the [ocal society as they would through the State bund ?”
The circuit judge held the local society had no right to pay the death-benefit certificate issued by the State society, and so decreed.
The claim oFthe defendants and appellants is that the decree is erroneous, for the following reasons:
1. That said bund is not made a party to this litigation; has not asked for any such decree; has not recognized said Stocker benefit certificate as a binding obligation upon it; and has made no assessment to meet it, nor taken any steps in the matter, unless to pay the expenses incurred on the part of complainants in this suit.
2. That three members of the board of trustees were omitted as parties to this suit.
3. That neither the civil nor the property rights of com-
plainants are involved in this litigation, nor is any fraud charged or claimed by the bill. *
4. That no request has been made to the defendant corporation, its officers, its board of trustees, or any of them, to have the action relative to said withdrawal, or to the passage of said resolution for said Stocker’s dependents, either rescinded or reconsidered, or to have them, or either -of them, institute any legal proceedings whatever to test the legality thereof, or to restrain the payment of such money.
5. That the action of said society in withdrawing from said bund and revising its constitution, as stated, was legal and valid, and had the effect to then and there sever its relations with the bund, and to annul the obligations of the bund upon certificates, including the one in question.
6. That because of such withdrawal defendant corporation had the right to provide for the payment to the dependents of its members who held bund certificates at the time of withdrawal of the amount called for by such certificates, either by the issue of new certificates, or by the passage of a resolution to that effect before the new certificates had been prepared.
7. That under article 8 of the constitution of defendant corporation, providing:
“ Section 1. Widows and orphans of deceased members who were entitled to benefits, shall, if they apply for the same and the treasury permits, be aided in the judgment of the society” — as well as under other provisions, the society possessed the power to pass the resolution in question for the Stocker dependents, or to give them any sum of money, or other relief whatsoever, which, in the judgment of the society, it was proper to afford, having in view its financial ability to do so. As already stated, the corporate power to do this is not questioned by the bill.
8. That the bill is multifarious, in seeking the distinct and different kinds of relief granted by the decree.
As to reasons 1 and 8, it may be said they were assigned as reasons in the demurrer, and were overruled by the judge. From that decision no appeal was taken.
In Kraatz v. Electric Light Co., 82 Mich. 457, it was said:
“It is claimed by plaintiff’s counsel that,-inasmuch as the defendant did not choose to stand upon its demurrer, but pleaded issuably after it was overruled, it could not thereafter again raise the questions settled by the overruling of the demurrer; citing Ashton v. Railway Co., 78 Mich. 587; Cicotte v. County of Wayne, 44 Mich. 173; Peterson v. Fowler, 76 Mich. 258. See, also, Wales v. Lyon, 2 Mich. 276. This position is undoubtedly correct, under all our previous holdings, and this disposes of all the questions raised upon the declaration. ”
We think that principle applicable to the case at bar,' where it may be said that it is not essential to a just decree between appellants and appellees that the bund be made a party.
As to reason 4, this appeared in the demurrer to the oi’iginal bill, and the court held it good. Thereupon the complainants amended their bill by adding the following:
“ Complainants did not ask defendant Arbeiter Unterstuetzungs Verein, or any of the other defendants named in the original bill in this cause, to institute suit or take any legal action to prevent the wrong and injury which they themselves threatened to do to these complainants and their rights, as set out in the original bill, because it would have been idle and useless to do so, for the reasons following: (a) Said- defendants were duly notified of the death of Charles Stocker, and upon such notice it was their duty, through the president and secretary of the Arbeiter Unterstuetzungs Verein, to give notice of the same to the Allgemeiner Arbeiter Bund, but defendants neglected and refused to do so, and on the contrary passed the resolution referred to in paragraph 8 above; thus showing a definite and deliberate purpose on their part to ignore the rights of complainants as members of the Arbeiter Unterstuetzungs Verein, and as members of the Allgemeiner Arbeiter Bund of Michigan. (6) Because said defendants themselves then threatened and intended, and still threaten and intend, to do injury and wrong to complainants, which complainants ask this court to protect them from; and it would have been idle then, and would be idle now, to ask defendants to take legal action against themselves, (c) The rights which complainants ask this court to protect and enforce are not rights which belong or ever belonged to the defendant Arbeiter Unterstuetzungs Verein, or any other of the defendants, but, on the contrary, are rights which belong and always belonged to those complainants and the other members of the Arbeiter Unterstuetzungs Verein, in whose behalf, as well as in behalf of complainants, this bill is filed.”
These allegations were sustained by the testimony.. It is clear, too, from the attitude of the defendants in the original bill, that they have no sympathy with the position taken by the complainants.
In 2 Cook on Stock, Stockh. & Córp. Law, § 741, it is said:
“ There are occasions when the allegation that the stockholder has requested the directors to bring suit, and they have refused, may be omitted, since the request itself is not required. This occurs when the corporate management is under the control of the guilty parties. No request need then be made or alleged, since the guilty parties would not comply with the request; and, even if they did, the court would not allow them to conduct the suit against themselves. Nevertheless, instead of this allegation, the complainant must allege the facts which excuse such a demand or request to the directors, and these facts must be stated with particularity and definiteness.”
See, also, Clark on Corp. pp. 395-398; De Neufville v. Railway Co., 81 Fed. 13, 26 C. C. A. 306; People’s Savings Bank v. Building Co., 8 Colo. App. 354; Flynn v. Third Nat. Bank, 122 Mich. 642. We think the allegations of the amended bill of complaint and the testimony bring the case within these authorities.
As to reason 7, we think it very clear that, in taking the action it did, the defendant corporation was not proceeding under section 1, art. 8, of its constitution, which authorizes the giving of aid to widows and orphans, but was in fact undertaking to pay out of its funds, to the beneficiaries named in a certificate issued by the bund, the obligation named therein. This, then, brings us to the important question in the case; that is, Did the defendant corporation have the right, by a much less than a majority vote of its membership, to sever its relations with the State bund ?
The Allgemeiner Arbeiter Bund of Michigan was founded January 1, 1870, and reincorporated in 1887 under Act No. 42 of that year (2 Comp. Laws 1897, §§ 7441-7446). Defendant Arbeiter Unterstuetzungs Verein was originally incorporated September 11, 1871, under chapter 58, 1 Comp. Laws 1857, and was reincorporated Decem ber 19, 1892, under chapter 164, 1 How. Stat. It became a member of the bund in 1872. One of the articles of reorganization (No. 4)' contains the following:
“ The foregoing is a reorganization of the Workingmen’s Relief Association of Saginaw City, Michigan, incorporated 1871, and the persons executing the same are members of said Workingmen’s Relief Association, being the society hereby reorganized as the Arbeiter Unterstuetzungs Verein.”
When the Allgemeiner Arbeiter Bund was reorganized, in 1887, the defendant verein became one of the subscribers to the articles of reincorporation. At this time there were 48 local societies. This number had increased, when the defendant corporation sought to sever its connection with the bund, to 82, with upwards of 9,400 members. The defendant corporation had at the last-named time 940-odd members. The individuals composing the local societies are members of the bund from whom they receive insurance certificates, the bund being the insurer. For the purpose of providing a fund to pay this insurance, each corporate member of the union is required to pay upon the death of a member of the bund an amount equal to-10 cents for each of its own members.
Article 10 of the constitution of the bund provides:
“ To have a surer rule and a payment of the bund moneys, the bund shall furnish, of sufficient numbers, printed heir or death certificates, to be sent to all of the local societies for their members. Each member shall, in this certificate, name or designate with the full name of the person or persons to whom after his death the money shall be paid. * * *
“ By the death of a member of the bund, the bund shall send, after the lapse of thirty days from the date of the official notice, including also a certificate accompanying said official notice, such sum of money to said society, payable to the order of the person named in the certificate, according to art. V, paragraph nine of the by-laws. If there are no legal heirs living, then the money on death fund reverts to the bund.”
• The certificates issued to the complainants, and to Mr. Stocker as well, were issued under the provisions of this article. It will be seen that the members of the various local societies had the benefit of certificates of insurance issued by the bund, which embraced in its membership' upwards of 9,000 persons. It will also be noted that, if one local society could go out without consulting the bund, any number might do so, and thus impair the security furnished by the insurance. If, too, the local society could undertake, with its membership of a little more than 900, to stand in the place of the bund, with its membership of more than 9,000, it would greatly lessen the value of the insurance.
Article 2 of the constitution of the bund, § 3, provides that “only an incorporated arbeiter mutual association, which warrants or guarantees aid to its members, in case of sickness or death of its members, shall be received into this association.”
Article 2 of the verein constitution sets forth that the “object of the society is: Section 1. Assistance of the sick and suffering as also to provide for decent burial of its members. Sec. 2. To provide for the widows and orphans of deceased members. Sec. 3. Care for proper administration of the estates of deceased members. Sec. 4. To promote the social intercourse of the members. ”
The object and purpose of the bund are thus stated:
“ Third. The object and purpose of such association is the general welfare of the members of the societies forming such association, and the extending to them and their families, in case of death, such material aid as may be fixed from time to time by the constitution and by-laws of the association.”
While the purposes and objects of the verein are defined in subdivision 3, § 1, of chapter 164, 1 How. Stat., as follows:
“ Third. The purposes and objects for which said cor-' poration is formed which shall be to provide for the relief of distressed members, the visitation of the sick, the burial of the dead, and such other benevolent and worthy pur poses and objects as affect the members of the corporation, the period for which said corporation is formed, which period shall not exceed thirty years. ”
Counsel claim (we quote from the brief) that—
“ By adopting their several constitutions, and thereby assuming towards each other and their members the relations and obligations described, these corporations have put a practical construction upon those statutes, and that construction gives no support to the conduct or contention of these defendants. On the contrary, it plainly forbids what they are attempting to do. No doubt, the constitution of the verein and the constitution of the bund, as well as the beneficiary certificate, form parts of such insurance contracts. Niblack on Acc. Ins. & Ben. Soc. (2d Ed.) p. 271; Supreme Lodge Knights of Honor v. Nairn, 60 Mich. 44; 3 Am. & Eng. Enc. Law (2d Ed.), p. 1059; Union Mutual Ass’n v. Montgomery, 70 Mich. 587; Wist v. Grand Lodge A. O. U. W., 22 Or. 271.
“ The peculiar character of the case makes it necessary to look upon both of these constitutions in this light, for each is so drawn with reference to the other as to require them to be considered together. And on the principle of the authorities cited, not only the articles of association of the bund, but also its constitution, is a part of the contract between it and the corporations associating. Thus viewed, they certainly do not warrant the secession of August 5th, nor the amendments of the verein constitution which followed. * * * The language in which such power is reserved must be read in the light of the statute under which the verein is incorporated. Section 4 of chapter 164 provides that:
‘ ‘ ‘ Said corporation shall have full power and authority to make and establish rules and regulations for the regulating and governing of the affairs and business of said corporation and members thereof, not contrary to the laws of the United States or this State, to decide as to the necessary qualifications for and who shall be eligible to membership therein, to provide for the election of members and to designate, elect, or appoint in such manner as they see fit, by their rules and regulations, such officers, under such names and style as they shall decide, who shall exercise such powers and such supervision, control, and management of the affairs of such corporations as shall be delegated to them respectively, by the constitution, rules, regulations, and by-laws of said corporations.’
“ Both the State (article 4, § 43) and the Federal (article 1, § 10) Constitutions prohibit laws impairing the obligation of contracts, and under the latter the State is forbidden to deprive any person of property without due process of law. Amend. 14. These rules form a part of the laws of the United States and of this State, within the meaning of the above statute. General power to make changes in the constitution and by-laws will not authorize amendments which materially impair prior insurance contracts or change the scheme of insurance. Niblack on Acc. Ins. & Ben. Soc. (2d Ed.) §§ 25, 26, pp. 58-62; Strauss v. Mutual Reserve Fund Life Ass’n, 126 N. C. 971, 128 N. C. 465 (54 L. R. A. 605); Bragaw v. Supreme Lodge Knights of Honor, 128 N. C. 354 (54 L. R. A. 602); Johnson v. Reformers, 135 N. C. 385; Pokrefky v. Firemen's Fund Ass’n, 121 Mich. 456; Starling v. Royal Templars, 108 Mich. 440; Wheeler v. Order of Iron Hall, 110 Mich. 437; Becker v. Insurance Co., 48 Mich. 610; Kalbitzer v. Goodhue, 52 W. Va. 435; Union Ben. Society v. Martin, 113 Ky. 25; Hale v. Equitable Aid Union, 168 Pa. St. 377; Becker v. Benefit Society, 144 Pa. St. 232; Wist v. Grand Lodge A. O. U. W., 22 Or. 271.”
It is apparent that the attempted action of the defendant corporation very greatly changes and impairs the obligations of the contract which resulted from the complainants becoming members of the local society, and receiving certificates of insurance from the bund.
It is said by counsel for defendant that article 16 of the constitution of the bund entitled the society to withdraw at its discretion. It reads:
_ “This union cannot be dissolved as long as fifteen associations belong to it, and each association which steps out of the union of the ‘Allgemeiner Arbeiter Bund ’ declares thereby that it gives up all claim to the property or possessions.”
We think this should be read in connection with sections 41 and 42 of article 9, which read:
“If an association should not pay its pledges within two months, it is the duty of the treasurer to make it known to such association, and if the association does not pay its pledge within a month after said notice, it becomes the • duty of the president to suspend said association.
“If at any time an association of the union is suspended and fails within four months to comply with the pledge toward the union, the said association shall be dropped by the executive committee of the union. It has, however, the privilege of appeal to the union.”
When so read, we do not think it can be said that it was contemplated any local society could withdraw at its discretion.
The decree is affirmed.
Carpenter, Grant, Montgomery, and Hooker, JJ., concurred. | [
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Moore, C. J.
In May, 1904, a complaint was made before a justice of the peace, charging one Malone with larceny from the person of one McElroy of one gold stick pin, of the value of $75. A warrant was issued, in which the offense charged followed the statement made in the complaint. Malone was arrested and taken before the justice of the peace, and an examination was held, the result of which was that the justice of the peace held Malone for trial to the circuit court for the offense alleged in the complaint and warrant. In September an information was filed against Malone in the circuit court, in which the offense was stated as follows:
‘ ‘ That he did take, May 25,1904, at the city of Ionia, one gold stick pin of the value of $75 and $6 in money of the United States of America, of the goods, chattels, and money of one James C. McElroy, from the person of said James C. McElroy, and then and there did feloniously steal, take, and carry away. ”
When arraigned, and before having counsel, Malone pleaded not guilty. After he procured counsel, leave was given him to withdraw his plea of not guilty and file a motion to quash the information, for the reason that the respondent was not charged in the complaint and warrant and was not held to trial by the examining magistrate for stealing $6, but was charged with the offense of stealing a stick pin of the value of $75. This motion was overruled, and, Malone standing mute, the court entered a plea of not guilty. Thereupon a trial was had, and in his return to the motion made in this case the trial judge states that no evidence was produced on said trial that Malone had stolen a stick pin or $6 in money as charged, and the court directed a verdict of not guilty on the charge of stealing the stick pin, and submitted the charge to the jury of whether he had attempted to steal from the person of James C. McElroy $6, and that the jury disagreed.
At the February term it was conceded by the prosecuting attorney that Malone could not again be put on trial for the larceny of the stick pin, but claimed he might be tried for the attempt to steal $6 in money from McElroy, and that this trial might proceed under the original information. A motion was made that the circuit judge quash the information, for the reason that the charge of stealing $6 is a separate and distinct offense from the charge of stealing a stick pin, and because the examining magistrate did not find there was probable cause to find Malone guilty of the crime of stealing $6. This motion to quash was granted, and the prosecuting attorney asks here for the writ of mandamus to compel the circuit judge to set aside this order, and to proceed with the trial of Malone for the offense of attempting to steal $6 from the person of' McElroy.
In his return to the writ, the trial judge, in addition to what we have already stated, returned that he quashed the information for the reason that the charge of stealing $6, as set forth in said information, is a separate and distinct offense from the charge of stealing a stick pin as set forth in the complaint and warrant and the return of the examining magistrate, and that the said magistrate did not find or return that there was probable cause to believe said accused person to have been guilty of the crime of stealing f 6, and that said Bert Malone cannot be put on trial in the circuit court for a separate and distinct offense from that set forth in the complaint and warrant and return made by the examining magistrate.
Upon the examination of the complaining witness in the court below, he gave testimony tending to show that in the morning, when he dressed himself, he put the stick pin into his necktie, and when he returned to the hotel the latter part of the afternoon it was gone. His testimony also showed that he spent a good share of the afternoon in saloons, drinking, and that Malone was with him, and showed circumstances which, taken in connection with his testimony, might tend to show Malone took the stick pin.
In addition to that, he gave testimony tending to show that Malone stole from him $6, and it is insisted by the prosecuting attorney that, though he was not charged with the offense of stealing the |6, inasmuch as there is testimony given upon the examination tending to show he had done so, he might be charged with that of fense in the information; citing Annis v. People, 13 Mich. 511, and quite a number of other cases. An examination of these cases convinces us that none of them go so-far as is contended here. Mr. Malone was not charged With the larceny of $6, but was charged with the larceny of a stick pin of the value of $75, and it is with reference to that offense that the examination was conducted.
The respondent was not called upon in the court below to meet any other charge. The examining magistrate did not undertake to inquire into any other charge. He did not find that any other offense had been committed, nor that there was probable cause to believe that Malone was guilty of the offense of stealing $6 from the person of Mr. McElroy, but did find there was probable cause to believe he stole from his person the stick pin. If any defense had been interposed as to the larceny of $6 in the justice’s court, it is quite possible that the examining magistrate might have found the offense was not proven; but no offense of that sort was charged, and it was not the subject of inquiry, except incidentally. We think the court was right in saying, as he did, that respondent could not be convicted of an offense with which he was not charged in the court below, and in relation to which no inquiry was entered upon by the examining magistrate. See People v. Jones, 24 Mich. 215; Yaner v. People, 34 Mich. 286; People v. Evans, 72 Mich. 387.
There is another reason why we should not set aside the order of the circuit judge. The writ of mandamus is a, discretionary writ. The return of the circuit judge shows that the evidence produced on said trial did not show that Malone had stolen $6 in money, as charged in the information, and, as to whether he had attempted to steal it or not, the jury were unable to agree. It is not made to appear in the petition that any different result would be reached if the order to quash the information was set aside, and another trial had.
The application for the writ of mandamus is denied.
Caepentee, McAlvay, Geant, and Blaie, JJ., concurred. | [
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Montgomery, J.
This is an appeal from an order of the circuit court, in chancery, of Oakland county, overruling demurrers separately by the railroad company and by the individual defendants Sanford and Carroll.
It is difficult to state the contents of the bill within reasonable limits without incurring the risk of omitting matter deemed material by counsel, but we think the salient features may be stated as follows: Complainants are stockholders in the defendant corporation. All the stock held by them was derived by complainant Stone, either as an individual or in a representative capacity, by virtue of a contract signed June 19, 1902, by all of the defendants except Margaret Porter, W. C. Sanford, and Frank H. Carroll. This contract provided, amongst other things, that 4,000 shares of stock in defendant company should be placed in escrow with a trust company named, and that unless prior to the 5th of January, 1903, the sum of $280,-000 should be paid to complainant Stone, the stock should be delivered to him, and that in the meantime no act should be committed which would impair the value of the stock. The bill alleges unlawful and unauthorized acts of the defendant Hugh Porter and other defendants which in this interim did impair the value of the stock. The bill also alleges prior and subsequent maladministration of the affairs of the company by defendant. The bill prays that defendant Porter account for his official misconduct, that defendants Porter and O’Brien be required to refund certain unauthorized salaries drawn by them under the pretended authority of a vote of the board of directors which was without validity, that the amount of a dividend declared without lawful authority be refunded, that certain illegal acts of the board of directors be set aside, and that the affairs of the corporation be wound up through a receiver. There was also a prayer for general relief.
The defendants Sanford and Carroll interposed a separate demurrer, on the ground that it appears by the bill that they have no interest in the matters set forth in the bill. The demurrer of the railroad company rests upon two grounds: First, that the bill is multifarious; and, second, that complainants have an adequate remedy at law.
As to the demurrer of the defendants Sanford and Carroll, the bill alleges their participation in the wrongful acts charged, and, notwithstanding the fact that no specific relief is charged against them, we think they are proper parties to the bill.
The claim is made that there is a misjoinder of complainants, inasmuch as complainant Stone seeks relief for the violation of the agreement of June 19, 1902, and complainants Barbour and Sells rest their claims on their ownership of stock acquired January 5, 1903. No different question is presented by this contention than that which is involved in the main issue, which is whether this is a bill to enforce the contract of June 19,1902, in any such sense as is claimed by defendant. If such is the purpose of the suit, it may follow that the bill is multifarious, and that the demurrer should be sustained on this ground. We are, however, upon full consideration, agreed that the bill should not be so read.
It is true the contract is set out, and in the view of complainants this was certainly proper, if not essential, as showing the relations of complainants to the stock, and as showing that complainants from the date of such contract had an equitable interest in the 4,000 shares of stock, or, at the least, that they occupied such a position with reference thereto that defendants are not in position to assert that the present holders of that stock are estopped from asserting the misconduct of defendants and predicating a claim for relief thereon. That the averments of the contract are introduced for this purpose is evidenced by the prayer, and, while the prayer is not controlling in determining the question of multifariousness, it is to be considered. 14 Enc. PI. & Prac. 203.
The same considerations furnish an answer to the con-. tention that complainants should seek their remedy at law.
It is also contended that the bill challenges transactions which preceded the settlement of June 19, 1902, and which were adjusted by that settlement; that, if complainants seek to occupy the position of stockholders, they must accept the condition of the company as it existed at that time; and that the introduction of these averments renders the bill multifarious.
If the defendant is right in asserting that complainants are not in position to question the dealings of the individual defendants with the corporation which occurred prior to June, 1902 (a point which we do not decide), the bill is not rendered multifarious by introducing such averments, or prayer for relief to which complainants are not entitled. 1 Daniell’s Chancery PL & Prac. 346, note; 14 Enc. Pl. & Prac. 205.
Our conclusion is that the demurrers were properly overruled. The order will be affirmed, with costs, and the cause remanded.
McAlvay, Geant, Blaib, and Ostbandeb, JJ., concurred. | [
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Montgomery, J.
This is a review of a proceeding taken by the petitioner to condemn a right of way for a street across the defendant’s track. The jury determined that the opening of the street was a necessary public improvement, and awarded the respondent damages to the amount of $382.64. The respondent brings the case here for review, contending that the circuit judge erred in his instructions to the jury as to the proper items to be considered in awarding damages.
It appears that at the point where the proposed street crosses the respondent’s tracks there are three tracks. The center track is the main track for trains between Toledo and Saginaw. The east track curves to the right, and connects the main track to Toledo with the main track to Detroit. The west track is known as the “south lead track,” and extends to the yard and the engine house. The testimony tended to show that the south lead track and the Detroit “ Y” are used for storing through trains while the locomotives are being supplied with coal and water and while the trainmen are waiting orders to proceed, and that upon the opening of this street, if the present method of operating trains continues, it will be necessary to open certain of defendant’s trains in order to avoid an obstruction of the new street for more than five minutes at a time, and that this will cause some delay and some additional expense in the operation of the road.
It is contended by the respondent:
First, that the damages caused by this delay and expense in opening trains is a proper item to be awarded to it in these proceedings; and, second, that, while the circuit judge was of this opinion, his charge was given in such form as to impress upon the jury his individual view that no tangible damages were shown, and that in this there was error.
The petitioner’s counsel take issue with the appellant on both propositions, and contend, first, that such damages as the respondent may sustain in the operation of its road by being required, in pursuance of police regulations, to open its trains to admit of teams passing across its tracks in the proposed street, are damnum absque injuria, and insist, second, that the circuit judge not only gave the rule contended for by respondent’s counsel, but that his charge is not subject to the criticism made.
Manifestly, the question of first importance is whether the railroad company is entitled to compensation for the inconvenience to which it will be put in operating its trains so as to admit of the use of the new street as a highway. This precise question has never been determined by this court. It is undoubted that in case of a condemnation of a right of way across a railroad the company is entitled to compensation for structural changes made necessary, and also for any direct expense made necessary by the fact of the street opening, as in maintaining a flagman, or gates, or cattle guards. City of Grand Rapids v. Railroad Co., 58 Mich. 641; Commissioners of Parks & Boulevards of Detroit v. Chicago, etc., R. Co., 91 Mich. 291; Same v. Michigan Central R. Co., 90 Mich. 385; City of Grand Rapids v. Bennett, 106 Mich. 528; Chicago, etc., R. Co. v. Hough, 61 Mich. 507.
On the other hand, it is well settled that compensation for the observance of public regulations cannot be demanded. 3 Elliott on Railroads, § 1103; Kansas City Suburban Belt R. Co. v. Kansas City, St. Louis & Chicago R. Co., 118 Mo. 599; Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 30 Ohio St. 604; Chicago, etc., R. Co. v. Joliet, etc., R. Co., 105 Ill. 388; Peoria & Pekin Union R. Co. v. Peoria & Farmington R. Co., 105 Ill. 110; Flint, etc., R. Co. v. Detroit, etc., R. Co., 64 Mich. 350.
The question is whether the inconvenience occasioned the respondent by opening the street in question falls within the first class or the latter. It is conceded by counsel for the respondent that, if the damage caused by cutting the trains arises out of a necessity to observe a mere police regulation, such damages are damnum absque injuria, but it is contended that the cutting of trains at this point is not only enjoined by a police regulation, but that any use of the street by the company which would unreasonably obstruct the same could, in the absence of any statute, be prevented, or the injury resulting therefrom could be redressed. It is true that any unreasonable obstruction of a street may constitute a nuisance, but we think it does not follow that statutory regulations of the joint use of streets by a railroad company and the public may not, in a sense, be treated as a police regulation.
In the present case the damages were sought to be measured by the loss of time and the increase of expense because the company would be precluded from occupying the street more than the time fixed by statute. The measure assumed was not what might, under any circumstances, be reasonable. We think the case ought not, in this respect, to be distinguished from Flint, etc., R. Co. v. Detroit, etc., R. Co., 64 Mich. 350. In that case it was sought to recover damages which would result from being compelled to stop the trains of the respondent’s road before crossing the track of the petitioning road. The question was ably discussed in an elaborate opinion by Mr. Justice Champlin, and the conclusion was reached that such damages could not be recovered. It was held that the, company was not entitled to compensation for obeying a police regulation, and it was said:
“ These are police regulations, enacted by the legislature, designed to promote the public safety, and are as binding upon an existing road as one newly organized. They stand upon an equality before the law, and'neither can levy tribute upon the other as a compensation for obedience to its requirements. It is subject to amendment or repeal at any time the legislature may see fit, and for this reason, as well as for the absolute impossibility of determining in advance the number of trains which in the future operation of the road would be required to stop at such crossing, the damage arising therefrom is uncertain and conjectural. But, aside from this, any incovenience or annoyance or loss suffered in obeying the police regulations of the sovereign authority is damnum absque injuria.”
Much of this reasoning applies with peculiar force to the case before us. The legislature may repeal the statute fixing the five-minute rule at will, or may change that limit so as to remove any inconvenience to respondent, and to this extent that regulation is a police regulation.
We think this element of damages should have been eliminated from the case, and it follows that there was no error to the prejudice of respondent.
The order is affirmed, with costs.
Moore, C. J., and Carpenter, Grant, and Hooker, JJ., concurred. | [
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Moore, C. J.
This is certiorari for the purpose of reviewing the action of the circuit judge of Saginaw county in granting relator a writ of mandamus directing the respondent, as supervisor of the township of Blumfield, to spread upon the assessment roll of said township drain taxes for the construction of Cheboygan creek drain in the sum of $8,500.48.
The record shows that prior to July 20, 1903, the drain commissioners of Saginaw and Bay counties had established a drain known as “Cheboygan Creek Drain,” located in the townships of Blumfield and Buena Vista, in Saginaw county, and the township of Portsmouth, in Bay county. In July, 1903, the contract for constructing the drain was awarded to the relator for $20,600. The amount apportioned to Blumfield as its part of the cost of the drain was $8,500.48, which amount was properly reported to the board of supervisors, who directed its assessment. The respondent, who is supervisor of Blumfield, declined to spread these taxes, claiming various reasons, going to the validity of the tax, for refusing to do so. The relator made a request of Mr. Gibson, the present drain commissioner of Saginaw county, to take steps to compel respondent to assess these taxes; but Mr. Gibson, for reasons which do not appear on the record, but possibly because his predecessor had laid out the drain, declined to commence litigation, whereupon the relator commenced these proceedings.
A hearing was had before the circuit judge, who found that relator had a contract for the construction of said Cheboygan creek drain; that the board of supervisors of Saginaw county by proper resolution directed the respondent to spread said taxes upon the assessment roll of 1903, and that the respondent had refused to do so. The circuit judge directed the respondent to assess the taxes on the assessment roll of the township of Blumfield for the year 1904.
A number of reasons are urged against the validity of this assessment. The principles involved have been dis cussed at length in several recent cases. Without going into details, we shall content ourselves with saying the case is controlled by Laubach v. O'Meara, 107 Mich. 29; Scholtz v. Smith, 119 Mich. 634; Board of State Tax Com'rs v. Quinn, 125 Mich. 128; Friedman v. Horning, 128 Mich. 606; Brown v. Nehmer, 128 Mich. 690.
Inasmuch as the time has gone by when the tax could be spread on the 1904 roll, it is directed that the supervisor of the township spread the assessment on the roll for 1905.
Judgment is affirmed.
Carpenter, McAlvay, Grant, and Blair, JJ., concurred. | [
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] |
Hooker, J.
The defendant was an alderman of the city of Battle Creek, and as chairman of the bridge committee had charge of the repairing of some of its walks, bridges, etc., for which he furnished the materials, bills, being filed, and allowed by the council from time to time, and afterwards paid. Suspicions of the honesty of the defendant having arisen, some members of the council made investigation of the items for which bills had been rendered by the defendant, and this led to the bringing of this, action to recover from him a large sum, claimed to have been paid for fraudulent items. A trial resulted in a verdict for $1,750 in favor of the city. The defendánt has brought the cause to this court by writ of error. '
There are pearly 200 assignments of error, but counsel have grouped them for the purpose of discussion, and marginal notes of exceptions in the record (a practice to be' commended ) have made reference to them easy. Many of these exceptions can properly be omitted from the discussion, as they raise no substantial points or questions of interest to the profession. A statement of the facts essential to an understanding of the respective questions can best be made in connection with their discussion. The testimony tended to show that one Toole, who was bookkeeper for the defendant from 'March, 1900, to August, 1901, made most, if not all, of the bills in question; that a bill for the lumber for a bridge called the “Angelí Street Bridge ” was for one wagon load more lumber than was furnished; that it occurred by mistake, and that Haak’s attention was called to it, and he said he intended to make it right at the next meeting of the council. On the occasion of a subsequent talk about this he said that he had intended to make it right, but the members did not notice it, so he let it go. This was in August, 1900. He stated further that all bills were made out from the defendant’s books by him (Toole), and that sometimes an excessive amount was entered in the books, and at other times the bills were made for more than the books showed; that this was done systematically, and in different ways — sometimes by increasing the number of pieces of lumber, and sometimes by mistakes -in computation. He stated that these things were done by defendant’s instructions, and included all bills made after the Angelí street bill was paid. The witness was unable to state the amounts. He testified further that after defendant’s fraud was discovered he produced a new set of books, which he told Toole to open, and copy some items from the old ones; that Haak stated to him in that connection that his counsel had advised this, so that the discrepancy between the books and the bills could not be shown. Toole did not finish this work. He testified that he concluded that he could not “copy the books and do as he [Haak] wanted him to,”so left his employment, and disclosed the situation to his uncle, one Patrick Hart, “including what he had done to assist in swindling the city,” and afterwards went to the law office of Hulbert & Mechem, where he met the mayor and other officials, and made affidavits in relation to the subject. This action followed, and was commenced by attachment. The declaration was in assumpsit, and com* prised two special counts, and the common counts.
Of the special counts, the first made reference to 3 Comp. Laws, § 10421, which was an act passed in 1897, and is as follows:
“An act to provide for bringing actions of assumpsit in certain cases, and to provide that in such cases the cause of action shall survive.
“(10421). Section 1. The People of the State of Michigan enact, That in all cases where, by the fraudulent representations or conduct of any person, an inj ury has been or shall be produced, either to the person, property, or rights of another, for which an action on the case for fraud or deceit may by law be brought, an action of assumpsit may be brought- to recover damages for such injury, and in all such cases a promise shall be implied by law to pay all just damages arising from such fraud or deceit, and may be so declared upon.”
The reference to this act in the count was as follows:
“Whereby said plaintiff has sustained great damage, of, to wit, two thousand dollars (12,000); whereby a right of action has accrued to' said plaintiff, and said plaintiff does hereby claim all right and benefit which it may possess to bring and maintain this action under and by virtue of section 10421 of the Compiled Laws of 1897 of the State of Michigan, by virtue of which statute a promise has been and is implied by law on the part of said defendant to pay to said plaintiff its just damages arising from such fraud and deceit, whereby said defendant, upon, to wit, the said 7th day of August, A. D. 1901, became indebted to said plaintiff in the sum of, to wit, two thousand dollars ($2,000).”
The second count was substantially like the first, except that it concluded with the following language in place of that hereinbefore last quoted:
“Whereby said defendant overcharged said plaintiff in the several bills and charges above mentioned, and said defendant was overpaid by said plaintiff, and said defendant received of the money and funds of said plaintiff, without having given any consideration therefor, in the aggregate a large sum of money, to wit, the sum of two thousand dollars ($2,000), whereby said plaintiff has sustained great damage of, to wit, two thousand dollars ($2,000), whereby said defendant upon, to wit, the said 7th day of August, A. D. 1901, became indebted to said plaintiff in the sum of, to wit, two thousand dollars ($2,000).”
To these were added the common counts.
This declaration was demurred to, and the demurrer was sustained as to the second count, and overruled as to the other counts. Thereupon a plea of the general issue was filed. One of the grounds of demurrer was that the statute section 10421 was unconstitutional. Its constitutionality appears to have been considered and upheld in the case of First Nat. Bank of Ovid v. Steel, 136 Mich. 588.
Counsel requested the court to. charge the jury that—
“No recovery can be had upon the second count of the declaration, for the reason that a demurrer to said second count has been sustained by the court, and the plaintiff has not amended the said second count.”
. There is nothing in the record to which our attention has been called to indicate that the cause was submitted to the jury' upon the second count, or, for that matter, that their verdict was made to depend upon what they might think of any of the counts. There was no occasion for reference to the respective counts, and the learned circuit judge who tried the cause properly omitted allusion to the declaration, and clearly stated the issue to be whether the defendant had, through fraud and deceit, charged and received payment from the city for more lumber than he had furnished between the dates April 1 and August 8, 1901, and said that the theory upon which the case was submitted by the plaintiff was to charge him with all money paid for lumber furnished between said dates, and to credit him with all lumber so furnished. The declaration in the case (omitting the second count, which was not considered as a part of it) justified the trial of the case upon this theory, unless the bill of partic ulars precluded it, and there was no occasion for saying to the jury that they should or should not render a verdict upon one or another count. Such instruction would have been more likely to confuse than to subserve a useful purpose.
What has been said applies to several similar requests to charge, which we need not state at length. As to the questions involving the joinder of counts, and the sufficiency of the several counts, the disposition of the demurrer settled them.
The bill of particulars is lengthy, covering 3? pages of the record. It states that plaintiff’s demand consists of overcharges for lumber, which have been paid to the defendant. It states in a general way the purposes for which lumber was furnished. It then attempts to give tabulated statements of lumber charged for, i. e., defendant’s bills, which it claims to have been allowed and paid, each accompanied by a statement of lumber admitted to have been furnished, the remainder resulting from a subtraction of the latter from the former, constituting the overcharge claimed in each instance. Two items were added to this bill by way of amendment, against defendant’s objection. In passing, we may dispose of the assignment of error covering this amendment by saying that it was a discretionary ruling, and, moreover, it would be entitled to our approval, were we called upon to review it.
Counsel for the defendant urge that, under the bill of particulars, it was improper to permit the jury to dispose of the case upon the theory of the plaintiff, as stated by the trial judge, claiming that they should have been directed to find the specific amount of overcharge on each bill. They requested the court to charge that:
“There have been a large number of these bills introduced in evidence, and, in order to determine whether the plaintiff is entitled to recover for overpayments made to the defendant, you should consider each of these bills separately, and determine from the evidence-in the case, if you can do so, whether there has been an overpayment made on any of these bills, and, if so, how much such overpayment was in each bill; and, if you cannot so determine, your verdict must be for the defendant — no cause of action.”
This was accompanied by a request that ‘ ‘ no recovery can be had by the plaintiff in this case, for the reason that there is no evidence in the case from which it can be determined with a sufficient degree of certainty or accuracy how much lumber was delivered to. the plaintiff by the defendant, on any one or all of the bills paid by the plaintiff ; ” and error was assigned for a failure to give each of them.
The record shows that evidence tending to show shortage consisted in part of statements of witnesses who had examined the structures for which the several bills were rendered, and their computation of the amount of new lumber visible therein. An examination of the testimony shows that the money paid could only be arrived at by taking the aggregate of the bills, or such of them as the jury should find to have been paid. On the other hand, the proof of shortage was by testimony tending to show that the amounts stated in the bills were larger than the respective amounts furnished. The aggregate of the payments and the aggregate value of the lumber found to have been delivered, upon the respective bills, furnished the only method by which the total overcharge could be accurately determined. While the request tendered was not given, the jury were given to understand that it was only by finding overcharges upon some or all of these bills that a verdict could be rendered.
The court said:
“ In this case, if you believe the testimony of the witness James Toole in regard to the alleged frauds on the part of the defendant to be true, and that fraud was actually perpetrated against the city by the defendant Haak, in the furnishing of the lumber and receiving the same, then it is your duty to render a verdict in favor of the city and against the defendant for such an amount as you find the overcharges against the city in the various bills may amount to.”
Again he said:
“If you find that in any of the bills there has been a clerical mistake made, or any overcharge made and paid, that fact alone will not authorize you to find that there have been mistakes or overcharges made in other bills. And if you find that the defendant had conceived and was carrying out a scheme or plan to obtain more money from the city than the value of the lumber delivered, and he obtained the approval of the- officers and agents of the city to the bills presented by him, falsely representing them to be true, or by undue or improper means he obtained the approval of the city officers to the bills, he (the defendant) knowing them to be false and untrue, and in pursuance of his plan or scheme, then it is your duty to find a verdict for the plaintiff for the amount which you shall find that he (the defendant) so obtained.”
And again:
“ I instruct you that in order to entitle the plaintiff, the city of Battle Creek, to a verdict in this case, the city must show by a preponderance of evidence (and you will remember what I have said about that) not only that the city has paid for more lumber than has been delivered by defendant, but the amount of such overpayment must also be shown, together with the fraud of defendant. The burden of showing such overpayment and fraud also rests upon the plaintiff in this case. I instruct you that if the plaintiff has shown by a fair preponderance of the evidence that, through the fraud or false representations of the defendant, Harry El. Haak, it has paid him for more lumber than he actually delivered to the plaintiff during the time named, then it is your duty to determine the amount of such excess so overpaid by the city to the defendant, and to render your verdict for the plaintiff for whatever amount you may find such overcharge to be. And this you must determine from the proofs and bills which have been submitted to you in evidence. I charge you that, in order to determine whether the plaintiff is entitled to recover for overpayment made to the defendant, you have a right to consider each and all of the bills offered in evidence in the case, and from such evidence and bills determine whether there has been an overpayment made or not. And by your verdict, if any overpay ment you find, you should find the sum, and so declare. And if you are unable to find any overpayment from the evidence and the bills in the case, and in such case you cannot so determine, then your verdict must be for the defendant — no cause of action.”
He endeavored to guard the rights of the defendant by saying:
“ In this case, if ybu believe the testimony of the wit-. ness James Toole in regard to the alleged frauds on the part of the defendant to be true, and that fraud was actually perpetrated against the city by the defendant, Haak, in the furnishing of the lumber and receiving the same, then it is your duty to render a verdict in favor of the city and against the defendant for such an amount as you find the overcharges aghinst the city in the various bills may amount to.”
In our opinion, the defendant did not suffer from the omission to give these requests, for they were sufficiently covered by the charge.
It appears to be assumed that the jury did not consider the items of the bill of particulars separately, but there was no other feasible method of arriving at a result, under the charge given, and we think the jury must have understood this.
A number of assignments relating to the instructions given may be passed with little comment: In Nos. 1 and 2, the court alluded to the overcharges as being between April 1st and August 8th. It is said that two bills were O. K.’d on July 22d, but not paid. There is nothing in the charge that warrants the inference that all bills between those dates contained overcharges for which recovery might be had. In No. 3, exception is taken to the instruction regarding the testimony of Mr. James Toole. It is hereinbefore quoted, and need not be repeated in this connection. Counsel say, “ The criticism is that it permitted the jury to find a verdict in favor of the plaintiff and against the defendant upon the testimony of witness Toole alone.” • The quotation itself contains a refutation of this claim. We omit further reference to No. i than the statement that, in our opinion, it was impossible for the jury to misapprehend the charge so far as to suppose that recovery could be based on bills anterior to April 1st or after August 8th. In No. 5 the instructions relating to the preponderance of proof, given on the occasion of the return of the jury for further instructions, contain no error.
There are about 156 assignments of error-, based upon rulings relating to the admission of testimony. We have examined each of them, and not only find no error in them, but feel justified in saying that they raise no legal questions that require discussion. We have much hesitation in appearing to criticise the judgment of counsel in such matters, especially in view of the circumstances under which it must be exercised, yet we must refuse to burden our opinions with discussions of such objections.
The remaining question relates to motion for new trial. The brief tabulates the errors relied on in that connection, as follows:
“ First. Errors of the court in charging the jury, and in refusing to charge as requested by defendant.
“ Second. Want of sufficient evidence to sustain the verdict.
“ Third. That the verdict was contrary to law.
“ Fourth. That the jury disregarded the evidence and the instructions of the court.
“Fifth. That the jury arrived at the amount of their verdict by an illegal method.
“Sixth. That the verdict was contrary to and against the evidence in the case. ”
The first is sufficiently covered by what has been said. The others may be discussed together, as they all relate to the alleged adoption by the jury of the principle of “general average ” in determining the amount of damage.
In support of this motion the defendant has not hesitated to unqualifiedly swear, in an affidavit, that the jury made no attempt at a computation, but agreed to determine the amount of the verdict to be given by taking one-twelfth of the aggregate sum of the opinions of the several jurors, which agreement was carried out. He failed to state how he knew what occurred in the jury-room. Another affidavit of similar character was made by three of the jurors, and this was not considered by the court, being rejected under the familiar rule that affidavits of jurors will not be received to prove the misconduct of the jury, and thereby impeach their verdict. Counter affidavits were made by several of the jurors, and one or two of those first mentioned subsequently filed affidavits, qualifying their first statements. From all the evidence furnished, the court found, and states, in substance: That there was much discussion and computation-of the amount that plaintiff should recover. That there was a proposal at one stage of the deliberations that each juror mark the amount that he thought plaintiff should recover, and that this was done, and the amounts were read. Some jurors wrote down these amounts, after which it was suggested that the general average be ascertained, and this was done. That up to this time no agreement or understanding had been made or had as to what the verdict should be, or how it should be reached. Afterwards, there was further discussion, and by mutual agreement the amount was settled at $1,750, which was less than the amount of the general average.
The cpurt did not err in refusing to receive the affidavits of the jurors filed in support of the motion. It is a rule well established that this cannot be permitted. It is settled for this State by the case of Merrimcm’s Appeal, 108 Mich. 462, where an opinion written by Mr. Justice Montgomery reviews the authorities. This case was followed in the case of Wixom v. Bixby, 127 Mich. 479, in an opinion written by the present Chief Justice. A long list of authorities will be found in the brief of plaintiff’s counsel in the present case. The affidavits filed by the plaintiffs indicate that during their deliberation the jurors ascertained the general average of their views relating to the subject of damages. This is a disquieting fact, for it suggests the suspicion of an unlawful verdict, but the suspicion is not necessarily a just one. Many cases hold that the averaging of views, where there is no agreement to abide the result, should not invalidate the verdict. It is only when the record overcomes the presumption of proper methods that the verdict should be set aside. There is affirmative proof that this verdict was not a “quotient verdict,” notwithstanding the fact (which is proved if the affidavits of any of the jurors should be looked into upon the subject) that for one purpose or another the general average of views was ascertained. Under the authorities cited, we think that the learned circuit judge did not err in refusing to set aside the verdict on this ground.
Counsel for the defendant strenuously urge that this record and verdict show that the verdict could not possibly have been reached by proper methods. His argument on this proposition, briefly stated, is that, while there was clear proof of the amount paid him, there was no tangible and certain evidence that any definite amount was overcharged upon any bill or bills, and therefore there could have been no .lawful verdict reached by computation, and that is also shown by the amount of the verdict rendered, which, it is stated, could not be reached by any proper method of computation, and therefore must have been reached in some other way, involving guessing or compromise. If it be conceded that the jury must find the amount of overcharge upon each particular item of the bill of particulars, it does not follow that such amount must accord with the amount stated in the bill. If it might not exceed, it certainly might be less, than the amount claimed, and thus the verdict cannot be said to be an impossible one, legally, under the proof, unless it exceed the aggregate of the items of the bill. There was proof in the case tending to show, with a greater or less degree of accuracy, the lumber furnished on each bill, and thus indirectly to furnish a means of ascertaining (counsel say computing) the overcharge. In any or every instance the jury might find an overcharge less in amount than the item as stated in the bill. Furthermore, there was testimony by Toole that nearly every bill was raised, bnt he could not tell definitely how much in any case, but in some cases doubled, and in some it was less; that he thought in one bill each item was raised from four to fourteen pieces. It cannot be said that the proof is so uncertain that it fails to justify a verdict, without suggesting that if a man can get a sufficient degree of rascality into his methods, so as to make it difficult to say just how much he has defrauded in a particular instance or item, a jury cannot determine how much he has wronged his adversary, and he is to be relieved from accountability. The office of a bill of particulars is to reasonably apprise the defendant of the nature of the plaintiff’s claim. This one gave defendant , to understand that he was charged with padding the bills itemized therein, and any proof that showed this was to be considered, and justified the jury in determining the respective amounts, when it established a probability of such amount. Upon the whole, the record discloses a patient and painstaking trial upon the part of the trial court, in every way fair and free from error. While his review of the case upon the motion for new trial discloses disapproval of the method pursued by the jury, it appears to rest upon the lawyer’s appreciation of the danger to be apprehended from a departure from proper methods, rather than upon evidence that the same should overcome the presumption that the verdict was not affected thereby. In following the law in this matter, and determining that the invalidity alleged was not proved, we find no error.
The judgment is affirmed.
Carpenter; Blair, Montgomery, and Ostrander, JJ., concurred. | [
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Hooker, J.
Louisa Hubert, a woman of advanced years, and relict of Edward Hubert, filed the bill in this cause to cancel a deed whereby she conveyed the premises in controversy to Anthony Traeder. It is undisputed that this deed was executed in the office of Traeder’s attorney, and it is claimed by the defendants that it was in settlement of then pending litigation between the parties, involving their respective claims to the premises. The complainant asserts that the deed was procured through fraud. The circuit court granted the prayer of the bill, and the defendants (husband and wife) have appealed.
Traeder’s claim to the premises had its inception in an arrangement made between him and Edward Hubert under which he moved upon the premises with his wife and children, and performed farm labor, for which he was to receive as compensation shelter and food for his family, $50 per annum for clothing, and ultimately the farm. No witness testifies to the terms of the agreement; such proof as the record contains consisting of statements of Hubert, in relation to the subsisting arrangements between himself and Traeder, made to third parties while Traeder lived upon the place. They are substantially that Traeder was to work the farm without wages, and have it after Hubert should be through with it; that he was to have house rent and $50 a year. There seems no doubt that such an arrangement was made between them. Traeder commenced work in May, 1901, and in September, 1901, Edward Hubert died, leaving a widow, the complainant. Before his death, Hubert made a will, in which he provided that his personal and real estate should go to the complainant, and at her death to Anthony Traeder. This will was admitted to probate. It was not long after his death that a controversy arose between complainant and the Traeders, in which the present solicitors were counsel for the respective parties. Apparently neighbors and friends took an interest, and the matter culminated in an attempt to settle the differences. Accordingly the parties went to the defendants’ lawyer, who prepared the deed in controversy, and it was duly executed and delivered. Some time after, the parties being again in a quarrel, thi^ bill was filed; and pending the suit the complainant married, and brought her husband to the home occupied by defendants, to live with her.
The record does not show that Mrs. Hubert took any part in the original contract with Hilbert, unless it is to be inferred from the relations of the parties. At that time the title to the farm was in Hubert and his wife jointly, and it follows that upon his death the property passed to the complainant. His contract and his will were ineffective to vest any title to the land in Traeder. Apparently none of the parties understood this, and the complainant testified that, in the talk between the parties, Traeder often said to her that she had only a dower interest, or a third interest, in the place. It is urged that this was a fraudulent means of procuring the deed from her, and that Traeder knew that it was false.
We are impressed with the unfairness of the settlement made between these parties. It is satisfactorily shown that the Traeders made the arrangement with Hubert in the belief that he owned the farm, and could make the agreement that was made; but, as we have intimated, the death of Hubert put an end to his interest in the farm, of which Mrs. Hubert became at once the sole owner in fee, discharged of all her husband’s obligation to Traeder.
If it be admitted that this was hard upon Traeder, in that the consideration for his contract and services had in part failed, it was not, upon this record, chargeable to this complainant, who is not shown to have been a party to that contract.
We are not advised by the record that Traeder had a tangible claim of any kind against Mrs. Hubert, or that there was any legitimate reason for a controversy over her right to these premises. At the time of this settlement she was 65 years old, or thereabouts. The contract that she was said to have made was of that kind which most persons recognize as unfortunate and ill-advised, and, while courts cannot refuse to recognize their validity when clearly shown, they are not called Upon to do so where they are unconscionable or when they are made under extraordinary circumstances or mistake of fact.
It is not improbable that this old lady was unaware of the true state of this title, or that her adversaries were insisting that it was less than a perfect title in fee, as she states. We cannot suppose that they were ignorant of it, for their counsel must have known it. With certain defeat staring them in the face, they succeeded in obtaining a settlement very advantageous to them. They say that this settlement wa$ sought by her, and not by them, but that is not plausible. Her counsel were not consulted, and she is made to say that she did not want them to know of it. All this may be true, and yet the influence that brought it about may have been adroit, to the verge of fraud. We feel that it was so. It was too successful to have been entirely free from guile.
The learned circuit judge who saw the witnesses and parties reached this conclusion, which, in our opinion, the testimony fairly warranted.
The decree is affirmed, with costs.
Moore, O. J., and McAlvay, Grant, and Blair, JJ., concurred. | [
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Montgomery, J.
These two actions were brought to recover damáges for injuries sustained by the plaintiffs from being precipitated into the vault of a privy situated on defendant’s station grounds at Hastings. The two cases were tried as one, and a verdict in favor of plaintiffs and judgments based thereon were entered.
The chief contention is that there was no evidence in the case supporting the averments in the declaration as to defendant’s negligence. The declarations were not essentially different. In the second count of the Howe case defendant’s duty and neglect thereof are set out as follows:
“ It became and was the duty of the said defendant to keep the foundation thereof safe, and to keep the timbers supporting the floor and the seats therein in a secure and safe condition, and to make timely and reasonable inspection of said privy and the floor and timbers supporting the same, and supporting the seats thereof from time to time, and to see that they did not become .decayed, weakened, or misplaced, so as to become unsafe or unfit to hold and maintain the weight of those who should have occasion to enter and use the same, and it became and was their duty to take all timely and reasonable precautions to keep and maintain said privy, and each and every part thereof, in such a condition that the same would not break and give way under the weight of those who might enter the same. * * * That the said defendant disregarded its said duty in the premises, wrongfully and negligently failed to keep and maintain said privy in a safe condition for the use of its employes, patrons, customers, and the general public, and failed to keep the foundation thereof safe, and failed to keep the timbers supporting the floor and seats in said privy in a secure and safe condition, and failed to make timely and reasonable inspection of said privy and the floor and timbers supporting the same and supporting the seats therein, and failed to keep the same in such condition as to hold and maintain the weight of those who should have occasion to enter and use the same, and did not take all timely and reasonable precautions to keep and maintain said privy, and each and every part thereof, in such a condition that the same would not break or give way under the weight of those who might enter the same, but wrongfully and negligently permitted said privy to become unsafe, and the floors and timbers beneath the floor and seats to become rotten, decayed, and weakened, and to become unsafe, dangerous, and insufficient in strength and firmness to maintain the ordinary and reasonable weight which its use from time to time would place upon it.”
At the close of the testimony the court withdrew from the jury all question of faulty construction of the privy as not within the declaration.
The defendant’s counsel state in their brief their view of the scope of the declaration as follows:
“The declarations nowhere charge faulty construction. The suits were planted upon the theory that the defendant had'negligently failed to maintain, and not upon the theory that the building was constructed in a faulty manner, and the negligence charged in the declarations against the defendant was:
“First, that the defendant was negligent in maintaining the privy in an unsafe condition; and,
‘ ‘ Second, that defendant was negligent in failing to make proper inspection of the same.”
And it is strenuously contended that there was no evidence of negligence in making proper inspection.
The evidence showed that the privy was built before the road was built, some 15 years ago; that it had been moved twice — the last time not many weeks prior to the accident. The first time it was moved the privy was tipped over, and the timbers examined, and found to be sound. The privy was last moved under the supervision of Mr. Burke, an employé of defendant. A new vault was excavated, boarded up on three sides and partly on the fourth side. The privy was then placed upon the new foundation, and Mr. Burke went through the opening, and sounded the timbers, and inspected them as well as he could under these circumstances, and found them sound, as he states. He testified that he tapped the timbers with a hammer to see if they were all right; that he couldn’t tell what kind of timber it was; that he didn’t see the nails, but saw it was all solid by hitting it. He also testified that the stringers were toe-nailed. It appeared by further testimony of defendant’s witnesses that the nails were in fact rusted off when the floor gave way a few weeks later. We think it cannot be said as matter of law that this inspection was all that was required. Particularly in view of the peculiar construction of this building (which might be considered for this purpose) it was a question for the jury as to whether a proper inspection of this building required an examination of the nails sufficient to determine whether they were rusted off, as it was as apparent to the witness Burke as it was to the jury that, whether the construction be proper or improper, it was such as to leave this support dependent entirely upon the soundness and sufficiency of these nails. We think this was a question for the jury.
Complaint is made of the charge of the court on the subject of damages. The court said to the jury that plaintiffs were entitled to recover compensation for injuries to their feelings occasioned by the fright and suspense, if any existed, while in the vault, but" distinctly excluded damages for humiliation, disgrace, and annoyance. It is contended that damages for injury to feelings are not recoverable in the absence of evidence of some voluntary act or gross neglect. The trial court evidently recognized fully the rule which excludes added damages for injury to feelings where the elements of gross carelessness0 or wantonness are lacking, but recognized that such inevitable injury to feelings as necessarily occurs from shock and fright are not'dependent upon the malice of the defendant, but necessarily flow from the injury. The court, in this charge, followed the holding in Styles v. Village of Decatur, 131 Mich. 443. Counsel for defendant do not question that under the ruling in the case cited fright and suspense might be considered, but insist that the court had no right to go beyond this, and throw open the door for the jury to speculate upon the value of the injuries to the plantiffs’ feelings, no matter in what way they were occasioned. The court did not leave the question to the jury in any such broad way as this criticism implies; on the contrary, the charge distinctly limited the recovery for injury to feelings to injuries to feelings occasioned by the fright and suspense which plaintiffs suffered while in the vault.
On the examination of Ida Backus, a witness for plaintiff, the following occurred:
“ Q. What other things have you noticed in reference ?
“A. She always complains of being sore through her lungs.
“Mr. Golgrove: I move to strike out the answer that she always complained.
“Mr. Sullivan: I think it is a proper question.
“ The Court: I am inclined to think that testimony is admissible.
“Mr. Golgrove: I am perfectly willing that the court should rule so. I want the record. Give me an exception.” '
It is now insisted that this testimony was not admissible, for the reason that the statements are not limited as to time, and, for aught that appears, they may have been narratives of past suffering. The attention of the court was not called to this specific objection. Moreover, the language fairly imports that the complaints made and testified to by this witness related to present suffering. Strudgeon v. Village of Sand Beach, 107 Mich. 500; Elliott v. Van Buren, 33 Mich. 52.
. The charge fairly presented the issues to the jury.
Judgments affirmed.
Carpenter, Blair, Ostrander, and Hooker, JJ., concurred. | [
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Carpenter, J.
On the 7th of April, 1903, plaintiffs purchased at the village of Trenton, Wayne county, certain furniture for a drug store. They placed that property in the custody of defendant’s agent at Trenton, with instructions to ship the same over defendant’s railway— defendant is a common carrier of merchandise — to them at Pontiac, Oakland county, on Friday, April 10th. Had the goods been sent as directed, they would, according to the usual custom, known to plaintiffs, have reached Pontiac on Saturday, the 11th, or Monday, the 13th, of April. The goods were in fact shipped on the 8th and arrived in Pontiac on the 9th. They were placed in defendant’s warehouse, and were there destroyed by fire Tuesday, April 14th, before notice of their arrival was given to plaintiffs. Plaintiffs brought suit and recovered judgment upon the ground that defendant’s liability as common carrier continued at the time the goods were destroyed. Defendant insists that a verdict should have been directed in its favor.
There was no evidence of defendant’s negligence. If, at the time the goods were destroyed by. fire, defendant continued to hold them under its responsibility as a common carrier (that is, as an insurer against all injuries except acts of God), it was liable. If it did not so hold them, it was not liable. Jurists have not agreed as to the obligation of a carrier who holds goods after transit, awaiting delivery. Respecting this question,—
“ Three distinct views have been taken: * * *
“First. That when the transit is ended, and the carrier has placed the goods in his warehouse to await delivery to the consignee, his liability as carrier is ended, also, and he is responsible as warehouseman only. * * *
‘ ‘ Second. That merely placing the goods in the warehouse does not discharge the carrier, but that he remains liable as such until the consignee has had reasonable time after their arrival to inspect and take them away in the common course of business. * * *
“ Third. That the liability of the carrier continues until the consignee has been notified of the receipt of the goods, and has had reasonable time, in the common course of business, to take them away after such notification.” See opinion of Cooley, J., in McMillan v. Railroad Co., 16 Mich. 102.
In this case Justice Cheistiancy concurred with Justice Cooley in holding that the view last stated was correct, while Chief Justice Maetin concurred with Justice Campbell in holding that the view first stated was correct. In the subsequent case of Buckley v. Railway Co., 18 Mich. 121, a majority of the court, consisting of Justices Geaves, Cooley, and Cheistiancy, concurred in holding that the liability of a common carrier continued a reasonable time after the goods were placed in the ware house. There was no occasion for them to decide, and they did not decide, whether that reasonable time commenced to run at the time the goods were placed in the warehouse, or at the time notice was given to the consignee. We are unable to find that this precise question has ever been determined by this court. It is necessary for us to determine it now. Without undertaking to repeat the arguments of Justice Cooley, which are familiar to all careful students of the Michigan Reports, it is sufficient to say that they are so clear and forceful that we have no hesitancy in declaring that the carrier’s obligation continues until the lapse of a reasonable time after he has notified the consignee of the arrival of the goods. This conclusion disposes of the case, and results in an affirmance of the judgment.
In stating this conclusion, we have not overlooked defendant’s contention that the rule does not apply where, as in this case, plaintiffs knew the probable date of shipment, and the probable time of arrival of the goods. To insist that this circumstance exempts the carrier from liability is to deny the existence of the rule we have just declared. To be more precise, it is to insist that the second, and not the third, of the rules heretofore stated, is the correct one. This is clearly shown by quoting from the opinion of Justice Cooley in McMillan v. Railroad Co., supra:
“ The rule as secondly above stated proceeds upon the idea that the consignee will be informed by the consignor of any shipment of freight, and that it then becomes the duty of the former to take notice of the general course of business of the carrier, the time of departure and arrival of trains, and when, therefore, the receipt of the freight may be expected, and to be on hand, ready to take it away when received.”
And the same learned jurist, in stating why that rule should be rejected, states a sufficient reason for denying the present contention of defendant:
“ To require the consignee to watch from day to day the arrival of trains, and to renew his inquiries respecting the consignment, seems to me to be imposing a burden upon him, without in the least relieving the carrier. For it can hardly be doubted that it would be less burdensome to the carrier to be required to give notice, than to be subjected to the numberless inquiries and examinations of his books which would otherwise be necessary, especially at important points.”
In support of its position, defendant cites several cases decided by courts who deny the rule declared to be law in this State. It is scarcely necessary to say that decisions of a court denying the rule afford no aid in construing it.
