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Steere, J.
Respondent brings this case here on exceptions before sentence, to review his conviction under an information charging that he—
“On the 7th day of August, 1918, at the township of Lyon in the county of Oakland aforesaid, did at a certain farm dwelling house, owned by him, situated on Grand. River avenue, so-called, at the intersection of the dividing line between the townships of Novi and Lyon in said county, then and there occupied by one Frank Richards, who was then and there in the employ of the said Walter Szynkarek as a farm tenant, did bring and carry, and did then and there possess a great quantity of malt, brewed, spirituous and intoxicating liquors, over eight ounces, to wit: three boxes of bottled wine, a quantity of bitters and brandy and one jug of wine, said liquor not being then and there for use for medical, mechanical, chemical, scientific or sacramental purposes, but for the purpose of being used as a beverage, contrary to the provisions of Act No. 161 of the Public Acts of the State of Michigan, of 1917,” etc.
For several years previous to May 1, 1918, respondent was engaged in the authorized business of running a saloon where intoxicating liquors were sold, in the city of Detroit. In March, 1918, he purchased a farm in Lyon township, Oakland county, intending, as he states, “to go out on a farm” when the State went dry as it would on the first of May following, when prohibition went into effect pursuant to section 11 of article 16 of our present constitution. On May 1, 1918, when he went out of the saloon business, he moved a quantity of liquor left over from his stock, consisting mostly of beer and wine, to his farm and stored it in a room in the cellar of the dwelling house, locking the door with a padlock to which he alone had a key. He claimed to have done this for the purpose of safely storing the liquor there until it was determined whether he later might lawfully dispose of it, as would be the case if the movement to make sale of beer and wine legal in the State of Michigan prevailed. Up to the time of his conviction he continued to reside in Detroit, with a tenant by the name of Richards upon his farm living in the dwelling house, he visiting the place from time to time. Prior to his arrest he had removed most of these wet goods from his cellar and concealed them in a neighbor’s barn, owing, as he testified, to the fact that some men working upon his place had at one time broken into the cellar and got some of the liquor.
On or about August 7, 1918, officers of Oakland county went to respondent’s farm in his absence with a search warrant and broke into the locked room in the cellar where they found and seized some of the goods yet there, following which respondent was prosecuted and convicted for having the liquor in his possession, the court instructing the jury,—
“the law is very clear that respondent had no right to possess this liquor, and have it in his possession either in his place of business in Detroit or at his farm residence in the township of Lyon.”
It is undisputed that this liquor was a part of respondent’s saloon stock which he had bought, taken possession of and owned at a time when it was lawful for him to do so. It is not charged or claimed that he sold or attempted to sell any of it after May 1, 1918. The charge against him is having liquor in his possession in violation of Act No. 161, Pub. Acts 1917, the so-called Damon act, which this court recently held was repealed by the later so-called Wiley act in People v. Marxhausen, ante, 559, which is controlling in this case.
The judgment is therefore reversed and defendant discharged from his recognizance.
Bird, C. J., and Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit. | [
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Per Curiam.
Following a jury trial, defendant
was convicted of possession of a firearm with intent to unlawfully use it against another person, MCL 750.226; MSA 28.423, a felony, and possession of a firearm while intoxicated, MCL 750.237; MSA 28.434, a misdemeanor. He was also convicted of being a fifth-felony offender, MCL 769.12; MSA 28.1084. Defendant received a ten-to-twenty-year sentence, consecutive with a five-to-fifteen-year sentence on another offense in which defendant was charged with larceny of a $1.95 bottle of wine from a store building. The events of the instant case occurred when defendant came to court on the larceny charge.
We affirm the convictions but remand for resentencing._
i
On October 3, 1984, defendant was scheduled to start trial in Bay Circuit Court before Judge John X. Theiler on a charge of larceny in a building. Defendant arrived at the Bay County Public Defender’s Office about 8:00 a.m., carrying a large styrofoam cup. A secretary advised defendant that his trial might be delayed, since another trial was still in progress before Judge Theiler. Defendant had difficulty understanding and insisted that he had to be in court that morning. When Steven Jacobs, defendant’s trial attorney, arrived, they entered Jacobs’ office where defendant asked for whiskey when Jacobs offered him coffee.
Defendant and Jacobs went to Judge Theiler’s courtroom about 8:30 a.m. and Jacobs informed the judge that defendant had been drinking. At the judge’s suggestion, Jacobs started giving defendant coffee and, at 9:30 a.m., they left the courtroom to return to Jacobs’ office. Out in the parking lot, defendant and Jacobs had a confrontation. Defendant became angry, saying that he was not happy with Jacobs and that he was going to "blow away the judge and the bitch [the complaining witness].” Defendant displayed a number of $20 bills and said he was going to the Mill End Store to buy a shotgun to blow them away. Jacobs informed the members of his office and Judge Theiler concerning defendant’s threats.
Defendant arrived at the Mill End Store at about 9:45 a.m., filled out the necessary forms, and purchased an over-and-under shotgun/rifle with two boxes of shells. He returned to the public defender’s office during the afternoon with a long box and a small bag. Defendant sat down with the box across his lap. When Eric Proschek, the director, asked defendant what was in the box, defen dant pulled out the gun, which had the hammer cocked back. Proschek held the barrel and pointed the gun toward the ceiling. When Proschek asked defendant if he was going squirrel hunting, defendant said he was going to hunt people. Defendant became very agitated and insisted that Proschek release the gun, so Proschek let it go.
Jacobs called the office and told the secretaries to leave as if they were going on their coffee break. While they were leaving, defendant reached for the bag of shells and said that "they weren’t going to take him back to prison and he would take somebody with him if they came to get him.” He pulled the trigger as the gun was pointed upright and it clicked. Defendant then opened the gun and started fumbling for shells. Proschek jerked the gun away from defendant and handed it to someone in the hallway, who took it downstairs to the probation department. Robert Ropp of the District Court Probation Department arrived. When he entered the office, Proschek was attempting to get some shells away from defendant. Ropp assisted Proschek in retrieving the shells and in getting defendant to sit down. Defendant was belligerent and was arguing about leaving.
Defendant testified that he recalled very little regarding the events of October 3, 1984. He denied removing the shells from the box, attempting to load the gun, or threatening anyone. According to defendant, he had been drinking for two weeks prior to that date and all night on October 2 because he knew he was scheduled to go to trial. He testified that he had been admitted to the Veteran’s Hospital on ten to twelve occasions and to the Battle Creek Adult Mental Health Center for treatment of alcoholism and that he had experienced several blackouts. He claimed his only memory of October 3, 1984, was waking up in the drunk tank of the county jail at about 8:00 p.m.
Defendant was charged with possession of a firearm with intent to use it unlawfully against another. His jury trial began on February 26, 1985, Bay Circuit Judge William J. Caprathe presiding. At the instructions conference, defense counsel requested an instruction on the lesser included offense of possessing a firearm while under the influence of alcohol. The prosecutor argued that such an instruction should be given, but as a separate offense, not as a lesser-included offense. Defense counsel objected, arguing that a guilty verdict on both counts would be inconsistent. The trial court gave the instruction as a separate rather than lesser-included offense. The trial court informed the jury they could return a verdict of guilty of both offenses or of either of the offenses or a verdict of not guilty of both of the offenses. The jury found defendant guilty of both offenses.
n
Defendant first argues that his two convictions violated both federal and state double jeopardy standards. We, however, disagree with defendant’s premise that these two offenses should be regarded as one offense.
Under the test set forth in Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), two separate offenses exist where each offense requires proof of at least one fact which the other does not. Application of this standard to the statutes before us indicates that double jeopardy was not violated. Conviction for possession of a firearm while intoxicated requires proof of intoxication. Conviction for possession of a firearm with intent to use it unlawfully against another re quires proof of that specific intent. As such, the two offenses are not a single offense, and double jeopardy is not violated if defendant is convicted of both.
Defendant, however, argues that under Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977), and Illinois v Vitale, 447 US 410; 100 S Ct 2260; 65 L Ed 2d 228 (1980), the two offenses of which he was convicted actually constitute only one offense. In Harris, the defendant was convicted of felony murder. The Supreme Court held that a subsequent prosecution for the underlying felony, armed robbery, was barred by double jeopardy. Conviction of the greater felony could not be had without conviction of the lesser crime. In Vitale, the defendant was convicted of failing to reduce speed to avoid an accident and was subsequently charged with involuntary manslaughter. The Supreme Court remanded the case to the Illinois court. It held that if, as a matter of state law, failure to reduce speed to avoid an accident is always a necessary element of manslaughter, then the manslaughter prosecution would be barred by double jeopardy. Also, the Court was unsure what reckless act or acts the state would rely on to prove manslaughter, noting that the defendant would have a substantial double jeopardy claim if the prosecutor used the failure to reduce speed as the necessary reckless act.
We are not persuaded that these cases have changed the essential nature of the Blockburger inquiry. Defendant could have been convicted of either one of the two charges alone and, unlike Harris and Vitale, the conviction would not have necessarily included the other offense. This is so because one charge requires proof that defendant possessed a firearm with a specific intent to use it against another person, while the second charge has no intent requirement but includes the additional element of intoxication. The only common element of the two offenses is possession of a firearm, but that element alone proves neither offense. The crucial elements and the proofs of defendant’s two offenses are sufficiently different so as to constitute two separate offenses under these facts. Compare People v Dickens, 144 Mich App 49, 53-54; 373 NW2d 241 (1985), where "duil was charged as part of and was essential to proving the negligence element of negligent homicide” and the two offenses were not "sufficiently distinct as charged and proven to prevent double jeopardy from attaching.”
Under federal law, including the Blockburger test, the question of whether multiple punishments may be imposed without violating double jeopardy requires a determination of what the Legislature intended. See Whalen v United States, 445 US 684, 688; 100 S Ct 1432; 63 L Ed 2d 715 (1980). The Supreme Court has indicated that the Blockburger rule is not controlling when the legislative intent that separate offenses be created is clear from the face of the statutes or the legislative history. Garrett v United States, 471 US 773; 105 S Ct 2407; 85 L Ed 2d 764 (1985). Legislative intent is also the focus under state constitutional law. In People v Robideau, 419 Mich 458, 485-486; 355 NW2d 592 (1984), however, the Michigan Supreme Court rejected use of the Blockburger test in holding that convictions of both first-degree criminal sexual conduct and the underlying felony of armed robbery or kidnapping in a single trial are not barred by federal or state double jeopardy. Instead, the Court preferred the "traditional means to determine the intent of the Legislature: the subject, language, and history of the statutes.” 419 Mich at 487-488. See also the recent opinion in People v Sturgis, 427 Mich 392; 397 NW2d 783 (1987). The Robideau Court identified some general principles that may be used as an aid to determining legislative intent. First, where two statutes prohibit violations of the same social norm, albeit in a somewhat different manner, as a general principle it can be concluded that the Legislature did not intend multiple punishments. Second, where one statute incorporates most of the elements of a base statute and adds an aggravating conduct element with an increased penalty compared to the base statute, it is evidence that the Legislature did not intend punishment under both statutes.
Defendant argues that the two statutes under which he was convicted are both aimed at preventing harm to others from possession of a firearm. Defendant’s view of the proscribed conduct, however, is rather broad. Accepting his argument would mean that a person could never be convicted of more than one possession-of-a-firearm offense arising out of one occurrence. The better view would be to examine the proscribed conduct more narrowly. The statute proscribing possession of a firearm with the intent to use it unlawfully against another person is aimed at those persons who specifically intend to harm others through the use of a firearm. The offense of possession of a firearm while intoxicated is aimed at those persons who may carelessly or inadvertently cause harm to others. Viewed more narrowly, the statutes protect against two different sources of harm and violations of distinct social norms regarding the use of firearms. In the instant case, it is conceivable that both of those distinct sources of harm were present, as discussed infra, in part v concerning consistency of the verdicts. Using the first principle in Robideau, we believe that the Legisla ture intended multiple punishments. The second principle of Robideau is not applicable because this is not a case where one statute builds on another statute by adding aggravating conduct.
Defendant further argues that double jeopardy was violated by citing People v Grable, 95 Mich App 20, 26-27; 289 NW2d 871 (1980), lv den 413 Mich 933 (1982). Defendant argues that jus convictions arose from a continuum of conduct evidencing a single criminal transaction. Grable, however, involved a conviction of forgery which then was used to supply the knowledge element required for a conviction of uttering and publishing the same document. In Grable, unlike the instant case, one offense was factually completely contained in the other so that there was only one wrong act. Defendant also relies on other cases involving the so-called "factual double jeopardy analysis.” See People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980); People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977); People v Martin, 398 Mich 303; 247 NW2d 303 (1976). These cases suggest that crimes should be examined on the facts of a particular case rather than in the abstract to determine whether they are the same. Thus, armed robbery, larceny in a building, and larceny over $100 are definitionally separate crimes. However, where a defendant took a cash register containing $400 from a gas station building after placing the attendant in fear by the use of a weapon, he committed all three offenses. The same proof would be relied upon for all three convictions. Therefore, conviction on all three offenses was a violation of double jeopardy. Jankowski, supra at 89.
In the instant case, there is no such similarity of facts and proof as to the two offenses. Rather, one offense requires proof of specific intent. The evi dence offered at trial as to intent was the defendant’s statement that he was "going to hunt people” and that he was going to "blow away the judge and the bitch.” The second offense requires proof of intoxication. Defendant testified that he had been drinking for two weeks prior to the incident. The only common proofs are that defendant was in possession of a firearm. Proof of possession of a firearm as to one offense, however, did not automatically prove the elements of the second offense. Therefore, this case is unlike Jankowski, where the same proofs were used for all three offenses. Defendant’s two offenses are separate and distinct crimes. Conviction for each did not violate double jeopardy.
m
Defendant next argues that he was denied due process by inadequate notice that he would have to defend the charge of possession of a firearm while intoxicated. We disagree. Defendant’s counsel requested a jury instruction on that offense.
In People v Williams, 412 Mich 711, 714-715; 316 NW2d 717 (1982), the information charged the defendant and codefendant with first-degree murder and felony-firearm. After the codefendant was acquitted by directed verdict, defendant’s counsel requested that the jury be instructed that it could convict defendant of being an accessory after the fact. In closing argument, defendant’s counsel argued that, if the defendant was guilty of any crime, it was of being an accessory after the fact. The jury convicted defendant of felony-firearm and of being an accessory after the fact. On appeal, defendant argued that he could not be convicted of a crime that was not charged in the information. The Supreme Court held the defendant’s request for the accessory after the fact instruction was the functional equivalent of a motion to amend the information under MCL 767.76; MSA 28.1016. Since the prosecutor made no objection and the trial court agreed, the information was effectively amended. Defendant could not subsequently claim he had insufficient notice of the charge after urging the extension of this option to the jury.
As defendant’s counsel in the instant case requested the jury instruction and the prosecutor did not object, we treat defendant’s request as a motion to amend the information. Defendant may not claim that he had insufficient notice.
Defendant also argues that the trial court could not have acquired jurisdiction over the misdemeanor, arguing that it has consistently been held that an information may not be amended to add a new offense. Williams, supra, allowed such an amendment, but did not specifically address the jurisdictional issue when it held that the defendant’s requested jury instruction operated to amend the information. This Court held in People v Price, 126 Mich App 647, 654; 337 NW2d 614 (1983), that a similar amendment to the information deprived the court of jurisdiction. In Price, it was the prosecutor who requested the amendment. This Court distinguished Williams by the fact that it was the defendant in Williams who requested the amendment. Therefore, although Williams did not address the jurisdictional issue, we interpret it to mean that a defendant waives such a jurisdictional defect by moving to amend the information. The trial court had jurisdiction over the misdemeanor charge added by defendant’s amendment. Any other result would allow a defendant to place the court in an untenable dilemma. If defendant moved to add a new offense in midtrial, the circuit court would lose jurisdiction if the motion were granted. On the other hand, if the motion were denied, defendant would argue with some justification that the evidence brought out at trial mandated the addition of the additional charge.
IV
Defendant next argues that the trial court’s instructions failed to fully explain defendant’s felony defense of lack of specific intent due to intoxication. Specifically, defendant asserts that the jury was never told that the prosecutor had to prove defendant’s specific intent beyond a reasonable doubt and that defendant did not have to prove intoxication.
Instructions must be read together as a whole. They will be upheld if they accurately state the law. People v Doss, 122 Mich App 571, 578; 332 NW2d 541 (1983). Failure to object to alleged error in instructions precludes relief on the basis of error in the instructions unless the error in the instructions has resulted in a miscarriage of justice. People v Federico, 146 Mich App 776, 784-785; 381 NW2d 819 (1985).
Both attorneys agreed to use the trial court’s instruction on specific intent and intoxication in lieu of CJI 3:1:16 and 6:1:02, which the court described as a combination of the two standard instructions:
Now, this offense has an element in it, the third element — the second and third element actually which are considered specific intent elements. I told you that the second element was that at the time he was so armed, the defendant intended to use this weapon and, third, that he intended to use this weapon unlawfully against another person. Those are specific intents, that he intended to use the weapon in that manner. Where the words "with intent to”, or "intentionally”, or "intended” are used in these instructions, a particular intent is referred to which is a necessary element of that offense, and the existence of that particular intent must be proven by the same standards that apply to any other element of the offense. And in this case, those two elements are the defendant intended to use the weapon that he was armed with and he intended to use the weapon unlawfully against the person of another.
"Intent” is a decision of the mind to knowingly do an act with a conscious fully-formed objective of accomplishing a certain result. In considering whether a person did any act with a particular intent, you should consider how that person expressed the intent to others or indicated it by conduct, the manner in which the act was done, the methods used, the condition of the persons’s mental faculties at the time, and all other facts and circumstances. In this regard, there has been evidence that the defendant, Louis McKinley, was intoxicated. You must, therefore, consider whether his degree of intoxication was such that he was unable to or could not form the specific intents that I’ve made reference to.
The trial court also fully instructed the jury that defendant was not required to prove his innocence or produce any evidence whatsoever, that the burden remained on the prosecutor throughout the entire trial and never shifted to defendant, and that the prosecutor had to prove every element of the crime beyond a reasonable doubt.
Taking these instructions together as a whole, we believe the jury was adequately instructed. It was made clear to the jury that the prosecutor had the burden of proving defendant’s specific intent beyond a reasonable doubt. We note that the trial court’s use of the phrase "unable to or could not form the specific intents” was quite similar to an instruction approved in People v Savoie, 419 Mich 118, 134; 349 NW2d 139 (1984). Defendant argues that the jury’s "inconsistent” verdicts demonstrated that the jurors were confused by the intoxication instructions. For the reasons outlined below in part v, we do not believe the verdicts were inconsistent, nor do we believe the jury was confused. We also do not believe that defendant’s counsel’s approval of the instructions denied defendant effective assistance of counsel.
v
Defendant argues that the guilty verdicts were inconsistent. We find, however, that the two guilty verdicts are not necessarily inconsistent. Even if they were, reversal is not required. Juries may give inconsistent verdicts. People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980) (involving conviction of felonious assault but acquittal of felony-firearm). Inconsistent verdicts might be cause for reversal when it is evident that the jury was confused, did not understand the instructions, or did not know what it was doing. See People v Lewis, 415 Mich 443, 450, n 9; 330 NW2d 16 (1982).
The verdicts in the instant case are not necessarily inconsistent. The jury could have found that defendant was intoxicated, but not so intoxicated that he was unable to form the specific intent. Defendant’s arguments on intoxication assume that, if one is intoxicated, he is not capable of forming a specific intent. Intoxication is a relative term, and one may be intoxicated to the point of being guilty of one offense yet not intoxicated enough to be guilty of another.
Even if the jury’s verdicts were inconsistent, defendant offers no evidence indicating that the jury was confused other than the alleged inconsis tency itself. More is required. The jury here was instructed that four verdicts were possible: not guilty or guilty of possession of a firearm with intent to use it unlawfully against another, and not guilty or guilty of possession of a firearm while intoxicated. The jury was told that only one verdict could be returned for each of the two charges. We have examined the verdict form and instructions and find them to be quite understandable as to the possibilities. We find no error. We therefore affirm the convictions.
VI
At our request the parties have briefed the question of the propriety of defendant’s sentence and whether that sentence should shock our conscience. Given the fact that the sentence in this case was made consecutive to the sentence in the larceny case, defendant is serving a fifteen-year minimum sentence. We find that the resulting sentence violates the Coles test and remand for resentencing. People v Coles, 417 Mich 523; 339 NW2d 440 (1983); People v Curry, 142 Mich App 724; 371 NW2d 854 (1985).
The length of the sentence resulting from the imposition of a consecutive sentence is out of all proportion to the facts. Defendant was visibly intoxicated the morning of the incident and indicated that he had been on a two-week drinking episode. Upon his return to the defender’s office he was easily disarmed of the unloaded gun. Defendant is blind in one eye and has poor vision in the other. Defendant had shown no previous propensity to violence. We believe the resulting sentence is sufficiently disproportionate to the nature of this defendant and this offense to shock our conscience. Curry, supra.
We recognize the potential danger of defendant’s conduct and that the potential victim was a judge. We also recognize that these events grew out of the consequences of defendant’s acute alcoholism. We do not dispute that a prison sentence — even a lengthy one — is in order. We conclude, however, that a fifteen-year minimüm sentence for the events that occurred here is disproportionate to the specific acts committed and the danger involved. Too frequently reasons are given for a sentence that apply equally well to a lesser or greater sentence unless an explanation is offered on the record for the specific sentence given. Such was the case here. We are unable to discern from the record why a fifteen-year minimum rather than a ten-year minimum was necessary to punish this defendant for his specific conduct.
While this Court does not impose sentences, we note that our consciences would not be shocked if the sentences in the two cases were concurrent.
The convictions are affirmed. Remanded for re-sentencing.
The sentences were not required to be consecutive. MCL 768.7b; MSA 28.1030(2). | [
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] |
Per Curiam.
Plaintiffs appeal as of right from the October 3, 1986, order entered in Wayne Circuit Court granting defendant’s motion for partial summary disposition.
Plaintiffs (some 180) are present and former commissioned sales representatives employed by defendant. Plaintiffs are challenging defendant’s 1978 modification from a percentage-based commission system to a unit-based commission system. When plaintiffs were hired by defendant, they were informed that they would be paid a 7 or IVi percent commission (depending on whether in metropolitan Detroit or not) for each automobile insurance policy sold and for each subsequent renewal of the policy by the insured. Plaintiffs were also allegedly told that their employment would only be terminated for good cause.
On December 2, 1977, defendant issued a memorandum to all sales representatives announcing that, effective July 1, 1978, the sales representatives would be paid under a new unit-based commission system. Under the unit plan, sales representatives continued to be paid a commission for all sales and renewals, but the commission would be calculated as a specified dollar amount rather than a percentage of the insurance premium. The deposition testimony of Eugene Kuthy, who au dited defendant, explained the reason for the change. He stated that the commissioned sales representatives’ compensation percentage increases were "significantly higher” than the compensation percentage increases of others employed by defendant. The commissions were directly related to general premium rate increases, but not to productivity. A committee, comprised of mid-level executives and Kuthy, changed the compensation system to a unit-based commission system because a unit system is more related to productivity.
In 1980, defendant allegedly began enforcing minimum production quotas which, previously, were merely goals for which plaintiffs could strive.
On February 7, 1978, the Michigan AAA Sales Association (union) was certified as the exclusive representative of defendant’s sales force in the tricounty Detroit metropolitan area. The union filed a complaint with the National Labor Relations Board, alleging, among other things, that defendant unilaterally changed the commission system without having first negotiated with the union. Administrative Law Judge Morton D. Friedman determined that defendant adopted the unit system prior to the "advent” of the union and its certification and, thus, defendant was not obligated to negotiate with the union regarding the unit-based commission system. The union was decertified in October, 1982.
On May 26, 1983, plaintiffs filed the instant complaint based upon the change in the commission system, alleging, among other things, breach of contract. Defendant moved for accelerated judgment or, in the alternative, summary judgment under GCR 1963, 116 and 117, now MCR 2.116. With respect to plaintiff’s breach of contract claim, the trial court, on January 10, 1984, entered an order as follows:
1. Count i — Breach of Contract:
a) Plaintiffs’ Count i claim, insofar as it involves a challenge to Defendant’s implementation of minimum production standards is preempted by the National Labor Relations Act, and thereby dismissed;
b) Plaintiffs’ Count i claim, insofar as it involves a challenge to Defendant’s change in its commission system with respect to insurance policies sold after that change, and renewals thereof, is also dismissed; and
c) Plaintiffs’ Count i claim, insofar as it involves a challenge to Defendant’s change in its commission system with respect to the renewal of insurance policies originally sold prior to that change is not dismissed, and Defendant’s Motion ti [sic] denied without prejudice to its right to renew that Motion after the completion of discovery.
Plaintiffs filed a motion for rehearing which was denied in a February 29, 1984, order.
Discovery continued and the case progressed until April 30, 1986. At that time, defendant filed a motion for partial summary disposition. On this date, plaintiffs filed an eighth amended complaint. For purposes of analyzing defendant’s motion, we will refer to plaintiffs’ eighth amended complaint. In response to defendant’s motion, plaintiffs filed a motion for partial summary disposition or, alternatively, a motion to strike defendant’s affirmative defenses.
A hearing was held on August 19, 1986. Ultimately, the trial court granted defendant’s motion for partial summary disposition and dismissed all of plaintiffs’ claims except the breach of contract claims of three plaintiffs. As to plaintiffs’ breach of contract claims, the trial court divided plaintiffs into three groups based on an uncontroverted affidavit filed by defendant, which summarized the depositions of almost all of the plaintiffs.
The first group (139 plaintiffs) were told upon being hired that they would receive a seven percent commission, although defendant made no representations as to the duration of that commission. Based on the lack of a duration term, the court concluded that defendant was entitled to change the compensation "at will.” Thus, there was no breach of contract when defendant changed the method of compensation.
The second group (twenty plaintiffs) claimed that, when they were hired, they were informed that the seven percent commission would be paid "forever” or words to that effect. However, because most of these sales representatives could not receive any renewal commissions until after their first year of employment, the trial court found that these contracts were incapable of being performed within one year, and, hence, their breach of contract claims were barred by the statute of frauds.
Finally, the third group (twenty plaintiffs) claimed that after being hired, they were advised that the receipt of a seven percent commission would be "forever.” The trial court found that these contracts were unenforceable because plaintiffs provided no additional consideration for receipt of the promise of payment of a seven percent commission forever.
With respect to all of the plaintiffs’ claims of fraud and misrepresentation, unjust enrichment, and promissory estoppel, the court granted defendant’s motion because elements of these claims were lacking and because res judicata barred these claims since they had been litigated before the nlrb. The plaintiffs’ age discrimination claims were barred by the statute of limitations and res judicata due to the prior nlrb decision.
Finally, the claims of four plaintiffs were dismissed because two had failed to comply with discovery orders and the other two had filed separate and independent actions.
Subsequently, plaintiffs moved for reconsideration, which was denied. The instant appeal followed.
Plaintiffs raise four issues on appeal. First, they allege that the trial court erred by granting summary disposition in favor of defendant as to their breach of contract claims. For purposes of clarity, we will address this claim for each group separately. From our review of the lower court records, we determine that the trial court granted defendant’s motion pursuant to MCR 2.116(0(10). A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim. When passing on such a motion, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. The party opposing summary disposition has the burden of showing that a genuine issue of disputed fact exists. Giving the benefit of reasonable doubt to the nonmoving party, the court must determine whether the kind of record which might be developed will leave open an issue upon which reasonable minds might differ. The appellate court is liberal in finding a genuine issue of material fact. Richie v Michigan Consolidated Gas Co, 163 Mich App 358, 367; 413 NW2d 796 (1987).
THE FIRST GROUP
As to these plaintiffs, the trial court found that defendant was entitled to change plaintiffs’ compensation "at will” because defendant made no representations as to the duration of the receipt of the seven percent commission. Plaintiffs argued below that defendant’s subsequent change from a commission-based system to a unit-based system breached their employment contracts.
In analyzing this group of plaintiffs’ claims, two cases of this Court are instructive: Bullock v Automobile Club of Michigan, 146 Mich App 711; 381 NW2d 793 (1985), lv gtd 425 Mich 872 (1986), and Farrell v Auto Club of Michigan, 155 Mich App 378; 399 NW2d 531 (1986).
In Bullock, the plaintiff alleged that, when he was hired in 1968, defendant made certain promises and representations to him, including: (1) a promise of a lifetime job as long as he did not steal; (2) a promise of a sales representative position earning a seven percent commission for his sales; and (3) the indication that, if he worked hard to build up his "book of business” which consists of accumulated policies and memberships that a commissioned salesperson builds up over the years, he could enjoy his later working years by realizing those commissions. Id., p 715. In 1982, Bullock was demoted from a commissioned salesperson to a salaried member advisor. He alleged that his demotion, which was allegedly due to his failure to meet the production standards, and the implementation of a unit compensation program in place of the commission compensation violated his preexisting contract. After discussing the "narrow” holding in Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980), the Bullock panel noted that Toussaint did not abrogate the traditional notions of contract law nor directly address the issue presented in that case. 146 Mich App 719. The Bullock panel continued:
The contract of employment still remains the result of a voluntary act, conveying the mutual intent of the parties to be bound by its terms and provisions. See McDonald v Boeing, 43 Mich 394; 5 NW 439 (1880). Further, where there is no written evidence of mutual intention, whether the contract was formed, what its terms are, and whether the terms have been validly modified continue to be questions for the trier of fact. [146 Mich App 719-720.]
Under Toussaint, an employer can protect itself against an employee’s having a reasonable expectation that a policy or practice is part of the employment contract by simply informing the employee that its policy is subject to being changed at any time. Bullock, supra, p 720. Notice or knowledge of unilateral changes can be construed from the circumstances surrounding employment. Whether such notice or knowledge was ever given to an employee is a question for the trier of fact. Bullock, supra, pp 720-721. The question whether there was a legitimate and reasonable expectation on the part of the employee that an employer’s policy or practice is a term of the employment contract, which bears directly upon the question of whether the employer is free to unilaterally change the policy, is for the trier of fact. Bullock, supra, p 721.
Ultimately, the Bullock Court held:
Accordingly, we hold that whether the terms of plaintiffs employment contract included provisions (1) that he would have a lifetime job as long as he did not steal, (2) that he would be employed as a sales representative and compensated by commissions on his sales throughout his employment, and (3) that he could enjoy his later working years by realizing those commissions are questions of fact which must be decided by the trier of fact. Once the terms of plaintiffs employment contract are determined, then the ultimate issue of whether defendants breached the employment contract with plaintiff by implementing the new production standards and demoting plaintiff pursuant to those standards can be determined by the trier of fact. [146 Mich App 721.]
See also Farrell, supra, p 386.
In this case, the trial court erred by granting summary disposition with respect to these plaintiffs. Defendant does not contend that it directly notified plaintiffs that its policy or practice was subject to unilateral change at any time. Instead, defendant asserts that, because the compensation system underwent several changes during the 1960’s and 1970’s, these changes constituted notice that the compensation system was subject to unilateral change. It is true that, where an employer has unilaterally changed its personnel policies regularly, the plans cannot give rise to rights enforceable in contract because the employee’s expectations are not considered reasonable or legitimate. Engquist v Livingston Co, 139 Mich App 280, 283-284; 361 NW2d 794 (1984). However, defendant’s affidavit describing the changes in the compensation system is not clear regarding what specific changes had been made. Thus, it is a question for the trier of fact whether plaintiffs had notice or knowledge that the compensation system was subject to unilateral change.
Moreover, the question whether plaintiffs had a legitimate and reasonable expectation that the commission system was a term of their employment contracts, which bears directly on the question of whether defendant was free to unilaterally change the system, was for the trier of fact. Defendant’s reliance on Lichnovsky v Ziebart International Corp, 414 Mich 228; 324 NW2d 732 (1982), is misplaced. Lichnovsky dealt with the issue whether a franchise agreement was terminable at will. Lichnovsky did not consider the question whether a particular term became a part of the contract when the agreement was silent with respect to that term. Thus, the trial court’s grant of summary disposition is reversed.
THE SECOND GROUP
As to this group of plaintiffs, the trial court found the existence of a question of fact regarding whether defendant breached the employment contracts because, at the time plaintiffs were hired, defendant allegedly told them that the seven percent commission would be paid "forever.” Although the court found the existence of a question of fact, defendant was nonetheless granted partial summary disposition as to this group’s contract claims on the basis that the statute of frauds barred their claims. The trial court reached this conclusion because most of the sales representatives could not receive any renewal commissions until after their first year of employment, thereby making these contracts incapable of performance within one year and subject to the statute of frauds.
A contract for a definite term has been generally regarded to be subject to the section of the statute of frauds concerning an "agreement that, by its terms, is not to be performed within 1 year from the making thereof,” MCL 566.132(a); MSA 26.922(a), while an agreement for an indefinite term is generally regarded as not being subject to the statute of frauds. Adolph v Cookware Co of America, 283 Mich 561, 568; 278 NW 687 (1938); 2 Corbin on Contracts, §§ 446-447, pp 549-556.
In this case, it is clear that plaintiffs’ employment with defendant could have been performed within one year. The more troubling aspect of this case is the effect of the promise with respect to renewal commissions. According to their employment contracts, these plaintiffs were not entitled to a seven percent renewal commission until after one year of employment. It is well-settled that, where an oral contract may be completed in less than one year, even though it is probable that the contract will extend for a period of years, the statute of frauds is not violated. Farrell, supra, p 385; Cowdrey v A T Transport, 141 Mich App 617, 619-620; 367 NW2d 433 (1985). In Farrell, plaintiff had been told by his branch manager that, if plaintiff performed satisfactorily for three to four years, he would be set for life. Defendant argued that the contract was void under the statute of frauds. This Court rejected the statute of frauds claim, finding that the employment contract could have been terminated during plaintiff’s first year of employment if he did not perform satisfactorily. Id., p 385.
Similarly, in our case, we find that the statute of frauds is inapplicable. These contracts could have been performed within one year, even though the sales representatives would not have been entitled to their renewal commissions until after one year of employment. Hence, these agreements must be construed as being for indefinite terms not falling within the statute of frauds. Farrell, supra, p 385.
Defendant’s reliance on McLaughlin v Ford Motor Co, 269 F2d 120 (CA 6, 1959), is misplaced as that case is distinguishable. In McLaughlin, the plaintiff alleged a breach of promise by defendant to give him a position in general management. Plaintiff was advised by defendant that, if he took the managership of Ford’s cost department for one year, he would be entitled to a job in general management. The plaintiff accepted the offer. Three years after being hired, the plaintiff was still the manager of the cost department. The plaintiff filed suit, seeking to enforce the agreement. The Sixth Circuit affirmed the district court’s entry of a directed verdict for defendant, finding that, because the oral agreement was to commence more than one year after the making of the agreement, the agreement fell squarely within the terms of the statute of frauds. 269 F2d 124. McLaughlin is distinguishable from this case because plaintiffs were not seeking to enforce a promise that they would receive the renewal commissions. Instead, plaintiffs sought to enforce a promise that the commissions would be paid as long as plaintiffs were employed by defendant.
THE THIRD GROUP
The trial court found that this group’s contract claims were barred because the promises that the seven percent commissions would be paid "forever” were made after plaintiffs were hired and, thus, these promises were not supported by adequate consideration.
Toussaint, supra, p 613, is instructive on this issue:
While an employer need not establish personnel policies or practices, where an employer chooses to establish such policies and practices and makes them known to its employees; the employment relationship is presumably enhanced. The employer secures an orderly, cooperative and loyal work force, and the employee the peace of mind associated with job security and the conviction that he will be treated fairly. No pre-employment negotiations need take place and the parties’ minds need not meet on the subject, nor does it matter that the employee knows nothing of the particulars of the employer’s policies and practices or that the employer may change them unilaterally. It is enough that the employer chooses, presumably in its own interest, to create an environment in which the employee believes that, whatever the personnel policies and practices, they are established and official at any given time, purport to be fair, and are applied consistently and uniformly to each employee. The employer has then created a situation "instinct with an obligation”.
See also Bullock, supra, pp 718-719.
In this case, it was unnecessary for these plaintiffs to provide additional consideration in order to be entitled to seek enforcement of the promise that they would receive seven percent commissions "forever.” As discussed by the Toussaint Court, the benefits derived by the employer, i.e., a cooperative and loyal work force, were sufficient consideration. Thus, the trial court’s grant of summary disposition is reversed.
Next, plaintiffs assign error to the trial court’s grant of summary disposition as to their claims of fraud and misrepresentation, unjust enrichment and estoppel. The trial court dismissed these claims on two grounds: (1) the prior nlrb decision and (2) defendant had the right to change the compensation of the first and third groups of plaintiffs "at will.” We will address these grounds separately.
(1) THE PRIOR NLRB DECISION.
The trial court dismissed these other claims on the basis that the prior nlrb decision barred them since the same issues in this case were already decided by the nlrb. We disagree.
The doctrine of res judicata bars a litigant from relitigating a claim when (1) the former action was decided on the merits, (2) the matter contested in the second action was or could have been decided in the first, and (3) the two actions are between the same parties or their privies. Lud v Howard', 161 Mich App 603, 612; 411 NW2d 792 (1987). At the outset, we reject plaintiffs’ assertion that they were not substantially identical to the union which represented them in the nlrb case. See Senior Accountants, Analysts & Appraisers Ass’n v Detroit, 399 Mich 449, 458, n 3; 249 NW2d 121 (1976), reh den 400 Mich 953 (1977).
The doctrine of collateral estoppel was discussed by this Court in Stolaruk Corp v Dep’t of Transportation, 114 Mich App 357, 362; 319 NW2d 581 (1982):
In order for collateral estoppel to apply, the same ultimate issues underlying the first action must be involved in the second action. The parties must also have had a full opportunity to litigate the ultimate issues in the former action. Fiñeld v Edwards, 39 Mich 264 (1878). Finally, collateral estoppel only applies where there is mutuality of estoppel. Mutuality of estoppel is present if both litigants in the second suit are bound by the judgment rendered in the first suit. Braxton v Litchalk [55 Mich App 708, 720; 223 NW2d 316 (1974)]; Howell v Vito’s Trucking & Excavating Co, 386 Mich 37, 42-43; 191 NW2d 313 (1971).
A careful reading of the nlrb decision reveals that the relevant issues in that case were whether defendant instituted the unit-based compensation plan without prior consultation with the newly formed union and whether defendant was obligated to furnish the union with information. After reviewing the parties’ respective positions, the nlrb administrative law judge found no unfair labor practice by defendant in its failure to consult with the union since the unit plan had already been adopted before the union was formed. Earlier in his opinion, the administrative law judge did note that the new plan was adopted as an "economy measure.” This statement would indicate that plaintiffs’ claims of fraud and misrepresentation, unjust enrichment and estoppel are meritless. However, for purposes of the collateral estoppel doctrine, the issue of the unit-based compensation plan was required to be the "same ultimate issue” as in this case and actually litigated. We conclude that it was not the ultimate issue in the nlrb decision nor actually litigated. Thus, plaintiffs’ claims are not barred by res judicata or collateral estoppel.
defendant’s right to change the compensation OF THE FIRST AND THIRD GROUPS "AT WILL.”
The second basis for granting summary disposition on plaintiffs’ claims was that
if the employer had the right in its prerogative to change compensation as to the hundred and fifty-nine, I don’t see how it could be fraud or misrepresentation for them to do that or unjust enrichment or that promissory estoppel would apply because they had made no promises that prohibited them from or limited their discretion to do so.
In other words, the trial court ruled that, since plaintiffs’ contractual claims were barred, all their other theories of recovery were similarly barred. As we already discussed, a question of fact exists as to the terms of plaintiffs’ contracts. Thus, it becomes necessary to examine plaintiffs’ alternative theories of liability.
Fraud & Misrepresentation:
In their eighth amended complaint, plaintiffs alleged that they were induced by defendant to give up their "books,” change office locations and receive new and equal "books” under the representation that plaintiffs would earn the same commission. Plaintiffs further alleged that, after trading in their "books,” they learned that the seven percent commission rate had been unilaterally terminated by defendant. Plaintiffs alleged that defendant’s representations were false and were intended to induce reliance by plaintiffs.
The elements constituting actionable fraud or misrepresentation were set forth in Candler v Heigho, 208 Mich 115, 121; 175 NW 141 (1919):
The general rule is that to constitute actionable fraud it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery._
The burden of proof rests with plaintiffs. Fraud will not be presumed but must be proven by clear, satisfactory and convincing evidence. Hi-Way Motor Co v International Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976).
An initial consideration is whether defendant made material representations to plaintiffs. The fraudulent misrepresentations must be based upon a statement relating to a past or existing fact. Future promises are contractual and do not constitute fraud. Hi-Way Motor Co, supra, p 336.
In this case, the trial court properly dismissed this count of plaintiffs’ complaint. The uncontroverted deposition testimony of Kuthy indicated that, in late 1977, the compensation system was changed so that it would be related to the employees’ productivity. Plaintiffs did not dispute that defendant changed the compensation system for anything other than business reasons. Additionally, any representations that defendant may have allegedly made were future promises and, thus, were contractual in nature and did not constitute fraud. Moreover, according to Kuthy’s deposition testimony, the decision to change the compensation system was made in 1977, after any representations had been made to plaintiffs. Thus, plaintiffs’ complaint failed to state a cause of action with respect to fraud and misrepresentation.
Unjust Enrichment:
In their complaint, plaintiffs alleged, inter alia, that defendant "confiscated” their books when plaintiffs were discharged or demoted and, thereby, was unjustly enriched. We believe that a factual question exists regarding whether defendant was unjustly enriched.
A person who has been unjustly enriched at the expense of another is required to make restitution to the other. Restatement Restitution, § 1, p 12. The process of imposing a "contract-in-law” or a quasi-contract to prevent unjust enrichment is an activity which should be approached with some caution. The essential elements of such a claim are: (1) receipt of a benefit by the defendant from the plaintiff and, (2) which benefit it is inequitable that the defendant retain. B & M Die Co v Ford Motor Co, 167 Mich App 176; 421 NW2d 620 (1988).
In this case, if in fact defendant coerced plaintiffs into surrendering their books without compensation and if plaintiffs were entitled to retain their books, then a question of fact exists as to whether defendant was unjustly enriched. No affidavits or depositions were submitted on this issue. Thus, plaintiffs are entitled to present evidence in support of this claim.
Promissory Estoppel:
As to this count, plaintiffs alleged that they accepted and continued employment based on defendant’s promises that the seven percent commission rate would continue forever. They do not allege that they terminated or refused other employment to work for defendant. The elements of equitable or promissory estoppel are: (1) a promise; (2) that the promisor should reasonably have expected to induce action of a definite and substantial character on the part of the promisee; (3) which in fact produced reliance or forbearance of that nature; and (4) in circumstances such that the promise must be enforced if injustice is to be avoided. Nygard v Nygard, 156 Mich App 94, 100; 401 NW2d 323 (1986); Schipani v Ford Motor Co, 102 Mich App 606, 612-613; 302 NW2d 307 (1981). Additional reliance, other than simply accepting and continuing employment, is necessary for an estoppel claim. Schipani, supra, p 613. Based on the foregoing, plaintiffs’ reliance was not substantial. They did not allege that they forbore other employment on the alleged promises of defendant that they would receive the seven percent commission rate forever. Thus, summary disposition was proper as to this claim.
Next, plaintiffs allege error when the trial court granted summary disposition as to their age discrimination claims on the basis that the prior ruling of the nlrb and the statute of limitations barred these claims. We agree with the trial court’s decision on a different basis. This Court will affirm a trial court’s decision even if premised on wrong reasons. See Lesczynski v Johnson, 155 Mich App 392, 396; 399 NW2d 70 (1986), lv den 428 Mich 859 (1987).
To establish a prima facie case of age discrimination, a plaintiff must present evidence that (1) he had skills, experience, background or qualifications comparable to other employees who were not laid off, and (2) that age was the determining factor in defendant’s decision to lay off plaintiff. Matras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986).
In this case, Kuthy’s uncontroverted deposition showed that the change in the compensation system was a business decision made for the purpose of bringing compensation in line’ with productivity. Plaintiffs offered no opposing affidavits or other documents showing that age was a determining factor in defendant’s decision to change the compensation system.
Finally, the trial court properly dismissed the claims of four plaintiffs: two for their failure to comply with discovery, i.e., failing to appear for their depositions, MCR 2.313(B)(2) and (B)(1)(a) (if a party fails to appear for a deposition, the court may dismiss the action); and the other two filed separate and independent actions. See MCR 2.116(C)(6) (summary disposition is proper if another action is initiated between the same parties involving the same claim).
Affirmed in part, reversed in part and remanded for proceedings not inconsistent with this opinion.
MCR 2.118(A)(4) states in part that, unless otherwise indicated, an amended pleading supersedes the former pleading.
A few plaintiffs in this group were eventually excluded from the group since they were entitled to receipt of the seven percent commission for renewals before the end of one year.
This case, Bullock and Farrell all involve the same defendant and arise out of essentially the same circumstances, namely: defendant’s change in the compensation system for commissioned sales representatives and imposition of minimum production requirements. The minimum production aspect of this case was stayed in the trial court.
This count of the complaint pertains solely to the second and third groups of plaintiffs. It is undisputed that no representations were made to the first group.
This claim applies to all plaintiffs.
This theory of liability solely covers the second and third groups of plaintiffs, since allegedly they were promised the receipt of the seven percent commission rate "forever.” | [
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J. D. Payant, J.
Employers Insurance of Wausau appeals as of right from an order dismissing its third-party complaint against Lake States Mutual Insurance Company under MCR 2.116(C)(7). The trial court found that Wausau’s third-party complaint was barred by the one-year limitation period contained in MCL 500.3145(1); MSA 24.13145(1). We reverse the order of the circuit court.
On March 6, 1983, plaintiff Michael Madden was injured in a one-car automobile accident while riding as a passenger in a car he did not own. Madden filed an application for personal injury protection benefits with Wausau, the driver’s insurance company. Madden indicated on the application that he did not own an automobile and there were no family members residing in his household who owned an automobile.
Wausau wrote a letter to Madden’s attorney, David A. Nelson, questioning whether Madden did, in fact, have benefits available to him. Nelson responded in a letter that Madden did not have benefits available to him other than through Wausau. Wausau requested an affidavit verifying that Madden had no other available benefits. Nelson provided an affidavit stating that to the best of his information and belief, Madden had no insurance available to him other than through Wausau. Wausau began making personal injury protection payments to Madden totaling in excess of $18,000.
Eventually, a dispute arose over certain claimed benefits. On March 23, 1984, Madden filed suit against Wausau. In December of 1984, Madden revealed during a deposition that at the time of the accident he was living with his brother. Madden’s brother owned a car that was insured at the time of the accident by Lake States. Madden’s brother and sister-in-law were deposed in February, 1985. They indicated that on the day of the accident Madden was living .with them at the address that Madden had .given on his application for benefits that he filed with Wausau. They also indicated that they owned an automobile that was insured by Lake States at the time of the accident.
On February 27, 1985, Wausau gave Lake States notice of a claim against Lake States. On March 7, 1985, an application for benefits was filed with Lake States on plaintiffs behalf. Coverage was denied on March 8, 1985, and March 12, 1985.
On April 4, 1985, Wausau sought leave of the trial court to add Lake States as a third-party defendant. Leave was granted, and a third-party complaint was filed on May . 17, 1985. In addition, Wausau counterclaimed against Madden. Madden then filed an ámended complaint adding Jay F. Trucks; Law Offices of Hughes & Trucks, P.C.; David A. Nelson, individually; and David A. Nelson, P.C., as party defendants. In addition, Madden, as counter-defendant to Wausau’s counterclaim, filed a third-party complaint against Jay F. Trucks; Law Offices of Hughes & Trucks, P.C.; David A. Nelson, individually; and David A. Nelson, P.C.
Both Wausau and Lake States filed summary disposition motions. Wausau’s motion for summary disposition against Madden was denied. The trial court found that there was a genuine issue of fact ás tó whether Madden was domiciled with his brother and sister-in-law at the time of the acci dent. Lake States’ motion for summary disposition against Wausau was granted on the basis that the action was barred by the statute of limitations contained in MCL 500.3145(1); MSA 24.13145(1). Ultimately, Madden settled his claim for an additional $15,000, which was paid by Wausau while it preserved its right to indemnification or contribution against Lake States. All other claims were dismissed with prejudice.
Under the no-fault act contained in the Insurance Code of 1956, there is a one-year limitation period in which a claimant may file suit against an insurer to recover personal protection insurance benefits. Section 3145 of the code provides as follows:
An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later that 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. [MCL 500.3145(1); MSA 24.13145(1).]
The issue in the present case is whether the above statute of limitations applies when an insurer is suing another insurer on the basis that it paid benefits by mistake for which the defendant insurer was liable. Therefore, we note initially that the cases cited by Lake States involving individual claimants are inapplicable to resolution of the issue of whether § 3145 applies to suits between insurance companies. .
One of this Court’s first opportunities to review this issue was in Home Ins Co v Rosquin, 90 Mich App 682; 282 NW2d 446 (1979), lv den 408 Mich 855 (1980). In Home Ins Co, an accident occurred in December, 1974. The plaintiff paid benefits to the owner of the insured building and filed suit against the drivers of the automobiles that damaged the building. In April, 1975, the plaintiff learned that the automobiles had insurance coverage that should have provided benefits to the building owner. However, the automobile insurers refused to pay benefits and in May, 1976, the plaintiff amended its previously filed complaint to include the other insurers. This Court held that the one-year statute of limitations period in § 3145 barred the plaintiff’s claim against the insurers of the automobiles. However, in a footnote, this Court said, "If plaintiff did not know who the defendants’ insurers were or could not have discovered, after reasonable effort, who the insurers were, we might have been persuaded to adopt a different result.” Id., p 686, n 3.
The issue next arose in Keller v Losinski, 92 Mich App 468; 285 NW2d 334 (1979), where an injured person filed suit against one no-fault insurer, who in turn made a claim against another no-fault insurer. However, the accident occurred in March, 1975, and the claim by one insurer against the other insurer was not made until April, 1977. Two members of the panel held that the claim between insurers was barred by the one-year statute of limitations period in § 3145. The insurance company claimant argued that § 3145 did not apply because its claim was for indemnification rather than for recovery of personal injury protection benefits. However, that argument was rejected by the majority, which treated the claim as one of subrogation in which the insurer’s rights could not be expanded past the insured’s rights and consequently the insurer’s action was barred by the one-year statute of limitations of § 3145. | [
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Per Curiam.
Following a bench trial, defendant was convicted of breaking and entering, MCL 750.110; MSA 28.305. He then pled guilty to being a fourth-felony offender, MCL 769.12; MSA 28.1084. Defendant was sentenced to fifteen to sixty years’ imprisonment and ordered to pay restitution of $4,257.25. Defendant appeals as of right. We affirm defendant’s conviction, but remand for resentencing.
Defendant’s conviction arose out of events which occurred during the early morning hours of Janu ary 19, 1986. At that time defendant was a resident of the Muskegon Corrections Center and received weekend passes.
Officer Mark Baker, a Muskegon police officer, testified that at approximately 5:00 a.m. on January 19, 1986, while on patrol, he observed a person, not defendant, removing items from a white Cadillac which was backed up against the garage door of the residence located at 713 Marcoux Street in Muskegon. Upon closer investigation it was determined by Baker that the interior of the car was filled with numerous household items, jewelry and two automobile tires. The car containing these items was registered to defendant, who was contacted at home by central dispatch and then transported to the vehicle’s location.
Upon arrival at 713 Marcoux, defendant was questioned by Officer Baker. He denied ownership of any of the property found in the Cadillac. Defendant speculated that perhaps the property belonged to an ex-girlfriend who had a set of keys to his car. Defendant also told the police that he had abandoned his car about ten o’clock the prior evening because it had a flat tire. Defendant then assisted the police in removing the items from his car. Subsequently, the police learned that the confiscated items were stolen from a private residence located in Muskegon. Two latent fingerprints found at the scene of the breaking and entering were identified as defendant’s.
On appeal, defendant first argues that the prosecution committed error warranting reversal when it deliberately elicited testimony from a police officer that defendant had asserted his right to remain silent. If a defendant chooses to exercise his right to silence, that silence cannot be used against him at trial. People v Bobo, 390 Mich 355, 359; 212 NW2d 190 (1973); People v Gerald Wells, 102 Mich App 558, 564; 302 NW2d 232 (1980), lv den 417 Mich 916 (1983). This rule is designed to prevent a jury from drawing an inculpatory inference from a defendant’s refusal to submit to interrogation. People v Hoshowski, 108 Mich App 321, 324; 310 NW2d 228 (1981).
In the instant case, the prosecution did elicit testimony from the investigating officer that defendant had invoked his right to silence. This was error. However, while we do not condone the prosecution’s behavior, we conclude that the error was harmless. Defendant was tried before a judge, not a jury. A judge, unlike a juror, possesses an understanding of the law which allows him to ignore such errors and to decide a case based solely on the evidence properly admitted at trial. From our review of the record, we conclude that the trial judge did just that. Defendant’s conviction was supported by substantial evidence.
Defendant next argues that the trial judge abused his discretion when he dismissed defendant’s claim of dissatisfaction with his appointed counsel without making further inquiries into the dispute. An indigent defendant is constitutionally guaranteed the right to counsel; however, he is not entitled to have the attorney of his choice appointed simply by requesting that the attorney originally appointed be replaced. Appointment of a substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process. People v Ginther, 390 Mich 436, 441; 212 NW2d 922 (1973). Good cause exists where a legitimate difference of opinion develops between a defendant and his appointed counsel as to a fundamental trial tactic. People v Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972). A judge’s failure to explore a defendant’s claim that his assigned lawyer should be replaced does not necessarily require that a conviction following such error be set aside. Ginther, supra, p 442. A conviction will be set aside only upon a showing that the judge abused his discretion in denying the request for substitution. People v Meyers (On Remand), 124 Mich App 148, 165; 335 NW2d 189 (1983).
From our review of the record, we conclude that defendant’s request for substitute counsel was not timely made and was not supported by a showing of good cause. The only real dispute evident from the record was over counsel’s failure to more vigorously cross-examine the fingerprint expert. This dispute was not over a fundamental tactic. Therefore, we conclude that the trial judge did not abuse his discretion in failing to explore defendant’s claim of dissatisfaction with his counsel or in denying defendant’s request for substitution.
Defendant also argues that he should be resentenced because the sentencing court lacked authority to impose both imprisonment and restitution. In the alternative, defendant argues that the sentencing court improperly determined the amount to be paid in restitution. We disagree with defendant’s argument that the sentencing court lacked authority to order restitution, but agree that defendant must be resentenced because the sentencing court improperly calculated the amount of restitution to be paid.
Absent express statutory authority providing restitution as part of a sentence per se, restitution is proper incident only to probation. People v Neil, 99 Mich App 677, 680; 299 NW2d 23 (1980). We conclude that the sentencing court’s order of restitution was expressly authorized by statute. The Crime Victim’s Rights Act, MCL 780.751 et seq MSA 28.1287(751) et'seq., provides that a sentencing court may order a defendant to pay restitution in addition to any other penalty authorized or required by law. MCL 780.766(2); MSA 28.1287(766)(2). In addition, MCL 769.1a; MSA 28.1073 provides that a sentencing court may order restitution in addition to any other penalty authorized by law.