Judgment affirmed, with costs.
McAlvay, Grant, Montgomery, and Hooker, JJ., concurred. | [
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Hooker, J.
Chester, the owner of a tenement in Detroit, leased it from month to month to Pacifico, a saloon keeper. Pacifico purchased beer of the Mutual Brewery Company of Detroit, and was indebted to it for money advanced to pay his license as a saloon keeper. Mr. Voigt was a brewer doing business under the name of the Voigt Brewery Company, Limited; and in June, 1903, an agent of Voigt (one Preetz) induced Pacifico to sell Voigt’s beer. It was agreed that Voigt should lease the place of Chester, fit up the saloon with better' fixtures, and advance Pacifico some money. Chester was to indorse a note therefor, and should receive $32 per month from Pacifico for rent, and he (Pacifico) should sell the Voigt beer. Voigt took a lease from Chester, running to the Voigt Brewery Company, Limited; and Pacifico signed a note for $416, in which Chester was payee, which, being indorsed in blank by Chester, was handed over with the lease to Voigt’s agent. These papers were executed and delivered at a meeting of all the parties. Pacifico remained in the premises, but a few days later concluded not to sell Voigt’s beer, refused to receive the fixtures, repudiated the arrangement, and refused to pay rent to Voigt. Thereupon Voigt caused a notice to quit to be served. This notice was signed, “The Voigt Brewery Co., Limited.” The foregoing is the substance of the complainant’s evidence. No testimony was offered by the defendant, and the court directed a verdict for the defendant upon motion, the ground of which was that the evidence showed that there was no party complainant before the court, in whose favor a judgment could be rendered.
When this motion was made, counsel for the complainant stated that this question was not raised upon the trial before the commissioner, and asked leave to amend the process to make it run in the name of Edward W. Voigt, doing business as the Voigt Brewery Company, Limited. The court said:
“This is not an ordinary suit at common law. The right does not extend, as in the case of an ordinary personal action. There is no sufficient complaint filed in the court below to authorize the commissioner to start a suit in behalf of Edward W. Voigt, and I do not think, under these circumstances, that an amendment can be allowed so as to give validity to the process which would originally be void. I have a grave doubt whether, in the case which Mr. Pound has cited, that an amendment would be, in any event, proper; and, in a case of this description, it seems to me it would be statutory, and I think it would be better, to start an action. Well, gentlemen of the jury, for the reasons that I have assigned, you will render a verdict for the defendant.”
The record shows that there was no such partnership as the Voigt Brewery Company. There was then an action begun without a party plaintiff, for there, was no such person as the Voigt Brewery Company. It was not and could not be the name of a natural person. See Stirling v. Heintzman, 42 Mich. 449. The trial judge thought that the case could not proceed for want of a party plaintiff, and it did not err in holding that one could not be introduced by amendment under such circumstances. Id. Again, if the Voigt Brewery Company had been a valid copartnership, and .was correctly named as plaintiff, an amendment by substituting the name of a single person would have been the substitution of a different party, not the same party in interest. This is not a question of misnomer, as possibly it might be called if the proposal had been to amend by substituting the names of all the co-partners, as copartners, for the partnership name of an existing copartnership. It is a failure to name the true plaintiff, and need not be raised by plea in abatement. Like a case of nonjoinder or misjoinder of a plaintiff, it is fatal upon the trial.
The judgment is affirmed.
Carpenter, McAlvay, Grant, and Montgomery, JJ., concurred. | [
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] |
Bird, J.
Henry Castator, the plaintiff, was an employee of Boyes & Blandford Company, a contracting firm, engaged in road construction in this State. Mr. Castator, while in its service, suffered an injury. He was denied compensation by his employers and thereupon he applied to the department of labor and industry and an arbitration board was appointed and heard his case. An award was made in his favor.
The defendants, feeling aggrieved, appealed the case to the full board, and each side thereafter proceeded to take depositions to be submitted upon the hearing.
Before the time came for the hearing the defendants wrote to the board and requested their appeal be dismissed, whereupon the board entered an order dismissing the appeal.
Counsel for plaintiff have brought the record and proceedings to this court on certiorari and make the point that the board had no power to dismiss the appeal without the consent of plaintiff.
Section 3, part 3, of the act creating the industrial accident board (2 Comp. Laws 1915, § 5456), provides that:
“The board may make rules not inconsistent with this act for carrying out the provisions of the act. Process and procedure under this act may be as summary as reasonably may be.” * * *
We do not find that the board has promulgated any express rule with reference to the dismissal of appeals or causes. The appeal under consideration was taken by defendants. It was their appeal and if the same rules are to be applied as are applied in analogous cases in the courts, they had a right to dismiss it without the consent of the opposite party. An appellant will, as a rule, be permitted to dismiss or withdraw his appeal. 3 Cyc. p. 184.
According to the great weight of authority, an appellant or plaintiff in any error may dismiss his appeal or writ of error without regard to the consent of the appellee or defendant in error. And this rule ■has been held applicable to an appeal from a judgment of a justice of the peace when the cause is to be tried de novo in the appellate court. 2 R. C. L. p. 168.
At the common law the plaintiff had a right to abandon an action and become nonsuit at any time before verdict, if not before judgment. The general rule is that the plaintiff may discontinue his suit without prejudice at any time before a verdict is rendered by a jury, or judgment or decree entered in cases tried by the court. 7 Standard Ency. of Procedure, p. 662; Merchants’ Bank v. Schulenberg, 54 Mich. 49; Deneen v. Railway Co., 150 Mich. 235 (13 Ann. Cas. 134); Davis v. Railway, 162 Mich. 240.
It has been held that a plaintiff may, upon trial, submit to a nonsuit or voluntarily discontinue before trial in a suit brought into the circuit court by appeal from a justice as well as in one brought there by original writ or declaration. French v. Weise, 112 Mich. 586; Taylor v. Dansby, 42 Mich. 82.
A plaintiff in error will be allowed to dismiss his writ of error on motion on payment of costs. Birch v. Brown, 5 Mich. 31.
These cases establish the right of a plaintiff or an appellant to dismiss his case or his appeal without the consent of the opposite party. This rule has been modified to a limited extent by the following recent statute:
“That in any civil action hereafter commenced in this State, whenever the defendant shall have entered upon his defense to the action in open court, the plaintiff shall not be allowed to discontinue his suit or submit to a nonsuit without the consent of the defendant.” 3 Comp. Laws 1915, § 14566.
But this statute would not affect the present case as the defendants had not entered on their defense in open court when the order of dismissal was made.
Counsel make reference to the case of Margenovitch v. Mining Co., 213 Mich. 272. We do not think this case is in point. That case held in effect that if either party to thei controversy appealed the industrial accident board had the power to review the decision of the committee of arbitration, and increase or decrease the award.
We are of the opinion that the board had the power to dismiss the appeal upon the application of appellants, by virtue of one' of the incidental powers conferred on it by the statute.
The writ will be dismissed, and the order of the board affirmed.
Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, Moore, and Steere, JJ., concurred. | [
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] |
Wiest, J.
This suit was commenced by attachment. The writ was issued December 17, 1920, and the return day of the summons in the writ was fixed as January 4, 1921. The attachment was executed by seizure of logs on the day it was issued, and the summons was returned unserved. Decision of a special motion in the circuit will first be considered. Defendant claims the summons was prematurely returned and so he appeared specially in the case and moved for dismissal of the suit. At the hearing on such motion testimony was taken. The motion was denied and exceptions to such denial filed. Thereafter defendant entered his appearance with this reservation:
“You are also notified that said defendant does not in any manner waive any rights to object to the jurisdiction of the court over him in said cause.”
At the trial defendant sought to retry the question of the premature return of the writ and the trial judge refused to permit him to do so, holding that the decision on the special motion rendered the subject res judicata. Defendant assigns error upon the decision of the special motion and also upon the refusal of the court to retry the question.
Counsel for plaintiff insist that the court was clearly right in the ruling at the trial, and that defendant, in failing to request findings of fact at the hearing on the special motion, cannot ask this court to review the evidence. Plaintiff invokes section 13749, 3 Comp. Laws 1915, which provides:
“Whenever in any action at law in a circuit court a motion to dismiss or quash the writ or declaration upon jurisdictional grounds, or issues which under the former practice would have been raised by demurrer, plea to the jurisdiction or other dilatory plea shall be decided adversely to the party filing such motion, the decision may be reviewed * * * by assignment of error under a writ of error sued out to review the final judgment in the cause in case such party shall plead over and a final judgment upon the merits shall be rendered against him.”
Counsel for plaintiff claim that, when a special ■motion raises a question of fact and the issue is tried on testimony submitted in open court, and not upon affidavits, exceptions to the ruling thereon do not bring the issue of fact for review to this court, unless there has' been a request for findings of fact as in a trial before the court without a jury. Many cases relating to the practice in trials before the court without a jury, and upon motions for new trials, are called to our attention, and we are asked to apply the same rule to this special motion. The statute above cited seems to contemplate no such rule and we must decline to extend the rule contended for to a special motion of the character here involved.
At this point the writer of this opinion called for the writ of attachment, inspected by the circuit judge and by stipulation of counsel ordered to be sent here, and found a showing by the affidavits of the attorney for defendant and of the clerk of Newaygo county that the original writ of attachment cannot be found. We are, therefore,, deprived of an inspection of the claimed erasures in the return indorsed thereon. We have carefully considered the showing and counter-showing upon the question presented, and we are not persuaded that the circuit judge was in error in denying the motion. Neither was there any error committed in holding at the trial that the decision upon the motion rendered the question res judicata in that court. It would only extend this opinion, and be of no value to the profession, to review the testimony given at the hearing upon the special. motion. This brings us to the case itself.
Plaintiff owned a farm upon which was standing timber and cut logs. In Chicago he met defendant and represented that he had 300,000 feet of lumber in logs and 125,000 feet in standing timber, and a tentative agreement was reached, and later reduced to writing, under which, and before seeing the logs and standing timber, defendant agreed to pay $15,000 for the same; $7,500 in cash, a note for $2,500 due in one year and a note for $5,000) due in two years. The quantity of logs and timber was not specified in the contract. After execution of the contract the parties looked at the logs and a part of the standing timber, and at once defendant claimed the quantity would fall far short of the representation. Thereupon plaintiff, evidently impressed that he had misapprehended the quantity, returned to defendant the $5,000 note. The next day the logs were scaled and an estimate made of a part of the standing timber. The parties did not agree upon the result of the scale and the estimate. Plaintiff stated he wanted to be fair, and defendant claims he then proposed to pay plaintiff $45 per thousand feet for all above 150,000 feet of lumber cut from the logs, and $35 per thousand feet in excess of 75,000 feet cut from the standing timber. This offer was reduced to writing by defendant and shows:
“Ludington, Mich., April 22, 1918.
/Tt is hereby agreed by Frank I. Abbott all lumber cut over one hundred fifty thousand from logs now laid down on Sec. 7 and Sec. 18 shall be paid for at the rate of fifty dollars per M board feet. On standing timber on Sec. 7 all lumber cut from same in excess of seventy-five thousand board feet to be paid for at forty dollars per thousand board feet.
(Signed) “Frank I. Abbott.”
Defendant claimed his testimony instead of the writ ing was correct. He also claimed that plaintiff verbally said he would reimburse him, and
“make good for anything under 150,000 feet at the rate of $45.00 per thousand, and anything under 75.000 feet of standing timber at the rate of $85.00 per thousand.”
On cross-examination, however, he modified this and claimed that such was his understanding derived from plaintiff’s statement that he would make good on any shortage.
This suit was brought on the $2,500 note. Defendant’s plea was the general issue with notice of fraud on plaintiff’s part inducing him to execute the note; averment of the subsequent agreement above mentioned as to shortage and that the logs cut less than 70.000 feet of lumber and the standing timber contained, less than 25,000 feet, and claimed the right to have judgment against plaintiff for $7,500.
At the close of defendant’s proofs, plaintiff moved for a directed verdict on the note, on the grounds that no fraud had been shown; no breach established of the subsequent agreement; no proof of any damage growing out of plaintiff’s failure to carry out the so-called new or changed agreement; no consideration shown for the new or changed agreement, and that the so-called agreement was only a bare promise on the part of Darling to make good and was indefinite and void for uncertainty..
The court granted the motion, saying:
“Gentlemen of the jury, no question of fact will be left to you for your consideration, but in pursuance of the motion made, the court directs you to find without leaving your seats, a verdict in favor of the plaintiff and against the defendant, in the sum of $2,583.74.”
Two groups of claimed errors remain for consideration.
(a) Was it reversible error for the court to direct the verdict without more fully stating reasons?
(b) Was there sufficient evidence to entitle the defendant to have the case submitted to the jury?
Defendant relies upon Demill v. Moffat, 45 Mich. 410; Tillotson v. Webber, 96 Mich. 144; Rayl v. Hammond’s Estate, 95 Mich. 22, in support of his claim that the court erred in not stating reasons for directing the verdict. Counsel for plaintiff had fully stated cogent reasons in asking for the direction and the court granted the motion and it requires no search in the dark to find the reasons for such direction. Counsel for defendant apparently had no difficulty in pointing out, in the assignments of error, the reasons entertained by the trial judge in directing the verdict. His sixth, seventh, eighth and ninth assignments of error specify four reasons entertained by the trial judge in directing the verdict, and alleges he was in error in each instance. The reasons aré as plain as though the circuit judge had spread them at length upon the record in giving the instruction to the jury. The case does not fall within the rule laid down in the cases cited.
It would be going beyond reason to say that the circuit judge should have specifically recited the reasons stated in the motion in granting the motion to direct the verdict. In this instance it‘ was sufficient for the court to adopt, by reference, the reasons stated in the motion.
Defendant was in no position to urge the original representations as to the quantity of timber in defense of this suit and claim he was defrauded thereby. He waived all claim of fraud when he obtained the new agreement covering the subject and based on the very ground that the logs and timber had been overestimated, and .got back his $5,000 note.
At the trial defendant showed no breach of the new agreement. The agreement, if made as claimed, must be taken as a whole, and cannot be divided for the purpose of giving defendant damages for the claimed shortage on the logs, without a showing that the standing timber would not compensate for such shortage.
The standing timber had not been cut at the time of the trial, neither had it been cruised or estimated or even viewed as a whole by defendant or any one for him.
Defendant testified:
“Q. How did you expect you could make a settlement with him until the standing timber had been cut?
“A. Well, I hadn’t thought of it.”
Giving the defendant’s testimony the most favorable consideration, it shows no more than a possible contingent claim for an indefinite amount, dependent upon the quantity of lumber capable of being cut from the trees now standing, and not yet even estimated by view of defendant or any competent cruiser or estimator.
We find it unnecessary to pass upon the question of whether there was any consideration for the new agreement, or whether it was so indefinite as to afford no basis for computation of damages for its breach. The note in suit was due, no fraud available to defendant in its procurement was shown, and no damages due for breach of contract or under contract established. No defense to the note was made, and the court was right in directing the verdict.
The judgment is affirmed, with costs to plaintiff.
Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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Fellows, C. J.
Plaintiff brings this action to recover on three promissory notes of $350 each signed by Morris Bicher and Sarah Bicher, payable to the order of plaintiff and bearing elate April 18, 1921. Sarah Bicher defended on the ground that she was a married woman, wife of defendant Morris Bicher, and that the proceeds of the notes in no way benefited her separate estate, i. e., that she was a surety. She had verdict and judgment. Morris Bicher defended on the grounds that the notes were usurious and therefore no interest could be collected on them, and that he was entitled to certain credits on the principal. Verdict and judgment against him were rendered for the sum of $700. Defendant Morris Bicher alone reviews the judgment. The facts necessary to an understanding of the case will be stated as we proceed:
The first assigned error discussed by counsel for defendant, and it is the main question in the case, is that the verdict of the jury was a “compromise verdict” and can not stand. A motion for a new trial grounded on this claim was made by him and error is assigned on its refusal. He insists that under the proofs and the charge of the court the verdict should have been for either a greater or a considerably lesser sum, not for the amount of $700 as it was, and that fixing the verdict at this sum demonstrates that the verdict was a compromise one. He relies on Morley v. Insurance Co., 85 Mich. 210; County of Montmorency v. Putnam, 144 Mich. 135, and numerous authorities from other jurisdictions. It is a recognized duty of courts either upon their own motion or upon motion of the prejudiced party to set aside verdicts which do not represent the judgment of the jury but which are clearly compromise verdicts; but it is equally well recognized that to justify such action the record must make it clear that the jury reached the result by “splitting differences.” Benedict v. Provision Co., 115 Mich. 527; DeLand v. Hall, 134 Mich. 381; Whalen v. Grant, 129 Mich. 178; Lee v. Huron Indemnity Union, 135 Mich. 291; Crawl v. Dancer, 180 Mich. 607.
Let us examine the claims of the parties as developed by their proofs — examine the record to see if it clearly appears that the verdict was arrived at by “splitting differences.” The notes were usurious; the court so held. Plaintiff’s manager testified that the amount given defendant on the notes was $960. Defendant in his notice under the general issue claimed that the amount lent him was only $900. His counsel so stated in his opening statement. Defendant so testified in his direct-examination and on his cross-examination. When confronted with two checks he claimed that he could not read English, and it was only after a grueling cross-examination that he admitted that he might be mistaken in the amount. This court has frequently held that where the testimony of a witness was not consistent with itself, when it was contradictory, the jury, not the court, was the judge of its credibility, and it was for them to determine which, if either, version was truthful. Lonier v. Savings Bank, 153 Mich. 253; B. F. Goodrich Rubber Co. v. Sewell Cushion Wheel Co., 196 Mich. 600; Tuttle v. Railway Co., 193 Mich. 390; Foster v. Rinz, 202 Mich. 601. The jury, under the conflicting testimony, was authorized to find that the amount lent was $960 or $900 as its members saw fit to give credence to the testimony, and it does not lie with the defendant when advantageous so to do to claim that they should have accepted plaintiff’s figures instead of his own even though plaintiff’s figures are sustained by the preponderance of the evidence. The next item in dispute was one of $665. Defendant claimed that one Cheshelski was indebted to him in the sum of $665 and to secure its payment had deeded him property on Raeburn street. Cheshelski was also indebted to plaintiff. Defendant deeded to Norman Buckner, one Of plaintiff’s officers, the Raeburn street property. It is his claim that it was agreed that he should be credited with the sum of $665. Plaintiff claims that he was not to be credited with this sum until the Raeburn street property was sold and that then defendant should be credited with the first money received on its sale up to $665. It is undisputed that the property had not been sold but that mortgages on it are now being foreclosed. The other item in dispute was for $200. A colt and a cow had either been taken by or turned over to plaintiff. Plaintiff’s claim was that it took the property on a chattel mortgage given by Cheshelski. Defendant claimed that the colt and cow were his and were turned over under an agreement that he should be credited with the sum of $200.
It will thus be seen that there were three disputed items:
(1) The amount of the loan whether $900 as claimed by defendant', or $960 as claimed by plaintiff.
(2) Was defendant entitled to a present credit of $665 for the Raeburn street property?
(8) Was defendant entitled to a credit of $200 for the colt and cow?
An examination of this record does not make it clearly appear that the amount of the verdict was arrived at by splitting differences, but does make it clearly appear that the jury accepted plaintiff’s version of the Raeburn street property deal, and accepted defendant’s version on the $200 item and accepted his claim that he only received $900 on the loan. Manifestly the defendant can not complain because the verdict was $60 less than it should have been. Benedict v. Provision Co., supra; National Bank v. Peters, 120 Mich. 518.
Plaintiff called Cheshelski as a witness and he gave his testimony without objection. Defendant’s counsel then fully cross-examined him. He later moved to strike out his testimony. The court properly overruled the motion. One may not thus speculate on the testimony of a witness, permitting it to be received and if favorable allowing it to stand, and if unfavorable at the end of the cross-examination having it stricken out. McWilliams v. Railway Co., 146 Mich. 216; B. F. Goodrich Rubber Co. v. Sewell Cushion Wheel Co., supra, and cases there cited.
The trial judge instructed the jury that plaintiff was entitled to the discount on the notes. . This was an erroneous instruction: Gladwin State Bank v. Dow, 212 Mich. 521, but, as we have already pointed out, the jury charged defendant with $900 loaned him and credited him with $200 for the colt and cow. The jury did not allow plaintiff the item of discount and therefore defendant was not prejudiced by the instruction.
Letters written by plaintiff to defendant were received in evidence. They called attention to the fact that the note was due, demanded payment and demanded possession of the colt and cow. We do not perceive their materiality or that they were prejudicial to defendant’s rights.
Finding no error prejudicial to defendant on this record, we must affirm the judgment.
Wiest, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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Bird, J.
Plaintiff filed her bill in the Washtenaw circuit court, praying for a decree of divorce on the ground of extreme cruelty. It appears from the proofs that the parties were married in February, 1911, and went to live at Manitou Beach, a resort town on the west shore of Devils Lake. Both parties were in middle life and plaintiff had been married twice and divorced before she married defendant. Defendant was engaged in keeping a bath house, renting boats and cottages at the resort. They lived and worked together about ten years, and during that time they accumulated considerable property. Plaintiff’s averments of cruelty are of the most general character, but they will be briefly considered. They are:
a. That defendant is very untruthful and that she could not believe a word he said. She gave no instance where he had lied to her, although she was urged to do so. His neighbors came in and testified that his reputation for truth and veracity was good.
b. That defendant refused to buy clothes for her. She recited no instance when she had requested defendant to buy clothing and been refused. It appeared that the bank account was subject to her check as well ns to his, and that if she desired clothing she was at liberty to purchase it and pay for it out of the joint bank account.
e. That it was the aim of defendant by his conduct to make her sick and nervous and miserable so that she would die and he would get all the money they had accumulated. There was no proof of this except plaintiff’s testimony that defendant on one occasion admitted such was his intent.
d. That at times he threatened to kill plaintiff; that she is afraid to be near him, and is afraid he may attempt to carry out his threat. This appears to be disposed of by her testimony on cross-examination that defendant never made any attempt of personal assault upon her and never used any personal violence on her.
e. That defendant has been unfaithful to her; that he associated with a Mrs. Schaffer, and that he contracted a venereal disease. This is shown only by the claimed admission or confession of defendant. Plaintiff says defendant confessed to her these facts. This testimony is not admissible to prove that fact, under the holding in Pierson v. Railroad Co., 159 Mich. 110; People v. Bowen, 165 Mich. 231; Eistedt v. Eistedt, 187 Mich. 371. See statute, 3 Comp. Laws 1915, § 12555.
Plaintiff made some further charges, but they were very poorly supported. She made a very poor witness in her own behalf. Her testimony is weak, contradictory and not convincing, and most important of all, it lacks corroboration. On several occasions in her testimony she contradicted herself while testifying upon important matters. It appears from her own testimony and that of her neighbors that she did not marry defendant because she had. any affection for him, but did so out of sympathy for him, as she says, and “out of spite,” as some of the neighbors testified.
The chancellor who heard the case was of the opinion the case was a weak one, but it would be for the best interests of all concerned if they were divorced. We quite agree with the chancellor that it would be for the best interests of the parties and the public if these parties were legally separated, and, if these were considerations upon which a divorce could be granted, we should be inclined to acquiesce in the decree. But, fortunately or unfortunately, these are not statutory grounds for divorce. The showing made by her is too weak to permit of a decree. Defendant, under his cross-bill, makes a better showing for a decree than plaintiff does, but his testimony lacks corroboration, except in a few particulars. We think that neither party made a case upon which a decree could be reasonably based.
The decree will be reversed, the bill and cross-bill dismissed. No costs will be given either party.
Fellows, C. J., and Wiest, McDonald, Clark, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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Sharpe, J.
The plaintiff since 1907 has been engaged in the manufacture and sale of furniture of all kinds in Grand Rapids under its present corporate name. It specializes in living-room and dining-room furniture and library tables. It advertises extensively in the trade journals and in metropolitan papers. For several years the defendant has been engaged in the manufacture and sale of furniture in Grand Rapids. Before May, 1921, its corporate name was the “John D. Raab Chair Company.” At that time it amended its articles by changing its corporate name to “Grand Rapids Furniture Shops.” Both companies market their furniture in the same way, through the furniture exhibitions held annually in Grand Rapids, by soliciting salesmen and by filling mail orders. The bill alleges that as soon as plaintiff was informed of defendant’s change of name it—
“advised defendant that the intended use of said name was illegal and attempted to get defendant to abandon its design to* use the same but without success.”
It also, through its attorneys, called defendant’s attention to the fact that the similarity of names was an invasion of its rights and liable to lead to confusion. On June 17, 1921, plaintiff filed the bill of complaint herein, praying that defendant be enjoined—
“from using such name, or any other name so similar to that of plaintiff as to lead to uncertainty or confusion.”
The answer denies any intent to “take advantage of the reputation or good will of the plaintiff,” and also denies that the similarity of names will “confuse or mislead the public or the customers of either plaintiff or defendant.”
The proofs were taken in open court. The trial court dismissed the bill of complaint, holding that the defendant “had no design to confuse or deceive the public,” that “no customer of plaintiff has been confused or deceived as to the identity of plaintiff or of defendant,” and that the confusion and inconvenience shown was “extremely slight, compared with the volume of business of plaintiff and defendant, and has resulted solely from the carelessness” of employees and “does not constitute actual confusion.” The plaintiff appeals.
The hearing was had on December 8, 1921. That confusion resulted from the similarity of names is clearly established. Plaintiff was repeatedly notified by railroad companies to remove merchandise which was consigned to defendant. On several occasions plaintiff’s drivers hauled such merchandise to its factory before the mistake was discovered. Express and transfer companies made similar mistakes as to delivery. Dealers in the city delivered goods ordered by defendant to the plaintiff. Cars of lumber and coal belonging to defendant were placed for unloading by plaintiff. The employees of the railroad had marked the cars in chalk with the name of plaintiff. Mail intended for defendant was delivered to plaintiff. Envelopes properly addressed to plaintiff were found to contain inclosures intended for defendant. Many checks, some of them made payable to plaintiff’s order, though intended for defendant, were thus received. There was similar confusion in the receipt of invoices, bills of lading and statements of account, and in a considerable number of cases in orders for goods. Confirmation of orders given to defendant was received by plaintiff. Purchasers of goods from plaintiff have remitted therefor to defendant. Without further particularizing, the proofs show a confusion in all matters handled by mail in the business of the respective companies. There was also confusion in telegrams and long distance telephone calls.
The statute regulating the incorporation of such corporations in force in May, 1921, provided:
“No name shall be assumed already in use by any other existing corporation of this State, * * :|: or so nearly similar as to lead to uncertainty or confusion.” Act No. 232, Pub. Acts 1903, § 2 (2 Comp. Laws 1915, § 9018).
This statute was. superseded by a general statute enacted in 1921, in which the above provision now reads:
“No corporation shall assume any name already in use by any other existing corporation of this State, or corporation lawfully carrying on business in this State, or so nearly similar thereto as to lead to confusion or deception.” Act No. 84, Pub. Acts 1921, part 1, chap. 2, § 3 (Comp. Laws Supp. 1922, § 9053 .[13]).
We think the change unimportant as the proofs of plaintiff clearly establish confusion and this word appears in both statutes. The questions presented as we view them are:
(1) Are the names so nearly similar as to lead to confusion?
(2) Did such confusion result as entitles plaintiff to relief?
A corporation cannot exist without a corporate ■name. Geographical words and those generic or descriptive of a business are frequently used. We are not here concerned with the rules of law applicable to the assumption of such names by corporations after-wards organized where fraud, deception and unfair competition are charged. The bill of complaint contains no such allegations. . Plaintiff’s right to relief must rest on a violation of the statute by the defendant.
It is important to bear in mind that plaintiff and defendant were engaged in business in the same city. The distinctive words used in both names are “Grand Rapids Furniture.” It is these that attract general attention, and not the word “company” or “shops” which follows. The distinction between the latter would scarcely be noticed by the ordinary observer. If noticed, we think many would probably understand that the Grand Rapids Furniture Shops was the place of manufacture of the Grand Rapids Furniture Company. It cannot be assumed that the many mistakes made were all due to carelessness. In our opinion they might have been expected to follow, naturally and necessarily, from the use by defendant of a name so similar to that of plaintiff. An ordinarily prudent person who had long known of or had business relations with the plaintiff and had no knowledge of the organization of defendant would be almost certain to infer that letters, telegrams, telephone calls, etc., addressed to the latter were intended for the former. It is the words of a name which the eye first catches or rests upon which fix it in our minds. In the recent case of Pere Marquette R. Co. v. Ashley, ante, 104, confusion resulted from the change of the name from “railroad” to “railway” company. We are impressed that these names are so nearly similar that confusion would naturally and necessarily follow their use by these two companies engaged in the same line of business in the same city.
The question presented is one of fact. Many authorities are cited by counsel. They but serve to indicate the conclusion reached under the showing of similarity presented in each case. People’s Outfitting Co. v. People’s Outlet Co., 170 Mich. 398, is relied on by plaintiff. The plaintiff in that case was in corporated in 1893 under the name “People’s Outfitting Company,” defendant in 1910 under the name “People’s Outlet Company.” Both were engaged in a similar business along certain lines. The allegations in the bill are set out at length in the opinion. On demurrer, it was held that the use of the words as arranged was “misleading in fact” and that plaintiffs were entitled to injunctive relief. Counsel for defendant urge that if the opinion in that case was—
“intended to lay down any different rule than that in the Farrand Case and the Michigan Savings Bank Case, it has been plainly overruled in the Detroit Savings Bank Case and the Chaffee Case.”
The Farrand Case (Williams v. Farrand, 88 Mich. 473 [14 L. R. A. 161]) involved the right to the use of individual names in a copartnership. The statute was not considered. In the Michigan Savings Bank Case (Michigan Savings Bank v. Dime Savings Bank, 162 Mich. 297 [139 Am. St. Rep. 558]), the latter acquired the business of the Citizens’ Savings Bank and desired to change its corporate name to “The Bank of Michigan.” Plaintiff, after protest, sought to enjoin such action. The gist of the opinion is thus stated:
“It is the general rule that when they are properly descriptive, the use of geographical words in a business name will not be enjoined, in the absence of estoppel or of actual fraud, or public misleading; In enforcing a statute intended to prevent some of these results, it must be made to appear that it is reasonably certain they will follow the use of the name sought to be enjoined. The principle is the same in either case.”
It was also said:
“We may also consider that if relief is refused and conjecture is in actual experience made fact, the complaining corporation may have its remedy.”
In Detroit Savings Bank v. Highland Park State Bank, 201 Mich. 601, defendant changed its name to “Bank of Detroit,” and plaintiff sought to enjoin the use of this name because of the similarity of the two names. It was said:
“The dissimilarity or unlikeness of the title ‘The Detroit Savings Bank’ and ‘Bank of Detroit’ are so great, and so striking, that no argument, it seems to us, is necessary.
“Upon the subject of public confusion, a careful reading of the evidence leads us to the conclusion reached by the trial court. Such confusion as was shown was due to carelessness and lack of ordinary care, and not to similarity of ñames.”
But three specific instances of confusion were shown.
In Young, etc., Furniture Co. v. Furniture Co., 204 Mich. 293, the name of the plaintiff corporation was “Young & Chaffee Furniture Company” and that of defendant “Chaffee Brothers Furniture Company.” The use of the word “Young” in the former would so attract general attention as justified the holding that—
“A comparison of the names of these two corporations does not persuade us that from the names' alone uncertainty and confusion is liable to arise.”
Whether unfair competition resulted was then considered. Stress was laid on the fact that the name of defendant corporation was that of its principal stockholders. In discussing the cases, the court said:
“In People’s Outfitting Co. v. People’s Outlet Co., 170 Mich. 398, the case was heard on demurrer to the bill. It was held that taking the allegations of the bill as true a case for equitable relief was made out.”
An examination of the record in the instant case discloses that the facts proven evidence - much more confusion than those alleged in the bill in the Outfitting Case.
In Dayton v. Imperial Sales & Parts Co., 195 Mich. 397, plaintiffs, doing business as “Imperial Automobile Parts Company,” sought to restrain the defendant from doing business under the copartnership name of “Imperial Sales & Parts Company,” because of the unfair competition due to the use of such name. This court said:
“The scheme of the bill is purely unfair competition in trade arising through the adoption by defendants of not only the word ‘Imperial,’ which through its previous adoption, and adaptation by plaintiffs’ grantor to a named article of its manufacture was used with an expansive meaning, but particularly, and in that connection, to the assumption of a trade name closely imitating that of plaintiffs, leading to confusion and tending, because of its similarity, to be taken by the public for that of plaintiffs.”
The following was quoted with approval from the opinion of the trial court:
“There is a misleading and studied similarity between the names * * * well calculated to confuse the public into mistaking one for the other.”
A very instructive discussion will be found in Supreme Lodge K. of P. v. Improved Order K. of P., 113 Mich. 133 (38 L. R. A. 658), wherein this court adopted as its own the opinion of Justice Carpenter, then a judge of the Wayne circuit. We quote therefrom:
“It is enough that the name should be used under such circumstances as would lead the public to believe that the latter organization was the former, and thereby cause injury to the former corporation. * * *
“Where the name was not chosen for the purpose of deception, and has not been used under circumstances intended or calculated to deceive, the similarity of names must be such as to deceive ordinary persons proceeding with ordinary care, to justify the interference of a court. * * *
“The best possible evidence that names are suf ficiently similar to mislead the public is the fact that the public, or some portion thereof, has been misled.”
In Northwestern Knitting Co. v. Garon, 112 Minn. 321 (128 N. W. 288), plaintiff sought to enjoin the defendant from the use of “Northwestern Knitting Mill” as its corporate name. The former did business in Minneapolis and the latter in Duluth. The court said:
“There is no substantial difference between plaintiff’s corporate name, ‘Northwestern Knitting Company,’ and that adopted by defendant, ‘Northwestern Knitting Mill.’ ”
That their business was conducted in different cities was said to be immaterial as they were both “dealing with traders in the same territory.”
In Atlas Assurance Co., Ltd., v. Atlas Insurance Co., 138 Iowa, 228 (112 N. W. 232, 15 L. R. A. [N. S.] 625, 128 Am. St. Rep. 189), it was said:
“There is such a resemblance between the plaintiff’s name and the defendant’s name that a person desiring toi purchase insurance might easily be misled as to the company he was in fact dealing with.”
We refrain from a further discussion or citation of cases. Those in which it was sought to enjoin the use of a trade-name or to restrain the use of one so nearly similar as to result in unfair competition have little application here as plaintiff’s rights, as before stated, are based on defendant’s violation of the statute. It contains no exception. It prohibits the assumption of a corporate name so similar as to lead to confusion without regard to whether unfair competition will result. To apply the latter test in a case brought under the statute would nullify the purpose of its enactment.
That confusion has, resulted is apparent from the record. We are unable to agree with the trial court that the confusion proven was so slight as not to justify relief. When it is shown that the names have been confused on many occasions by persons having busi ness relations with the two corporations and serious inconvenience has resulted therefrom, we see no way in which a line can be drawn differentiating that to which the statute applies and that to which it does not apply. The confusion must, of course, be real, not imaginary; substantial, not illusive. Were we in doubt on this question, we would feel impelled to grant plaintiff’s motion to remand the record in order that plaintiff might show that the confusion has continued, if not increased, since the hearing. The affidavits filed in support of the motion tend to strongly support this claim. The proofs submitted establish much greater confusion than was alleged in the People’s Outfitting Case. The language of the statute is in no way uncertain. The plaintiff is entitled to the benefit of it,, and the defendant in its change of corporate name was bound to observe the prohibition therein contained.
We feel constrained to hold that plaintiff by its pleadings and proofs has made out a case entitling it to injunctive relief against defendant’s use of the name assumed by it. A decree will be here entered granting such relief. Plaintiff will recover costs of both courts.
Wiest, C. J., and Fellows, McDonald, Clark, Bird, and Steere, JJ., concurred. Moore, J., did not sit. | [
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McDonald, J.
Four of the defendants, William G. Butler, Isadore Warren, Artie Purse, and Willett S. Jull, were convicted in the recorder’s court in the city of Detroit, under an information charging them with having conspired with each other and others to enter into a contract in restraint of trade. Of the other defendants some were discharged by the court at the close of the people’s case, and the others were acquitted by the jury. The information contains three counts, first, that they conspired to enter into such a contract, second, that they did enter into such a contract, and third, that they solicited and coerced other persons to enter into the contract. They were found guilty on the first count and acquitted on the other two counts.
The defendants are wholesale dealers in produce in the city of Detroit. The distribution of produce in that city is carried on through three agencies, car lot receivers, wholesalers, and retailers. Some of the car lot receivers sold produce direct to the retailers, and it is the theory of the people that the wholesalers, desiring to prevent the car lot receivers from selling direct to the retailers and to restrict that trade to themselves, conspired to procure a contract to that effect from the car lot receivers, and that to further this object they organized the Wholesale Dealers Produce Association.
It is the claim of the defendants that the object of their association was lawful and was intended to improve the relations between it and the car lot dealers, and to prevent congestion on the street at the point where this business was carried on. At the conclusion of the people’s case, counsel for the defendants made a motion to discharge the defendants for the reason that the people had not made out a case of conspiracy, that there had been no evidence of any agreement to restrict free competition in handling produce in the city of Detroit, and that there was no evidence of any combination or conspiracy to regulate the distribution of produce. This motion was denied and the case submitted to the jury as to all of the defendants except David Bloomgarden, James N. Purse and Carl Siegel. The four defendants who were convicted have brought their case to this court for review on exceptions before sentence.
The assignments of error present the following questions:
1. That Judge Marsh was disqualified to conduct the trial because he was the examining magistrate on the examination in the lower court and because the case was assigned to him by the presiding judge of the recorder’s court on the advice of the prosecuting attorney. The practice followed by the presiding judge in this case is not to be commended. In the city of Detroit the recorder’s court is composed of several judges and there is no occasion to assign the trial of a case to the judge who acted as the examining magistrate.
“The law aims, as far as possible, to give every man a trial that shall not only be fair, lout as free as may be from any suspicion of partiality or undue influence.” Bashford v. People, 24 Mich. 244.
The selection on the advice- of the prosecuting attorney of a judge who had already been connected with, the case as examining magistrate was sufficient to create in the minds of the defendants a “suspicion, of partiality or undue influence.” In the administration of the criminal law it is never proper to permit the prosecuting attorney to have any part in the selection of a judge to try his accusations. However, as there is no claim of bias or prejudice on the part of Judge Marsh, he cannot be held to be disqualified. See People v. Ferrise, 219 Mich. 471.
2. The second question relates to the denial of a motion to quash the information for the reason that there was no evidence warranting the examining magistrate in finding probable cause that the defendants were guilty of the offense charged in the complaint and warrant. We are unable to consider this question because the record does not contain the testimony taken on the examination.
3. Use of the grand jury testimony. Various assignments are presented relating to the rulings of the trial judge in allowing the prosecuting attorney to cross-examine some of the defendants as to their testimony before the grand jury held by the justice of the peace, and in allowing the witness Baker, the stenographer who took their testimony, to testify as a witness for the people to testimony given before the grand jury. The statute permits members of the grand jury to testify whether the testimony of a witness examined before such jury is consistent with or different from the evidence given by the witness on the trial. It is the claim of counsel that the only member of the grand jury was the justice of the peace, and that he is the only person who could testify as to the inconsistency of the testimony of these witnesses. Section 2 of Act No. 196, Public Acts 1917 (Comp. Laws Supp. 1922, § 15664 [2]), in part provides that
“in respect of communicating or divulging any state ment made by such, witnesses during the course of such inquiry, the justice, judge, prosecuting attorney, and other person or persons who may, at the discretion of such justice, be admitted to such inquiry, shall be governed by the provisions of law relative to grand jurors.”
We think that this provision of the statute is sufficient authority for the admission' of the testimony of the stenographer. The court was not in error in receiving this testimony, nor was he in error in permitting the prosecuting attorney to cross-examine the defendants as to that part of their testimony before the grand jury which he claimed was inconsistent with their testimony given on the trial. The court carefully confined this testimony to the use and purpose permitted by the statute. This did not open the way for counsel for the defendants to examine the witnesses as to other proceedings before the grand jury, neither did it justify his demand that the transcript of all of the testimony be delivered to him.
“Where the statutes prescribe the cases in which a grand juror may testify, it is held that he may do so in no other.” 9 Am. & Eng. Enc. Law (1st Ed.), p. 17.
No other part of the testimony than that permitted to be used by the statute was admissible, and therefore counsel cannot justly complain that he was not permitted to use the entire transcript or that he was not allowed to examine the witnesses on matters not authorized by the statute.
As a further objection to the testimony counsel say it does not appear that the witnesses were informed as to their constitutional rights when they were sworn before the grand jury. It is not contended that any of these witnesses claimed his privilege and that it was denied him, nor is it claimed that their testimony was not voluntarily given. The sole question is that they were not informed as to their constitutional rights. This was not necessary. The question is ruled by People v. Lauder, 82 Mich. 109.
4. There are a great many other assignments of error relating to the introduction and exclusion of testimony. They present no new question, therefore we will not specifically mention them nor discuss them in detail. For the most part they are without merit. In some instances testimony was received which should have been excluded, and testimony was excluded which should have been received, but in no instance was there any testimony wrongfully admitted or excluded which tended in any way to prejudicially affect the defendants’ interests.
5. It is next urged by counsel that the court erred in refusing to grant defendants’ motion to direct a verdict of not guilty. Touching this question in their brief counsel say:
“The undisputed testimony of this record reveals the fact that the respondents were not guilty of the crime of conspiracy as alleged in the three counts of the information. In view of the fact that the four respondents and appellants were found guilty on the first count, there is only that feature to be considered. Does the record reveal any testimony that the four respondents were guilty as alleged in the first count of the information? The record is barren of any testimony that, we believe, warranted the court in submitting the case to the jury.”
The information is laid under section 15095, 3 Comp. Laws 1915, which provides in part that any
“contract, agreement, understanding and combination shall constitute a criminal conspiracy, * * * the purpose or object or intent of which shall be to limit, control, or in any manner to restrict or regulate the amount of production or the quantity of any article or commodity to be raised, or produced by mining, manufacture, agriculture or any other branch of business or labor, or to enhance, control or regulate the market price thereof, or in any manner to prevent or restrict free competition in the production or sale of any such article or commodity.” * * *
The first count of the information charged that the defendants conspired to enter into such a contract with the car lot receivers. Of this charge they were convicted. It is not claimed that the defendants sought to control the quantity of the sales. The sole claim of the people is that they conspired to secure an agreement which would bind the car lot receivers to sell only to the members of the Wholesale Produce Dealers Association and which would eliminate sales to retailers. Such an agreement is forbidden by the statute and if made would constitute a criminal conspiracy. It was an agreement to prevent and restrict free competition in the sale of produce in the city of Detroit. The car lot receivers were organized and their organization was known as the Detroit Produce Association. The testimony of the people tends to show that to procure an agreement with the Detroit Produce Association, the Wholesale Produce Dealers Association appointed a committee to meet with a committee of the other organization and that in these negotiations the four defendants were active participants. Mr. Kyte, secretary of the Detroit Produce Association, was a witness for the people. He testified that there was
“no attempt to limit sales on quantity basis. There was no agreement reached on any basis, or any agreement otherwise suggested on any basis except the limitation of sales to a class during the negotiations at which any of the defendants were present. The agreement was in respect to sales to a given class or group of individuals without regard to quantity.”
As secretary of the Detroit Produce Association Mr. Kyte addressed a communication to the Wholesale Produce Dealers Association asking for more definite information in regard to certain provisions of the pro posed agreement. The secretary of the Wholesale Produce Dealers Association made written reply (Ex. 7) in which he gave their understanding of the agreement to be that the car lot receivers “agree not to sell to retailers on track, binding themselves to sell to wholesalers only.”
Mr. Kyte further testified that on May 19th there was a temporary verbal agreement entered into in which it was provided that with certain exceptions the car lot receivers would not sell to any retailers for a period of thirty days. He also gave testimony of a boycott against the car lot receivers by the wholesalers, that this was discussed and the suggestion made that if the car lot receivers would refuse to sell to garage markets conditions would go back to normal.
Mr. Read, a car lot receiver, testified that he attended one of the joint committee meetings at which the four defendants were present, and that at this meeting they discussed an agreement not to sell to the retail trade. The wholesalers employed an attorney to put in form an agreement containing such a provision. The agreement was reduced to writing (Exhibits 4, 5), but was not signed by any one. So far as the charge in the first count of the information is concerned, it is immaterial that none of the defendants signed it. If they combined to secure such an agreement they were guilty of a conspiracy to interfere with and restrict free competition in the sale of produce, an act made unlawful by the statute. We think that there was evidence tending to establish every element of the offense charged in the first count of the information, and that the court did not err in refusing to grant defendants’ motion to direct a verdict of not guilty.
6. Counsel for defendants discuss two objections to the charge of the court to the jury. Both are based on the claim that there was no evidence to justify the instructions given. In consideration of the preceding question we have pointed out some of the evidence which answers the objection presented by this assignment.
After a careful examination of this somewhat voluminous record and the large number of assignments presented by counsel, we are convinced that there is no reversible error.
The conviction is sustained. The trial court will proceed to judgment.
Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Mooes, and Steere, JJ., concurred. | [
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Fellows, C. J.
(after stating the facts). This case does not fall within that line of cases where plaintiff saw the car or train approaching and in the exercise of reasonable prudence concluded that he could cross with safety. Plaintiff does not claim such a state of facts as to bring himself within that line of authorities. The case falls within that line of cases' where the undisputed physical facts established by plaintiff’s testimony demonstrate that had plaintiff looked with the slightest degree of care he could not have failed to see the approaching car or train, where the undisputed physical facts established by uncontradicted testimony demonstrate that either (1) plaintiff did not look, or (2) looked so indifferently as not to see a car in plain sight. The instant case can not be distinguished from but is controlled by Champaign v. Railway, 181 Mich. 672. In that case both plaintiff and her husband claimed to have looked, but the undisputed physical facts established by their testimony demonstrated that at the rate the car was running they could not have failed to see it had they looked. It was there said by Mr. Justice Steere, speaking for the court:
“In the face of such unquestionable evidence, and particularly in the absence of evidence that the car was running at excessive speed, it cannot in reason be said that plaintiffs’ testimony that they looked or listened, and did not see or hear the car, raises an issue for the jury. The car came to that point running along the track. Had they looked to the extent and at the time the law requires, they could and must have seen it. The physical facts which they themselves testify to negative their own testimony to the contrary.”
See, also, Manos v. Railway, 168 Mich. 155; Weil v. Railway, 186 Mich. 614; Lanier v. Railway Co., 209 Mich. 302; Pershing v. Railway Co., 206 Mich. 304; Davis v. Railway, 162 Mich. 240; Apsey v. Railroad Co., 83 Mich. 432. The rule announced in the Champaign Case is applicable to the facts in the instant case. It has been adopted by this court and is the only safe rule unless we desire to put a premium on perjury.
We do not perceive that the question of discovered negligence was urged in the court below, nor does the testimony take that question to the jury. Baker v. Delano, 191 Mich. 204; Wortman v. Railway, 218 Mich. 119.
The judgment will be affirmed.
Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred. | [
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] |
Sharpe, J.
On July 17, 1915, plaintiff and defendants entered into a written contract whereby defendants agreed to furnish plaintiff coal from the mines of the Boomer Coal & Coke Company in West Virginia to meet its “entire requirements” for a period from its date to April 1, 1920, estimated at from 200,000 to 250.000 tons at “the rate of approximately 40,000 to 50.000 tons per year,” at a price of 85 cents per ton at the mine. The agreement recited that the price was “based on the present wage scale in effect at the Boomer mines,” and provided that—
“Should there be any increase or decrease in the cost of mining coal at the Boomer mines herein mentioned during the life hereof due to a change in said wage scale, or in any of the matters embraced therein, then the amount of such increase or decrease shall be added to, or deducted from, these prices, during the period in which such increase or decrease is effective.”
The agreement also contained the following provision:
“All shipments made hereunder shall be well mined merchantable coal from the same mines and of equal preparation as test coal furnished. Shipment and acceptance hereunder are subject to car shortages, strikes, lockouts, fires, acts of God and other causes beyond the control of either party, and neither pa/rty is to be held responsible for the failure to perform by reason of such matters.”
The contract was fully performed during the first year.. During the second year there was a shortage. Plaintiff repeatedly called defendants’ attention to this. The market price of coal had greatly advanced. In a letter to defendants, written on November 29, 1916, plaintiff said:
“Now we know there is an awful incentive for producers of coal to lay down on 85c contracts when they can sell their coal for $3.50 to $4.50 per ton.”
On March 30, 1917, it wrote defendants:
_ “We do not think you have any legal right, or moral right, to renew contracts when you are not taking care of your old ones.”
All of defendants’ contracts except that with plaintiff expired about July 1, 1917. On July 12th of that year they entered into a new contract with the Detroit United Railway to furnish it with its requirements for steam purposes at certain of its plants. The price fixed was $3.25 per ton for the period of 9 months after July 1st. It contained a similar clause to that in plaintiff’s contract excusing delivery. A memorandum was attached to it, which defendants claim became a part of it, limiting the amount to be furnished to 92,000 tons. The shortage in delivery to plaintiff continued until January, 1919. Plaintiff purchased coal in the open market to keep its plant in operation. On May 24, 1919, it brought this action to recover the amount paid out by it over and above the contract price, in all $128,154.86. Defendants admitted the shortage, but claimed it was due to the “causes beyond their control” provided for in the contract. The jury found for plaintiff in the sum of $58,461.19. Defendants review the judgment entered thereon by writ of error.
Construction of the Contract. The causes which defendants allege prevented performance were shortages in cars, labor difficulties, and zoning, preferential and other governmental orders, issued during the war period. The rules of law governing contracts when the vendor agrees to sell and deliver products from the farm or forest or such as he may be able to purchase in the open market are not applicable. Plaintiff’s officers knew that defendants did not own or operate the Boomer mine. They also knew that the normal production of the mine was largely in excess of the amount they were entitled to receive under their contract. They also knew that defendants had other contracts obligating them to furnish Boomer coal. Plaintiff’s counsel conceded on the trial that it is impractical to store coal. Its production was therefore dependent upon The ability of the mining company to secure labor to mine the coal and cars with which to make shipment. The coal was to be shipped direct to plaintiff from the mine.
Under the terms of the contract the defendants were not “to be held responsible for the failure to perform” due to “car shortages, strikes, lockouts, fires, acts of God and other causes beyond” their control. The causes above enumerated could not have affected defendants personally in their efforts to perform. No strike among defendants’ employees could affect delivery to plaintiff. Neither could a car shortage do so unless it interfered with the shipment of coal from the mine. The conclusion seems inevitable that the causes excusing delivery must apply to the mining and shipment of the coal, and, if delivery to plaintiff was prevented thereby, the defendants are not liable for damages on account thereof unless such liability arose out of the manner of distribution by the defendants or the mining company. Bearing in mind plaintiff’s knowledge of the fact that its contract did not call for the entire output of the mine, we think it may fairly be said to have been within the contemplation of the parties that the amount produced should be fairly distributed by the mining company among those having contracts to purchase its output. If, however, such construction cannot be placed on the language of the contract, the undisputed evidence of such a custom would, we think, be controlling. The long-continued practice, testified to, would seem to grow out of the necessities of the coal trade. Otherwise, producers would be unable to enter into contracts to supply coal and their dealings would be restricted to sales when the coal was actually mined and loaded in cars for delivery. In view of the magnitude of the coal industry, such a manner of handling it would be impossible.
“In contemplation of law the custom is written into the contract.”
Luhrig Coal Co. v. Jones & Adams Co., 141 Fed. 617.
See, also, Consolidation Coal Co. v. Peninsular Portland Cement Co., 272 Fed. 625; McKeefrey v. Coke & Iron Co., 56 Fed. 212; Oakman v. Boyce, 100 Mass. 477; Garfield & Proctor Coal Co. v. Pennsylvania Coal & Coke Co., 199 Mass. 22 (84 N. E. 1020); American Fuel Co. v. Interstate Fuel Agency, 261 Fed. 120; Atlantic Steel Co. v. Campbell Coal Co., 262 Fed. 555; DeGrasse Paper Co. v. Coal Co., 190 App. Div. 227 (179 N. Y. Supp. 788); Eaton v. Coal & Mining Co., 161 Mo. App. 30 (142 S. W. 1107); Consolidated Coal Co. v. Jones & Adams Co., 232 Ill. 326 (83 N. E. 851); Cottrell v. Smokeless Fuel Co., 78 C. C. A. 366, 148 Fed. 594 (9 L. R. A. [N. S.] 1187).
The application of the rule permitting pro-rating was, however, dependent upon the defendants' having in good faith contracted for sufficient coal to fill their contracts and on the mining company’s having an output equal to its commitments to defendants and all its other contract customers. ■ It seems undisputed on the record that defendants’ contracts (that with plaintiff and that with the Detroit United Railway) called for less than 200,000 tons per year. Their contract with the mining company entitled them to a minimum of 225,000 tons. It also may be said to be undisputed on the record that the entire commitments of the mining company were much less than it had a right to reasonably expect its annual output to be, had it been permitted to operate and deliver without interruptions beyond its control. These facts being undisputed, defendants were entitled to a peremptory instruction that at the times they were prevented from performing because of lack of cars, labor difficulties, and governmental interference due to the .war, the mining company had a right to pro-rate its output among its several contract customers and the defend ants had a right to pro-rate the coal allotted to it by the mining company between its contract customers.
The Contract with the Detroit United Railway. The fact that defendants were large dealers in coal was well known to plaintiff. While defendants were under a legal obligation to furnish plaintiff coal as provided for in the contract, we do not think it can be said as a matter of law that they had no right to enter into the contract with the Detroit United Railway. They at that time had a written contract with Hanna •& Company, representing the mining company, to supply their customers with a minimum amount of 225,000 tons per year. This was largely in excess of the maximum contained in both these contracts. The defendants listed its contract requirements with the mining company. These and all other contracts for the sale of the product of its mine constituted the basis on which the percentage available for distribution was arrived at. Had not the contract with the Detroit United Railway been made, we are impressed that plaintiff would not, under the plan of pro-rating adopted, have received any considerable quantity of coal more than it did receive. Had the defendants’ commitment been but the amount of plaintiff’s contract, the mining company would doubtless have taken on other contracts to equal its reasonable minimum production.
Did Plaintiff Receive its full Share of the Coal Produced?
Defendants asked the court to charge that:
“The evidence which remained uneontradicted, established that plaintiff received, during the entire time when causes beyond control were so interfering with production and shipments as to cause a shortage, more than its said percentage or pro rata share.”
We do not think such a charge would have been justified under the proofs. Several conferences were held in July, 1917, between Judge Lockwood, representing plaintiff, and defendants looking to plaintiff’s getting a larger supply of coal. On July 30th, defendants wrote plaintiff:
“Referring to the conversation with you on the 19th inst. we understand that if, under our contract with you, during the period from July 1, 1917, to May 1, 1918, we are able to supply all’the coal you order for your requirements up to the maximum monthly tonnage provided by the contract: viz: 4,166 tons monthly, it is your intention, on May 1, 1918, to pay us the additional cost of production at the Boomer mines this year, as compared to a year ago, on all tonnage supplied between the dates named.' The additional cost of producing coal at the Boomer mines this year as compared to a year ago, is, according to the figures shown me, 50c per ton. Of this amount, you are now paying an amount per ton equal to the two advances granted the miners; one of 13c per ton, on April 1, 1917; and the other, 10c per ton on July 1, 1917, leaving 27c per ton, which we understand it is your intention to pay us, under the conditions named above.
“It is specifically understood and agreed that our knowledge of your intention, as above expressed, does not in any way act to alter or change any of the terms or provisions of the contract.”
To this plaintiff replied on August 3d:
“Yours of July 30th received. We confirm the conversation to which you refer as follows:
“If you supply from week to week from July 1,1917, to May 1, 1918, the coal required at our plant, not to exceed 961% tons average per week, we will voluntarily pay to you on May 1, 1918, the difference between what we shall have paid you therefor from month to month and one dollar and forty cents per ton. This will give you $1.40 per ton for the coal delivered between these dates providing you keep us supplied with coal. It is understood and agreed that this is a voluntary payment to be made by us and that the contract existing for coal is not, and shall not be, in any manner altered or changed by reason of anything contained herein or done hereinunder.”
Of the additional 50 cents which plaintiff promised to pay, 23 cents was due to advances granted the miners and within the terms of the contract; 27 cents was simply a bonus to be paid on condition that plaintiff received more coal than it would receive unless such payment was made. We think these letters tend to show that the pro-rating was not at all times done fairly and with reference to commitments only. It is the claim of defendants that the entire production of the Boomer mine was committed under contracts with defendants and others and that the output was fairly pro-rated among such contract purchasers. If so, in what way could defendants procure an additional supply of Boomer coal for plaintiff on condition that it paid the extra 27 cents per ton therefor? Andrew Lorimer was interrogated concerning these letters. He testified:
“We expressed a hope to Boehme & Rauch that they would pay more, but we did not tell them if they paid more that it would encourage shipments to them.”
We can see no other purpose in securing their consent to make the additional payment than a hope, at least, that they would thereby get more coal. The fact appears, however, that in the succeeding month, August, 1917, plaintiff received 4,053.60 tons of Boomer coal, a larger amount than in any month between July, 1916, and January, 1919, except the month of December, 1918.
The pro-rating at the mine was on the basis of the customers’ commitments. Hal H. Booth, manager of the bituminous sales department for Hanna & Company, testified:
“Of the 419,000 tons of coal we mined in 1917-1918, 25,831 tons was shipped to Boehme & Rauch. * * *
“The Boomer mine, according to the records, shipped 66% per cent, of their commitments. Therefore, Boehme & Rauch were entitled to 66% per cent, of the commitment to them. Sixty-six and a half per cent, of'3,100 tons shown in the commitment to Boehme & Rauch is 2,061 tons due them for the month of July.”
This testimony is in conflict with the tabulated statement from the Boomer company’s books put in evidence by defendants (Exhibit 31) wherein the total commitment to plaintiff from July, 1917, to July, 1918, is stated to be 3,400 tons per month. It also appears from the same exhibit that the commitment to plaintiff for the year, July, 1916, to July, 1917, was 37,510 tons. It was doubtless on this sum that Mr. Booth’s computation was made. We cannot understand why, in view of the contract, the commitment to plaintiff should have been listed by the defendants with the mining company at less than 40,000 tons for the year.
There is proof that “spot sales” (sales to other than contract customers) were made by defendants in 1916 and 1918. Counsel insist that even if such sales were made—
“it would make no difference, because in fixing the prorating percentage no credit was taken by Lorimer for these outside sales.”
If, however, the shipments were made by the mining company at defendants’ request and credit was taken for them by the mining company in fixing the prorating percentage to which defendants’ contract customers were entitled, such sales would directly affect the quantity of coal which plaintiff received. These facts, and we do not say there are not others, clearly presented an issue on this question for the jury.
Paint Creek Coal. The Paint Creek Coal Company was organized in 1916 by individuals interested in the Boomer company. Its mines and those of the Boomer company were on opposite sides of a river and served by different railroads. The Paint Creek company had no contracts and sold its product at current market prices. Coal was frequently exchanged by the Paint Creek company’s shipping to Boomer customers and the Boomer company’s filling orders given the Paint Creek company. Defendants, assuming that the testimony relating to the dealings between the two companies had no bearing on any issue presented, in a lengthy request asked that the jury be instructed that all such evidence was immaterial. The trial court made it plain to the jury that the defendants were under no obligation to furnish the plaintiff with Paint Creek coal in the fulfillment of their contract. He, however, left it to the jury to find whether the arrangement for exchange made and followed by these companies affected the quantity of coal which the Boomer company distributed among its customers to the disadvantage of plaintiff under the pro-rating system which was followed. In this we think no error was committed.
15,000-ton shipment to the Detroit United Railway. It appears that while an order of the United States fuel administrator was in force, prohibiting the shipment of coal into Michigan, 15,000 tons of Boomer coal were shipped by boat to the Detroit United Railway at Detroit. This shipment was applied on defendants’ contract with that company. This proof was received over defendants’ objection and a specific request was presented asking that the jury be instructed not to consider it. We think this evidence was material and might be considered by the jury in its bearing upon the question of unfairness in pro-rating. If defendants were able, notwithstanding the zoning order, to secure a delivery, of Boomer coal in Detroit, it was their duty under their contract with plaintiff to furnish it with its proportionate share thereof. That it would have to have been reshipped would not, in the absence of other obstacles, relieve defendants from doing so.