Having concluded that the sentencing court did not exceed its statutory authority by imposing both imprisonment and restitution, we now address the question whether it correctly determined the amount of restitution to be paid. Restitution is designed to compensate the injured victim or his estate. Where a crime results in a loss or destruction of property, the court may order the defendant to pay the amount equal to the value of the property on the date of loss or destruction or the value of the property on the date of sentencing, whichever is greater. MCL 780.766(4)(b)(i) and (ii); MSA 28.1287(766)(4)(b)(i) and (ii), MCL 769.1a(2)(b)(i) and (ii); MSA 28.1073(2)(b)(i) and (ii). However, the sentencing court may not order restitution with respect to a loss for which the victim or his estate has received or will receive compensation. This includes compensation by insurance. MCL 780.766(10); MSA 28.1287(766)(10), MCL 769.1a(8); MSA 28.1073(8).
In the instant case, the sentencing court ordered defendant to pay $450 in restitution to reimburse the victim for traveling expenses. We do not read either MCL 780.766; MSA 28.1287(766) or MCL 769.1a; MSA 28.1073 as authorizing the sentencing court to order defendant to pay such expenses. Accordingly, we conclude that the sentencing court erred in so ordering. The remedy for a partially invalid sentence is a remand for resentencing. People v Benda, 162 Mich App 255; 412 NW2d 705 (1987).
Additionally, we note that we are unable to determine from the record what items were covered by the restitution order, whether the victims were compensated for those items by insurance, and, consequently, whether restitution was precluded. On remand, the sentencing court shall determine whether restitution is precluded because the victims have been compensated for their loss by their insurance company.
In light of the foregoing, we affirm defendant’s conviction but remand for resentencing. | [
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Brooke, J.
At about 8 o’clock on the evening of August 19, 1917, the complaining witness, a little girl ten years of age, was assaulted on Ashland avenue in the city of Detroit. The assault was perpetrated in front of a vacant lot upon which weeds three or four feet high were growing. Her assailant dragged her into the weeds, threw her down and placed a rag or handkerchief in her mouth. The child fought her assailant and after a short time he left her, after which, the gag being removed, she made an outcry. If the intent of her assailant was rape he left without accomplishment. The police were at once notified and arrived at the scene of the assault at about 8:80 p. m. One of the officers making a careful investigation of the premises discovered among the weeds about ten feet in, the child’s bonnet, pocketbook, and hair-ribbon, also an envelope, closed, addressed, and stamped, but never having been mailed. An examination of the contents of the envelope disclosed the fact that it contained a:
“Monthly report of paroled prisoner to warden,” signed with the name, Edward Ballard. Following the clue thus obtained the police arrested the defendant near the city of Monroe where he was engaged in assisting to build a bridge for the Detroit United Railway,
On the trial the child, complaining witness, not sworn, was placed upon the stand and gave a very intelligent account of the assault, but was quite unable to identify the defendant as her assailant. Thereupon the police officer who was first upon the scene and who had made an examination of the premises where the assault occurred, was sworn and produced the envelope and inclosure above described. These were offered in evidence, and over objection of defendant were received. The two officers who effected the arrest of defendant were next sworn and both testified that defendant admitted that he had assaulted the little girl, but was unable to explain his. reason for the act. Thereupon defendant’s counsel made a motion for a directed verdict upon the ground that the people had failed to show any intent on the part of defendant to commit rape. The court overruled the motion, holding that the only way to determine the intent was by a consideration of the acts proven. Defendant was then placed upon the stand by his counsel and admitted the fact that the letter alleged to have been found at the scene of the assault was in his handwriting and that the signature thereto was his own. He, however, denied that he had assaulted the child or that at the time or after his arrest he had admitted to the officers .his guilt. After the charge a verdict of guilty was returned and defendant was sentenced to Ionia prison for from five to ten years with a recommendation of ten years, which sentence he is now serving.
No exception was taken to the charge of the court and defendant by his counsel argues only two assignments .of error.
“First. The court erred in refusing to direct a verdict of acquittal in favor of defendant, at the conclusion of the people’s case, upon request of counsel for defendant.
“Second. That the court erred in admitting Exhibit A to be read in evidence, and in allowing the contents on the envelope, marked Exhibit A, to be read to the jury, and in admitting the contents in evidence, marked Exhibit B, over objection of counsel for defendant.”
Under the first assignment it is argued on behalf of defendant that though he threw the girl down and put a rag in her mouth he did not assault her person otherwise or attempt to do so; that no one discovered her assaulter in the act; that he was not frightened away and therefore that he did not intend to commit rape upon her. It is further urged that as he did none of the acts necessary to accomplish rape the proof is strong that he had no such intent.
We are unable to agree with this contention. Unexplained upon any reasonable hypothesis we think the facts proven were sufficient to warrant the jury in a conclusion that whoever committed the assault his original purpose was rape. The question of intent was clearly one for the jury and was submitted to them under instructions carefully guarding defendant’s rights.
Touching the second assignment we are of opinion that the receipt in evidence of the envelope and contents was proper. The papers were discovered within 30 minutes of the commission of the crime at the very point where it was committed. On behalf of the defendant it is urged that the admission of said exhibit was, in effect, a breach of the statute, 3 Comp. Laws 1915, § 12552, which provides in part:
“Provided, however, That a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.”
In this behalf it is urged that the admission of the exhibits in question compelled defendant to testify himself and that another distinct crime was proven against him by his admissions in this report. While the report discloses the fact that the defendant was a paroled prisoner, it sets out no crime for the commission of which he had theretofore been convicted. We do not think that the admission of the report constituted proof of. the commission of another and distinct crime, but even if it had constituted such proof it was clearly admissible as a part of the res gestae.
Judgment is affirmed.
Bird, Moore, Steere, Fellows, and Stone, JJ., concurred with Brooke, J.
Ostrander, C. J., and Kuhn, J., concurred in the result. | [
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] |
Steere, J.
On December 10, 1915, M. Thomas Ward, plaintiff, by M. Thomas Ward, plaintiff’s attorney, commenced an action against defendant in the circuit court of Kent county by filing and serving a declaration charging defendant under the common counts in assumpsit with being indebted on the first day of November, 1915, to George LeVan in the sum of $200, which indebtedness was averred to have been assigned to plaintiff by said LeVan for a valuable consideration, on November 30, 1915, and defendant though often requested had not paid the same or any part thereof, to plaintiff’s damage one thousand dollars, and therefore he brought suit.
On request for a bill of particulars after entry of appearance by Earl F. Phelps, defendant’s attorney, plaintiff “in proper person” furnished the same, informing defendant that the action was brought to recover the following demand:
“1915, October, steel ............................. $170.00
1915, October, Cartage and unloading... ........... 6.00
1915, October, Hand Rail ................... m ...... 16.00
1915, October, Hauling Hand Rail.......... 2.00
$194.00”
After being thus advised, defendant pleaded the general issue, with a lengthy notice of special defense that the work, labor and material furnished for which plaintiff’s action was brought, if any, were done and furnished under a special contract in writing by which LeVan undertook to build a bridge for defendant, in which undertaking he failed miserably to defendant’s injury and damage in the sum of $300 for which it made claim by way of recoupment.
On the trial of the case before the court without a jury the testimony developed complications which led the court to offer the following reflection, with which we do not disagree:
“This entanglement involves a good many different-lines and ramifications. It probably would be difficult for a designing mind to get an entanglement with •more avenues of approach or more alleys of escape, if you were getting up a knotty question to see if you could not somewhere trip somebody who claimed to be untrippable.”
The court thereafter made a finding of facts with conclusions of law thereon holding that plaintiff could not recover. Proposed amendments by plaintiff to such findings were refused and defendant had judgment. Exceptions to the refusal to amend findings, conclusions, etc., were duly taken and the case re moved to this court for review on 26 assignments of error.
Most of the facts out of which the litigation arose are not in dispute. The subject-matter of the litigation was a quantity of steel for concrete • reinforcement bought, but never paid for, by LeVan from the Concrete Steel Company óf New York to be used by him in performance of his contract to construct a small concrete bridge over Mill Creek in a highway of the defendant township of Alpine. The price of this steel as purchased by LeVan from the concrete company was $170 which did not include a steel hand rail procured by him from the same source for, as he testified, “in the neighborhood of $15, $18, $20, somewhere along there.” The plans and specifications for the proposed bridge were prepared and the contract let for its construction by a firm of civil engineers named Riser & Christ, representing the township in that ‘transaction, and LeVan secured the contract which was dated November 24, 1914, by which he was to furnish all necessary tools, labor and material and construct the bridge in. a good and workmanlike manner according to the plans and specifications, made a part of the contract, for $628 and complete the same before December 15, 1914. He thereafter entered upon the construction of the bridge and some time “during the winter of 1914-15” notified the township of its completion, just when is left to surmise. He testified that he built the bridge of cement, steel and gravel and said:
“I put this steel into the bridge and went on and finished up the bridge so that I thought it was finished. It could have a coat of whitewash in the spring; that is what it should have, is about all.”
The township by its officers and the engineers who designed the bridge then inspected it and determined that it had not been constructed in accordance with the plans and specifications, was of weak, unworkmanlike and faulty construction, hopelessly unsafe for public use and an obstruction in the highway which it was necessary to remove before a safe and proper bridge could be built, its greatest infirmity being in the quality of the cement, claimed to be weak, crumbling and interspersed with cracks. Acceptance was refused and LeVan so notified with demand that he comply with his contract by constructing a proper and safe bridge according to the plans and specifications. He took no steps to comply with the demand and after waiting until August 31, 1915, the township let a contract to one Eobertson by the terms of which he was to tear down and remove out of the way the bridge LeVan had built and construct another in its place according to the same plans and specifications in relation to which LeVan had contracted. His price for the new bridge was $600, he to use the old railing, allowing $20 therefor, and the old reinforcing steel, allowing lc per pound for the same, which LeVan had used in the rejected bridge he built. For tearing down and removing the LeVan bridge out of the way he was to receive $200 and of this work it was specified:
“4. In tearing down the present bridge span care must be taken to save as much as possible of the imbedded steel and the pipe railing, as it is the intention to use as much as possible of this material in the new bridge span.
“5. The concrete of the demolished span shall be broken up and deposited on the banks adjacent to the bridge as directed by the commissioner.
“6. The old steel must be thoroughly cleaned from all dirt and concrete, restraightened and if necessary rebent to the original shape.”
The abutments to this bridge were not put in by LeVan, but by the township, and in the opinion of the engineer explosives could not be used in removing the rejected bridge without affecting the abutments. In performance of his contract Robertson first entirely tore down the LeVan bridge in such manner as to not disturb the abutments, cleaning and straightening the old steel as he released it and laying it on the ground a short distance from the bridge “just out of the way.” After the old bridge was entirely torn down and removed out of the way he built the new one in compliance with the terms of* his contract, using 7,500 pounds of the old steel saved from .the LeVan bridge and the old railing, for which, as agreed in the contract, the township received a rebate of $95 on the contract price of $800 otherwise due him for tearing down the old bridge and constructing the new. It is found by the trial court, and not disputed, that LeVan was seasonably notified by defendant of the rejection of the bridge he built and twice requested to construct a bridge according to contract, the last demand being in writing with a time fixed in which to comply, to which he paid no attention; that the one he built was not in compliance with the plans and specifications of his contract but was an obstruction in the highway which it was necessary to remove before the Robertson bridge could be constructed, and that the price paid by the township for removing the same was reasonable. So far as the record discloses LeVan’s first activity in connection with this matter subsequent to notice that his bridge had been rejected and demand that he comply with his contract was to assign his rights in the old reinforcement steel to plaintiff after Robertson’s contract was completed and the steel had been securely imbedded in the concrete of the new bridge. Plaintiff then brought this action against the township for conversion of LeVan’s steel, waiving the tort, however, and suing in assumpsit, as is permissible.
The trial court held defendant’s claim for recoup ment could not be maintained because it did “not grow out of the contract under which plaintiff brings this suit.” Having found it admitted that defendant never accepted the LeVan bridge and after due notice and demand had caused the steel and cement of which it was constructed to be removed because an obstruction to the erection of a proper and safe bridge, and that it authorized Robertson to .use the steel placed by LeVan in the demolished bridge, the court expressed the view that “even though the bridge was not accepted by the township, the bridge and all its component parts became affixed to the land and a part of a highway, and plaintiff’s assignor had no interest or property right in said bridge” except as he might use any suitable portion of it in carrying out his contract according to its terms, and “must rely entirely upon the contract for his compensation to recover for building the bridge”; that after installing the same in the public highway he had no right, in case of dispute with the township authorities, “to go upon the public highway and remove therefrom the bridge,” which was “a public improvement,” erected under contract with the township. After further discussion of the case in that respect the court concluded that, “If the property belonged to the township as above indicated the plaintiff’s case must fail,” and proceeded to discuss the theory of conversion, qualifiedly adopting it as follows:
“Under the testimony in the case the court finds that the defendant, having removed the first bridge, which was composed of steel and cement, from the place where plaintiff’s assignor built it, the steel being extracted from cement and laid near the place where the second bridge was built, and being used in the construction of the second bridge with the consent of defendant, and it being the intent of defendant from the time of the beginning of the removal of the first bridge to the time the second bridge was constructed to use this steel in construction of the second bridge, that the conversion, if there was such conversion by defendant of the steel in question, was committed at the time defendant first handled the steel, which would be at the time defendant removed the steel from the cement bridge.”
Having so determined the time of conversion, if any, the court in conclusion held that not only had plaintiff failed to prove the market value of the steel at the time it was converted while yet imbedded in the cement of the LeVan bridge, but that it was shown by defendant’s evidence to be without value in its then condition; and on that theory entered judgment for defendant.
One of the “ramifications” in this “entanglement,” to which no reference appears in the court’s finding of facts and conclusions of law, is that soon after this action was brought and before issue was. joined defendant filed a bill of interpleader on the chancery side of the court giving at length its version of the history of this bridge matter up to and including the commencement of this action, alleging that LeVan himself, Gordon C. Dudley as his bondsman, M. Thomas Ward as his assignee, and the Concrete Steel Company, all of whom are made defendants, have each demanded from the township (“your orator”) pay for this steel, saying amongst other things.:
“Said steel that was put into the said bridge built by the said G. F. LeVan went into the second bridge constructed by the other contractor, and your orator received the benefit thereof, and your orator is ready and willing to pay to the proper person whatever sum said steel is reasonably worth, which steel your orator is informed and believes is worth at- a fair valuation the sum of one hundred and seventy-one ($171.00) dollars, and your orator is willing to pay this amount for said steel to whomsoever is entitled thereto.”
The bill contained the customary prayer for relief under its allegations, and asked a preliminary injunction restraining M. Thomas Ward from further prosecuting this action, which was granted. The bill was signed in behalf of the township and sworn to by Louis F. Cordes, its supervisor, who was by statute its agent for transaction of all legal business, and the party upon whom all process against it should be served (1 Comp. Laws 1915, § 2115).
M. Thomas Ward thereafter moved before the chancery court for dismissal of the bill and dissolution of the injunction against him, which motion was granted. The grounds of said motion and reasons of the court for dismissing the bill are not disclosed by this record, but the township took no appeal therefrom, and thereafter pleaded in this action as before stated.
Plaintiff filed proposed amendments to the findings of the court under Circuit Court Rule No. 45 embodying the salient facts as to defendant’s bill of inter-pleader and its contents, none of which were granted, exception was duly taken and error is assigned thereon. As those matters are of record and undisputed, plaintiff was entitled to his proposed findings to the extent any of them are material to the issue.
Plaintiff says of defendant’s rather peculiar and unsuccessful excursion info the field of interpleader that, “The township of Alpine had a right to file a plea with a notice of recoupment in this case or to file a bill of interpleader. But our contention is that he had no right to do both,” and it is argued that having by its attempted interpleader declared itself the innocent stakeholder of $171 for the value of this steel claimed by four different parties made defendants, of which plaintiff was one, it cannot thereafter file in this case a plea of denial and notice of recoupment, claiming that money and denying plaintiff’s right to it as assignor of the owner of the steel.
It seems self-evident that the theory upon both the facts and law by which the court disposed of the case is out of harmony with the allegations and theory of defendant’s sworn bill of interpleader filed as the commencement of a suit in equity; but plaintiff declined to plead issuably in that suit and successfully took steps to head off that attempted “alley of escape” by a technical motion presumably in the nature of a demurrer, obtaining an adjudication that defendant’s bill was not well founded, was insufficient in law to demand answer and should be dismissed — in effect that the bill of interpleader was a nullity and, as between these parties, could in no wise affect the orderly course of this action at law.
Thus relegated to its defense in this case it remained for defendant to plead herein as it might be advised. It had not before pleaded, issuably or otherwise, and, held to the issues tendered by plaintiff’s declaration in assumpsit under the common counts, it pleaded the general issue with notice of recoupment. Under the testimony in this case strengthened by the allegations in its dismissed bill of interpleader* which are competent evidence, it is not only manifest that defendant was not in a position to deny LeVan’s ownership of this steel, but that he had in fact bought and owned it at the time he put it into the rejected bridge he built for defendant. That his vendor had granted him credit and he had not yet paid for it was no legal concern of defendant so far as this record discloses.
Though adopting the conclusion that there was a conversion, qualified by the previously expressed view that LeVan had probably lost all rights in this steel by so building it into his bridge that it “became affixed to the land and a part of the highway,” and if so “plaintiff’s case must fail,” the trial court determined the conversion, if any, took place “at the time defendant removed the steel from the cement bridge,” which LeVan had constructed, and that it was without value at that time in its then condition. Against this plaintiff strenuously contends and argues that defendant converted the property when it took it from the side of the highway and put it into the new bridge, at which time it is shown to have been of substantially the value claimed.
To follow out the various arguments and theories as to when and how often this steel changed back and forth from personal property to real estate, or when and why or how. the conversion, if any, took place, as mooted by the contingent conclusions of the trial court might, as the court suggested, involve an “entanglement” of questions which, in the language of Imlac, have “long divided the wise and perplexed the good” and we see no reason to pursue them, for we think the court erroneously rejected defendant’s claim of recoupment and the exact time when defendant converted LeVan’s steel to its own use is of minor importance. He purchased this steel to use in the construction of a bridge for defendant over Mill Creek which he had contracted to build. He used it for that purpose. The township rejected the bridge he built because imperfect, unsafe and not according to contract, notifying him of the rejection and its reasons. After due demand that he perform and reasonable time therefor the township did what he under his contract should have done. It tore down the defective and unsafe bridge and built another of the same kind, according to the same plans and specifications as that he had agreed to build. In doing so it saved and used some of the old material which he had furnished for and used in the first bridge in part performance of his contract.
While plaintiff claims a tortious conversion he has waived the tort and sued in assumpsit founding his action upon a claim of quantum meruit, for the value of material furnished by his assignor under and used in an attempt to perform Ms contract with, defendant to build a specified bridge, for the construction of which defendant used the material after he had failed to fully perform and abandoned the work; but had plaintiff’s action sounded in tort for a conversion, recoupment could have been interposed with equal force.
“That term is expressive of a right of a defendant to deduct or abate from the plaintiff’s damages any-right of action which defendant may have, growing out of the same transaction, founded either in tort or in contract; but the right is the same, whether expressed by one term or another, or claimed by a plaintiff or defendant.” Bancroft v. Peters, 4 Mich. 619.
Recoupment is not strictly limited to the exact provisions of the contract involved, or sued upon, but is said in Waterman on Set-Off and Recoupment (2d Ed.), p. 480, to be contradistinguished from set-off in three essential particulars:
“1st. In being confined to matters arising out of, and connected with, the transaction or contract upon which the suit is brought; 2d. In having no’ regard to whether or not such matter be liquidated or unliquidated; and 3d. That the judgment is not the subject of statutory regulation, but controlled by the rules of the common law. * * * It is sufficient that the counter-claims arise out of the same subject-matter, and that they are susceptible of adjustment in one action.”
The scope of such defense was early recognized by this court in Ward v. Fellers, 3 Mich. 282, where recoupment is discussed at some length. The opinion, says of its application:
“It is sufficient that the counter-claims arise out of the same subject-matter, and that they are susceptible of adjustment in one action.”
In Allen v. McKibbin, 5 Mich. 449, which holds recovery might be had on quantum meruit for part performance of a non-apportionable contract, the basis of recovery being a new implied agreement dedueible from delivery and acceptance of some valuable service or thing, the court said in discussing the defense that no question could be raised as to the right to recoupment “as the damages, if any, arose out of the same transaction.”
As assignee, plaintiff is entitled to recovery only and just as LeVan, his assignor, might had no assignment been made. Howell v. Medler, 41 Mich. 641.
The trial court found, with abundant supporting evidence, that the reasonable cost and expense to defendant in removing the defective LeVan bridge out of the way, and cleaning and straightening the steel found imbedded in it, was the sum of $200. This was distinctly an item of damages resulting to defendant from LeVan’s nonperformance of his contract, and exceeded the amount claimed in plaintiff’s bill of particulars, or any proven value of the steel used by defendant and for which it was holden. Clearly the counter claims of these parties arose out of the same subject-matter, or transaction, and were susceptible of adjustment in one action.
Though by different avenues of approach, which is immaterial, the right result was reached by the trial court and its judgment is affirmed.
Bird, C. J., and Ostrander, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Fellows, J.
Defendant is the owner of Calf Island, consisting of about 10 acres. It is located in the Detroit river within the confines of Wayne county. It is defendant’s home. On August 1, 1918, while defendant was in the State of South Carolina, and was known by the officers to be absent, five inspectors of the food and drug department, the marshal of the village of Trenton, a deputy sheriff of the county, and the justice of the peace, who afterwards conducted the examination of defendant, went to the island. Some of the party effected an entrance to the dwelling house without breaking locks or doors, searched the house, found some liquor there, and also found some liquor in an improvised cellar and at other points on the premises. All the liquor was seized, conveyed to the mainland and from there to the county building in Detroit where it was stored. All this was done without a search warrant and without consent of defendant. Two days later a complaint was filed charging defendant with the violation of Act No. 161, Pub. Acts 1917. Upon his return he was arrested, and after a preliminary examination before the justice of the peace who was one of the party on August 1st, was bound over for trial. In the circuit court, the information was quashed and the liquor ordered returned to him. To review this judgment the prose- cuting attorney sues out this writ of error under the provisions of Act No. 159, Pub. Acts 1917. The following are the errors assigned:
“1. The court erred in deciding that Act No. 161 of the Public Acts of the State of Michigan for the year 1917 was superseded and repealed by Act No. 338 of the Public Acts of the State of Michigan for year 1917.
“2. The court erred in entering an order quashing the information.
“3. The court erred in directing the liquor seized to be restored to the defendant.”
We shall consider these assignments of error in their inverse order.
1. Section 10, art. 2, of the Constitution of the State provides:
“The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.”
This provision is the same as found in the Constitution of 1850 (art. 6, § 26), and with the exception of the use of the word “person” in place of the word “individual” the same as found in the Constitution of 1835. It is in effect the same provision found in the Fourth Amendment to the Federal Constitution.
Section 16, art. 2, of the State Constitution provides :
“No person shall be compelled, in any criminal case to be_ a witness against himself, nor be deprived of life, liberty or property, without due process of law.”
Like provisions are found in the Fifth Amendment to the Federal Constitution. Similar provisions are found in the constitutions of the various States of the Union. By these provisions the rights of the individual are secured; the provisions of the Federal Con stitution securing the citizen from arbitrary, unlawful conduct on the part of the Federal government and its officers, and the provisions of the State constitutions securing the citizen from arbitrary, unlawful conduct on the part of the State and its officers. These provisions not only secure the individual in his person, his home, and his property from invasion through unbridled legislation, but they also secure the individual in his person, his home, and his property from invasion through unbridled and unrestrained executive or administrative will. It ought not to be necessary to recall the fact that it is of the essence of a free government that the individual shall be secure in his person, his home and his property from unlawful invasion, from unlawful search, from unlawful seizure. The writing of these provisions into the Federal Constitution, into every constitution of every State in the Union was not an idle ceremony. With a clearness of vision our forefathers provided for a lawful search and seizure, one supported by oath or affirmation, describing the place to be searched and the person or things to be seized; and in the same section safeguarded the rights of the individual by inhibiting unreasonable and unlawful search. They provided an orderly manner for search and seizure and prohibited all others.
The substance of the provision found in the Fourth Amendment to the Federal Constitution was proposed by Mr. Madison in the seventh subdivision of his first amendment. Others proposed a similar provision, and the final result was the language found in this amendment. That we may better understand this provision it is well we consider some of the events leading up to its adoption. Obviously we cannot within the compass of this opinion detail at length all that preceded and finally culminated in far reaching decisions by the courts of England. Attention is directed to a foot-note which will be found in Cooley’s Constitutional Limitations (7th Ed.), beginning at page 426. It will suffice to say that a practice had grown up .in England of issuing so-called writs of assistance, originally by the Star Chamber and later by the secretary of state, under color of which messengers of the king entered any and all places agreeable to themselves, searched and seized such papers and evidences as their will dictated. These writs were general in their character, described no premises and named no persons to be searched. Their justification at that time was the publication of seditious libels and the end sought the suppression of these seditious utterances. The practice of issuing and serving these writs was of long standing; and the right to issue them was unassailed for many years; indeed, this was one of the reasons assigned to sustain their validity in the case to which we shall presently refer. But Lord Camden disposed of this claim in the following language:
“But still it is insisted, that there has been a general submission, and no action brought to try the right.
“I answer, there has been a submission of guilt and poverty to power and the terror of punishment. But it would be strange doctrine to assert that all the people of this land are bound to acknowledge that to be universal law which a few criminal booksellers have been afraid to dispute.”
The infraction of individual rights tolerated then as now under the claim of necessity in order to enforce the law finally came before the courts for decision. In the case of Entick v. Carrington, 19 Howell’s State Trials, 1029, Lord Camden, pronouncing the judgment of the court, laid broad and deep the principles which were afterwards crystallized in the Fourth Amendment. Of Lord Camden’s decision Mr. Justice Bradley, speaking for the court in Boyd v. United States, 116 U. S. 616 (6 Sup. Ct. 524), said:
“The law as expounded by him has been regarded as settled from that time to this, and his great judgment on that occasion is considered as one of the landmarks of English liberty. It was welcomed and applauded by the lovers of liberty in the colonies as well as in the mother country. It is regarded as one of the permanent monuments of the British Constitution, and is quoted as such by the English authorities on that subject down to the present time.”
Substantially contemporaneous with this case is that of Money v. Leach, 3 Bur. 1742. In both cases these general writs were held invalid and in April, 1766, the house of commons passed resolutions condemnatory of these so-called general warrants, whether for the seizure of persons or papers. Chatham thus tersely stated:
“Every man’s house is called his castle. Why? Because it is surrounded by a moat, or defended by a wall? No. It may be a straw-built hut; the wind may whistle around it, the rain may enter it, but the king cannot.”
The events bringing about the disuse of these writs in this country and premising the adoption of the Fourth Amendment are best described by Mr. Watson in his work on the Constitution. We quote (Vol. 2, page 1415):
“While officers of the crown were issuing and serving such warrants in England they were doing the same in the American colonies, — and this contributed much to that public sentiment which eventually demanded the adoption of this amendment. So oppressive had become the practice that here, as in England, it caused great alarm among the people, and here, as there, resistance was made to such writs on the ground of their illegality. These warrants were principally issued and the seizures made in the colony of Massachusetts. The trial which tested their legality occurred in Boston in February, 1761. It proved to be more than a mere trial, as we shall see, for the greatest question which could affect the inteiests of the colonists was involved. James Otis, a native of Massachusetts, was advocate-general of the crown at Boston, a legal position of great responsibility and honor; but he was so wrought up at the outrage which had been committed by the arrests under these warrants that he resigned his office, and, though offered a most remunerative fee if he would take charge of the defense, he said: ‘In such a cause as this I despise a fee.’ He then acted as one of the counsel in resisting the arrests. He spoke for five hours, and it is doubtful if any legal argument ever made on this continent produced a more profound or lasting impression. He set fire to a torch which is still burning, and which will continue to burn, for in that masterful effort he impressed upon the American heart the great lesson of resistance to tyranny and outrage. As the result of the trial the writs were never afterwards served by judicial sanction.”
A portion of Mr. Otis’ speech will be found in Life and Works of John Adams, Vol. 2, page 523. In this speech Mr. Otis pronounced these general writs “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,” since “they placed the liberty of every.man in the hands of every petty officer.” In a letter to William Tudor written March 29, 1817 (Life and Works of John Adams, Vol. 10, page 244), John Adam's most graphically described this trial which he attended. In. the course of his letter he said:
“Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child of Independence was born.”
These events which we have but given in outline occurred within the memory of the men who formulated and adopted the Fourth Amendment. In clear and unmistakable language these men wrote into the fundamental law of the nation to be afterwards incorporated into the fundamental law of the various States of the Union the safeguard against unlawful and unreasonable search and seizure of the person and property of the citizen, irrespective of whether such unlawful and unreasonable search and seizure had the sanction of legislative approval or rested in the arbitrary will of the executive and administrative arm of the State. Does the search of defendant’s premises and the seizure of his property in the instant case offend the rights secured to him by this provision of the fundamental law of the State? These officers had no search warrant issued upon oath or affirmation, no search warrant of any kind. They entered the home of defendant by command of no court, they searched his premises by virtue of no process. They justify, if at all, under administrative will and mandate not recognized by the Constitution, and unauthorized in a government of laws. That “the end justifies the means” is a doctrine which has not found lodgment in the archives of this court. The search and seizure detailed in this record was an unauthorized trespass and an invasion of the constitutional rights of this defendant.
These rights of the individual in his person and property should be held sacred, and any attempt to fritter them away under the guise of enforcing drastice sumptuary legislation (no matter how beneficial to the people it may be claimed to be), must meet with the clear and earnest disapproval of the courts.
Did the trial judge commit error in ordering the return of the liquor thus seized? It must be borne in mind that we are not here dealing with the search by a jailor of one lawfully under arrest upon warrant duly issued before placing him in his cell, and the retention of the proceeds of such search; nor are we considering a case where under a lawful search warrant duly issued a search and seizure has been effected; here we are dealing with the right to retain the liquor taken without any search warrant. An examination of many cases decided by the United States Supreme Court involving both the Fourth and Fifth Amendments satisfies us that the rule announced by that court will be reached by careful consideration of three cases decided by that court, and only three; that by a careful consideration of these three cases we will be able to clearly understand the rule laid down by that, the court of last resort of the nation, and the reason for the rule. These cases are Boyd v. United States, 116 U. S. 616 (6 Sup. Ct. 524); Adams v. New York, 192 U. S. 585 (24 Sup. Ct. 372); and Weeks v. United States, 232 U. S. 383 (L. R. A. 1915B, 834, 34 Sup. Ct. 341). A brief statement with reference to each of these cases will aid in understanding the discussion which follows: In the Boyd Case an information was filed to forfeit 35 cases of polished plate glass. It was charged that the plate glass was imported by the owners in fraud of the customs laws. By the terms of the act under consideration such owners were liable to heavy fines and imprisonment. Pursuant to the provisions of the act the district attorney obtained an order of the court requiring the importers to produce their invoices of the shipment. It was held in an able and exhaustive opinion written by Justice Bradley that the proceedings were criminal, and that the act and the proceedings taken thereunder offended both the Fourth and Fifth Amendments. The opinion of Lord Camden in the case of Entick v. Carrington, supra, together with the. circumstance surrounding the adoption of the amendments were fully considered by the court. Considering the compulsory production of papers it was said:
“And any compulsory discovery by extorting the party’s oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.”
The Adams Case brought up for review the decision of the court of appeals of the State of New York (People v. Adams, 176 N. Y. 351 [63 L. R. A. 406, 68 N. E. 636]). The State court had held that upon the trial the manner in which competent evidence offered against the defendant had been obtained could not be inquired into. The State court had said:
“The underlying principle obviously is that the court, when engaged in trying a criminal cause, will not take notice of the manner in which witnesses have possessed themselves of papers or other articles of personal property which are material and properly offered in evidence. In the case before us, if there has been any illegal invasion of the rights of this defendant by reason of alleged unlawful searches and seizures of private papers, his remedy is in an independent proceeding, not necessary to be considered at this time.”
The Supreme Court of the United States adopted this view and affirmed the case, Mr. Justice Day, speaking for the court, saying:
“The question was not made in the attempt to resist an unlawful seizure of the private papers of the plaintiff in error, but arose upon objection to the introduction of testimony clearly competent as tending to establish the guilt of the accused of the offense charged. In such cases the weight of authority as well as reason limits the inquiry to the competency of the proffered testimony, and the courts do not stop to inquire as to the means by which the evidence was obtained.”
In the Weeks Case the defendant had been arrested at his place of employment. Other officers without a search warrant went to his house, and learning from a neighbor where the key was kept, obtained it, entered the house, searched it and took away certain property including letters there found. Before the trial, defendant filed a petition praying the return of such property thus taken. The trial judge ordered the return of such property as was not desired to be used as evidence, but as to this property he denied defendant’s petition. Before any evidence was offered defendant again moved for the return of the property so taken, which motion was also refused and the papers taken were received in evidence over defendant’s objection. The conviction was reversed. Mr. Justice Day, who wrote the Adams Case, also wrote this case. Speaking for the court, he said:
“The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. * * *
“The accused, without awaiting his trial, made timely application to the court for an order for the return of these letters, as well as other property. This application was denied, the letters retained and put in evidence, after a further application at the beginning of the trial, both applications asserting the rights of the accused under the Fourth and Fifth Amendments to the Constitution. ’ If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.”
There has been some criticism of the Boyd Case by courts and writers who have regarded it as not in accord with a long line of cases in State courts of which the following will be found to be illustrative, although but a fragmentary list: Gindrat v. People, 138 Ill. 103 (27 N. E. 1085); State v. Flynn, 36 N. H. 64; Commonwealth v. Dana, 2 Metc. (Mass.) 329; State v. Griswold, 67 Conn. 290 (33 L. R. A. 227, 34 Atl. 1046); State v. Burroughs, 72 Me. 479; State v. Miller, 63 Kan. 62 (64 Pac. 1033); Williams v. State, 100 Ga. 511 (39 L. R. A. 269, 28 S. E. 624); Commonwealth v. Tibbetts, 157 Mass. 519 (32 N. E. 910). And after the decision in the Adams Case was handed down it was thought by some that the holding in the Boyd Case was modified thereby, notwithstanding it was expressly stated by Justice Day that:
“The case (Boyd Case) has been frequently cited by this court and we have no wish to detract from its authority.”
We are impressed, however, that a careful consideration of the Boyd Case in connection with the Adams Case and the decisions of the State courts, some of which are cited above, but many of which are not, taken in the light of what was said by the court in the Weeks Case, demonstrates that in the main the United States Supreme Court and the courts of last resort of the various States are in accord, and that the Boyd Case does not conflict, as its critics claim, with the holdings of the many State courts. The Adams Case and many State cases along the line of that case belong to one class of cases, while the Boyd and Weeks Cases belong to another class of cases. In the Adams and similar cases the question of the legality of the search and seizure was sought to be raised collaterally, not by direct proceedings. In these cases the objection was not made until the article or paper unlawfully seized was offered in evidence. It must be patent that upon the trial of a criminal case the court cannot pause in the trial when a bit of evidence, admissible under general rules, is offered, to engage in a collateral inquiry as to how the prosecution became possessed of such evidence. That would be the trial of a collateral matter, and as a general proposition the courts have so held, and where the evidence offered was competent, have not paused in the trial to determine the collateral issue of whether the evidence was legally secured or not. We say as a general proposition, because a few States are not in accord with this view. See State v. Slamon, 73 Vt. 212 (87 Am. St. Rep. 711, 50 Atl. 1097); Wright v. State, 9 Ga. App. 266 (70 S. E. 1126); State v. Height, 117 Iowa, 650 (59 L. R. A. 437, 91 N. W. 935); State v. Sheridan, 121 Iowa, 164 (96 N. W. 730), these cases holding that the question may be determined on the trial.
In the Boyd and Weeks Cases the question was not raised collaterally, but in both cases by a direct proceeding; in the Boyd Case by an affirmative order of the court requiring claimant to produce the invoice, which order was directly assailed in the review of the case in the Supreme Court, and which order was held to invade the claimant’s rights under the Federal Constitution; in the Weeks Case by a negative order refusing the return of the property taken by the unlawful search and seizure, and which order was directly assailed upon review in the Supreme Court, and which order was held by that court to have denied defendant his constitutional rights.
From this consideration of these cases it is obvious that the rule underlying them is that when defendant in a criminal case for the first time upon the trial objects to the admission in evidence of articles taken by unlawful search and seizure, and they are admissible under general rules governing the admissibility of proof, the court will not pause in the trial of the case to determine the collateral question of whether the prosecution became lawfully possessed of such articles; but that where it is made to appear before the trial that articles have been taken from the possession of the defendant in violation of his constitutional rights and by unlawful search and seizure and without any search warrant at all, that it then becomes the duty of the trial court to order the return to the defendant of the articles thus unlawfully taken. The rule is thus stated in 10 R. C. L. p. 933:
“The principle underlying the decisions admitting the evidence is that an objection to an offer of proof made on the trial of a cause raises no other question than that of the competency, relevancy and materiality of the evidence offered, and that consequently the court, on such an objection, cannot enter on the trial of a collateral issue as to the source from which the evidence was obtained. But since there is a right, there must of necessity be a remedy, and the remedy is to be found in the making of a timely application to the court for an order directing the return to the applicant of the papers unlawfully seized. On such an application, the question of the illegality of the seizure may be fully heard, and if the court erroneously refuses to order a return of the papers, and thereafter receives them in evidence against the applicant over his objection, it is an error for which a judgment of conviction must be reversed.”
Turning now to our own cases we find them in strict harmony ydth the rule announced. This court has held that the courts will not pause in the trial of a cause to open up a collateral inquiry of whether a wrong has been committed in obtaining information which a witness possesses. Cluett v. Rosenthal, 100 Mich. 193; People v. Campbell, 160 Mich. 108 (34 L. R. A. [N. S.] 58); People v. Aldorfer, 164 Mich. 676. But this court has also held upon an application made before trial for mandamus to set aside an order of the circuit court, permitting the police department to take possession of property of the citizen, pending investigation for crime and depriving the owner of its possession, that the order should be vacated and set aside, resulting in the return of the property thus unlawfully withheld: Newberry v. Carpenter, 107 Mich. 567 (31 L. R. A. 163).
In the instant case the evidence taken before the magistrate and returned to the circuit court conclusively established the invalidity of the search and seizure and the invasion of defendant’s constitutional rights. The circuit judge did not err in directing the return of the liquor to the defendant.
2. We shall consider the first and second assignments of error together as they involve but one question. The trial judge was of the opinion that the act under which the information was filed was superseded by a later one and for this reason quashed the information. Act No. 161, Pub. Acts 1917, under which this information was filed, was approved May 2, 1917. It will hereafter be called the “Damon Act.” Act No. 338, Pub. Acts 1917, was approved May 10, 1917. It will hereafter be called the “Wiley Act.” Both acts by their terms became effective on and after May 1, 1918.
We shall first consider the argument advanced on behalf of the people that the Wiley Act was passed to prohibit the dealing in intoxicating liquors, the business, except for the permitted purposes, while the Damon Act was passed to prohibit and prevent its private use. This is the foundation of the argument at the bar by the learned counsel for the people. It was forcefully presented and the people’s case largely rests upon its soundness. A reading of section 4, however, convinces us that it cannot be maintained. This section provides:
“Any person who, himself or by his clerk, agent or employee, shall violate any of the provisions of this act,” etc.
Clearly if the legislature by the Damon Act solely designed to prohibit and prevent the personal use of intoxicating liquors there would be no occasion to use the words clerk, agent or employee. The use of these words in the fourth section of the act, the penal section, eliminates the argument that the Damon Act was designed to cover and apply only to a field not contemplated by the Wiley Act.
The Damon Act simply prohibits, with a penalty for its violation, the bringing into, carrying, receiving or possessing of intoxicating liquors except for the permitted purposes, and by reference adopts applicable laws pertaining to search and seizure. It makes no attempt to provide for the lawful sale of liquors for medical, mechanical, chemical, scientific or sacramental purposes recognized in the constitutional amendment (Art. 16, § 11). Its absence of detail and definiteness might well have prompted the thoughtful legislator desiring to carry out the mandate of the constitutional amendment to insist upon a complete, comprehensive act, superseding it, and covering the entire field. While we may not inquire into the intent of the legislator we are bound to ascertain the legislative intent; and this we must determine by what was done by the legislature as an entity. If the subsequent act of the legislature operates to supersede the earlier act the latter act must be accepted as the latest and final declaration of the legislative will.
The Wiley Act is a comprehensive measure of 61 sections completely covering the field and expressly repealing all acts or parts of acts in conflict with its provisions. It shows careful thought in its preparation, a recognition of constitutional rights without detracting from its virility. It provides in detail and definiteness the manner of sale of liquors for medical, mechanical, chemical, scientific and sacramental purposes, both by wholesale and retail, and prohibits all others.
Repeals by implication are not favored in the law. But where the later act covers the whole subject, contains new provisions evidencing an intent that it shall supersede the former law or is repugnant to the earlier act it operates as a repeal. In Shannon v. People, 5 Mich. 85, the rule was quoted with the citation of a large number of authorities in the following language:
“That where a subsequent statute covers the whole ground occupied by an earlier statute, it repeals, by implication, the former statute, though there be no repugnance.”
In Breitung v. Lindauer, 37 Mich. 217, it was said by this court, speaking through Justice Marston:
“The rule is that the latter act operates to the extent of the repugnancy, as a repeal of the first, or, if the two acts are not in express terms repugnant, yet if the latter covers the whole subject of the first, and contains new provisions showing that it was intended as a substitute, it will operate as a repeal.”
In Attorney General v. Commissioner of Railroads, 117 Mich. 477, it was said:
“While repeals by implication are not favored in the law, yet it is a rule of construction followed by this court and other courts that a statute revising the whole subject of a former statute, and intended as a substitute, operates as a repeal of the former law, though it contains no words to that effect.”
Chief Justice Long writing for the court in Porter v. Edwards, 114 Mich. 640, said:
“The rule is well settled that a new statute covering the same ground as the former act supersedes it for all further cases, without the necessity of repealing words.”
In Graham v. Muskegon County Clerk, 116 Mich. 571, it was said by Mr. Justice Montgomery:
“That a later act which covers the whole subject repeals prior acts repugnant thereto is established doctrine.”
See, also, People v. Bussell, 59 Mich. 104; Feige v. Railroad Co., 62 Mich. 1; People v. Furman, 85 Mich. 110; Attorney General v. Parsell, 100 Mich. 170; Board of Sup’rs of Saginaw Co. v. Hubinger, 137 Mich. 72.
In the Wiley Act we have an act, carefully prepared, covering the field with minuteness of detail in many particulars, expressly repealing all former .acts inconsistent with its provisions, passed to put- into effect the mandate of the people declared in the constitutional amendment but recently adopted and fresh in the minds of the members of the legislature, dealing with the same subject-matter as the former act, that of intoxicating liquor, complete in itself, containing the latest expression of legislative will.
We are constrained to hold in view of the former decisions of this court that the learned circuit judge correctly held that it superseded the Damon Act.
3. Upon the argument it was insisted that by the so-called Reed amendment (section 5, Act of March 3, 1917, 39 U. S. Stat. at Large, p. 1069), congress had legislated upon the question of interstate com merce in intoxicating liquor, and that congress having occupied the field committed to it by the commerce clause of the Federal Constitution all legislation by the State upon the subject of interstate shipments of intoxicating liquor must fail. We do not find it necessary to consider this, question. Upon this record it is undisputed that defendant purchased this liquor within this State when and where its. sale and possession were lawful.
It follows that the judgment must be affirmed.
Bird, C. J., and Moore, Brooke, Stone, and Kuhn, JJ., concurred with Fellows, J. | [
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Moore, J.
This is a bill filed by the city of Adrian to restrain the Citizens Light & Power Company from establishing a higher rate than 45 cents per 1,000 pounds for steam used for heating purposes, and also for an accounting. The facts show that on July 1, 1917, the defendant company established a new rate of 75 cents per 1,000 pounds, and that this new rate has continued since, and is now in force. At this time coal was worth more than six dollars a ton. The franchise possessed by the defendant was granted August 5,1903, and extended for 30 years. The question is whether this franchise limits defendant to a 45-cent maximum charge on each 1,000 pounds, of steam irrespective of the price of coal, and this must be determined from the construction placed upon that part of section 6 of the franchise which reads as follows:
“It is hereby understood and agreed that the rates for heating herein established are relative to the cost of fuel at the present time, which is $2.80 per ton of run of mine of good bituminous coal containing 14,000 heat units per pound, and said Citizens Light and Power Co., its successors or assigns, shall establish new rates on July 1st of each year; such rates when so established to be relative to the contract price of fuel at the time of such change. It being understood that fuel at the present time represents 70% of the maximum rate for heating.
“The maximum rates to be charged under this franchise shall not exceed the following: For current, for power or light, 14 cents per M. Watts (K. and W.). For steam 45 cents per thousand pounds. For hot water, 18 cents per square foot of radiating surface per year. But the rates for heating shall vary according to the ratio, above specified.”
We quote from the brief of counsel for appellant:
“Plaintiff contends that this section fixes a maximum rate which may be charged for the three products of this plant — power, light and heat — during the life of the franchise, and that-the qualifying expressions as to price of fuel and ratio must be understood as providing a method of increasing or decreasing rates either up to or down from the maximum as the price of coal shall require.”
It is claimed that the highest rate which may be charged for steam is 45 cents per 1,000 pounds whatever may be the price of coal. We think when all the language we have quoted is read together that it will not bear the construction given to it by the appellant, but justifies the decree of the court below which dismissed the bill.
The decree is affirmed, with costs to the appellee.
Ostrander, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Bird, C. J., did not sit. | [
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Per Curiam.
The trial court granted defendants’ motion for summary disposition against plaintiffs on their claim for the equitable relief of rescission of a contract on the basis that there was another action pending between the same parties on the same claim. MCR 2.116(C)(6). We reverse.
The instant appeal has its genesis in an error committed by the circuit court in removing a case from the circuit court to the district court following a mediation evaluation. Originally, the parties entered into a contract for the sale of defendants’ hardware business to plaintiffs in 1982. Apparently, problems were encountered as plaintiffs stopped making payments on the contract approximately four months after taking possession of the business, resulting in defendants’ receiving a judgment for possession of the building in district court. While defendants were seeking possession in district court, they also filed a suit against plaintiffs in the circuit court requesting damages for breach of contract and seeking injunctive relief. Prior to service of process in that suit, plaintiffs filed their own suit against defendants and a third party seeking rescission of the contract and damages for fraud. Plaintiffs’ action was eventually consolidated with defendants’ action and the mat ter was set for mediation. The case was mediated in plaintiffs’ favor in the amount of $9,000. Because the mediation award was below the circuit court’s jurisdictional limit, the circuit court entered an order removing the case to the district court.
To further complicate matters, at some point following the removal order, plaintiffs’ original attorney was suspended from the practice of law, thus necessitating their retaining new counsel. Approximately twenty months later, in November, 1985, the district court granted a motion filed by defendants to strike plaintiffs’ claim for rescission of contract on the basis that the district court was without jurisdiction to grant equitable relief. However, plaintiffs were permitted to pursue a removal back to circuit court, which was ultimately denied as being untimely. Thereafter, plaintiffs brought a second action in the Oakland Circuit Court against the instant defendants only, seeking the same remedies they had sought in the first action, including rescission of contract. In March, 1986, the circuit court granted defendants’ motion for summary disposition on the basis that another action was pending between the parties involving the same claim; however, the summary disposition was without prejudice to plaintiffs’ filing another complaint to be assigned to the circuit judge who had ordered the original action removed to district court. As was permitted by the summary disposi tion order, plaintiffs filed a third action in Oakland Circuit Court, with the third complaint being virtually identical to the first two complaints, and again seeking the equitable relief of rescission of contract. This third complaint was assigned to the circuit judge who considered the first complaint and ordered it removed to district court. Defendants again moved for summary disposition on the basis that another action was pending between the parties and that motion was again granted. Plaintiffs now appeal from that grant of summary disposition in the third circuit court case and we reverse.
We begin by noting that the circuit court erred in ordering the case removed to district court in the first instance. Because there was a claim for equitable relief, over which the district court has no jurisdiction, it was clearly violative of the court rules to grant removal. MCR 4.003(B)(3); see also GCR 1963, 707.2. We also note that the preferred practice would have been for plaintiffs to seek immediate review of the removal order in this Court under the provisions of GCR 1963, 707.4, which was in effect at the time of the removal order. Unfortunately, the trial court did err in ordering the removal and plaintiffs did not seek immediate appellate review. Accordingly, we must deal with the case as it has been presented to us, despite the procedural irregularities involved.
The question we must decide is whether plaintiffs’ claims for legal remedies in the district court preclude plaintiffs from seeking equitable remedies in circuit court against some or all of the same parties for claims arising out of the same events. We conclude that they do not.
This Court, in Rutter v King, 57 Mich App 152, 157-158; 226 NW2d 79 (1974), noted that a party may commence separate actions in separate forums where the two actions seek different remedies:
Where plaintiff has alternate remedies, which are not inconsistent, the mere commencing of an action in a separate forum or resorting to one remedy is not a bar to commencing a different form of action. In such case there is no election until one of them is pursued to judgment. Humiston, Keeling & Co v Bridgman, 195 Mich 82, 86; 161 NW 852 (1917).
This Court also discussed the applicability of the rule where the prior action suffers from jurisdictional defects in Sovran Bank, NA v Parsons, 159 Mich App 408, 413; 407 NW2d 13 (1987):
Whether the pending first Michigan case would justify dismissal of the second Michigan case is less certain. No Michigan authority addresses the issue of applicability of the rule [MCR 2.116(C)(6)] where jurisdictional questions are present in the pending litigation. Other jurisdictions have held, as a general rule, that a first suit is not ground for abatement of a second where the court does not have jurisdiction of the parties. 1 Am Jur 2d, Abatement, Survival, and Revival, § 16. However, the reasonable rule is that the plea in abatement or motion should be sustained unless the first suit is wholly abortive on its face. Id., § 16, p 55, n 3.
The encyclopedia reference made by the Parsons Court, 1 Am Jur 2d, Abatement, Survival, and Revival, § 16, p 54, also discussed the effect of the lack of jurisdiction over the subject matter by the court before which the first action is pending:
In order that a pending action may be pleaded in abatement of one subsequently commenced, the court before which the first is pending must have jurisdiction of the subject matter, otherwise, the prior action will not operate to abate a second action in a proper court, even though it is for the same cause or relief and between the same parties.
We acknowledge that, since the district court does have jurisdiction over the legal remedies pursued in the first action, it is arguable that that first action is not "wholly abortive on its face” and, therefore, under the Parsons ruling, the subsequent action may not be maintained due to the pendency of the first action in district court. However, when the Parsons decision is read along with the encyclopedia’s discussion of the effect of subject-matter jurisdiction of the first court with respect to the second action and with the decision in Rutter, supra, we believe that the appropriate rule to apply is that a prior action in district court does not preclude the pursuit of a subsequent action in circuit court where the district court would not have jurisdiction over the action subsequently filed in circuit court. Specifically, a suit in district court seeking legal remedies does not preclude a party from maintaining a subsequent action in circuit court seeking equitable relief.
Under our decision in this case, plaintiffs may only maintain their action for equitable remedies, namely the rescission of contract, in the circuit court since the district court action does preclude the pursuit of legal remedies in the circuit court on the basis that the other action is pending and by the operation of MCR 2.116(C)(6). However, although the circuit court was correct in granting summary disposition under that court rule on the claims seeking legal remedies, we would recommend to the circuit court that considerations of judicial economy would indicate that it should remove the district court action back to circuit court and consolidate it with plaintiffs’ claim seeking equitable relief, on which we have ruled that the trial court erred in granting summary disposition, so that the matters may be litigated once instead of twice.
Reversed. The matter is remanded to the circuit court for further proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiffs may tax costs._
We are not entirely certain why the second circuit judge in granting summary disposition on the second complaint did so without prejudice to the filing of a third complaint to be assigned to the first circuit judge. If the second circuit judge’s concern was that any matter should be assigned to the original judge, it would seem to us that, instead of granting summary disposition on the second complaint, the second circuit judge should have ordered the case reassigned to the first circuit judge and allowed the first circuit judge to rule on the summary disposition motion. However, for whatever reason, that procedure was not employed.
Presumably this was not done because plaintiffs’ counsel had been suspended from the practice of law or, in light of the fact that his suspension apparently was for neglecting his clients’ business, he simply failed to do so in the instant case. Plaintiff’s counsel had apparently failed to properly attend to his other cases which resulted in the sanctions being imposed upon him by the greviance commission.
We would be less than candid if we did not acknowledge that our decision is influenced by the circuit court’s original error in removing the case to district court. That is, we might be more inclined to conclude that, where a viable action was originally filed in district court seeking legal remedies, that action not being "wholly abortive on its face,” a subsequent action in circuit court seeking equitable remedies is precluded. However, plaintiffs’ suit seeking legal remedies in the instant case is not in district court as a matter of plaintiffs’ choice, but as the result of an erroneous ruling by the circuit court in the first instance. The instant case certainly does not present a fact situation in which we should disagree with the decision in Butter, supra at 157, that seeking separate remedies in separate forums does hot constitute an election of remedies. | [
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Per Curiam.
Plaintiff appeals as of right from an order of the circuit court granting defendants’ motion for summary disposition on the ground that collateral estoppel banned plaintiff’s action. We affirm.
Plaintiff was employed by defendant bank as a bank teller over a period of two years. Plaintiff requested an unpaid leave of absence for personal reasons, which was denied by defendant Martin, a vice-president of the bank. Allegedly defendant Weir told plaintiff that defendant Martin had demanded her resignation. Plaintiff protested but was told that her employment with defendant bank had ended.
Plaintiff filed an application with the Michigan Employment Security Commission for unemployment compensation benefits, which was denied. This determination was upheld following a hearing before an mesc referee on a finding that plaintiff had voluntarily left her job. The referee was presented with conflicting factual representations by the parties, including a dispute over the alteration of plaintiff’s form requesting leave. The mesc board of review affirmed the referee’s decision and on rehearing affirmed its own decision. Plaintiff filed an appeal from the board of review’s decision, which was dismissed by the circuit court on procedural grounds.
Plaintiff then filed a civil suit against defendants alleging wrongful discharge, fraud and intentional infliction of emotional distress. The circuit court granted defendants’ motion for summary disposition on the basis that plaintiff’s claims were barred by collateral estoppel.
The doctrine of collateral estoppel applies to factual determinations made by an administrative agency where the determinations are adjudicatory in nature, a method of appeal is provided and it is clear that it was the legislative intent to make the determinations final in the absence of an appeal. Senior Accountants, Analysts & Appraisers Ass’n v Detroit, 399 Mich 449, 457-458; 249 NW2d 121 (1976).
Whether this doctrine should be applied to decisions of the mesc has resulted in differing opinions in this Court. We agree with those decisions which would hold that collateral estoppel may apply to decisions of the mesc.