Instructions to the jury. It remains to consider defendants’ assignments based on the charge of the court and the failure to give certain of defendants’ requests. The jury were instructed:
“The defendants were dealers in coal, and were known to the plaintiff to be selling coal directly from mines; and as the contract under consideration called for coal from a particular mine, the Boomer mine, and because the contract provided that the contract was subject to — and I quote from the contract — ‘car shortage, strikes, lockouts, acts of God, and other cause beyond the control' — of the defendants, they claim that they found themselves unable to fuffill all their contract obligations as to the amounts of coal to be furnished, and that in such event they claim that they would be justified in law, because of the custom sworn to in evidence here, in pro-rating the available supply among their contract customers, provided, always they acted in good faith in their transactions. In that connection I will say that the defendants’ right to pro-rate shipments depends particularly upon their exercise of good faith and reasonable care to avoid taking contracts in such amount as it might reasonably expect would interfere with its securing sufficient cars to fill the plaintiff’s contract; upon the making of an honest effort and the use of reasonable diligence to secure sufficient cars to fill the contract; and upon its distribution of cars, which it actually did get, among its different customers, so that the plaintiff would receive its fair share. Car distribution in case of shortage calls for good faith, diligence, prudence and reasonable care in the respects mentioned. The good faith asserted here and denied here, becomes the controlling issue, but good faith, although a controlling attribute, becomes here a disputed fact. Unlike facts as ordinarily considered, it cannot be produced directly, but its existence is left largely to proof of other facts, and to inference from established facts. If one acts honestly, and with the amount of care, prudence and caution that an ordinarily prudent man would give under like circumstances, then it might truly be said that good faith is shown. * * *
“The question of good faith in defendants’ transaction is of paramount importance, because good faith alone would justify pro-rating. And second, prorating when justified, must be done in perfect good faith. * * *
“In considering this case, you must ascertain and determine, not what was the indirect or remote cause of the shortage in deliveries, but what was the proximate cause. If deliveries were short, due to causes beyond the control of the defendants, in so far as these causes excuse the failure, they are exonerated from delivering, and only in so far. * * *
“Strictly speaking, you should examine each month in controversy to ascertain and determine whether or not there was any shortage in that month, and what the proximate cause of the shortage was and the damages, if you find any, that were sustained by the plaintiff in each case.”
Defendants’ counsel say:
“The trial court held a mistaken view of this case throughout. He considered that the situation demanded good faith and applied that idea to the entire case to the exclusion of any definition of the legal obligations which flowed from the contract, and to the exclusion of any definition of the legal method of prorating.”
The insistence of plaintiff’s counsel that no right, to pro-rate existed we think caused the court to be overcautious in presenting the law applicable in this respect to the jury. The questions to be passed upon by them were intricate and not easily understood by the lay mind. We are impressed that under the charge as given they would necessarily fail to grasp the legal effect of defendants’ right to pro-rate. The law giving them such right became a part of the contract just as though it had been written therein. If conditions justified pro-rating, it needed not “good faith” to entitle defendants to resort to it. The proofs must, of course, show an inability on the part of defendants to perform for causes stipulated in the contract, relieving them from doing so. When such' causes were shown to exist, and there can be no question but that they were here shown as to a part of the time, the question follows, Was the pro-rating fairly done? If not, then to what extent was plaintiff damaged thereby? The rule of determination is well stated by Judge Knappen in Consolidation Coal Co. v. Peninsular Portland Cement Co., supra:
“Again, while failure to exercise good faith, prudence, diligence and reasonable care should forfeit relief to defendant to the extent that such failure has prejudiced plaintiff, we think that right to relief should not thereby be entirely forfeited, but should be lost only to the extent to which plaintiff has been thereby prejudiced. As said in Metropolitan Coal Co. v. Billings, 202 Mass. 457, 462 (89 N. E. 115):
“Tf It (plaintiff) had delivered to the defendant his proportion of existing and available supplies, then it was excused by the strike from any further performance of the contract. If it had not delivered to the defendant his due proportion, then to the extent to which the defendant had been damaged by such failure it was liable and the defendant could recover.’ ”
The burden of proof was on defendants to show that pro-rating was justified by causes beyond their control and that plaintiff had been furnished with its share of the coal mined under the plan adopted for distribution. The exercise of the right to pro-rate would not be a breach of the contract. A failure to furnish plaintiff its fair share of the coal mined would amount to a breach. In that event, plaintiff’s damages must be restricted to the loss occasioned thereby. The amount of such loss must be established by competent proof from which it can be ascertained, or at least fairly estimated. The usual rules relative to such breaches will be applied. The jury must not be permitted to speculate concerning the damages or to award a sum, not based on proof, which they might think to be just and reasonable.
We have not assumed to consider the assignments of error in the order discussed by counsel. In view of a new trial, we have attempted to discuss and decide such questions of law as we hope may aid both court and counsel on a retrial in submitting the case to the jury without error.
The judgment is reversed and a new trial granted, with costs to defendants.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, and Steere, JJ., concurred. Moore, J., did not sit. | [
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Fellows, J.
Defendant was convicted of violating the prohibition law and reviews such conviction on exceptions before sentence. The date of the commission of the offense was alleged in the information under a videlicet to be the 12th day of August, 1921. The people’s testimony, while not definitely fixing that date, approximated it. The defense was an alibi. The testimony introduced on behalf of defendant tended to show that both before and after that date he was at the residence of his father in Muskegon county, some distance away, and that on the specific date he attended an auction sale over in Ottawa county. The only assignments of error discussed in the brief of appellant relate to the argument of the prosecuting attorney. They are, therefore, the only ones we can consider, all others are waived. Supreme Court Rule No. 40; People v. Oprita, 213 Mich. 13; Ward v. Carey, 200 Mich. 217; In re Warring’s Estate, 196 Mich. 720, and authorities there cited.
In the case of People v. Osborn, 205 Mich. 531, we had occasion to consider the conduct of the prosecuting attorney in a criminal case and we there said:
“Cases are numerous in this court where we have had occasion to consider the conduct of counsel upon the trial of jury cases. We cannot undertake the review of all or any considerable portion of them. Where the conduct of counsel was prejudicial and was not or could not be cured by the trial judge we have reversed the cases. Where such conduct could be and was cured by the trial judge and the error was therefore without prejudice we have declined to disturb the judgments. * * * In many cases this court has taken occasion to seriously criticize counsel for improoer conduct, but where the trial judge has carefully guarded the rights of the parties, and instructed the jury to disregard the misconduct and such misconduct could be cured, and was cured by the trial court, this court has in such cases declined to reverse the case because counsel in the heat of the trial oversteps the bounds of proper conduct.”
And in the recent case of Walz v. Peninsular Fire Ins. Co., ante, 326, we again reviewed numerous authorities and pointed out the proper practice to preserve the question for review. In the main, the argument of the prosecuting attorney in the instant case was within the domain of proper argument. In some instances it is subject to criticism, in no regard did it constitute reversible error in view of the instructions given by the trial judge. Defendant called as witnesses his father and other relatives and acquaintances; they testified that he was at the auction sale. The prosecutor criticized their testimony and argued that the testimony of the auctioneer and the notice of the sale would be better evidence of the date of the sale and that they should have been produced by defendant. We do not think this argument was erroneous. People v. McGarry, 136 Mich. 316.
It was improper for the prosecutor to state that he made the same argument when the case was tried the week before, and that he then challenged defendant’s counsel to produce such evidence, but we do not believe it was harmful. The testimony showed there had been a trial of the case the week before and it would probably be inferable that the prosecutor then conducted the case along the same lines as this trial was conducted.
The language used by the prosecutor concerning a woman witness called by defendant is without evidential support in the record and was such as would be resented by the average juror. Such attacks harmed the people’s case more than it helped it. People v. Fenner, 217 Mich. 239.
One of the people’s witnesses testified to giving a note to defendant the day the alleged sale of liquor was made. The note was not introduced in evidence by the defendant and this fact was commented upon by the prosecutor. We do not perceive error in this. It would not have been necessary for the defendant to take the stand in order to get the note in evidence; all that would have been necessary would have been to show it to the maker when he was on the stand. The argument, therefore, can not be.construed as calling the attention of the jury to the fact that defendant did not take the stand.
We do not find in the argument of the prosecuting attorney the language attributed to him in the 14th assignment of error.
This covers the language most seriously complained of.- We need not discuss the argument of the prosecuting attorney further. In view of the instructions of the trial judge, we find no reversible error upon this record. The charge was a fair one; as to the argument of counsel the trial judge said:
“Counsel have argued quite bitterly. Charges and counter charges of lack of good faith on the part of either have been hurled at each other in your presence. You should utterly disregard it. You should not be influenced by argument of counsel on either side when they say a certain witness has lied or a certain other witness told the truth. That is the province of the jury. It is for the jury to judge of the evidence, weigh it all, and give to each part and parcel of the evidence such weight or credence as they as candid men think it entitled.”
As to the failure of the defendant to take the stand he charged:
“In this case the respondent has not gone on the stand as a witness in his own behalf. The respondent becomes, a witness in his own behalf, at his own option. When the respondent in this case or any other criminal case fails to take the stand in his own behalf it raises no presumption against him. Bear that particularly in mind. You will not consider the fact for any purpose whatsoever. Blot it out of your mind, you cannot consider it for any purpose whatsoever or give it any weight. The respondent has a right to remain silent; you cannot comment upon it in your deliberations or allow it to influence you in your deliberations whatsoever.”
No further instructions on these subjects were requested by defendant’s counsel.
The conviction is affirmed and the case remanded for sentence.
Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred. | [
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Per Curiam.
Defendant Jack Peterson, doing business as Buckhorn Bar and Swede’s Bar, appeals from a jury verdict against him and defendant Pat Corbet. A default was entered against Corbet shortly after commencement of this action. The jury returned a verdict of no cause of action in favor of defendant William E. Emery, doing business as Bella Vista Bar. The trial court denied Peterson’s motion for a new trial or in the alternative, for remittitur. Judgment was entered on July 1, 1982, against defendants Corbet and Peterson in the amount of $200,000. This appeal is as of right.
This case arose from a beating inflicted by defendant Corbet on plaintiff.
Plaintiffs cause of action against defendant Cor-bet was based upon the assault and battery, while the actions against the bars are based upon their liability under the Michigan dramshop act. MCL 436.22(5); MSA 18.993(5).
The sole question submitted for our consideration is whether the lower court erred in failing to charge the jury pursuant to SJI 5.03 — impeachment by proof of conviction of crime — as requested by defendant Peterson.
The record supports the following proofs to be relevant and material to the resolution of the issue before us.
Defendant Corbet was called as a witness on behalf of the plaintiff. Defendant Corbet testified that prior to the date of the incident herein, October 5, 1980, he had been drinking continuously for a week. On October 5, 1980, he allegedly consumed eight cans of beer before going out to the Bella Vista Bar, where he allegedly drank blackberry brandy and beer. Defendant Corbet stated that, after leaving Bella Vista, he and Warren Selden consumed intoxicating beverages at the Buckhorn Bar, Swede’s Bar, and the Buckhorn Bar again. He is an alcoholic who has received repeated treatment and attributes his violent temper to the consumption of intoxicants. He had at sometime in the past been convicted of burglary in Chicago.
Warren Selden, called as a witness by the plaintiff, stated that he had been drinking on October 4, 1980, and that he had consumed several cases of beer on October 5, 1980. He admitted that his testimony regarding the entire incident was not very reliable. He testified that he had been convicted of larceny from a building in 1978.
The testimony of bartenders and employees of Peterson who worked in his bars on the day of the incident indicated that they had not served defen dant Corbet on the day in question, and only one of them observed him anywhere near the bars.
In accordance with the summary pretrial conference order, attorney for defendant Emery made a timely request to instruct the jury pursuant to SJI 5.03, which provides as follows:
"Impeachment by Proof of Conviction of Crime
"In deciding whether you should believe a witness you may take into account the fact that [he/or/she] has been convicted of a crime and give that fact such weight as you believe it deserves under the circumstances.”
The parties having rested their cases, the jury was excused, and a discussion followed pertaining to the jury instructions to be given by the court. The trial court indicated that all requested standard jury instructions would be given except those instructions which the court felt were not applicable or which would be repetitious.
On behalf of defendant Peterson, SJI 5.03 on impeachment by proof of conviction of crime was requested. The trial judge stated: "That’ll be denied. That takes care of that.” Further the trial judge stated that the request for SJI 5.03 on behalf of defendant Emery would not be given.
The trial judge, in the absence of the jury, invited corrections or suggestions to the court’s instructions. SJI 5.03 was again requested on behalf of defendant Peterson. The trial judge responded that he would not change his ruling. Other than as indicated, the court stated no basis in support of its denial to instruct pursuant to SJI 5.03.
GCR 1963, 516.6(2) makes mandatory the giving of an applicable standard jury instruction whenever such an instruction is requested. Javis v Ypsilanti Bd of Ed, 393 Mich 689, 697-698; 227 NW2d 543 (1975). The Javis Court found that the harmless error standard for reviewing discrepancies in civil proceedings contained within GCR 1963, 529.1 had no application in those cases where a trial court had deviated from GCR 1963, 516.6(2). Accordingly, the Court found that deviation from an applicable and accurate standard jury instruction would give rise to the presumption of prejudicial error provided that the instruction was properly requested at trial. Javis, supra, p 702.
In Socha v Passino, 405 Mich 458, 466-468; 275 NW2d 243 (1979), the Supreme Court reaffirmed its position in Javis, noting:
"We do not believe Javis totally constrains the discretion of trial judges. The judge’s discretion is still required in determining whether or not the instruction is applicable and whether or not the instruction accurately states the law.” (Footnote omitted.) Socha, supra, p 467, citing Zeni v Anderson, 397 Mich 117; 243 NW2d 270 (1976).
Therefore, the proper review of the record by this Court is to ascertain whether or not the instruction was applicable, accurately stated the law, and was timely requested by defendant Peterson.
Initially, plaintiff contends that the request was not timely made and that Peterson failed to object or preserve this issue for appeal in his motion for a new trial. We disagree. The trial court summarized its pretrial conference instructions regarding trial briefs as requiring the briefs to cover any and all issues and written requests for instructions, together with supporting authority, to be filed with the trial court on or before the selection of the jury. Defendant Emery’s attorney did, in fact, request that SJI 5.03 be read to the jury.
Following proofs, the trial court entertained suggestions for instruction of the jury including requests for additional instructions. Defendant Peterson’s counsel not only timely requested that this instruction be given, but also objected before the jury began its deliberations.
Plaintiffs argument that Peterson acquiesced in the trial court’s ruling was dealt with in Socha, supra, p 468, fn 3. In that case, as well as the present one, it is apparent from the record that the trial court’s decision was final and not open to debate.
Regarding plaintiffs contention that defendant Peterson did not preserve this issue for appeal by arguing it in his motion for a new trial, we do not find such a requirement in the pertinent case law. Both these cases and the court rule require only that timely objection be made at trial in order to preserve this issue for appeal. See GCR 516.2; Socha, supra, p 466, 468; Javis, supra, pp 702-703. See also Snow v Freeman, 119 Mich App 677, 681; 326 NW2d 602 (1982); Kueppers v Chrysler Corp, 108 Mich App 192, 208-210; 310 NW2d 327 (1981), lv den 414 Mich 863 (1982); Reed v Stretten, 69 Mich App 519, 523-526; 245 NW2d 117 (1976).
We are of the opinion that plaintiffs evidentiary arguments are without merit. No objection was filed at the trial level regarding impeachment of either witness by Peterson’s attorney. Evidence of both witnesses’ previous convictions was admitted without the usual balancing of the potential for prejudice against the probative value of the evidence by the trial court. Since plaintiff did not object to the admission of this testimony nor request such a balancing by the trial court once the evidence was on the record, plaintiff should not now assert its impropriety to block a requested instruction nor raise it on appeal before this Court. Since two of plaintiff’s witnesses testified on cross-examination that they had been previously convicted of felonies, SJI 5.03 was applicable to the present case and should have been read by the trial court when it was requested to do so. The decision below against defendant Jack Peterson, doing business as Buckhorn Bar and Swede’s Bar, is vacated by this court and the case is remanded for a new trial.
Reversed and remanded. | [
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Per Curiam.
Petitioner was employed as a probationary teacher by respondent board of education during the 1971-1972 and 1972-1973 school years. At the end of the second year, respondent notified petitioner that, due to her unsatisfactory performance, she would not be rehired for the following year. The petitioner then filed a grievance pursuant to the parties’ collective-bargaining agreement. The arbitrator ruled in favor of the petitioner and offered her three options: (1) reinstatement with back pay for a probationary period from January, 1974, to June, 1974; (2) reinstatement without back pay for a probationary period from January, 1974, to January, 1975; (3) reinstatement without back pay as a third-year probationary teacher for the entire 1974-1975 school year. The petitioner selected the first option.
As the 1973-1974 school year drew to a close, the respondent notified petitioner that she would not be rehired. Subsequently, she petitioned the State Tenure Commission for a review of respondent’s decision. The petitioner amended her petition on May 14, 1975, to include additional claims but eventually withdrew all claims except the contention that she gained tenure by operation of law when she was reinstated pursuant to the arbitrator’s award. On May 30, 1975, respondent moved to dismiss the petition. Petitioner countered with a motion for summary judgment. In her motion, petitioner asked the commission to take judicial notice of the fact that respondent failed to provide the commission with notice of petitioner’s third-year probationary status as required by the teach ers’ tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq.
The commission granted the petitioner’s motion for summary judgment. Because the respondent had not notified the commission of the petitioner’s third-year probationary status, the commission ruled, petitioner had acquired tenure and should be reinstated with back pay.
Thereafter, a commission staff member discovered a February 6, 1974, letter sent by the respondent’s attorney notifying the commission that petitioner was to be placed on third-year probationary status. Apparently, the letter had been misfiled. Consequently, the commission ordered a rehearing to determine whether it had received proper notification of petitioner’s probationary status. The petitioner moved to amend her petition to allege that the respondent’s letter did not provide adequate notice. The commission granted the motion over the respondent’s objection. Eventually both parties moved for summary judgment. On March 27, 1981, the commission, with two members dissenting, reversed its earlier decision. The dissenters agreed with petitioner that the notice was inadequate.
She then petitioned for review in circuit court. On October 2, 1981, the court reversed the commission, adopting the position of the dissenting members of the commission. Respondent now appeals from the court’s order reversing the commission’s March 27, 1981, decision.
Respondent raises three issues on appeal. Because of our disposition of this case we need to address only the following two questions:
(1) Did the commission have jurisdiction over the petition to review respondent’s decision to terminate petitioner’s employment after the 1973-1974 school year?
(2) Did the respondent provide the commission with proper notice of the petitioner’s status as a third-year probationary teacher?
I
Respondent argues on three fronts that the commission did not have jurisdiction over the petition.
First, the respondent maintains that the commission did not have the authority to consider the petitioner’s original petition under MCL 38.121; MSA 15.2021. That provision delimits the scope of the commission’s jurisdiction over a teacher’s appeal from a decision of a board of education:
"A teacher who has achieved tenure status may appeal any decision of a controlling board under this act within 30 days from the date of such decision, to a state tenure commission.”
Because the petitioner had not "achieved tenure status” when she petitioned the commission, respondent argues, the commission had no jurisdiction to consider her appeal.
In Lipka v Brown City Community Schools, 399 Mich 704, 706-707; 252 NW2d 770 (1977), the Supreme Court, construing the above provision, held that
"a teacher who alleges that the controlling board failed to provide him with proper notification as to whether or not his work was unsatisfactory and that his services would be discontinued at least 60 days before the close of the last school year of his probationary period achieves tenure status for the limited purpose of allowing him to appeal the board’s action to the State Tenure Commission.”
The petitioners there contended that they became tenured by operation of law when the board failed to notify them properly of their unsatisfactory work pursuant to MCL 38.83; MSA 15.1983. In holding that the petitioners could appeal the board’s decision to the commission, the Court reasoned:
"We are satisfied that the State Tenure Commission is well qualified to make the primary determination as to whether or not a teacher has, in fact, 'achieved tenure status’. MCL 38.121; MSA 15.2021. Questions concerning tenure are peculiarly within the commission’s expertise.
"We agree with the commission’s observation in Young v Hazel Park School Dist [No. 64-2, State Tenure Comm, June 23, 1965]:
" 'We further believe that this determination is consistent with the general purpose of the tenure act, which is to resolve conflicts between the teacher and the board without the necessity of court action, so long as it is consistent with the general principle that the tenure commission is not assuming powers reserved to the courts under the wording of the act or its reasonable interpretation.’ ” Lipka, supra, pp 714-715.
In the present case, the petitioner originally maintained that she was entitled to tenure by operation of law when she was reinstated pursuant to the arbitrator’s award. We see no significant difference between this claim and the claim raised by the petitioners in Lipka, supra. Both present "questions concerning tenure” and both call upon the commission to "resolve conflicts between the teacher and the board”. Consequently, we hold that under MCL 38.121; MSA 15.2021 the State Tenure Commission had jurisdiction over the petition alleging that petitioner’s reinstatement pursuant to the arbitrator’s award entitled her to tenure by operation of law.
Second, respondent argues that the petition was, in effect, an attempt to vacate the arbitrator’s award and that the commission had no authority to disturb the arbitrator’s award. The petitioner, however, did not ask the commission to interfere with the award. Instead, she argued that the award’s effect was to entitle her to tenure. Thus, we reject respondent’s argument.
Finally, the respondent urges that, after ordering the rehearing, the commission erred in granting the petitioner’s motion to amend her petition to include the claim that the letter sent by respondent’s attorney was defective notice. We agree with the commission’s disposition of this issue:
"We turn now to appellee’s [respondent’s] objections to allowing the amendment. First, appellee contends that amendment raises a new cause of action because the theory, the issues, and the evidence differ. Further, that the amendment, as a new cause of action, is barred because the appeal period under the tenure act has expired. If appellant had raised the notice question for the first time on rehearing we would certainly agree. But our review of the history of this cause indicates that this is not the case. Rather, we view the proposed amendment as a clarification of a matter originally pleaded, albeit obliquely. In addition, the need for clarification was occasioned by the discovery of the existence of material which was beyond appellant’s, but not appellee’s control. Clearly, appellant’s amendment was necessitated by a crucial change of the facts — the discovery of the letter purportedly giving notice of the third year of probation. Seen in this light, the situation here is similar to that in Grove v Story Oldsmobile, Inc, 31 Mich App 613; 187 NW2d 923 (1971). There, the plaintiff was permitted to amend the complaint to allege a different factual basis for the cause of action. In McLeod v Savoy Hotel Co, 267 Mich 352; 255 NW 308 (1934), the Supreme Court found that allowing the plaintiffs amendment four years after the cause of action arose was proper. There, the plaintiffs action was amended to assert a right of recovery because the defendant’s actions were allegedly in violation of a city ordinance. As in McLeod, the amendment here would serve to clarify appellant’s claims — particularly in light of the recently discovered letter. Second, although appellee claims prejudice generally, we are not directed to any claims of surprise, loss of evidentiary material, or exposure to unnecessary expense.
" 'While "[a]s a general rule, the risk of substantial prejudice increases with the passage of time,” in the absence of a showing of either bad faith or actual prejudice, mere delay does not warrant denial of a motion to amend. "All amendments have this in common: they are offered later in time than the pleading they seek to amend.” James, Civil Procedure, § 5.2, p 158. (Emphasis by the author).’ Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 663-664; 213 NW2d 134 (1973). [Footnotes omitted.] Thus, given the procedural posture of this case, we are constrained to conclude that neither the 'delay’ in offering the amendment nor the notion that appellant has raised an entirely new claim justifies denying appellant’s motion.
"Appellee’s final objection to the proposed amendment is that it expands the scope of the rehearing. In view of the progress of this cause, and in light of our order of rehearing, we cannot agree. Our order of rehearing stated:
" 'It is ordered that rehearing be conducted in this matter with respect to the question of proper notification of appellant’s third year probationary status.
" 'It is further ordered that the parties in this matter be permitted to offer additional evidence and argument relevant to this question.’
"We do not believe that appellant’s proposed amendment exceeds the terms of that order. Therefore, after carefully considering the various objections to the amendment as well as the unusual circumstances present here which prompted appellant’s motion, we conclude that justice requires that the amended petition be allowed.”
II
Respondent next argues that the trial court erred in ruing that the February 6, 1974, letter sent to the commission by respondent’s attorney provided inadequate notice. The teachers’ tenure act authorizes a school board to grant a teacher a third year of probation provided that the school board notifies the commission of this action:
"No teacher shall be required to serve more than one probationary period in any one school district or institution: Provided, That a third year of probation may be granted by the controlling board upon notice to the tenure commission.” (Emphasis added.) MCL 38.82; MSA 15.1982.
Absent such notice, the commission has held, a teacher who completes the initial two-year porobationary period is entitled to tenure. Zielinski v Saranac Community Schools (No. 71-14, State Tenure Comm, December 2, 1971); Gross and Heck v Woodhaven Public School Dist, (Nos. 71-15, 71-16, State Tenure Comm, December 2, 1971).
Petitioner offers three reasons in support of her position that the letter was not adequate notice. First, she argues that the teachers’ tenure act requires the board to notify the teacher as well as the commission that the teacher is to be given third-year probationary status. The board did not provide such notice to petitioner.
The act, however, does not provide that the teacher must be notified of the board’s decision to extend her probationary period. Provision is made for notifying a probationary teacher that her work is unsatisfactory:
"At least 60 days before the close of each school year the controlling board shall provide the probationary teacher with a definite written statement as to whether or not his work has been satisfactory. Failure to submit a written statement shall be considered as conclusive evidence that the teacher’s work is satisfactory. Any probationary teacher or teacher not on continuing contract shall be employed for the ensuing year unless notified in writing at least 60 days before the close of the school year that his services will be discontinued.” (Emphasis added.) MCL 38.83; MSA 15.1983.
This requirement, though, applies only to a probationary teacher whose services are being discontinued. See Amato v Oxford Area Community School Dist No 7, 402 Mich 521, 528-530; 266 NW2d 445 (1978). Thus, petitioner, whose services were being extended, was not entitled to this notification.
Second, petitioner argues that the letter provided defective notice because it was not issued pursuant to formal board action granting her a third year of probation. As a general rule, a school board must formally act in order to place a teacher on third-year probationary status. The purpose of the rule is to ensure that the board, and not administrative personnel, decides whether or not a teacher warrants a third year of probation. Cf. Fucinari v Dearborn Bd of Ed, 32 Mich App 108; 188 NW2d 229 (1971). The rule, however, cannot serve its purpose when a school board has agreed to let an arbitrator decide the fate of a probationary teacher. When a board enters into such binding arbitration it relinquishes its power to make the final decision on the future of the probationary teacher’s employment. The board’s formal action granting to the teacher what the arbitrator has awarded gives merely the appearance that it is the board that is making this decision. As such, this action is little more than a hollow ceremony.
In the present case, the board entered into binding arbitration. Pursuant to the arbitrator’s award, the petitioner chose to continue as a third-year probationary teacher. Because the board was obliged to comply with this choice, we hold that it was not required to take formal action granting the petitioner a third year of probation. Therefore, the letter notifying the commission of the petitioner’s extended probation was not defective even though it was not issued pursuant to such action.
Finally, petitioner argues that the respondent did not authorize its attorney to send the letter notifying the commission of her extended probation and that the notice is, therefore, invalid. An attorney often acts as an agent for his client. Fletcher v Fractional No 5 School Dist, 323 Mich 343, 348; 35 NW2d 177 (1948). An agent’s authority, however, is not limited by what he is authorized to do expressly by his principal:
"Agents have the implied power to carry out all acts necessary in executing [the principal’s] expressly conferred authority. * * * Whether the act in question is within the authority granted depends upon the act’s usual or necessary connection to accomplishing the purpose of the agency.” Smith, Hinchman & Grylls Associates, Inc v Riverview, 55 Mich App 703, 706; 223 NW2d 314 (1974), lv den 393 Mich 804 (1975). (Citations omitted.)
The purposes for which a school board may employ an attorney are set forth by statute. A school board is authorized to
"employ an attorney to represent the school district or board in actions brought for or against the district and to render other legal service for the welfare of the school district.” MCL 380.1253; MSA 15.41253.
The attorney’s action in this case was necessary to promote the interests of the school board in its controversy with petitioner. The board, which sought to discharge the petitioner after two years of probation, clearly did not wish her to secure a tenured status. The board could avoid this result only by notifying the commission of the extension of the petitioner’s probation. Thus, by providing such notice, respondent’s attorney did what was necessary to carry out the purpose of his agency. We conclude that the respondent’s attorney had the implied power to so notify the commission.
We hold that the February 6, 1974, letter sent to the commission by respondent’s attorney complied with the notice provision of MCL 38.82; MSA 15.1982. The trial court erred in holding otherwise.
Reversed and remanded for proceedings consistent with this opinion. No costs, neither party having prevailed in full. | [
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Bronson, J.
Defendant appeals as of right from a judgment entered in favor of plaintiff, finding that defendant had been negligent in failing to properly maintain a highway at the intersection of South Lapeer Road (M-24) and Kile Road. After reaching its verdict as to liability, the court computed plaintiff’s damages at $2,100,000; however, the court ruled that several factors required it to reduce the award to $971,140. Plaintiff cross-appeals from the court’s decision to reduce the award. We find no error in the court’s determination of liability, but agree with plaintiff that the court erred in relying upon certain factors to reduce the damage award.
Defendant first contends that the court erred in finding that it had a duty to ensure the proper placement of a "pass with care” sign. According to defendant, such a sign is not an integral part of the improved portion of a highway within the meaning of MCL 691.1402; MSA 3.996(102); defendant characterizes such signs as being merely advisory or cautionary in nature, rather than mandatory traffic control devices such as stop signs, cf. Lynes v St Joseph County Road Comm, 29 Mich App 51, 58; 185 NW2d 111 (1970). We disagree. This Court has gone beyond a narrow definition of the "improved portion of the highway” proposed by defendant; the term embraces far more than the roadway, shoulder and mandatory signals such as stop signs. Several recent decisions have expressly included within the definition such "cautionary” or advisory devices as warning signs, Greenleaf v Dep’t of State Highways & Transportation, 90 Mich App 277; 282 NW2d 805 (1979); Salvati v Dep’t of State Highways, 92 Mich App 452; 285 NW2d 326 (1979), and guardrails, Kurczewski v State Highway Comm, 112 Mich App 544; 316 NW2d 484 (1982); Hall v Dep’t of State Highways, 109 Mich App 592; 311 NW2d 813 (1981), lv den 413 Mich 942 (1982).
Even if, as defendant contends, a "pass with care” sign is merely advisory in nature, such a sign falls within the definition of a "traffic control device” contained in MCL 257.70; MSA 9.1870:
" 'Traffic control devices’ means all signs, signals, markings, and devices * * * placed * * * by authority of a public body * * * for the purpose of regulating, warning or guiding traffic.” (Emphasis added.)
We would go one step further and note that, despite defendant’s assertions to the contrary, such a sign is in fact mandatory in nature in that it actually serves to regulate a motorist’s right to pass other cars. Plaintiff points out in his brief that a "pass with care” sign not only guides traffic in advising motorists of conditions which may be safer and more conducive to passing, but that such a sign also denotes the end of a no-passing zone, thereby specifically permitting or inviting a motorist to pass. MCL 257.640; MSA 9.2340. We conclude that defendant does in fact have a statutory duty to properly place "pass with care” signs. Accordingly, there is no merit in defendant’s argument that it had no duty to properly place the sign in question in the present case.
Defendant next raises two separate challenges to the trial court’s finding of proximate cause. First, defendant urges that the improper placement of its sign could not even have been a "but for” cause of plaintiff’s accident. Defendant insists that, at most, the sign could only have been advanced 30 or 40 feet. From this premise, defendant argues that this slight distance would not have given the motorists in the present case a significantly greater amount of time to pass safely. We disagree.
First, defendant relies heavily upon the testimony of its own expert that the sign was mis placed by only 30 feet; the trial court could properly have relied on the contrary testimony of plaintiffs expert that the sign was 90 to 95 feet out of place. More important, the trial court found that the issue at hand was not the amount of time the motorists might have had to pass once the decision was made to do so; instead, the crucial consideration was the sight distance open to the driver of the other car, Ms. Linda Nascenzi, at the time she first observed the "pass with care” sign. It was the latter factor which was essential in forming the basis for her decision to venture into the passing lane.
Plaintiffs expert produced evidence that given the placement of defendant’s sign a person such as Nascenzi, whose line of vision was 3.5 feet above the ground, could see only 500 feet ahead; cars between 500 and 900 feet away were not visible at that point. This evidence is sufficient to support the factfinder’s conclusion that the placement of the sign was causally related to Nascenzi’s perception that conditions were safe for passing, and in turn causally related to the accident which caused plaintiffs injuries. The accident was a natural, probable, and foreseeable consequence of defendant’s act of misplacing its sign, see Clumfoot v St Clair Tunnel Co, 221 Mich 113, 116; 190 NW 759 (1922).
The other aspect of defendant’s appeal as to causation focuses upon the trial court’s findings of fact as to this issue. According to defendant, the court’s findings were both erroneous and incomplete, in that (1) the court made certain findings as to the credibility of witnesses, and (2) the court failed to make sufficient findings to show why the negligence of Nascenzi was not the sole proximate cause of the accident. In reviewing these conten tions, we are mindful of the Supreme Court’s admonition in Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976), that a trial court’s findings of fact may only be found to be clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.
We are unable to find clear error in the trial court’s determinations as to the relative credibility of witness Mr. Leo Derderian, on the one hand, and Nascenzi, on the other. The court’s findings reveal the factual basis for its decision that the lack of adequate clear sight distance at the point where the "pass with care” sign was located was a proximate cause of Nascenzi’s decision to move into the passing lane. Nascenzi’s testimony that she did not see plaintiffs car until the moment of impact was corroborated by the testimony of the driver of plaintiffs car, Dr. Marvin Jaffee. He also reported having seen the oncoming car only at the moment of impact.
Derderian, on the other hand, stated that Nascenzi was in the passing lane for a substantial period of time before encountering the oncoming car containing plaintiff. The trial court noted that Derderian’s description of the topography at the point of Nascenzi’s entry into the passing lane suggests that the latter must have travelled almost a quarter of a mile in the passing lane — a finding which would have been inconsistent with Derderian’s own estimate that she had travelled only about 500 feet in that lane. Other factors support the trial court’s finding that Derderian’s testimony may have resulted from a faulty or incomplete memory of the accident. His deposition reveals that he did not recall certain rather basic aspects of the incident, such as the hour of the day, whether the oncoming car containing plaintiff had its lights on, whether the car which Nascenzi attempted to pass was hauling a trailer, and for that matter, whether there were any "pass with care” signs at all in the area. Given the foregoing, we cannot question the court’s findings concerning the relative credibility of Nascenzi and Derderian.
Defendant makes much of the evidence that Nascenzi might have been drinking while driving but fails to demonstrate how this aspect of her negligence operates to reduce the credibility of her testimony, as well as that of the driver of plaintiff’s car, that neither driver saw the other until the moment of impact. We also note that it is the province of the factfinder to weigh evidence and to believe or disbelieve any testimony. Hazen v Rockefeller, 303 Mich 536, 547; 6 NW2d 770 (1942); Vial v Vial, 369 Mich 534; 120 NW2d 249 (1963).
The trial court adequately stated its reasons for disbelieving Derderian’s account of what had taken place. The court also amply stated its reason for rejecting the testimony of defendant’s expert, William Lebel, concerning the circumstances of the accident: that all of the expert testimony was based upon "very selective” and unproven assumptions which were not in evidence. In short, we find that the court’s factual findings as to the credibility of witnesses were neither incomplete nor clearly erroneous.
Similarly, we reject defendant’s claim that the trial court erred in refusing to find Nascenzi’s negligence to have been the sole proximate cause of the accident. According to defendant, the court erred in failing to take into account the possibility that drivers such as Nascenzi might begin to pass shortly before the point where a "pass with care” sign is located. Defendant goes on to posit that this was precisely what happened: that consistent with Derderian’s testimony, Nascenzi pulled into the passing lane well ahead of the sign, as her car was still climbing the latter of two hills, and that Nascenzi’s own negligence, rather than the placement of the sign, was the proximate cause of the accident. Despite our ruling, supra, that the trial court could properly reject the testimony in support of this theory, we are willing to assume arguendo that Nascenzi did in fact pull into the passing lane somewhat in advance of the sign. Nonetheless, we decline to find that this action served to break the causal link between defendant’s negligence and plaintiff’s injuries.
Defendant’s duty in placing the sign included keeping the premises safe to guard against the foreseeable negligence of third parties, see, e.g, Samson v Saginaw Professional Building, Inc, 393 Mich 393; 224 NW2d 843 (1975); Johnston v Harris, 387 Mich 569, 573-575; 198 NW2d 409 (1972). This Court has also recognized that defendant has a duty to anticipate dangers arising from the congruence of a defect in improved portions of the highway, MCL 691.1402; MSA 3.996(102), and the foreseeable negligence of highway users, see, e.g, Hall, supra, pp 603-604; Van Liere v State Highway Dep’t, 59 Mich App 133, 138; 229 NW2d 369 (1975). The intervening negligence of a third party does not supersede the original tortfeasor’s negligence, so long as the intervening force is reasonably foreseeable, Sivley v State Highway Dep’t, 32 Mich App 267, 269; 189 NW2d 507 (1971), and the original act of negligence remains operative, Hall, supra. Accordingly, the trial court did not err in observing that defendant’s duty of care in placing signs included the duty of taking into account a highway user’s foreseeable action of beginning to pass after observing such a sign, but before actually reaching it. In turn, the court acted properly in making the foregoing observation a basis for its finding as to proximate cause. Particularly, given the lack of credible evidence that Nascenzi committed even this limited and foreseeable act of negligence, we conclude that there is no basis for any holding that the court’s findings as to proximate cause were clearly erroneous.
Defendant next raises two procedural issues: (1) that the court erred as a matter of law in viewing the scene of the accident; and (2) that the court erred in admitting into evidence a motion picture simulating the accident. Neither of these issues warrants reversal. As to the court’s decision to view the scene, we find no abuse of discretion. A court sitting as trier of facts has as much discretion to view the subject scene as would a jury. See 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 499; Toussaint v Conta, 292 Mich 366, 369; 290 NW 830 (1940). The factfinder may meet with a qualified expert at the subject scene for the purpose of receiving an explanation of the dimensions of the premises. Wayne County Bd of Road Comm’rs v GLS Leasco, 394 Mich 126, 140-141; 229 NW2d 797 (1975). The presence of the court stenographer to transcribe the communications between the expert and the court legitimizes the procedure of visiting the scene; the presence of the opposing party’s counsel further serves to safeguard that party’s right to ensure that the court receives a fair and unbiased presentation.
In the instant case, plaintiff’s expert accompanied the trial court to the scene and used various distance markers to demonstrate that objects in the passing lane were not visible at certain distances from the point where Nascenzi pulled out to pass. The court stenographer and defense counsel were present, in turn legitimizing the procedure and protecting defendant from prejudice. Cf. Valentine v Malone, 269 Mich 619; 257 NW 900 (1934), where the court’s view of the scene was undertaken without notice to the parties or their attorneys and in their absence. We also note that defendant made no objection to the substance of the expert’s presentation except to advise that the expert’s figures and conclusions were only "approximations”. Given the lack of demonstrable prejudice, we find that the court acted properly in allowing this presentation. If anything, the presentation was necessary to resolve conflicting testimony concerning sight distances open to each motorist.
There was similarly no error in the trial court’s decision to admit a motion picture simulating the accident, despite the fact that there were noticeable differences between the conditions portrayed in the film and those prevailing at the time of the accident. Where motion pictures are offered to recreate the scene of an accident, they are not admissible unless they portray conditions almost identical to those prevailing at the time of the accident itself. Green v General Motors Corp, 104 Mich App 447, 449; 304 NW2d 600 (1981). On the other hand, where a film is not offered for the purpose of duplicating or recreating an accident, but instead merely to illustrate certain general principles, differences in surrounding conditions are less relevant and do not require the film’s exclusion. Id.
In the present case, plaintiff offered the film solely to illustrate certain physical principles; there was no effort to actually recreate the accident. Accordingly, we attach little significance to the fact that at the time the film was taken: (1) the cameras were located along the shoulder rather than being on the roadway, as the motorists had been; (2) the weather was cloudy, rather than clear as on the night of the accident; and (3) the time of day was afternoon, rather than dusk as on the night of the accident. These variations in conditions would have been significant if the motion picture were designed to reproduce the conditions of visibility at the time of the accident. However, they have little to do with "the amount of time (oncoming) cars disappear from view” at the intersection, the sole matter which, according to plaintiff’s offer of proof, the film proposed to illustrate. The trial court specifically found that the film was not intended to recreate the scene as it appeared to the motorists from the roadway; the court instead observed that it was a "close enough representation” of conditions and sight distances along the roadway to serve as a useful and relevant piece of evidence. We conclude that there was no abuse of discretion as to this issue.
Defendant’s final contention on appeal is that the trial court erred in its determination of plaintiff’s damages. Specifically, defendant urges that the court clearly erred in finding that plaintiff suffered an aggravation of his pre-existing medical condition (multiple sclerosis) as a result of the accident. Defendant makes much of the fact that plaintiff failed to plead aggravation of his medical condition until his pre-trial statement, over 3-1/2 years after filing his complaint. We attach no significance to the delay in pleading this matter. Defendant had actual notice of this aspect of plaintiff’s claim for damages well before trial. Defendant was apparently fully prepared to litigate the issue and has made no showing whatsoever that it has been prejudiced by the admission of evidence as to this subject. Cf. Ben P Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973). Under the circumstances, and absent a showing of surprise or prejudice, we believe that the court acted properly in allowing a post-trial amendment of the pleadings to conform to the proofs, Woodrow v Johns, 61 Mich App 255, 266; 232 NW2d 688 (1975); Fitzgerald v Bixler, 368 Mich 160; 117 NW2d 328 (1962); GCR 1963, 118.3, 301.
We also find that the evidence was sufficient to support the court’s findings as to this issue. Several doctors who had examined plaintiff both before and after the accident gave testimony describing the change in his condition. Most, if not all, agreed that the accident had caused his formerly "benign” condition of multiple sclerosis to become "malignant”. Despite the trial court’s findings that plaintiff had been "less than candid” with respect to certain aspects of his claim, the court was not bound to reject as incredible all of plaintiff’s testimony regarding his condition. Moreover, the medical testimony corroborated plaintiff’s testimony regarding his post-accident condition, and provided substantial independent support for plaintiff’s position that the accident aggravated his illness. As a result, we defer to the trial court’s findings of fact as to this issue.
The issues raised in plaintiff’s cross-appeal relate exclusively to the trial court’s award of damages. We agree with plaintiff that the trial court erred in relying upon certain factors to reduce its award.
First, plaintiff protests the trial court’s decision to reduce his award by one-third, based upon the court’s finding that Nascenzi was one-third responsible for the accident. Although certain members of this Court have in the past advocated adoption of a system of comparative negligence among joint tortfeasors, see, e.g., Reed v St Clair Rubber Co, 118 Mich App 1, 11-14; 324 NW2d 512 (1982) (Bronson, J., concurring), see, also, American Motorcycle Ass’n v Superior Court of Los Angeles County, 20 Cal 3d 578; 146 Cal Rptr 182; 578 P2d 899 (Cal, 1978) (Clark, J., dissenting), and Fleming, Report to the Joint Committee of the California Legislature on Tort Liability on the Problems Associated With American Motorcycle Association v Superior Court, 30 Hastings L J 1465, 1482-1487 (1979), this Court is bound by the recent Supreme Court decision in Mayhew v Berrien County Rd Comm, 414 Mich 399; 326 NW2d 366 (1982). Although Mayhew, supra, is nominally distinguishable in that it involved a situation where the non-party joint tortfeasor had settled with the plaintiff, the policies underlying Mayhew are applicable here:
"[N]umerous difficulties would be presented if we were to allow the (trier of fact) to apportion damages among all tortfeasors, (including non-parties). It would mean that the (non-party) tortfeasor’s liability would be assessed without anyone adequately representing that interest. It would put the plaintiff in a unique trial situation. The plaintiff would not only have to advocate that he was not at fault, he would have to convince the jury that the non-party was only minimally at fault. Otherwise, there might be too great a percentage of fault attributed to the non-party, thus reducing the plaintiffs recovery.” 414 Mich 412.
Several recent decisions of this Court have applied similar reasoning to hold that the theory of joint and several liability was not affected by this state’s adoption of comparative negligence doctrines in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979); see, for example, Anderson v Harry’s Army Surplus, Inc, 117 Mich App 601; 324 NW2d 96 (1982); Ferdig v Melitta, Inc, 115 Mich App 340; 320 NW2d 369 (1982); Johnston v Billot, 109 Mich App 578; 311 NW2d 808 (1981); Bacon v Dep’t of State Highways, 115 Mich App 382; 320 NW2d 681 (1982). In Edwards v Joblinski, 108 Mich App 371; 310 NW2d 385 (1981), a case decided more than two years after Placek, supra, this Court reaffirmed the principle that where two or more persons concur in producing a single indivisible injury, such persons are jointly and severally liable, even if they do not act in concert. 108 Mich App 376. The Court specifically applied that principle to a highway maintenance case similar to the present one, where the negligence of one tortfeasor — a road user — was found to have been foreseeable to the other tortfeasor (the highway authority). The Court found that "an innocent plaintiff should be fully compensated even if it meant that one negligent defendant had to be responsible for the total loss to compensate for the insolvency of another negligent defendant”. 108 Mich App 377. Accord, Weeks v Feltner, 99 Mich App 392, 395; 297 NW2d 678 (1980).
The policies underlying the foregoing decisions have been reaffirmed by the recent amendment to MCL 600.2925b; MSA 27A.2925(2), effective April 28, 1982. That section now provides in part:
"In determining the pro rata shares of tortfeasors in the entire liability as between themselves only and without affecting the rights of the injured party to a joint and several judgment:
"(a) Their relative degrees of fault shall be considered.” (Emphasis added.)
The amended statute preserves a right of contribu tion between joint tortfeasors, but the emphasized language reaffirms that principles of joint and several liability have survived Placek, supra. In short, the foregoing language requires this Court to recognize plaintiffs right to recover the entire judgment from defendant herein, even though defendant’s responsibility for the accident has been adjudicated as less than 100%.
In concluding discussion of this aspect of the cross-appeal, we note that defendant has cited no authority for its position that under MCL 691.1401 et seq.; MSA 3.996(101) et seq., the state can never be a joint tortfeasor with another person, or that the state had never "consented” to pay for the torts of other persons. In fact, the results in Edwards, supra, and Bacon, supra, and most notably, Mayhew, supra, compel the contrary conclusion. In each case, highway maintenance authorities were found to have been joint tortfeasors responsible to an injured party, despite the involvement of other private tortfeasors. Absent the citation of some authority favoring defendant’s position, this Court has no choice but to conclude that the trial court erred in reducing the award by one-third based on Nascenzi’s negligence. The present case should be remanded for a recomputation of damages free of this error.
The trial court also erred by reducing the award for lost future earnings by the amount representing income taxes which might have to be paid on those earnings. Generally, in fixing damages for lost future earning capacity resulting from personal injuries, courts must disregard the income tax consequences, Anno: Propriety of taking income tax into consideration in ñxing damages in personal injury or death action, 63 ALR2d 1393, 1395-1396. The decisions indicate that deductions for prospective taxes are only proper where specifically provided for by statute, Miller v State Farm Mutual Automobile Ins Co, 410 Mich 538, 562-565; 302 NW2d 537 (1981). Longworth v Dep’t of State Highways, 110 Mich App 771, 783-784; 315 NW2d 135 (1981). Defendant’s assertions to the contrary, MCL 500.3135(2)(c); MSA 24.13135(2)(c) does not apply to authorize the deduction of prospective taxes here. Even if, as defendant contends, that section could in fact authorize the reduction of tort recoveries in certain cases, the section applies only to actions arising from the negligent ownership, maintenance, or use of a motor vehicle. The present action is not one based upon ownership, maintenance, or use of the defendant’s motor vehicle. Instead, the present action arises from defendant’s negligent maintenance of a highway, a breach of an entirely distinct statutory duty, MCL 691.1402; MSA 3.996(102). In Edwards v Joblinski, supra, this Court held that the liability of a county road commission does not arise from the ownership, maintenance, or use of a motor vehicle, but instead from the statutory duty to maintain highways in reasonable repair. The present case is almost identical. Accordingly, we find no basis for applying MCL 500.3135(2)(c); MSA 24.13135(2)(c) to require deduction of prospective taxes from plaintiff’s award of damages.
Defendant has not pointed to any other statute which might have authorized the court’s deduction of prospective taxes, but even if it had, the court still would have erred in making such a deduction, because defendant failed to meet its burden of introducing competent expert testimony concerning plaintiff’s prospective tax status, O’Loughlin v Detroit & Mackinac R Co, 22 Mich App 146; 177 NW2d 430 (1970). See Longworth, supra, where this Court observed:
"The trial court based its calculation of plaintiff Wheeler Longworth’s future earnings on his expected gross income, making no deduction for the effect of taxes. Defendant contends that an award of damages for future earnings must be based on net earnings and that therefore this case must be remanded to the trial court for recomputation of damages.
"Although no Michigan court has decided this question, federal courts applying Michigan law have held that gross earnings are the proper measure. See, eg., Payne v Baltimore & Ohio R Co, 309 F2d 546 (CA 6, 1962), cert den 374 US 827; 83 S Ct 1865; 10 L Ed 2d 1051 (1963); Nice v Chesapeake & Ohio R Co, 305 F Supp 1167, 1180 (WD Mich, 1969). We find it unnecessary to address this issue at the present time, since defendant introduced no evidence of plaintiffs expected tax status. As this Court stated in O’Loughlin v Detroit & Mackinac R Co, 22 Mich App 146, 156; 177 NW2d 430 (1970), Consideration of the effect of taxes, if it is to be allowed, may only be allowed when based upon facts and expert opinion properly brought into evidence.’ Once a plaintiff has introduced evidence of expected gross income, the defendant has the burden of producing evidence in support of any deduction for taxes, if such a deduction is ever permitted.” 110 Mich App 783. (Emphasis in original.)
Even when the trial court offered defendant an opportunity to present such evidence, defendant chose not to, offering instead only raw tax tables whose prospective applicability to plaintiff was open to question. The court lacked a factual basis for reducing plaintiff’s award, and should have declined to do so. We conclude that the reduction of the award for prospective taxes was error, Long-worth, supra.
Finally, we agree with plaintiff that the trial court erred in failing to apply the collateral source rule, Tebo v Havlik, 109 Mich App 413, 415; 311 NW2d 372 (1981). The court deducted $11,000 in work-loss benefits which plaintiff had received from his insurer. The collateral source rule provides that a plaintiff’s award must not be reduced by amounts received from an independent source such as an insurer. The policy underlying the rule is an effort to encourage citizens to purchase and maintain insurance for personal injuries, Anno: Collateral Source Rule: Injured Person’s Hospitalization or Medical Insurance as Affecting Damages Recoverable, 77 ALR3d 415, 419. Defendant’s assertions to the contrary, the policy underlying the rule is unaffected by factors such as the identity of the tortfeasor. In other words, there is no basis for defendant’s assertion that the collateral source rule should not be applied merely because the state rather than a private tortfeasor is the party defendant. Similarly, defendant’s arguments for abolition of the collateral source rule are based more upon policy considerations than case authority, and should be directed towards the Legislature, rather than this Court.
In summary, the trial court acted properly in finding defendant liable for negligent maintenance of the subject highway, and properly made its assessment of damages ($2,100,000). However, the court erred in undertaking to reduce that award: (1) by the proportion of a third party’s negligence, (2) by the amount of income tax which plaintiff might have to pay on his lost future earnings, and (3) by the amounts received by plaintiff from his insurer.
The matter should be remanded for entry of a judgment in favor of plaintiff, in the amount of damages originally assessed by the court, $2,100,-000. Except for removal of the improper deductions, the trial court’s judgment is affirmed.
Affirmed as modified, and remanded for proceedings consistent with this opinion. | [
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Beasley, J.
On January 7, 1979, plaintiff, John Williams, an alleged business invitee at an Autorama show held at Cobo Hall in Detroit, sustained a gunshot wound when an Autorama exhibitor, Lee Davidson, who claimed he had been harassed, assaulted plaintiff with a handgun. Plaintiff brought suit against defendant, City of Detroit, alleging that defendant breached its duty to provide adequate safety and protection for patrons of the show. After hearing oral arguments on defendant’s motion for summary judgment, the trial court held that defendant did not have a duty to provide security within the area that it leased to Promotions, Inc., the promoter of the event. From the order granting summary judgment, plaintiff appeals as of right.
The parties to this appeal are in agreement as to the following facts: (1) defendant leased four exhibit halls in Cobo Hall to Promotions, Inc., to hold the 1979 Autorama show; (2) Star Security Service, Inc., was hired by Promotions to furnish security for the leased premises during the event; (3) plaintiff was shot while in one of the leased exhibit halls; and (4) the Detroit Police Department patrolled the common areas of Cobo Hall during the event.
A permit issued by defendant to Promotions contained numerous rules, regulations, and general conditions concerning the use of Cobo Hall exhibit areas. Two of these conditions provided:
"(4) The Permittee agrees to furnish a sufficient number of ushers, ticket takers, special policemen, doorkeepers or other employees to properly handle and govern the conduct of all persons in attendance at functions conducted by the Permittee, and to adopt, promulgate and enforce rules and regulations governing the conduct of such attendants. It is further understood and agreed that such attendants shall for all purposes be the agents of the Permittee.
"(7) The Permittee shall have the complete control of so much of the premises exclusively granted to it during the periods aforesaid, and of admission to the portion of such premises during such periods subject to the requirements of any City Ordinances or State Laws including the Civic Center Department Rules and Regulations.”
In its motion for summary judgment, defendant city contended that under GCR 1963, 117.2(1), plaintiff failed to state a claim upon which relief could be granted because defendant’s common-law duty, as the owner of the building, to provide protection and security extended only to the common areas of the building. Defendant said that since plaintiff sustained injuries in an area leased to and controlled by the tenant, Promotions, Inc., defendant did not owe a duty to plaintiff to provide security in that area. Furthermore, defendant asserted that the contract between it and Promotions, in fact, contained a clause requiring Promotions to provide security inside the exhibit halls.
In response to defendant’s motion for summary judgment, plaintiff argued that defendant had a nondelegable duty to afford security to its tenant’s invitees and that the firm that provided security inside the exhibit areas acted as defendant’s agent.
In granting defendant’s motion for summary judgment on the basis that defendant did not owe a duty to its tenant’s business invitees within the leased area, the trial court held that (1) the assailant, who was an exhibitor at the automobile show, had the right to be on the leased premises, (2) plaintiff’s injuries did not occur in a common area of the facility; rather, they occurred in one of the leased exhibit halls, and (3) whether defendant had a duty to provide security in the leased area was a question of law, not one of fact.
In Keiswetter v City of Petoskey, we discussed the standard of review for summary judgment motions based on the plaintiffs failure to state a claim upon which relief can be granted:
"A motion for summary judgment under GCR 1963, 117.2(1) is the modern equivalent of a demurrer under common law pleading, which more recently has been designated as a motion to dismiss. The test is whether, on the pleadings, plaintiffs claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. All well-pleaded allegations in the complaint are assumed to be true.” (Footnotes omitted.)
The general rule is that a landlord, absent an agreement to the contrary, surrenders possession of the leasehold and holds only a reversionary interest and, thus, does not have an obligation to maintain the premises in repair. An exception to this principle is that a landlord has a duty to maintain in a safe condition any portion of the leasehold which is under his control, such as elevators, porches, stairwells, and walks. This duty extends to the invitees of his tenants.
On two occasions, in departures from previous precedent, the Michigan Supreme Court has, under differing factual settings, broadened the duty imposed on landlords to protect tenants and/or tenants’ invitees from potential criminal activities.
In Johnston v Harris, a tenant was "mugged” in an unlocked, unlighted vestibule of the building, which was located in a high crime area. The Johnston Court held that the landlord’s duty of care extends to foreseeable criminal activities by third parties within the common areas of the dwelling unit, so as to make the landlord liable for the injuries inflicted by the mugger.
In the split decision in Samson v Saginaw Professional Building, Inc, the Court held that the landlord of a commercial office building which rented space to a state mental health clinic owed a duty to tenants and their invitees to take appropriate steps for their security. In upholding a jury verdict against the landlord in favor of a secretary employed by a tenant on the theory that the landlord somehow failed to take appropriate measures to safeguard the building’s occupants from foreseeable criminal actions by patients and visitors who visited the medical clinic, the Samson majority set forth the duty owed by a landlord to his tenants and visitors in the common areas of the leased premises:
"However, the landlord has retained his responsibility for the common areas of the building which are not leased to his tenants. The common areas such as the halls, lobby, stairs, elevators, etc., are leased to no individual tenant and remain the responsibility of the landlord. It is his responsibility to insure that these areas are kept in good repair and reasonably safe for the use of his tenants and invitees.
"The existence of this relationship between the defendant and its tenants and invitees placed a duty upon the landlord to protect them from unreasonable risk of physical harm. 2 Restatement Torts, 2d, § 314A(3).”
However, even the majority in Samson apparently would not extend the landlord’s duty to incidents which occurred within the boundaries of the leased premises, saying-
"Defendant leased its premises to the Mental Health Clinic. For this act, by itself, our law imposes no liability and indeed should impose none. Whether or not the landlord retains any responsibility for actions which occur within the confines of the now leased premises is not now before this Court and need not be answered. It would appear, however, that he would not retain any responsibility for such actions except in the most unusual circumstances.”
It can be argued that the Johnston and Samson decisions holding the landlords liable for injuries sustained by tenants and visitors are based on the premise that the assailants were on the premises as a consequence of the failure of the landlords to take sufficient steps to keep the common areas safe. In contrast, in the within case, plaintiff was injured in an area over which defendant’s tenant had exclusive possession and control. Therefore, defendant should not be held liable unless defendant exercised control over the security of the leased premises.
According to Professor Prosser, a landlord has the duty, in order to prevent unreasonable risk of harm to the public, to inspect and repair any defects on the premises before he transfers possession. But, this doctrine is not applicable to the instant case, as plaintiff does not assert a failure to inspect and repair prior to leasing the premises; rather, plaintiffs claim is predicated upon a failure to provide adequate security during the brief period of the lease.
We note that the contract between defendant city and its tenant, Promotions, Inc., required the latter to provide security for its business invitees. In fact, the tenant hired Star Security Service for this function. As a lessor without possession or control of the leased premises, defendant was not liable for the negligence, if any, of the security firm hired by its tenant. The trial court correctly granted defendant’s motion for summary judgment under GCR 1963, 117.2(1).
Affirmed.
Also included as a plaintiff was Du Renda Williams, the wife of John Williams, whose cause of action was based on a loss of consortium claim.
Joined as defendants in this action were Lee Davidson, the assailant, Promotions, Inc., Star Security Service, Inc., and Michigan Hot Rod Association.
124 Mich App 590, 593; 335 NW2d 94 (1983).
Lipsitz v Schechter, 377 Mich 685, 687; 142 NW2d 1 (1966); Prosser, Torts (4th ed), § 63, pp 399-400.
Butler v Watson, 193 Mich 322, 328; 159 NW 507 (1916); 2 Restatement Torts, 2d, § 360, pp 250-253.
Siegel v Detroit City Ice & Fuel Co, 324 Mich 205, 214-215; 36 NW2d 719 (1949); 49 Am Jur 2d, Landlord and Tenant, §§ 810-811, pp 769-772.
387 Mich 569; 198 NW2d 409 (1972). The hard issue was whether a defective lock or inadequate lighting was the proximate cause of the injuries inflicted by the mugger. The Supreme Court said the landlord’s derelictions were "conducive” to the mugging.
393 Mich 393; 224 NW2d 843 (1975).
Justice T. M. Kavanagh, the author of the opinion, suggests that the duty may have been so slight as only to require a suggestion to "office personnel to ride the elevators in pairs”. Samson, supra, p 409. However, the fact was that plaintiff, a woman, was stabbed by a mental patient on "convalescent leave” who was also a defendant and who had previously slashed a woman in her home.
Samson, supra, p 407.
Samson, supra, p 407. See, generally, Anno: Landlord’s Obligation To Protect Tenant Against Criminal Activities of Third Persons, 43 ALR3d 331.
While the following condition of the lease allows defendant, the landlord, access to the leased premises, we do not construe it as compromising the tenant’s exclusive possession and control of the exhibit areas:
"(22) The custodian of the Building, watchmen and maintenance crew of the Owner shall have free access at all times to all space occupied by Permittee.”
Prosser, Torts (4th ed), § 63, p 403. See, also, 2 Restatement Torts, 2d, § 379, pp 281-283.