This issue was first considered by this Court in Storey v Meijer, Inc, 160 Mich App 589; 408 NW2d 510 (1987). In Storey, the mesc found the plaintiff ineligible for unemployment benefits because his employment had been terminated for theft. The board of review affirmed the mesc’s determination and the circuit court affirmed the board of review’s decision. Plaintiff filed a separate wrongful termination action in circuit court. Defendant filed a motion for summary disposition, asserting that the mesc’s decision that the plaintiff had been terminated for cause collaterally estopped plaintiff from relitigating the same factual issue in a separate circuit court action. The trial court granted defendant’s motion. On appeal, this Court, applying Senior Accountants, affirmed.
Subsequently, a panel of this Court in Moody v Westin Renaissance Co, 162 Mich App 743; 413 NW2d 96 (1987), specifically disagreed with Storey, finding that § 11(b)(1) of the Employment Security Act, MCL 421.11(b)(1); MSA 17.511(b)(1), prohibits the use of mesc decisions in judicial proceedings unless the mesc is a party.
That interpretation of § 11(b)(1) was specifically rejected in Storey, supra, p 594. The Storey Court found that § 11(b)(1) prohibits the use of the mesc "determination” of ineligibility but not the mesc’s finding of fact as to why the plaintiff was discharged. The Moody panel found this distinction unpersuasive.
Moody relied on the following language in § 11 (b)(1):
Except as provided in this act, such information and determinations shall not be used in any action or proceeding before any court or administrative tribunal unless the commission is a party to or a complainant in the action or proceeding ....
In interpreting a portion of a statute, no one section or portion of the statute stands alone. The section must be read in context with the entire act so as to be in harmony with the whole of the statute, Arrowhead Development Co v Livingston Co Road Comm, 413 Mich 505, 516; 322 NW2d 702 (1982).
A review of the entire Employment Security Act indicates that § 11(b)(1) does not preclude the use of the mesc decision in the present action. Section 11 deals with various activities of the mesc in administering the act, including cooperation with relevant federal agencies and the collection and use of information. The section directs the commission to hold the information it receives as confidential and to restrict the availability of such information.
The section applies to the commission and restricts its use of information and determinations. It does not restrict the individual employee or employer from divulging information in its control. Furthermore, the section specifically prohibits the use of determinations. Within the Employment Security Act, the term "determination” is used to refer to conclusions by the commission regarding an employee’s status made outside of a contested hearing. See MCL 421.14, 421.32; MSA 17.514, 17.534.
However, in a collateral estoppel situation, a party seeks to use an mesc decision that has resulted from the actual litigation of a question. As noted in Storey, supra, p 593, the opportunity to litigate is shown where there has been a full evidentiary hearing before a referee, a review by the board and an appeal of right to the circuit court. When referring to the conclusions reached at these various stages, the act uses the terms "decision,” "findings of facts” and "order,” but not the term "determination.” MCL 421.33-421.36, 421.38; MSA 17.535-17.538, 17.540.
Finally, the act provides that any writing prepared, owned, used, in the possession of, or re tained by a referee or by the appeal board in the performance of their official function must be made available to the public in compliance with Michigan’s Freedom of Information Act. MCL 421.33(3), 421.36(3); MSA 17.535(3), 17.538(3). The Freedom of Information Act also provides that final orders, the decisions and the records of contested cases shall be made available to the public. MCL 15.241(l)(a); MSA 4.1801(H)(1)(a). This treatment of the decisions of the mesc referees and the appeal board directly contradicts the mandate of confidentiality imposed by § 11(b)(1), further indicating that the term "determinations” was not meant to include the mesc decision sought to be used here. See Polk v Yellow Freight System, Inc, 801 F2d 190, 194, n 6 (CA 6, 1986).
The Moody Court also noted that courts in other jurisdictions have held that unemployment compensation determinations do not act to bar by collateral estoppel subsequent civil actions. However, the courts in two of the cases cited in Moody recognized the availability of collateral estoppel but declined to apply the doctrine because of the circumstances of those cases. Hunt v OSR Chemicals, Inc, 85 AD2d 681; 445 NYS2d 499 (1981); Ferris v Hawkins, 135 Ariz 329; 660 P2d 1256 (Ariz App, 1983). To the extent that the holdings of other jurisdictions may be useful, we note that other courts have used the findings of unemployment compensation boards to estop the subsequent relitigation of issues. See Bernstein v Birch Wathen School, 71 AD2d 129; 421 NYS2d 574 (1979), afFd 51 NY2d 932; 434 NYS2d 994 (1980), where the determination that plaintiff had quit without good cause was found to be dispositive of plaintiff’s action for wrongful discharge; Pullar v Upjohn Health Care Services, Inc, 21 Ohio App 3d 288; 488 NE2d 486 (1984), where the determina tion of just cause for discharge precluded plaintiffs action for wrongful discharge and discrimination; Ryan v New York Telephone Co, 62 NY2d 494; 478 NYS2d 823 (1984), where a finding of misconduct by the board barred later civil actions for false arrest, malicious prosecution and wrongful discharge.
In Michigan, Senior Accountants makes it clear that administrative determinations may be used for purposes of collateral estoppel. Storey appropriately applied the Senior Accountants requirements to mesc decisions. On the basis of Storey, and for the reasons stated above, we hold that collateral estoppel may be applied in the present case. Therefore, we now consider whether the doctrine would bar this plaintiff’s action.
Collateral estoppel is applicable where the question of fact at issue has actually been litigated, where there is a valid and final judgment, and where there is mutuality of estoppel between the parties. Storey, supra, p 593.
The factual issue in direct dispute before the mesc was whether plaintiff voluntarily left her job. This same issue is central to plaintiff’s wrongful discharge claim in the circuit court that she was forced to resign. Therefore, the mesc’s decision that plaintiff voluntarily left her job resolved the issue of plaintiff’s wrongful discharge. As part of that decision, the mesc considered the same allegations of fraud raised in the circuit court. Furthermore, plaintiff’s claim of fraud and intentional infliction of emotional distress are based on her allegation that she was forced to resign, a claim rejected by the mesc.
The decision of the board is valid and final. MCL 421.34; MSA 17.536. The parties had a full opportunity to litigate the above issues before the mesc, including a full evidentiary hearing before a referee, a review by the board and an appeal as of right to the circuit court. To the extent that plaintiff challenges the findings of the mesc, that issue is not before this Court but should have been timely pursued as provided for under the Employment Security Act. Id.
There is mutuality of estoppel because the defendant employer is also bound by the mesc determination, as are the individual defendants as the agents of the employer. DePolo v Greig, 338 Mich 703; 62 NW2d 441 (1954).
We find that the trial court properly granted defendants’ motion for summary disposition on the ground that plaintiffs circuit court action was barred by the doctrine of collateral estoppel.
Affirmed. | [
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Bushnell, J.
Plaintiff Stanley S. Krause, an attorney authorized to practice in this State, brought an action in assumpsit in the common pleas court for the city of Detroit upon an oral agreement for fees with a count in quantum meruit, against defendants Ludwig Boraks and Lawrence I. Yaffa, individually and doing business as Boraks Realty Investment Company.
The principal defendant, Boraks, a licensed real-estate broker, had listed with him for sale at a cash price of $37,000, property in the city of Detroit, used and occupied by a Danish Lutheran Church. A cooperating broker, the Trasher-Thomas Company, was to receive 40% of the brokerage fee of 5% of the sales price, and Boraks was to have 60%. A prospective purchaser made 2 offers, one for cash and the other on terms, the cash offer being accepted by the owners. This purchaser, however, was unable to raise the necessary money and Boraks arranged a land contract transaction in which the purchase price was raised to $50,000, the down payment increased to $10,000, and the balance of $40,000 to be paid on land contract terms. It was proposed that in this manner the transaction could be consummated, provided the vendor’s interest in the land contract conld be held by the seller or sold for $25,000. Boraks sought to interest various persons in the purchase of this contract, and also attempted to form a syndicate for such purpose. While negotiations were progressing, Boraks talked to one Samuel Polozker, an attorney, in the presence of Krause, with regard to selling the vendor’s interest. Polozker testified that he said to Boraks during this 3-cornered conversation: “Now, what’s in it as a fee for Stanley Krause?” and Boraks replied: “Why, he will get half of what I get out of it. Whatever I get out of it he will get half.”
Later Krause succeeded in interesting 2 of his clients in purchasing the vendor’s interest, and a signed offer to purchase was prepared. The transaction was closed about 6 weeks later at the office of Boraks. The Danish Church as seller and the Sweet Home Baptist Church as purchaser were represented by individual counsel, and Krause represented his clients, the land-contract purchasers. A sales commission of $2,500 was divided between the 2 brokers on the 60-40 basis and, after the transaction was closed, a settlement with Krause was attempted through an offer by Boraks of $200, half of which was contributed by the other broker. Krause, claiming that $1,250 was due him, refused the offer and began an action for this amount.
After the trial of that cause in the common pleas court without a jury, the judge found for Krause in the sum of $850. Defendants appealed to the circuit court and plaintiff Krause filed a cross appeal. The matter was reviewed on the record and transcript of the testimony, resulting in a judgment of no cause for action in favor of Boraks.
On appeal here, the controlling question is whether the prohibitory effects of the statute of frauds and the brokers’ license law are applicable. (CL 1948, § 566.132 [Stat Ann 1953 Rev § 26.922]; CL 1948, § 451.201 et seq. [Stat Ann 1953 Cum Supp § 19.791 et seg.].)
The trial judge concluded that the transaction was “not an agreement for payment of a commission on the sale of real estate,” that plaintiff “was employed in another capacity entirely, and that was to secure somebody that would be able to produce money so that this deal could be consummated.”
Neither niceties of language nor fanciful designations can change the substance of the transaction. There can be no doubt about the proposition that the procurement for another, for compensation, of the sale of a vendor’s interest in a land contract is controlled by the so-called brokers’ licensing act. (PA 1919, No 306, as amended.) Among the provisions of this act (see citations, supra) are the following:
“Sec. 1. It shall be unlawful for any person, firm, partnership association, copartnership or corporation, whether operating under an assumed name or otherwise, from and after January first, 1920, to engage in the business or capacity, either directly or indirectly, of a real-estate broker or real-estate salesman within this State without first obtaining a license under the provisions of this act. * * *
“Sec. 3. One acting for a compensation or valuable consideration of [in?] buying or selling real estate of or for another, or offering for another to buy or sell or exchange or mortgage or appraise real estate, or to negotiate for the construction of buildings thereon, or leasing or renting or offering to rent real estate, or selling or offering for sale, or buying or offering to buy, or leasing or offering to lease, or negotiating the purchase or sale or exchange of a business, business opportunity, or the good will of an existing business for others, or one who, as owner or otherwise, engages in the sale of real estate as a principal vocation, except as herein specifically excepted, shall constitute the person, firm, partnership association, copartnership or corporation per forming, offering or attempting to perform any of the acts enumerated herein, a real-estate broker or a real-estate salesman -within the meaning of this act. The commission of a single act prohibited hereunder shall constitute a violation.”
Exemption from the provision of the act is provided by section 2 thereof and provides in part:
“Nor shall this act be construed to include in any way the services rendered by an attorney at law in the performance of his duties as such attorney at law.”
The trial judge in the common pleas court held that the statutes did not bar plaintiff’s action, and that “his employment was that of an attorney or in another capacity.” The circuit judge, on review, held that the trial court was in error in holding that the brokers’ licensing act did not apply to' the facts in the case.
In this law action, heard without a jury, this Court will not reverse on issues of fact unless the evidence clearly preponderates in the opposite direction. Nagy v. Balogh, 337 Mich 691; and Allen v. Currier Lumber Co., 337 Mich 696. However, the finding by the trial judge that plaintiff - was employed as an attorney is obviously erroneous on its face. No exact definition has been framed as to what constitutes the practice of law, and this is because of the numerous and varied tasks which the legal profession is called upon to perform in a complex society. Here, Krause occupied an attorney-client relationship with the purchasers of the vendor’s interest in the land contract. There is nothing to indicate a like relationship between Krause, and Boraks. Hnder no interpretation of the facts could Krause be said to have performed legal services for Boraks.
There is no doubt that the legal aspects of real-estate transactions may constitute a large portion of an average attorney’s practice, and thus are inseparably connected with the practice of law. But an attorney engaging solely in the function of obtaining a prospective purchaser for an interest in realty, in conjunction with a broker, is clearly invading another scope of activity which, in the absence of being licensed so to do, is prohibited by statute. That an attorney is well qualified to engage in such endeavor cannot be denied. However, the legislature has clearly intended that one engaging in that field of activity must be licensed. Plaintiff’s services were not within the exemption provision of the statute herein-before quoted. As between Krause and Boraks the claimed contract must, as a matter of law, be held void under the rules stated in Jaenicke v. Davidson, 290 Mich 298, where it is said:
“All contracts which are founded on an act prohibited by a statute under a penalty are void although not expressly declared to be so and neither law nor equity will enforce a contract made in violation of such a statute or one that is in violation of public policy.” (Syllabus.)
Krause relies upon the argument of an isolated transaction and cites Morris v. O’Neill, 239 Mich 663, as controlling. It is sufficient to point out that the Morris Case was decided in 1927, prior to the effect of the amendment to the brokers’ license statute which, in CL 1948, § 451.203 (Stat Ann 1953 Cum Supp § 19.793), says in section 3:
“The commission of a single act prohibited hereunder shall constitute a violation.”
The claimed oral agreement to pay a commission on the sale of real estate is void under the statute of frauds. CL 1948, § 566.132 (Stat Ann 1953 Rev §26.922) provides:
“In the following cases specified in this section, every agreement, contract and promise shall he void, unless such agreement, contract or promise, or some note or memorandum thereof be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized, that is to say: * * *
“5. Every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate.”
Where one who was instrumental in procuring a purchaser for certain real estate for a broker who had the listing, the Court, in denying recovery, said in Smith v. Starke, 196 Mich 311 (pp 313, 314):
“We have held, in construing the act in question, that contracts coming within its provisions are absolutely void. McGavock v. Ducharme, 192 Mich 98. Therefore, if the contract in question comes within the purview of this act, it is void and of no force or effect. The services to be performed and contemplated by the arrangement between the plaintiff and defendant were the services usually performed by a real-estate broker, those of procuring, or aiding in procuring, a purchaser of the Blowers farm; that plaintiff was not to perform all the functions of a dealer in real estate does not preclude from characterizing the services performed as those usually performed by a real-estate broker. Indeed the services to be performed by plaintiff were of the very essence of brokerage services, vis., procuring a purchaser of another’s property. Compensation to real-estate brokers is known, not only to the layman, but also to the law as ‘commission.’ The word ‘commission’ implies a compensation to a factor or other agent for services rendered in making a sale.”
See, also, Fleming v. James S. Holden Co., 200 Mich 519, and Renaud v. Moon, 227 Mich 547.
Plaintiff’s attempt to recover under a quantum meruit count is clearly precluded by what was said in Smith v. Starke, supra (p 315):
“But it is urged by the plaintiff that, even if the statute does render the contract void, he may recover upon the quantum meruit, upon the theory that performance takes the case out of the statute. This question is foreclosed by the recent case of Paul v. Graham, 193 Mich 447, where we had this statute under consideration and held that no recovery could be had upon the quantum meruit for services performed under an agreement that was within the provisions of this statute and therefore void.”
The rule in Smith v. Starke, supra, was supported in Mead v. Rehm, 256 Mich 488, as follows (p 490):
“A verbal agreement to pay the commission is rendered absolutely void by the statute, and there can be no recovery on quantum meruit, even though the service was rendered and accepted.”
See, also, Jaynes v. Petoskey, 309 Mich 32.
Other questions do not merit discussion because, as a matter of law, plaintiff is not entitled to recover' under any theory advanced by him.
The judgment of the circuit court is affirmed, with costs to defendants.
Butzel, O. J., and Carr, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Blair, J.
Plaintiff brought this suit to recover the amount paid by him to the First National Bank of Hills-dale in discharge of a promissory note for $200 given to the cashier of the bank, signed by Byron A. Nixon, George N. Smith, and A. B. Cummins. The money obtained by means of this note was received by Nixon, who, as to the other signers, was the maker of the note. At the time of making the note, Nixon delivered to Smith and Cummins 50 shares of stock of a corporation of which Smith was president and Cummins was secretary and treasurer, and the precise character of this transfer presents the important question of fact in the case and determines the legal rights of the parties. The plaintiff testified that the stock was deposited with Cummins and himself as a collateral security merely, without any indorsement of the certificate or written assignment. The defendant’s testimony is not entirely consistent. Both parties agree that the stock, at the time of giving the note, was worth 75 cents on the dollar. Defendant says that he required $200 to meet an obligation, and, for the purpose of raising the money, offered his stock for sale and had received an offer of $300. Cummins and Smith, who owned the majority of the stock of the company, learning of this,, and because of the influence such sale might have upon the value of their stock, requested defendant not to sell and— ¡
“Mr. Smith says, I will make arrangements at the First National Bank to give note for 90 days and we will take your stock and give you 90 days to redeem it, if you prefer to, or if they should keep the stock and dispose of it, they would give me a share of the difference, whatever it sold for.”
That upon this understanding the note was signed, and thereupon Mr. Smith drew up a paper stating that, ‘ ‘ if this note was not paid in 90 days or at maturity of note, Geo. N. Smith should hold the stock as his without any further ceremony.” This paper was signed by Nixon and delivered with the certificate of stock to Smith.
‘‘ I only needed at that time $200. .It is a fact that I didn’t want to sacrifice this stock and sell it for $300 when the market value of it was $375. I didn’t think I was going to sacrifice it. . I supposed they were men of their word and would pay me the difference when they transferred or sold it. I gave this stock to Mr. Smith to -secure him for signing this note. I let him have it for $200.”
The note was not paid when due, but was renewed; defendant testifying that he signed it again because—
“They told me they would rather not appear to be makers of the note, but were willing to secure it, and then the note was renewed. It was for an extension to them for an accommodation. * * *
“ Q. In other words, you just handed over this $100, or $175, in this certificate and never said one word about it?
“ A. Well, I didn’t suppose they had sold the stock yet, I took their word that when they did sell it—
‘ ‘ Q. Oh, they were to sell this stock, was that it ?
“ A. Well, if they did sell it, they was going to divide with me whatever they got for it — the difference between the $200 and what they got. * * * I supposed they would do as they agreed to do. * * *
“ Q. Mr. Smith was to take this stock and it was to be his in case you didn’t pay it in a certain time ?
“A. In case I didn’t pay it in 90 days, it was to become his by written paper.
“ Q. Well, now on top of that, what did they say about selling the stock and dividing with you ?
“A. They said if I would turn it over to them that they would pay me the difference when they made a sale of it.”
Defendant’s counsel claimed that the transaction, as disclosed by defendant’s proofs, was a conditional sale, and the court properly submitted to the jury the question • whether there was a conditional sale of the stock to plain tiff, as claimed by defendant, or a pledge thereof, as claimed by plaintiff. Buffington v. Ulen, 7 Bush (Ky.), 231; Gurney v. Collins, 64 Mich. 458; Abbott v. Gruner, 121 Mich. 140.
It is claimed, however, that the defense of a conditional sale was not open under the notice annexed to the plea, which notice, it is alleged, is really a notice of recoupment. The notice was filed with the plea in justice’s court where the case was first tried and contains, in substance, a statement of the facts upon which defendant relied in the circuit court. In view of the liberal construction applied to pleadings in justice’s court, and the fact that it fairly apprised the plaintiff of the facts to be relied on, we think the circuit judge did' not err in holding the notice sufficient to authorize the defense relied upon.
Plaintiff assigns error upon'the refusal of the court to give his requests to charge from the second to the eighth, inclusive. These requests, so far as proper to be given, were either covered or obviated by the following charge, which was certainly as favorable as plaintiff was entitled to, viz.:
“Then, gentlemen, you are instructed that if you find from the evidence in this case that this Hillsdale Manufacturing stock was deposited with Mr. Smith as collateral security merely, and that the title to it remained in the defendant, Mr. Nixon, then the plaintiff is entitled to recover in this case.
“ I do not think under the law in this case, if you find this. to be deposited merely as security, that Mr. Smith was under any obligation to foreclose that security or to realize on the stock or take any steps toward converting it into cash or its equivalent. And if you find this to be the situation — that is, if you find that Mr. Smith’s story and his claim of this transaction is the correct one — then you will find for the plaintiff in the sum of whatever you find this claim amounts to, and in determining that amount, gentlemen, you would figure interest on the amount of this second note when it matured at the bank at 7 per cent, straightaway from that time until this, and that would be the amount that the plaintiff would be entitled to recover.
“ On the other hand, gentlemen, you are instructed that if Mr. Smith received this stock according to the claim of Mr. Nixon — that is, that the stock, the title to the stock passed to Mr. Smith with the privilege to Mr. Nixon to pay the note within 90 days and then have the stock back, and Mr. Nixon failed to pay this note, and it was then to become the property of Mr. Smith, and the stock was not left with Mr. Smith as security merely — then the plaintiff cannot recover in this case.
“To state it differently, if you find that Mr. Smith received this stock as a sale to him on condition that the defendant pay this note within a given time and if he (defendant) failed so to do that the stock became that of Mr. Smith, and that Mr. Smith and Mr. Nixon both understood that this was the arrangement, then the plaintiff could not recover.” '
Plaintiff further assigns error upon the giving of the following instruction to the jury:
“ There has been some claim here in the evidence on the part of the defendant that Mr. Smith was to take this stock under the circumstances detailed by the defendant, and, if the defendant failed to pay this debt, then the stock should become Mr. Smith’s, and Mr. Smith should have the right to sell it and take his pay out of it and return the balance, if any, to Mr. Nixon. If you find that this was the arrangement that was made, then it became Mr. Smith’s duty, acting as a reasonably cautious and prudent business man would under like circumstances, to sell this stock within a reasonable time and so apply the proceeds on this note and give the balance, if any, to Mr. Nixon. And if under such an arrangement Mr. Smith failed to realize on the stock by his own fault and negligence — that is, he not exercising that care and caution that would be exercised by the ordinarily careful and prudent business man under like circumstances — then he cannot recover in this action.”
We think this assignment is well founded. The arrangement, as stated by the defendant, did not contemplate any obligation on the part of the plaintiff to sell the stock. He was at liberty to hold it, if he saw fit. It was only in the event that he did sell it that he was to divide with the defendant. This arrangement was hot part of the written agreement, and it is a fair inference from defendant’s testimony that he did not rely upon it as a binding obligation, but merely as a moral obligation. If this arrangement were a part of the legal agreement, it would invalidate defendant’s claim of a conditional sale.
In view of a new trial, we think it proper to suggest that testimony of other alleged fraudulent dealings of the plaintiff not connected with this transaction should not be received in evidence. There are no other assignments of error which require discussion.
For the error above referred to, the judgment is reversed.
Carpenter, O. J., and McAlvay, Grant, and Moore, JJ., concurred. | [
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Bushnell, J.
This is an original proceeding brought in this Court by petitioners Lloyd C. Fay and John W. Martin, who are, respectively, the supervisor of records for the division of pardons, paroles and probation of the department of corrections and the record clerk for the State prison of southern Michigan at Jackson. They sought a writ of prohibition against Honorable W. McKay Skillman, Judge of the Recorder’s Court of the city of Detroit. The attorney general subsequently intervened as plaintiff and filed an amended petition in which he sought both writs of prohibition and mandamus. George Wruble, alias Frederick Stoysin, was joined as a defendant.
The parties disagree as to the questions involved. The defendant, Judge Skillman, raises 14 questions in the brief filed by his counsel, all of which may be summed up in the statement that he primarily attacks the remedies sought to .be invoked by the at torney general and questions the propriety of the procedure. Defendant Wruble contends that the action taken by the defendant judge was proper and valid. No brief has been filed by the petitioners nor is one required because the attorney general has stepped into their place, and contends that the action of the judge of the recorder’s court is a usurpation of the executive power of clemency and that writs of mandamus and prohibition are appropriate to correct and prevent such usurpation’ of authority.
Wruble, who was characterized in an opinion filed by the trial judge on January 11, 1945, as an experienced holdup man, who had served time in Ohio on robbery charges, and was wanted in other cities on other charges, together with 2 other men identified as Jules Doretti and Max Miaus, on November 25, 1933, held up and robbed a handbook located in the city of Detroit. During the holdup, one Dr. Julius Harris, a patron of this handbook, was shot and killed while using a telephone. He was shot by Miaus who suspected him of calling the police. Wruble and Doretti were arrested shortly thereafter and placed on trial, and both were found guilty under conditions hereafter related. Miaus was subsequently apprehended in California, brought back for trial, found guilty by a jury of murder in the first degree, and sentenced to life imprisonment.
The verdict in the Wruble case, returned on February 24, 1934, as indicated on the file cover, was “guilty murder 1st degree.” As recorded in the short book and the journal the verdict reads: “Guilty as charged.” Wruble and Doretti were sentenced on March 5, 1934, to life imprisonment, and the journal entry of such sentences bears the caption: “Heretofore convicted of murder in the first degree.”
The mittimus indicates that after a plea of not guilty and a full hearing, Wruble was convicted of having committed the crime of “murder—1st de gree.” Wruble’s subsequent motion for a new trial filed on March 24, 1934, which did not challenge the validity of the verdict, was denied. On January 11, 1945, a motion by Doretti for leave to file a delayed motion for new trial, predicated on the claim that the verdict, judgment and sentence were contrary to law and the great weight of evidence, was denied. In the opinion filed at the time the trial judge noted that Doretti was charged with the crime of murder and was found guilty by the jury for the crime of murder in the first degree on February 24, 1934.
About 14 years after the verdict, Wruble, on April .9, 1948, filed a motion for leave to file a delayed motion for a new trial, on the ground that the jury’s verdict on February 24, 1934, of “guilty as charged” was invalid for failure to fix the degree of the crime. This motion was heard in open court and denied, with the observation by the court that the file in the cause shows as follows:
“It shows that the proceedings were had before this Court and the verdict of the jury was ‘guilty of Murder in the First Degree.’ Now, of course, the short book is made up from the file and the J ournal is made up from the short book, that is the usual practice, isn’t it ?”
The assistant prosecutor agreed with this statement and added the observation that:
“The original file shows that the clerk at that time indicated ‘guilty of Murder in the First Degree’ and from that writing, which is the only writing made by the clerk, the Journal and the short book are completed, and in this case it is perfectly obvious that they were incorrectly copied from the original file and, therefore, it is merely a clerical error in the Journal and the short book but isn’t any type of an error that would in any way affect the trial or the ■verdict rendered by the jury.”
After further discussion, the assistant prosecutor-moved :
“That an order of nunc pro tunc be entered correcting the Journal and short book in this case as presented by this file No. A-7758 as to the incorrect copying of the original record regarding GeorgeWruble, wherein the original file shows that the jury returned a verdict of guilty of murder in the first degree and that the short book and Journal were-incorrectly copied and read ‘guilty as charged’ as; being the verdict of the jury and I ask that the short book and Journal be corrected to read that the jury-brought in a verdict of Guilty of Murder in the First Degree.”
This motion was granted over the objection of defendant’s attorney. About 2 years later, on March 1, 1950, new counsel for Wruble filed motions described in the brief of the attorney general as follows:
“(1) A motion (Exhibit 14) to set aside the order-of April 13, 1948, on the ground, among others, that it changed the actual verdict of the jury, contrary to-the ‘official, legal and unimpeachable’ entries in short, book and Journal; and (2) a motion (Exhibit 15)' for leave to file a delayed motion for new trial, on the ground that the jury had returned a void, general verdict of ‘guilty as charged.’ This latter motion was based upon the court’s Journal and short book as well as upon the affidavits of jurors, which, however, are presently unavailable, though they were probably filed.”