Possessory rights can be transferred to another, thereby delegating the duty to render the premises safe while absolving the transferor of liability. See Merritt v Nickelson, 407 Mich 544, 552-553; 287 NW2d 178 (1980); Siegel v Detroit City Ice & Fuel Co, supra. | [
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] |
M. J. Kelly, P.J.
The Michigan Department of State filed an administrative complaint against plaintiff, charging that two of plaintiff’s automobile repair facilities had each made "unnecessary repairs” in violation of § 22(l)(d) of the Motor Vehicle Service and Repair Act, MCL 257.1322(l)(d); MSA 9.1720(22)(l)(d). In response, plaintiff commenced this action in Ingham County Circuit Court, seeking to enjoin administrative enforcement of § 22(l)(d) and to compel disclosure of certain public records. Subject matter jurisdiction was claimed under provisions of the Michigan Freedom of Information Act, MCL 15.240(1); MSA 4.1801(10X1) and MCL 15.241(5); MSA 4.1801(H)(5). Defendants denied that the circuit court’s jurisdiction had been properly invoked. Following a hearing, the circuit court granted summary judgment, pursuant to GCR 1963, 117.2(3), in favor of plaintiff and enjoined defendants from proceeding against plaintiff "until rules and guidelines are enacted in accordance with statutory procedure informing plaintiff (and those similarly situated) what is an 'unnecessary repair’ ”. From this judgment and order defendants appeal as of right.
I
In addressing whether the instant case was within its jurisdiction, the circuit court found that plaintiffs complaint concerned the authority of the Department of State to commence an administrative action based on the performance of unnecessary repairs. The court held that since rules had not been promulgated defining the term "unnecessary repairs” the department was without authority to bring an administrative action based on a facility’s making unnécessary repairs.
A circuit court is without jurisdiction to entertain an action against the State of Michigan unless that jurisdiction shall have been acquired by legislative consent. Greenfield Construction Co, Inc v Dep’t of State Highways, 402 Mich 172, 194; 261 NW2d 718 (1978); Michigan State Chamber of Commerce v Secretary of State, 122 Mich App 611; 332 NW2d 547 (1983). When an administrative action underlies a controversy, judicial review is appropriate after a person has exhausted all of his administrative remedies available within the agency. MCL 24.301; MSA 3.560(201). If an agency commences an action against a person, however, and that person contests the agency’s authority or power to bring the administrative proceeding against him, he may obtain leave for judicial review of the agency’s authority. International Business Machines Corp v Dep’t of Treasury, 75 Mich App 604, 608-610; 255 NW2d 702 (1977), lv den 401 Mich 816 (1977), see MCL 24.301; MSA 3.560(201). Since an administrative action had been initiated by the Department of State against plaintiff, we find that the circuit court had subject matter jurisdiction, pursuant to MCL 24.301; MSA 3.560(201), to determine whether the Department of State had the authority to bring an administrative action against plaintiff based on plaintiffs alleged making of unnecessary repairs._
II
In an effort to regulate the practice of servicing and repairing motor vehicles, the Legislature enacted the Motor Vehicle Service and Repair Act, MCL 257.1301 et seq.; MSA 9.1720(1) et seq. The act empowers its administrator to suspend or revoke the registration of a repair facility when, after an opportunity for a hearing, the administrator determines that the facility made unnecessary repairs. MCL 257.1322; MSA 9.1720(22).
Under the terms of the act, the administrator is under a duty to promulgate rules in order to implement the act, in accordance with the Administrative Procedures Act of 1969, MCL 24.201 et seq.; MSA 3.560(101) et seq. MCL 257.1309(i); MSA 9.1720(9)(i). As to the scope of the rules required to be promulgated, the act provides that:
"The rules shall include but not be limited to:
"(i) Definitions of unfair and deceptive practices.
"(ii) Definitions of minor repair services.
"(iii) Criteria for determining the competency of specialty and master mechanics, as a prerequisite to continued certification under this act.
"(iv) Definition of repair categories for the certification of specialty and master mechanics.
"(v) Other rules as are necessary to implement this act.”
MCL 257.1309(i); MSA 9.1720(9)(i). The act does not specifically require that rules be promulgated defining the term "unnecessary repairs”. Plaintiff argues, however, that the definition of "unnecessary repairs” comes within the scope of "other rules as are necessary to implement this act”._
Since the Legislature has not specifically required the promulgation of rules defining the scope of the term "unnecessary repairs”, we must determine whether the act could be implemented without such rules. When a statute allows an administrative agency to take action against a licensee for violation of statutory standards, substantive due process requires that, the standards be reasonably precise in order to ensure that individuals are not held responsible by the state for conduct which they could not reasonably understand to be proscribed. State Board of Dentistry v Blumer, 78 Mich App 679; 261 NW2d 186 (1977).
Statutory language is construed "according to the common and approved usage of the language”. MCL 8.3a; MSA 2.212(1), see People v Lee, 66 Mich App 5, 8; 238 NW2d 397 (1975). A resort to dictionary definitions is an appropriate method of achieving this result. Fenton Area Schools v Sorensen-Gross Construction Co, 124 Mich App 631; 335 NW2d 221 (1983), see State ex rel Wayne County Prosecutor v Levenburg, 406 Mich 455, 465; 280 NW2d 810 (1979).
The Random House Dictionary of the English Language: The Unabridged Edition (1971 ed), p 1558, defines "unnecessary” as "not necessary; needless; unessential”. We apprehend that reasonable minds could differ on whether various automotive repairs were either needed or needless. Notwithstanding such an inherent range of difference of opinion, reasonable minds should be able to agree on whether there is any need at all for a particular repair. We find that the term "unnecessary” is reasonably precise to ensure that individuals do understand that they should not recommend and undertake repairs for which there is no need at all. While the range of procedures which could fall within the standard "unnecessary repairs” would be greater had rules been promulgated to alert repair facilities as to those repairs considered by the state to be unnecessary, even without promulgated rules the term "unnecessary”, in and of itself, is sufficient to inform repair facilities of the requirement that there be at least some determination of need before performing "repairs”.
If the Department of State can demonstrate during an administrative proceeding that a repair facility has undertaken repairs for which there was no need, the administrator has statutory authority to suspend or revoke the repair facility’s registration. The burden is on the state to show not only that the repairs were undertaken, but that there was no need for the repairs. Without the promulgation of rules, the state’s burden of proving that certain repairs were unnecessary is inherently more difficult to satisfy. Nevertheless, we believe that the standard "unnecessary repairs” is specific enough to give notice to a repair facility of the type of conduct which is improper and which could lead to the suspension or revocation of its registration. The administrator need not, therefore, promulgate rules defining the standard "unnecessary repairs” before an administrative action can be brought against a repair facility. The lower court erred in finding the Department of State to be without authority to bring an administrative action against plaintiff. The lower court’s judgment is reversed and its injunctive order is vacated.
Reversed.
We use the term "person” meaning any individual or entity subject to administrative action.
The act’s administrator is defined as the Secretary of State or his designee. MCL 257.1308; MSA 9.1720(8). | [
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Bird, J.
The defendants were charged with and convicted of the offense of conspiracy to defraud the Dowagiac river drain fund and several municipalities in the county of Cass. The information was filed in Cass county, but the case was subsequently transferred to Berrien county for trial. In the year 1915 a tricounty drain was initiated by petition which should traverse the counties of Cass, Van Burén and Berrien, and be 30 miles in length. The usual proceedings followed and the contracts for its construction were let in April, 1917. The drain was divided into three sections for the purpose of selling. Defendant McElheny secured the contract for the construction of section one. His section was 4,080 rods in length, and the consideration for constructing the same was $39,372. In addition to this McElheny secured the contract for doing certain bridge work in connection with his section of the drain, but this was taken care of by separate contracts.. McElheny commenced work on his contract in July, 1918, and continued to work thereon intermittently until December, 1920, when he abandoned the contract, leaving a considerable portion of his section unfinished. During that period he constructed another drain of less importance in the county of Cass, known as the Onen-McCoy drain, which discharged its waters into the Dowagiac river drain. This was also taken care of by separate contract. Instead of orders being drawn and delivered to him as the work progressed and as the law provides, defendant Moon, who was the drain commissioner of Cass county, issued orders to him in the sum of $129,547.80. These orders have either all been paid or negotiated by him to other parties.
The defense made was that the work was begun just as the high prices came on and that the price of materials and labor increased so rapidly that his section could not be completed for the contract price; that when confronted by this situation they went' to Dowagiac and consulted an attorney, who advised them that if the drain could not be completed for the contract price, the drain commissioners would have a right to increase the amount; that relying on this advice, defendant Moon kept issuing orders and delivering them to defendant McElheny until the maximum sum heretofore noted was reached. It was their position, in short, that what they did might have been illegal, but that they acted in good faith, believing they had a right to do as they did, and that the additional money was expended in the construction of the drain.
The prosecutor was permitted to show upon the trial, against defendants’ objection, that the OnenMcCoy drain fund had been overdrawn in the same way the Dowagiac river drain fund had been. That while the contract price for the construction of the Onen-McCoy drain was $16,000, orders had been issued by Moon and delivered to McElheny in excess of $30,000. Defendants objected seriously to this testi mony, arguing that the defendants were not on trial for a conspiracy to defraud the Onen-McCoy drain fund, and that the admission of such testimony was in violation of the rule of evidence, that other and similar erimes could not be shown as evidence of the one charged.
The testimony as to the Onen-McCoy drain was admitted for the purpose only of bearing on the relations of the defendants and the question of their good faith in overdrawing the contract on the Dowagiac river drain. This reason was explained fully by the court to the jury. We are of the opinion that no error was committed in admitting this testimony. These defendants were on trial for conspiracy to defraud the Dowagiac river drain fund. The Onen-McCoy drain was under construction during the time the Dowagiac river drain was being constructed and both defendants stood in the same relation as to both drains. A question of intent was involved in the case on trial and evidence of overdrawing the contract price in the Onen-McCoy drain would be helpful in characterizing similar acts in the Dowagiac river drain.
In People v. Saunders, 25 Mich. 119, two parties were on trial for conspiracy in attempting to induce a liquor firm to violate the internal revenue law so they could extort money from them in settlement thereof. A similar transaction by them with other parties was shown to characterize their act. Counsel argued the admission of this testimony was error. In answering that complaint this court said:
“It is next objected that the court erred in admitting evidence that, at the same time and place that complaint was made against "Amberg & Helmer, complaint was made by the same party against another firm for a violation of the same law. These two complaints were so closely connected that in proving one it was almost impracticable to avoid the mention of the other. But even if it had been practicable, we do not think it was essential. If there was a conspiracy in the one case, there probably was in the other, and the evidence of the one would throw light upon the motives inducing the other. Mr. Roscoe justly says that, ‘The evidence in conspiracy is wider than, perhaps, in any other case. * * * Taken by themselves, the acts of a conspiracy are rarely of an unequivocally guilty character and they can only be properly estimated when connected with all the surrounding circumstances.’ Ros. Cr. Ev. 88 [14th Ed. p. 521]; and see Hunt’s Case, 3 B. & Ald. 573. There are cases in which, a party being charged with fraud in a particular transaction, it was held competent to give evidence of similar fraudulent transactions with other persons. Bottomley v. United States, 1 Story (U. S.), 135; Rankin v. Blackwell, 2 Johns. Cas. (N. Y.) 198; and these seem very much in point here. But we do not decide that the evidence of the other complaint would have been admissible, if it had been a distinct transaction at another time; it is enough that the two were so inseparably associated in time, and doubtless in motive also, that each may properly be said to have been intimately connected, with the res gestee of the other, and therefore admissible in evidence with the other surrounding circumstances.”
The rule is stated in Corpus Juris in accord with the foregoing. 12 C. J. p. 637; 16 C. J. p. 595.
We think the cases cited by counsel to the effect that evidence of other overt acts are not admissible to prove the charge in the information are not applicable to this situation.
In 1921 defendant Moon was before a committee of the board of supervisors for the purpose of explaining the irregularities in connection with the drain. During the conversation witness Kimmerly said to Moon: “I do not want to do you an injustice, but you have been imposed upon by an unscrupulous rascal, and we want you to tell the truth.” The court, upon objection, refused to strike this out, but instructed the jury that it could be considered only as against defendant Moon. The observation of Kimmerly was part of the conversation which the witness was giving. The jury was entitled to the entire conversation. It was not very material, but we see no error in its admission.
William J. Barnard, a witness for the people, testified that he was well acquainted with defendant McElheny, and that he had a conversation with him while the drain in question was being constructed, and in discussing the cost of drains Mr. Barnard said to him:
“How do you manage to figure on,drains and not have a loss on a big drain of that kind, not knowing these extra things that is liable to come up?”
To this McElheny replied that was easy enough, that they usually figured and got double the amount of the yardage that was dug.
“And I asked him how he did that, and he said they tipped the engineer, and I asked him what they had to pay the engineer on these things, and he said it varied from 15 to 25 per cent. And I said: ‘You can’t pull any such thing as that here, can you?’ And he said: ‘Yes,’ but he said that Goss was the hardest man he ever had to deal with; that he was not even willing to split fifty-fifty on the steal; that he required or wanted more than fifty per cent, of the steal.”
It is argued that this testimony was immaterial for the reason that the case against Goss, the drain commissioner of Berrien county, had been dismissed by the court. It is perhaps true that the conversation was not important as to Goss, but it was against defendant McElheny. It clearly showed the state of his mind in dealing with the particular drain where questions of - intent and corrupt motives were involved. It bore upon his good faith and the character of his acts. No error was committed in receiving it.
Error is alleged because the prosecutor said in his argument to the jury that:
“I believe from the evidence that these defendants are guilty.”
We think counsel are in error in saying that this court has repeatedly held this language to be error. The court said, in People v. Hess, 85 Mich. 128, that it was not error for a prosecutor to state his belief of the guilt of the defendant based on the testimony in the case. To the same effect, see, also, People v. Welch, 80 Mich. 616, and People v. Ponsford, 181 Mich. 659.
Complaint is made of the argument of the prosecutor. Mr. Cady, one of the counsel for the defendants, in excepting to the argument made the previous day, said:
“I also wish to take exception to the following, that in connection with certain parts of evidence, Mr. Sterling stated to the jury that the defendant, pointing at Mr. McElheny, did not take the stand and deny certain statements made by other witnesses.”
The prosecutor at once denied making such a statement. Counsel then entered into a colloquy as to whether the argument was made and continued it until the court interfered. The court did not indicate what his memory was with reference to the disputed point, but he did say to the jury, in connection with it and at the time, the following:
“Now, on the question of references by — claimed references by the prosecuting attorney to the fact that the respondents did not take the stand: The law’ is that in every criminal case it is the duty of the people to prove their case. The burden is upon them. The respondent does not have to prove his innocence, and no one charged with a crime is called upon to take the stand and testify in his own behalf, and the jury have no right to infer anything against a respondent-because of his failure to take the stand and testify. And I charge you that if any argument was made by the prosecuting attorney in this case, which directly or indirectly, or by inference was calculated to attract the attention of the jury to the fact that the respondents did not take the stand, the jury must wholly disregard any such argument, because, as I have said to you, you can draw no inference whatever from the fact that these respondents, or any of them, failed to take the stand and testify in their own behalf.”
We have no way of determining whether the objectionable argument was made or not, as the argument of the prosecutor was not taken by the stenographer, and as the record does not show the basis for the objection we cannot consider it.
Several errors are alleged on the charge of the court; . We have gone over the charge carefully in connection with the alleged errors and are of the opinion that they are not well taken. The questions involved were clearly stated to the jury and the principal defense of their good faith and their reliance upon the legal opinion they had secured from an attorney was presented to the jury fully as favorable to defendants as the law would permit. If any error were made in this respect it was not one that the defendants could complain of. We are of the opinion that the defendants had a fair trial.
The judgment of conviction will be affirmed. As the case is here on exceptions before sentence, the trial court will proceed to sentence the defendants.
Fellows, C. J., and Wiest, McDonald, Clark, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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Clark, J.
This cause is a companion of Walz v. Peninsular Fire Ins. Co., ante, 326, and has the same parties plaintiff. In that case a judgment in an action on a fire insurance policy was entered in favor of plaintiffs in the Washtenaw circuit on June 2, 1922. The case at bar was brought on for trial by jury on June 5, 1922. The defendant is one of 48 fire insurance companies who insured property of Sarah Goffe at Ann Arbor in the sum of $375,000 which property, on December 31, 1920, was damaged by fire to the extent of $350,000, as plaintiffs claim. Fifty-eight suits have been commenced by plaintiffs against the companies to recover the amount of the claimed loss. The declaration counts on a $2,500 fire insurance policy. The plea is similar to that in the case cited. Plaintiffs’ proofs were in support of the theory that the insurance companies, including defendant, in the Peninsular Case had united in a common defense, had agreed to share pro rata the costs and expenses of the suits, had common counsel, had'made similar pleas in all cases and that the organization defending the suits in their behalf was the Underwriters’ Adjustment Company, and that, therefore, a final judgment in one suit was conclusive on all defendants. A judgment in the sum of $2,462.58, computed on the basis of the recovery in the Peninsular Case, was sought. It was shown that the defendants in all the cases, except one, were represented by the same counsel. Certain pleadings were in evidence and the record in Peninsular Case was received. There was some testimony that assessments against some of the companies had been collected and paid to counsel. And there was evidence that the Underwriters’ Adjustment Company was the group of insurance companies defending . these cases. Mr. Walters, counsel for defendant, called to the stand, was asked of facts to establish the particular elements of plaintiffs’ theory. He claimed privilege and declined to testify. In the trial of the Peninsular Case counsel for defendant stated that the companies were not joined together in a common defense and refused to concede anything on that subject. Both sides requested a directed verdict. A verdict for plaintiffs in the sum of $2,462.58 was directed and judgment for plaintiffs entered thereon. Defendant brings error.
Plaintiffs rely on Greenwich Ins. Co. v. N. & M. Friedman Co., 142 Fed. 944, a case somewhat similar to this where the facts were largely stipulated and where it was held, quoting from syllabus:
“A number of insurance companies, which had issued to plaintiff concurrent policies covering the same property and identical in form, united in making a common defense to suits brought against them severally after the destruction of the property. They agreed to share pro rata the costs and expenses of the suits, and appointed a committee to take charge of them, which employed the same counsel in all, and the same defense was set up in each, raising an issue of fact. Their joinder was open and avowed, and well known to plaintiff and its counsel. Held, that each had an interest in all the suits and that a final judgment in favor of plaintiff in one suit was conclusive on all.”
In courts of the United States a statute provides for consolidation of causes of like nature. We think a joinder of defendants in a situation like the one at bar could be accomplished by the acts and conduct of the parties, but the joinder must be open, avowed, known and understood by the parties so that a judgment will be conclusive on all. And, a party to be so bound—
“must have been directly interested in the subject-matter of the proceedings — with the right to make defense, to adduce testimony, to cross-examine the witnesses on the opposite side, to control, in some degree, the proceedings, and to appeal from the judgment.” 10 R. C. L. p. 1117.
And it was said in Andrews v. National Foundry & Pipe Works, 76 Fed. 166 (36 L. R. A. 139):
“Estoppels in such, cases as in others, must be mutual, and it is not to be considered that Andrews and Whitcomb became bound by the decree, by reason of their participation in the defense, unless their conduct in that regard was open and avowed, or otherwise known to the opposite party, so that it, too, was concluded, or would have been by an adverse judgment. Herman, Estoppel, p. 157; 2 Van Fleet, Former Adjudication, § 523; 2 Black, Judgments, § 540; 1 Freeman, Judgments, § 189; Lacroix v. Lyons, 33 Fed. 437; Schroeder v. Lahrman, 26 Minn. 87 (1 N. W. 801); Cannon River Manfg. Ass’n v. Rogers, 42 Minn. 123 (43 N. W. 792, 18 Am. St. Rep. 497); Brady v. Brady, 71 Ga. 71; Majors v. Cowell, 51 Cal. 478; Allin’s Heirs v. Hall’s Heirs, 1 A. K. Marsh. (Ky.) 525. See, also, David Bradley Manfg. Co. v. Eagle Manfg. Co., 6 C. C. A. 661, 57 Fed. 980.”
And see Lane v. Welds, 99 Fed. 286.
That the claimed joinder or participation was not open, avowed and understood is a fatal infirmity of plaintiffs’ case. In view of the reticence, if not denial, of counsel in the Peninsular Case as regards the claim of joinder and the refusal of counsel for defendant to disclose the facts relative thereto in the. case at bar and the failure of plaintiffs to obtain sufficient proof to establish the elements of their theory of recovery in this case, can it be said that the claimed joinder and common participation of the defendants in the Peninsular Case were open, avowed, and well known to plaintiffs? As the estoppel must be mutual, suppose that the judgment in the Peninsular Case had been adverse to plaintiffs, on this state of facts would it have been conclusive in all the cases? Surely not. Neither is the judgment conclusive asi to defendant here. See Loftis v. Marshall, 134 Cal. 394 (66 Pac. 571, 86 Am. St. Rep. 286); Hauke v. Cooper, 48 C. C. A. 144, 108 Fed. 922; Laskowski v. People’s Ice Co., 203 Mich. 186 (2 A. L. R. 586); Feldkamp v. Ernst, 177 Mich. 550; Cockins v. Bank of Alma, 84 Neb. 624 (122 N. W. 16, 133 Am. St. Rep. 642); Central Baptist Church v. Manchester, 17 R. I. 492 (23 Atl. 30, 33 Am. St. Rep. 893); Fish v. Vanderlip, 218 N. Y. 29 (112 N. E. 425, Ann. Cas. 1916E, 150) and cases cited. Several other questions are discussed, among them that in any event plaintiffs might not have judgment in the case at bar while there was in force a stay of proceedings, stipulated of record by counsel in open court in the Peninsular Case, and pending review here, but we think it unnecessary to consider such questions. A verdict should have been directed for defendant.
' Judgment reversed with costs to defendant. New trial granted.
Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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Sharpe, J.
On February 25, 1920, defendant purchased an automobile from L. J. Castle of Detroit, doing business as the C. C. Car Market, for $830.70, on which sum $332.28 was credited for an old car, the balance being payable in installments of $71.20. Defendant executed a note to the order of the C. C. Car Market for $498.42, payable “at the time or times stated in the schedule of payments hereon” at the office of the plaintiff company in Pittsburgh, Pennsylvania. This note was secured by a conditional sales agreement in which title was reserved and the seller authorized to take possession in case of default, etc., and sell at public or private sale. The note was indorsed and it and the agreement were assigned to plaintiff on the day they were executed, the deal having been completed by plaintiff’s agent at Detroit where a branch office was maintained. Plaintiff’s credit manager at Pittsburgh testified that on March 1, 1920, he mailed to defendant at his then Detroit address a notice that plaintiff had purchased the security and advised him that it had procured insurance on the car, the cost of which had theretofore been charged to defendant. The defendant denied receiving this or any other notice from plaintiff. Defend ant paid Castle $217.72 on March. 1, 1920, and $209.60 on April 26,1920, taking his receipts therefor. Castle forwarded these moneys to plaintiff. It sent defendant its receipts therefor. On May 17, 1920, defendant paid Castle the amount of the last installment. Castle failed to remit to plaintiff, who, after an effort to collect, first from Castle and afterwards from defendant, replevined the car from defendant. At the conclusion of the proofs both parties asked for a directed verdict. A verdict was directed for the defendant, the trial court holding that plaintiff by its course of conduct was—
“estopped from claiming Mr. Castle was not acting as. their agent in receiving and receipting for this final payment.”
Plaintiff here reviews the judgment entered thereon by writ of error.
Whether defendant received the letter sent by plaintiff notifying him that it had purchased the security is, we think, unimportant. His contract with Castle provided for insurance. The cost thereof was charged to him and included in the amount of the note. He afterwards received the policy by mail, and admits that he read it. In it the plaintiff was referred to as mortgagee of the property insured. Later, when he made the first payment to Castle, the latter receipted for it, as he did for those subsequently made, in his own name and not that of plaintiff. After plaintiff received the remittances from Castle, it at once forwarded to defendant receipts therefor. These receipts he produced on the trial. It is therefore apparent that at the time the payment in question was made to Castle defendant knew that plaintiff was the owner of the security. When asked why he did not make payment to plaintiff instead of to Castle he answered — “Because Castle told me to pay it to him.”
The defense in this case must rest on estoppel by plaintiff to deny the agency of Castle. That no such agency existed clearly appears. Without actual authority, plaintiff would be bound by the act of Castle in receiving the final payment, if its acts or conduct were such as to reasonably lead defendant to believe that such agency in fact existed. Clark v. Dillman, 108 Mich. 625; Pettinger v. Alpena Cedar Co., 175 Mich. 162. The only thing plaintiff did was to accept the remittances forwarded to it by Castle and to send to defendant its receipts therefor. Such receipts were in themselves notice to defendant that those given him by Castle were not binding on plaintiff.
The doctrine of estoppel has never been so extended. The plaintiff surely had the same or a better right to assume that Castle was acting for the defendant in forwarding the money to the place where it was made payable as defendant had to assume that Castle was acting for plaintiff in accepting it from him. The rule is thus stated in 2 C. J. p. 461:
“Accordingly, it is a general rule that when a principal by any such acts or conduct has knowingly caused or permitted another to appear to be his agent either generally or for a particular purpose, he will be estopped to deny such agency to the injury of third persons who have in good faith and in the exercise of reasonable prudence dealt with the agent on the faith of such appearances.”
There is no evidence in the record on which to base a finding that plaintiff permitted Castle to act or appear to act as its agent to collect the payments due from defendant. The result is a hardship to defendant, who relied upon Castle, but, as was said in Bromley v. Lathrop, 105 Mich. 492, 496:
“We are unable to see in what respect the complainant has been guilty of any act which ought to estop him from relying upon his ownership and possession' of the securities, and from insisting upon payment.”
See, also, Joy v. Vance, 104 Mich. 97; Church Association v. Walton, 114 Mich. 677; Bacon v. Pomeroy, 118 Mich. 145.
A verdict should have been directed for plaintiff. The judgment is reversed and a new trial granted, with costs to appellant.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred. | [
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] |
McDonald, J.
Frank Kennedy was convicted in the Genesee circuit court on an information charging him with the crime of perjury while testifying in the criminal trial of the People v. Joe Molasky. The charge against Molasky was that, being armed with a dangerous weapon, he robbed one Paul Adams. Molasky was a merchant in the city of Flint, and lived with his family in rooms above his store. Elizabeth LaFleur, a sister of Mrs. Molasky, was a member of the family. On her account Frank Kennedy was a frequent visitor at the Molasky home. He and Miss LaFleur were present at the time of the robbery, which was committed on the evening of November 21, 1920, in the living room occupied by the Molasky family. It was the theory of the people that Molasky with his wife and child left the room early in the evening saying that they were going to the theatre; that, about an hour later, he returned, and, going into the room disguised and armed with a revolver, held up and robbed Adams. Molasky was arrested, and on the trial Kennedy testified that Molasky did not return to the room until after the theatre. The perjury charge against him is predicated on this testimony as given in answer to the following questions:
“Q. Do you know whether or not Molasky was back in the room from the time he went out with his wife until he came back and you told him about the robbery having taken place?
“A. No, sir; he was not back.
“Q. Well, then, Molasky did not have anything to do with this robbery?
“A. No, sir.
“Q. You are positive Molasky had nothing to do with the robbery?
“A. Yes, sir.”
Molasky was convicted in February, 1921. Some time thereafter this defendant was arrested and taken before the police officers and interrogated as to the truth of the testimony he had given. It is claimed that he there made a voluntary confession that he had knowingly testified falsely. This prosecution followed. On the trial he was a witness in his own behalf. He denied the confession and insisted that he had testified truthfully at the Molasky trial. He said:
“I answered those questions that way because I thought it was the truth according to the information and knowledge that I had.”
At the close of the proofs defendant’s counsel presented a motion for a directed verdict of not guilty, the principal reason being that there was no testimony that defendant had sworn falsely except his confession to the officers, and that such confession, uncorroborated by other proof, would not be sufficient to sustain a conviction. The motion was denied. Defendant was convicted and has brought his case here on writ of error.
It is first urged by counsel for the defendant;
“That the people produced no witness who testified that Molasky was back in the room from the time he-went out with his wife until he came back and was, told of the robbery;-or who testified that Molasky had. anything to do with the robbery of Paul Adams.. Even if respondent made the admissions claimed by the officers, that can be used only as corroborating testimony and is not sufficient, standing alone, to warrant a conviction.”
Under the information in this case, to sustain a conviction, it must be established beyond a reasonable doubt that Molasky returned to the room, as the people claim, and that Kennedy knew of that fact when he testified. This must be shown by other evidence than his confessions. There was no other oral testimony on the subject except from Elizabeth LaFleur, who testified positively that Molasky did not return to the room until after the robbery, and that she knew the disguised robber was not Molasky because of his size and his voice. She was the only witness produced by the people who testified to any of the facts of the Molasky case, and she testified adversely to the people’s claim. There being no oral evidence of perjury other than the contradictory statements made to the officers, the conviction cannot be sustained unless there are some corroborating facts and circumstances.
In People v. McClintic, 193 Mich. 589 (L. R. A. 1917C, 52), this court said:
“We think that it should be held that a conviction for perjury cannot be sustained merely upon the contradictory sworn statements of the defendant, but the prosecution must prove which of the two statements is false, and must show that statement to be false by other evidence than the contradictory statement.”
Such other evidence may consist of corroborating circumstances, but the corroboration must be of a “strong character and not merely corroborative in slight particulars, and it must contradict in positive terms the statement of the accused.” 21 R. C. L. p. 272.
In People v. McClintic, supra, it was held that the circuit judge should have instructed the jury that the corroborating circumstances must be “strong and of such a character as will clearly turn the scale and overcome the oath of the party charged.”
Applying the above rules to the facts in the instant case it will be found that circumstances relied on by the prosecution are not of such a character as to satisfy the requirements of the law. The corroborating circumstances are that Kennedy'did not call the police after the robbery, that Adams told him that Molasky was the man who robbed him and that, as Miss LaFleur was about to take the witness stand at the Molasky trial, Kennedy said to her: “Hold your head, don’t spill all you know.” This testimony has its rightful place in the case, but it is as capable of being harmonized with the theory of innocence as with that of guilt. It has no direct bearing on the corpus delicti and is not of that force and character that the law requires of corroborating circumstances in perjury cases.
We have examined the record in this case with great care and are unable to find any evidence other than the confessions showing the falsity of the testimony upon which perjury is assigned. It follows that there is not sufficient evidence to support the verdict. In this view of the case it is unnecessary to discuss other questions presented by the assignments.
The conviction is reversed and a new trial ordered.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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] |
Wiest, J.
Bill to quiet title to unoccupied land. Plaintiff derived his title from the grantee in a tax deed from the State. Decree was granted plaintiff in the circuit court.
The grantee in the tax deed was required by law to pay, and did pay, a subsequent tax returned to the auditor general, and in the notice of right to redeem, given to the last grantee in the regular chain of title appearing of record in the office of the register of deeds, included in the amount due such subsequent tax. Defendants attack the validity of such subsequent tax, and also claim its inclusion in the notice rendered the notice void. The validity of the tax deed is not questioned. We find no occasion to determine whether the subsequent tax was valid or not. The law made the payment of such subsequent tax a condition to the right of purchase and, therefore, a part of the purchase price. The grantee from the State having paid such tax, as required by law, had a right to include the amount thereof in the notice given of right to redeem.
The statutory notice provides for a statement of all sums paid upon the purchase from the State (1 Comp. Laws 1915, § 4138). The law also permits redemption upon payment of the amount paid upon the purchase from the State, together with 100% in addition thereto and the lawful fees of giving notice of right to redeem, and the further sum of $5 for each description (1 Comp. Laws 1915, § 4139). See Haney v. Miller, 154 Mich. 337; Rogers v. Davison, 188 Mich. 519.
The decree is affirmed, with costs against the appealing defendant, John Widdicomb Company.
Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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] |
Bird, J.
Plaintiff applies for a writ of mandamus to compel the defendant, as circuit judge, to set aside an order made by him dissolving a temporary injunction in the chancery case of Phil Gleichman v. Famous Players-Lasky Corporation, et ad., pending in the Wayne circuit court. ■
A brief history of the facts involved in that case is that in 1919, and for some time prior thereto, plaintiff Gleichman and Harry I. Garson were operating the Broadway-Strand theatre, which exhibited moving pictures in the city of Detroit. Defendant, Famous Players-Lasky Corporation, was engaged in the business of furnishing or leasing motion pictures for exhibition. Overtures were made in the summer of 1919 to Gleichman and Garson by the Famous PlayersLasky Corporation to use their motion pictures exclusively in the Broadway-Strand theatre. Gleichman was friendly to the proposition but Garson objected to the exclusive feature of the proposition. In order to work out the proposition the Famous Players-Lasky Corporation furnished Gleichman with $12,500 with which to buy Garson’s interest in the theatre. After this was. accomplished Gleichman entered into a contract with the Famous Players-Lasky Corporation, which was to extend over a period of 5 years. This contract provided that the Paramount and other pictures of the Famous Players-Lasky Corporation released during those years should be exhibited by plaintiff in the Broadway-Strand theatre and no others. The important paragraph of this contract follows:
“Third. The exhibitor (plaintiff) hereby agrees to contract with the distributor (Famous Players-Lasky Corporation) for and to exclusively exhibit at the said theatre for the period of five (5) years from the 28th day of September, 1919, motion picture productions released by the distributor, and to fill the entire time of the said theatre with bookings of the product of the said distributor, the said contract and bookings for the first year of said term being covered by agreement of even date herewith, and the said contract and bookings for subsequent years of said term to be made upon the basis of the standard practice for such years established by the distributor, and upon terms and conditions similar to those applied by the distributor in theatres of like seating capacity, location and stand ing. And the distributor hereby agrees to contract with the exhibitor from year to year for the exhibition of motion picture productions released by the distributor for the said period of five (5) years from the 28th day of September, 1919, upon terms and conditions similar to those applied by the distributor during such years to theatres of like seating capacity, location and standing.”
In pursuance of the terms of this contract a contract or schedule was made for the theatrical season of 1919-1920, specifying in detail how the gross receipts should be disposed of, and containing many other details affecting the operation of the theatre.
In September, 1920, another schedule for the season of 1920-1921 was agreed to, which was much like the preceding one. In addition it contained the following provision as to how the pictures should be selected:
“First. The distributor agrees to and does hereby grant to the exhibitor the license to exhibit one copy of each motion picture production to be released by it, and which it shall designate as a proper production for exhibition in the Broadway-Strand theatre during the year beginning September 1, 1920, and ending August 31, 1921, and the exhibitor agrees to pay for such license so as to exhibit each of the said motion picture productions as hereinafter provided, it being-understood and agreed, however, that the pictures designated to be played in the Broadway-Strand theatre shall be mutually agreed upon and chosen from the then available Famous Players-Lasky Corporation pictures not yet shown in Detroit.”
In September, 1921, the third schedule or contract for the season of 1921-1922 was agreed to. This was similar in character to the preceding one, but differed somewhat in detail. It also provided that the pictures should be mutually selected by the parties. Under the contract and these three schedules the parties worked harmoniously together during the first three years of the contract. In September, 1922, the Famous Players-Lasky Corporation refused to make a contract or schedule applying to the season of 1922-1923, assigning various reasons therefor, and also refused to furnish Gleichman his choice of the pictures released, as it is claimed had been theretofore done. Being unable to adjust their differences by negotiation Gleichman filed his bill of complaint setting up all the facts and praying for an injunction to restrain the Famous PlayersLasky Corporation from letting or leasing its pictures to other theatre managers in the city of Detroit. It is asserted by Gleichman that the Famous PlayersLasky Corporation had secured a better contract from the Kunskey theatres, and for that reason it was attempting to avoid its contract with him. It is also the claim of Gleichman that he was to have the first choice of the Paramount pictures which were released by the Famous Players-Lasky Corporation, and that both parties so understood it, and that during the three years of the existence of the contract he did have his first choice of those pictures which were released. It is shown that the Paramount pictures are among the best in the market, that they are of great value to plaintiff and that the loss thereof will result in irreparable damage to him.
The Famous Players-Lasky Corporation denies that Gleichman in and by the terms of the contract is entitled to his first choice of the Paramount pictures, but charge that the pictures were to be mutually selected by the parties. It is further charged that Gleichman is in arrears in his payments and that the contract is too vague and indefinite to be enforced.
The chancellor, upon the hearing, in response to the order to show cause, was of the opinion that the contract upon its face did not give to Gleichman the first choice of the Paramount pictures released by the Famous Players-Lasky Corporation. He appears to have paid little, or no, attention to Gleichman’s con tention that the practical construction given to the contract by the parties themselves was that Gleichman should have his first choice of the pictures, although this contention was supported by proof, nor does he appear to have given any consideration to the following excerpt from the contract:
“The said contract and bookings for the first year of said term being covered by agreement of even date herewith, and the said contracts and bookings for subsequent years of said term to be made upon the basis of the standard practice for such years established by the distributor, and upon terms arid conditions similar to those applied by the distributor in theatres of like seating capacity, location and standing.”
Upon an examination of the contract and schedules we are of the opinion that the chancellor is right in his conclusion that the contract on its face does not establish Gleichman’s right to have his first choice of the Paramount pictures. There is one element of the contract which would have to be established by proofs before it could be said that Gleichman’s contention was established. Gleichman would have to make proof of the practical construction which the parties had given to the contract, and further proof would have to be made of the terms and conditions which had been established by the distributor in other theatres of like character. We, therefore, have a contract asserted, one element of which must be supplied by proofs. This, of course, involves a question of fact where the contentions are denied, as they are in this case. In cases of this character where questions of fact have been involved the court has been very loth to interfere with the discretion of the trial court. We have said that where the question before the trial court was one of law merely, we would review it. The following cases are illustrations of that rule: Dodge v. Van Buren Circuit Judge, 118 Mich. 189; Titus v. Chippewa Circuit Judge, 168 Mich. 507; Baltic Mining Co. v. Houghton Circuit Judge, 177 Mich. 632; Ionia, etc., Ins. Co. v. Ionia Circuit Judge, 100 Mich. 606 (32 L. R. A. 481); Bogert v. Jackson Circuit Judge, 118 Mich. 457.
While we are of the opinion that the prima facie case made by plaintiff in his bill of complaint and affidavits would have justified the trial court in maintaining the status quo (22 Cyc. p. 751), it does not occur to us how plaintiff would get the benefit of the pictures even if the status quo were maintained. An indirect benefit only would result if rival theatres were prohibited from exhibiting them. If this court were to reinstate the status quo we would be obliged to exercise our discretion on the questions of fact involved in the uncertain element of the contract. To do this we would be obliged to depart from the rule which has been heretofore observed. For this reason we must deny the writ.
The writ is denied.
Fellows, C. J., and Wiest, McDonald, Clark, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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] |
McDonald, J.
The defendant was convicted under an information charging him with murder. It was the claim of the people that the defendant and one Stanley Delestowicz, with whom he is jointly charged, went upon the streets of ,Bay City on the night of the 3d of September, 1916, for the purpose of holding up and robbing pedestrians. That defendant was armed with a revolver. That they came upon one Franklin E. Parker, a prominent citizen of Bay City. That defendant ordered him to hold up his hands. Mr. Parker, instead of doing so turned and walked away, whereupon the defendant shot him twice, one of the bullets entering his liver and the other the fleshy part of his arm. When arraigned Delestowicz pleaded guilty, and the defendant pleaded not guilty. Much of the testimony incriminating the defendant was given by Delestowicz. The case is here on writ of error. Errors are assigned on the rulings of the court in the admission and rejection of testimony, on prejudicial remarks of the prosecutor and of the circuit judge, and in the refusal of the court to give certain requests to charge.
The first question urged by counsel relates to the admission in evidence of a statement made by the deceased to Doctor Herrick a short time after the shooting. It was objected to as hearsay, but was received as part of the res gestee. The time was about 10 minutes after the shooting, as nearly as the doctor could fix it. The statement was not solicited by any questioning but was voluntary and spontaneous. It related to the res gestee and was properly admitted under authority of People v. Johnson, 186 Mich. 516, and cases therein cited.
The day following the shooting the deceased also made a statement to his attorney, Mr. Hewitt. Over objection by counsel that it was hearsay, Mr. Hewitt was allowed to testify as to what deceased said to him. This statement was made in the forenoon and Mr. Parker died in the afternoon of the same day. His condition at that time was very serious. He called Mr. Hewitt to his home, delivered to him his will, accident and life insurance policies, contracts and other papers, and told him that he did not expect to recover. As a matter of fact, death was impending. His statement that'he did not expect to recover, the arrangements he made of his business matters, and the serious character of hi§ wounds show that he understood that death was approaching. The statement of the shooting made under such circumstances was a dying declaration, and as such was admissible in evidence. For cases in which this court has discussed the doctrine of dying declarations, see People v. Beverly, 108 Mich. 509; People v. Lonsdale, 122 Mich. 388.
It is next urged by counsel that the circuit judge erred in refusing to allow him to thoroughly cross-examine the codefendant Delestowicz. It is true that the court refused to permit the witness to answer some questions relating to the time and circumstances of his confession and of his implicating the defendant, but in the main the greatest latitude was allowed counsel in his cross-examination of this witness. In respect to the restrictions complained of and to the remarks of the court and the prosecutor, we think there is some merit in counsel’s contention. It was the claim of counsel that some inducement had been offered Delestowicz to secure a confession from him. On cross-examination he was asked the following questions:
“Q. I ask you this question, if you did not sign in the prosecutor’s presence, or in the officer’s presence, what they call a confession of your connection with the Parker affair?
“Mr. Collins: I object to that as incompetent, immaterial and irrelevant; in the first place no such thing happened, but it is absolutely immaterial whether he ever did or not.
“The Court: I don’t think it is material.
“Q. I will ask you if you were not confined in the city hall for a period of ten days or two weeks before you made this statement against Mr. Madaj ?
“Mr. Collins: I object to that as incompetent, immaterial and irrelevant; it wouldn’t make any difference how long he had been there. * * *
“The Court: Objection sustained. * * *
“Q. When did you first tell that Steve Madaj shot Mr. Parker? * * *
“The Court: I don’t see how it is material when he told it. * * *
“Q. Did you tell it of your own free will?
“Mr. Collins: I submit that is immaterial; the witness told his story in this court.
“The Court: Objection sustained.”
At various times during this examination the prosecuting attorney volunteered the information which counsel was trying to elicit from the witness. Counsel was entitled to this information from the witness and not from the prosecuting attorney. If that official had any information which he thought should be communicated to the jury, he should have submitted it in the usual and orderly way from the witness stand. Counsel was pursuing a proper cross-examination. The court should have required the witness to answer his questions. We are not convinced, however, that the exclusion of this testimony In any way influenced the verdict of the jury. In another part of the cross-examination the witness testified that he had not been promised any leniency, and there seems to have been no basis in fact for believing that he had. Nor is there any evidence or claim that he had made a written confession to the officers. While we think that counsel should not have been so restricted in his cross-examination on these matters, we are satisfied from a reading of the entire record that defendant suffered no injustice thereby. The result would not have been different if this testimony had not been excluded. It was error without prejudice. For the same reason it was not reversible error for the court to neglect to instruct the jury that they might consider the fact that Delestowicz had not been sentenced for his complicity in the crime.
We have carefully considered all of the assignments but find no errors for which this conviction should be reversed. It is affirmed.
Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred. | [
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Bird, J.
This bill was filed by plaintiff, as trustee, to consolidate certain actions at law and in chancery pending- in the courts of Sanilac county. Most, if not all, of the pending litigation was the outgrowth, directly or indirectly, of Henry BinWe’s conduct in misappropriating certain moneys belonging to the State Bank of Harbor Beach, of which he was cashier. In January, 1920, the State banking department discovered that Henry Binkle was short in his accounts about $90,000. Efforts were at once put forth by Binkle’s relatives and friends to fix matters up with the bank so that Binkle could avoid prosecution. Upon representations which are in conflict the following conveyances of real property were made to plaintiff, as trustee for the bank:
(а) A conveyance by Henry Binkle and Daisy, his wife, to plaintiff as trustee, of a house and lot in Harbor Beach, which, it is claimed, they occupied as a homestead.
(б) A conveyance of four lots in the city of Harbor Beach to plaintiff as trustee by Binkle’s parents, Philip Binklé and Lena Binkle.
(c) A conveyance of a house and lot and other real estate in Deckerville to plaintiff as trustee by Adam W. Cowan, and Anna M. Cowan, his wife. The said Anna Cowan being a sister of Binkle and Adam a brother-in-law.
(d) A bill of sale of a hardware stock in Decker-ville was made to plaintiff as trustee by Adam Cowan and Philip Binkle, the value of which was about $13,000.
(e) A bill of sale was made by Philip Binkle of his three-fourths interest in a merchandise business in Harbor Beach and delivered to plaintiff as trustee.
Subsequently plaintiff replevied the stock of goods of Cowan and Binkle and took it into his possession. This precipitated a swarm of garnishee and other cases from the merchandise creditors of Cowan and Binkle. After a time chancery suits were begun by the vendors of the real estate mentioned in subdivisions a, b and c, under various claims that the conveyances were made for a temporary purpose only and were based upon fraudulent representations made by plaintiff and other interested persons. The state of the litigation pending when plaintiff filed this bill for injunction and consolidation was:
(/) Three bills of complaint filed in chancery to compel the reconveyance of the real estate mentioned in subdivisions a, b and c.
(g) One replevin case involving a stock of goods from Cowan & Binkle, valued at upwards of $13,000.
(k) Eleven principal suits against Cowan & Binkle and eleven garnishee suits against plaintiff as trustee, four of which suits were pending in justice’s court in Sanilac county (and the court in its return states that the number will reach 20).
(i) Four suits by firms who had sent to Cowan & Binkle merchandise on consignment, their claims being that they were conditional sales or sold on contract, reserving the title thereto, etc.
(j) The present bill also prays for an accounting between Henry Binkle and the Harbor Beach State-Bank.
Upon filing the present bill an order to show cause why the prayer of the bill in reference to consolidation should not be granted was served on all of the interested parties. A hearing followed and an order passed staying further proceedings in the cases and ordering a consolidation of all the causes into one.
Adam Cowan of Cowan & Binkle, the owners of the stock of goods replevied, then applied to this court for a writ of certiorari to review these orders made by the court. The same was granted and Cowan, by his attorney, is here contending that the orders made by the court are invalid. The first point raised by appellant is that the joining of law cases and chancery cases is forbidden by the statute and cites section 12309, 3 Comp. Laws 1915, which reads as follows:
“The plaintiff may join in one action, at law or in equity, as many causes of' action as he may have against the defendant, but legal and equitable causes of action shall not be joined; but when there is more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant, the liability must be one asserted against all of the .material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice, or when several suits shall be commenced against joint and several debtors, in the same court, the- plaintiff may, in any stage of the proceedings, consolidate them into one action. If it appear that any such causes of action cannot be conveniently disposed of together, the court may order separate trials, or whenever several suits shall be pending in the same court, by the same plaintiff against the same defendant, for causes of action which may be joined, the court in which the same shall be prosecuted may, in its discretion, order the several suits to be consolidated into one action.”
It is argued that this section is an inhibition against consolidating law and chancery cases in one suit, and we think the point is well taken. That right was a doubtful one under the common law. 8 Cyc. p. 599; McGraw v. Dole, 63 Mich. 1. This statute is very plain that parties may not join in one action actions at law and in equity, arid the language which immediately follows this inhibition says: “but legal and equitable causes may not be joined.” This language appears to be binding on the courts as well as on the parties. It is hardly reasonable to say that the section forbids parties to join such actions but permits courts to do so. Plaintiff’s counsel argues that the statute does not limit the inherent power of the court to order a consolidation of cases. It is said in plaintiff’s brief that:
“That statute does not alter, curtail nor limit the inherent power of a court of equity to order united and consolidated sundry suits and proceedings separately commenced and to restrain their separate con- duet, in a proper case, such as the one now before the court.
“The inherent right of a court of equity to assume jurisdiction for the purpose of preventing a multiplicity of suits, or of assuming júrisdietion where distinct equities appear, such as the reformation of the instruments, and the control of trusts, is not altered by this statute.”
This is not a very persuasive argument in the face of a plain provision of the statute. • In view of the fact that the authority of the court to order such consolidations was so doubtful at common law we are persuaded that the inhibition of the statute was intended to bind the court as well as the parties. But considering the bill and its purpose aside from the statute and from a common-law aspect, we think the power of the court to order a consolidation of such a large number of incompatible causes is very doubtful. In discussing the rule surrounding the consolidation of causes Cyc. makes the following observations:
_ “In equity the conditions authorizing" consolidation differ from those which will warrant a union of actions at law. The important inquiry is in respect to the identity or substantial identity of the subject-matter involved or the object sought to be attained, and the aim is to bring in all the parties in interest and consolidate suits without special regard to the identity of parties. This a court of equity can do, because of its power to make appropriate orders or decrees, according to each party exact justice. But as a rule consolidation will not be ordered in equity where the subject-matter is not the same although the parties are identical; nor where the subject-matter as well as the parties are different, the questions presented are confused, or conflicting objects are sought to be accomplished. Under certain circumstances, however, and when feasible, the court may consolidate cases having different parties and involving different rights.
“Although there are exceptions to it, it is the general rule that except by consent of the parties, actions at law and suits in equity cannot be consolidated.” 8 Cyc. p. 597.
See valuable note on consolidation of causes, 58 Am. Dec. 508.
The order made by the circuit court consolidates chancery causes pending in Sanilac and Huron counties with law cases in Sanilac county, and adds thereto about 20 garnishee cases pending in Sanilac county, four or five of which are in justice’s court. The chancery cases are independent suits and the outcome depends upon the representations made in each particular case. The testimony in Daisy Binkle’s case will not be helpful in reaching a conclusion in the other chancery cases and there is nothing in common between the plaintiffs in those cases nor in the subject-matter of the suits. All the bills are filed with reference to different pieces of property. There appears to be no foundation for joining these cases with the replevin .case. One is a law case and is a matter for the jury. The other is a chancery case and must be disposed of by the chancellor. The evidence in the chancery cases will not assist in determining the issue in the replevin case, nor vice versa. The issues are different and the parties are different. If the issues in the chancery cases and replevin case should be decided adversely to the plaintiff’s contention it would contribute very little to the settlement of the issues in the garnishee cases. The issues in the garnishee cases and the parties are dissimilar to those in the other cases and the issues in the cases wherein goods were left with Cowan and Binkle on consignment, or upon contract, are foreign to the issues in any of the other cases, as are also the principal suits in the garnishee cases, and the testimony in the garnishee cases has no materiality to the questions arising upon the accounting between Binkle and the bank. But counsel say the consolidation will prevent a multi plicity of suits. Whether the court disposes of the cases singly or in consolidation he will be obliged to take proofs in each case as each case stands on its own particular facts.
By reason of the character of the litigation no time or suits will be saved by the consolidation. It will result in confusion, dissatisfaction and possibly injustice. None of the conditions are present which would ordinarily authorize a consolidation of cases under the common law. Besides, we are satisfied the consolidation is in violation of the statute quoted. For these reasons we are moved' to set aside the order of consolidation and injunction. The bill will not be dismissed, as an accounting is prayed for between the bank and Binkle. Those who appeared and opposed the order of consolidation will recover costs in both courts.
Fellows, C. J., and Wiest, McDonald, Sharpe, and Steere, JJ., concurred. Clark and Moore, JJ., did not sit. | [
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Clark, J.
Defendant’s railroad crosses plaintiff’s farm in Marilla township, Manistee county. On June 11, 1921, fire destroyed his buildings and some other property. Claiming that the fire had been set by a locomotive and that defendant was negligent, he brought suit and had verdict and judgment in the sum of $995.73. Defendant on error presents several questions, the important one being that the verdict is against the great weight of the evidence. Plaintiff’s testimony is summarized by counsel:
“The plaintiff testified that on June 11,1921, he had been to Mesick in the forenoon, returning home about 1 or 1:10 o’clock p. m.; that he put his horses in the barn, unharnessed them, one got away and ran down within 20 rods of the mill; that he went after and caught this colt and took particular pains to see if there were any fires and that there was no fire there at the time, nor anywhere in that locality; that within 5 minutes of observing that there was no fire, he saw the freight train going west, and about 5 minutes after the freight passed him, or within 10 minutes after he noticed that there was no fire, he discovered fire; that the freight in question passed his house some time about 1:30 p. m., going about 25 miles per hour, exhausting heavily, laboring and working hard; that the mill was about 60 or 70 rods from his house; that when hi first discovered the fire, the freight had passed him, going west, had passed the mill and was ascending the steep grade to the west, being about one-half mile west of the mill; that immediately upon his seeing the fire after the train had passed the mill, he procured a shovel and ran to the fire; that when he reached the fire, it was burning in 4 or 5 places right along in a row, probably from 10 to 20 feet apart on the south side of the track on the same side as the mill. These fires were each about 10 feet across, 70 feet from the track, spreading very rapidly, sparks blowing all over. The wind was blowing hard from the west and the track run southwest. Within 15 minutes the fire had spread over 10 or 15 acres, to the mill first, later to the wood, posts, timber, wheat and house. The weather was dry.”
Plaintiff’s son testified that he was working in a field about 160 rods from the place of the fire, that he discovered it soon after 1:30 o’clock that afternoon, that he at once went to the fire, that there were then several fires along the railroad, that before that there had been no fire in that vicinity, and that a train had gone through there immediately before the fire. Another witness said that there was no fire in that vicinity at 1 o’clock that day; that he later observed the fire in question and went to it about 1:30 p. m. The section foreman testified that the locomotive in question had been setting other fires; that several times just before the fire in question “Fires broke out shortly after she went by.”
Four days after the fire the district forest fire warden examined the front end of the locomotive in question. He found, as he says, holes or breaks in the plates, and an opening in or about the screen and that some of the holes were large enough to admit his fingers, and that the breaks had the appearance of being old.
Plaintiff’s farm was about 6 miles from Glengary station. Beside the train in question, two other trains passed that day, one east bound due at Glengary at 10:38 a. m. and one west bound leaving Glengary at 4:40 p. m. Defendant had testimony that the train in question left Glengary at 1:50 p. m., that the dispatcher’s sheet so showed, that it did not reach plaintiff’s farm until just after 2 o’clock, that the locomotive in question was in good repair, and that its plates and screen were not defective. The engineer and fireman testified that there was a fire burning near the place in question when they passed that day and that they gave notice thereof by a card thrown from the engine to section men near Marilla station, but plaintiff insists that they but gave notice of a fire set by their engine, for the fireman testified on cross-examination:
“Q. You remember that card better, because it was the fire that you set that burned this mill down; that is right, isn’t it?
“A. Yes, sir.”
Defendant argues that this was a mere mistake of the fireman in testifying. The evidence adduced by defendant of the time of the passing of the train did not establish that the fire was not set by the locomotive in question. Plaintiff and his witnesses did not attempt to state the time exactly. They gave an estimate, an approximation. But there was positive testimony that the fire followed the passing of the locomotive. It cannot be said that the evidence in plaintiff’s behalf did not make a question for the jury respecting defendant’s negligence. Stoddard v. Railway Co., 191 Mich. 321; Maier v. Railway Co., 219 Mich. 679; Jones v. Railroad Co., 59 Mich 437; Michigan Mutual Home Ins. Co. v. Railway Co., 193 Mich. 431; Pennsylvania Fire Ins. Co. v. Railroad Co., 184 Mich. 375. We think the trial court was clearly right in refusing to hold the verdict to be against the great weight of the evidence.
The charge is criticized. Taken as a whole it submitted fairly the case to the jury. Error is assigned upon rulings admitting evidence, and upon the argument of plaintiff’s counsel. The assignments are without merit. No prejudicial error is found.
Judgment affirmed.
Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere,' JJ., concurred. Moore, J., did not sit. | [
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Fellows, C. J.
(after stating the facts). We shall consider the single question of whether the court should have directed a verdict sustaining the will. The question is concededly an open, one in this jurisdiction. The case has been well briefed. An independent examination of the authorities in this country and in England discloses but few cases outside those cited by counsel which would assist the court in reaching a conclusion. Óur statute relative to the execution of wills (3 Comp. Laws 1915, § 11821) follows the early English statute -of Charles II (29 Car. II, chap. 8, § 5). Four years after the enactment of the English statute and in 1680 it received judicial construction in Lemayne v. Stanley, 3 Lev. 1 (83 Eng. Reprint 545). In that case one Stanley wrote his own will beginning, “In the name of God, Amen, I John Stanley, make this my last will and testament.” He did not subscribe his name to the will. The question before the court was whether this was a sufficient “signing” under the English statute. The will was sustained,
“* * * for being written by himself, and his name in the will, it is a sufficient signing within the statute, which does, not appoint where the will shall be signed, in the top, bottom, or margin, and therefore a signing in any part is sufficient.”
It is doubtless true that some courts in this country as well as the English courts have chafed under the holding of this early case; but it was followed in England until parliament changed the statute by 1 Vic. chap. 26, § 9, which required that the' will “shall be signed at the foot or end thereof.” This statute proved unsatisfactory and was further amended by 15 and 16 Victoria, chap. 24, § 1, which makes wills valid,
“* * * jf the signature shall be so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will” (followed by other provisions quite materially affecting the act passed in the first year of the reign of Victoria).
The early English statute of Charles II enacted in 1676 as a part of the statute of frauds was followed not only in this State but in a large number of the States of the Union. Some of the States have changed their original statutes by amendment. We are persuaded that the tendency of the courts of those States which have left their statutes unimpaired by amendment is to follow the early English case of Lemayne v. Stanley, supra. That case placed a construction on the statute long before it was adopted in this country and we took the statute impressed with that construction. We shall not discuss all the cases cited. Some of them, however, will be discussed. All of them have been examined.
Meads v. Earle, 205 Mass. 553 (91 N. E. 916, 29 L. R. A. [N. S.] 63), is quite similar to the instant case. The will there involved was that of Sarah J. Armstrong. She was about to sail for Italy and procured a blank which she filled out, writing her own name at the beginning and in the attestation clause. She did not sign on the line provided in the blank; for her signature. She requested the witnesses to sign as witnesses and there was evidence of publication. If was held that there was a sufficient signing, citing Lemayne v. Stanley, supra.
The Vermont court in Adams v. Field, 21 Vt. 256, had a very similar question before it. The will in that case commenced:
“I, Samuel Adams of Westhaven, etc., do hereby make this last will and testament.”
It was in the handwriting of the testator but was not signed at the end. There was an attestation clause purporting to be signed by the requisite number of witnesses. The trial judge had submitted the case to the jury who had sustained the will. It was held that the will was properly signed and it was there said:
“If the will, as the jury must have found in this case, was attested by three witnesses in the presence of the testator and in the presence of one another, and published by the testator in their presence, as his last will and testament, it was to all intents and purposes an adoption of such a signature, as was then affixed to the will; and if the will then had such a signature, as could be held sufficient under the statute, nothing farther need be done. The will then becomes complete, and possesses all the finality which can be required. It is the same thing, in effect, as if the signature had been originally made animo sdgnamdi.”
Attention may be called to the fact that the Vermont case was sent to the jury but the statement of facts shows that the testimony of the subscribing witnesses was in direct conflict, two of them denying their signatures and the execution of the will as testified by the other one. Manifestly these disputed facts took the case to the jury.
In Armstrong’s Ex’r v. Armstrong’s Heirs, 29 Ala. 538, the will had been written by another at Armstrong’s direction and although published by him was not signed at the end. The State had followed the statute of Charles II. In considering the second requisite of the statute, i. e., that it be signed by the testator or by some person in his presence and by his direction, it was said:
“Section 1611 of the Code, so far as it relates to the second requisite, is a substantial transcript of that part of the 5th section of 29th Car. II, chap. 3, which related to the signing of the will; and therefore, the construction which had been put upon that part of the British statute, and settled as its true construction, by the British decisions before the adoption of our statute, ought to be regarded as the construction which our legislature intended to be put upon that part of our statute now under consideration. We shall adopt and follow that construction.”
And again the early case of Lemayne v. Stanley, supra, was relied upon. To the same effect see Ex parte Cardozo, 135 Md. 407 (109 Atl. 93); Peace v. Edwards, 170 N. C. 64 (86 S. E. 807, Ann. Cas. 1918A, 778); Sarah Miles’ Will, 4 Dana (Ky.), 1; In re Phelan’s Estate, 82 N. J. Eq. 316 (87 Atl. 625); Armstrong v. Walton, 105 Miss. 337 (62 South. 173, 46 L. R. A. [N. S.] 552, Ann. Cas. 1916E, 137).
The language used in Re Booth, 127 N. Y. 109 (27 N. E. 826, 12 L. R. A. 452, 24 Am. St. Rep. 429), cited by contestant, and the holding of the court in that case militate against the doctrine announced in the cases considered and cited more strongly than any case we have examined unless it be the language and holding in Sears v. Sears, 77 Ohio St. 104 (82 N. E. 1067, 17 L. R. A. [N. S.] 353, 11 Ann. Cas. 1008). But an examination of the statutes of these States shows a legislative policy to require more than the statute of Charles II required for the due execution of a will. The statutes of both States require that the signature shall be at the end (Rev. Stat. of N. Y., pt. 2, chap. 6, tit. 1, art. 3, § 40; 3 General Code of Ohio, § 10505). That the New York court-had gone fully as far as it felt it should in the way of strict construction is evidenced by language used by that court in Re Field, 204 N. Y. 448 (97 N. E. 881, 39 L. R. A. [N. S.] 1060; Ann. Cas. 1913C, 842), where it was -said:
“The evil of fraudulent changes in wills is rare,, while the evil of defeating wills altogether in the manner suggested is common. Hence,' we think we have gone far enough in the direction of rigid construction and that the doctrine of certain authorities should not be extended, lest in the effort to prevent wrong we do more harm than good.”
The legislative policy of California is the same as that of New York and Ohio and requires that wills other than holographic wills be subscribed at the end (Kerr’s Civil Code 1920, § 1276). In Re Manchester’s Estate, 174 Cal. 417 (163 Pac. 358, L. R. A. 1917D, 629, Ann. Cas. 1918B, 227), cited by contestants, the will was a holographic will (as to holographic will, see section 1277 of the • California Civil Code). Upon the whole the case sustains contestant’s claim. An examination of the Virginia cases discloses that although that State had followed the statute of Charles II, there-was a disinclination on the part of the court of appeals of that State to follow the construction placed upon it in the case of Lemayne v. Stanley, supra. The case of Waller v. Waller, 1 Grat. (Va.) 454 (42 Am. Dec. 564), was decided in 1845. It involved an unattested holographic will. The opinion of Justice Allen which was not concurred in by the full bench is an exhaustive one. In 1849 the legislature amended the statute (2 Code of Va. 1919, § 5229), and in Ramsey v. Ramsey's Ex’r, 13 Grat. (Va.) 664 (70 Am. Dec. 438), a case of another unattested holographic will, the court fully reviewed thé Waller Case and held that the amendment had enacted the rule announced by Justice Allen in that case and had furnished a rule for the admission of wills in the future. In Roy v. Roy’s Ex’r, 16 Grat. (Va.) 418 (84 Am. Dec. 696), another unattested holographic will was before the court. In Murguiondo v. Nowlan, 115 Va. 160 (78 S. E. 600), the fact that the Waller Case involved an unattested will was commented upon and speaking of that case it was said:
“It would seem, therefore, from the opinion of Judge Allen, that the main fact of the connection of the testator with the instrument may be established, not only by the signature of the testator in the presence of subscribing witnesses, but by the mere acknowledgment in their presence of his signature; that such proof has been deemed sufficient in all the later cases; and that the finality of an attested will is established by attestation and publication; for, to repeat a pregnant sentence in the opinion of Judge A-líen, ‘no man publishes an instrument as his last will and testament, and calls on witnesses to attest the fact, until he has completed the act. The attestation must be annexed or subscribed to a complete instrument, and to which, when so subscribed, no additions can be made.’ ”
In Dinning v. Dinning, 102 Va. 467 (46 S. E. 473), the will was holographic, concluding with these words:
“I, William Dinning, say this is my last will and testament.”
This was held to be a good signing.
Catlett v. Catlett, 55 Mo. 330, tends to sustain contestant’s counsel but Kolowski v. Fausz, 103 Ill. App. 528, on the whole does not. 40 Cyc. p. 1104, cited by both parties, has this to say:
“Where the statute relating to . signing requires no more than the statute of frauds — merely that the will shall be in writing and be signed, it is immaterial where the testator’s signature was placed, if it was placed there with the intention of authenticating the instrument. It is essential, however, that the signa ture, whatever its local position, must have been made with the design of authenticating the instrument and that he should have contemplated no further signing.”
We conclude, therefore, that under our statute the testator need not sign the will at the end in order to constitute a valid signing.
In the briefs and upon the argument proponent’s counsel stressed the word “adopt” found in the authorities in connection with a signature not at the end of the will, while contestant’s counsel stressed the word “intent” used in the same connection. We do not think we would go far awry if both words were used. Under the weight of authority a will is properly signed if there is an intent on the part of the testator to adopt his name as written by him at the beginning of the will or in the attestation clause as his signature to the will. This fairly states the holdings of the courts of last resort in those States which have followed the statutes of Charles II without amendment. It logically follows that publication of the will as the last will and testament of the testator, coupled with a request that the witnesses sign the attestation clause in which the testator has himself written his own name, establishes at least prima facie the intent to adopt such name so written as his signature to the will. Recurring again to the facts: the undisputed testimony established publication of the will, it established a request to the witnesses to sign the attestation clause which certified that the testator, Mr. Norris, had “signed the foregoing instrument in our presence, and declared it to be his last will and testament.” This established the due execution of this will and, unless the case so made by the proponent is met, required the direction of a verdict sustaining the will.
Has the case made by the proponent been met by anything appearing in this record requiring or authorizing its submission to the jury? We think not. What we have already said disposes of the fact that Mr. Norris did not write his name again on the dotted line. This, as we have seen, presented a question of law for the court. But contestant’s counsel urge that the will was signed in the presence of friends of Mrs. Stone and was left with her, and counsel insist that they had the right to argue to the jury and to this court that Mr. Norris was but deceiving the woman he was engaged to marry. Doubtless such argument was made to the jury and accepted by them, as they disallowed the will. But there is not a scintilla of evidence to sustain it. It doubtless appealed to the jury, sometimes prone to disallow wills, but without evidential support it cannot appeal to our legal, judgment. It is passing strange that children are willing to blacken the memory of their parents when their property interests are involved. It is their legal right so to do if they produce evidence of their parents’ short-comings. But the record in the instant casé justifies no such attack. So far as this record discloses Mr. Norris was an honorable and honest man. He was engaged to Mrs. Stone, who, as disclosed by this record, was a refined, educated woman, earning her living in helping to care for the unfortunate wards of the State. Mr. Norris was not in good health. He was going away. He had an affection for the woman he was to marry. He was doubtless fond of his daughter; he lived with her. He divided his belongings between the two. women he cared for; his intended wife and his daughter. Why he should deceive or attempt to deceive Mrs. Stone is not pointed out by counsel, and we fail to discover any reason upon this record. Fraud, deceit, dishonesty are never presumed; they must be proven. There is a total want of evidence or any circumstances justifying a legitimate inference that Mr. Norris desired to deceive Mrs. Stone or what profit it would be to him if he did de ceive her. The court should have directed a verdict sustaining the will.
The case will be reversed with a new trial and with costs of this court to appellant.
Wiest, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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McDonald, J.
This bill is filed under section 12897, 3 Comp. Laws 1915, to determine the rights and equities of a judgment debtor in lands sold to satisfy an execution. On the 4th day of December, 1916, Alfred F. Wilcox recovered a judgment on a note against defendant Jasper Winstanley in the sum of $645.56 damages and costs. On the 15th of May, 1913, Mary M. Wilcox sold and conveyed a vacant lot in the city of Detroit to Jasper Winstanley and Elizabeth J. Winstanley, his wife, as joint tenants. To satisfy the execution issued on his judgment against Jasper Winstanley, Mr. Wilcox levied on this property on the 6th day of December, 1916. No further action was taken until March 27, 1919, when, without the consent of Mr. Wilcox and without payment or satisfaction, the sheriff released the levy for the reason, as stated in the release, that Jasper Winstanley had no interest in the land levied upon subject to execution.
The conveyance from Mary L. Wilcox of the lot in question was to “Jasper Winstanley and Elizabeth J. Winstanley, his wife, as joint tenants.” It is claimed by the plaintiff that this deed did not create an estate in entirety, but one in joint tenancy only, and that Jasper Winstanley was the owner of a half interest in the property, which was subject to levy and sale on execution. After the Winstanleys bought the lot they built a dwelling on it and made it their homestead until November 17, 1918, when they sold it to William H. Gibb and Sydnie E. Gibb, his wife, who, it is claimed, paid part of the consideration after the release by the sheriff and in reliance thereon. Disregarding the release, plaintiff sold the land under his execution levy on November 29, 1919. Later he filed this bill to have a determination of Jasper Winstanley’s interest. On the hearing the circuit judge dismissed the bill. Plaintiff appeals. ■ '
The following questions are involved:
(1) Did Winstanley and wife under the deed given by Mrs. Wilcox take an estate in entirety or one of joint tenancy?
(2) Could a valid sale be made after release of the levy by the sheriff?
(3) Was the bill of complaint filed too late?
(4) Was the sale void because made in violation of the statutes relating to homestead rights?
Did the deed from Mrs. Wilcox convey to Jasper Winstanley and wife an estate in entirety or in joint tenancy? At common law a conveyance to husband and wife gave to them a tenancy by entirety. 1 Cooley’s Blackstone, bk. 2, p. 181. This common-law tenancy has been abolished in many States, but still exists in Michigan. Fisher v. Provin, 25 Mich. 347; Manwaring v. Powell, 40 Mich. 371; Jacobs v. Miller, 50 Mich. 119.
In re Appeal of Nellie Lewis, 85 Mich. 340 (24 Am. St. Rep. 94), overruled Dowling v. Salliotte, 83 Mich. 131, in which it was held that estates in .entirety were abolished by statute in this State. Some courts have held that under the common law a husband and wife could not receive and hold an estate except by entirety. The better authority, however, is that they could hold as joint tenants or tenants in common if sufficiently described as such in the deed. 21 Cyc. p. 1198, and cases cited.
“At common law a husband and wife are tenants by entirety, unless the conveyance to them indicates an intention to create a different estate. This remains the law in those States where it has not been changed by statute.” 2 Jones Law of Real Property in Conveyancing, § 1792.
See, also, Hopkins Real Property, § 212, p. 337; 2 Rice Modern Law of Real Property, § 442; citing, Miner v. Brown, 133 N. Y. 308 (31 N. E. 24).
In this State, where the common-law rule is unchanged by statute, a conveyance to husband and wife conveys an estate in entirety, but may create one in joint tenancy or in common, if explicitly so stated in the deed. The question then in the case under consideration is the construction to be placed on the language of the deed to “Jasper Winstanley and wife as joint tenants.” To “Jasper Winstanley and wife” conveys an estate by the entirety. The explanatory words, “as joint tenants,” would of themselves be sufficient to indicate that an estate in joint tenancy was intended to be conveyed were it riot for the fact that an estate by the entirety is a species of joint tenancy and is commonly included in that class. We have held that a grant to a husband and wife jointly conveyed an estate in entirety. The same word “jointly” used in a conveyance to grantees not husband and wife conveys an estate in joint tenancy. So, too, the words “joint tenants,” when coupled with “husband and wife,” do not bear the ordinary meaning, for an estate by the entirety is a joint tenancy. It is an estate in joint tenancy plus the unity of the marital relation. At common law and in our statutes, estates by the entirety are regarded as a modified form of joint tenancy. In California, where estates in entirety are not recognized, it was said in Swan v. Walden, 156 Cal. 195 (103 Pac. 931, 20 Ann. Cas. 194, 134 Am. St. Rep. 118):
“This tenancy was a modification of the joint tenancy and arose where an estate was conveyed to a husband and wife under circumstances which would have created simply a joint tenancy if the conveyance had been made to any two people other than a husband and a wife. The estate was still, at common law, a joint tenancy, but because of the disabilities of the wife, the common law regarding the husband and wife as one, by construction the courts erected a modification of the tenancy.”
“This tenancy by entireties is essentially a joint tenancy, modified by the common-law doctrine that the husband and wife are one person.” Pray v. Stebbins, 141 Mass. 219 (4 N. E. 824, 55 Am. Rep. 462).
Our statute following the common-law idea treats estates by entirety as included in joint tenancies.
“Estates, in respect to the number and connection of their owners, are divided into estates in severalty, in joint tenancy, and in common; the nature and prop-, erties of which, respectively, shall continue to be such as are now established by law, except so far as the same may be modified by the provisions of this chapter.” 8 Comp. Laws 1915, § 11561.
Because estates by entirety come within the class referred to as joint tenancy, we have held that this statute did not abolish such estates.
“In some of the decisions the terms ‘joint tenancy’ and ‘tenancy by entirety,’ are used interchangeably.” In re Appeal of Nellie Lewis, supra.
In view of the fact that estates by entirety are a modified form of joint tenancy, that the terms are sometimes used interchangeably, and that our statute treats them as a species of joint tenancy, it is my judgment that the words “as joint tenants,” coupled with husband and wife in a conveyance to husband and wife, are not sufficient to indicate that an estate in joint tenancy was intended to be conveyed. To create an estate in joint tenancy in a conveyance to a husband and wife, the words used must be sufficiently clear to negative the common-law presumption that an estate: by entirety was intended. Estates in joint tenancy are not favored. Since the enactment of our statutes, all presumptions are against them. See 3 Comp. Laws 1915, §§ 11562, 11563. We think it must be held under the circumstances of this case, that the deed to “Jasper Winstanley and wife as joint tenants,” conveyed an estate by the entirety. In harmony with this conclusion is Hoag v. Hoag, 213 Mass. 50 (99 N. E. 521, Ann. Cas. 1913E, 886). As supporting a different view see Thornburg v. Wiggins, 135 Ind. 178 (34 N. E. 999, 22 L. R. A. 42, 41 Am. St. Rep. 422), and 2 Jones on Law of Real Property in Conveyancing, § 1795.
As the question here disposed of is controlling it is not necessary to discuss others presented by the record.
The decree of the circuit judge is affirmed, with costs to the defendants.
Fellows, C. J., and Bird, Sharpe, and Steere, JJ., concurred. Wiest and Clark, JJ., concurred in the result. Moore, J., did not sit. | [
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McDonald, J.
The plaintiff’s bill is filed against the defendant as beneficiary under a policy of insurance on the life of one August Schwartz for the purpose of having the policy canceled and of restraining the defendant from instituting proceedings to enforce payment under it. It is the theory of the bill that in the application for insurance the insured made material, representations which were false and fraudulent, but which were relied on by the company, and that therefore the policy is void and should be so declared; that in the application he falsely represented that he was in good health, that he had never been afflicted with severe headaches, dizziness, palpitation of the heart, heart disease of other kinds, dropsy, chronic cough, shortness of breath, indigestion, jaundice or rheumatism; that he falsely represented that he had not been treated by any physician, except Doctor Eaton, for the last five years previous to the making of the application. On the hearing the circuit judge dismissed the plaintiff’s bill and upon a cross-bill decreed that the defendant recover the full amount of the policy. From the decree entered the plaintiff has appealed.
The question involved is whether the statements in the application were false, and if false were they made with fraudulent intent, or, if not with such intent, ■whether they materially affected the acceptance of the risk or the hazard assumed.
Act No. 256, Pub. Acts 1917, pt. 3, chap. 2, § 17 (Comp. Laws Supp. 1922, § 9100 [161]), relating to life and accident insurance policies, reads-as follows:
“The falsity of any statement in the application for any policy covered by this chapter shall not bar the right to recovery thereunder unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.”
It was the theory of the bill that the statements made in the applications were false and were made with actual intent to deceive. If the testimony supports the claim that prior to the making of the application the insured was afflicted with all or any of the serious ailments enumerated in the bill, and which he did not disclose to the plaintiff, it goes without saying that there can be no recovery under this policy. The issue presented is one of fact.
The policy was issued October 16, 1920. The insured died at University hospital in Ann Arbor on the 10th of May, 1921, of chronic valvular disease of the heart. At the time the policy was issued the insured was 47 years of age. He had resided in Pellston, Michigan, with his family for 18 years. Part of that time he was a carpenter and a millwright, but at the time he made application for the policy he was a manufacturer of potash, a business in which he had been engaged for 12 years.
Witnesses, whose testimony we see no reason to discredit, testify that in the m'aking of potash he performed labor which could only be performed by a man of good health. He carried large buckets of ashes, handled heavy barrels of potash, and was constantly engaged in work of such a character as to test his strength and power of endurance. In the fall he was accustomed to go hunting. Witnesses say that on these occasions he made long tramps with them, carried heavy loads and did the same work performed by the other men without any apparent physical discomfort. That in the season of 1918 he shot a deer weighing about 170 pounds and dragged it by hand into camp, a distance of half a mile. That he was regarded as a “cast iron man,” “the bull of the woods.” That if he could not shoot a rabbit he tried to run it down, and that when exerting himself in this way he did not show any shortness of breath or physical weariness other than was natural for a man of normal health. There was much testimony of this character from neighbors and business men of Pellston, who apparently were without interest in the case.
At Douglas Lake, close by Pellston, there is maintained during the summer an engineering camp of the University of Michigan. Doctor C. B. Stouffer was medical superintendent of the camp. He knew Schwartz during the summers of 1914, 1915 and 1917. He testifies that Schwartz was of robust physical condition ; that he saw him lift heavy trunks and do other work about the camp without injurious effect or shortness of* breath. Professor Wisler, a teacher in the engineering department of the University of Michigan, attended the camp and knew Schwartz during the summers of 1913, 1914, 1916 and 1919. He saw him do heavy work and had the same impression of his physical condition as had Doctor Stouffer. Doctor Tiffany, a medical examiner for the plaintiff company, made a physical examination of the insured at the time of the issuance of the policy. He was sent to Pellston by the company for that purpose. In his examination he found no evidence of any of the diseases with which it is charged the insured was afflicted. If he had any organic disease it was not apparent at that time. Doctor Tiffany also testified that he had formerly lived in Pellston and knew Schwartz, and that his impression of him was that he was a man able to perform and endure the hardest kind of manual labor. In view of the doctors’ testimony and the physical activities of Mr. Schwartz during the years immediately preceding the application for insurance, it is quite improbable that he could have been afflicted with all or any of the diseases enumerated in the bill of complaint. To a man of average intelligence, it would seem physically impossible that one could live and actively engage in heavy work while having all of these diseases which plaintiff claims this man had.
It is a fact, however, that within eight months of the time of the issuance of the policy the insured died of valvular disease of the heart. In the absence of any intervening cause it would seem that he must have had that disease or some symptoms of it at the time he made the application. The testimony furnishes a very reasonable explanation for the presence of the disease, which resulted in his death. In 1920 he had a severe attack of the “flu” for which he was treated by Doctor Eaton, a fact made known to the plaintiff in the application. Following this in January, 1921, his potash plant burned. It is claimed that he ran from his home to the fire and worked hard unde'r tremendous pressure from noon until 6 o’clock endeavoring to save the property, which was not insured. He returned home and from that time showed all the symptoms of the disease which caused his death a few months later. It was the theory of the defendant based on the judgment of some of the medical experts, that this condition was brought about by the combined effects of the influenza and the mental anxiety and physical exertion at the time of the fire. This theory of the origin of the heart trouble is borne out by the fact that Doctor Tiffany, who examined him a few months before the fire, found his heart normal, and that Doctor Eaton, who examined him shortly after the fire, discovered the valvular trouble.
We have carefully read this rather voluminous record and have given the plaintiff credit for all of the testimony tending to support its theory of the case. Passing the question as to the competency of a large part of the testimony of the doctors at the hospital and of Doctor Moorman, who treated the insured professionally, we are convinced, as was the circuit judge, that in making his application Mr. Schwartz made no statements with actual intent to deceive, and that prior to the issuance of the policy he was not afflicted with any such serious ailments as to materially affect the acceptance of the risk or the hazard assumed.
Objection is made to that provision of the decree awarding $100 a day for two days’ attendance for each of the medical experts sworn by the defendant. Since the enactment of Act No. 404 of the Public Acts of 1919 (Comp. Laws Supp. 1922, § 12557), such fees are permitted to be taxed by the prevailing party. We see no occasion, however, for the actual presence of these witnesses at the trial for a longer period than one day. We think the amount awarded by the circuit judge is excessive, and that a reasonable allowance would be $50 a day each for one day’s attendance. .
As to the fees awarded to the two witnesses the decree should be modified. In all other respects it is affirmed, with costs to the defendant.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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Per Curiam.
Plaintiff sought workers’ compensation benefits from her employer, the Michigan Department of Social Services. She claimed that she was injured in a fall at work on June 15, 1976. Following a hearing held December 23, 1978, the hearing referee determined that plaintiff did not prove that her injuries were work-related or that they were disabling. On June 26, 1981, the Workers’ Compensation Appeal Board (WCAB) reversed the hearing referee’s determination. The WCAB entered an open award of $100.12 per week from June 16, 1976.
A workers’ compensation benefits claimant must prove entitlement to compensation by a preponderance of the evidence. Aquilina v General Motors Corp, 403 Mich 206, 210-211; 267 NW2d 923 (1978).
MCL 418.831; MSA 17.237(831) provides:
"Neither the payment of compensation or the accepting of the same by the employee or his dependents shall be considered as a determination of the rights of the parties under this act.”
In the present case, defendant began paying benefits retroactively to June 16, 1976, the day after plaintiff suffered her first injury. Payments were discontinued on September 30, 1976, the day plaintiff returned to work. On June 1, 1977, plaintiff petitioned for compensation, claiming a continuing disability. The hearing referee found that plain tiff’s conditions were not related to her employment or disabling.
The WCAB, however, determined that the hearing referee incorrectly required plaintiff to carry the burden of proof, stating:
"the record indicated defendant paid plaintiff benefits for a period of 15 weeks and one day. We hasten to note that MCL 418.831[MSA 17.237(831)] provides that voluntary payment of compensation does not determine liability, however, when defendant stipulated, at trial, that the injury occurred and some disability resulted, the burden of proof in this case shifted from plaintiff to defendant.”
Because the WCAB impermissibly shifted the burden of proof to defendant, we reverse.
At the opening of the hearing before the hearing referee, the following exchange took place:
"The Court: Stipulations. Can we agree both employer and employee were subject to the compensation law?
"Mr. Nelson [defendant’s counsel]: Yes.
"The Court: With reference to the June 15, '76 date?
"Mr. Edwards [plaintiff’s counsel]: Yes, your Honor.
"The Court: With reference to the 1977 date?
"Mr. Edwards: Yes.
"The Court: That Michigan State Accident Fund was the insurance carrier?
"Mr. Nelson: Yes.
"The Court: That the employee was in the employ of the respondent at the time the personal injury occurred?
"Mr. Nelson: Your Honor, the answer is yes. There is a dispute of disability subject to the time compensation was stopped.
"The Court: We can agree then there is only one issue, that would be the issue of disability?
"Mr. Edwards: Yes.”
This dispute shows that defendant only stipulated that a work-related injury occurred. Defendant’s attorney did state that the dispute was over whether a disability existed at the time payments were stopped. Defendant’s counsel also agreed with the hearing referee’s statement that disability, and presumably all disability, was in dispute. We find that the premise for the WCAB’s conclusion that an admission of disability shifts the burden of proof simply does not exist. Defendant’s failure to seek recovery of benefits already paid cannot be construed to be a stipulation that plaintiff was previously disabled. A contrary conclusion can be reached only if defendant’s voluntary payment of benefits to plaintiff is improperly treated as a determination of liability.
Regardless of the existence of any stipulation in the present case, we fail to see the WCAB’s logic in shifting the burden of proof to defendant once a work-related injury and disability had been shown. In Aquilina, supra, the Supreme Court stated that the plaintiff has the burden of proving a continuing work-related disability when such a disability is alleged. The WCAB’s presumption of continuing disability once the disability is shown is directly contrary to Aquilina.
The WCAB’s authority for requiring the defendant to prove that the disability is not a continuing one is unconvincing. Hovey v General Construction Co, 233 Mich 531; 207 NW 852 (1926), Warner v Michigan Electric R Co, 248 Mich 60; 226 NW 887 (1929), Johnson v Pearson, 264 Mich 319; 249 NW 865 (1933), and White v Michigan Consolidated Gas Co, 352 Mich 201; 89 NW2d 439 (1958), are inapposite. These cases involve actions brought by the employer to stop payment of previously awarded compensation benefits. In each case, the employer was bringing the action, claiming that there was a change in circumstances regarding the claimant’s physical condition. Not surprisingly, the Courts stated that the employers had the burden of showing such a change. See, also, Ferns v Russ Graham Shell Service, 413 Mich 550; 321 NW2d 380 (1982).
The WCAB also cites Aalsburg v Cashion, 384 Mich 236; 180 NW2d 792 (1970), as authority for shifting the burden of proof. Aalsburg concerned a dispute over which riparian owner had title to the accreted lands of Silver Lake. To infer the intent of the grantor of the lands, the Court looked to topographical surveys, and stated:
" 'When things are once proved to have existed in a particular state, they are presumed to have continued in that state until the contrary is established by evidence, either direct or presumptive.’ ” Aalsburg, supra, p 243, quoting from 1 Jones, Blue Book of Evidence (1913 ed), p 284.
Apparently from this statement comes the WCAB rule that once a disability is shown it is presumed to continue. The obvious problem in applying Aalsburg to the instant case is that, unlike geographical conditions, disabilities do not automatically continue. The analogy is poor at best. In any event, by shifting the burden onto defendant to prove the lack of a continuing disability, the WCAB violated the rule of Aquilina. The plaintiff must bear the burden of showing that whatever disability exists continues.
Reversed. Remanded to the WCAB. | [
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Per Curiam.
The dispute herein arose out of a release of a right-of-way to appellants obtained from appellee Ruegsegger to enable appellants to proceed with a construction project involving the installation of a storm sewer and drain. Mr. Bacon, an employee of appellants’ engineering firm, Edmands Engineering, Inc., negotiated the agreement on behalf of appellants. After concluding the preliminary negotiations with appellee Ruegsegger and obtaining approval from appellants’ board, Mr. Bacon took the release to appellee Ruegsegger for completion. Prior to completion a footnote which is the primary subject of this dispute was added by appellee’s lawyer:
"* Party of the Second Part further agrees that the North eighty feet (80') of aforesaid described property shall be cleared of concrete rubble existing during construction of storm sewer on subject property.”
Mr. Bacon apparently approved the addition on behalf of appellants and appellee Ruegsegger completed the conveyance of the interests in land by executing said release. The release agreement provided for a consideration of the sum of $4,000 "and see footnote*”. Appellants did not remove all of the concrete rubble over the north 80 feet of appellee Ruegsegger’s property and it is for this reason that a dispute arose. It is disputed as to when appellants moved off the site although the record indicates the heavy construction equipment was not finally off appellee’s property until sometime in the summer of 1977. Appellee Ruegsegger filed a complaint seeking specific performance of the above-quoted provision in October of 1978. During the pendency of the cause below appellee 4-D Corporation purchased the business and property of appellee Ruegsegger. At the conclusion of trial the trial court entered an opinion and judgment requiring specific performance. Defendants appeal as of right.
Appellants first claim that the trial court lacked the discretion to grant specific performánce as the legal remedy of damages was complete, adequate, and practicable. We disagree. The equitable remedy of specific performance may be awarded where the legal remedy of damages is impracticable. Impracticability has been described as follows:
"Where, from some special and practical features or incidents of the contract inhering either in its subject-matter, or its terms, or in the relations of the parties, it is impossible to arrive at a legal measure of damages at all, or at least with any sufficient degree of certainty, so that no real compensation can be obtained by means of an action at law; or in other words, where damages are impracticable.” 4 Pomeroy, Equity Jurisprudence (5th ed), § 1401, p 1034.
We agree with the trial court that:
"Under the circumstances, one would be hard put, if damages were awarded, to determine whether damages should be awarded to plaintiff (appellee Ruegsegger) or to 4-D or both and if so, what part to each * * *.”
"While it might be possible to ascertain damages, it is at least questionable whether the damages could be ascertained without having the work actually performed.” (Emphasis added.)
We find the trial court had equitable jurisdiction to award specific performance of the contract as it would have been impracticable to award damages.
Lastly, appellants claim that, even if the trial court’s equitable jurisdiction was properly in place, specific performance was inappropriate in the instant case. Appellants set forth in their brief several reasons why they believe specific performance was inappropriate herein. These reasons will be addressed seriatim.
First, appellants contend the contract did not meet the equitable standard of fairness but was one-sided and the product of overreaching by ap pellee Ruegsegger. This contention is without merit. Having reviewed the record, we hold the trial court properly found that this "claim is clearly frivolous and there is absolutely no evidence in the record to support it”.
Second, appellants contend the contract was not free of surprise and would impose a hardship as well as be harsh on appellants. We disagree. It is clear that the existence of the contract was known to appellants and their agents. No rationale or reason has been set forth explaining why appellants now claim ignorance of its terms. Additionally, our review of the record reveals that the portion of the contract in dispute was brought to the attention of appellants and their agents by appellee Ruegsegger shortly after appellants had left the construction site. Yet, appellants and their agents have done nothing to honor the agreement they entered into. Under these circumstances, we find it is not harsh to require appellants to abide by said agreement. See Shelby Twp v Bloomstrand, 61 Mich App 443; 232 NW2d 736 (1975).
Third, appellants contend that appellees failed to mitigate their damages but instead increased the performance required of appellants. This contention is without merit. We have previously determined that the legal remedy of damages was inappropriate herein. Hence, a discussion of mitigation of damages is irrelevant. Moreover, we find any increase in performance was caused by appellants’ own delay in performing said contract.
Finally, appellants contend appellees should be estopped from enforcing the contract by application of the defense of laches. We disagree. Appellee Ruegsegger testified that, between the time that appellants left his property and the time of filing suit, he made repeated inquiries to agents of appellants and was assured that the clearing would be done. Appellants cannot establish Edmands Engineering and its employees as its agents to negotiate and to carry out the agreement and then, as a laches defense, hold appellee Ruegsegger responsible because said agents allegedly did not communicate with appellants concerning the agreement. When appellee Ruegsegger ultimately talked to appellants he was told they had no intention of clearing his property. At that point, appellee filed the lawsuit. Any prejudice to appellants resulted from their own inability to properly perform the contract. Schneider v Fox, 73 Mich App 595, 601; 252 NW2d 530 (1977).
Having reviewed the record and given due regard to the trial court’s ability to assess the credibility and demeanor of the witnesses, we hold the trial court’s findings in the instant case were not clearly erroneous. Schneider, supra; Miller v Magline, Inc, 76 Mich App 284, 293-294; 256 NW2d 761 (1977).
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R. L. Tahvonen, J.
Defendant appeals by leave granted an order of the Livingston County Circuit Court denying his motion to quash an information charging him with forgery, MCL 750.248; MSA 28.445.
Defendant was the nephew of Joseph C. Daly. On October 30, 1978, defendant signed his uncle’s name on a bank withdrawal slip and had all of the funds in his uncle’s savings account removed and transferred into a new account which, defendant opened using his uncle’s name. Defendant’s uncle died on November 4, 1978. On May 4, 1979, defendant signed his uncle’s name on a withdrawal slip and removed $12,263.75 from the new account.
After being bound over to circuit court on the charge of forgery, defendant moved to quash the information. This appeal followed the circuit court’s denial of that motion.
Forgery is defined as making a false document described in the statute, with intent to deceive, in a manner which exposes another to loss. People v Susalla, 392 Mich 387, 393; 220 NW2d 405 (1974).
Defendant claims that insufficient evidence was established to support a finding that a forgery took place on May 4, 1979. He contends that, if a forgery occurred, it occurred on October 30, 1978, when he removed the funds from his uncle’s former account. He claims that he merely opened the new account in a fictitious name and that, thereafter, when he removed the funds he was not committing a forgery.
In support of his contention, defendant relies on People v Hodgins, 85 Mich App 62; 270 NW2d 527 (1978). In Hodgins, supra, defendant opened a checking account with her own funds using a fictitious name. Thereafter, she wrote a check on the account in an amount exceeding her original deposit by $280. In ruling that defendant could not be charged with forgery, the Hodgins Court stated:
"One cannot conclude that the defendant in this case committed forgery as defined in Susalla. There may have been a litany of offenses committed, but not forgery. The check given by defendant did not purport to be anything other than a personal check drawn by the person who presented it on an account that that person had opened. The misrepresentation of identity to the bank in opening the account did not make the creation of a draft on that account a forgery when presented to pay for the television. See Rapp v State, 274 So 2d 18 (Fla App, 1973), Smith v State, 379 SW2d 326 (Tex Crim App, 1964).
"Simply stated, the writing itself was not a lie. Under MCL 440.3401; MSA 19.3401, only defendant would be liable on the instrument. This was confirmed by the testimony of the bank representative. The risk of loss to which the store was exposed was the result of the lack of funds in the account, not the manner in which the instrument was prepared.” Hodgins, supra, pp 65-66 (footnote omitted).
We find the present case to be distinguishable from Hodgins, supra.
Unlike the situation presented in Hodgins, supra, defendant did not open the account in this case with his own funds. On the contrary, by using his uncle’s name in an unauthorized fashion, he merely had the funds transferred into a new account in the same name. It is clear that the bank would not have permitted the October, 1978, withdrawal to have occurred in the fashion that it did had not the funds been merely transferred into the new account. It is also clear that until defendant removed those funds in May, 1979, defendant’s uncle, or his estate after the uncle’s death, still had control over those funds and could have removed the same had a proper demand been made on the bank. It was when the funds were removed from the new account that the estate, and ultimately the bank, was exposed to the loss. Furthermore, it was the manner in which defendant presented the withdrawal slip on the latter occasion which created the risk of loss.
Therefore, since it was also shown that defendant made the document with the intent to deceive, we believe that a sufficient showing of forgery was established. Susalla, supra.
Affirmed. Remanded for trial. | [
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Per Curiam.
On appeal, this Court reversed defendant’s conviction and dismissed the charges for violation of the 180-day rule, MCL 780.131; MSA 28.969(1). On application for leave to appeal by the prosecutor, the Supreme Court, on May 27, 1981, issued an order vacating the Court of Appeals decision and remanding the case to us with a direction to remand the matter to the circuit court for the making of a testimonial record concerning the reasons for the delay between defendant’s arraignment and the date of the guilty plea. That remand was made and the required hearing was held in the circuit court. Subsequently, the transcript of that hearing was prepared and filed with this Court.
The transcript indicates that counsel for defendant testified that the assistant prosecutor told him at the date set for the preliminary examination that the proposed plea would have to be made at the time of arraignment in circuit court. That prosecutor, referred to as Mr. Ray, said that he did not have any authority to extend the plea-bargained offer beyond the date of circuit court arraignment. Defense counsel was directed to Joseph Filip, the Chief Assistant Prosecuting Attorney, who told him that the prosecutor’s office would review the case involving the codefendant, Patricia Jones, and would decide on a plea offer to defendant after decision on a plea for Patricia Jones. Filip was alleged to have told defense counsel that at that time defendant could either accept or refuse the plea offer that would be made.
Defense counsel testified that Filip did not specify the precise crime to which defendant could offer a plea. Between July 11, 1978, the date of the circuit court arraignment, and March, 1979, no contact was made by the prosecutor’s office with defense counsel. In January, 1979, defendant made a written request for a speedy trial. Defense counsel said in so many words that the purpose for the delay was to determine what happened to Patricia Jones and, therefore, to determine if defendant would receive a better deal.
The burden was on the prosecutor to justify the long delay in bringing defendant before the court to plead. The prosecutor claims that defendant requested the delay for the purpose of hoping that he would receive a better offer of a plea. However, the record does not support the conclusion that defendant requested a delay. Neither does the transcript indicate that the prosecutor offered defendant a plea to a specific offense before expiration of the 180 days.
While there was discussion between defense counsel and the prosecutor’s office regarding a possible plea, the fact is that after the circuit court arraignment, the case was neither scheduled for trial nor set for a time for defendant to plead until long after the 180-day period had passed.
Under these circumstances, we are not prepared to conclude that this long delay was occasioned by the request of the defendant. On the contrary, we hold that the prosecutor has failed to meet his burden of proof to establish adequate reason for the delay. We, therefore, grant defendant’s motion to dismiss for failure to comply with the statutory 180-day rule.
Reversed and the case dismissed._
102 Mich App 226; 301 NW2d 858 (1980).
411 Mich 941 (1981).
People v Forrest, 72 Mich App 266, 273; 249 NW2d 384 (1976); People v Wright, 89 Mich App 244, 250; 280 NW2d 836 (1979); 1 Gillespie, Michigan Criminal Law & Procedure (1979 rev ed), § 98, p 155.
See People v Parker, 21 Mich App 399; 175 NW2d 879 (1970), where we held that the prosecutor’s failure to comply with the “180 day rule” resulted in the trial court being without jurisdiction to accept the defendant’s guilty plea. | [
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Mackenzie, J.
John Manley, son of Kenneth A. Manley and Betty D. Manley, suffered a severe head injury when he was struck by an automobile on May 10, 1974. Defendant Detroit Automobile Inter-Insurance Exchange was the Manleys’ no-fault automobile insurance carrier at the time of the accident. In this action, plaintiffs sought to recover damages and past expenses from defendant and to obtain a declaratory judgment as to the benefits due from defendant in the future. After a jury trial, defendant was found liable for $19,087.26 for modifications to the Manleys’ home and for $12,000 for past services performed by Kenneth and Betty Manley. Defendant was further ordered to pay the Manleys $30 per day for room and board and $128 per day for care by nurse’s aides as long as John Manley is cared for at his parents’ home or until further order of the court. For slightly more than a year prior to trial, defendant was required by a preliminary injunction to pay plaintiffs $78 per day for room and board and $128 per day for care by nurse’s aides. Defendant was allowed a credit for the amount paid under the preliminary injunction in excess of the rates later found by the jury. Defendant appeals by right, while plaintiffs cross-appeal.
I
Defendant argues that the trial court erred by denying its motion for a new trial without allowing it to question jurors concerning possible misconduct. After the close of proofs, an alternate juror who had been discharged pursuant to GCR 1963, 511.2 had a conversation in chambers with the trial judge about the case. The discharged juror then ate lunch with other jurors. The jurors were instructed not to discuss the case at lunch. In its opinion denying defendant’s motion for a new trial, the court stated that it promptly informed counsel for defendant of these developments and solicited recommendations or objections. None were made. The grant or denial of a motion for a new trial is committed to the sound discretion of the trial court; no basis for reversal is presented unless the trial court’s discretion was abused. Willett v Ford Motor Co, 400 Mich 65, 70-71; 253 NW2d 111 (1977). On this record, we cannot say that an abuse of discretion is presented. Compare Szopko v Kinsman Marine Transit Co, 96 Mich App 64, 67-68; 292 NW2d 486 (1980).
II
Defendant argues that the trial court erroneously required it to pay' for expenses which plaintiffs had not yet incurred. Plaintiffs respond that anticipation of future expenses is an appropriate use of a declaratory judgment. MCL 500.3107; MSA 24.13107 provides in part:
"Personal protection insurance benefits are payable for the following:
"(a) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery or rehabilitation.”
MCL 500.3110(4); MSA 24.13110(4) provides:
"Personal protection insurance benefits payable for accidental bodily injury accrue not when the injury occurs but as the allowable expense, work loss or survivors’ loss is incurred.”
MCL 500.3142(1); MSA 24.13142(1) provides:
"Personal protection insurance benefits are payable as loss accrues.”
In Shavers v Attorney General, 402 Mich 554, 588-589; 267 NW2d 72 (1978), the Court explained that declaratory judgments exist to provide broad, flexible remedies for plaintiffs who seek guides for future conduct in order to preserve their legal rights. The Court further explained that in an action for a declaratory judgment the trial court is not precluded from reaching issues before actual injuries or losses have occurred. An action for a declaratory judgment is therefore an appropriate mechanism for determining whether an expense will be "allowable” under the standard stated in MCL 500.3107(a); MSA 24.13107(a), before the expense is actually incurred. Plaintiffs may use an action for a declaratory judgment to avoid the risk of incurring expenses for which the insurer will not reimburse them.
A trial court in an action for a declaratory judgment may retain jurisdiction to grant further relief based on the declaratory judgment. GCR 1963, 521.6; Stein v Continental Casualty Co, 110 Mich App 410, 426-427; 313 NW2d 299 (1981). A trial court therefore may retain jurisdiction to determine whether expenses previously declared to be allowable are subsequently actually incurred and to enter a judgment against the insurer for such incurred allowable expenses. Here, however, the judgment entered by the trial court required defendant to make payments for expenses declared to be allowable without regard to whether such expenses were actually incurred. Because the no-fault statute only requires insurers to pay for allowable expenses actually incurred, the judgment entered here was erroneous.
Ill
Defendant argues that the trial court erred by requiring it to make payments for John Manley’s room and board. Defendant relies on the legal duty of parents to support their minor children; see MCL 722.3; MSA 25.244(3).
In Kushay v Sexton Dairy Co, 394 Mich 69, 74; 228 NW2d 205 (1975), a workers’ compensation case, the Court considered the liability of an employer for services provided by a spouse to an injured employee. The Court rejected tests based on the legal duty of a spouse or on what a conscientious spouse would do:
"The language of the statute, 'reasonable medical, surgical and hospital services and medicines or other attendance or treatment’, focuses on the nature of the service provided, not the status or devotion of the provider of the service. Under the statute, the employer bears the cost of medical services, other attendance and treatment. If services within the statutory intendment are provided by a spouse, the employer is obligated to pay for them.
"Ordinary household tasks are not within the statutory intendment. House cleaning, preparation of meals and washing and mending of clothes, services required for the maintenance of persons who are not disabled, are beyond the scope of the obligation imposed on the employer. Serving meals in bed and bathing, dressing, and escorting a disabled person are not ordinary household tasks. That a 'conscientious’ spouse may in fact perform these services does not diminish the employer’s duty to compensate him or her as the person who discharges the employer’s duty to provide them.”
In Visconti v Detroit Automobile Inter-Ins Exchange, 90 Mich App 477; 282 NW2d 360 (1979), the Court considered whether services provided by a spouse can constitute replacement services compensable under MCL 500.3107(b); MSA 24.13107(b). The Court drew an analogy to Kushay v Sexton Dairy Co and concluded that services other than the performance of ordinary household tasks were compensable.
In Van Marter v American Fidelity Fire Ins Co, 114 Mich App 171; 318 NW2d 679 (1982), the Court considered whether services provided by a spouse can constitute an "allowable expense” under MCL 500.3107(a); MSA 24.13107(a). The Visconti and Kushay cases convinced the Court that such services could constitute an allowable expense. The Court commented that the spouse in the case before it, unlike the spouse in Visconti, had no duty to provide the services in question. 114 Mich App 180. However, this dictum had no significance; in both Visconti and Van Marter, recovery was allowed for the services of the spouse.
We conclude that the legal duty of parents to support their children has no effect on whether services performed by a parent for a child are an "allowable expense”. That was the result reached in Kushay in construing the statute on workers’ compensation. Moreover, a parent’s duty to support a minor child requires the parent to furnish all necessaries essential to the health and comfort of the child, including, for example, medical care. See 59 Am Jur 2d, Parent and Child, §§ 55, 59, pp 144-146, 149-150. The exception for which defendant argues would engulf many of the expenses which the statute expressly requires the insurer to pay. We deduce from Visconti and Kushay that services performed by close relatives other than the peformance of ordinary household tasks can be "allowable expenses”.
This result can be reconciled with the language of MCL 500.3107(a); MSA 24.13107(a). That statute specifies that products, services, and accommodations not reasonably necessary for the injured person’s care, recovery, or rehabilitation are not "allowable expenses”. The necessity for the performance of ordinary household tasks has nothing to do with the injured person’s care, recovery, or rehabilitation; such tasks must be performed whether or not anyone is injured.
This reasoning supports a generalization concerning the circumstances in which a product, service, or accommodation can fall within the definition of "allowable expense”. Products, services, or accommodations which are as necessary for an uninjured person as for an injured person are not "allowable expenses”. In applying this rule, it is necessary to distinguish between injured persons for whom institutionalization in a hospital or nursing home is reasonably necessary and injured persons cared for at home. For example, food is as necessary for an uninjured person as for an injured person. Food, therefore, is not ordinarily an "allowable expense” for an injured person cared for at home, unless the nature of the injury makes a special diet reasonably necessary. However, ordinarily an institutionalized injured person must obtain food through the institution, and the cost of obtaining food through the institution presents an extraordinary expense not analogous to the cost of obtaining food at home. Therefore, for the institutionalized injured person, food obtained through the institution is ordinarily an "allowable expense”.
Here, plaintiffs relied upon evidence that the Oakland County Medical Care Facility charged $78 per day for John’s care while John was a patient there. Defendant relied upon evidence that John could be accommodated in a nursing home at $48 per day. The jury accepted neither of these figures but found that $30 per day was reasonably necessary for John’s room and board. However, it is apparent from the evidence on which both sides relied that the parties are using the term "room and board” to include not only food and housing, but all of the products, services, and accommodations included within these institutions’ daily charges. Some of these products, services, and accommodations may fall within the definition of "allowable expenses” but some will not. Because, due to the mistaken approach of both parties to this issue, we are unable to determine what allowable expenses, if any, are included within plaintiffs’ recovery for room and board, we conclude that this issue must be retried.
We note that, while comparison to rates charged by institutions provides a valid method for determining whether the amount of an expense was reasonable and for placing a value on comparable services performed by Mr. and Mrs. Manley, the requirement that an allowable expense must have been incurred means that defendant cannot be required to pay more for a product, service, or accommodation than the price at which plaintiffs purchase it. Services performed by Mr. and Mrs. Manley which are "allowable expenses” under the rule previously stated are implicitly purchased by John at their reasonable market value. We further note that a recovery for the accommodation of John in his parents’ home here cannot be permitted, because plaintiffs obtained a separate recovery of the costs of modifying the home to meet John’s special needs, and because, except for the modifications necessitated by John’s special needs, a home is as necessary for an uninjured person as for John.
IV
Defendant argues that plaintiffs’ recovery for home modifications and for much of the past services performed by Mr. and Mrs. Manley was barred by the one-year limitation period contained in MCL 500.3145; MSA 24.13145. However, John’s claims and those of persons claiming under John were preserved by the minority savings provision of MCL 600.5851; MSA 27A.5851. See Rawlins v Aetna Casualty & Surety Co, 92 Mich App 268; 284 NW2d 782 (1979); Hartman v Ins Co of North America, 106 Mich App 731, 743-744; 308 NW2d 625 (1981), and Geiger v Detroit Automobile Inter-Ins Exchange, 114 Mich App 283; 318 NW2d 833 (1982). In Geiger, the Court pointed out that claims such as those at issue here are arguably claims of the child rather than of the parents and that, to the extent that the parents have independent claims, the parents are "claiming under” the child and so fall within the rule stated in MCL 600.5851; MSA 27A.5851.
V
Defendant argues that the award of $19,087.26 for home modifications was not supported by the evidence. As we have seen, MCL 500.3107(a); MSA 24.13107(a) sets forth three requirements for an "allowable expense”. The expense must have been incurred, it must have been for a product, service, or accommodation reasonably necessary for the injured person’s care, recovery, or rehabilitation, and the amount of the expense must have been reasonable.
In its brief on appeal, defendant admits that it is responsible for payment for home modifications reasonably necessary for John’s care. Defendant has not argued or cited authority to show that any particular modification did not meet the three requirements for an "allowable expense”; defendant has therefore waived any such contention. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Defendant argues only that the expen ses here were excessive when taken as a whole. However, if. each expense is allowable individually, we cannot see how the expenses become excessive when taken as a whole. There was ample evidence in the record here from which the trier of fact could conclude that each home modification at issue met the three requirements for an "allowable expense”.
VI
Defendant argues that the verdict form employed here was an improper departure from that specified in SJI 67.01. In a civil case, the giving of an applicable requested standard jury instruction which accurately states the law is mandatory, and refusal to give such an instruction is error requiring reversal. GCR 1963, 516.6(2); Javis v Ypsilanti Bd of Ed, 393 Mich 689; 227 NW2d 543 (1975); Socha v Passino, 405 Mich 458; 275 NW2d 243 (1979). However, the use note to SJI 67.01 expressly states that modification of the verdict form is necessary where issues not specifically dealt with in the verdict form arise. Modification of the verdict form here was therefore not a departure from the applicable standard jury instruction. We do not necessarily approve of all the specific modifications made here; we hold merely that modification of the form presents no error independent of the merits of the specific modification. The merits of each specific modification here are adequately dealt with in our discussion of other issues.
Defendant also argues that it was denied a trial by jury on issues concerning room and board and care by nurse’s aides during the period of the preliminary injunction. The trial court determined defendant’s liability for these expenses by applying the rates later approved by the jury; defendant was given a credit for payments under the preliminary injunction in excess of the approved rates. This procedure suffered from the same defect we pointed out in our discussion of the preliminary injunction. Defendant was required by the trial court to pay at a certain rate without regard to the amount of expenses actually incurred. The procedure adopted by the trial court denied defendant a trial by jury on the issue of whether the expenses were incurred.
VII
Plaintiffs argue that the trial court erred by directing a verdict for defendant on plaintiffs’ claim for damages for mental anguish. In Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401; 295 NW2d 50 (1980), the Court held that damages for mental anguish are ordinarily not recoverable in an action for breach of a commercial insurance contract. The Kewin rule applies to no-fault automobile insurance contracts. Jerome v Michigan Mutual Auto Ins Co, 100 Mich App 685; 300 NW2d 371 (1980); Liddell v Detroit Automobile Inter-Ins Exchange, 102 Mich App 636; 302 NW2d 260 (1981); Van Marter v American Fidelity Fire Ins Co, supra.
In an effort to avoid the consequences of the foregoing cases, plaintiffs have relied upon an alleged separate contract in which defendant agreed to continue to make payments at the same level until the parties agreed on a different level of payments. A directed verdict for defendant is properly granted if the evidence, viewed in the light most favorable to plaintiff, fails to establish a prima facie case. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975). In Professional Facilities Corp v Marks, 373 Mich 673, 679; 131 NW2d 60 (1964) , the Court held that a so-called "contract to make a contract” is no contract at all if the contract the parties agree to make is to contain a material term not already agreed upon. Here, the trial court viewed the evidence in the light most favorable to plaintiffs and concluded that, in view of Professional Facilities Corp v Marks, no separate contract was made. On this record, we cannot say that the trial court erred by so concluding.
VIII
Defendant argues that the trial court erred by declining to appoint a guardian for John to receive payments on John’s behalf. The record contains an order appointing Mr. and Mrs. Manley jointly to serve as next friend of their son for the purpose of bringing this action. Under the circumstances presented here, the validity of the proceedings and the jurisdiction of the trial court would not be affected by an irregularity in the appointment of a next friend. See Kamieniecki v Garden City Hospital, Osteopathic, 375 Mich 257, 260; 134 NW2d 219 (1965) . We know of no authority permitting the circuit court to appoint a guardian for a minor other than the minor’s parents under the circumstances presented here; compare MCL 700.424; MSA 27.5424. Finally, defendant has not shown how it has standing to complain of the court’s refusal to appoint a guardian. The record here does not show any misconduct on the part of Mr. and Mrs. Manley in regard to the sums that plaintiffs recovered, but, even if it did, we cannot see how defendant’s rights or liabilities could be thereby affected.
IX
Plaintiffs argue that the trial court erred by declining to award them the 12% penalty interest provided for in MCL 500.3142; MSA 24.13142. That statute provides in part:
"(2) Personal protection insurance benefits are overdue if not paid within 30 days after an insurer receives reasonable proof of the fact and of the amount of loss sustained.
"(3) An overdue payment bears simple interest at the rate of 12% per annum.”
Plaintiffs sought the 12% interest for their recovery for home modifications and other past expenses. The trial court treated the standard for the award of penalty interest as the same as that for the award of an attorney fee under MCL 500.3148(1); MSA 24.13148(1), and the court denied plaintiffs’ interest on the ground that there had been a bona fide factual dispute as to the amount of benefits payable. That holding was erroneous; the existence of a bona fide dispute does not prevent an award of penalty interest if the insurer received reasonable proof of the fact and amount of loss but failed to pay benefits on time. Cook v Detroit Automobile Inter-Ins Exchange, 114 Mich App 53; 318 NW2d 476 (1982); Nash v Detroit Automobile Inter-Ins Exchange, 120 Mich App 568; 327 NW2d 521 (1982).
By an exhibit attached to their brief on appeal, plaintiffs have attempted to show that they gave defendant reasonable proof of the fact and amount of their home modification expenses on May 15, 1981. Because there is no record of this exhibit ever being submitted to the trial court, this Court will not consider it. Dora v Lesinski, 351 Mich 579, 581; 88 NW2d 592 (1958).
Plaintiffs also rely upon the evidence introduced at trial as reasonable proof of the fact and amount of their losses. Nothing in MCL 500.3142; MSA 24.13142 prevents the evidence introduced at trial from being the reasonable proof of the fact and amount of the loss which starts the 30-day period to run. In Hartman v Ins Co of North America, supra, p 747, the Court approved an award of penalty interest where the reasonable proof of the fact and amount of loss on which plaintiff relied was plaintiff’s complaint. Allowing the evidence introduced at trial to be the proof which starts the 30-day period running is consistent with the purpose of the provision for penalty interest as explained in Wood v Detroit Automobile Inter-Ins Exchange, 99 Mich App 701, 709; 299 NW2d 370 (1980). We therefore conclude that plaintiffs are entitled to penalty interest beginning 30 days after evidence was introduced at the trial constituting reasonable proof of the fact and amount of the loss and continuing until defendant paid the benefit at issue.
X
MCL 500.3148(1); MSA 24.13148(1) provides:
"An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.”
Here, the trial court determined that defendant had unreasonably refused to pay plaintiffs’ claim for care by nurse’s aides and awarded plaintiffs an attorney fee for that portion of their claim. Defendant argues that the trial court erred by awarding any attorney fee, while plaintiffs argue that the trial court should have awarded them an attorney fee covering their entire case.
The statute conditions an award of attorney fees on a finding that the insurer unreasonably refused to pay or unreasonably delayed in making payment. We therefore conclude that plaintiffs are not entitled to an award of attorney fees for that portion of their claim which involved future expenses because the insurer’s obligation to pay those expenses would not arise until the expenses were incurred. The evidence introduced at the trial showed that plaintiffs made no claim for home modification expenses or for the value of their services before commencing this action; the trial court therefore did not err in holding that defendant had not unreasonably refused to pay or unreasonably delayed in making payment for those expenses. The only remaining elements of plaintiffs’ recovery are the expenses for room and board and for care by nurse’s aides between the time of the preliminary injunction and the time of trial. Those expenses could not support an award of attorney fees because defendant paid those expenses promptly pursuant to the preliminary injunction. We therefore conclude that plaintiffs were not entitled to an attorney fee under MCL 500.3148(1); MSA 24.13148(1).
Conclusion
On remand, defendant is entitled to a new trial on the issues of room and board and whether expenses for room and board and care by nurse’s aides during the period of the preliminary injunction were incurred. The trial court is to modify its declaratory judgment and to award plaintiffs 12% penalty interest in accordance with our discussion of those issues. Plaintiffs are not entitled to an attorney fee pursuant to MCL 500.3148(1); MSA 24.13148(1).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We retain no jurisdiction. | [
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Per Curiam.
A jury rendered a verdict on plaintiffs tort claim in the amount of $70,000 in favor of plaintiff. Defendant’s motions for a new trial and for judgment notwithstanding the verdict were denied by the trial court. Defendant appeals as of right.
Defendant’s appeal centers around the polling of the jury. The jury found defendant liable under plaintiffs products liability claim, assessed plaintiff’s damages in the amount of $100,000, and found that plaintiffs negligence was responsible for 30% of his damages. On the basis of this verdict, the trial court announced that it would enter a verdict in the amount of $70,000 against defendant.
After receiving the list of questions which the court had submitted to the jury, with the jury’s written answers contained therein, the trial court read the questions and answers aloud and then asked whether the answers were those of at least five out of six of the jurors. After the jury, in unison, responded that they were, the court polled the jury.
Juror number 1, when asked whether the verdict was hers, initially stated: "We compromised; but yes.” After defendant objected to the verdict, the trial court again questioned juror number 1 as to whether the answers to the questions submitted by the court, as read to the jury, were her answers. Juror number 1 responded that they were her answers.
In response to the trial court’s polling, juror number 2 stated that the verdict as read was hers except for the amount of damages. Later, when the court was attempting to ask juror number 1 whether the verdict as read was hers, juror number 2 interrupted a number of times to state that she (juror number 2) had compromised on the percentages and the money amount.
The remaining four members of the jury all stated that the verdict as read was theirs. After requestioning juror number 1, the trial court found the verdict to be that of five out of six of the jurors.
Defendant contends the verdict rendered by the jury was an invalid compromise verdict. We disagree.
GCR 1963, 512.1 states that in civil cases tried by six jurors, a verdict shall be received when five jurors agree. Verdicts arrived at through compromise and surrender of honest conscientious convictions are invalid. 76 Am Jur 2d, Trial, § 1133, p 107.
A compromise verdict is defined in 76 Am Jur 2d, Trial, § 1139, p 111 as follows:
"A verdict which is reached only through the surren der of conscientious convictions as to a material issue by some members of the jury in return for a relinquishment by other members of their like settled opinion on another issue, the result not commanding the approval of the whole panel, is a compromise verdict.”
Instead of relying on this or any similar legal definition of a compromise verdict, defendant relies on the use of the word "compromise” both by juror number 1 and juror number 2 to justify its contention that the verdict in this case was a compromise verdict. Defendant ignores the fact that when the trial court asked juror number 1 a second time whether the answers contained in the jury’s verdict were hers she responded that they were.
In Buckner Loan Co v Bicher, 221 Mich 198, 200; 190 NW 670 (1922), the Michigan Supreme Court stated:
"It is a recognized duty of courts either upon their own motion or upon motion of the prejudiced party to set aside verdicts which do not represent the judgment of the jury but which are clearly compromise verdicts; but it is equally well recognized that to justify such action the record must make it clear that the jury reached the result by 'splitting differences.’ ”
Pursuant to the law as described above, defendant’s contention that the verdict reached by the jury in the case at bar was an invalid compromise verdict must fail. Defendant does not allege nor does the record indicate that any of the jurors surrendered conscientious convictions held by them as to a material issue. Nor does defendant contend or the record indicate that the verdict reached by the jury in the case at bar was inconsistent with its charge or with the evidence found in the record. Again, defendant relies solely on the fact that two of the jurors, while being polled by the trial court, used the word "compromise” in their responses. The use of that term by juror number 2 is not relevant as juror number 2 openly stated that she disagreed with the amount of damages contained in the verdict and, therefore, the trial court disregarded her vote and accepted the verdict as that of five out of six of the jurors. We do not believe that the statement by one juror out of the required five that a verdict was based on compromise constitutes the type of showing of a surrendering of conscientious convictions as was contemplated by the Court in Buckner, supra.
In Ostrander v City of Lansing, 111 Mich 693, 697; 70 NW 332 (1897), the Court addressed an appeal wherein the jury foreman, after the jury had been out all night, informed the trial court that the jurors could not arrive at a verdict, and so, instead, compromised on one. The Michigan Supreme Court ordered that a new trial be held, stating that: "[I]t never ought to be permitted that any member of the panel should shift his responsibility by placing it upon the ground that it is a compromise * * *.” Ostrander, supra, pp 697-698. In the case at bar, juror number 1, upon whose use of the term "compromise” defendant relies, stated that the answers contained in the juror’s response to questions submitted by the court were hers when requestioned by the court. In doing so, she accepted the responsibility for the verdict and did not shift it onto others.
In 76 Am Jur 2d, Trial, § 1127, p 103, the author states:
"Where a juror’s equivocal, ambiguous, inconsistent, or evasive answers leave doubt as to whether he has assented to the verdict, but his answers are not such as to indicate involuntariness or coercion, it is generally held that a subsequent answer which indicates clear and unequivocal assent, either on further interrogation or after further deliberation, will cure the defect.”
Thus, it appears clear that when, upon being requestioned by the trial court, juror number 1 unequivocally assented to the verdict as read, any possible defect in the jury’s verdict was cured. At that point, five of the six jurors had indicated, individually, that the verdict as read by the court was theirs.
For the reasons stated herein, we find the verdict of the jury to be valid.
Affirmed. | [
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Per Curiam.
Plaintiff appeals from an accelerated judgment under GCR 1963, 116.1(5) entered on October 30, 1981. The judgment was entered on the motion of defendant Farmers Insurance Exchange (Farmers) on the ground that the limitation period in MCL 500.3145; MSA 24.13145 had expired before Farmers had been given notice of the claim.
The facts are not in dispute. On October 11, 1979, Perri Lynn Redman was killed in an automobile accident. She had been riding in a car driven by Alan Mosley and owned by Patrick Kelly. Plaintiff was appointed as the personal representative of the Redman estate on April 23, 1980. On May 1, 1980, plaintiff filed suit on behalf of the Redman estate, naming as defendants Mosley, Kelly, C & M Discount Company (a dramshop defendant), and Mid-Century Insurance Company (Kelly’s insurer). Although the other defendants answered promptly, defendants Mosley and Kelly did not file an answer until March 4, 1981.
On June 9, 1981, two consent judgments were entered in plaintiff’s favor. One judgment, entered against defendants Mosley, Kelly and C & M Discount Company, was for the sum of $60,000, apportioned among the three defendants. The other judgment was entered for $3,500 against defendant Mid-Century Insurance Company.
Also on June 9, 1981, plaintiff moved to add Farmers as a defendant, seeking a balance of $1,500 in personal injury protection benefits unrecovered in the consent judgments. Farmers does not dispute this figure. Plaintiff claimed to have learned only in March, 1981, that Farmers was Mosley’s insurer. The motion was granted on June 10, 1981, and plaintiff filed an amended complaint on June 11, 1981. Farmers moved for accelerated judgment, claiming to have first received written notice of Redman’s death on February 25, 1981, and claiming to have received no written notice of a claim until plaintiff’s motion to add it as a defendant on June 9, 1981.