These motions were not heard until December 5, 1950, when certain procedural steps were taken. We quote the summary made by the attorney general in his brief as follows:
“(a) The respondent judge granted the motion of defendant Wruble to vacate the order of April 13, 1948, thus restoring the short book and Journal en tries recording the jury’s verdict to he ‘guilty as charged;’ * * *
“(d) he immediately permitted Wruhle to withdraw his former plea of not guilty and, without any factual showing whatsoever, accepted defendant’s plea of guilty of murder in the second degree; and, finally, having accepted such plea,
“(e) the respondent judge at once sentenced Wruble to serve 15 to 18 years in State prison, said sentence to be entered nunc pro tunc as of March 5,1934, the date of the original mandatory sentence to prison for life as punishment for first-degree murder committed in perpetration of robbery armed.”
Formal orders were entered the same day and on the following day a mittimus issued. On April 8 and May 6, 1953, counsel for Wruble filed (and there are still pending before the defendant judge) as stated by the attorney general:
“Three motions based on the claim that on the 5th ■day of December, 1950, the trial court sentenced defendant to a prison term of 15 to 18 years commencing March 5, 1934; that said maximum term has been completed by defendant and has expired, yet Wruhle ‘has not been discharged by the prison authorities, the parole board or the governor of the State of Michigan.’ ”
The State, through the prosecuting attorney, filed objection to the first of these motions and stated:
“And it was also contended (Exhibit 25) that ‘the defendant’s claim that he has been imprisoned for a longer period than the maximum statutory term is not well founded,’ citing In re Doelle, 323 Mich 241; In re DeMeerleer, 323 Mich 287.”
Why did the original petitioners, Fay and Martin, enter the ease and why are their contentions not answered?
The explanation is that on May 7, 1953, the petitioners were served with a subpoena duces tecum, commanding them to appear before the defendant judge and give evidence in the case of People v. Wruble, on behalf of the defendant, and to bring with them the prison and parole files of defendant Wruble and Clifford LaPrance, Robert Swem, Elmer Dillon, Charles Kelly, Albert Viggers and Albert Powell.
The names just given are of persons who, after being sentenced to life imprisonment, were granted new trials and pleas accepted for lesser offenses, with sentences thereafter imposed, generally running for no more than the time already served on the life sentence. None of these cases has any connection whatever with that of Wruble save in the treatment of the situation by various trial judges and the parole of the individuals concerned with the knowledge and consent of the sentencing judge or his successor in office prior to decision of this Court in In re Doelle, 323 Mich 241; and In re DeMeerleer, 323 Mich 287, certiorari denied, DeMeerleer v. Michigan, 336 US 946 (69 S Ct 810, 93 L ed 1102).
After the original petition was filed in this Court, we issued an order to show cause why a writ of prohibition should not issue and stayed the operation of the subpoenas duces tecum during the pendency of the prohibition proceedings.
Decision in this case does not require a seriatim consideration of the questions stated in the briefs of the respective parties, because the controlling one is whether the action of the defendant judge was in effect a judicial invasion of the power of clemency of the executive, rather than the performance of a judicial function. In short, the essence of the issue presented is the true substance of the events Avhich transpired since the original conviction and sentence. The procedure used or the form of proceedings employed to accomplish the results obtained have little or no bearing on the matter, there being no specific question raised of violation of due process of law. The crux of the matter is the validity of the verdict originally rendered in the Wruble trial.
The journal of the recorder’s court is the official record of the proceedings of that court under the mandate of the statute. See CL 1948, § 726.3 (Stat Ann § 27.3553). The journal entry reads:
“The jury heretofore impaneled in this cause comes into court again, and in the presence of the defendants, retires to consult further upon their verdict, and being absent for a time, return into court, and having been inquired of as to their verdict, say upon their oaths aforesaid in the presence of the defendants that they find said defendants guilty as charged (Upon the request of counsel for the defense the jury is polled).
“It is hereby ordered by the court that said defendants be referred to the probation department until the fifth (5th) day of March, 1934.
“Read, Corrected And Signed In Open Court.”
The information filed against Wruble charged “murder” without specifying the degree, and the only intimation that first degree murder may have been charged is the statutory reference at the foot of the information, which reads: “See 316 MPC 1931.”
That a general verdict is invalid where the single count of murder is laid in the information is discussed in People v. Martin, 316 Mich 669, in which the Court referred to the statute which requires a determination by the jury of the degree of murder. (Section 318 of the penal code, as amended by PA 1947, No 295, being CL 1948, § 750.318 [Stat Ann 1953 Cum Supp § 28.550].) The situation here is analogous to that in People v. Simon, 324 Mich 450, where a conviction was reversed and the cause re manded for a new trial, this Court saying (pp 457, 458):
“However, the question, going to the validity of the verdict, is before us on the record and we therefore dispose of it. Mitchell v. Reolds Farms Co., 255 Mich 240. In People v. Little, supra (305 Mich 482), we said that the statute requiring the verdict of a jury in a criminal case to be ‘accepted and recorded by the court’ (CL 1929, §17130 [Stat Ann § 28.855]) was ‘clearly designed to prevent’ ‘possible irregularities.’ The instant case is an illustration. The journal entry of the verdict states that ‘the jury * * * find the said respondents * * * guilty as charged (murder first degree) in manner and form as the said people have in their information in this cause charged.’ The information charged murder without specifying the degree. Did the jury find the defendant guilty of murder in the first degree or ‘guilty as charged’? From the record we cannot tell. If the latter, then the jury failed of its statutory duty to ascertain the degree (CL 1929, § 16710) and the verdict would be fatally defective. People v. Clark, 155 Mich 647. Thus is demonstrated the wisdom of the statutory requirement that the verdict shall be accepted by the court.”
The defendant judge, in setting aside in 1950 the nunc pro tunc order of 1948, said:
“For me to say that I recall what the language of the foreman was, of course, would be for me to state a falsehood. I mean I can’t honestly say that I remember that the jury said ‘guilty of murder in the first degree.’ I believe that is what they said. I state that because I think I knew better than to take such a verdict of ‘guilty as charged.’ I knew the law then probably better than I do now but that conclusion that I would arrive at would be based merely upon general practice, so for me to say that was the verdict of the jury through my own independent recollection would be asking one to do the impossible. I couldn’t say that I recall this case definitely. I mean the verdict, because that would be almost an impossibility. We have the situation here where the Journal of the court and the short-book of the court both reflect the contention of the defendant that the verdict of the jury was ‘guilty as charged.’ That is, it appears in the Journal of the court, while the memorandum, which is the file, indicates that the verdict was ‘guilty of murder in the first degree.’ Based on the showing which was made a couple of years ago, the court entered an order nunc pro tunc amending the Journal and the short book to comply with the, or to coincide rather, with the entry on the file, without the taking of any testimony and upon the theory that the best evidence would probably be on the file, although that is contrary to the decisions of the Supreme Court in which they state that the court speaks only through its Journal. I have given this a great deal of thought and have very reluctantly arrived at the conclusion that it would be questionable whether the order of the court amending the Journal would stand in an appeal in the absence of any proof to the contrary, I mean any positive proof, and obviously when we search the entire record there is no definite proof for the court and there was no definite proof when the order was entered to the effect that that was the verdict. As I said, I am satisfied in my own mind and I am morally certain, based upon practice and custom that the verdict was one of guilty of murder in the first degree but to say that as a fact would be asking the court to say the impossible. So for that reason— As I say, I have considered this thing for a long time —For that reason, I have arrived at the conclusion that your motion to set aside the order heretofore entered amending the Journal and the short book is well taken and the court accordingly grants such ■motion setting aside the order.”
The issue in the instant case therefore is the authority of the trial judge in 1950 to vacate corrections which he claims he erroneously made in 1948, and in granting Wruble a new trial.
That a trial judge has inherent power to grant leave to file a delayed motion for a new trial in a case that was heard before him and accept a subsequent plea and pronounce sentence cannot be disputed. This is an inherent judicial function, the exercise of which rests within the sound judicial discretion of a trial judge to so grant when justice requires. This Court has not, and will not, infringe upon this time-honored and necessary judicial prerogative, except for an abuse of judicial discretion.
It is argued by the people that the trial judge’s order and sentence of December 5, 1950, were null and void under the authority of People v. Fox, 312 Mich 577 (168 ALR 703), and People v. Freleigh, 334 Mich 306. In the Fox Case the trial judge attempted, after commitment, to modify a validly imposed sentence of life imprisonment. In that instance this Court said (pp 581, 582):
“To hold with defendant under the circumstances of this case that the court has power to amend a sentence after the prisoner has served a part of it would infringe upon the exclusive power of the governor under the Constitution to commute sentence.”
The Freleigh Case involved a petition to review a partially-executed valid sentence. In sustaining the trial judge’s order denying a review of the sentence under the provisions of PA 1951, No 159 (CLS 1952, § 769.14 [Stat Ann 1953 Cum Supp § 28.1085 (1)]), the Court held the amendatory act unconstitutional as an infringement upon the executive’s exclusive power of pardon and commutation of sentence, citing the above quotation from the Fox Case. These cases are distinguishable from the instant case which involves a claimed invalid and void verdict ab initio. In In re Wall, 330 Mich 430, which had to do with an excessive sentence, this Court said, in sustaining the order setting aside the sentence, that the trial court must take into consideration the amount of time a defendant has served under an unauthorized sentence in subsequently imposing a sentence authorized by statute.
The companion cases of In re Doelle, supra, and In re DeMeerleer, supra, which are said by the attorney general to be controlling of the situation here, are analyzed in the Wall Case, supra, as follows (pp 433, 434):
“In the Doelle Case the petitioner was tried and convicted under an information charging, in separate counts, breaking and entering in the nighttime with intent to commit larceny and larceny in a store. The jury returned a verdict of guilty as charged, and sentence of not less than 7-1/2 nor more than 15 years was imposed for the offense of breaking and entering in the nighttime, without reference to the other count. Subsequently the sentence was set aside, a new trial was granted, and Doelle was permitted to plead guilty to the offense of larceny from a store. The plea was accepted and sentence was imposed. Thereafter he challenged the validity of the sentence on the ground that he had served under the prior sentence longer than the maximum term (4 years) prescribed for the lesser offense. It will be noted that the sentence which Doelle sought to avoid was imposed following a conviction after the original sentence had been vacated. In determining the matter adversely to the petitioner’s claim this Court called attention in its opinion to the fact that the matter of the punishment to be imposed following conviction of a crime is governed by applicable statutes. In this connection People v. Harwood, 286 Mich 96, was cited, and it was said:
“ ‘The length of imprisonment for a specific felony is a matter for legislative determination and is not subject to judicial supervision unless the sentence imposed violates the provisions of the statutes.’
“In the DeMeerleer Case the situation was similar, and the holding in the Doelle Case was expressly followed. DeMeerleer’s conviction of first-degree murder and sentence to life imprisonment were set aside, and on a new trial he was convicted of manslaughter. The sentence imposed was based on the second conviction, and this Court sustained it accordingly.”
In the Doelle Case the majority of the Court was of the opinion that the matter of credit for time served was for the legislature to determine, and not the Court. The majority was, nevertheless, impressed by the authorities cited by Mr. Justice Butzel, and the reference in the annotations in 9 ALR 958, 959, where it appeared that in Iowa the decisions are based upon a statute (Iowa Code 1946, §'793.26) which provides for such deduction.
Mr. Justice Boyles, in concurring with the majority and with whom Mr. Justice North and Mr. Justice Dethmers agreed, said (pp 249, 250):
“I concur in the conclusion that it is within the discretion of a sentencing court to decide whether the time served by the defendant under a previous void conviction and sentence for a different offense should be taken into consideration in determining what sentence should be imposed after a subsequent plea of guilty to a different offense. The only present requirement as to the length of time to be served is that it must conform to the statutory limits. But I do not agree that this Court should suggest legislation which would make it mandatory upon a sentencing court to reduce a sentence by the length of time already served under a void conviction and previous sentence for a different offense. Mr. Justice Butzel suggests that ‘possibly’ the criminal code should be amended to that effect.
“We have often said that the desirability or the propriety of legislation is not for the Court. We should not depart from that rule.”
The Court said in its majority opinion in the Doelle Case (p 249):
“In the last analysis, the law is not vindictive, and possibly the criminal code should he amended as was done in Iowa, so as to credit a prisoner on a new sentence with the time he has served under a void sentence. This also would bring uniformity in the practice. This, however, is a matter for the legislature, not for us.”
After decisions in the Doelle and DeMeerleer Cases, the legislature enacted PA 1954, No 205 (CL 1948, § 769.11a [Stat Ann 1954 Cum Supp § 28.1083(1)]), which reads:
“Whenever any person has been heretofore or hereafter convicted of any crime within this State and has served any time upon a void sentence, the trial court, in imposing sentence upon conviction or acceptance of a plea of guilty based upon facts arising out of the earlier void conviction, may in imposing the sentence specifically grant or allow the defendant credit against and by reduction of the statutory maximum by the time already served by such defendant on the sentence imposed for the prior erroneous conviction. Failure of the corrections commission to carry out the terms of said sentence shall be cause for the issuance of a writ of habeas corpus to have the prisoner brought before the court for the taking of such further action as the court may again determine.”
This expression of legislative intent as thus stated should he given full import. By its language this enactment was made retroactive. It applies to convictions and sentences “heretofore” served within the State and reposes discretion in the trial court to grant credit for time served under a prior erroneous conviction.' This statute was not in effect at the time that Judge Skillman credited Wruble in 1950 with the time previously served on the void sentence of 1934. He was nevertheless following the suggestion of the Court in the Doelle Case and anticipated the decision in the Wall Case and the action of the legislature. That being the fact, it must be held that the trial judge acted properly in considering the time spent by Wruble in prison under the void sentence.
For further light on this subject, we refer to the recently decided case of Lewis v. Commonwealth, 329 Mass 445 (108 NE2d 922, 35 ALR2d 1277). See, also, annotation on the:
“Right to credit for time served under erroneous or void sentence or invalid judgment of conviction necessitating new trial.” 35 ALR2d 1283, superseding the annotation in 9 ALR 958.
After a consideration of the facts and circumstances of the instant case and the chain of events relating thereto, we are constrained to hold that the trial judge’s action was in the performance of a well-recognized judicial function and did not infringe upon or invade the executive power of clemency.
An order will enter quashing the subpoenas duces tecum and denying further relief sought under the writs.
Butzel, C. J., and Carr, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred.
Kelly, J., did not sit.
Michigan penal code, PA 1931, No 328, § 316 (CL 1948, § 750.316 [Stat Ann § 28.548] ).—Reporter.
CL 1948, § 763.2.—Reporter.
See CL 1948, § 750.318, supra.—Reporter.
See Const 1908, art 6, § 9.—Reporter. | [
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] |
Moore, J.
This action was brought for the recovery of damages sustained by the plaintiff by the burning of a barn and other property belonging to him, by fire which passed from the premises of the defendant to those of the plaintiff. The plaintiff recovered a verdict and judgment. The case is brought here by writ of error.
It was the claim of plaintiff that defendant, without taking any precautions to control the fire, set one out on the premises adjoining to his at a time when it was not reasonably prudent to do so, and negligently permitted it to escape to the premises of the plaintiff. The defendant claims that the damage was occasioned by the springing “up suddenly of a strong wind, and for that reason he is not liable. Each party gave testimony tending to support his theory of the case.
Error is assigned because the judge did not give defendant’s second and third requests to charge. These requests referred to the subject of defendant’s negligence. They were not correct statements of the law. The judge charged the jury:
“ Taking up the question of negligence it is said to be a failure on the part of a person to observe, for the protection of another’s interest, such care and precaution and vigilance as the circumstances justly demand, and the want of which causes the injury. And so it was the duty of Mr. Bainbridge, while setting fire and burning rubbish on his own premises, to exercise the usual precaution which a prudent man, under like circumstances, having a knowledge of the facts as they existed, and knowing the danger, would and should exercise and use. Now that is a question of fact for the jury. In passing upon that you are to take into consideration all the facts and circumstances proven, the place where the fires were set, the extent of the fires, the nature of the material which the fires were set in, and which they were liable to reach, the condition and force of the wind, the proximity of the premises of his neighbors, and of the buildings of his neighbors, and of the combustible material around them; all those are questions for you. Whether or not it was careless under the circumstances to set this fire and to allow it to escape as it did, is a question which the court cannot decide, and which the jury are called upon to decide. The burden of proof in this case upon those issues is upon the plaintiff. In order to recover the plaintiff must satisfy you by a preponderance of evidence that this fire was negligently allowed to escape from the premises of Mr. Bainbridge to the premises of the plaintiff, and must satisfy you by a preponderance of evidence, if there was negligence, and if you come to that question, what damages were suffered.”
This charge properly presented that phase of the case. See Richter v. Harper, 95 Mich. 221, and cases cited; Bolton v. Calkins, 102 Mich. 69; Brown v. Brooks, 85 Wis. 290 (21 L. R. A. 255).
Error is assigned because the court doubled the damages found by the jury, counsel insisting this was a matter of discretion, and as the defendant intended no barm, the judge should not have doubled the damages. Section. 11653, 3 Comp. Laws, reads:
“Every person who shall willfully or negligently set fire to any woods, prairies, or grounds not his own property, or shall willfully or negligently permit any fire to pass from his own woods, prairies, or grounds, to the injury or destruction of the property of any other person, «ball be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding one year, or both, in the discretion of the court; and shall also be liable to the party injured in double the amount of damages sustained.”
This statute was construed in Rosevelt v. Hanold, 65 Mich. 414, and a similar statute in Swift v. Applebone, 23 Mich. 252; Trompen v. Verhage, 54 Mich. 304; and Fye v. Chapin, 121 Mich. 675. These opinions justify the course taken by the circuit judge.
It is said the law is unconstitutional because it takes the property of one person and gives it to another' without any compensation. It is a sufficient answer to this argument to say that the statute recognizes that where one has been damaged by the negligent act of another, compensation should follow. It is said the statute inflicts unusual punishment, and for that reason is in violation of the Constitution. The legislature recognized for a long time that much mischief is done by the wrongful or negligent use of fire. It is part of the history of the State that vast portions of it have been devastated by forest fires, resulting in the destruction of much valuable property, and the loss of many lives. It cannot be said that to one who makes a negligent use of this dangerous element, the statute inflicts an unusual punishment. The statute has been in existence for 60 years. It has frequently been before the courts. We see no adequate reason now for holding it unconstitutional.
It is said the statute is repealed by Act No. 249, Pub. Acts 1903. That act is entitled:
“An act to provide for the preservation of the forests of this State and for the prevention and suppression of forest and prairie fires.”
It nowhere in terms refers to section 11653, 3 - Comp. Laws, though section 19 does provide:
“All acts and parts of acts inconsistent with this act are hereby repealed.”
Section 14, however, provides:
“Nothing in this act shall be construed as affecting any right of action for damages.”
It is clear that if it were not for this act the plaintiff would have a right of action for damages under section 11653, 3 Comp. Laws. Inasmuch as the act provides that its enactment shall not affect any right of action for damages, we think it cannot be said it takes away such right of action.
Judgment is affirmed.
Carpenter, C. J., and McAlvay, Grant, and Hooker, JJ., concurred. | [
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Sharpe, J.
Plaintiff, Gus Thomas Mellios, is a resident of the city of Lansing. He brought an action in the circuit court of Ingham county against defendants, George Dines and James Rissin, for the sum of $1,000, growing out of an oral agreement relative to the sale of defendants’ business. At the time the alleged agreement was entered into defendants were operating the Club Diplomat, a restaurant where liquor was served. It is plaintiff’s claim that he was contacted by defendant, George Dines, who urged him to sell the Club Diplomat, and agreed, in the event a sale was made, to pay plaintiff the sum of $1,000, in addition to a new suit of clothes and a new hat; that subsequently plaintiff contacted Francis, Joseph and Peter Senko as purchasers; that later the Senko brothers purchased the business for the sum of $44,000; and that through the assistance of plaintiff the liquor license was transferred to the Senko brothers. It is the position of defendants that they never agreed to pay plaintiff any sum of money for the sale of the business.
It also appears that at the time the claimed agreement was entered into defendants were occupying the property under a lease, which provided that the lease could not be assigned without the written consent of the lessors. In the case at bar no consent to the assignment of the lease from defendants to Senko brothers was ever executed by the lessors.
On March 22,1950, an agreement was entered into between defendants and Senko brothers for the sale of the business. The agreement provided for the sale of all stock, fixtures, good will, equipment, and inventory of supplies.
. “It is understood and agreed that first parties shall execute any and all papers which may be necessary to secure the proper transfer of the liquor license, a proper assignment of the existing lease (which is hereby designated a material part of this agreement), and a proper compliance with the Michigan bulk sales act, and further that if any debts are outstanding against said first parties at the time of the approval of the transfer that sufficient moneys shall be withheld to pay same.”
The cause came on for trial, at which time plaintiff offered evidence in support of his claim for a commission. At the conclusion of plaintiff’s case defendants made a motion for a directed verdict for the reason that the sale of the business included a proper assignment of the existing lease, and that the sale of a lease is a sale of realty and that the claimed agreement to pay a commission therefor is void under the statute of frauds because it was not provided for in writing. The court denied defendants’ motion with the privilege of renewing it at a later time. Thereafter defendants offered evidence in support of their claim that the sale of the business included a proper transfer of the lease, and that there was no promise to pay plaintiff anything for such services he may have rendered.
At the close of all proofs defendants’ counsel stated to the court:
“I would like to again renew my motion as made at the time of the closing of the plaintiff’s proofs.”
Thereupon, plaintiff’s attorney stated:
“I move for a directed verdict and ask that the matter be taken from the jury and decided by the' court, which the court has the duty to do as is my understanding under the court rules.”
It also appears that following some discussion with the court defendants’ counsel stated:
“And' so thát our position will not be misunderstood on this record, this court informing us on the record that in his opinion a factual situation existed, then, if the court please, I am asking that the same be submitted to the jury; in other words, my motion to be qualified that if the court finds there is a faetu al situation existing, a factual controversy existing then I am ashing that that he submitted to the jury for a finding.”
This statement was followed by the following statement by the court:
“Well, I think the court can take over there. As I understand it, you made a motion for a directed verdict. The court took it under advisement. Then Mr. Parr made a motion for a directed verdict, thereby placing it in the hands of the court. So that your motion, as it was read, had no reservation in it that certain matters would be submitted to the jury. It was a motion for a directed verdict. But I will hear you on your argument, if you want.”
The cause was argued by both counsel, whereupon the court granted plaintiff a judgment in the sum of $1,000. In his opinion the court stated:
“Now, of course, the issue here is the plaintiff says there was an agreement to sell the business; the defendant says there was never any such agreement. The court is of the opinion that there was such an agreement to sell the business, and that apparently nothing was said about a lease when the agreement was finally drawn up. There was an agreement between the Senkos and the defendants Dines and Rissin. I do not find that there was anything said about a lease. Apparently it was worked out. They accepted those people later; at least I do not find anything in the record that says that the defendant was ever held liable on that lease. Apparently he was released.”
Defendants appeal and urge that the court was in error in refusing to direct a verdict in favor of defendants at the close of plaintiff’s proofs, for the reason that the transaction between defendants, as vendors, and Senk-o brothers, as vendees, included the sale of an interest in real estate.
The trial court found as a fact that the agreement between plaintiff and defendants was to sell the business and that nothing was mentioned about the transfer of the lease. We have carefully examined the record and find competent evidence to support the finding of this fact as determined by the trial court. In such case we do not reverse.
It is also urged that the court was in error in taking the case from the jury and rendering a verdict for plaintiff. We assume that it is defendants’ contention that the issues of fact should have been submitted to the jury after both parties asked the court for a directed verdict, and on the assumption that defendants had the right to later qualify this motion as hereinbefore related. In Arnold v. Krug, 279 Mich 702, we said (pp 705, 706):
“Where, without reservations, both parties ask for directed verdict, the court may determine the case and need not submit it to the jury even though there be room for conflicting inferences from the testimony. Culligan v. Alpern, 160 Mich 241; Germain v. Loud, 189 Mich 38; Kyselka v. Northern Assurance Co. of Michigan, 194 Mich 430; City National Bank v. Price’s Estate, 225 Mich 200; Sterling Cork & Seal Co. v. Ph. Kling Brewing Co., 228 Mich 566; Peoples Savings Bank of Saginaw v. Pere Marquette Railway Co., 235 Mich 399.
“When, in addition to his motion to direct, a party presents requests to charge the jury, it negatives his intent to waive the right to have a jury pass upon the case; and if his motion to direct is denied, he is entitled to go to the jury on any proper issue of fact. Kane v. Detroit Life Ins. Co., 204 Mich 357; Burkheiser v. City of Detroit, 270 Mich 381.
“It follows also that one may reserve his right to go to the jury, on denial of his motion to direct, by any definite claim to the court to that end, made upon the record. The reservation need not be by written request to charge.”
See, also, Cardinal v. Reinecke, 280 Mich. 15, and In re Frazee’s Estate, 307 Mich 404.
In none of the above cases do we have a factual situation as exists in the case at bar. The record does not show when the cause was taken from the jury, but we can assume the jury was dismissed from further consideration of the cause prior to the time the trial court heard the arguments by the interested parties as to the facts and law on the issues involved. When, at the close of all testimony, plaintiff made a motion for a directed verdict, and defendants renewed their previous motion for a directed verdict, the court then had the power to decide the issues, as at that time neither motion had any conditions or qualifications attached to it. Subsequently defendants attempted to qualify their motion, but by arguing the cause to the trial court, they waived the right to submit any issue to the jury. Defendants are now estopped to claim that their motion was qualified.
The judgment in favor of plaintiff is in accord with the evidence submitted. Judgment affirmed, with costs to plaintiff.
Btjtzel, C. J., and Carr, Bushnell, Reid, Dethmers, and Kelly, JJ., concurred with Sharpe, J.
Boyles, J., concurred in the result.
See CL 1948, § 442.1 et seq. (Stat Ann § 19.361 et seq.).— Reporter.
See 'OH 1948, § 566.132 (Stat Ann 1953 Rev -§ 26.922).— Reporter. | [
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Ostrander, J.
The plaintiff in this case is the plain-tiff in Letherer v. Insurance Co., ante, 310. The injury . to plaintiff, the foundation of this action, is the identical injury described in the opinion in that case. The provisions • of the policy set out in the opinion in that case are identical with those, in the policy sued upon in this case. The court was requested to direct a verdict for defendant. This request, for reasons set out in the opinion referred to, should have been granted.
Judgment is reversed, and no new trial will be granted.
McAlvay, Blair, Montgomery, and Hooker, JJ., ^concurred. | [
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Sharpe, J.
Plaintiff, Jose Ruben Sierra, began an action in the circuit court of Berrien county against Daisy I. Minnear, defendant, for services rendered from July 4, 1949, to about November 1, 1952. The amount claimed is $12,252. It appears that at the time plaintiff began his services, defendant and her husband, William H. Minnear, were living in their home on a small tract of land containing approximately 2 acres. This property was owned by defendant and her husband as tenants by the entirety. The adjoining farm consisted of approximately 73 acres, and was in the name of William H. Minnear alone.
On April 14, 1952, William H. Minnear died, and subsequently defendant, as the surviving tenant by the entirety and by inheritance, secured complete title in herself of both the home and the farm. Plaintiff ■continued working for defendant after the death of William H. Minnear, with the exception of a period from about July 30, 1952, to tbe date of their marriage. On or about November 16, 1952, plaintiff and defendant were married, and were divorced on or about February 19, 1953.
Defendant filed an answer to plaintiff’s declaration in which she denied that she was indebted to plaintiff in any amount, and also filed affirmative defenses, one of which reads as follows:
“That on or about the 16th day of November, 1952, the plaintiff and the defendant were married, and that the alleged obligation of the defendant to the plaintiff, as set forth in plaintiff’s second amended declaration and additional and more specific bill of particulars, was thereby cancelled and annulled and the defendant released from any obligation thereunder.”