Plaintiff argues that the initiation of a suit against the insured driver within one year of the accident is sufficient notice to the driver’s insurer under MCL 500.3145(1); MSA 24.13145(1).
This Court has held that, when an action is commenced against one party, the statute of limitations is not tolled against other potential parties who have not been named as defendants in the suit. Matti Awdish, Inc v Williams, 117 Mich App 270, 277; 323 NW2d 666 (1982). Although this rule is not absolute, see Cobb v Mid-Continent Telephone Service Corp, 90 Mich App 349; 282 NW2d 317 (1979), this Court has applied it to cases in which the plaintiff has argued a lack of knowledge regarding the identity of an alleged tortfeasor. Lefever v American Red Cross, 108 Mich App 69, 73; 310 NW2d 278 (1981); Reiterman v Westinghouse, Inc, 106 Mich App 698, 704; 308 NW2d 612 (1981); Thomas v Ferndale Laboratories, Inc, 97 Mich App 718, 722; 296 NW2d 160 (1980). We are not persuaded in this case by plaintiffs argument that, as long as the action is brought and notice is given as quickly as possible, the purposes of the no-fault statute are fulfilled.
We would affirm the accelerated judgment if our opinion rested solely on the arguments concerning notice to the insurer. In the interests of justice, however, we must address an issue more critical to plaintiffs cause of action, i.e., whether the limitation period contained in MCL 500.3145(1); MSA 24.13145(1) is tolled by the death of the person entitled to personal injury protection benefits under the no-fault statute.
The minority and insanity tolling provisions of MCL 600.5851(1); MSA 27A.5851(1) affect the limitation period in MCL 500.3145(1); MSA 24.13145(1). See Geiger v Detroit Automobile Inter-Ins Exchange, 114 Mich App 283, 288-289; 318 NW2d 833 (1982) (minority); Rawlins v Aetna Casualty & Surety Co, 92 Mich App 268, 274-277; 284 NW2d 782 (1979) (minority); Hartman v Ins Co of North America, 106 Mich App 731, 743-744; 308 NW2d 625 (1981), lv den 414 Mich 890 (1982) (insanity). Logic dictates that the death saving provision of MCL 600.5852; MSA 27A.5852 be treated the same, and we so hold as did another panel of this Court in Epps v Transit Casualty Co, 120 Mich App 279; 327 NW2d 321 (1982).
We also hold that the death tolling provisions must be given effect when the "one-year-back” limtiation on recovery is considered. MCL 500.3145(1); MSA 24.13145(1). We are persuaded by Rawlins, Geiger, and Epps that a contrary rule would severely limit the utility of the death saving provision and could deprive the estate of a deceased of benefits to which it would otherwise be rightfully entitled.
Because of our disposition on the death saving provision, we reverse the lower court’s grant of accelerated judgment and remand this matter for proceedings consistent with this opinion. | [
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Wiest, J.
Plaintiffs entered into contracts with defendant for the purchase of several lots, made substantial payments and then were in default. Defendant commenced, summary proceedings to obtain restitution of the premises. Judgments were rendered in the suits and under the statute plaintiffs had 80 days in which to redeem. During the period of redemption plaintiffs arranged with William B. Thompson to advance the money to pay the amounts due on the contracts and take deeds to his daughters. It is claimed defendant’s agents were notified of the fact that the money was available as soon as abstracts could be furnished, and they led plaintiffs’ negotiator to believe this was satisfactory and an adjustment would be perfected and deeds prepared regardless of the period for redemption. In the bill plaintiffs seek to reinstate two land contracts, to set aside two writs of restitution, and have a decree for specific performance of such contracts. The circuit judge dismissed the bill, denied a petition for a rehearing and refused leave to file a supplemental bill. Plaintiffs are here by appeal.
Three suits were commenced before the circuit court commissioner. In two of the suits judgments were rendered on June 15, 1921, and in the other on June 22, 1921. Plaintiffs had 30 days after judgment in each case to make payment and save their contract rights. They paid no money to the commissioner until July 22, 1921. This payment was too late to save the contracts involved in the judgments rendered June 15th, but in time to save all rights under the judgment of June 22d. Defendant accepted the payment upon the last judgment and performed that contract, but refused redemption as to the others.
The record presents a question of fact. If plaintiffs have not established the claimed agreement for an ■extension by defendant of the time for redemption then this suit must fail. The claimed agreement rests upon the testimony of Mr. Ireland, as negotiator for plaintiffs.
Mr. Ireland testified:
“Yes, I had contracts in my possession. When I left your office I went over there, had the contracts and showed them, laid them on the desk, also laid this letter from Mr. Thompson, stating to Mr. Harrah that the money was there. Now, I says to this man (indicating Mr. Chapman) — we had been down different times in the place — we are going to pay the money right over there and you dismiss the cases down at the Circuit Court Commissioner May’s. And then the lady spoke up and she says, ‘Now, you will have to take these contracts, Mr. Ireland, to the Pappas Bros, and have them sign over.’ I did, and she said, ‘How do you want these deeds.?’ And I said, ‘Eight, for eight separate lots.’ Then, she said, ‘You will have to have eight separate slips,’ she wrote out the eight separate slips and I took them with the contracts over to the Pappas and they signed them and I brought them back to their office, Harrah’s office, and laid them down and Miss Deans and this lady (indicating Miss Voorhies) said, ‘How soon do you want these?’ I said, ‘Just as soon as you can.’ She said, ‘We will get these out to six lots by the first of the month, but the other two lots, the man is dead, Baker, and it will take a little longer,’ and I said, ‘That is all right, that will do.’ ”
The record falls short of establishing any agreement or assurance justifying plaintiffs in paying no further attention to the period of redemption. With the suits determined against them and the right of redemption about to expire, the plaintiffs should have tendered the amounts due on the contracts. The failure to make such tender is not excused by the assumption that defendant would not insist on his strict rights. We would import into the law an unsafe and litigious element if we should hold an offer to perform, with ability to do so, accomplishes the purpose of a tender, or constitutes ground for equitable relief. Defendant stood ready to take the money on July 13, 1921, when Mr. Ireland was in his office, but the money was not paid, and on July 14th he notified the attorney for plaintiffs that it was the last day in which to make payment.
Counsel for plaintiffs complain because this notification came after banking hours; overlooking the fact that defendant was under no obligation to give notice at all. Plaintiffs knew of the period given them in which to redeem, they had the money available, made no tender of the amounts due under the contracts involved in this suit, and let the time for redemption expire. We find no fraud committed by defendant and no showing justifying us in holding there was an extension of the time within which to redeem.
The petition for a rehearing presented no good reason for granting the same. The fact that defend ant was purchasing the lots on contract, and did not have title thereto in fee, was no ground for a rehearing nor a reason justifying a supplemental bill, and was somewhat inconsistent with the specific performance asked for, and in any event constituted no equitable ground for relief from the forfeiture.
No appeal having been taken from the findings of the commissioner of the amounts due on the contracts such matter cannot be retried in this suit.
The decree is affirmed, with costs to defendant.
Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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] |
Bird, J.
Defendant was informed against, tried and convicted in the Muskegon circuit court for having violated the liquor laws, in that he manufactured and had in his possession a certain quantity of whisky. Carl Holland, who appears to have been an officer at Muskegon Heights, made an affidavit for a search warrant, in which he stated that certain premises known and numbered 926 Elwood avenue in Muskegon Heights were occupied by defendant as a place of public resort and not as a drug store, etc. Upon this affidavit a search warrant was issued by a justice of the peace directing the officer to search number 926 Elwood avenue for intoxicating liquors. The officer in whose hands the warrant was placed executed it by searching a dwelling house known and numbered 932 Elwood. avenue instead of 926 Elwood avenue, and found therein a certain quantity of whisky, which it was claimed by the prosecution was in the possession of defendant as he resided at 932 Elwood avenue. After the arrest and before trial defendant made a motion to have the whisky returned because illegally seized. This motion was denied by the trial court. Subsequently defendant’s counsel objected to the admission of the whisky in evidence, but this objection was overruled.
In this court defendant raises several questions, but we think the important one is whether an officer armed with a search warrant directing him to search premises known and numbered 926 Elwood avenue could legally search premises known and numbered 932 Elwood avenue and seize liquor found therein. It is argued on behalf of the people that the affidavit for the search warrant not only described the premises as 926 Elwood avenue, but also described them as premises occupied by the defendant, and that, inasmuch as premises 932 Elwood avenue were actually occupied by the defendant, it was merely a clerical error and the mistake unimportant. The argument •of the prosecutor that the averment that the premises were occupied by the defendant would suffice in describing the place to be searched might have •some force if all dwelling houses could be searched with a search warrant. The law forbids the searching of dwelling, houses unless it is shown that it is a place of public resort, etc. Act No. 53, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 7079 [30]). There was a showing made in the affidavit that number 926 Elwood avenue was a place of public resort. This showing enabled the officer to get a warrant to search it. Without this showing no search warrant could legally have been issued for that purpose. There was no showing that the dwelling house known as number 932 was a place of public resort and, therefore, it could not be legally searched even with a search warrant. The mere fact that the description was aided by alleging that defendant occupied the premises would not be sufficient to authorize a search warrant for a dwelling house.
The Constitution and legislative acts of this State prescribe as a prerequisite to the right to search one’s Lome or possessions that the place to be searched and the thing to be searched for shall be alleged on oath. These elements have always been regarded as important and indispensable to valid process. Bullock v. Ward, 182 Mich. 448. The proceeding is a drastic one and, legislation for its enforcement should be strictly construed.
In discussing the importance of the averment of the place to be searched, Ruling Case Law makes this statement:
“The constitutional requirement is a description which particularly points to a definitely ascertainable place and so as to exclude all others. The writ should not leave the place to be searched to the discretion of the officer; and the modern authorities are unani mous in holding that a search warrant directing an officer to search places generally is clearly illegal.” 24 R. C. L. p. 713.
In Larthet v. For gay, 2 La. Ann. 524 (46 Am. Dec. 554), the court considered the action of an officer who was directed by his warrant to search one business place, and in executing it he searched an adjoining one. As bearing upon the validity of such action, the court said, in part:
“The court below charged the jury, in substance, and, we think, correctly, that the breaking into and search of the plaintiff’s shop and dwelling were not authorized by the warrant. The search should have been confined to the cabaret, or at most to the premises of Marcel. Such warrants must be construed strictly. The law regards the dwelling and the domestic repose of the citizen with too much jealousy to trust the place of execution of such process to the discretion of police officers. So important is this subject that it has been deemed worthy of express notice in the Constitution of the United States, which declares that
“ ‘The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but on probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’
“Amendment Constitution United States, Art. 4. This article is an affirmance of a great constitutional doctrine of the common law, and had, nevertheless, been occasionally violated by general warrants; and to prevent this abuse the solemn written prohibition was framed. A principle so indispensable to the full enjoyment of personal security and private property should be enforced in its full spirit and integrity; but it would be violated if courts should sanction such a latitude of construction as is invoked by the defendant for the warrant in question.”
We are of the opinion that the action of the officer in searching number 932 .Elwood avenue and seizing liquor therein was .an unjustifiable trespass and a violation of defendant’s constitutional and legislative rights. The trial court was in error in admitting the 'whisky as evidence. For this error the judgment of conviction will be vacated and a new trial ordered.
Fellows, C. J., and McDonald, Sharpe, and Steere, JJ., concurred with Bird, J. | [
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WIEST, C. J.
This is certiorari to the department of labor and industry, to review an order under the workmen’s compensation act, determining that Aino Martilla, widow of Jacob Martilla, was dependent on her husband when he was accidentally killed, while in defendant’s employ, on June 7, 1920. Matti Martilla, a brother of the deceased, also claims dependency, but if the widow is entitled to compensation he has no claim. Many questions are raised, all of which, however, center upon whether the wife, at the time of her husband’s death, was living apart from him for justifiable cause.
Aino and Jacob were married in September, 1918, and lived together about three months, when she left him and after living apart a short time she returned and they lived together a week, when she left again and since then has supported herself, and at the time of his death, about 18 months after the last separation, she was living in Detroit and earning $15 a week and her board at housework. Some time before the marriage she had ovarian trouble and by two operations had her ovaries removed. At the time of the marriage she was 27 years of age and fairly well, and he was a robust man 30 years of age. She claims she lived apart from her husband because his excessive marital indulgence destroyed her health. The board found this to be true and held that it constituted justifiable cause for her living apart from her husband and was desertion on his part. In con sidering the case we will leave out the subject of desertion as it is wholly unnecessary to decision.
Does the evidence support the finding of living apart from her husband for justifiable cause? We do not hear this kind of a case de novo and cannot pass upon the weight of the evidence. If the finding is supported by competent evidence then it cannot be disturbed. Ginsberg v. Adding Machine Co., 204 Mich. 130; Chaudier v. Lumber Co., 206 Mich. 433 (5 A. L. R. 1673); Ortner v. Carburetor Co., 207 Mich. 610; Kirkley v. General Baking Co., 217 Mich. 307; Bryan v. Hudson. Motor Car Co., 217 Mich. 456; White v. Morgan & Wright, 217 Mich. 499; McCartney v. Wood-Temple Co., 217 Mich. 505; Thayer v. Berkey & Gay Furniture Co., 220 Mich. 332.
Mrs. Martilla testified that at the time of the marriage she was quite well, but after living with her husband three months she became sick and “was very bad” and visited a doctor; that the doctor examined her and advised her that “The man abused me too much;” that she told her husband what the doctor said, “but he did not care.” She also testified:
“Q. And that abuse to which you refer was in the process of your relations with him as husband and wife?
“A. Yes, it was exactly that. He abused me in that way too much and that is why I became sick. I cannot stand a man so much after I had been operated on.”
There is much more of the same tenor, going more into detail, but we see no occasion to state the same in the opinion. There was competent evidence that she left her husband because his insistence upon excessive marital indulgence was ruining her health, and he, knowing the fact, still persisted therein. Was that justifiable cause, within the meaning of the compensation act, for living apart from her husband?
The statute, section 6, part 2, Act No. 64, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 5436), provides:
“The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee:
“A wife upon a husband with whom she lives at the time of his death, or from whom, at the time of his death, the industrial accident board (now department of labor and industry) shall find the wife was living apart for justifiable cause or because he had deserted her."
In Kirkley v. General Baking Co., supra, we held that the words “justifiable cause,” as employed in this statute, have the meaning given the same in separation and divorce cases. If he knew that his demands were ruining her health and yet persisted therein, it was extreme cruelty on his part, and she had a right to leave him and live beyond reach of his demands. The law of self preservation would dictate such a course and the law of separation and divorce sanctions it. His marital rights did not go to the extent of rendering his wife a physical and mental wreck.
In Mayhew v. Mayhew, 61 Conn. 233 (23 Atl. 966, 29 Am. St. Rep. 195), it was said:
“What may or may not constitute intolerable cruelty by a husband toward his wife in the exercise of his marital rights is a difficult and delicate question. Such acts as are usually meant by that term are not ordinarily dangerous or cruel. But sometimes they may be both dangerous and cruel. Marital rights exist on the part of the wife as distinctly as on the part of the husband. Correlative to marital rights are marital duties. The law implies a two-sided obligation. In respect to such acts as are here in question, it includes the duty of forbearance on the part of the husband at the reasonable request of the wife, as well as the duty of submission on the part of the wife_ at the reasonable request of the husband. Any decision of what constitutes intolerable cruelty in these matters that should leave out of consideration the duty of the husband and look only to the duty of the wife, would be manifestly erroneous.”
It is extreme cruelty for a husband to knowingly endanger the wife’s, health through marital excesses. Walsh v. Walsh, 61 Mich. 554; White v. White, 135 Mich. 271; Grant v. Grant, 53 Minn. 181 (54 N. W. 1059).
Some attempt was made to show by physicians that the removal of the ovaries would not make marital indulgence injurious to her health, and the claim is made that the real trouble was the neurasthenic condition of the wife, and this led her to imagine ill consequences rather than experiencing the same. At the most this only presented a question of fact to the board.
It seems also to be urged that the testimony of the wife should not have been accepted without some corroboration. We are not cited to any rule requiring corroboration of a witness in this kind of a case before placing credence in the testimony given. People living in the same house with the claimant and her husband were called by defendant and gave testimony that they knew of no trouble between the claimant and her husband. This, of course, was addressed to the board and we only notice it to the extent of observing that the matter was of such a nature that common delicacy would withhold proclamation thereof from the housetop. That the wife did not resist her husband to the extent of arousing attention of others in the house is of no deciding significance. See Ridley v. Ridley (Iowa), 100 N. W. 1122.
It is also said the board was in error in excluding a letter claimed to have been written by claimant when she left and in which she stated:
“Now I have done that which we spoke about last night. I can’t suffer this troublesome life any longer. I am going to go away from your sight. I am absolutely independent of you now. _ I will look out for myself and you do the same. It is a big sin according to my conscience that we always scrapped. I am not used to this kind of life. I am going out toi look for work, and I hope that I can find some and we shall be our own boss, and I think this will be more agreeable. It becomes too burdensome to live this kind of life myself and also yourself. I will not write any more here now, but I hope you understand me correctly as I have left. I don’t need your support any longer. I have been too much of an expense to you already, and good bye and forever I will take care of myself.”
We do not pass upon rulings excluding or admitting evidence, as upon a writ of error, and unless we can say that this letter imperatively commanded a different determination than the one made by the board, we cannot set the award aside. With the letter before us we cannot so find.
Was she dependent? If she was living apart from her husband, for justifiable cause, then the statute steps in and declares she shall be conclusively presumed to be wholly dependent for support upon her husband. In such case, the statute leaves no issue of dependency in fact to be tried out, and admits of no finding against dependency even in a case where the wife, through her own efforts, has cared for herself and has made no call upon her husband to meet the marital obligation to support her.
This statute is in recognition of the common-law rule of dependency of a wife living apart from her husband for justifiable cause. The common law held a husband liable for the wife’s support, even to the extent of pledging his credit. In the case of a wife, dependency is a legal status, arising out of a relation in which the law imposes on the husband the duty to support. What the law so fixes it retains until there is a severance of the relation or a valid release from the obligation.
Dependency in case of a wife rests on broader grounds than that of a blood relation, like a mother, sister, or other kindred. In the latter cases actual dependency must be established as a fact, while in the case of a wife there is a conclusive presumption of dependency if she is living apart from her husband for justifiable cause. Though she was living apart from her husband he was the head of a family; she was still his wife, and the separation did not absolve him from the duty of supporting his wife. In re Appeal of Brookland Bank, 112 S. C. 400 (100 S. E. 156).
In Kientz v. Kientz, 104 Ark. 381 (149 S. W. 86), it was held (quoting from the syllabus):
“A husband is bound to support and maintain his wife, though they live separately, if such separation is not due to her fault.”
She could have filed a bill against her husband for separate maintenance, if his misconduct justified her in not living with him. Randall v. Randall, 37 Mich. 563; Page v. Page, 51 Mich. 88; Ross v. Ross, 69 Ill. 569.
But, it is said, she gave her husband notice that she would not look to him for support, and she worked and earned her own living. The legal obligation on his part to support his wife remained even though in her pride she supported herself. The statute quoted makes the legal obligation final on the question of dependency in this kind of a case.
After this case reached here the defendant petitioned the board to set the award aside. This the board declined to do on the ground that the case was pending here and the board could not act. Defendant now petitions for a supplemental writ of certiorari to review such refusal. We find no action of the board to review. The petition has not been acted upon by the board. Until the board takes action we can take none. If the petition is for a rehearing of the case by the board it should be denied. The board has no power of rehearing. Pocs v. Buick Motor Co., 207 Mich. 591; Diebel v. Construction Co., 207 Mich. 618; Jones v. St. Joseph Iron Works, 212 Mich. 174; Smith v. Port Huron Gas & Electric Co., 217 Mich. 519; Fritz v. Rudy Furnace Co., 218 Mich. 324.
We decline to grant the writ to review the refusal of the board to pass upon the petition. In the case before us the award made must stand.
The award is affirmed, with costs to plaintiff Aino Martilla.
Fellows, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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McDonald, J.
This is an action to recover damages for the failure to perform an oral promise to purchase a vendee’s interest in a land contract, the face value of which was $1,046.50. The plaintiff was the owner of certain real estate in the city of Pontiac, and the defendant, Patrick Dinnan, was a real estate broker. They entered into an agreement in which Dinnan undertook to sell the plaintiff’s property, or exchange it for other property suitable for carrying on the business in which the plaintiff was engaged. The defendant had some negotiations with one Norman Buckner, wherein it was proposed to exchange the plaintiff’s interest with Buckner. The plaintiff’s interest in his property was represented by a land contract on which there was $1,880.51 paid. Buckner was to pay $600 in cash, $284 by promissory note and to assign to plaintiff an equity in a contract of property on Stowell street, which equity amounted to $1,046.50. The plaintiff was not satisfied with the terms of the Stowell street contract, nor with the location of the property. He claims that, in order to induce him to make the exchange with Buckner, the defendant promised that, when the plaintiff secured other property suitable to his business, he, Dinnan, would pay him in cash the face value of the Stowell street contract. With his plea of the general issue the defendant gave notice of several special defenses, one of which was that the agreement was void under the statute of frauds. The case was tried before a jury and a verdict rendered for the plaintiff in the sum of $737. The defendant took out a writ of error but did not succeed in filing his bill of exceptions in this court. The case is here under Supreme Court Rule No. 11, to be heard on the record and the special assignments of error filed herein.
Some of the assignments of error will not be discussed because a consideration of them necessarily involves matters which are no part of this record. The error presented by assignment No. 3 is as follows:
“According to plaintiff’s declaration the cause of action purports to be based upon a parol promise to purchase a chose of action of greater value than one hundred dollars, and was therefore void.”
It is the defendant’s claim that the contract upon which the cause of action is based is unenforceable because it comes within the statute of frauds.
As to plaintiff’s claim we quote from his brief as follows:
“If we are correct in onr interpretation of the contract that the thing purchased was Finkelstein’s willingness to negotiate further, and that the agreement on Dinnan’s part to take the Stowell street contract for cash was merely the price Dinnan was paying for such willingness, then we submit that the contract is not within the statute of frauds at all, for the reason that the real subject-matter, to-wit, Finkelstein’s willingness to negotiate further, is not a chattel, and if it is not a chattel the contract is not within the statute.”
We are unable to agree with counsel’s interpretation of the contract. The declaration sets up an agreement to purchase in the future for cash an equity in a land contract for which the buyer was to pay $1,046.50.
Section 11835, subd. 1, 3 Comp. Laws 1915, is as follows:
“A contract to sell or a sale of any goods or choses in action of the value of one hundred dollars or upwards shall not be enforceable by action, unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract or in part payment, unless some note or memorandum in writing of the contract of sale be signed by the party to be charged, or his agent in that behalf.”
The contract sued upon was not in writing. It was to be performed in the future. It was for the sale of a chose in action of the value of more than $100. No money was paid and nothing done by the buyer to make it valid and enforceable, as required by the statute. All of this appears in the declaration. Therefore, it does not show a cause of action. It does not count upon a contract for the breach of which plaintiff can recover the damages alleged in his bill of particulars. The judgment cannot be sustained.
As a decision of this question is controlling of the plaintiff’s right to recover, other errors presented by assignments will not be discussed.
The judgment of the circuit court is reversed and a new trial granted, with costs to the defendant.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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Wiest, J.
Bill to enjoin violation of a building line restriction on Hampton avenue in the city of Grand Rapids, and answered by claim of violations by plaintiffs and others to the extent of releasing defendants from observing the restriction in their deed. The lots in question were platted in 1908, and front on the east side of Hampton avenue. The restriction plan adopted in 1909 contemplated high grade residences built on a line 80 feet from the street. The Jones residence is on lot 13 and next to lot 14, and the Oliver residence on lot 12. The defendants own lot 14, except the east 26 feet thereof, and lot 17.
Restriction in defendants’ deed:
“No building shall be built on said lots 14 and 17 that shall be nearer Giles avenue (now Hampton avenue) than 20 feet.”
Restrictions in plaintiffs’ deeds:
“Nothing but a dwelling house shall be built on said lot and that said dwelling shall not cost less than $2,500 and not be nearer the street line than 30 feet.”
The Jones house was built with the main bearing wall at the 30-foot line, with a substantial porch built as a part of the house within the restricted area, and with an extension of the second story a short distance over the porch. This porch at first was open and later screened in the summer and windows put in for the winter. The Oliver house is of like construction,' except there is no extension of the second story over the porch. Other houses on Hampton avenue have their porches within the restricted area.
Defendant purchased his lots in 1920, and proposes to erect a one-story store building to the street line covering the west 20 féet of lot 17 and the west 20 feet of the south 7 feet of lot 14. All the residences in the block have been erected since 1908, with their main house bearing walls 30 feet from the street line, and some of them have inclosed porches of such substantial character as to constitute them rooms of the houses and extending 8 or 9 feet into the restricted area.
Defendants insist that this releases their lots from the restriction, or, at least, prevents plaintiffs from invoking the restriction in this suit. Plaintiffs claim that, by practical construction, the 30-foot restriction relates only to the front bearing walls of the residences, and not to the porches, and the general plan so followed has resulted in a fine residential, street with the houses in line, and such restriction is of great benefit.
When defendants purchased lots 14 and 17 they bound themselves to observe the restriction in their deed, although they claim they were advised that the restriction had been nullified by the erection of the inclosed porches. If defendants are restrained to the terms of their deed they have all their deed gave them.
Have plaintiffs barred themselves from equitable relief in constructing inclosed porches within the restricted area? It is evident that the plan was to have all the houses, fronting on Hampton avenue, built on a uniform line and this, from the very start, was construed to mean the distance from the street to the main front bearing walls of the houses.
Thomas Benjamin, who owned the property in 1909, and opened Hampton avenue and through whom all parties derive title, built some houses on the avenue, and testified at the trial:
“Q. Now, these houses that you built there, where did you place them on the lots ?
“A. Why, 30 feet back from the front of the street.
“Q. What part of the house did you include as the line, your 30-foot line?
“A. The front of the house, the main bearing wall.
“The Court: Not the front porch?
“A. No, sir.
“Q. That did not include the steps?
“A. No, sir. You see, in order to make the houses line up, to make the street look right, some put on wide porches and some narrow, and some don’t have any at all, so have the main part of the house line up.”
William Benjamin, son of Thomas, and a real estate dealer, testified:
“In all cases the restrictions in the deed covering the lots facing Hampton avenue were complied with; we staked out over half the houses on that street according to the building restrictions and set them back 30 feet to the main bearing wall of the house, that is, to the front four walls of the house, 30 feet back, in front of the street line; that was done on all the houses we staked out; there were less than half the houses on that plat that we did not stake out or have anything to do with staking out; I was present and have knowledge of their being staked out.”
The lot owners have not departed from the plan, as construed at its inception by its creator, and the result is that the dwellings are in line and a desirable residence street exists.
Shall this be destroyed because the plan was not construed to place the porches back of the 30 foot line? Surely, the defendants ought not to be permitted to come at this late day and, on the claim that every one has labored under a mistake, take away the very residence value of all the property on the street. Defendants knew, when they purchased their lots, of the building restriction thereon and, while they accepted the same, they evidently did so with the mental reservation that they would not abide thereby if they could avoid the obligation. It constitutes no hardship to defendants to hold them to the restriction, as construed by practical endeavor, but it would be an inequitable hardship to the owners of residences to permit defendants to wipe out all their efforts to make a fine street by permitting them to erect a store building to the street line at the comer. No one, apparently, before defendants appeared upon the scene, questioned the practical construction given the restriction, and it is too late now for defendants to successfully contend that such efforts to comply with the plan of restriction shall be swept aside because of a wrong idea of the strict letter thereof. If it be held that the inclosed porches, within the restricted area, constitute violations of the letter of the line restriction it constitutes no abandonment of the restriction so far as it remains beneficial.
Berry on Restrictions on Use of Real Property, § 375, states:
‘ “The fact that a number of buildings had been erected with the main body of each building located with reference to the building line, and with porches and bay windows extending over the line, indicates a popular interpretation of the' restriction to that effect. If they had been erected under erroneous construction of the covenant, that fact is no evidence of an abandonment of the general scheme.”
Defendants have shown, at the most, no more than an erroneous construction of the restriction as to building line, accepted by all builders as the true interpretation and followed as the plan for making the street desirable for expensive residences. The presumption against abandonment of the restriction as to line is supported by the practical construction under which the scheme of a building line has been preserved. There was no abandonment under the evidence. See Morrow v. Hasselman, 69 N. J. Eq. 612 (61 Atl. 369); Brigham v. H. G. Mulock Co., 74 N. J. Eq. 287 (70 Atl. 185); Rogers v. Zwolak (Del. Ch.), 110 Atl. 674. The principle of practical construction was recognized in James v. Irvine, 141 Mich. 376.
The restriction was not abandoned altogether, but only pro tanto, and that in an effort to comply therewith, and a material and beneficial part remains and has been uniformly observed and will be protected.
In Howland v. Andrus, 80 N. J. Eq. 276 (83 Atl. 982), a second-story projection above an open porch extended 4 feet beyond the restriction line, and was held a violation and it was insisted that plaintiff there could have no relief. Upon this question it was said:
“In determining whether the complainant is chargeable with such inequitable conduct as to disentitle him to enforce any rights whatever under a restrictive contract, the whole situation and circumstances as to the nature, burden and object of the restrictive contract, and the extent to which the violation by the complainant affects the contract, must be considered as well as the circumstances of its violation. The denial of the remedy or relief upon the covenant is not a conclusion which follows necessarily upon the fact of complainant’s violation, but the denial of complainant’s right to equitable relief for protection of his equitable right depends on the whole circumstances of the case, as affecting his own equitable status.
“The violation to have this effect must, .! think, be such as to affect in a substantial manner the benefit to the adjoining lots of the covenant imposed on the complainant as part of the consideration of the grantor’s deed to complainant. Considering the manifest general object of the covenant and the effect of this structure, this projection of the second-story a few feet beyond the sixty-foot line does not, in my judgment, so substantially affect the beneficial effect and operation of complainant’s own covenant as to dis-entitle complainant to its enforcement against purchasers of the adjoining lots with notice of the location before their purchase.
“There_ is a further reason why the complainant’s construction of his dwelling on these lines cannot be considered as an inequity which deprives him of any relief on his grantor’s covenants.
“It is proved that before locating and building his dwelling, he submitted the plans to his grantor, Mr. Bardsley, then still the owner of the adjoining lots on both sides, and that Mr. Bardsley approved and consented to them as complying with the restrictions, and the dwelling was erected after such approval. This approval was proved, it is true, by parol evidence dehors the deed, and no evidence of defendant’s knowledge of it has been shown. But while this fact would be important as a defense if the application now were made to enforce against defendant a parol variation of the covenant in the deed of which defendant has constructive notice, it is not entitled to any decisive consideration upon the precise question now to be solved, viz., whether the complainant’s location of the upper story of his dwelling a few feet within the restricted line is, on the whole circumstances of the case, such an inequity that he should be deprived of any equitable relief upon the covenants as to the adjoining lots. And in solving that question of complainant’s status, the conduct of the grantor, who then owned these adjoining lots, in approving the construction as a proper location of the line under the covenant, is vital and decisive.
“Defendant’s contention is that this location, even if consented to by the grantor, had the effect ipso facto of relieving the adjoining lots from any burden of the covenants as to the restricted line, so far as they were imposed by the deed itself, and that any subsequent grantee without notice of the location by consent and with notice only of the restriction in the deed, holds the adjoining lots free from any restriction as to the distance of the dwelling from Wildwood avenue merely because a portion of the dwelling is within the line.
“In my judgment, the matter of,the location of the dwelling on the line in this case was somewhat analogous to the location of a boundary, and locations of dwellings not being such as apparently and substantially affect the beneficial operation of the covenants should not, as between subsequent purchasers claiming under the parties agreeing on the location, be treated as if made without agreement and under the assertion of independent adverse rights under the covenant, or in violation of it/’
This case also answers the contention made here that the projection above the porch of the Jones house prevents equitable relief. There has been no waiver by plaintiffs of their right to insist upon an observance of the restriction. An honest interpretation, though a mistaken one, accepted and acted upon, constitutes no waiver.
Defendants insist that the suit cannot be maintained because the Oliver house is used as a two-family apartment in violation of the restriction that “nothing but a dwelling house shall be built,” etc. There might be force in, this if the Olivers were sole plaintiffs.
The same question was presented in Compton Hill Improvement Co. v. Strauch, 162 Mo. App. 76 (141 S. W. 1159), and it was held, that the fact that one of the plaintiffs had violated restrictions would not prevent the granting of injunctive relief. We so rule.
The circuit judge entered a decree restraining defendants from, violating the restriction in their deed.
The decree is affirmed, with costs to plaintiffs.
Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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Steere, J.
Plaintiffs are husband and wife, as are also defendants. Plaintiffs filed this bill to recover damages under claimed rescission of a contract of purchase of 120 acres of land in Alcona county, alleged to have been induced by fraud and misrepresentation on the part of John Jozwiak, and for such other or further relief as the court might determine.
The false and fraudulent representations alleged in plaintiffs’ bill as inducing them to enter into the contract are that Jozwiak assured them:
“said lands, which were wild lands, were excellently adapted to agricultural purposes; that they were well worth $30 per acre, and that such was the going market price for similar lands in the community; that improved lands of similar quality and situation were selling at prices equal to those paid for land bordering on the city of Detroit; that the land was easily cleared, and that one man could clear three or four acres of it in a day, and that stumps could be taken out at an expense of three cents each; that it would raise hay, wheat, rye and other crops equally with the best of farming land, and that the land, shown plaintiffs was a fine piece of land for farming purposes, and would make him money when so> used.”
Defendants answered at length in denial and the case was thereafter heard on pleadings and proofs taken in open court, resulting in a decree in plaintiffs' favor finding the material facts charged in their bill to be true, canceling the contract and awarding damages in their favor. As plaintiff John Beloskursky and defendant John Jozwiak were the active parties in this transaction and their wives did not directly participate in the negotiations, the two litigating Johns will be referred to for convenience as plaintiff and - f endant.
Plaintiff was a native of Russian-Poland and spoke the Polish language. In 1910 he came from his native country to America and located in Detroit where he found work in the Ford and other automobile factories. His wife and children came about 8 months later. He subsequently bought on contract a house and lot in Hamtramck at an agreed price of $3,700, paid $300 down and deferred payments of $50 per month. He made $600’s worth of improvements on the house and payments on his contract until his equity in the property amounted to about $1,600 in 1918. He was then earning from $5 to $6 a day, had saved beside his investment in the house and lot about $600 and picked up some English by going to Ford school, etc., and stated when called as a witness that he did not speak it very well when he met defendant in 1918 but. had “learned on the farm.” His attempt to testify in English was such that an interpreter was found, necessary and most of his testimony was given through an interpreter. He was brought in contact with defendant through a Polish-speaking real estate agent of Hamtramck named Halecki to whom he had expressed an intention to exchange his place in Hamtramck for a farm. In Russia his employment had been on railroads. He had never wprked at farming nor ever been on a farm in this country, as he testified; knew nothing of farm lands, labor or values, qualities of soil, costs or methods of clearing or anything of the matters as to which he claimed defendant deceived him.
Defendant was an experienced business man of Polish descent and speaking that language who had come to America when about 15 years of age and lived practically all his mature life in Michigan. He had at different times engaged in merchandizing, organized a Polish insurance society and dealt in real estate in Alcona county and other places. He had some years previous bought a quantity of cut-over land in that part of the State for $4 an acre and was engaged in promoting a colonization plan. While- so engaged in selling these lands he made frequent trips to that section, and had been doing so for some time prior to the spring of 1918. He advertised in various ways and, amongst others, sent a prospectus in booklet form printed in Polish to real estate agents, and distributed copies in front of Polish churches in Detroit. Halecki had a copy of this and assisted in making the deal in question, charging plaintiff $100 for his services.
Early in the spring of 1918 negotiations reached a point where plaintiff went north with defendant to look at the 120 acres. They were accompanied by another prospective customer of defendant called by him Chowhurtski and reached Harrisville about 2 a. m. on Sunday where they first went to a hotel. During the day defendant took them to the land in question, a distance of 8 miles, and walked over a portion of it'with plaintiff. He then went with his other customer to show him some land about three miles away, leaving plaintiff with a man named Stocki who lived near the 120 acres. Though not conceding he was defendant’s agent, Stocki admitted he did little jobs for him, drove people around for him in his car, and furnished meals at his home to people he brought there, for all of which defendant paid him. Plaintiff testified that while defendant and the other man were gone Stocki lauded the 120 acres he contemplated buying. It rained a part of the day and they drove back to Harrisville in the afternoon, returning south' by train that night.
This 120 acres is what is known as pine stump land, unimproved and wild, grown up to brush with pine stumps scattered over it, the soil being light and sandy and unfertile, of small value for agriculture. The evidence convincingly supports the findings of the trial court that it was “practically worthless for farming” and “not worth to exceed $6 an acre.”
On April 25, 1918, a lengthy contract was executed by the parties in lialecki’s office under the terms of which plaintiff purchased the 120 acres in Alcona county for $3,500, $1,400 down and the balance of $2,100 in semi-annual payments of not less than $50 for the first two years and thereafter at the rate of $100 each year, at least $900 to be paid within the first 5 years, after which deed would be given and mortgage taken for the balance, with interest on all sums at any time unpaid at the rate of 6 per cent, per annum till due and 7 per cent, thereafter until paid, payable semi-annually. Subsequent paragraphs bound plaintiff to use the premises “for residential purposes only,” keep the “buildings and improvements” on the place insured and in good repair, pay all taxes when due, made time “the essence of this contract,” gave defendant the right to immediately declare the contract void, retain whatever had been paid with all improvements and dispossess without notice, as a tenant holding over, if plaintiff failed “to make any of the payments or perform any of the conditions above set forth, in the manner and at the time above limited therefor.”
One of the many paragraphs of the contract provided that the first payment of $1,400 would be made by assignment to defendant of plaintiff’s “equity in a certain land contract,” covering the Hamtramck house and lot. This was done, and in May, 1918, plaintiff, with no experience, equipment or means beyond the $600 he had saved, moved from Detroit with his family and established his home upon this unimproved 120 acres of sandy pine stump land in Alcona county.
While the testimony is in conflict as to defendant making false and fraudulent representations which induced plaintiff to make the contract and act upon it, the attending circumstances of the transaction give strong support to plaintiffs testimony upon that subject. That the representations charged in the bill were grossly untrue, if made, is undisputed. Plaintiff’s positive testimony that they were made to bim by defendant and relied upon has convincing circumstantial corroboration. We find no occasion to disturb the findings of the trial court upon that issue of fact..
It is further contended that plaintiff has forfeited his rights if any by laches and estoppel, in failing to promptly rescind on discovering the falsity of defendant’s representations and consenting to a change in the contract thereafter. This bill was filed in May, 1920, about two years after the contract sought to be set aside was entered into. That plaintiff moved upon this tract of wild land densely ignorant of the quality of its soil, possibilities and value, with full confidence in the statements defendant made to him on that subject, is evidenced by what he did as well as what he said. He risked his all and assumed an indebtedness against it of $2,100 under a stringent contract making time of its essence. He made a bona fide settlement upon the land, paid $200 for lumber to build a place in which to live and built a building 16 by 14 which he thought to later use as a granary but occupied as his residence while there, bought a team and cow, cleaned up 15 or more acres of land and planted crops which scarcely returned the seed, bought fence posts and set them around the 120 acres, spent $100 sinking a well 48 feet deep, and engaged with his wife in other efforts to improve the place and make it produce. He found in time by hard experience that the soil was poor and unproductive, did not furnish even sufficient pasture for his cow, and when he came to dig his well 48 feet deep, discovered' the soil was “sand on tqp, loam about a foot, about a half foot of gravel, and the rest white sand all the way down.” His discovery of these things was gradual. Defendant had talked to him in his native tongue as a fellow countryman with assertions as to the then market value of the wild land, good quality of the soil, inexpensive clearing, market for pine stumps and glowing assertions of future possibilities, which he testified he believed and acted upon and when, as plaintiff testifies, he told him he was not a farmer and did not know about farm land, defendant ostensibly put himself in his place, replying, “I got children too, big family, I don’t cheat any man. I know how it is to live.” His doubts only developed as they were forced on him by hard experience. In the fall of 1918 after his first summer’s efforts, he made complaint to defendant indicating that things were not as represented, to which the latter replied that if plaintiff was not satisfied he would sell the place for him as soon as he could, and loaned him $25 for his immediate necessities. In April, 1919, when plaintiff intimated a purpose to leave the place and said he “couldn’t make it go,” defendant said he would help him out, promised that when the place was improved a little more he would sell it for him, made him a further loan of $175 and induced him to try the land for another season. He again bought seed, cultivated his cleared land and planted crops, which proved a failure as before.
At the time defendant persuaded plaintiff to continue on the place by such assurances and loan of $175, his method of evidencing the increased indebtedness was by their signing an exact copy of their land contract of April 25,1918, date and all, except that he changed the terms of down payments of $1,400 in the original to $1,600 in the copy. Plaintiff signing this copy and-remaining on the place for another season is urged as an estoppel.
Estoppel is an equitable defense. The circumstances of this case do not show conditions making' it inequitable to require defendant to respond because of plaintiff’s delay and failure to do that which in fairness and equity he should have done. He had faith in defendant, was not suspicious of him until the truth by slow degrees was forced upon him, and on defendant’s persuasion and promises delayed from prompter action. During much of the elapsing time his claim was under consideration for adjustment between them. Although their testimony is in direct conflict on controlling issues of fact, the testimony of both parties shows negotiations between them for adjustment of plaintiff’s claims at various times after he first made complaint in the fall of 1918. Defendant’s home was in Bay City and plaintiff was either on the land in Alcona county or working elsewhere to earn money to support his family. He found it difficult to communicate with defendant as he gradually realized conditions were not as represented, and got word or saw defendant when and as best he could, at various times, getting his brother to write letters to defendant, which we do not discover were answered. Asked on cross-examination:
“Q. Did you ever at any time go to Jozwiak and offer him back that 120 acres?” He replied:
“Yes, I drove from here with a horse to Bay City and see wife. I didn’t see Jozwiak, just saw his wife. I asked him to take it back from me. I told him every time I met him that I wanted to give him back the 124-acre farm. I told him that when I got the $25 from him and again when I got the $175 from him. Every time when I see him I tell him give back that farm. I can’t live on it. Can’t make one cent.
“Q. But you never offered to move off the farm and give it to him?
“A. He say T want to make something for you.’ I wait two years. I can’t wait more.
“Q. Did you ever offer that contract back?
‘A. Yes, I did.
“Q. Where?
“A. Halecki’s office.
“Q. Who was there at the time?
“A. Halecki and Jozwiak.
“Q. Did you have the paper there at Halecki’s office then?
‘A. Yes.”
The story of the affair as disclosed by the record justifies the following conclusions of the trial court:
“Plaintiffs had been, prior to this time, and were at the time, protesting, and thereafter continued to protest, to defendants, that they had been defrauded; and that they did not enter into or consent to the loaning of the $200 as a compromise of their differences, but solely in reliance on defendant’s assurance that their doing so would place him in position to dispose of the land again, from the proceeds of which sale they were to be held harmless. The court finds further the plaintiffs had no intention to waive any rights, and that they had no intimation or knowledge that it might be claimed they, had lost or waived any rights by acceding to defendant’s suggestion.”
Plaintiff testified, and the circumstances bear out his claim, that there was no intention on his part to waive his right to rescind.
“A waiver may be express or implied, but in the absence of an express agreement a waiver will not be presumed or implied contrary to the intention of the party whose rights would be injuriously affected thereby, unless by his conduct the opposite party has been misled to his prejudice into the honest belief that such waiver was intended or consented to. To make out a case of waiver of a legal right there must be a clear, unequivocal and decisive act of the party showing such a purpose or acts amounting to an estoppel on his part.” 27 R. C. L. p. 909.
The equitable basis of estoppel in pais is wanting here. Delay of itself does not operate as such unless in the meantime the adverse party has changed his position to his disadvantage or superior rights of third parties have intervened. No such conditions are disclosed by this record.
Before this suit was commenced defendant had sold the Hamtramck property for $3,950. As to it the court in awarding damages to plaintiff allowed him $1,400, the agreed value of his equity in it according to the canceled contract between the parties. Six hundred dollars was also awarded him as the value of improvements made on defendant’s restored 120 acres. Both items, amounting to $2,000, were made a lien on said land enforceable by foreclosure proceedings. In addition to that amount the court also awarded plaintiffs the sum of $300 “for further damages sustained by them,” with execution therefor. We do not find the items of this last mentioned sum satisfactorily sustained by the proofs. The decree will be modified by eliminating that amount.
So modified it will stand affirmed, without costs to either party.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Moore, JJ., concurred. | [
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Fellows, C. J.
(after stating the facts). Judge Marschner was right in holding that the facts set up in the supplemental bill constituted a cause of action at law rather than grounds for relief in a court of equity. If Thomas is entitled to recover from Banks upon the facts alleged it is for money had and received by Banks under a voidable contract avoided by Thomas on attaining his majority. Under these circumstances it was proper to transfer the case to the law ■side of the court. Von Hoene v. Barber, 215 Mich. 538.
Counsel for Mr. Banks insist that the order of Judge Dingeman was a final, appealable order and res adjudicada of the rights of the parties. We do not determine the question. It may be so pleaded on the law side. By making the order of transfer the trial judge does not circumscribe the issue on the law side or determine in advance the questions which may be there raised.
That portion of the order of Judge Marschner which continued Mr. Banks’ bond has been vacated by consent of counsel for Mr. Thomas. There is no need to issue a writ of mandamus to compel the doing of that which has already been done.
Upon the state of the pleadings the answer of the defendant must be taken as true. From it it appears that the procedure fixed in the order of transfer was suggested by counsel for the present plaintiff, and that no objection was then made to the time fixed for filing the pleadings or for trial. Under these circumstances the propriety of these portions of the order may not be raised in this court for the first time.
The writ will be denied, with costs.
Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred. | [
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] |
McDonald, J.
The defendant was convicted under an information charging him with breaking and entering a bank at Lawrence, Michigan, with intent to commit the crime of larceny and burglary. It was the theory of the people that in the nighttime of October 14, 1921, the defendant and three companions, driving a Maxwell automobile, stopped near the Home State Bank in the village of Lawrence. That the defendant left the car and accosted one Fred Kennedy, the night watchman, who was standing on the sidewalk near the bank, that during the conversation defendant drew a revolver and ordered Kennedy to put up his hands and turn his face to the door of the bank. He was then blindfolded and his hands tied behind his back. The men entered the bank through the transom over the door. They stripped the combination knob oif the door of the vault and endeavored to blow it open by the use of nitro-glycerine. In this, however, they were not successful, and as daylight was approaching they abandoned the work. Before leaving they tied Kennedy to a post in the basement, cautioning him to remain quiet and telling him that they would return. About six weeks later defendant and a companion named Bums were arrested in a rooming house at South Bend, Indiana. In their room the officers found nitro-glycerine, soap, detonating caps, revolvers, wires, blankets and other tools commonly used by burglars in their business. The defendant admitted to the officers that these tools and other articles belonged to him. At the time of his arrest he had a Maxwell car in a garage in South Bend, which Kennedy identified as the car used by the men on the night of the attempted robbery of the bank in Lawrence. He also identified the defendant as the man who held him up before the bank at that time. On the trial the defendant was not sworn as a witness. His defense was an alibi. He was convicted and sentenced. His case is now here on writ of error.
The first error discussed by counsel for defendant in his brief is under the familiar heading: “Improper argument and remarks of counsel.” In most cases where this objection is made, the remarks by way of comment on the testimony of witnesses are more vituperative than descriptive, but we -find nothing of that character in this record, though counsel says:
“In old Athens when the whole populace sat in juries and the water clock was the only method of arresting an orator’s progress, this was the'style of address, abuse, insult, vilification, lies, contemptuous aspersions, — these were legal methods of frenzied argument. Greece fell because of the general injustice. Shall this method of argument be sanctioned in this great commonwealth? * * . * When the zeal or the depraved instincts of counsel leave them to violate the amenities of life, or to forget their professional standards as gentlemen, or to descend into the sawdust arena and to use expectorations as argument, the courts of last resort are earnest in checking violation of high professional conduct. They do this that public esteem and respect for the courts shall not deteriorate or diminish.”
It must be admitted that if counsel has correctly characterized the prosecuting attorney’s address to the jury, the court room on such occasion was no place for the goddess of justice. “Justice, when equal scales she holds, is blind.” Being blind she may not have seen the prosecutor “descend into the sawdust arena,” and there “use expectorations as arguments,” but there was nothing to prevent her from hearing that “frenzied argument,” such as the orators of “old Athens” were wont to deliver and which contributed to the fall of Greece. If the prosecutor indulged in such misconduct, the trial judge should have rebuked him and cautioned the jury against being influenced by this ancient style of oratory. . Turning to the record we find that the prosecuting attorney cast the following ‘‘contemptuous aspersions” on the character of the three alibi witnesses from Chicago:
“I say to you that I sincerely believe, I believe from the bottom of my heart, had we the proof, could we show it, we would show that the other three men at least that got out of the car in the village of Lawrence that morning, were Parker, O’Keefe and McIntosh.”
The prosecutor should not have offered an opinion which had no basis in fact. Its effect, however, if it had any, was on the credibility of the witnesses whose testimony he was discussing. By competent evidence the people very conclusively showed that these witnesses were not testifying truthfully as to the defendant’s presence in Chicago on the night in question. Their testimony was not entitled to any credit if the testimony of the people’s witnesses was to be believed. Under the circumstances, the remarks of the prosecutor were without prejudice, particularly in view of the caution of the court when it was called to his attention.
Objection is also made to the statement of the prosecuting attorney to the jury, “that the respondent has a criminal record and that it stands undisputed and uncontradicted.” This statement was warranted by the admission of the defendant to the officers at the time of his arrest, that he had served time in a penal institution in Pennsylvania.
We have examined all of the alleged improper remarks of the prosecuting attorney as well as his conduct in the cross-examination of witnesses, and in them we find no reversible error.
Of the alleged errors in the admission and rejection of testimony, we do not deem it necessary to discuss any except that relating to the introduction in evidence of the tools and articles found in defendant’s possession at the time, of his arrest. Of this counsel says in his brief:
“These articles were claimed on the part of the prosecution to be such as are used by burglars. The finding of these implements and tools was about seven weeks after the time the alleged offense is claimed to have been committed. We contend that the finding of these tools was too remote to warrant the introduction of the same in evidence.”
Without regard to the length of time intervening between the commission of the offense and the finding of the tools in defendant’s possession, they were admissible as a part of the res gestm of the arrest. If there were any merit to counsel’s objection that the time was too remote, it would apply only to the use made of the evidence and not to its admissibility. Such tools found in the possession of the defendant soon after the commission of the offense could be cpnsidered by the jury as evidence of the intent with which the breaking and entering were made. But in his instructions to the jury the circuit judge did not permit the evidence to be used for this purpose. He instructed the jury as follows:
“This evidence was permitted to be used by the court not to show the substantive commission of the offense charged against the defendant in this case, but it was permitted for the purpose of showing the character of the defendant, if it does show anything to help the jury, and the conversation of the defendant with the officers at the time in relation to the same.”
This restriction in the use of the testimony was at least as favorable to defendant as he could reasonably expect.
We have considered all of the alleged errors presented by the record. Most of them we have not specifically mentioned because we do not desire to extend this opinion by discussions that would serve' no useful purpose. While some testimony got into the case which we think should have been excluded, we are satisfied that it was wholly without influence on the result. The vital question in the case was the identification of the defendant. This was conclusively established by competent evidence. We are convinced that if there was any error it was not prejudicial.
The charge of the court was not open to the objections made to it by counsel. It. was fair and impartial and clearly protected defendant’s right under the law and the evidence.
We find no reversible error in the record.
The conviction is affirmed.
Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred. | [
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Moore, J.
This case has been in this court before; see Grand Rapids Trust Co. v. Nichols, 199 Mich. 126. In the opinion handed down it was held that a trustee in bankruptcy represented not only the bankrupt but certain creditors mentioned in the opinion, and that, if the averments made in the bill of complaint were sustained in a trial upon the merits, the plaintiff would be entitled to a decree. After the opinion was handed down, answers were filed by various defendants in which different claimed defenses were made, and Mr. Kingston, the plaintiff herein, was made trustee. A trial was had upon the merits. So large an amount of evidence was put in that it requires upwards of 2,000 printed pages to contain it. The chancellor filed a very carefully prepared opinion from which we quote freely as follows:
“The plaintiff herein, as trustee, brings suit to recover from the defendants certain sums claimed to belong to a 'trust fund’ for which it is alleged the defendants are liable growing out of conditions leading to and connected with the organization and the issuance of stock, preferred and common, of the Grand Rapids Motor Truck Company, a corporation.
_ “For many years an organization has existed in the city of Grand Rapids known at different times under the names of board of trade, chamber of commerce and association of commerce. The organization was composed of public spirited and patriotic citizens of the city of Grand Rapids, who worked in common and without compensation to build up and advance the industrial, economic and civic conditions of the city. In 1911, as in other years, the organization had a committee composed of one hundred of its members which was known as the 'industrial committee,’ or the 'committee of one hundred of the association of commerce.’ The duties of this committee were along the line of increasing and strengthening industries of the city. The organization always had a salaried secretary, and in 1911 the secretary was Mr. Martin C. Huggett. One of the duties of such secretary was to locate and bring to the attention of the association of commerce and assist in bringing to Grand Rapids new and desirable institutions. For some time it had been, rumored in the city that the furniture industry, a woodworking industry, was opposed to metal working industries coming to Grand Rapids, the alleged reason being that the metal working industries paid higher wages than the woodworking industries, and that to bring metal working industries here would increase the price of labor generally. While this rumor was denied by the furniture men, yet it became persistent, and so in refutation of such rumor, the members of the association of commerce, including furniture men, bankers, office men, business men, professional men and others having learned of the public benefits derived from the automobile industry in other cities in Michigan, solely for civic purposes, endeavored to bring to Grand Rapids some branch of the automobile industry.
“In 1907, Lembert W. Coppock, living at Marion, Ind., a mechanical engineer, assembled a motor truck, and a company called the Coppock Company was organized to manufacture and sell such truck. This organization operated about two years and then new capital was brought to the company, and at the same time (1909) the Coppock Company was reincorporated under the name of the Decatur Motor Car Company, moving to Decatur, Ind., at that time. This last' company discontinued making trucks and engaged in making passenger automobiles, continuing therein for a year and upwards. When the reorganization was effected, Mr. Coppock, who was connected with the Coppock Company, did not remain with the Decatur Motor Car Company. In 1910, Mr. Coppock brought out a new truck, which promised success as a marketable proposition. In the spring of 1911, the Decatur Motor Car Company was reorganized and new capital invested therein, and the Decatur Motor Car Company then arranged with Mr. Coppock to return to the company, bring with him his new truck plans, and the company then took up the manufacture and sale of such new truck and continued therein until about the time the Decatur Motor Car Company conveyed its assets to the Grand Rapids Motor Truck Company.
“In 1907, Mr. Coppock had invented a gasoline engine primer, a device calculated to materially aid in starting gasoline engines, which device would, in a simple, single and easy effort, inject forcibly a certain quantity of gasoline into the head of each cylinder, thereby causing the engine to start upon a slight turn of the engine with the crank, and at times causing it to start upon pressure of the battery button.
“Upon the first reorganization of the Coppock Company, this primer device was transferred to the Decatur Motor Car Company. Upon the assembly of the second truck undertaken to be manufactured at the last reorganized Decatur Motor Car Company, a patent upon a certain other invention was applied for and claimed by Coppock, being a patent upon the method of suspension of the radiator in a more advantageous placing of the engine upon the chassis, giving a more even distribution of the load to be carried.upon the truck. Upon the reorganization of the Coppock Company into the Decatur Motor Car Company it was arranged that M. E. Brackett should become the manager of the new company, which position he accepted and held during the existence of the Decatur Motor Car Company.
“In the summer of 1911, the Decatur Motor Car Company was involved financially, and it became necessary for the company to obtain new money in order to continue doing business. M. E. Brackett, manager of the Decatur Motor Car Company, was a cousin of Mr. Martin C. Huggett, secretary of the association of commerce of Grand Rapids. The necessities of the Decatur Motor Car Company and Mr. Brackett’s relationship with Mr. Huggett brought Mr. Brackett to Grand Rapids to seek financial aid for the Decatur Motor Car Company, and under escort of Mr. Huggett, Mr. Brackett was brought favorably into contact with and before members of said committee of one hundred, looking to the enlistment of capital from Grand Rapids men and a reorganization and removal of the Decatur Motor Car Company to the city of Grand Rapids and under a Grand Rapids name.
“Mr. Brackett on different occasions before the committee of one hundred, made statements of his claims and representations as to prospects of the Decatur Motor Car Company, its success, and the benefits which would be derived by the city of Grand Rapids should the Decatur Motor Car Company be brought to this city. Such claims and proposals of Mr. Brackett appeared favorable to the committee, and it was decided that Mr. E. Alfred Clements, who was then, president of the association of commerce, together with Mr. Walter Shultus, a certified public accountant, should go to Decatur to investigate regarding the Decatur Motor Car Company. On November 24, 1911, Messrs. Clements and Shultus went to Decatur and on November 25th, obtained a so-called inventory and saw the plant of the concern, made inquiries around the town and at the bank about thé concern, rode upon the truck, and returned and made verbal report of their findings. From this time until January of 1912, nothing was done in regard to the matter, and then Mr. Brackett came to Grand Rapids and endeavored to have the proposition taken over at once by the Grand Rapids men, stating that the proposition of the Indiana concern must be accepted without delay or it would be withdrawn. Upon suggestion and under directions of Mr. Brackett, a plan was outlined for organization of a- new corporation to take over the Decatur Motor Car Company and establish an automobile industry in the city of Grand Rapids. It was Mr. Brackett’s plan that subscriptions to stock for new money to be raised in Grand Rapids in the sum of $100,000 be taken, he proposing that if $100,000 of cash be raised in Grand Rapids, that $50,000 in eash would be raised by him among those interested in the company in Indiana.
“An attempt was made to get such subscriptions in Grand Rapids, resulting in but a few subscriptions in small amounts being obtained and with considerable effort. It was then asserted by Mr. Brackett this plan was too slow and indefinite and the matter must be closed with haste or the deal would be off. He then proposed that a better and quicker plan would be to have a certain number of Grand Rapids men underwrite the sale of $100,000 of the preferred stock and that if they would do so, he would assume to sell $50,000 worth of preferred stock among' those interested in the Indiana concern, and he stated that as soon as the company was organized, the stock would easily and quickly sell to the public, and that those subscribing to such underwriting would only be required to take such amount of stock as they wished to hold and that the balance would be quickly and easily sold to the public; that such underwriting of the sale of the stock would allow the new company to be organized and proceed to business without delay.
“Thereupon it was consented to by several men, who had taken interest in the matter, that an underwriting be undertaken, to which 20 men would be asked to subscribe, each underwriting $5,000 of preferred stock of a corporation to be organized. A so-called underwriting was prepared, and Mr. Fred I. Nichols, a business man of the city, was first to sign such underwriting. Mr. Nichols then assisted with others in getting others to sign the underwriting.
“Mr. Brackett was the manager of the Decatur Motor Car Company, and he proposed to continue as manager in the Grand Rapids concern to be organized. Mr. Nichols, enthused by and relying upon the statements made by Mr. Brackett, had been active in the efforts to organize the new company, his activities being solely and only for the purpose of establishing an automobile industry in the city of Grand Rapids, that the city and its inhabitants might be benefitted thereby. Mr. William F. McKnight, a lawyer of the city (who) had shown some interest in the proposed organization together with others who signed the underwriting .did so as public spirited men and patriotic citizens of the city.
“On the night of February 21, 1912, and without notice to any of the Grand Rapids men, M. E. Brackett, who was a director and the manager of the Decatur Motor Car Company and who had personal knowledge of the financial condition of the company and the value of its property; William J. Vesey, a director of the Decatur Motor Car Company, a financier of Decatur, Indiana, an officer in the bank at which the Decatur Motor Car Company did business in Decatur, and who held stock in the company and had helped to finance the company on two prior occasions, and who knew the financial condition of the company and the value of its property; and John I. Taylor, a director of the Decatur Motor Car Company, a capitalist of Boston, who had invested large sums of money in the Decatur Motor-Car Company and who was familiar with the conditions attending the operation of the company and the values of the property of said company — these three men came from Indiana to Grand Rapids, and on the morning of February 22, 1912, they called several of the signers of the underwriting to the rooms of the association of commerce for the purpose of organizing the proposed company.
“At this time (February 22, 1912), Mr. Nichols and Mr. McKnight were both out of the city, having no notice of any intention on the part of anyone to attempt to organize a company on that day or on any other particular day. Mr. Charles O. Smedley, an attorney of Grand Rapids, was called to the association of commerce rooms and there met these three men from Indiana and several Grand Rapids men interested in the organization, and Mr. Smedley was requested to prepare articles of association for the proposed corporation.
“Thereupon Mr. Smedley, accompanied by Messrs. Brackett, Vesey and Taylor, went to the office of Mr. Smedley where he prepared the proposed articles of association for the corporation, with the assistance of Brackett, Vesey and Taylor, in the matter of the description of the property proposed to be transferred to the new corporation and the actual value thereof.
“Later in the day, on February 22, 1912, and after the articles of association had been prepared, seven persons signed and acknowledged the articles, including Messrs. Brackett, Vesey and Taylor. No notice was given of any meeting for the organization of this company to any person to be held on February 22d, and no waiver of such notice was signed at the time of the meeting or at the time of the signing of the articles of association on that day, and all that was done on that day by way of organization was without notice and without waiver of notice on the part of any organizer of the proposed corporation.
“The first information Mr. Nichols had of the attempt to organize the company was obtained from a newspaper item which he saw several days later while he was still out of the city. Upon arriving in the city, Mr. Nichols immediately interviewed others interested in launching the enterprise, and after some investigation, he expressed positive disapproval of the organization, refused to have anything to do with the organization, and he referred to Mr.- Brackett, in the presence of Mr. Brackett, in very uncomplimentary language and declared that he would have nothing to do with the enterprise. Mr. Nichols while out of the city at a later date, also sent a telegram to a meeting of persons who had signed the underwriting in _ which he declared that he would have nothing to do with the enterprise; he charged that Mr. Brackett had failed to do as he agreed to do as indicated by the so-called underwriting, and that the values of the Decatur Motor Car Company’s tangible property were not as represented, and that he would have nothing further to do with the matter of the organization of the new company and that he would so advise his friends, who had signed the underwriting.
“Immediately upon the statement being made by Mr. Nichols opposing the organization of the company, a special committee from signers of the underwriting was appointed to investigate the charges made by Mr. Nichols. This special committee caused to appear before it Mr. Brackett and Mr. Shultus and had before it available documents, and after making a thorough investigation of the matter, the committee reported favorably to the claims of Mr. Brackett, and their favorable report was made in good faith and accepted by the organizers of the new company in good faith, and the effort to complete the organization was continued in good faith.
“On February 22, 1912, Brackett, Vesey and Taylor gave to Mr. Smedley the details as to the property described in the articles of association and the value thereof, and these three men (Brackett, Vesey and Taylor) each signed and made oath before a notary public to an affidavit in writing attached to the articles of association, as required by Act No. 146 of the Public Acts of 1907, stating That they are three of the organizers of the Grand Rapids Motor Truck Company, whose articles of association are hereto attached; that they know the property described in article 7 of said articles of association and taken in payment for capital stock, and that the same has been actually transferred to such corporation and further say that said property is of the actual value of $868,256.’
“Messrs. Brackett, Vesey and Taylor had been for some time prior to the making of this affidavit, and then were connected with the Decatur Motor Car Company and owned stock in the company; were directors of the company, and by experience and direct contact with the company knew and had means of knowing the exact financial condition of the Decatur Motor Car Company and the value of its assets. No Grand Rapids citizen had any knowledge as to the value of the property of the Decatur Motor Car Company, and no means of knowledge were available to the Grand Rapids men as to the value of the Decatur Motor Car Company, other than as told to them and as represented by these three men who made this affidavit upon the articles of association. These defendants also were reliably informed that Brackett, Vesey and Taylor had accurate knowledge as to the facts which they made oath to in this affidavit, and had no reason for suspicion that such affidavit was not truthfully made.
“The property turned over to the organization in payment for stock was itemized and its value sworn to by three of the organizers as required by law, and a reasonable and sufficient investigation under all the circumstances of this case was made by the Grand Rapids men as to the character and value of the property taken by the new company in payment for capital stock, and it was accepted in the best of good faith by the Grand Rapids men who were organizers of the new company.
“John I. Taylor and M. E. Brackett each subscribed to the articles of association as trustee, and it appears that they were trustees for persons in Indiana who held stock or were interested in the property of or as creditors of the Decatur Motor Car Company, and that those stockholders and interest holders had am arrangement with said Taylor and Brackett of a private and personal character for the holding of their stock and interests in said Decatur Motor Car Company in the corporation to be organized, and as such trustees and in their own .right the said Taylor and Brackett were each to take from the new company such an amount of stock as would represent the holdings and interests of those whom they each represented in the stock and property of the Decatur Motor Car Company, including their own holdings. The arrangement which was made and entered into between Brackett as trustee and Taylor as trustee for those who held interests, or rights in the Decatur Motor Car Company, which it was proposed to bring to Grand Rapids and merge into a new company, was known only to themselves and was of no interest to the Grand Rapids men. The Grand Rapids men did know that whatever interests were claimed by the Indiana men, such interests were to be held by Bracket and Taylor as trustees, and the Grand Rapids men knew that as such trustees, Brackett and Taylor, according to their affidavit in the articles of association, paid for common stock in said new company in property which was held by the Decatur Motor Car Company as shown by the articles of association, of the value of $296,628, and for which there was issued to said trustees 2,966.28 shares of common stock.
“In accordance with the declared terms of the articles of association and as shown by the affidavit attached thereto of Brackett, Vesey and Taylor, who were known to have positive knowledge as to said property and its value, the said common stock was fully paid for and duly issued to said trustees and held by them as third parties, as private holders of said common stock, with full right to dispose of it ■as they wished to do. For reasons known to Brackett, ffie indulged the plan of giving with each share of preferred stock purchased and paid for, a, share of the •common stock which was issued to him as trustee •and held by him as trustee, being fully paid for. This lie had a right to do so far as the corporation was concerned. The articles of association showed this stock to be paid for in full. The affidavit made by three organizers in compliance with the law showed that the stock was paid for in full, and no stockholder or organizer defendant in this suit had any knowledge that the property included in the articles taken in paymént for said capital stock, either common or preferred, was of less value than as stated in the articles of association, and no defendant herein had any notice or suggestion that there was any fraud, misrepresentation or deceit in the fixing of the value of the property as stated in the articles of association. The testimony in the case does not establish the claim of the plaintiff that the patent No. 888,226 complained of herein was not worth the amount stated in said articles of association for which it was taken in payment for capital stock at the time of the transaction. The most dependable testimony in the case upon the value of that patent) at the time of the transaction is to the effect that, had the patent had legal protection and had goods been manufactured and placed upon the market in accordance therewith, without delay, that the patent was worth as much or in excess of the amount as stated in the articles.
“There was no plan considered by the Grand Rapids people or these defendants in which it was contemplated by any of the terms of the organization that bonus stock was to be given with any purchase. It does appear that Brackett as trustee, voluntarily and without authority on the part of the stockholders (with one exception) mailed and delivered to the Grand Rapids men who paid for preferred stock an equal amount of the common stock held by him as trustee, but such common stock had been fully paid for to the company and was then held by Brackett as trustee in the interest of third parties, and in the transfer of such common stock, the company had no right or interest. If the men who owned this common stock wished to enthuse or stimulate the putting up of new cash to bring life and financial sustenance to this concern by giving this stock, which was fully paid for, that was the business of the individual, and no concern of the corporation.
“The articles of association were originally drawn by Mr. Smedley on February 22, 1912, at a meeting of some of the underwriters. At that time the underwriting was in the hands of Mr. Smedley, and was by him used as a source of information for the names of subscribers and shares of stock to be subscribed by the incorporators. In these articles of association as originally drawn, article 5 fixed the par value of a share of stock at $100. Article 6 stated the amount of preferred stock subscribed to be $221,628. Article 7 stated the amount of preferred stock actually paid in to be $221,628, and that $150,000 of that sum was paid in in cash. Article 10 stated the names of the stockholders and the number of shares of stock subscribed for by each stockholder, giving among others the names of Fred I. Nichols, Edward Lowe, W. Millard Palmer, William H. Gay and W. R. Shelby as subscribers to the articles of association, and gave the number of shares subscribed for by each as 50 shares. The articles so drawn February 22, 1912, were signed and acknowledged in the form as originally drawn and without change, being signed and acknowledged by different subscribers thereto on different days, viz., February 22, February 28, March 1, and March 5, 1919 (1912).
“These five men, Messrs. Nichols, Lowe, Palmer, Gay and Shelby, did not sign or acknowledge the articles of association and took no part in the organization of the company. They did sign the underwriting. After the 5th day of March, 1912, and before the articles were filed March 14, 1912, the articles of association as signed and acknowledged were changed without any knowledge or authority from or on the part of any subscriber to said articles, the changes therein, in part, being as follows: The names of Messrs. Nichols, Lowe, Palmer, Gay and Shelby were struck out from article 10, and the number of shares after each name, being 50 shares after each name, was struck out, thereby reducing the amount of preferred stock subscribed for 250 shares, and the amount paid in for preferred stock was thereby reduced $25,000. By striking out the subscription of 250 shares, the amount opposite the five names so stricken, the .amount paid for preferred stock wasi reduced $25,000, and the amount of preferred stock subscribed as stated in said article 6 as being $221,628, was changed to $196,628. In article 7 the amount stated as being ‘actually paid in for preferred stock of $221,628, was struck out, and the amount of $121,628 was inserted in its stead, and in said article 7 the amount as stated as having been paid in in cash for preferred stock, as being $150,000 was struck out and $50,000 was inserted in its place and stead.
“These changes were made in the articles after the articles had been signed and acknowledged by all of the subscribers thereto, and without the knowledge or consent or acquiescence of any of the subscribers to said articles, and particularly without the knowledge or consent of defendants, Hollister, Brown or Wilmarth. After these changes and alterations had been made in, the articles, and without any notice or information of such alterations being given to any of the defendants herein, they were filed by Mr. Smedley, the attorney, in the office of the secretary of State, and county clerk of Kent county. After the corporation was thus launched, several of the defendants, among whom were Hollister, Brown and Wilmarth attended no meeting of the stockholders or board of directors, and refused to make any payments to the corporation on account of preferred stock or otherwise, except that defendant- Wilmarth at one time paid $1,000 with express reservation and without prejudice to his rights. The fact that these alterations or changes, or any of them, were made in the articles after the articles had been signed by defendants, Hollister, Brown and Wilmarth and the other defendants, did not come to their knowledge and they never had any information that the articles had been changed until the facts in connection with the alterations were developed upon the trial of this cause by the testimony given by witnesses in court. Except as above stated with regard to defendant Wilmarth, neither of defendants Hollister, Brown or Wilmarth ever participated in the corporation in any way or recognized any liability on account of signatures to the articles of incorporation or the so-called underwriting.
“After the organization of the company and in February and March of 1912, the property of the Decatur Motor Car Company, which was turned over and paid in to the Grand Rapids company, was moved to Grand Rapids by and at the expense of the Grand Rapids company, and an attempt was made to operate the business. No real opportunity was ever liad for developing the plans for the operation of the company, or of the success and utility of the truck to be manufactured, or the value or benefit to be derived from the patent which was a part of the capital of the organization, for the reason that no sufficient test was made of the truck, and for the reason that no attempt was made to develop, manufacture and place upon the market the .patent described in the articles of association. Because of lack of funds, inefficiency in the management, failure to produce goods for the market, an expensive selling force having been organized and maintained without goods to sell, from which profits could be realized, thereby dissipating the working capital of the company, the new company never really became a going concern, and, after lingering, was adjudicated a bankrupt, July 7, 1913.
“The plaintiff alleges liability on the part of the defendants in classifications as follows:
“(1) Defendants who signed the underwriting but who did not sign the articles of association, and who have paid nothing and received no stock, their alleged liability being placed solely upon the underwriting.
“(2) Defendants who signed the underwriting and who signed the articles of association, but who have not paid the amount of the underwriting or subscription to the articles, being an alleged liability based on both the underwriting and the subscription to the articles of association.
“(3) Defendants who did not sign the underwriting nor the articles of association, but who subscribed for preferred stock before the organization of the Grand Rapids company while the underwriting was being circulated.
“(4) Defendants who did not sign the underwriting nor the articles of association, but who acquired preferred stock after the organization of the Grand Rapids company and who received common stock from Brackett, as trustee, at the time they received their certificates for preferred stock and for which common stock they gave no consideration.
“(5) Defendants who received common stock from Brackett, as trustee, at the time certificates of stock were issued to them for preferred stock subscribed for on the articles of association, and for which common stock they paid nothing to the company.
“As to liability of signers to the underwriting:
“The underwriting is as follows:
‘“We the undersigned hereby underwrite at par and guarantee the sale of all unsold portions of $100,000 preferred stock of the Grand Rapids Motor Truck Company, pro rata, according to the number of shares set opposite our respective names. It being understood that the control of the directors of the said company shall be vested in the Grand Rapids investors until the common stock shall have paid six per cent, dividend. It is understood that none of the money received from the sale of said $100,000 preferred stock shall be paid over to the company until the plant of the Decatur Motor Truck Company shall have moved and located its factory and office in Grand Rapids. In consideration of this agreement Mr. M. E. Brackett agrees to sell $50,000 of preferred stock at par in addition to the above $100,000 on the same basis. It is understood that this shall not be binding until the entire $100,000 of preferred stock is underwritten.’
“Much comment was indulged during the trial and argument of the case as to whether there were conditions precedent in this underwriting necessary of performance on the part of Brackett and the Decatur Motor Truck Company before any obligation was imposed upon the subscribers to the underwriting to pay the amount subscribed, and also as to whether the full amount of $100,000 was legally subscribed, making the payment a legal obligation going to the new company; that one of the subscribers to the underwriting, viz., the Grinnell-Row-Althouse Company was a corporation which could not legally sign the underwriting, and without its subscription thereto, the full amount to be subscribed necessary to make the underwriting binding was not subscribed.
“It appears from the underwriting that M. E. Brackett agreed and undertook to sell for cash, either as a condition precedent to the payment of the subscriptions or as a condition concurrent with payment of the subscriptions, shares of preferred stock in the sum of $50,000; also that the Decatur Motor Truck Company, at its own expense, would move and locate its factory and offices from Indiana to Grand Rapids before the subscriptions to the underwriting were payable to the company to be organized; also the underwriting required the sale of $100,000 preferred stock for cash on the part of Grand Rapids men, and the sale of $50,000 preferred stock for cash by Brackett, representing the Indiana interests, all to be sold for cash and money received therefor to be placed in the treasury of the new company thereby assuring each signer of the underwriting that when the new Grand Rapids company would be organized the company would have cash in the treasury in the sum of $150,000 received from the sale of $150,000 worth par value of preferred stock of the new company.
“It appears from the testimony that on February 22, 1912, when the articles of association were drawn, Mr. Smedley advised the members present that the subscription of Grinnell-Row-Althouse Company, a corporation, to the underwriting was not legal and was of no legal force or effect; and it also appears that Mr. Frank G. Row, a stockholder in the corporation, signed the articles of association with the intent of taking over the stock intended to be underwritten for that corporation on the underwriting. However no attempt was made to complete the underwriting, and on the face of the underwriting the full amount of $100,000 was never legally subscribed, and therefore was never binding upon the subscribers thereto.^ The fact that Mr. Row subscribed to the articles did not make him a subscriber to the underwriting. It is not the theory of the plaintiff herein that Mr. Row is liable upon the underwriting, but it is the claim of plaintiff that Mr. Row is liable because he signed the articles of association.
“Under the undisputed testimony in the case, the Decatur Motor Truck Company did not move and did not attempt to move or locate its factory and offices in Grand Rapids as agreed by the underwriting, but on the contrary, the. moving was done entirely by and at the expense of the Grand Rapids company which was subsequently organized. Mr. Brackett never sold for cash any of the $50,000 preferred stock which he agreed in the underwriting to sell; this $50,000 preferred stock was to be sold by Brackett ‘on the same basis/ undoubtedly meaning that the stock was to be sold in advance, but the money to be held and not to be paid over until the happening of such event as made the $100,000 payable to the company to be organized.
“The court finds that there are conditions precedent to be performed by Brackett and the Decatur Motor Truck Company before a liability falls upon the. subscribers to the underwriting, and that those conditions have never been performed and have never been attempted, and because of failure to obtain legal underwriting of the whole $100,000 of preferred stock as contemplated by the underwriting and of the conditions precedent which were never performed, there never was any legal obligation or undertaking on the part of any subscriber to the underwriting to pay the amount alleged to be underwritten or any part thereof.
“However, under the undisputed facts in the case, it is immaterial to the determination of the liability of the alleged' underwriters whether or not the conditions of the underwriting are binding, or whether conditions precedent existed or were performed. A serious infirmity of the underwriting is that it does not in any particular attempt to fix the scope, terms or details sufficient to identify any organization attempted to be based thereon.
“Assume that the underwriting intended the organization of some specific corporation. If the underwriting is not sufficiently specific as to detail to determine or identify the corporation intended or referred to in the underwriting, we are justified in referring to the articles of association that were drawn on February 22, 1912, and signed and acknowledged by a majority of the signers of the underwriting, for the essentials of the organization of the corporation intended by the underwriting.
“The articles of association as originally drawn state in article 6 that the amount of preferred stock subscribed was $221,628. In article 7 it was stated that the amount of preferred stock actually paid in was $221,628, of which sum $150,000 was paid in in cash. Article 10 stated the names of the stockholders and the number of shares subscribed by each, giving among other names, the names of Fred I. Nichols, Edward Lowe, W. Millard Palmer, William H. Gay and W. R. Shelby, and gave the number of shares subscribed for by each as 50 shares. These articles as drawn were signed and acknowledged in the form as drawn and without change. These articles as originally drawn must be taken as a positive declaration of the corporation intended by the underwriting.
“These articles were materially and vitally changed. In paragraph 6 the amount of preferred stock subscribed was changed from $221,628 to $196,628. In paragraph 7 the amount stated as actually paid in for preferred stock was $221,628, which sum was stricken out and $121,628 inserted in its stead. In paragraph 7 the amount stated as paid in in cash was $150,000, which amount was stricken and $50,000 inserted in its place and stead. In paragraph 10 the names of Nichols, Lowe, Palmer, Gay and Shelby were stricken, and the number of shares set opposite each of said names was also stricken.
“It requires no argument upon the proposition that the corporation organized by the articles as filed was not the corporation which would have- been organized had the articles been filed as originally drafted. This discussion does not involve minor changes; but the changing of articles of association by striking $100,000 cash out of the amount of cash actually paid in and in the treasury at the time of the filing of the articles, is such a change as completely destroys the whole foundation of the organization. The filing of the articles in the form as filed, was not an attempt to organize the corporation contemplated by the underwriting. The underwriting required the expense of moving the Decatur plant to Grand Rapids to be paid by the Decatur company. The underwriting required the sum of $150,000 to be paid in in cash into the treasury of the company before any operation _ should begin. The articles of association as originally drawn followed the underwriting in regard to the cash paid in for preferred stock. The names of five substantial citizens were stricken from the articles of association, names which were upon the underwriting and men upon whom others relied in signing and acknowledging the articles.
“It follows that because the company intended to be organized under the underwriting was not organized, there never was any liability on the part of any subscriber to the underwriting.
“Inasmuch as no corporation was organized as contemplated by the underwriting, there would be no liability on the part of any subscriber to stock in the corporation contemplated by the underwriting prior to February 22, 1912.
“The underwriting was no part of the articles of association. No creditor represented by the plaintiff company had any knowledge of or reliance upon this underwriting, and therefore, no liability would attach by reason of reliance thereon.
“It follows that there is no liability on the part of defendants because of having signed the underwriting; and further that there is no liability on the part of subscribers for stock in the corporation intended by the underwriting prior to February 22, 1912.
“Liability of stockholders who signed the articles of association:
“Prior to 1903, the statute did not require the organizers of a corporation to itemize or describe in the articles the property turned over as capital stock, neither did the statute require the value of such prop erty to be stated in the articles. The organizers of a corporation were left practically to their own devices as to representations to be made as, to what comprised the capital stock. Under the law as it then stood, the general rule was that a creditor was entitled to the full benefit of the stockholder’s contract as he has made and published it in subscribing, executing and filing his subscription to the stock of the company. There was no record available to a creditor other than the articles of association to which the creditor could look for information as to the property of the corporation. The incorporators were left to their own devices as to representations of capital stock, and the law held them responsible to the amount of their subscriptions as indicated by the terms of the articles subscribed by them.
“Much criticism was made of the harshness of this rule as applied to organizers who innocently became victims of enthusiastic promoters, and in 1902, Mr. Justice Grant in writing the opinion of the Supreme Court in McBryan v. Universal Elevator Co., 130 Mich. 121, made the following observation:
“‘If the statute required the articles of association to state the property put in as capital stock, it might he held that creditors should deal with the corporation at their own risk. But until the legislature sees fit to enact such a provision, incorporators must he required to act in good faith in placing values upon property put in as a part of paid-up capital stock, and the right of those dealing with the corporation to rely upon these solemn statements must he preserved.’
“Undoubtedly this language of Justice Grant inspired the legislature in 1903 (Act No. 232) in revising the laws for incorporation of manufacturing companies, to enact into law the following:
“ ‘Such capital stock may he paid in, either in cash or in other property, real or personal; hut where payment is made otherwise than in cash there shall he included in the articles an itemized description of the property in which such payment is made, with the valuation at which each item is taken, which valuation shall he conclusive in absence of actual fraud.’
“The fact that the legislature acted upon the suggestion of Mr. Justice Grant in enacting this legislation clearly indicates that the purpose of this new law was to place some responsibility upon the creditor, as he says: 'That creditors should deal with corporations at their own risk,’ so far as the articles state the facts, and to the extent that the creditor was burdened with responsibility in the same measure the organizer was relieved from responsibility. Surely there was no intent on the part of the legislature by this change in the law to give the creditor added rights or security, because under the prior law the creditor was fully protected. It must be assumed that the intent of this new law was to define certain duties on the part of incorporators and when they complied therewith, then the responsibility was to be shared by the creditor to the extent and so far as the details of the articles gave him information as the law required.
“Under the law prior to 1903 no itemized statement of the property paid in for capital stock was required in the articles, and there was no opportunity afforded the creditor to inform himself as to the property of the corporation and therefore no responsibility rested upon the creditor to investigate the nature of the assets, because the articles showed it to be cash, worth one hundred cents on the dollar, according to representations as to capital stock as shown by the articles.
“As is stated, in 1903 the legislature passed Act No. 232, requiring an itemized statement of the property and the value of each item, thereby giving to the creditor, who is about to extend credit to the company, the means of knowledge as to the property and assets of the company, together with the alleged value of the property paid in. With this information always available the creditor is required to know what the articles disclose as to the ¡assets of the company and he assumes the responsibility so to do, and he must govern his, extension of credit accordingly. * * *
“The legislature in 1907 amended the law of 1903 by passing Act No. 146 in which is contained the following:
“ ‘Sueli capital stock may 1)6 paid in, either in cash or in other property, real or personal; hut where payment is made otherwise than in cash there shall he included in the articles an itemized description of the property in which such payment is made, with the valuation at which each item is taken, which valuation shall he conclusive in absence of actual fraud: * * * And Provided further, that there shall be made and attached to any such articles of association an affidavit by at least three of the organizers of such corporation, that they know the property described in such articles of association and that the same has been actually transferred to such corporation, and that such property is of the actual value therein stated.’
“It is clear that the legislature in adding this paragraph by amendment intended to definitely fix and determine the individual responsibility and liability for the fixing of values in articles of association. In practically every corporation some of the organizers are familiar with the property paid in and know the value of it, and some of the organizers have no information whatever as to the property or its value, and they have no means of knowing or finding out about it (as in the case at bar) other than to inquire of their associates in the organization. By requiring three organizers to swear to the value of the property (and these three may require.others to join them in the affidavit and the responsibility thereby incurred if they wish) the creditor upon making his investigation of the company preliminary to giving credit, is afforded the names of the men who state under oath that they know the property and its value, and surely such men as make oath to the value.of property are directly charged with knowing that their affidavit is true, and the creditor knows the extent of the assumed responsibility of the stockholders as he investigates the articles. * * *
“In the case at bar it is conceded, as well as being proven, that the defendants are entirely free from any connivance or guilty knowledge as to the values placed upon the property paid in for capital stock. The only persons connected with the enterprise, who had knowledge, as to the property paid in or its values made oath, by affidavit attached to the articles, that they knew the property and its actual value to be as therein stated. The Grand Rapids people had every reason to believe these men, Mr. Brackett being a cousin of Mr. Huggett, and, being sponsored by Mr. Huggett, he participated in the esteem in which the Grand Rapids men held Mr. Huggett, and there was nothing to cause the organizers to doubt the veracity of these three men who swore to the affidavit. A reasonable investigation was made by sending Mr. Clements and Mr. Shultus to Decatur, and the defendants had no information that should have put them on their guard against this organization. Their absolute' good faith in the project is further established by the fact that they signed the articles and paid their money. Messrs. Brackett, Vesey and Taylor, who signed the affidavit in the articles showing the property and value of the property paid in, or either of them, are not defendants in this suit. If there is liability on the part of the organizers because of false statement of value in the property paid in, they have assumed such liability. The statute requires them to know about the value of the property and to make oath as to the ‘actual value’ of the property. The creditors should look to those who have assumed legal liability, if any liability exists under the articles of association. No defendant made affidavit as to value of property and no defendant had any knowledge as to overvaluation of property in the articles, and every organizer or stockholder who is made a defendants wholly innocent and without fault in the organization of this company.
“For the reason that, under the law, organizers who do not make affidavit as to values of property paid in, and who have no information which would place a reasonably careful man on his guard as to the values as stated in the articles, are not liable to creditors of a corporation in case of over-valuation of property paid in for capital stock, no recovery can be had against any of the defendants because of over-valuation of property paid in for capital stock. However, no over-valuation as claimed by the plaintiff has been established by legal evidence in the case.
“Liability on common stock:
“It is conceded' that common stock was issued by Mr. Brackett as trustee, to each of the defendants who paid for preferred stock and in the same amounts as certificates of preferred stock, and that nothing was paid to the company by the defendants for the common stock. The plaintiff claims that the common stock issued to defendants by Mr. Brackett was ‘bonus stock’ and was issued without consideration to the company, and therefore, the persons who received such common stock are liable to plaintiff for the par value of the common stock so received by them.
“The defendants claim that the stock was not issued without consideration; that it was paid for in full to the company as is fully shown by reference to the articles of association; that the stock was paid for in full by property turned over to the company, and was issued to Mr. Brackett as trustee, who held the stock interests and property interests of certain persons who were interested in the Decatur Motor Truck Company, which property he turned over to the company in consideration for the common stock, that when Mr. Brackett issued the common stock to these defendants he was a third party holder of said, stock, which had been fully paid for to the company by property being paid in as is shown by the articles, and that Mr. Brackett had all lawful right to dispose of the common stock standing in his name.
“The plaintiff admits that actual fraud must be shown to have existed on the part of defendants in order to recover for this common stock. The defendants assert and contend that no fraud of any kind, actual or constructive, has been shown or impugned to them in the issuance of the common stock; de-fendants insist that not only has plaintiff failed to show any fraud, but that defendants have shown beyond all doubt that no fraud, either actual or constructive, existed on the part of these defendants or any of them.
“The bringing of the industry to Grand Rapids and the organizing of a new company was not a scheme or plan of any Grand Rapids person. No Grand Rapids man was interested in the scheme other than as a public-spirited enterprise to help the city. Mr. Brackett, the manager of the Indiana concern, saw to it that he was to become the salaried manager of the new concern. The entire scheme was promulgated and promoted by Messrs. Brackett, Vesey and Taylor and their Indiana associates. The defendants who received this common stock from Brackett as trustee, paid their money for the preferred stock without any expectation of compensation or reward, other than as earnings of the company would be paid to them upon their investment.
“No fraud, actual or constructive, has been shown to exist and, therefore, the valuation as shown by the articles is conclusive. The common stock issued by Brackett as trustee to the defendants was not bonus stock in any sense as used by counsel for plaintiff. (‘Bonus stock/ so-called, is stock issued by the company to individuals for which no consideration was given to the company.) This common stock was fully paid for in property and, therefore, cannot be called ‘bonus stock/ The plaintiff claims that the property paid in for common stock was not of the value as stated in the articles, and, therefore, the common stock was not paid for. If there was a failure in consideration for the common stock to the company that would not make the stock ‘bonus stock’ but rather the action would be for fraudulent issuance of stock. Such liability would not extend to an innocent person who had procured the stock from one claiming to own it and to whom the company had issued the stock. In this case Brackett claimed to have paid in full for this common stock to the company by a transfer of a patent in question and as stated in the articles, and for value as sworn to by three organizers. The patent was transferred to the company and the stock was issued to Brackett as trustee, in consideration therefor. In the.absence of actual fraud the valuation sworn to on the articles as to the value of the patent is conclusive, and, as no fraud has been shown on the part of any of the defendants, it must be accepted as stated on the articles that the common stock was fully paid for to the company when issued to Brackett and Taylor as trustees, and that Mr. Brackett and Mr. Taylor had the legal right to dispose of the stock which was under their control as they saw fit to do.
“Value of patent:
“The fraud claimed by plaintiff herein is the alleged over-valuation of a certain patent conveyed to the company as property valued at $249,629.02, and referred to in paragraph 7 of the articles of association as patent number 888,226. No other over-valuation or misrepresentation of property conveyed to the company is complained of by plaintiff. The plaintiff’s right to recover against any person upon common stock depends entirely upon whether there was actual fraud in the assertion in the articles as' to the value of this patent.
“It is academic to say that a patent has no inherent value. Its value is not to be compared with the value of wheat or potatoes. The most valuable patent, having the greatest potentialities will avail nothing unless it shall be given legal protection from infringement, and unless it shall be capitalized and manufactured into finished product and marketed in quantities sufficient to give profitable returns, and it must be utilized before the patent shall be succeeded by a more useful, more practical or more economic invention, serving the same or a better purpose. Protection, speed in placing product on market and magnitude of business give value to a patent.
“The latest remarks on the subject of patents in the Michigan Reports may be found in the case of Dodge v. Ford Motor Co., 204 Mich. 496 (3 A. L. R. 413), where Mr. Justice Ostrander says:
“ ‘Subscriptions to capital stock may be paid for in property valued by those associating. It may be that a patent is contributed which, until exploited, has only an estimated potential value — no selling value — but after exploitation, would sell for more than the maximum limit fixed for capital stock.’
“A patent may have some real potential value which would produce large profits if placed upon the market in large quantities. Yet, if you delay in placing the article on the market until a new and different article shall be produced which will produce better results with less expense than the first patent, all value to the first patent has passed.
“In 1911 and 1912, the automobile world was demanding .some device to assist in the starting of gasoline engines. The primer device known as patent number 888,226 had possibilities at that time and should have been taken advantage of. There is testimony in the case tending to show that the primer device was worth more than it was valued at in the articles. No attempt was made to place the device upon the market presumably from the lack of money. Under all the testimony in the case it cannot be said that' the patent referred to in the articles was overvalued.
“The court finds that the testimony given in the case by Brackett, Vesey and Taylor is inconsistent,, is void of the indicia of truthfulness and their efforts, are so barren of veracity and so clearly establish a. culpable disregard of their oath to tell the truth, that no consideration can be given to their testimony.
“Liability on preferred stock,of those who signed articles of association, and have not paid for same:
“As has been stated, Messrs. Nichols, Lowe, Palmer, Gay, and Shelby, who signed the underwriting, neglected or refused to sign the articles of association as originally prepared and submitted for signature. Their names were scheduled in the articles of association, each for $5,000' of preferred stock, thereby showing that they were to be organizers of the company and to take $25,000 of preferred stock. Upon their neglect or refusal to sign the articles and after all the organizers had signed and acknowledged the articles, the names of these five persons and the subscriptions of $5,000 each were stricken from the articles, and the following alterations were made in the articles without the knowledge or consent thereto of any subscriber to the articles of association, viz.: The amount of preferred stock subscribed as stated in article^ 6 was changed from $221,628 to $196,628, a reduction of $25,000. In article 7 the statement as to the amount of preferred stock actually paid in was reduced from $221,628 to $121,628, and in the same article the amount of such stock stated as having been paid in in cash was reduced from $150,000 to $50,000. These changes were made in the articles after the same had been signed and acknowledged by all of the subscribers who signed and acknowledged the articles, and without knowledge on the part of any subscriber to the articles, and particularly without knowledge on the part of defendants. Hollister, Brown and Wilmarth,_ who had not paid the amount of stock by them subscribed. After these alterations were made in the articles of association they were filed by Mr. Smedley, the attorney, in the office of the secretary of State and the county clerk. After the corporation was thus launched defendants Hollister, Brown and Wilmarth attended no meetings of stockholders or directors and refused to make any payments to the corporation on account of preferred stock subscribed for; by them or otherwise, except that defendant Wilmarth at one time paid $1,000 under an express reservation of and without prejudice to his rights. The fact that these alterations were made in the articles, after the same had been signed by these three defendants, did .not come to their knowledge until the facts in connection with the alterations were developed on the trial of this cause. Except as above stated with regard to defendant Wilmarth, none of these three defendants ever participated in the corporation in any way or recognized any liability on account of signatures to the articles of incorporation or the so-called underwriting.
“It is clear, as has already been shown, that the corporation intended by the original draft of the articles of association, and as signed by the defendants herein, is not in any sense the corporation organized by the filing of the articles as altered. It is settled law that the corporation organized under articles which have been altered without the knowledge of the subscriber cannot recover from the subscriber the amount of his subscription to the articles. The question here is whether or not the plaintiff herein as trustee for creditors, stands in a different position toward the subscriber to the articles than would the corporation in seeking to recover upon these subscriptions to the articles which have not been paid.
“In Hughes v. Manufacturing Co., 34 Md. 318, it is said:
“ ‘The capital stock having been changed after subscription from $50,000 to $150,000 without assent or subsequent acquiescence on the part of the subscriber, he is discharged from all liability on account of Ms subscription.’
“In Bucher v. Railroad Co., 76 Pa. St. 306, it is said:
“ ‘It was therefore a matter of grave import to the subscriber that he should know to what his name was to be appended. Moreover, it was doubtless the intention of the legislature that such subscriber should know and carefully consider the paper -thus presented for his signature; for these matters involve not merely private rights but also affect the public weal, and hence the parties to them are required to act with due circumspection and within prescribed lines. It is, therefore, certain that unless Bucher’s subscription was attached to the articles of association, with his assent for that purpose, first had and obtained, it was of no force whatever and could not bind him.’
“In Duchess, etc., R. Co. v. Mabbett, 58 N. Y. 397, it is said:
‘“A signature to an incomplete paper, wanting in any substantial particular, when no delegation of authority is conferred to supply the defect, does not bind the signer without further assent on his part to the completion of the instrument. ® * *
“ ‘Whether the preliminary consent is given upon a separate and different paper from that which is to become the articles of association, or whether the paper signed is that which, when completed, is to be the actual articles of association spoken of in the statute, can make no difference; the principle is only that consent is necessary to the making of a contract.’
“In Felgate’s Case, 2 De G., J. & S. 456 (46 Eng. Reprint 451), it is said:
“‘F. signed the memorandum and articles of association of a company. After signature, but before registration, a sheet of the articles was taken out and a new sheet substituted for it without his privity but with the approbation of the persons then managing the company. There was a conflict of evidence as to whether the contents of the substituted sheet were identical with those of the old one, and whether there was not a material alteration. Held: That the articles were not binding upon F., that the articles and memorandum must be taken as together constituting one instrument, and that F. was not a contributory.’
“On page 466:
“ ‘It was urged for the respondent in support of his contention that the appellant was bound by the articles, that Scott ought to be considered to have been the appellant’s agent, and that the appellant therefore was bound by his acts; but even assuming that there was an agency for preparing the deed, which upon the facts of the case seems to be doubtful, the agency must, I think, have determined when the deed was executed.’
“Section 9025, 2 Comp. Laws 1915, provides for the recording of articles of association in the following language:
“ ‘Before any corporation organized under this act to operate In this State, shall commence business, the president'shall cause the articles of association to be recorded, at the expense of said corporation, in the office of the secretary of State of this State, and in the office of the county clerk of the county in which such operations are to be carried on/ * * *
“So far as the record in this case discloses, there was no authority, express: or implied, in Mr. Smedley to record the articles, either before or after the alterations were made. The law says: The president shall cause the articles of association to be recorded.’ * * * There is no right; much less a duty, on the stockholder to record articles of association. Consequently, no agency, implied or otherwise, could exist on the part of any person, other than as the law provides, for the recording of the articles. These articles were not filed by authority of law, and the person filing them was not in any sense acting as agent for any subscriber to the articles of association.
“Applying this settled law to the facts in the case at bar, it follows that there is no liability on the part of any subscriber to the articles of association as altered. It cannot be successfully claimed, under the facts of this case, that the articles as altered have been adopted or acted upon affirmatively by either of the defendants Hollister, Brown or Wilmarth, or any other defendant in the case.
“It therefore follows that there is no liability on the part of those defendants who have not paid their subscription to the articles of association.
“It is therefore concluded:
“1. That there is no liability on the part of any defendant under the underwriting or because of having signed the underwriting.
“2. That there was no authority, actual or constructive, in fact or in law, on the part of any defendant in the inception of the company or in its organization, or the issuance of or payment for stock, either preferred or common.
“3. That the common stock was fully paid for, as is shown by the body of the articles of association and as verified by the affidavit of three of the organizers of the company as required by law.
“4. That there is testimony to show that the patent in question was worth the amount, or more, for which it was conveyed to the company, as stated _ in the articles, and the testimony does not establish that its value was overestimated had it been protected by law and had it been manufactured and placed upon the market at that time in a business manner.
“5. That there is no liability on th'e part of any defendant who subscribed for stock to be issued in the company intended by the underwriting prior to February 22, 1912, because such company never was organized.
“6. That there is no liability for common stock on the part of any defendant who subscribed for stock in the company after the company was organized.
“7. Defendant McKnight purchased stock after the company was known to be in financial straits, and he paid more for the stock, preferred and common, than it was worth on the market at the time it was purchased, and no liability attached because of such purchase of stock.
“8. There is no liability on the part of defendants who signed the articles of association and did not pay their subscription.
“9. There is no liability on the part of any defendant who subscribed for $5,000 upon the articles of association who has paid the sum of $4,235 thereon. Under the facts and circumstances of the case the theory running through the underwriting, the articles of association, and the management of the concern, it was understood that stock sold in the Grand Rapids district should be considered as a reduction of the amount of stock liable to be paid for by the subscribers, as the stock sold by the company reduced a subscription of $5,000 of stock to $4,235.
“10. There is no liability on the part of any defendant for common stock. No common stock was issued to any defendant from the common stock of the company. There was no bonus stock in the organization of the company. There was no fraud, subterfuge or connivance on the part of any defendant in the or ganization of the company for the issuance or pay? ment for the stock, either common or preferred.”
A decree was entered in accordance with the opinion. The plaintiff brings the case here by appeal. No one else has appealed.
Counsel for the appellant in a brief of 242 pages, and in a supplemental brief of 79 pages, discuss in detail their claims as to wherein the decree is wrong. Their contentions are summarized as follows:
“1. That the law contemplates and requires that stock be actually paid for, and that the so-called ‘good faith rule’ is the law in Michigan as to the property taken in payment for stock and that any over-valuation of property taken in payment for stock which under the circumstances of the particular case cannot be brought within the ‘good faith rule’ constitutes actual fraud.
“2. That when the fraud consists of the overvaluation of property taken in payment for stock the fact that the articles of association show the stock of the corporation to be fully paid is not conclusive against the plaintiff as the representative of creditors unless the general creditors have full actual knowledge of all the material circumstances surrounding the issue of the stock and the actual value of the property transferred in payment for the stock.
“3. That a liability may .exist although as between the corporation and the stockholders, the stock issued, received or contracted for by the stockholders was fully paid.
“4. That it is not necessary to allege or prove an actual subscription for stock or actual subscription to the articles of association in order to establish the liability of a stockholder.
“5. That the stockholders of the corporation who subscribed or contracted for part of the original issues of stock and came in on the ‘ground floor’ are bound by what they knew, or should have known in the exercise of ordinary diligence as to the value of the property transferred in payment of the stock they received; and the fact that original stockholders who come in on the ‘ground floor’ received stock for which they paid nothing is enough to put such stockholders upon their guard and requires them to make inquiries regarding the facts.
“6. That an actual subscription for stock is not a necessary incident to liability and therefore, it is unnecessary to allege an actual subscription and that a stockholder who receives a part of an original issue of stock which is not full paid stock with> the knowledge that it is not full paid stock becomes liable to creditors notwithstanding the fact that he signed no subscription for the stock.
“7. That fraud may consist of reckless disregard of the truth or falsity of the fact stated.
“8. That the ‘good faith’ rule applicable to cases of this class, requires something more than utter ignorance of the readily available facts.
“9. That the acceptance of a certificate of stock from the treasurer of a corporation for which nothing is paid is sufficient to charge a stockholder with notice of the bonus character of the stock received.
“10. That acceptance of bonus stock without any inquiry whatever as to the. facts, is not ‘good faith’ with relation to corporate creditors.”
The pivotal questions as we view the case are questions of fact and not of law. It may be well to notice that some of the creditors are Mr. Sutiles, receiver of Coppock Motor Company, about $13,500. Old Adams County Bank, over $16,500. Mr. Taylor, amount not clear but in excess of $13,700, none of whom could have relied upon the common stock being paid for in cash, and it does not appear that any of the creditors extended credit because they supposed the common stock was paid for in cash.
In the bill of complaint it is stated “that the patent right, valued at $249,628.02 in the articles of association, was part of the assets of the Decatur Motor Car Company, of Decatur, Indiana, all of which were purchased by the Grand Rapids Motor Truck Company at $43,000, and that no value whatever was placed upon said patent by the Decatur Motor Car Company in such sale; that the value of the patent was purely imaginary and speculative, and that the value of $249,629.02 placed upon said patent in the articles of association was recklessly excessive and extravagant and not an actual good faith valuation, and was a fraud and attempt to evade the requirements of the statutes of Michigan; that the common stock received by the defendants was actually part of the original issue .of stock in the corporation and was only issued to and held by Brackett as trustee ‘as a man of straw;’ that no consideration passed from Brackett, as trustee to the Grand Rapids Motor Truck Company for the common stock issued to him, amounting to $296,628, and that said stock was subscribed for and issued to the said M. E. Brackett, trustee, as a subterfuge and for the purpose of consummating a plan whereby a share of bonus common stock was subscribed for.”
To sustain these averments, plaintiff relies largely upon the testimony of William J. Vesey, John I. Taylor, and M. E. Brackett.
When the Grand Rapids Motor Truck Company was organized these men subscribed and swore to an affidavit on the back of the articles of association reading:
“State of Michigan \ “County of Kent, j ss-
“William J. Vesey, John I. Taylor and M. *E. Brackett, being duly sworn, do depose and say that they are three of the organizers of the Grand Rapids Motor Truck Company, whose articles of association are hereby attached; that they know the property described in article 7 of such articles of association and taken in payment for capital stock, and.that the same had actually been transferred to such corporation; and further say that said property is of the actual value of $368,256, and further say not.
(Signed) “William J. Vesey,
“John I. Taylor,
“M. E. Brackett.”
Mr. Brackett was cross-examined in part as follows:
“Q. Is that signature ‘M. E. Brackett’ yours?
“A. Yes, sir.
“Q. Well, calling your attention to the statement made in the affidavit by the affiants including yourself, you say that you know the property described in article 7 of such articles of association and taken in payment for capital stock. That is the property that was then owned by the Decatur Motor Car Company, was it not?
“A. Yes, sir.
“Q. Were you familiar with that property at that time?
“A. I was.
“Q. And you also swore the same has been actually transferred to such corporation, that is, to the Grand Rapids Motor Truck Company. Was that true — was that transfer actually being made at that time?
“A. Why, I presume the records would show whether the transfersi were made or not.
“Q. But it was all a part of the plan of completing the transfer of the organization of the new company at that time was it not?
“A. Yes, sir.
“Q. Practically, all those things were done contemporaneously were they not?
“A. To the best of my knowledge, yes.
“Q. A further statement is made in this affidavit by you; you swear that said property is of the actual value of $368,256. I ask you whether you made that statement at that time in good faith and for an honest purpose?
“A. Why, I knew at that time as everybody else knew that had anything to do with this transaction, either the Grand Rapids stockholders, Judge Vesey, or John I. Taylor, or the attorney who had charge of this affair, or Mr. Smedley, who took the oath, that the patent price contained in there was put in there for reasons that the attorney said that it must go in if we organized according to the laws of the State of Michigan. So far as these other items mentioned in here — materials, cars, tools, machinery and so forth —there is no question of a doubt but) what those items were absolutely and as near correct as they were able to be made.
“Q. The attorney does not seem to have signed this affidavit, or have sworn to it; the affidavit is signed by Mr. Vesey and Mr. Taylor and yourself. And the affidavit does not refer in particular to the patent, but it refers to the property that is mentioned in article 7, and says that it is of the actual value of $368,256. Taking into consideration that this was a going concern that was being transferred to the Grand Rapids Motor Truck Company, and that it had an established business with brilliant prospects, did you think at the time that the valuation of $368,256 was an excessive or false valuation? * * *
“A. I don't think it was an excessive valuation; no, sir. I think that the property, the developed car itself, was worth, if you had nothing but the truck chassis, and without any patent, tools, machinery, equipment or anything else, was worth every dollar of it; and I think so yet.
“Q. Well, what I am trying to get at is just what your belief was at that time, Mr. Brackett, and the answer you gave me a moment ago left me somewhat in doubt. I will change the form of the question. When you stated in this affidavit that the property which was transferred by the Decatur Motor Car Company to the Grand Rapids Motor Truck Company, and listed in paragraph 7, was of the value in the aggregate of $368,256, had you any intent in making that statement to lie about it, or to cheat and defraud the Grand Rapids stockholders - or any subsequent creditors of the Grand Rapids Motor Truck Company?
A. All of the records of the transaction show that we did not. I did not intend to cheat or defraud any of these people that you have referred to. The statement that the property in the aggregate was of the value of $368,256 was made in good faith. I do not think that $368,256 would have been an excessive price for the Grand Rapids Motor Truck Company to pay for this company if the company had had abundant money for working capital, and had been able to go ahead with this enterprise in the manner which was planned when we came to Grand Rapids. My judgment was that this property at the time it was transferred to the new corporation, taken as a whole, in view of the fact that it included a going business, was worth the amount stated in my affidavit and more. It is my judgment, as president and manager of that company, that it could have gone ahead and paid large profits upon the capital stock, both preferred and common. * * * We had what I, as a motor truck man, would call a developed chassis, or in other words a well-developed truck, and an established business, which gave to this business as a whole a valuation that was infinitely larger than we would have been justified in putting on it if we had considered these items merely by themselves as so much iron or steel or office furniture- or the patent and other assets that are particularly described in paragraph 7. * * *
“Q. And whether that failure in your judgment was due to any intrinsic defect in the merit of this enterprise as'Outlined in the articles of association and stated in your affidavit, or whether it was due to the fact that capital was not paid in fast enough, so that you did not have money to conduct the business as planned?
“A. In my opinion the entire cause of failure of the company was because the capital was not paid in promptly as it was intended that it should be when this deal was finally consummated.”
Mr. John I. Taylor was shown the affidavit. His . cross-examination in part was as follows :
“Q. Is that your signature?
“A. Yes, sir. The signature of M. E. Brackett is undoubtedly his signature. I recall Mr. Brackett and Judge Vesey signing this affidavit with me at the time. I recall that I signed the affidavit, too. When I signed this affidavit I knew that a large amount of money had been expended by the Decatur Motor Car Company in exploiting its business and getting ready to put its trucks on the market. I don’t remember any discussion at the time as to the amount that had been thus expended. It was my expectation at that time that this automobile truck concern could if properly supplied with working capital go forward and make large profits. That was my absolute, good faith, belief, when I signed this affidavit.
“Q. Calling your attention to the statement in the affidavit signed by you in which you swore that said property is of the actual value of $368,256, I ask you, ■Mr. Taylor, whether when you signed and swore to that statement, you meant to lie about it or tell the truth?
“A. Well, I didn’t intend to lie about it.
“Q. When you said here under oath in this affidavit which you signed, that the property transferred was of the actual value of $368,256, did that represent a good faith belief on your part?
“A. Why, no, I should say that I thought the patents were in there rather too high for patents; I don’t know anything about that.
“Q. Did you intend at the time to put those patents in there at too high a figure in order to mislead the Grand Rapidsi stockholders or the subsequent creditors of the concern?
A. No, sir.
“Q. Or was that simply a matter of. judgment upon the part of those interested at the time?
“A. Well, that I couldn’t say, what it was. It wasn’t intended to deceive the people who were coming in in Grand Rapids.
“Q. Was it intended to deceive any subsequent creditors of the concern?
A. No, sir.
“Q. Have you any reason to believe that Mr. Brackett or Judge Vesey when they signed the affidavit did so with intent to deceive or mislead any Grand Rapids stockholders or subsequent creditors of the concern?
“A. No, sir.
“Q. You recall do you not, that Judge Vesey and Mr. Brackett assented to those figures wherein the values of the property were stated at $368,256?
“A. Yes, sir.
“Q. And so far as you know did that represent a good faith belief on their part at the time taking into consideration the prospects of the corporation for future success?
“A. As far as I know, yes.
“Q. And whether, in your case, in the values which were put upon these properties when they were transferred to the Grand Rapids Motor Truck Company and the new corporation was organized, did you take into consideration the prospects as you viewed them at the time for the success of this newly-organized1 corporation?
“A. Yes, sir. * * *
“Q. Did you take into consideration in the values that you put upon the property that it was owned by a going_ concern which, if supplied with proper working capital and proper management might be able to go ahead and earn large profits?
“A. Yes, sir.
“Q. As a matter of fact you had enough familiarity with the automobile business at this time, 1912, did you not, to know that there were many concerns in the automobile and automobile truck business which were making huge profits?
“A. Yes, sir.
“Q. And that many of those concerns had been built up from very small beginnings and with a very small capital?
“A. Yes, sir.
“Q. That was the truth was it not?
“A. Yes. * * *
“When I went into the Grand Rapids Motor Truck Company I went into it in good faith and in the belief that the prospects of the Grand Rapids Motor Truck Company for future success were bright, and without any intent to deceive or defraud any of the Grand Rapids stockholders in this concern or any subsequent creditors of the Grand Rapids Motor Truck Company.”
Mr. Coppock, who was the inventor of the device which was patented, was called as an adverse witness. We quote some of his testimony:
“Q. Was this primer patent ever the property of the Decatur Motor Car Company that was making pleasure cars?
“A. Yes, sir, and I understand it was assigned to them as a part of the assets of the Coppock Company. * * *
“The_ Decatur Motor Truck Company after its organization, either the latter part of 1909 or early in 1910, commenced immediately to build the truck which I developed at home. I developed the designs at home, and they commenced to build the truck from those designs. That was the same truck that they continued to build all the time they were in existence down there; the same truck which the Grand Rapids Motor Truck Company continued to build up here. * * *
“Q. From your experience as a motor engineer, Mr. Coppock, you will tell us a little more definitely than you have done, fully, I want you to do it, the utility of this motor starter or priming device?
“A. In those days there was no system of priming a cylinder or a motor prior to starting it by hand, except by taking a small lubricating can or priming can and squirting the gasoline in each individual cylinder by opening up the priming cock, and that brought about the development of a priming device that would work automatically and spray a. certain fixed charge of gas into each individual cylinder through the operation of a dial or crank on the dash; it would do that automatically and save the trouble of lifting the hood and priming each cylinder individually; as is done even today. That was its use and what it was designed for. Even in later days, when we had electric starters, even today, under certain weather conditions, it is physically impossible almost to start the_ motor even with an electric starter, without a priming device of some kind, and particularly in motor trucks. They are used and being used today as largely as they were years ago, some sort of priming device, and it is still important to use something of that description. This device of mine was a device of the kind that I have just described. The cylinders could be primed — for instance, there was a set of cams that operated each individual pump; starting from the forward and they would prime in rotation back, or, if the cam happened to be to the left in the rear, it would prime in rotation forward; prime each cylinder individually on every quarter turn of the device. Its effect on the easy or hard starting of the motor was that the motor could usually be started on a quarter turn, on account of atomizing the gasoline into the cylinders. That could be done in cold as well as warm weather. * * *
“Q. Whether or not in your judgment this patent on this priming device mentioned in the articles as No. 888,226, was in February, the latter part of February, at the time of the organization of this company, 1912, reasonably worth to this company the sum of $249,699.02?
“Mr. Brad field: Just a minute. I object to the question as being immaterial.
“The Court: You may answer.
“A. It was, yes, sir.”
In this, connection it should not be forgotten that the electric starter, as we know it now, was unknown at the time the device mentioned was patented, and a motor starter that would work would be a very valuable adjunct to an automobile motor.
The question of how payment may be made for corporation stock is not a new one in this State. As long ago as the case of Young v. Erie Iron Co., 65 Mich. 111, in Justice Morse's opinion, it was said:
‘There was no concealment of this valuation (the valuation of leaseholds at $422,000, which the incorporators believed to be worth at least $200,000), or their action upon it, and no secret agreements of any kind. It was fully set forth in the articles of association, and in the issue of stock, that the capital was all paid in except $75,000 to be sold, and that such payment consisted of $8,000 in cash, and the transfer of property, which upon inquiry would have been found to be this lease, and that the stock was fully paid up and non-assessable. There was no deception practiced anywhere, and anyone dealing with the corporation had ample means of notice as to the character and value of its capital stock and property.”
See, also, Monk v. Barnett, 113 Va. 635, and Durand v. Brown, 236 Fed. 609.
Speaking for the court, Justice Grant in McBryan v. Universal Elevator Co., 130 Mich. 111, 121, said in part:
“If the statute required the articles of association to state the property put in as capital stock, it might be held that creditors should deal with the corporation at their own risk.”
At the next session of the legislature Act No. 232, Pub. Acts 1903, was passed, reading in part:
“Such capital stock may be paid in, either in cash or in other property, real or personal; but where payment is made otherwise than in cash there shall be included in the articles an itemized description _ of the property in which such payment is made, with the valuation at which each item is taken, which valuation shall be conclusive in absence of actual fraud.”
In 1907 this act was amended so as to require the affidavit of three incorpórators. Act No. 146, Pub. Acts 1907, § 2, subd. 6.
In Brown v. Weeks, 195 Mich. 27, this court quoted with approval the language of Judge McDonald, who-is now a member of this court, as follows:
“The charges of fraud and misconduct on the part of the incorporators of this company are wholly unsupported by any evidence. I am not able to say from the evidence whether there was any very extravagant valuation placed on the property which was, turned in by Mr. Joslin to pay for the common stock; but I am satisfied that, if there was, it was due to an honest error in judgment induced by an apparently well-founded enthusiasm as to the ultimate success of the business. It was at least a good faith valuation. I therefore find that there was no fraud in fact or in law, and that therefore no liability attaches to any of the organizers of the corporation, because of the valuation placed upon the property for which the common stock was issued.
“Neither is there any evidence of conspiracy or unlawful purpose in the promotion and organization of the company. And, if there was no fraudulent overvaluation of the property, the common stock was fully paid, and, as it belonged to Mr. Joslin, he had a right to sell it or give it away as he pleased. It follows that there can be no recovery from any of those defendants who purchased preferred stock and received therewith, without cost, 50 per cent.- of the amount in common stock.”
Justice STONE said further:
“The issuance of stock in consideration of property will be presumed free from fraud, unless the contrary clearly appears. Referring to the matter of good will, it may be said that the good will of a business, though intangible, is property, and stock of a corporation issued for such good will is issued for property actually received within the meaning of laws allowing stock to be paid for in property. 4 Thompson on Corporations (2d Ed.) § 3955, and cases cited in notes.
“In White, Corbin & Co. v. Jones, 79 App. Div. 373 (79 N. Y. Supp. 583), where a corporation purchased with its capital stock the property, business, and good will of a firm, it was held that the value of such good will should be taken into consideration in determining whether the property of the firm as transferred to the corporation had an excessive valuation; and that a member of the firm who was thoroughly conversant with its business and its management was competent to give his opinion as to the value of its good will. Good will is often a valuable adjunct of a firm or corporation where the company has long conducted its business, has a reputation for fair dealing, and has by its conduct attracted customers to it. That favorable impression and disposition may be a component part of its property value, and this element known as good will is held by the courts to be an asset in estimating the value of the property. Bininger v. Clark, 60 Barb. (N. Y.) 113; Mitchell v. Read, 84 N. Y. 556; Boon v. Moss, 70 N. Y. 465. While this is an intangible asset, it is still susceptible of being measured at a money value. Beebe v. Hatfield, 67 Mo. App. 609; Burckhardt v. Burckhardt, 42 Ohio St. 474 (51 Am. Rep. 842); Mitchell v. Read, supra.
“In Washburn v. Wall Paper Co., 26 C. C. A. 312, 81 Fed. 17, it was said:
“ ‘The good will of a business is property, and may have a value independent of any particular locality or any specific tangible property, and stock of a corporation issued for such good will is issued for property actually received, within the meaning of the New York stock corporation law.’
“In Bininger v. Clark, supra, it is said that the good will of a business is an important part of its property, and will be protected by a court of equity whenever a proper case arises. * * *
“What we have said of good will applies with equal force to patents and trade marks. We are of the opinion that the description, itemization and valuation of the property in the articles were a substantial compliance with the terms of the statute, and that the same are conclusive in the absence of fraud.”
See, also, Courtney v. Youngs, 202 Mich. 384; Ver Wys v. Vander Mey, 206 Mich. 499; 1 Cook on Corp. (6th Ed.) p. 164.
Without- quoting further from the record, we think the chancellor was fully justified in reaching the conclusion that all of the Grand Rapids defendants acted in the utmost good faith. It was an unfortunate venture for all of them. They never received any return on their investments and ultimately sustained a total loss.
The articles of incorporation were duly filed in the proper office. They were easily accessible to a prospective creditor. They would have informed him of the amount of common stock, to whom issued, and the consideration paid.
Without further discussion we content ourselves with saying that we see no occasion to disturb the decree of the lower court. It is affirmed, with costs to the appellees.
Fellows, Clark, Bird, Sharpe, and Steere, JJ., concurred with Moore, J. Wiest, C. J., concurred in the result. | [
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Clark, J.
Defendant seeks to set aside his conviction for violating the prohibition law on the ground, principally, that his motion to quash, and to suppress the evidence which had been obtained by a search warrant, should have been granted. He contends that the affidavit on which the magistrate determined probable cause for issuing the search warrant contained no statement of facts and circumstances within the knowledge of the affiant but was a mere recital of affiant’s suspicions, beliefs and conclusions, and was therefore wholly insufficient.
The affidavit is in form like that set forth in People v. Effelberg, 220 Mich. 528. It recites affiant’s conclusion and belief that certain premises, not a drug store, of defendant, not a licensed pharmacist or druggist, etc., are unlawfully occupied as a place of public resort and that intoxicating liquors are being there unlawfully manufactured and possessed, but in it affiant states of his own knowledge as ground for such belief the following:
“He has seen persons frequently leaving with packages. * * *
“He has smelt liquor on the premises.”
An attempt was made at the trial to bolster up the affidavit by testimony of affiant that he had knowledge of other facts and circumstances, justifying his belief, not stated in the affidavit. This cannot be done. The affidavit must be sufficient on its face. People v. Christiansen, 220 Mich. 506; People v. Knopka, 220 Mich. 540. It. is insufficient if made on information and belief alone. In People v. DeLaMater, 213 Mich. 167, the following was quoted with approval from Tiffany’s Criminal Law (How. 4th Ed.), p. 355:
“The facts and circumstances which induce the complainant’s belief must be set forth, and those facts and circumstances must be sufficient to make it appear that there is probable cause for such belief and for making the search.
“And the magistrate must be satisfied and determine from the facts and circumstances set forth and sworn to, that there is reasonable cause for such belief.”
Such facts and circumstances here set forth are meager but we decline to hold that the magistrate might not determine probable cause upon the affidavit containing the quoted statements of affiant made of his own knowledge. See People v. Muszynski, 220 Mich. 536.
No other question merits discussion.
Conviction affirmed. The cause is remanded.
Wiest, C. J., and Fellows, McDonald, Sharpe, Moore, and Steere, JJ., concurred with Clark, J. | [
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] |
Clark, J.