The cause came on for trial, and, after a jury was selected, and immediately following the opening statement by plaintiff’s counsel and the stipulation of certain facts, defendant made a motion for a directed verdict based upon her affirmative defenses. The trial court granted the motion and at the same time stated:
“While argument has been made here that Michigan takes a so-called liberal view of the effect of this statute in derogation of the common law, the court is not impressed with the idea, for the reason that it has taken legislation following court decisions to effect that liberality contended for here; and the court is of the opinion that the common law quoted is the law in Michigan. Common law still prevails, in spite of the married women’s act, and it will continue to be common law until there has been legislation to effect it otherwise. These parties were married; and, as the court says, there is nothing in the married women’s act which abrogates the common-law rule to provide that the debts of a woman to her husband are not extinguished; and consequently the court is of the opinion that this marriage' of the parties on November 16, 1952, extinguished whatever debt may have existed; and the court will instruct the jury to bring in a verdict of no cause for action.”
Plaintiff appeals and urges that there was no common-law rule in Michigan providing that marriage extinguished an antenuptial debt of a wife to a husband. Under the common law the husband had:
“1. The control of her person, and the right to appropriate her earnings to his own use; 2. He became by the marriage the owner of such personal estate as she then possessed, and of all that she should thereafter acquire during coverture; 3. • He had a right to reduce her choses in action to possession, and to dispose of her chattel interests in lands to his own use; 4. He became vested with her estates of inheritance during the coverture, and if he survived her, and issue capable of inheriting it had been born to them, he had a life estate therein; and 5. In case of their separation, he had the better right to the control and custody of the children of the marriage.” Tong v. Marvin, 15 Mich 60, 66.
The status of a wife under common law is well stated in Burdeno v. Amperse, 14 Mich 91, 92 (90 Am Dec 225):
“The effect of marriage was to produce what is called in the law books unity of person; the husband and wife being but one person in the law: — Co. Litt. 112a; 1 Blackstone’s Commentaries, p 442. The wife, by her coverture, ceased to have control, of her actions or her property, which became subject to the control of her husband, who alone was entitled, during the marriage, to enjoy the possession of her lands, and who became owner of her goods and might sue for her demands. The wife could neither possess nor manage property in her own right, could make no contract of a personal nature which would bind her, and could bring no suit in her own name. In short, she lost entirely all the legal incidents attaching to a person acting in her own right.. The husband alone remained sui juris, as fully as before marriage.”
Under the above decisions there is a clear recognition that a wife had certain disabilities in relation to her separate property under the common law, and among those disabilities was the fact that she could make no contract which would bind her.
It is the general rule at common law that marriage extinguished an antenuptial debt of a wife to a husband. In 26 Am Jur, Husband and Wife, § 26, p 653, it is said:
“Any antenuptial indebtedness of husband to wife or wife to husband, and.any security, such as a trust deed or mortgage, or any contract between them is, at common law, extinguished absolutely and forever, and is not revived on discoverture.”
The' above authority well states the common-law rule relative to an antenuptial indebtedness of a wife to a husband, and..such rule is the law in Michigan.
It is also urged by plaintiff that, .the common-law disabilities of married women have been abolished in Michigan by a series of acts commonly referred to as “married women’s statutes.” These statutes iii Michigan, the plaintiff states, include:
“CL 1948, § 449.6 (Stat Ann 1953 Cum Supp § 20.-6), permitting a. husband and wife to be partners in business. ' .
“CL 1948, §557.1 (Stat Ann §26.161), provides that all property, real and- personal, of a- married woman, acquired in any manner before or after marriage, shall be hers- alone, free of any debts or engagements of her husband, with full rights therein, to make any disposition she wishes, as though she were unmarried.
“CL 1948,. § 557.2 (Stat Ann §.26.162), permits any trustee of a married woman’s real or personal property to make a direct conveyance of said property to the married woman.
“CL 1948, § 557.4 (Stat Ann § 26.163), provides-that as regards her separate estate, a married woman, and not her husband, may be held liable for any contract she makes thereto. . -
“CL 1948, §557.11 (Stat Ann §26.171), provides that a married woman shall have full and absolute right to have, enjoy and make any disposition of any or all of her earnings.
“CL 1948, §557.51 (Stat Ann § 26.181), abolishes the common-law disability of married women to make and enter contracts jointly-with her husband on jointly-owned property.
“CL 1948, §557.52 (Stat Ann §26-.182), allows married .women to make themselves jointly liable with their husbands on written contracts covering jointly-held property.
“CL 1948, § 557.53 (Stat Ann § 26.183), allows execution and garnishment on joint property of husband and wife on a joint obligation of the two.
“CLS 1952, § 702.93 (Stat Ann 1953.' Cum Supp § 27.3178[163]), provides that on the death of any married woman possessing property not disposed of by her will, the same shall he first subject to her debts, funeral charges and expenses of administration.”
We are not in accord with plaintiff’s theory that the common-law disabilities of married ymmen have been abolished in Michigan. The married women’s statutes did not abrogate the common-law right of the husband to the earnings of his wife. In Ridky v. Ridky, 226 Mich 459, we held that previous to the passage of PA 1911, No 196 (CL 1948, § 557.11 [Stat. Ann § 26.171]), all the earnings of a married woman belonged to her husband as a matter of law. In Artman v. Ferguson, 73 Mich 146 (2 LRA 343, 16 Am St Rep 572), the issue was whether a husband and wife could legally enter into a copartnership. We there held that a contract of partnership with her husband is not included within the power granted by our statutes to married women. We there said (pp 148-150):
' “Our statute has not removed all the common-law disabilities of married women. It has not conferred upon her the powers of a femme-sole, except in certain directions. It has only provided that her real and personal estate acquired before marriage, and all property, real and personal, to which she may afterwards become entitled in any manner, shall be and remain her estate, and shall not be liable for the debts, obligations, and engagements of her husband, and may be contracted, sold, transferred, mortgaged, conveyed, devised, and bequeathed by her as if she were unmarried; and she may sue and be sued in relation to her sole property as if she were unmarried. How Stat §§ 6295-6297. In all other respects she is a femme-covert, and subject to all the restraints and disabilities consequent upon that relation. * * *
“In this State a married woman was subject to the common-law disabilities of coverture until the passage of the married woman’s act of 1855. How Stat §§ 6295-6299. This act does not touch a wife’s interests in her husband’s property, and these remain under the restrictions of the common law, unless they are removed by some other statute. The wife’s common-law disabilities are only partially removed by the act, and one who relies on a wife’s contract must show the facts, in order that it may appear whether she had capacity to make it. Edwards v. McEnhill, 51 Mich 160.”
We have examined the various acts quoted in this opinion and fail to find in any of them language from which we can say that it was the intention of the legislature to abolish, tbe common-law rule that antenuptial debts of the wife to the husband are extinguished by marriage.
We are in accord with the ruling of the trial court on this issue. The judgment is affirmed, with costs.
Btjtzel, C. J., and Carr, Bushnell, Boyles, Reid, Dethmers, and Kelly, JJ., concurred.
Coke upon Littleton, 112a, lib 2, eliap 10, § 168.—Reporter.
CL 1948, §§ 557.1-557.5 (Stat Ann §§ 26.161-26.164). See, also, CL 1948, § 612.5 (Stat Ann § 27.657).—Repoetee. | [
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] |
Moore, J.
Plaintiff sued defendant to recover a balance of' 1351.42 which it claims was due it for goods consigned to defendant who was acting as its agent, which goods had been in his possession more than 12 months before a draft was made upon him, payment of which was refused. From a judgment in favor of the plaintiff, the case is brought here by writ of error.
The record is quite long. It contains more than' 100 assignments of error. The index is faulty. The record shows that counsel and court were in almost constant dispute and many things occurred between them which ought not to have occurred. The counsel was provoking and the judge was evidently ill and irritable. For reasons we shall state hereafter we think the ease must be reversed. We.shall not attempt to discuss all the assign-' ments of error for by the least effort upon the part of counsel there is not likely to again occur the conditions of which he complains.
It is the claim of plaintiff that it made a contract in writing with defendant, the material parts of which are as follows:
‘ ‘ This agreement entered into the 17th day of March, 1903, between the Harrison Wagon Company of the city of Grand Rapids, Kent county, Michigan, party of the first part, and Fred Brown of Durand, State of Michigan, party of the second part, witnesseth as follows:
“First. The party of the first part has appointed and does now appoint the party of the second part to act as their agent for the sale of their wagons in Durand and Yernon and vicinity, State of Michigan. '
“Second. The party of the second part hereby undertakes and accepts the said agency and agrees to the following conditions, viz.: * * * Will so conduct the business that the time of final payment at Grand Rapids shall not exceed twelve months from date of shipment, will transmit to the office of the party of the first part the proceeds of each cash sale or part cash sale on the day that the sale is made or by the first mail thereafter, and further, on the last day of every month will make out an account of sales for the current month, * * * and at any time after twelve months from date of shipment to pay cash for balance of consignment unpaid if so required by party of the first part, but nothing herein shall be construed as amounting to a positive sale without said requirements, and that during the continuance of this lease they will sell no other wagon than the Harrison wagon.
“ This order and contract constitute the only agreement made in relation thereto, verbal statements contrary notwithstanding.
“Durand, Michigan, March 17th, 1903.
“Harrison Wagon Company,
“Grand Rapids, Michigan.
“ Please charge me on the 17th day of March, 1903, or as soon thereafter as practicable, Grand Rapids, Michigan, the following wagons complete with double boxes, steel spring seat, whiffietrees and neck yoke, stay chains, side steps and braces, patent rub iron and name on boxes. * * *
“Above goods to be delivered free from freight or expenses. Please send 75 fence signs free and printed matter. Freight allowed in car loads only in future shipments. The above to be delivered free on board cars at Grand Rapids, Michigan, and to be settled for according to contract and terms on the opposite side of this sheet. 50 cents allowed for reshipping wagons. ' This order and contract given subject to our approval. And nothing but your written acceptance can be considered binding on you to fill the same.
“For Harrison Wagon Company,
“By B. W. Chase, Agent.
“Fred Brown, Signer.”
It is the claim of plaintiff that at this time it had the .goods for which this suit is brought in the hands of Shaw & Cole at Durand,, and that they were then turned over to the defendant and that they had a right to treat them as a shipment then made and to exercise their, option 12 months later to treat them as the goods of defendant and to require him to pay for them in full. It was the claim of the defendant that the goods at Durand were not complete wagons; that they had been exposed to the weather and were not merchantable; that they had wheels not adapted to the markét at Durand, that before they were to be regarded as goods coming within the contract they were to be made as good as new. It was his further claim that these goods were never put in order and never came within the terms of the contract; that he had settlements from time to time with the company, when it agreed to ship these goods somewhere else. It is his further claim that he had a settlement with the company indicated by the following paper:
“Grand Rapids, Michigan, November 4, 1904.
“Mr. Fred Brown,
“Durand, Michigan,
“ To Harrison Wagon Co., Dr.
“1904
Nov. 4. To balance rendered..........................$551 40
Contra.
Nov. 10. By 4-3 GW RY 3, 40.80........................ 163 30
* * * * * *
By goods on band ............................351 43
By notes on account.......................... 194 00
5 69
39
$551 40
“Settlement made and notes and cash received by B. W. Chase, Agent.”
—And that at this time it was agreed the company would take back the goods then on hand. He gave or offered to give testimony tending to establish his several claims.
The circuit judge charged the jury in part as follows:
“ I charge you that the talk between Mr. Chase, agent of said plaintiff, and Mr. Brown, about shipping some goods to Flushing or Yernon, unless said goods were shipped since November 10, 1904, the date of the last settlement, said conversation is immaterial and should not be considered by you.
“ I charge you that the goods delivered to Brown from the Shaw & Cole stock would be considered and come under the contract the same as though they were shipped from Grand Rapids.”
He declined to give the following requests:
“ In this cause I charge you that if the plaintiff between the 17th of March, 1903, and the date of the beginning of this suit, upon a sufficient consideration, agreed with the defendant to take back the goods mentioned in plaintiff’s bill of particulars or any part thereof and either replace them with other goods or ship such goods away, and the defendant by reason of such agreement has in good faith acted upon such agreement and been misled or injured by reason of such agreement of the plaintiff, then the plaintiff is estopped in this suit from denying such agreement and could not sue for the goods which the plaintiff had agreed to take back or take away.”
“ In this cause if you find from the evidence that the plaintiff agreed to furnish new, salable, and complete wagon gears and parts of wagons mentioned in plaintiff’s bill of particulars and that those furnished by the plaintiff, instead, were unpainted, imperfect, broken, and unsalable, then the plaintiff cannot recover in this action for the goods which it had agreed to furnish and did not, and if defendant received said second-hand, unpainted, and unsalable goods upon such order, he, the defendant, would not be bound to pay any more for the goods received than what such goods would be fairly and reasonably worth in the market.”
A reference to the contract and to the receipt signed by the defendant will fail to show that anything was said about goods that day delivered to defendant which had previously been shipped tp Shaw & Cole. It will also be observed that in the so-called order it is said:
“ Harrison Wagon Company,
“ Grand Rapids, Michigan.
“Please charge me on the 17th day of March, 1903, or as soon thereafter as practicable, with the following wagons complete,” etc.
If the wagons were then complete, and to be then charged to defendant, it is difficult to see the need of using this language. It is, to say the least, consistent with the claim of defendant that these wagons were to be made merchantable before they became chargeable to him. It is quite apparent that the two papers do not contain all of the agreement. Strictly speaking, they refer to goods to be shipped. The option in the contract which it is claimed was exercised refers to goods “ at any time after twelve months after date of shipmentas a matter of fact the goods' for which this suit is brought were shipped a long time before the contract was made. It is apparent that without oral testimony supplying what was omitted in the contract plaintiff could not maké a case. We think the defenses claimed by defendant should have been submitted to the jury.
Judgment is reversed, and new trial ordered.
McAlvay, Grant, Blair, and Montgomery, JJ., concurred. | [
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Butzel, C. J.
On January 12, 1948, Nicholas T. Jackson and his wife, Rose Jackson, while in a car owned by Mr. Jackson, met with an accident through the alleged negligence of the city of Detroit department of street railways. The Transcontinental Insurance Company, a New York corporation, paid for the damages to the car, less $25, or $410.34. Two suits were simultaneously brought against the city, one by Mrs. Jackson and the other by Mr. Jackson, in which the insurance company, as assignee pro tanto and subrogee, was joined as a party plaintiff. The declarations in the 2 eases were very similar. Mrs. Jackson claimed that she was very seriously and permanently injured, while Mr. Jackson claims compensation for injuries to himself, medical expenses, loss of his wife’s services, and damage to his car. The same firm of attorneys through Mr. Maples represented all plaintiffs in the respective suits, and the cases were handled as if they were one. The city admitted its liability but questioned the amount of damages. The cases were brought to trial on May 7, 1951, before the Honorable Guy Miller, Wayne county circuit judge, and a jury duly impaneled. The cases were tried together. Mr. Jackson did not claim any serious long-lasting injuries to himself but Mrs. Jackson asserted that she was seriously and permanently injured. Her testimony was largely subjective, being that she had suffered a brain or nerve injury and that she constantly had violent headaches and pains. On the second day of the trial it developed that Mrs. Jackson’s physician, a Doctor Johnson, who had been duly subpoenaed, disregarded the subpoena and left on a hunting trip for a month. Mr. Maples, attorney for the plaintiffs, was in a quandary as he feared that without the testimony of Dr. Johnson he might have considerable difficulty in convincing the jury by competent evidence of the alleged serious condition of Mrs. Jackson. Then he and the attorney for the city discussed settlement and the figure of $2,500 for both cases was agreed upon. This was apparently agreeable to Mr. Jackson who was then in court. Mr. Maples called up Mrs. Jackson, who was unable to be in court that day, and she told him that the amount was inadequate; whereupon Mr. Jackson took the telephone and, after a conversation with his wife that lasted about 5 minutes, stated to Mr. Maples: “Well, I guess we cannot do anything else but settle.” Thereupon he and Mr. Maples went into the courtroom and announced to Judge Miller that they had settled the cases and the judge thereupon dismissed the jury and the cases were regarded as settled. The calendar entry in each case states:
“May 8. Settlement agreed upon; jury discharged from further consideration of this cause, court sheet, Judge Guy Miller.”
After a short delay releases were prepared and sent to Mr. Maples who forwarded them to the Jack-sons, who have never signed them. On the day after the cases apparently had been settled Mrs. Jackson called Mr. Maples and told him that neither he nor her husband had authority to settle the case for her and that she would not be bound by the settlement. Mr. Maples told her that he did not think the judge would reopen the case; that he was disgusted with her conduct; that he would not act any further for her; and that she should get another attorney immediately; that it was a matter that demanded immediate attention. The foregoing appears in the testimony taken at the hearing of plaintiffs’ motions to set the cases for trial, as heard on September 18, 1953, over 2 years and 4 months after the trial proceedings before Judge Miller on May 8, 1951. Mr. Maples further stated that efforts were made by Mrs. Jackson to secure other attorneys and that eventually Mr. Markle became the attorney for plaintiffs.
.The motions to set the cases for trial were denied. Thereupon petitions for mandamus were filed in this Court, and were denied without prejudice. This was done through an abundance of caution in case there was any different proceedings or in case the settlement money was not paid. Months later in February of 1954 another motion to set the case for trial was filed and heard by Judge Neal Fitzgerald who succeeded Judge Miller in office. On May 4,1954, Judge Fitzgerald denied the motion. Shortly thereafter the instant petition for writ of mandamus, without first obtaining leave, was filed in this Court to direct Judge Fitzgerald to set the case for trial. The motion before Judge Fitzgerald was quite similar to the one that had been previously denied by Judge Miller, and the present petition for writ of mandamus is similar to that previously denied without prejudice by this Court. Inasmuch as mandamus proceedings were based upon the court records, exemplification of the record together with a transcript of the testimony signed by the official court stenographer were filed for reference with this Court.
It should be said at the outset that Mr. Maples conducted the case very ably and it was only after Mr. Jackson authorized the settlement and appeared with him that he-stated the cases had been settled. While Mr. Jackson later stated in an affidavit that' he did not consent to the settlement, the' judge gave no credence to this statement.
The attorney who has the conduct of a law suit is presumed to have authority to act on his client’s behalf. See Eggleston v. Boardman, 37 Mich 14, 20, where the Court said:
“And where the client stands by and permits work to be done, or an argument to be made on his behalf * * * we think it may very fairly be assumed from his silence and acquiescence that he consented thereto.”
Therefore the attorney may agree upon a settlement made in open court and the court may rely on a statement made by the attorney such as was made-in this case.
In Kelly v. Heinzelman, 311 Mich 474, plaintiffs' in a suit-to cancel a land contract agreed to a settlement on the same day that trial of the case was to commence. A consent decree setting forth the terms of the settlement was entered. Plaintiffs, thereafter, by a different attorney, filed a petition for rehearing-of the case on the grounds, among others, that the previous attorney had no authority to consent to such a decree and that some of the plaintiffs were not present in court when the settlement was made. The trial judge denied the petition for rehearing and the Supreme Court affirmed, noting that one of the plaintiffs was present and participated in the settlement discussion and that (p 481):
“The settlement was made in open court, * * * and there was no showing of fraud, deceit, collusion or bad faith on the part of plaintiffs’ attorney * * * in negotiating the settlement or in consenting to the entry of the decree in question.”
The Court thus reiterated the rule that a compromise will not he disturbed unless upon satisfactory-evidence of mistake, fraud, or unconscionable advantage taken by one party over the other. See Nash v. Manistee Lumber Co., 75 Mich 346. To like effect is Collins v. Searight-Downs Manufacturing Co., 245 Mich 41, where we affirmed the trial court’s denial of a motion to set aside a decree embodying the terms of an agreed-to settlement, even though the parties had been unable to consummate the settlement by written agreement. And in Dutrowska v. Landolfo, 255 Mich 377, where the plaintiff consented to a settlement in open court, but then through a new attorney filed a motion to set aside the settlement stipulation on grounds that she did not understand its significance, we affirmed the trial court’s denial of the motion. Also, see Booth Fisheries Co. v. Alpena Circuit Judge, 170 Mich 611.
It is true that the money was not paid to plaintiffs by the city of Detroit. But it claims that at all times it has been ready and evidently is willing to do so upon obtaining the proper releases. It would have been better to have judgment entered at the time but that would have entailed expense that could be avoided.
It was shown by Mr. Maples’ testimony that Mrs. Jackson was told in May of 1951 that she would have to act promptly and secure another attorney. It was not until June 29, 1953, that the first motion to set the case for trial was filed, and it was not until February of 1954 that the motion before Judge Fitzgerald was filed. The latter was over 6 years after the cause of action had accrued and over 2-1/2 years after the partial trial of the case and controverted settlement. In Hoad v. Macomb Circuit Judge, 298 Mich 462, a case was dismissed for lack of progress for more than a year as provided in CL 1948, § 618.2 (Stat Ann § 27.982). We refused to issue a writ of mandamus directing the defendant judge to reinstate the case. The case may be readily distinguished on the facts from the instant one inasmuch as a statute was involved, nevertheless the rationale is the same. Had a judgment been obtained at the time notice was given, a motion for new trial would have had to be filed within 20 days after judgment. Court Rule No 47, § 1 (1945). Even if there were any merit in plaintiffs’ claim of the lack of authority on the part of the attorney and/or husband to settle the case, the record shows absolutely no excuse for the laches of the plaintiffs. Mrs. Jackson was particularly told not to delay action. The trial judge was correct in his conclusion, and we uphold his decision. In Globe Indemnity Co. v. Richer, 264 Mich 224, we denied mandamus because of laches citing People, ex rel. Mabley, v. Judge of Superior Court, 41 Mich 31, 38, where the Court said:
“The writ of mandamus is not a writ of right, and is not usually allowed to parties who have been culpably dilatory, or otherwise at fault.”
Defendant is bound to pay over the amount agreed upon for settlement which it says it is willing to do. In case of failure to do so after receiving the proper releases, plaintiffs are not without remedy.
We do not believe the judge abused his discretion in refusing to set the cases down for trial. We decline to interfere. Mandamus denied, with costs.
Carr, Bushnell, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Hooker, J.
Amy R. Seavey was the owner of a stock of goods, and did business in Fort Wayne, Ind., under the name of “The Seavey Hardware Company.” She gave no personal attention to the business, which was in charge of Carl J. Weber, as manager. Her son, Walter Seavey, was employed in the business, having charge of the metal working department, but no authority to control or manage the business of the concern. Being at variance with Weber, and perhaps suspicious of his honesty, he contracted with the plaintiff to make an audit of the books of the concern and make a report, which was done, and this action was brought to recover compensation therefor at the agreed rate. The cause was tried without a jury, findings being filed and judgment rendered for the defendant. Plaintiff has appealed.
Plaintiff contends (1) that the undisputed evidence Shows that Walter Seavey was held out to the public by Mrs. Seavey and Weber as her general agent with authority io bind her in any transaction that might be necessary or proper and usual in the ordinary course of a business like hers; (2) that the work was done in the store, with full knowledge of Weber and of Randall, her attorney and adviser, and the contract made by Seavey was ratified. The learned circuit judge did not agree with either of these claims in his conclusion upon the facts. Our examination convinces us that the undisputed evidence does not show a holding out of Walter Seavey as a general agent or as one having any authority to make the alleged contract on the part of his mother. The finding states that the fact that his name appeared in the city directory as assistant manager of this concern did not come to the knowledge of the plaintiff previous to the making or performance of the contract. The finding also states that ¿here was no ratification of the contract by Weber, and that Randall had no authority to ratify it. We think the testimony supports these findings. It is true that the work was done with the knowledge and assistance of Weber, but the evidence justifies the conclusion that he had no knowledge that it was being done under a contract ostensibly on behalf of defendant, but that plaintiff was hired by Walter, to whom it must look. His findings must be accepted as conclusive.
It is unnecessary to discuss the testimony at length, as the merits are not before us. Referring to some of the legal questions argued, we may say as there was no holding out of Walter Seavey to the plaintiff as one having authority, and no reliance on any act of defendant or Weber upon which they had a right to rely, the authorities upon that subject become unimportant.
The judgment is affirmed.
Carpenter, C. J., and McAlvay, Blair, and Moore, JJ., concurred. | [
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Carr, J.
This is a suit in equity to foreclose a chattel mortgage and for further incidental relief by way of specific performance of an alleged agreement. The material facts in the case are not in dispute. In January, 1949, defendant purchased a saloon business located at 4701 W. Warren avenue, Detroit, Michigan, for an agreed consideration of $28,000. She received a bill of sale conveying to her the business in question together with the equip ment and furnishings of the establishment, the stock of goods on hand, supplies and materials, and the good will of said business. The instrument also provided for the sale to defendant of “all licenses (if transferable) and especially class ‘C’ liquor license No'C-2019 (subject to the approval of the Michigan liquor control commission).”
At the time of the transaction in question defend-ant paid the sum of $10,000. The balance was evidenced by 60 promissory notes, each in the amount of $300, payable at monthly intervals with 6 % interest. Payment, of such obligations was secured by chattel mortgage given by defendant to the party from whom she purchased, and by him assigned to the plaintiff in this case. A part of the indebtedness so secured was transferred to plaintiff on January 25,1950, and the balance of the unpaid notes on April 25, 1951. Defendant being in default, plaintiff instituted the present suit to obtain the balance due which by stipulation in the circuit court was fixed at $6,203.56.
The chattel mortgage, in describing ■ the property covered thereby, followed the language of the bill of sale, including the specific statement therein with reference to the class “C” liquor license. On the trial of the case defendant contended that such license was not subject to the chattel mortgage on the theory that it could not be regarded as property. The decree entered provided for the sale of the tangible assets described in the mortgage, and further that if the amount of the secured indebtedness was not realized therefrom the circuit court commissioner conducting the sale should offer the liquor license then standing in the name of defendant. In the event of purchase thereof defendant was required by the decree to make application to the liquor control commission for transfer of the license to the purchaser, and to execute an assignment of her inter est therein, together with such other papers as might he required by the commission or by the city of Detroit to effectuate the transfer, which was specifically declared to be subject to the approval of the Michigan liquor control commission. Defendant has appealed, urging as the principal reason therefor that the trial court erred in determining that the chattel mortgage should be construed as embracing an agreement between the parties whereby defendant pledged her interest in the license as security for the payment of her indebtedness and therefore impliedly agreed to perform whatever acts might be necessary to carry out such agreement. . ■
This Court has recognized in prior decisions that a license issued by the liquor control commission is in the nature of a permit, and that the licensee does not possess thereunder any vested or property rights. Fitzpatrick v. Liquor Control Commission, 316 Mich 83 (172 ALR 608); Morse v. Liquor Control Commission, 319 Mich 52. However, an agreement, to assign a class “C” license is valid and performance thereof, under proper circumstances, may be required by a court of equity. Roodvoets v. Anscer, 308 Mich 360; MacNicol v. Grant, 337 Mich 309. The question presented in the instant ease is whether the arrangement between defendant and the party from whom she purchased the saloon ■ business, as evidenced by the bill of sale, the chattel mortgage, and the acts of the parties, contemplated that defendant should, if necessary to render the agreed security adequate, take such steps as might be required to effectuate a transfer of the license to one offering to purchase it at public sale.
It is significant that the bill. of sale did not, in specific language, provide for the assignment of the license to defendant by the then owner. However, since the business was transferred, together with the tangible property and the good will, the intent of the parties is not open to question; The reference to obtaining the approval of the Michigan liquor control commission indicates that the parties had in mind the steps necessary to be taken in making the transfer. The seller of the business acted accordingly, executed an assignment of the license, and obtained the consent of the commission thereto. In consequence defendant received the license and operated the business thereunder. She does not claim that the transfer of the license to her in the manner indicated was not within the scope of the agreement.