In the evening of November 1, 1920, plaintiff drove his automobile southerly along Washington boulevard in Detroit, intending to cross defendant’s double street railway tracks on Grand River avenue and then to turn easterly on Grand River. When he approached the railway tracks at the intersection of the two streets, he observed a street car with trailer, headed east, standing on the intersection. The rear end of the trailer had cleared the way for southerly traffic on Washington. While he was attempting to pass behind the trailer, to proceed as stated, the street cars were backed, without warning, as he says, and the trailer collided with his car. Plaintiff was thrown. His right foot “hit the speed lever shifter.” He was conscious of no serious injury at the time. He drove his car to his home in Pontiac. When he removed his shoe that night he observed discoloration on his'foot, “a little red from the bump.” There was no abrasion of the skin. The next day he filed a claim with defendant respecting the automobile and said he had no personal injury. But he began to suffer pain in the foot. Various lay treatments were attempted. The pain continued for days. Swelling, discoloration and fever ensued. He consulted a physician about November 9th, and later other physicians. X-ray photographs were made. The diagnosis of attending physicians was osteomyelitis. He was taken to a hospital on November 22d. An incision in the foot was made. A plaster cast was put on. On November 28th, 29th, and 30th he had ethereal pneumonia, having taken two anaesthetics. The swelling progressed above the ankle. There were frequent painful dressings. He was very critically ill, suffering acute pain. On December 4th there was an amputation below the knee. He was taken from the hospital December 24th, and remained in bed at home for some time. He began to go about on crutches and later got an artificial limb, which, because of irregularities produced by the healing of the bones, he has used with pain and difficulty. That he may use it successfully another operation is advised. The plaintiff was 31 years of age at the time of the accident. When a boy about 9 years of age he received a blow from a shinney club on the right foot or ankle, resulting in infection, discharge, white swelling, and of which he suffered for 15 months, and from which he claimed to have recovered except for a callous or scar tissue and a slight limp. The foot was again somewhat injured in 1907, but, he says, of that there was a quick recovery. He engaged in the common boyish sports and became, seemingly, a vigorous, healthy, active man. Other facts must be stated in considering the questions raised. Plaintiff had verdict and judgment. Defendant brings error, and contends:
1. That the verdict is against the great weight of the evidence and that the motion for a new trial therefore should have been granted. The questions of negligence and contributory negligence are not discussed in the briefs. The theory of plaintiff’s declaration is stated:
“Plaintiff alleges that the injury of the foot was the direct proximate cause of the condition, which finally resulted in the amputation, and that such injury was caused solely by the negligence of the defendant company.”
By the testimony of plaintiff and his witnesses, in- eluding several physicians, plaintiff made a case for the jury on his theory. The theory of the defense seems to have been that plaintiff's trouble was due entirely to the injury he received when a boy, and that in any event the accident in question resulted in nothing more than an aggravation of an existing disorder. Learning from plaintiff, several months before the trial, the history of his old injury, defendant caused depositions to be taken at the place of plaintiff’s boyhood. These depositions tend to corroborate plaintiff’s testimony respecting his early injury and recovery therefrom. Defendant’s theory was developed principally by medical witnesses who gave opinion evidence that at the time of the accident plaintiff had the old latent infection, dormant or incapsulated, and that the accident was not the direct cause of his injury. But some of such witnesses stated on cross-examination that the accident was the exciting cause, the proximate cause that lighted up the latent injury, and that the amputation on December 4th was attributable to the accident. Plaintiff had medical testimony that the injury of November 1, 1920, was the direct and sole cause of the condition which necessitated the amputation. From a consideration of all the evidence we conclude that the trial court was right in declining, to hold the verdict to be against the great weight of the evidence.
2. That, as plaintiff did not claim in his declaration an aggravation of an existing disorder, the court erred in instructing that there might be recovery for such aggravation if found. The cases of Fuller v. Mayor, etc., of Jackson, 92 Mich. 197, and Hall v. City of Cadillac, 114 Mich. 99, are cited. But we find upon examination of the original requests to charge, returned to this court, that such instruction was requested by defendant in its 16th and 18th requests. The court charged on plaintiff’s theory of recovery as stated and then also said, at defendant’s request, that there might be recovery for an aggravation of an existing infirmity, if found. Had the charge been confined to plaintiff’s theory some of defendant’s criticism of it might merit discussion, but in view of defendant’s requests we think it unnecessary to consider the charge further, finding in it no reversible error.
3. That the verdict in the sum of $17,166 is excessive, and that the trial court erred in not so holding on the motion for a new trial. Plaintiff’s physical injuries, pain and suffering have been stated. He was totally disabled, respecting employment, for a period of about eight months. His disbursements for medical treatment, etc., were $1,251.70. He had been employed from September, 1916, to July, 1919, as sales manager for the Michigan Tool Company for which he received about $6,000 per year which included commissions. He also received “expenses, traveling expenses and upkeep and car.” At the time of the accident he had agreed to re-enter such employment. The secretary of the company testified:
“We, that is the company, was going to pay him a salary of $65 a week and was going to pay him a certain percentage on his monthly sales. That was the same position he occupied between 1916 and 1919.”
Plaintiff did not return to the employment. When he was able to go about he was given a position with such company as salesman at $35 per week and at the time of the trial, November, 1921, he was receiving $40 per week. All the elements of damage, including loss of earnings, disbursements, impairment of earning capacity, humiliation because of being a cripple, pain, suffering and inconvenience, were covered in the charge. The jury might find and doubtless did find that plaintiff’s injuries were caused wholly by the accident. There was evidence to sustain a finding that the loss of earnings during the period of illness together with the disbursements exceeded $5,000. The remainder of the verdict must be upon the other elements in the case which were covered by the proofs. The record discloses no appeals to prejudice. There is nothing to indicate that the verdict is the result of anything but the evidence. In L. R. A. 1915F, 215, will be found a list of cases respecting damages for injuries resulting in a like amputation. In most cases, where the facts are somewhat similar, verdicts have been sustained in sums ranging from $6,000 to $15,000. There are cases without these figures. But each case must be determined upon its own facts.
The verdict is large but we think it is not so grossly excessive as of itself to show passion or prejudice on the part of the jury. Language used in Wilson v. Railway, 208 Mich. 411, is pertinent:
“We have searched this record in vain to find appeals to prejudice, passion or partiality that would justify us in saying that the verdict was the result of anything other than the evidence in the case; nor can we say that the verdict is so grossly excessive that of itself it shows prejudice, passion or partiality on the part of the jury. We could only set this verdict aside by substituting our judgment for that of the jury. This, under the repeated decisions of this court, we may not do.”
And see Fishleigh v. Railway, 205 Mich. 145. We cannot say that the verdict is excessive.
No other question merits discussion.
The judgment is affirmed.
Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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] |
Moore, J.
It will be helpful to an understanding of the litigation involved in this proceeding to read the opinions in Re Keene’s Estate, 189 Mich. 97 (Ann. Cas. 1918E, 367); In re Keene’s Estate, 202 Mich. 646; Stamp v. Steele, 209 Mich. 205. While reading these opinions it will be well to remember that the Frank Maynard mentioned in the first named opinion, and the Sidney L. Stamp mentioned in the last two cases is one and the same person.
After the opinion in 209 Michigan was handed down, Mr. Stamp commenced the case now before us. It was tried by the circuit judge without a jury. He found findings of fact and law as follows:
“Findings of Fact.
“1. On the 80th day of June, 1909, Alice Stamp, then living but now dead, was the owner of property in the city of Muskegon, Michigan, described as ‘Lot 8 and the west half of lot 2 of block 185 of the revised plat of the said city of Muskegonwhich said property was in fact number 91 and 95 East Webster avenue of the city of Muskegon.
“2. On the said 30th day of June, 1909, Alice Stamp gave said property together with the contents of the buildings thereon, to the plaintiff in this case evidencing said gift by a paper writing. *i
“3. Alice Stamp died in December, 1913, and Gustave Neumaster was appointed as special administrator of her estate and qualified and erroneously listed the above property as a part of the estate of said Alice Stamp, and collected as rents from said property the sum of $600.
“4. On the 1st day of September, 1914, John H. Banninga, the defendant, was appointed executor of said estate and at that time the said Gustave Neumaster paid over to him the said sum of $600 which he had collected as rent for said premises.
“5. At about this time the plaintiff informed the said John H. Banninga, the defendant, that he, the plaintiff, owned said premises and requested possession thereof, which was refused by the said defendant who took possession thereof, both plaintiff and his wife at all times objécted to the possession by the defendant of said premises and objected to his control thereof.
“6. Defendant insisting that he was entitled to the possession of said premises, and that the plaintiff had no rights therein, retained possession thereof and received from the tenants in possession of said buildings the sum of $150 per month for each month, beginning on the 21st day of September, 1914, and con tinuing until and including the 21st day of May, 1917, collecting said rents for 32 months and collecting the full sum of $4,800, in addition to the said sum of $600 which said defendant had received from the said Gustave Neumaster.
“7. That all of said money was and is the property of the plaintiff and was collected by the defendant without the consent of the plaintiff, and against his rights and wishes.
“8. That the defendant now has in his possession the sum of $5,400, belonging to the said plaintiff, and has had said sum since the 21st day of May, 1917.
“9. The plaintiff in this suit also declares against the defendant for certain household goods which he claims the defendant wrongfully took from him; the defendant denies having said goods, and I am not satisfied that he received them, and the plaintiff has not met the burden of proof in this regard and that part of his claim will be disallowed and he will take nothing thereby.
“10. The plaintiff only claims interest from May 21, 1921.
“Conclusions of Law.
“1. It follows that the plaintiff is entitled to a judgment against the defendant for the sum of $5,400 for the money which he has collected belonging to the plaintiff, together with interest thereon from and after the_ 21st day of May, 1917, at 5 per cent, per annum, which interest at this date amounts to the sum of $1,035, making a total of $6,435.
“2. The plaintiff is entitled to a judgment against the said defendant, John H. Banninga, in the sum of $6,435, with costs to be taxed.
“Let judgment be entered accordingly.”
A motion was made that the court amend his findings. The court declined to do this and exceptions were duly taken. The case is here by writ of error.
Counsel say in their brief that the assignments of error raise but two questions:
“(1) Plaintiff is estopped from asserting his claim.
“(2) Plaintiff can not recover the payments on said illegal contract.”
We quote from the brief of appellant’s counsel:
“The general claim- by appellant that plaintiff is es-topped from asserting his alleged rights will be subdivided and discussed as follows:
(a) Estoppel by records or judgments.
(b) Estoppel by conduct and by silence.
(c) Estoppel by election.
“ (a) It has been pointed out that plaintiff was the moving party in all of the steps to probate and administrate the estate, was a party to all of the proceedings and therefore is bound to know of the orders of the probate court and of the doings with reference to the estate.”
(b) Counsel insists that plaintiff remained silent when he should have spoken.
We again quote from the brief:
“(c) Estoppel by election.
“A party cannot either in the course of litigation or in dealings in pais occupy inconsistent positions. Out of that rule has grown the doctrine of election.
“An election is made when a party with a knowledge of his rights and of all other facts material to him makes any decisive act. Bigelow on Estoppel (6th Ed.), 739; Robb v. Vos, 155 U. S. 13 (15 Sup. Ct. 4).
“Plaintiff Stamp with knowledge of his deed (if he actually had it), knowledge possessed by himself alone, proceeded to institute the probating of his sister’s estate; succeeded in establishing her lost will; and with this same knowledge, allowed the estate to claim, handle and dispose of the property he now claims. He made a decisive act. He elected to establish her will under whose terms he and his family were beneficiaries. • He cannot now occupy a contradictory and an inconsistent position in court. Rowley v. Towsley, 53 Mich. 329; Thompson v. Howard, 31 Mich. 312.
“Parties litigant cannot be permitted to thus change their front. They cannot play fast and loose.”
a. It is true that plaintiff took the initiative in having the will of Mrs. Keene allowed and her estate probated. It is also true that there was other property than that claimed by the plaintiff in his sister’s estate, so that we do not think it can be said that because he at one time wanted her will allowed, and her estate probated that he is estopped in this proceeding. It is a curious fact that, though the instant case was tried in March, 1921, and the opinion in Re Keene’s Estate, 202 Mich. 646, was filed in September, 1918, the present record does not show what was done in the probate court after that opinion was handed down.
The opinion written by Justice Stone in Stamp v. Steele, 209 Mich. 205, established title to the so-called Webster avenue property in Mr. Stamp. It would seem to follow logically that he should be entitled to the rents thereof if any were paid. The plaintiff and his wife testified that they advised defendant early of their claim of title to the Webster avenue property. We quote from the plaintiff’s testimony:
“Q. Did you tell him (Banninga) how you come to own this property on Webster avenue?
“A. I told him I owned it by a deed.
“Q. What did he say about that?
“A. He wouldn’t listen to me.
“Q. Did you show him the deed that you had?
“A. I offered to show it to him. * * *
“Q. What did he say when you offered to show it to him?
“A. He told me to shut my mouth; * * * that he did not want to listen to me at all.”
Plaintiff further testified the defendant told him he was a dope fiend and that if he made any trouble he would take his children away from him and send the plaintiff to the insane asylum. The trial judge found as a fact that they did tell defendant as claimed, and the record shows plaintiff and his wife refused to leave the Webster avenue property until legal proceedings were taken against them.
We now take up the second claim that plaintiff cannot recover the rents because they were paid to the defendant by tenants who were renting the houses for purposes of prostitution. This claim would have force if the litigation was between the defendant and the tenants, but the record does not show that the plaintiff had anything to do with the illegal contracts. We do not think defendant can avail himself of this defense.
Judgment is affirmed, with costs to the plaintiff.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. | [
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Per Curiam.
Defendant was convicted by a jury of delivery of a controlled substance, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), superseded by 1978 PA 368. Sentenced to from 10 to 20 years imprisonment, he appeals as of right.
This was defendant’s second conviction for the same offense. His first conviction was reversed by the Supreme Court. People v Johnson, 409 Mich 552; 297 NW2d 115 (1980). The testimony at the original trial showed that the police had used an informant, Cora Pierce, to arrange a drug transaction between defendant and Officer Dan Weston, an undercover agent. Shortly after defendant sold Weston seven "dime bags” of heroin for $50 he was arrested for delivery of a controlled substance. On direct examination of Weston, the prosecutor inquired into defendant’s reputation in the drug community. Weston testified that defendant was known as a "big man” in the drug community who "took care of business with an iron fist”. On review, the Supreme Court ruled that this testimony injected reversible error into the trial. The testimony presented character evidence of the defendant, namely, that he was reputed to be a big drug dealer who used violence to control his business. The defendant, however, had not placed in issue these particular aspects of his reputation. Noting that "the power of the state to rebut the character of defendant is limited to the trait or traits introduced by the defendant”, 409 Mich 561, the Court ruled that the character evidence was inadmissible. The Court further held that the error was not harmless and reversed defendant’s conviction.
At the second .trial, Officer Weston once again testified. The prosecutor, in his direct examination of Weston, inquired into the police practice of using informants in drug investigations. At one point, the prosecutor and Weston engaged in the following colloquy:
”Q. Now, in regards to Cora Pierce, you say that she had three cases pending, drug cases. You know, how is an evaluation made as this person we are going to allow to be an informant, a recommendation of some sort versus the person that that informant introduces to, my question is, how is that evaluation made? They both do the same thing, they’re both as guilty?
"A. I see what you mean. Well, the evaluation is made by the — the evaluation is made by the police community, the officer in the unit. And sort of the way that I think of it is it is like a balance beam scale and the best way I can explain is to give a couple of examples, if I could.
"If you have a person that I would consider rightfully . or wrongfully, it goes a lot on what the officer’s own perception of the people that they’re dealing with is. If you have a person that I consider to be a street level dealer, that is not — in other words, not a major dealer at all versus a person that is in my estimation, a higher level dealer, I sort of think of it in the terms of a ladder, at a higher rung on the ladder. Even though if it is the same crime, if this person delivers $10.00 worth of heroin or this person delivers $10.00 worth of heroin, it has a greater effect on the drug community or the people. The distribution of the drugs.
"If you are able to arrest and take off the street the person that is at the higher level, therefore in that situation, we would be willing to consider the person for an informant if they were going to be the conduit for us to a higher person.
"Also, if you had people that were on the same level, if we had one person and only one person and we arrested that person, it would be over with. We would have no other place to go whereas this one person, even though they may be on the same level, if they could then make introductions to 5 or 10 of 150 other individuals of the same level, we would be willing to consider dropping charges on this person in order to be able to eliminate a much larger number of people.
"But what we would not do is make a recommendation on someone that, whatever level we are talking about, that would only do one other person at the same level they are because we have not accomplished anything. We have just traded one person for another person.
"As far as having an impact and effect on the drugs into the community, that has no effect. So it has to have a bearing on the impact or the amount of drugs that we are cutting off from coming into the community.”
The defendant objected to this testimony and moved for a mistrial. The court denied the motion.
On appeal, the defendant argues that the testimony reproduced above was inadmissible because it implies that defendant was reputed to be a major drug dealer.
We note at the outset that defendant did not place in issue his reputation in the drug community. Thus, the people could not introduce evidence showing that defendant was reputed to be a major drug dealer. People v Johnson, supra. After carefully reviewing Weston’s testimony, we are convinced that he did suggest that defendant had such a reputation. Weston began by emphasizing the utility of a "street level” informant who can be a "conduit” to a major dealer. In so doing, Weston insinuated that defendant was such a dealer. Of course, he then pointed out that a street level informant who can lead the police to a number of other dealers on the same level is also valuable. Theoretically, Cora Pierce could have been such an informant and defendant could have been a street level dealer. But a mention of this possibility is not enough to dispel the initial suggestion that the police are primarily interested in major dealers and that defendant is one of these dealers. Weston’s testimony was inadmissible character evidence.
Admission of this evidence was not harmless error. The trial came down to a credibility battle between Officer Weston and defendant. The state’s portrayal of defendant as a "bad man” could only damage defendant’s credibility. Defendant was denied a fair trial,
Reversed and remanded. | [
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Per Curiam.
The pertinent facts are set forth in Judge Maher’s dissent and will not be repeated here.
Defendant’s argument on appeal is that his delayed sentencing pursuant to MCL 771.1(2); MSA 28.1131(2) was tantamount to being placed on probation. Therefore, defendant asserts, his first breaking and entering conviction was no longer pending within. the meaning of the consecutive sentencing proviso, MCL 768.7b; MSA 28.1030(2), when he committed the second breaking and entering.
In People v Mayes, 78 Mich App 618, 621; 261 NW2d 22 (1977), this Court held that a charge is deemed pending within the meaning of MCL 768.7b; MSA 28.1030(2) until a defendant is sentenced. In People v Leal, 71 Mich App 319, 321; 248 NW2d 252 (1976), lv den 399 Mich 821 (1977), this Court held that a defendant is sentenced when placed on probation. Once placed on probation, the disposition of that case is no longer pending.
Deferred sentencing pursuant to MCL 771.1; MSA 28.1131 is not equivalent to being placed on probation. In People v Saylor, 88 Mich App 270, 275; 276 NW2d 885 (1979), this Court said that a delayed sentence means no sentence is initially imposed even though the trial court may impose conditions upon the defendant. See also People v Clyne, 36 Mich App 152, 155; 193 NW2d 399 (1971). The imposition of those conditions is not construed as tantamount to placing the defendant on probation. Clyne, supra. Therefore, defendant was not yet sentenced for his first breaking and entering conviction when he committed the second offense; disposition of his first case was pending.
Because defendant’s first B & E charge was still pending, the consecutive sentencing proviso clearly applies. The language of the statute is mandatory; once a defendant commits a subsequent felony offense when a felony charge is pending, the consecutive sentencing option "shall” apply. Whether that option is imposed as a condition of the sentence for the second or subsequent felony conviction is discretionary with the trial court.
Not only is the language of MCL 768.7b; MSA 28.1030(2) clear and mandatory, but, unlike Judge Maher, we find that § 7b does not impose additional deterrents in this case. While a defendant given delayed sentencing has an incentive to stay on the right side of the law, that incentive cannot be equated with the deterrence intended by § 7b. The purposes of the two statutes at issue, as indicated in the dissenting opinion, are not the same. A defendant given a delayed sentence still faces a possible maximum term for his or her conviction dependent upon many conditions, only one of which is that of avoiding a subsequent felony charge.
Should the dissent’s rationale be applied to defendants given delayed sentences, this Court would be interpreting § 7b in a manner that would abrogate the statute’s intended deterrent effect rather than liberally construing it. See Mayes, supra, p 621. The defendant would again have the security of knowing that, if convicted of the second felony, the sentence on the second conviction would run concurrently with the first sentence. See People v Henry, 107 Mich App 632; 309 NW2d 922 (1981).
For the foregoing reasons, we affirm. | [
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Fellows, C. J.
Defendant company is engaged, in the business of building houses which it sells on contract. From this record it appears that it was an owner of at least a portion of Tannenholz Realty Company’s subdivision of Private Claim 543, located north of Michigan avenue in the city of Detroit. Upon it the company erected a large number of cottages. The location had originally been a brickyard and the clay had been taken out to the depth of several feet. After its abandonment as a brickyard it became a dumping ground and was filled with all sorts of discarded articles. These were covered over with soil and leveled off and left to stand for some three years when defendant commenced its building operations.
Plaintiffs saw defendant’s advertisement of the cottages for sale and went to the premises with a view of buying one. They found a man in charge in a cottage which was then being used as an office. Other cottages were being erected on the plat. It is the claim of the plaintiffs that certain representations were then made to them as to the quality of the cottages for sale, among them being that they would be like the sample cottage, of good workmanship, that first-class material was being used in their construction, and that the cottages were all first-class jobs, and the agent showed them a plat and pointed out a lot they could buy, took them to it, where they found a partially constructed house. The following day plaintiffs went to defendant’s downtown office and entered into a contract for the lot selected and paid $500 on the purchase price and $32.40 for insurance. This was in March, 1920. The house was soon thereafter completed and they moved in April 16th following. Their monthly payments were $50.
When the plaintiffs started to make their garden they learned that the lot was filled ground. This fact was confirmed when they installed a furnace as they told defendant’s agent they intended to do when they were conducting the negotiations. That there should be no misapprehension, it may be now stated that plaintiffs’ basis of relief is not that the land was filled land, but that the foundation under the house was of such shallow depth that, taken in connection with the porous condition of the filled land, the house settled, causing the walls to crack, the floors to become uneven, the house to get out of plumb and render the job anything but a first-class job. It is doubtless true that other defects in construction were discovered when the lawsuit was imminent which would have otherwise been overlooked.
We are convinced that plaintiffs’ house settled and the insufficiency of the foundation came to their knowledge in January, 1921. While Mr. Muflieron first thought it was in the spring of that year, on further reflection he testified that there was a warm spell in January when the frost came out of the ground. That it was at this time the difficulty became apparent is confirmed by the fact that about 50 other persons who had purchased cottages from defendant in this locality experienced like settling in their houses and like damage to their homes about this time. The purchasers got together and appointed a committee, and the building department of the city was consulted and an inspector sent out. He found that plaintiffs’ foundations were only down about 18 inches whereas the building code of the city required that they should be down at least 3 feet, 6 inches. Other foundations were from 14 to 20 inches in depth. Defendant, by direction of the building department, undertook the work of putting in proper foundations to comply with the building code and did put in foundations which squared with its requirements. In addition to complaining to the building department the purchasers employed counsel who took up the matter with defendant’s counsel and an adjustment was attempted. We are convinced from this record that counsel for both sides acted in the utmost good faith and made heroic efforts to settle the troubles. Doubtless had defendant followed the advice of its counsel this litigation would not be here. As a result of the negotiations between counsel defendant agreed to settle with 32 of the purchasers and the amounts agreed upon. Plaintiffs were not of this number, due to defendant’s insistence that it would not pay for improvements, but the negotiations were continued with a view of coming to an agreement with those who had put on improvements and in some instances payment for small improvements was agreed to. Defendant paid but 10 of the purchasers and declined or was unable to pay the balance. Plaintiffs moved out of the premises and this and some 40 other suits were instituted.
Plaintiffs seek cancellation of the contract, relief from its forfeiture clause, accounting, and a lien on the premises for the amount found due them. The trial judge found the facts to be with the plaintiffs. He had the advantage of seeing the witnesses and a view of the premises had at the request of both parties. We agree with his conclusions on the facts and shall not further discuss them in detail.
Mr. Mulheron had been a cabinet maker but not a house-builder. He and his wife visited the house two or three times after they bought it. We do not think the doctrine of caveat emptor applies. The defect which damaged the house was a latent one. The foundations were put in by a contractor employed by defendant. Doubtless defendant’s officers and agents believed the contractor had complied with his contract and the building code of the city. But their representations to plaintiffs concerned a fact presumptively within their knowledge, of which they assumed to have knowledge; they were relied upon by plaintiffs to their damage, were untrue and were material. Under the repeated holdings,of this court defendant can not escape liability for them on the ground of good faith in making them. The new foundations were put in because the building department and the building code required them to be put in. They were not put in to settle plaintiffs’ claim. The damage to the house had already been done and there is testimony in the case tending to show that even with the present foundations there will be further, settling of the house due to the porous condition of the filled ground. Plaintiffs as we shall see did not under the peculiar facts of the case waive their right to rescind because they continued to occupy the house after the new foundations had been put in. This leaves for consideration the three principal questions in the case:
(1) The jurisdiction of a court of equity.
(2) Has the right to rescind been waived or lost by laches?
(3) May the plaintiffs have a lien on the premises for the amount found due?
If not before, at least since the decision in John Hancock Mut. Life Ins. Co. v. Dick, 114 Mich. 337 (43 L. R. A. 566), this.court has recognized the concurrent jurisdiction of the court of equity in actions involving fraud where something more than a money judgment is necessary to work out the rights of the parties. It is possible that this court went further in that case than in those which preceded it. In Mactavish v. Kent Circuit Judge, 122 Mich. 242, this court was asked but declined to overrule it. Other efforts have unsuccessfully been made to have the court recede from the doctrine there announced. In Fred Macey Co. v. Macey, 143 Mich. 138 (5 L. R. A. [N. S.] 1036), Mr. Justice Grant and Mr. Justice Hooker, both of whom wrote in the case, fully review the authorities and sustain the jurisdiction of a court of equity. The opinions are so full in that case that we refrain from further citation of authorities on this question. We have not, however, gone to the length of holding that courts of equity have concurrent jurisdiction in all cases where fraud is involved; and where a money decree only is sought jurisdiction in equity has been denied in numerous cases, illustrative of which are Flint v. Le Heup, 199 Mich. 41, and cases cited at page 49. But where something beyond a money decree is sought and the interposition of a court of equity is necessary to work out the rights of the parties this court has not been grudgeful in entertaining equity jurisdiction. In the instant case can eellation of a written instrument is sought and relief from a forfeiture asked. Both furnish grounds for equitable relief, and the court of equity having assumed jurisdiction will retain it to work out the rights of the parties. The plaintiffs have sought the proper forum.
We do not think the facts of the instant case would justify us in holding that by remaining in possession of the premises after discovery of the fraud plaintiffs waived their right to rescind or that they are guilty of laches. It is a rule, well recognized, that one seeking to rescind must act promptly on discovery of the fraud and may not after such discovery continue to recognize the validity of the contract. In the instant case plaintiffs did not, after the discovery of the fraud, continue for a long time to recognize the validity of the contract and make payments thereon as in Draft v. Hesselsweet, 194 Mich. 604. The fraud was discovered the latter part of January and plaintiffs ceased making payments in February. Plaintiffs and others employed counsel and for several months negotiations for settlement were pending. Failing to get results by negotiations they delivered up possession and filed this bill. Under the facts they are not precluded from maintaining it by reason of waiver or laches. Fred Macey Co. v. Macey, supra.
This leaves for consideration the interesting question of whether the trial judge was authorized in awarding plaintiffs a lien on the premises for the amount found due. Generally speaking, the right of a vendee to a lien on the premises purchased is recognized both in England (Rose v. Watson, 10 H. L. Cas. 672; Whitbread & Co., Ltd., v. Watt [1902], 1 L. R. Ch. Div. 835), and in this country (Stewart v. Wood, 63 Mo. 252; Bibb v. Prather, 1 Bibb [Ky.], 313; Bullitt v. Eastern Kentucky Land Co., 99 Ky. 324 [36 S. W. 16]; Davis v. Heard, 44 Miss. 50; McWilliams v. Jenkins, 72 Ala. 480; Swetitsch v. Waskow, 37 Ill. App. 155; North v. Bunn, 122 N. C. 766 [29 S. E. 776]; Ihrke v. Insurance Co., 91 Wash. 342 [157 Pac. 866]; Elterman v. Hyman, 192 N. Y. 113 [84 N. E. 937, 127 Am. St. Rep. 862]; Craft v. Latourette, 62 N. J. Eq. 206 [49 Atl. 711]). And this court in the early case of Payne v. Atterbury, Har. 414, recognized the right of a vendee who had promptly made his payment to a vendee’s lien on the premises. In Ruling Case Law the general rule is thus stated (27 R. C. L. p. 628):
“Lien of Purchaser Generally. As a general rule, a purchaser of land by executory contract is entitled to an equitable lien thereon for the amount paid on the purchase price, where the contract fails because of some act or conduct of the vendor or his inability to perform it. The exact nature of this lien is not clear. The doctrine has been quite generally applied without any discussion as to the nature of the lien, except, perhaps, the statement in general terms that it was an equitable lien, very similar to that of a vendor for unpaid purchase money. Its existence was upheld in England in 1864 in the case of Rose v. Watson, 10 H. L. Gas. 672, after an exhaustive investigation of the subject; and the same doctrine is announced in many jurisdictions in this country. Where the agreement to convey is in consideration of services to be rendered or tlie like, instead of a money consideration, a lien for their value has been upheld; and though the contract of sale was oral and for such reason unenforceable against the vendor, the purchaser. has been held entitled to a lien on the refusal of the vendor to perform. It exists independently of whether the purchaser is in or has been let into possession, and is recognized in jurisdictions which refuse to recognize any implied lien on the part of the vendor, after a conveyance, for unpaid purchase money.”
In the main the cases above cited do not differentiate between actions in affirmance of the contract and those where the contract has been rescinded and the action is in avoidance of it, nor do they in the main con sider whether a different rule should apply. Some of the cases, however, do consider that question, others by their reasoning make the doctrine applicable to both classes of cases. In New York the question has been given careful consideration. Davis v. Rosenzweig Realty Co., 192 N. Y. 128 (84 N. E. 948, 127 Am. St. Rep. 890), was handed down with Elterman v. Hyman, supra. In the Elterman Case the Court had recognized the general doctrine that the vendee under a land contract had a lien but the Davis Case was a case where the vendee had rescinded and a majority of the court held that under such circumstances he was not entitled to a lien, and it was there said:
“The first question presented is whether the lien of a vendee for the amount paid on an executory contract for the purchase of land survives a rescission of the contract adjudged by a court of equity on the ground of fraud practiced by the vendor by which the vendee was induced to enter into the contract? Under the facts found the right of recovery at law for the sum paid is not questioned, but it is strenuously insisted that rescission destroys the contract and remits the parties to their original rights.
“We held in the Elterman Case that the vendee’s lien was created by the contract and payment thereunder, and that upon default by the vendor without fault of the vendee the latter could foreclose his lien. If we reasoned correctly in that case there can be no lien without a contract. Payment on the contract pursuant to its requirements gives a lien by operation of law. The contract is the essential basis of the lien, for payment is. simply an observance by the vendee of one of the express terms thereof. Rescission, therefore, destroys the contract ab initio and leaves the parties in the same situation as if no contract had ever been made. Under these circumstances there can be no lien.”
An examination of the record and briefs in Von Hoene v. Barber, 215 Mich. 538, discloses that the precise question here involved was there before this court. The bill was based on the rescission of a land contract for fraud. It was claimed that the. court of equity had jurisdiction because plaintiff had an equitable lien. The trial judge on the authority of Davis v. Rosenzweig Realty Co., supra, had held that when the contract was at an end by rescission a lien did not attach in favor of a vendee who had elected to rescind. In affirming the ease we adopted the New York rule. We appreciate that the doctrine of the Davis Case has been seriously criticized but it was adopted in the Von Hoene Case and must be considered the law in this State and controlling of the instant case.
The discussion of this question should not be closed without a consideration of the case of Culver v. Avery, 161 Mich. 322, because upon its face it is not in accord with the Davis and Von Hoene Cases. Before considering it, however, it is well that we quote from the section of Ruling Case Law (R. C. L. p. 629) following the one above quoted:
“Effect of Rescission; Priorities. It has been held that the contract is an essential basis of the lien and if it is destroyed the lien is also lost; and that therefore if the purchaser elects to rescind the contract for the fraud of the vendor he thereby destroys his lien for payments made thereunder. In other cases, however, the right of the purchaser to a lien has been upheld where the purchaser’s right to recover payments made was based on a rescission for the fraud of the vendor, such cases being considered without argument as governed by the same principle as where the recovery is for the failure or refusal of the vendor to convey.”
In the Culver Case the plaintiffs had rescinded the contract for fraud and sought cancellation of the agreement, relief from the forfeiture clauses, and an equitable lien for the amount found due. As we have pointed out, a court of equity may be appealed to for the cancellation of the contract and relief from the forfeiture clauses contained in it. An examination of the briefs in the Culver Case discloses that complainant’s solicitors there insisted that they were entitled to an equitable lien if entitled to the other relief, and this contention was in no way controverted by defendant’s counsel. The case must be regarded as falling within the class of cases last noted in Ruling Case Law. The question here presented was in no way called to the attention of the court, and courts of last resort can hardly be expected sum sponte to discuss questions not raised and not necessary to decision. Now that the question is here and necessary to decision and a more extended consideration and discussion required, we are constrained to hold that this court has accepted the doctrine of the Davis Case and that plaintiffs having rescinded the contract may not have, a lien for the payments made under it.
It follows from what we have said that the decree of the court below must be modified by eliminating the lien on the premises and affirmed in all other regards. Neither party will recover costs of this court.
Wiest, McDonald, Clark, Bird, Sharpe, and STEERE, JJ., concurred. MOORE, J., did not sit. | [
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Wiest, J.
The Farmers & Merchants Bank was a partnership conducting a private banking business in the city of Grand Rapids. In March, 1921, it made an assignment for the benefit of its creditors to the Michigan Trust Company. The assignee accepted the trust, qualified and is now acting.
Plaintiffs are husband and wife, and deposited money in the bank in their joint names and had such Savings designated in their deposit book as payable to James E. Murphy and Gertrude Murphy, either or the survivor. At the time the bank closed its doors they had $726.62 in such deposit. They also deposited in their joint names $1,000, and received a certificate of deposit, payable to either or the survivor. They presented a claim, as creditors, to the amount of such deposits, and the assignee gave notice of contest on the ground that Mr. Murphy was a member of the copartnership.
The contest was entered on the law side of the court in accordance with the provisions of the statute (3 Comp. Laws 1915, § 13610), and the testimony of Mr. Murphy was taken. His testimony disclosed that the deposits represented money derived by plaintiffs from their separate affairs, but did not point out the amount deposited by each. , The testimony established, however, the fact that the major part of the deposits represented the individual means of Mrs. Murphy.
The court found that Mr. Murphy was a partner in the Farmers & Merchants Bank; that plaintiffs were joint tenants of the sums on deposit; that the interest of Mr. Murphy in the joint deposits is subject to the claim of creditors by reason of the fact that he was a partner in the bank, and should not be allowed as a claim against the bank until creditors, other than partners, have been paid in full; that the burden of proving what proportion of said deposits belonged to each of ‘the plaintiffs rested upon them and had not been sustained, and determined that the claim should not be allowed at the time of hearing. Plaintiffs duly excepted to the findings of fact and conclusions of law, proposed amendments, and, upon denial of the same, sued out a writ of error
Plaintiffs, as depositors, are certainly creditors, and the only question in the case is whether the contingent liability of Mr. Murphy to respond to creditors as a partner in the defunct bank defeats the allowance of their joint claim. The judgment of the trial court has cut the plaintiffs off from all participation in the assets, even if the same prove sufficient to pay all creditors without calling upon the partners. Such a result ought not to be permitted unless the law allows no other.
The assignee rested the contest upon the point that Mr. Murphy’s relation as a partner in the bank-prevented plaintiffs from any and all participation in the distribution of the assets of the bank. Plaintiffs insist that they held the deposit not only as joint tenants, but, because of their unity as husband and wife, as tenants by entireties. It is true that such incident of unity of person is the only addition to a joint tenancy necessary to create a tenancy by entireties. But even where the unity of person exists a joint tenancy may be created. Under the terms of the deposits were plaintiffs each seized of an undivided moiety of the whole or by entireties? The words “payable to either” do not square with the idea of a tenancy by entireties but do pointedly relate to a joint tenancy. If plaintiffs held the deposits as tenants by entireties the same could not be paid to either during the lifetime of both, but if they held as joint tenants the deposits were “payable to either.”
The statute, 2 Comp. Laws 1915, § 8040, provides;
“When a deposit shall be made in any bank or trust company by any person in the name of such depositor or any other person, and in form to be paid to either or the survivor of them, such deposits thereupon and any additions thereto, made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same together with all interest thereon, shall be held for the exclusive use of the persons so named and may be paid to either during the lifetime of both, or to the survivor after the death of one of them.” * * *
We must hold the deposits constituted plaintiffs joint tenants. As joint tenants the ownership of Mr. Murphy is severable for the purpose of meeting the demands of creditors.
In the absence of proof establishing their contributions toward the deposits the presumption prevails that plaintiffs were equal- contributors thereto and, therefore, equal owners. If the assignee did not want to accept such presumption the way was open to introduce testimony on the subject. We do not, however, have to rest the matter upon such presumption, as all the testimony in the case was to the effect that the principal contributor to the deposits was Mrs. Murphy. We can conceive of no reason why this joint claim for deposits made in the bank should not be allowed, and payment, if any, to -Mr. Murphy withheld by order of the court until his contingent liability to contribute as a partner is determined. The joint claim should have been allowed and the right of Mrs. Murphy therein determined as one-half thereof. Mrs. Murphy’s rights to one-half should run along with the rights of creditors other than partners.
Mr. Murphy’s right to participation in distribution is contingent upon whether his share of the deposits may be needed to meet his liability to the creditors as a partner and should be held by the assignee until, in the process of liquidation, such question can be determined. It is immaterial whether this is worked out under the name of set-off, as in King v. Armstrong, 50 Ohio St. 222 (34 N. E. 163), or under any other name. Of course, if Mr. Murphy’s liability to respond to the creditors as a partner exceeds his claim as a depositor the absorption of his claim will not operate to save him from meeting his obligation as a partner.
The judgment is reversed and the case remanded for judgment and proceedings in the circuit in accordance with this opinion, with costs of this court to plaintiffs.
Fellows, C. J., and Clark, Bird, Sharpe, and Steere, JJ., concurred. McDonald and Moore, JJ., did not sit. | [
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Steere, J.
Plaintiffs filed this bill to relieve certain premises they own in Detroit from a mortgage held by defendant, and have appealed from dismissal of their bill by the Wayne county circuit court, in chancery. On June 26, 1913, plaintiffs purchased from Percy R. Upton and wife under land contract a house and lot in the city of Detroit known as 3994 Townsend avenue for the sum of $4,000. The terms of payment were $500 down, $200 January 10, 1915, $30 July 26, 1913, and a like sum of $30 or more monthly thereafter until June 26, 1917, when all became due and payable, with interest at 6% on deferred payments. The contract was drawn on a so-called Burton form which in general contained the customary provisions for sale of residence or improved property under land contract and also a provision that “(said first parties hereby reserve the right to mortgage said property in amount not to exceed two thousand (2,000) dollars).”
Upon execution of the contract plaintiffs at once made first payment and took possession of the premises upon which they have since resided. Shortly thereafter Upton applied to defendant savings bank for a loan of $1,700 to be secured by a mortgage on said property. After investigation the application was approved and a mortgage for that amount given the bank by Upton and wife running for three years with interest at 6%, which was duly recorded.
Plaintiffs continued to directly pay the Uptons deferred payments on their contract as they fell due until February 26, 1918, and at their request thereafter remitted them payments, receipted for by mail, to Seattle, Washington, and Portland, Oregon. The total sum paid by them to the Uptons on their land contract amounted to $3,260.40, the last payment being made in December, 1918. Not long thereafter plaintiffs received notice from Upton’s attorney in Detroit not to remit any further payments to them as there was a mortgage of $1,700 which they had given on the property to care for and Upton had gone into bankruptcy, which plaintiffs claim was the first knowledge they received that the property had been mortgaged. They then took up the matter with the bank and were fully advised of its claim. The Uptons had kept up the interest on the mortgage, which was then past due, but had paid nothing upon the principal.
Beginning July 5, 1919, plaintiffs made payments to the bank for over a year and a half, “on account of interest and principal on the mortgage,” as Mrs. Schwalm testified, when they consulted an attorney who found the payments they had made to the bank over and above the balance due on their land contract amounted to $191.71, which is undisputed. Plaintiffs refused to make further payments and filed this bill on February 1, 1921. Defendant’s answer, filed April 7, 1921, showed yet due and unpaid upon its mortgage $900 principal with interest from February 8, 1921. In the meantime, upon what date is not shown, the Uptons had given plaintiffs a warranty deed of the premises.
Plaintiffs’ grounds for relief from this mortgage are primarily based on the claim of equitable priority of lien rights as between the parties, in determining which it is urged equity courts “are governed largely by considerations of fairness and justice.” Pursuing the subject of priority of equities counsel cite and quote from various authorities, including 2 Pomeroy’s Equity Jurisprudence (3d Ed.), § 678 et seq., wherein the author states amongst other things that the doctrine is a development of the two legal maxims that “Where there are legal equities, the first in order of time will prevail; and where there is equal equity the law must prevail.” Pointing out that notice is an important and sometimes a controlling element in determining priority of equities, counsel urge that plaintiffs as vendees in possession occupy a superior position since the bank had both actual and constructive notice of their rights while they had no notice whatever of its mortgage until years after it was given and these complications had developed.
There is no question but the bank was fully advised of plaintiffs’ contract interest in the property when the mortgage was taken. The owners of the fee with whom they contracted so stated in their application for the loan, and the bank not only investigated the condition of the title but of the property itself after plaintiffs were in possession, but whether plaintiffs had notice of the mortgage at that time is fairly an issue of fact. They deny such knowledge. It is undisputed that they took possession in June, 1913, and shortly thereafter the application for a loan was made by the Uptons. The bank then sent its appraiser to investigate the property proposed as security. His testimony, supported by a report in writing made by him at the time, shows that he obtained permission from the parties in possession to look through the house on telling them he represented the bank and was there to approve the property for a mortgage; that he inquired if they were tenants and they replied they were contract purchasers.
Their rights, of which possession was notice, were those defined and limited by the contract of purchase which over their own signatures gave the vendors and fee owners the right to mortgage said property in amount not to exceed $2,000. In mortgaging it to defendant the Uptons did only what plaintiffs in the contract had given them the right to do. It contained no requirement that notice of the fact should be given plaintiffs either by the vendors or party to whom it was mortgaged.
When the mortgage for $1,700 was given and recorded no fraud actual or constructive was practiced' upon any party in interest. Plaintiffs had then invested at most but $530 and yet owed nearly $3,500 to be met by a series of small deferred payments, as the date and terms of their contract giving the vendors authority to mortgage showed. The only element of fraud in the case was the conduct of the vendors in asking and receiving payments which plaintiffs trustingly continued to them beyond the $2,000 limit they were authorized to mortgage the property for, without taking care of the mortgage which they had given.
The rule of estoppel rather than that of priority of notice would seem most applicable where the vendees took their contract interest in property subject to the unqualified right of their vendors to incumber it up to '& certain amount, and afterwards ignored that provision. Defendant was not a party to the contract, but relied and acted upon it as the contracting parties authorized. Plaintiffs were parties to the contract and created the conditions out of which this difficulty arose. They could easily have avoided it by examining the public records before their payments passed the $2,000 limit they had authorized. While it is true, as their counsel points out, that the recording laws operate in prospective, it is also true that their payments beyond the limits of the mortgage they had authorized and now seek to avoid on equitable grounds were in prospective when it was given and recorded. Under the circumstances disclosed by this record prior equities between these parties cannot be said to predominate in favor of plaintiffs.
In Lines v. Weaver, 220 Mich. 244, the vendees under a land contract consented that the vendor might place a “construction loan” not to , exceed $7,500 on the property. The vendor, Weaver, borrowed $1,800 of Burrusch secured by a mortgage upon the property. He totally defaulted in his contract with plaintiffs to erect a building on the property, appropriated the $1,800 and absconded. Plaintiffs filed a bill involving certain complications with Weaver as to which relief was granted, and asking that the mortgage from Weaver to Burrusch be declared void and canceled,, which was denied. The following views dealing with that issue are well in point here:
“The loan was in accord with the agreement of the parties save in respect to the time the loan was to mature. The real trouble was, Weaver was dishonest and irresponsible. Plaintiffs selected him and invested him with certain powers which he hqs abused. It does not appear that defendant Burrusch aided or assisted him in abusing his trust.”
The decree of dismissal will stand affirmed, with costs to defendant.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit. | [
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Sharpe, J.
.Plaintiffs sue to recover damages on their rescission of a contract for the purchase of real estate in Ottawa county. They had verdict and judgment in the trial court. Defendants’ motion for a. new trial was overruled. Error is assigned upon the charge of the court and the denial of such motion. Plaintiffs, former residents of Nebraska, came to Grand Haven in December, 1919. The defendant Proctor was engaged in selling real estate on commission. The defendant VandenAkker listed a 40-acre farm with him in January, 1920, to be sold, with certain stock and farming tools thereon, for $4,000. Plaintiffs at Proctor’s request went to see this farm, having been taken thereto by defendant Conant. There were about 18 inches of snow on the ground at that time. Plaintiffs claim that Proctor told them the land “was a dark sandy loam and was a fine place, and he said it was a place well worth the money.” They also claim that the defendant Vanden Akker, who was there on the farm, told them there were two patches of strawberries, one old and one new, on the place; that there was a good orchard there of 75 or 80 trees, all Northern Spies except a few; that they could not see the soil and relied on what had been told them. A land contract was entered into on January 8th. Plaintiffs paid $1,000 down payment, the balance to be paid in installments agreed upon. The sale was subject to a mortgage of $1,600, which plaintiffs agreed to assume. A bill of sale of the personalty was also executed and delivered. Plaintiffs moved onto the farm about February 1st. Mr. Hall testified:
“Along in February some time there came a thaw and we could see what the ground was; as quick as we see it we see we had been stung. * * * We found it was just white sand. Didn’t find any half acre of strawberries. * * * I found the orchard was in bad shape, from one-third to one-half the trees were dead, and the rest of them were badly diseased. Very few healthy trees in the orchard. The soil that Mr. Proctor told me about I found it wasn’t there, nothing but white sand.”
On February 13th, Hall wrote Proctor, asking that Vanden Akker take the place back. He made no complaint about any misrepresentations in this letter. He testified that soon after in a conversation over the telephone he told Proctor that—
“it wasn’t what it was represented. He told us if we wanted, why he would sell it again for us so we told, him to go ahead and sell it. * * * Then they went to work and made this sale and sold the stuff as I had told them in that letter to do.”
An auction sale was had of the personalty, the notices having been signed by Vanden Akker, as proprietor. The proceeds of the sale were credited on plaintiffs’ note accompanying the contract. Defendant Vanden Akker testified that after the sale of the personalty he found the premises apparently abandoned. He went to plaintiffs’ home in Grand Haven and Mr. Hall then said:
"Well I give you the contract back and I have nothing to do with it, and I says all right, Mr. Hall, then I says won’t you think it over before you do it, and he says no, I won’t do nothing with it any more.”
That Hall then gave him the contract and he—
"went to the bank and the bank notified Mr. Hall to pay the rest of the money, and Mr. Hall was there and throws his hands up and said he won’t do nothing with it no more.”
As to what then occurred Mr. Hall testified:
“I told him if he wanted the contract we would give it up ás it was no good to us. We gave it to him. I think we couldn’t find it that evening and he come back another evening after it.”
Mrs. Hall testified:
“He wanted to know if we wouldn’t give him the contract, he asked for it right out. Then my husband said yes, no good to him, so he gave him the contract.”
Plaintiffs, claiming that they had rescinded the contract because of the fraudulent representations which induced their purchase, brought this action to recover the $1,000 paid. The trial court submitted the two questions to the jury, first, whether plaintiffs were defrauded when they entered into the contract, and, second, whether plaintiffs had in fact rescinded the contract. The jury found for the defendant Conant and against the other defendants in the sum of $1,062.50. Judgment was entered accordingly. Appellants moved for a new trial for the reason, among others, that the verdict was against the great weight of the evidence. This motion was denied, and they review the judgment entered by writ of error.
It is insisted that the verdict was against the great weight of the evidence. While we are not “triers of the facts,” it is our duty under the statute (3 Comp. Laws 1915, § 12635), when such a claim is properly presented, to examine the testimony and determine whether the verdict is “manifestly against the clear weight of the evidence.” Foster v. Rinz, 202 Mich. 601.
The testimony of plaintiffs that Proctor represented the soil to be “dark sandy loam” is positive. Mr. Proctor admitted that he knew it was not. He denied saying that it was. There , was other testimony tending to support the claim of plaintiffs and the denial of defendants. In our opinion there was no such preponderance supporting such denial as would justify setting aside the verdict.
Plaintiffs claim that the surrender of the contract operated as a rescission and was so understood by Vanden Akker. The defendants claim that it amounted to an abandonment and that plaintiffs’ rights were terminated thereby. The plaintiffs were ignorant of legal procedure and did not secure the advice of counsel until about the time this suit was begun. It seems apparent that Mr. Vanden Akker did not accept the surrender of the contract as a termination of the rights of both parties under it. As testified to by him, he “went to the bank and the bank notified Mr. Hall to pay the rest of the money.” To make a voluntary surrender on the part of the plaintiffs a termination of rights under it, it must have been so surrendered by them and accepted by Vanden Akker. If what was said and done by plaintiffs amounted to an abandonment, Vanden Akker might assent thereto and treat the contract as at an end or he could stand upon the contract, refusing his assent to plaintiffs’ efforts to become relieved therefrom. He must do one or the other. His testimony is quite convincing that he chose the latter. While the abandonment of possession by the plaintiffs and the resumption thereof by VandenAkker would not in itself amount to a rescission, it was a circumstance to be considered by the jury in their determination as to whether a rescission, in fact, had been made. There must have been an intent on the part of the plaintiffs to rescind. It was for the jury to draw all reasonable and fair inference from what was said and done, having in mind the familiarity of the parties with legal procedure. After carefully reading the record and giving due weight to the argument of counsel, we feel constrained to hold that the finding that plaintiffs had rescinded is not so contrary to the great weight of the evidence as justifies our setting it aside.
While not discussed by counsel, we feel impelled to call attention to the fact that it is only in unusual cases, such as were pointed out ini Stevens v. Wakeman, 213 Mich. 559, that a surrender of such a contract may be had other than in writing, in view of the provision in section 11975, 3 Comp. Laws 1915. See Waller v. Lieberman, 214 Mich. 428.
The declaration counted on defendants’ misrepresentation as to the character of the soil. It alleged that defendants represented that—
“the soil was heavy and was fertile and would grow and produce large crops of hay, wheat, oats, potatoes, com, etc.”
Plaintiffs testified that Proctor said the soil was “a dark sandy loam and was a fine place.” In his charge to the jury the trial court stated that the claim of the plaintiffs was that defendants represented that the soil was “a heavy black soil.” Error is assigned upon this instruction. That the court was in error in so stating is apparent. It is also apparent that defendants’ counsel, who were doubtless present at the time, did not detect the error, else the attention of the court would undoubtedly have been called to it. The char acter of the soil was described by several witnesses. The representations made were several times referred to. We do not think the error complained of sufficient cause for reversal. If unnoticed by counsel, it doubtless was also by the jury. If noticed by counsel, it was their duty to call the attention of the court to it. Randolph v. Railway, 213 Mich. 100, and cases cited.
Plaintiffs testified, without objection, that the condition of the orchard was not as represented. The declaration contained no allegation relative thereto. The attention of the court was first called to this fact on the motion for a new trial. With the discretion exercised by him in denying the motion for such reason we are not inclined to interfere.
The judgment is affirmed.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Wiest, J.
Plaintiffs are husband and wife and had a general deposit in the Farmers & Merchants Bank of Grand Rapids, payable to either or the survivor, and also a certificate of deposit payable to either or survivor.
Mr. Bowditch was a partner in the bank. Plaintiffs presented a claim for such deposits and the assignee gave notice of contest on the ground that Joseph H. Bowditch was a partner in the bank. The circuit judge found plaintiffs to be joint tenants of the sum of $12,839.19, the amount of the deposits, determined the interest of Mr. Bowditch in the joint deposits to be subject to the claims of creditors and the claim should not be allowed until creditors, other than partners, are paid in full. The court held that the burden of proving what proportion of the joint deposits belonged to each of the plaintiffs rested upon them and had not been met by the testimony.
This case, except as to the amount of the deposits involved, is practically on all fours with the case of Murphy v. Michigan Trust Co., ante, 243, in which an opinion is handed down herewith.
The testimony leaves the proportion deposited by each of the plaintiffs somewhat uncertain. So this case rests upon the presumption that the plaintiffs are equal owners of the deposits. The opinion in the Murphy Case rules this case, and is adopted as the opinion herein.
The judgment entered in the circuit court is reversed and the case remanded for judgment and proceedings in the circuit in accordance with the rule stated in the Murphy Case, with costs of this court to plaintiffs.
Fellows, C. J., and Clark, Bird, Sharpe, and Steere, JJ., concurred. McDonald and Moore, JJ., did not sit. | [
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34
] |
Wiest, J.
Plaintiff is defendant’s mother. While riding as a guest, in the daughter’s néw automobile, on a trip from Pontiac to Saginaw, plaintiff suffered injuries when the automobile went into a ditch near Davison. This suit was brought to recover damages.
It appears that the daughter drove at an unlawful and reckless rate of speed, against the repeated remonstrances of her mother, and the immediate occasion of the accident was putting on the brakes, under a speed of 45 miles per hour, to avoid a horse and buggy crossing the road at an intersecting highway. Plaintiff had verdict for $3,000, and this was cut to $2,000 by the court.
The case is here by writ of error and defendant claims that no negligence on her part was established; that plaintiff voluntarily put herself in a place of danger; that plaintiff assumed the risk incident to the journey by remaining in the automobile after she knew of the apparent danger; that she was engaged in a joint undertaking or common venture with defendant, and that the court should have granted a new trial. The plaintiff was early aware of defendant’s fast driving and was frightened thereby and repeatedly asked defendant to reduce the speed as the car was swerving from side to side of the road. At Clarkston, about 14 miles from Pontiac, at the request of plaintiff, a garage man looked the car over and said he could find nothing wrong with it, and he thought there would be no trouble in keeping the road if the car was not driven too fast. At Ortonville plaintiff got out to inquire about the road to Saginaw and then reentered the car. About a mile south of Davison the car was going at a speed of about 45 miles per hour when a horse and buggy was discovered crossing the road at an intersecting highway. Some rods from the horse and buggy defendant applied the brakes but was unable to stop although the speed of the car was lessened, and in attempting to turn away from the horse and buggy the car went into the ditch.
It was actionable negligence for defendant to approach the intersecting highway at 45 miles per hour. She should have had her car under such reasonable control that she could have met with safety the very common situation with which she was confronted.
It is claimed that the plaintiff voluntarily put herself in a place of danger by re-entering the car at Ortonville to ride with, one she then knew was reckless and had refused to pay any heed to her remonstrances, and that in law she assumed the risk and cannot recover. We are not impressed with this claim. At the most it was a question of fact for the jury, and the circuit judge very properly left it there.
Our attention is directed to cases of intoxicated drivers where it has been held that it is contributory negligence to continue to ride with such a person after knowledge of his condition and with opportunity to leave the car. We cannot make such decisions fit this case. Intoxication temporarily destroys the faculties essential to safe driving, and this is of such common knowledge that no one with sense will submit to the peril of riding with such a person.
Defendant possessed her faculties but made reckless Use of them. We find no testimony supporting the claim that plaintiff and defendant were engaged in a joint undertaking or common venture. The trip to Saginaw was commenced at Pontiac so late in the afternoon as to require considerable driving after dark. The defendant wanted company and, therefore, invited her mother to accompany her. This constituted plaintiff a guest of defendant, and brings the case within the rule relative to driver and guest.
This rule is stated in Huddy on Automobiles (5th Ed.), § 678:
“When the occupant of an automobile is injured through the operation of the machine, and it is shown that the driver was negligent and the occupant was not guilty of contributory negligence, it is clear that the latter can maintain an action against the driver and recover compensation for his injuries. The fact that the occupant was a guest or gratuitous passenger of the driver or owner of the machine creates no exception to the general rule. The driver of a motor vehicle is under the obligation of exercising reason able care, not only for the safety of pedestrians and other travelers, but also for the safe transportation of his guests and other passengers in the machine. The express or implied duty of the owner and driver to the occupant of the car is to exercise reasonable care in its operation and not unreasonably to expose him to danger by increasing the hazard of that method of travel. * * * Failing in this duty, he will be liable to the occupant or guest in the car for injuries which are the result of such carelessness or lack of diligence.”
Considering the nature and extent of the injuries received by plaintiff, and the consequent pain and suffering, the judgment entered by the court cannot be considered excessive.
The judgment is affirmed, with costs to plaintiff.
Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit. | [
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Clark, J.
Exceptions before sentence. Defendant was charged with murder and convicted of manslaughter. He, a Greek, 19 years of age, having resided in America about a year, was employed in a restaurant in Lansing. In the forenoon of January 8, 1922, in the restaurant, he shot and killed one Harry Valhuisis, alias Harry DeMos. The defense was that the homicide was justifiable, that the shooting was in defense of defendant’s father. The shooting was done with a pistol taken from a desk in the restaurant. Beside deceased and the accused there were in the restaurant at the time Sam Valhuisis, brother of deceased, said to be proprietor of the restaurant, Gust Jatros and Catherine Jatros, father and sister of the accused, and one Nick Baziotos. Defendant’s testimony, if true, made a case of justifiable homicide. His testimony is corroborated by that of the witnesses named. After the shooting the accused hid in or near the restaurant for 48 hours, when he came out and requested that he be taken into custody. It does not appear that the witnesses named knew of his whereabouts in the meantime.
The people’s case in the main consisted in proving death by shooting, and in evidence of a claimed confession of the accused and of his hiding after the shooting. The variance between the claimed confession and the testimony of the accused is not great.
After taking the testimony of physicians and several police officers the prosecuting attorney stated in the presence of the jury:
“So far as the people are concerned that is our case. There are other witnesses, Sam Valhuisis, Nick Baziotos, Nick jatros and Catherine Jatros and Gust Jatros, those are all the witnesses that are left who have not been called by the prosecutor. Those are the witnesses that the prosecution says are engaged in the conspiracy”—
After objection and exception the prosecuting attorney again said:
“I was about to say that in pursuance of my duty they are on the information, they have been summoned, they are here. And I thought as a matter of courtesy it is my duty to call them and since I do not want them it is a matter of courtesy to let them call them in the order in which they see fit. They are here and I will call whichever one they tell me to.”
Counsel for the people had previously stated in the presence of the jury:
“It will develop and that will be the theory on which we will develop this case and it will be proven absolutely by the actions of the witnesses, that there was a conspiracy there in that store on the part of these persons who were engaged in this row with Harry DeMos _ to conceal from the public who had done this shooting and also to further conceal the circumstances surrounding it.”
And again:
“I will explain my position. The claim of the people is that — the theory of the prosecution is that the restaurant belongs to DeMos all of the time. Not only that they killed him, but that they were claiming his restaurant, and all the records that you can find will show that”—
Exceptions were taken and counsel for defendant requested that the jury then be instructed to disregard the remarks. The instruction was not given. The people called such witnesses to the stand, refused to examine on direct and attempted to cross-examine, stating that they were hostile witnesses. Such cross-examination was not permitted.
The quoted remarks were not justified and constitute reversible error. There was testimony that the persons in the restaurant at the time, when asked by the officers who came to the restaurant at once the name of the person who had done the shooting, merely shook their heads and that Baziotos said he did not know. But it appears by the testimony of officer O’Brien that one of such persons, Baziotos, it seems, within ten minutes told the officers who had done the shooting and gave the place of residence of the accused. We find no competent testimony to support the charge of conspiracy to acquire by murder deceased’s interest in the restaurant. There is competent and credible testimony that deceased at the time had no financial interest in the restaurant.
As the case must be sent back we suggest to counsel the following: Respecting the duty of the prosecution to call eyewitnesses the rule in this State is stated in 16 C. J. p. 846, and cases there cited. For form of request relative to the right of defendant to shoot in defense of his fathér, see 2 Brickwood Sackett Instructions, p. 2036; Pond v. People, 8 Mich. 150; Patten v. People, 18 Mich. 314 (100 Am. Dec. 173); People v. Curtis, 52 Mich. 616.
The conviction is set aside. New trial granted.
Wiest, C. J., and Fellows, McDonald, Bird, Shabpe, Moore, and Steere, JJ., concurred. | [
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