As before noted, the chattel mortgage followed the language of the bill of sale in referring to the security given thereby, including the reference to the license. It is scarcely conceivable that the parties at the time intended that in the event of foreclosure the license might be retained by defendant instead of being transferred as a necessary incident of the business. Obviously the bill of sale contemplated the transfer of an operating saloon, including the personal property used in connection therewith and the license under which it was being operated. A like interpretation must be given to the chattel mortgage. The trial court correctly held that under the agreement between the parties defendant was bound, in the event of foreclosure of the mortgage, to perform such acts as might be necessary on her part to. effectuate a transfer of the license to a purchaser. The provisions of the decree, in effect providing for the specific performance of defendant’s undertaking, are adequately supported by the record.
Shortly after the starting of the present suit plaintiff executed a release of the chattel mortgage as to certain bars in the building in which the business was conducted. The record indicates that this was done because of a claim by the owner of the real ■ estate that the bars were a part of the realty. Plaintiff sought to avoid controversy and possible litiga tion with the landlord by executing the release. It is the claim of the appellant that she is entitled to have the mortgage foreclosed on the bars in conjunction with other personal property covered, and that the release having been executed, the value of the bars should be deducted from the amount found due and owing to plaintiff. We think the claim is without merit. There is nothing in the record to indicate bad faith on plaintiff’s part in executing the release. If defendant was in fact the owner of the bars the release may not be regarded, as prejudicial to her rights. On the other hand, if such bars were a part of the realty they were not subject to the lien of the chattel mortgage.
The decree of the trial court is affirmed. Plaintiff may have costs.
Butzel, C. J., and Bushnell, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Moore, J.
Complainants are the two oldest of the five children of John and Caroline Kamin. The defendants Charles Kamin, Julius Kamin, and Johanna Kotcher, are the three remaining children. The bill is filed to cancel a deed made by John and Caroline Kamin to Charles and Julius Kamin in January, 1900, upon the ground of fraud, undue influence, and duress, practiced by the two sons toward the father. The court below dismissed the bill of complaint. The case is brought here by appeal.
To the bill of complaint various answers were made. That of Caroline Kamin was a sworn answer. It contained among other statements the following:
“This defendant states that on January 2, 1900, John Kamin and this defendant, his wife, who were tenants in the entirety of said property, made a warranty deed thereof to the said Charles and Julius Kamin for a good and sufficient consideration; that the said deed contained a proviso requiring the said Charles and Julius Kamin to pay to Johanna Kotcher $800 one year after the death of this defendant. Said deed has since been recorded. This defendant denies the said deed could in any way affect the right of the complainants to inherit from the said John Kamin the property described in the said bill, as the interest of the said John Kamin did not pass to his heirs at his death, but ceased to exist; the entire property so held jointly belonging to this defendant at his death by right of survivorship. * * *
“ This defendant shows that she has not in any degree lost her mental faculties and fully understands everything that she does. She shows that she has always been treated with affection by her sons Charles and Julius, and she has never been ill treated by them or felt the slightest fear of them. She shows that the said Charles and Julius are carrying out in good faith the contract made by them with her and the said John Kamin. That they made the last years of her husband pleasant and the time of this defendant also passes by pleasantly in their society, which is far differently with the complainants who ill treat her and abuse her whenever they meet her. This defendant shows that she fully understood what she was doing when she signed the deed with her husband. That they were endeavoring to obtain a proper maintenance during their lifetime, and that the properly should thereafter go as they wished to will it.
“This defendant shows that the said Gustave Kamin received financial assistance years ago from the said John Kamin for more than what would be his proper share in the estate. This defendant shows that no one has ever questioned her soundness of mind or her right to dispose of her property as she saw fit.”
Complainants filed an amended bill of complaint containing the following:
“That complainants have since the filing of their bill of complaint learned that it is claimed that the title of the land described in the bill of complaint stood in the name of John Kamin and Caroline Kamin as tenants by the entireties, but they aver that even if this be true, of which fact they are not sure, they aver that said Caroline Kamin is an old, incompetent, and feeble old woman, strictly under the dominion of Charles Kamin and Julius Kamin, who have her terrorized so that, besides from her natural imbecility arising from old age, she dare not protect herself if she could, and could not in any event.
“ Complainants therefore ask that said Caroline Kamin may be made a defendant herein, a guardian ad litem appointed for her and her property preserved in her as is but just, and for such other relief as to this court shall seem just and meet.”
No guardian ad litem ever was appointed. Defendant Caroline Kamin is now dead. The record is a very long one. It has had our careful attention. The testimony is very conflicting. It shows, however, that complainant Taepke was married and left home in 1870. That the other complainant was helped by his father to purchase a 60-acre farm, though complainant testifies that he returned to his father all the assistance that was furnished him. At the time the deed in controversy was executed the record discloses that Mr. and Mrs. Kamin were alone with the official who drew it and took the acknowledgment thereof. The testimony of that official, who appears to be a reputable and intelligent man, is that the deed was drawn as the parties wanted it, and that they appeared to be entirely competent to make it. His testimony is corroborated in part by the testimony of his wife who witnessed the deed. The sworn answer of Mrs. Kamin from which we have quoted indicates her understanding of the situation. Even after her husband died, and after her attention was called to the situation by this proceeding and when, had it not been for the deed, the property, because she was the survivor of her husband, would have all been hers, she desired the deed to stand.
While there is much in the record to show that the relation of the Kamins toward each other was far from being an ideal one, the record does not show an adequate legal reason for the court to make a different disposition of the property of this father and mother from what they made in their lifetime.
The decree is affirmed.
Carpenter, C. J., and McAlvay, Ostrander, and Hooker, JJ., concurred. | [
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Kelly, J.
Plaintiff, who is appellee and cross appellant, filed 3 claims with the workmen’s compensation commission, as follows:
“1. Seessel Armstrong v. Commercial Carriers, Incorporated and Consolidated Underwriters; alleged accident: July 1945 * * * (claim 1)
“2. Seessel Armstrong v. Commercial Contracting Company and Consolidated Underwriters; alleged accident: October 7, 1946 * * * (claim 2)
“3. Seessel Armstrong v. Commercial Carriers, Incorporated, a self-insurer; alleged accident: March 15, 1949 * * * (claim 3).”
The 3 claims were consolidated and the deputy commissioner found that the injury of March 15, 1949 (claim 3), was the precipitating factor of the employee’s compensable disability. Defendant and appellee Commercial Carriers, Inc., (claim 3) filed an application for review and served same upon plaintiff, but did not serve a copy upon the appellants (claim 2).
On December 12, 1951, the Commission entered its. opinion and order on review, modifying' the award made by the deputy commissioner, and ordered Commercial Contracting Company and its insurer,, Consolidated Underwriters, appellants herein (claim 2), to pay.plaintiff the total disability compensation theretofore ordered paid by Commercial Carriers,. Inc.
On January 4,1952, plaintiff filed with the commission a petition for delayed claim for review. Plaintiff alleged:
“The plaintiff, Seessel Armstrong, shows that his attorney failed to file a claim for review under the belief that the claim for review filed by the codefendant Commercial Carriers, Incorporated, would take the entire case up on review as to all parties, including the codefendant Commercial Contracting Company and its insurer Consolidated Underwriters.
“The plaintiff alleges and avers that his failure to file claim for review from the deputy commissioner’s award was based upon a belief shared by many members of the bar and some members of the commission but that said belief may be erroneous and mistaken and work a great injustice to the plaintiff and the parties to this cause.
“The plaintiff shows that a granting of this petition for an extension of time in which to file a claim for review from,the deputy commissioner’s award will not prejudice any of the parties to the cause and a denial of it will work a gross miscarriage of justice.”
Appellants filed objections, alleging that after having modified the award the commission could not now proceed to rehear the matter and that the- granting of an extension would be an abuse of discretion.
The commission dismissed the petition, stating that “all of the parties were properly before the commission on the claim for review of the Commercial Carriers, Inc., and there is no necessity for a delayed appeal.”
On the same day appellants filed their objections to plaintiff’s delayed claim for review, namely, January 8, 1952, appellants filed their application for leave to appeal to this Court. Plaintiff asked leave to file a delayed cross appeal “in the event the Supreme Court shall find that the workmen’s compensation commission erred in its award dated December 12, 1951.” Plaintiff’s request, filed on December 16, 1953, was granted by this Court on February 18, 1954.
Appellants contend that plaintiff’s delayed cross appeal is barred by lapse of time. We have carefully reviewed all of the cases in appellants’ brief and find that the only one dealing with the question of this Court’s right to grant a cross appeal is In re Milner’s Estate, 324 Mich 269. This was an appeal from an order of the circuit court in a certified will contest proceeding admitting a will to probate as altered by a settlement proceeding. Following the entry of the above order the Salvation Army filed a petition in this Court asking leave to appeal therefrom, which petition was granted. Appellees contended that the Salvation Army was not a proper party entitled to appeal from the judgment of the circuit court. We said (p 274):
“It should he noted that while the Supreme Court granted the Salvation Army leave to appeal from the order of the circuit court, this fact, in itself, is not a recognition of the right of the Salvation Army to make an application for leave to appeal.”
As applicable to the question herein presented, all the above case actually settles is that appellants are entitled to have reconsideration of this Court’s previous granting to plaintiff the right to file a cross-appeal.
Appellants conferred jurisdiction upon this Court within the statutory limitation of time by applying for leave to appeal. When this Court granted said leave, this Court had complete jurisdiction and there is no limitation either by statutory provision or court rule preventing this Court, in its discretion,, granting to plaintiff the right to bring before this Court his contention by cross appeal.
Seessel Armstrong, plaintiff, appellee and cross, appellant, contends that the failure of the Commercial Carriers, Inc., to serve a copy of its application for review of claim from the deputy commissioner’s award of June 8,1950, on the codefendant, Commercial Contracting Company, did not deprive the-workmen’s compensation commission of its jurisdiction over the Commercial Contracting Company on review. Commercial Carriers, Inc., defendant and appellee, contends that where a plaintiff has 3 separate, distinct causes of action against 2 different employers and all are tried together, that the parties in 1 suit do not become parties to the other.
Plaintiff contends that failure to serve a copy of the claim for review upon appellants did not deprive-the commission of jurisdiction over appellants for tlie following reasons:
1. That the commission on July 25, 1950, notified appellants’ attorney that an extension of time had been granted in Commercial Carriers’ claim for review ; that on August 14, 1950, the commission notified appellants that the transcript had been filed ^ that on August 30, 1950, appellants were notified by the commission that an extension of time had been, granted to file a brief; that on October 2, 1950, the commission notified appellants that the hearing on review was set for October 9, 1950.
2. That on October 9, 1950, the date of hearing on review, the commission sent word to appellants’ attorney, Mr. Anderson, who was trying a case in an adjoining hearing room, that the commission desired Mr. Anderson to appear before it. As to what occurred while Mr. Anderson was before the commission is disclosed by the answer of Commercial Carriers, Inc., to appellants’ application for leave to appeal. The answer stated:
“This defendant says that Mr. George Anderson, the attorney of record for Commercial Contracting Company, Consolidated Underwriters, appeared before the full commission on October 9, 1950 and argued the case. In his argument he did call the attention of the commission to the fact that an application for review had not been filed on behalf of Commercial Contracting Company and Consolidated Underwriters for the injury of 1946. He, however, proceeded to argue the case. He further advised the commissioners that he had no intention of filing a brief on behalf of Commercial Carriers, Incorporated and Consolidated Underwriters with reference to the injury of 1945 nor on behalf of Commercial Contracting and Consolidated Underwriters with reference to the injury of 1946.
“Wherefore, defendant says that without any question the Consolidated Underwriters were before the commission and Mr. Anderson argued the case on review. Therefore, we respectfully request that the application for leave to appeal be denied.”
Appellants answer this statement as follows:
“It is admitted that the commission did send an emissary to find Mr. Anderson, who was trying a case in an adjoining hearing room, and, upon his appearance, he demanded of the commission, ‘Why should I be in here? No appeal has been filed as to my clients.’
“Whereupon, the commission asked Mr. Anderson if he wished to file a brief, and Mr. Anderson re marked that he had not been made a party to the review proceedings, and, consequently, he saw no occasion to file a brief.
“Somewhat jocularly, Mr. Anderson added, that,, at any event, the testimony of Dr. Albert H. Whit-taker had revealed that ‘the last injury of March 15, 1949, was the straw that broke the camel’s back,’ and after further colloquy between attorneys, Mr. Anderson left the hearing room.”
Mr. Anderson did not voluntarily appear before the commission. Appellees admit that Mr. Anderson called to the commission’s attention the fact that an application for review had not been served on his clients, Commercial Contracting Company and Consolidated Underwriters. Under these circumstances, we cannot conclude that Mr. Anderson’s appearance before the commission constituted a waiver of appellants’ right to claim that they were not parties to the proceedings because of lack of proper notice.
Over objections, the deputy commissioner consolidated the separate claims of plaintiff against the various defendants. Such a consolidation did not have the effect of making the parties to one proceeding parties to the other. Each of the causes retained its separate identity. The purpose of such a consolidation was to allow the proofs in one cause to stand as proofs in the other with reference to common questions of fact. National Nut Company of California v. Susu Nut Company, 61 F Supp 86; Johnson v. Manhattan Railway Co., 289 US 479 (53 S Ct 721, 77 L ed 1331).
Plaintiff and appellee contends that the provisions of Rule No 6 of the rules and practice of the workmen’s compensation commission excused the failure to serve a copy of the application for review upon the appellants. Rule No 6 reads:
“Service of all papers, unless otherwise directed by law, may be made by mail and proof of such mail ing will be prima facie evidence of such service. A copy of all petitions and motions, except applications referred to in Rule No 3, shall be served by the moving party upon the adverse party. Proof of such service shall be filed with the Commission.”
We cannot construe this rule to mean that the appeal by Commercial Carriers, Inc., was sufficient to give the commission jurisdiction to determine the rights of Commercial Contracting Company and Consolidated Underwriters, who were not served with notice of the appeal. The fact that the commission sent copies of its letters, orders of continuance, and notice of hearing to appellants’ attorney did not confer jurisdiction over appellants in the appeal for review by Commercial Carriers, Inc.
The appellants notified the commission by letter dated September 7, 1950, that no appeal was taken by appellants from the deputy commissioner’s award and that appellants were not a party to such appeal because they had never received any notice of same.
Appellants were not properly before the workmen’s compensation commission and the commission did not have jurisdiction to determine the rights of defendants and appellants.
This is an unusual case as is disclosed by the fact that no comparable case is called to our attention in the briefs filed.
The record clearly discloses that the commission was erroneously of the belief that Commercial Carriers’ application for review brought before them all of the parties to the proceedings before the deputy.
While appellants were justified in contending that they were not properly before the commission on review and justified in refusing the commission’s suggestion that they file briefs, no injustice will result if this Court, under the cross appeal, refers the matter back to the commission. The commission’s final determination would be based upon the testimony in troduced before the deputy commissioner when appellants were ably represented by counsel. Appellants will be granted the same rights offered them by the commission on October 9, 1950, before the commission made its award.
Because of the unusual circumstances of this case, this Court confirms its previous order of February 18, 1954, granting plaintiff’s motion for leave to file a delayed cross appeal.
Defendant and appellee’s brief is silent as to why it failed to serve notice of application for review upon appellants, except to state: • “It is the contention of the defendant-appellee, Commercial Carriers, Incorporated, that Seessel Armstrong was the only adverse party to the Commercial Carriers, Incorporated, for his cause of action arising out of an alleged injury on March 15, 1949.” Defendant and appellee undoubtedly knew that one of the problems for the commission to determine was which one of the 3 incidents was mainly responsible for the back injury suffered by plaintiff. In determining this question the appellants would be adverse parties to defendant and appellee.
Defendant and appellee’s prayer that this Court enter an order affirming the commission’s order of December 12, 1951, as it concerns the rights of Seessel Armstrong against Commercial Carriers, Inc., is denied.
The petition of plaintiff and cross appellant, Seessel Armstrong, is granted, and the cause remanded to the workmen’s compensation commission.
Butzel, C. J., and Carr, Bushnell, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred. | [
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Hooker, J.
The accompanying plat will servé to show the premises in dispute. They are the land between the dotted and the dark lines and running easterly and westerly, in close proximity to each other, between the land marked “ Turner ” and “ Angus,” respectively. The action is ejectment, and plaintiffs recovered a verdict for the land between said lines, by direction of the court — and defendants have brought the cause to this court by writ of error.
In 1890 the premises now owned by both parties were included in lots 1 and 3, block 6, of Large’s Cable Road Addition to the city of Grand Rapids, which lots were the property of Julius Houseman. They were then vacant, and in the spring of that year he sold the south half of said lots to the defendant James S. Angus, on contract, and built a house for him near a line upon the north thereof, which Angus testified that Houseman pointed
out, and caused to be marked by two stakes as the north line of the parcel contracted. The land purchased by Angus was described as the south half of lots 1 and 2. He received a deed in 1899. In 1892, Hattie M. Amberg, sole heir of Houseman, sold the north half of lots 1 and 2 to Adele Fox. In 1893 she conveyed to Sowerby, and he conveyed to the plaintiffs in 1902. A house was built by Fox. A controversy arose over the boundary between the parties to this action, and that dispute is before us. There is no question of adverse possession, the two questions to be examined being, first, whether plaintiffs are right in their claim as to the true boundary; second, whether the boundary was settled by the line pointed out by Houseman. The circuit judge stated that the testimony showed that there was no disputed boundary at the time that Houseman drove stakes or pointed out the line to Angus, and that, therefore, if such line so pointed out was not in fact the correct one, according to the description in the deeds, although found at the time by an actual survey, the law applied sometimes to settlements of disputed boundaries and subsequent occupancy could not apply, and that the statute of frauds would preclude the claim that the parcel in dispute was covered by the deed, not being described, and that nothing short of the period of the statute of limitations could give defendants title by adverse possession. The case of De Long v. Baldwin, 111 Mich. 466, so conclusively supports this holding that we need not say more about it. See, also, Olin v. Henderson, 120 Mich. 149.
The remaining question relates to the true boundary of the land, as described. Ünder their deeds, the parties are entitled to portions of the north and south halves of these lots, respectively; their line being the line between said halves. Defendants claim that the question of location should have been submitted to the jury, as a disputed one; plaintiffs assert that the testimony was conclusive in their favor. The learned circuit judge correctly said that a division of the lots as originally staked into equal parts, would fix the true line, and that under the theory of the defendants the line pointed out by Houseman failed to so divide the lots, and therefore throws no light upon the subject. The plaintiffs offered testimony, showing that the north line of these lots was at a certain place. Without entering into a statement of the testimony, we may say that it was proper and convincing testimony that he found the correct line of the street, lying to the north of. the premises, at two points — one to the east and one to the west of block 6 — and onr understanding is that there is no testimony that disputes him in this particular. To ascertain the street line at the north of block 6, he ran aline between these points, and found it to coincide, not only with the platted distance from the section line, but also within an inch of the distance at which the street curb was actually laid. The only testimony which is inconsistent with this is that of a man, who, as an employe of the city, fixed the line for laying the curb, and he testified that when he did so there was a stake near that point which was 14 inches north from the straight line referred to. He also testified that there were a number of stakes about there, that he did not know what any of them were, though this looked like an old stake. In the course of his cross-examination he said that he found a stake (as already stated) at (or near) the northwest corner of lot 1, that therefrom, and in a line with each other, extended a line of stakes, both east and west, to the monuments on Diamond and East streets, where the monuments are not in dispute, though the effect of this was to make an angle in the south line of the street at that point, which the plat did not show, that the distance from a straight line between Diamond and East streets and the stake first mentioned was 14i inches, and that the stakes were disregarded, and when the curb was laid, it was placed in the line as straightened 14i inches to the south of the stake at the northwest corner of lot 1. The evidence justifies the conclusion that this still left the platted distance within an inch or so. This testimony tends to prove that the true north line of block 6 was shown by the stakes at the northwest corner of lot 1 and those to the eastward. True, these may not have been correct stakes, and perhaps were not original ones, and that they did not mark the true line is perhaps made the more probable from the fact that they show an overplus of land, and make an angle that the plat does not show; but, under the rule that the trial court recognized, viz., that stakes rather than surveyed line must prevail, a question of fact arose as to whether these stakes marked the original line, and should have gone to the jury. It is obvious that even if this 14-J- inches were to be regarded, the plaintiffs must still recover the greater portion of the land in dispute; but as the verdict 'covers the whole of it, the direction as to a small portion of the land was erroneous, and we .are constrained to reverse it.
Judgment reversed, and a new trial ordered.
Carpenter, C. J., and.McALVAY, Grant, and Moore, JJ., concurred. | [
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] |
Kelly, J.
Defendant, a chiropractor, operates a clinic at Three Rivers, Michigan. Plaintiff started his suit claiming that both of his hands were severely burned as a result of an X-ray treatment he received at defendant’s clinic on October 6, 1948. This appeal is taken'from the court’s judgment for the defendant notwithstanding the jury’s verdict of $3,-500 for the plaintiff.
Plaintiff did ndt go to defendant for treatment of his hands but for a back ailment. Plaintiff testified that every winter he would get “weather cracks” in his hands because as a wood pattern worker he had to work with wood, resin and tar. Defendant noticed this condition and convinced plaintiff he could cure his hands at the same time he gave him treatments for his back. Defendant, testifying as to the condition of the hands, said that plaintiff had an allergy, eczema.
Defendant testified he treated plaintiff’s back ailment by massage and diathermy, using an “electrical instrument that generates heat,” and stated: “I gave adjustment, massage to him and my assistant gave the diathermy and that part of it.” Plaintiff had appointments at the clinic 3 times a week, but he received X-ray treatments for his hands every second or third appointment. Defendant gave plaintiff’s hands 5 X-ray treatments previous to October 6,1948.
Defendant had 2 employees at his clinic, Yelda Parks and Bonnie Esterbrook. They are referred to as nurses in the briefs but the record does not disclose the nature or extent of their training or whether they were registered nurses.
. When plaintiff kept his appointment on October 6,1948, he was advised by Velda Parks that “Bonnie has forgot about you and gone home, she is supposed to give you your treatment, I will call her back.” Bonnie Esterbrook came back to the clinic in response to Velda Parks’ call, and while she was giving the X-ray treatment to plaintiff’s hands a muffled explosion was heard. Plaintiff testified that on his way home his hands commenced to burn, that he could smell burned flesh, and that his hands were all red when he arrived home. On his next regular appointment at the clinic, 3 days later, plaintiff showed his hands to defendant, stating he thought he had had too strong a treatment. Defendant said: “My goodness, your hands are burned. * * * I am glad the tube burst because if it had not burst, you would not have any hands.”
Both Dr. Grekin, an expert witness in skin treatment and use of X-ray, and Dr. Hildreth, a specialist in X-ray and radiology, testified, and. the record is convincing that plaintiff suffered X-ray burns from an overdosage of X-ray; that the palms of both hands were burned to such an extent that not only will the injury be permanent but with the danger that the X-ray dermatitis will break down into cancer.
Defendant was called to the stand by plaintiff for cross-examination under the statute. He did not attempt to explain or defend the actions of his employee Bonnie Esterbrook. He stated he was in Ohio on October 6, 1948, that he had never authorized her to give the plaintiff the X-ray treatment, nor had she ever given plaintiff a treatment previous to October 6th. Defendant testified that when he returned from Cleveland to his clinic he found the tube of his X-ray machine burned out.
The trial court in his opinion stated: “Neither Velda Parks nor Bonnie Esterbrook were parties defendant, nor were either of them called as witnesses in this case by either party, so we do not have the benefit of their testimony. It is not known whether they were available or not.”
Defendant answers plaintiff’s claim of negligence by merely saying that he never authorized his employee Bonnie Esterbrook to use the X-ray. Defendant did not testify that he cautioned her against using the X-ray machine or forbade her its use and admits that previous to October 6th she used electrical instruments generating heat to give diathermy treatments to plaintiff.
The court gave as his reason for rendering judgment notwithstanding the verdict that plaintiff failed to prove that it was the usual and customary practice for Bonnie Esterbrook to give X-ray treatments or that the treatment was given under the direction of the defendant.
There is nothing in the record that even allows speculation that Bonnie Esterbrook gave the treatment for her own profit or gain. As defendant’s employee she was using defendant’s clinic and X-ray machine to give a treatment to defendant’s patient and there is every reason to conclude that she thought she was furthering her employer’s interest in so doing. There was sufficient evidence to sustain the jury’s verdict that Bonnie Esterbrook was authorized to give the plaintiff the X-ray treatment. This Court has held: “In considering a motion by defendant for a judgment non obstante veredicto, the evidence must be viewed in the light most favorable to plaintiffs; the same considerations obtaining as upon a motion to direct a verdict.” Yacobian v. Vartanian (syllabus), 221 Mich 25. But even though Bonnie Esterbrook was exceeding her authority in using the X-ray machine, that would not excuse defendant from negligence.
In Riley v. Roach, 168 Mich 294 (37 LRA NS 834), this Court defined the term “in the scope of his employment” as follows (p 307):
“The phrase fin the course or scope of his employment or authority,’ when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business.”
In Chicago & Northwestern Railway Co. v. Bayfield, 37 Mich 205, 212, 213, it is stated:
“Nor do we think it follows that because Smith at the time was exceeding his authority, the company is not responsible for his action. It is in general no excuse to the employer that an injury which has occurred was caused by disobedience of his orders, whether they be express orders or implied orders. He assumes the risks of such disobedience when he puts the servant into his business; and the reasons for holding him responsible for the servant’s conduct are the same whether the injury results from a failure to observe the master’s directions, or from neglect of the ordinary precautions for which no specific directions are deemed necessary. It will be conceded that for a positive wrong beyond the scope of the master’s business, intentionally or recklessly done, the master cannot be held responsible; this being very properly regarded as the personal trespass or tort of the servant himself. But when the wrong arises merely from an excess of authority, committed in furthering the master’s interests, and the master receives the benefit of the act, if any, it is neither reasonable nor just that the liability should depend upon any question of the exact limits of the servant’s authority. The master fixes these, and it is his duty to keep his servant, in what is done by him, within the limits fixed. An act in excess would still have the apparent sanction of his authority; the occasion for it would be furnished by the employment, and the injured party could not;,always be expected to know or be able to discover whether it was or was not without express sanction.”
In Loux v. Harris, 226 Mich 315, we said (pp 317-322):
“The declaration charged defendant with liability as master of Wagner. Defendant admitted the relation, denied Wagner was afating within the scope of his employment and had verdict in his' favor because Wagner disobeyed his instructions. Was the trial judge in error in directing a verdict for defendant? * * *
“This suit is an .action by a third person against the owner of an automobile for a tort committed by a servant while about his master’s business. The motor vehicle statute extends liability of an owner to cases other than master and servant where an injury is occasioned by the negligent operation of an automobile ‘being driven by; the express or implied consent or knowledge of such owner.’ This, hotuever, is a common-law action against a master for the negligence of his servant while about the master’s business and, in considering the legal questions, the statute relied' upon in the court below must be laid entirely aside. An extended examination of text books and case law upon the subject of. liability of a master for- torts of a servant discloses quite general agreement upon certain principles. Some of such principles will be mentioned for we intend to apply them. (Emphasis supplied.)
“Selling gasoline .was a part-of defendant’s business and, therefore, within the scope of Wagner’s employment. Wagner violated instructions in taking the gasoline to the stranded renter of one of defendant’s cars. In doing this was he about the business of defendantror was his act a seyerance in and of itself of his relation to his master's business? Was he.driving on his master’s business? Certainly he was hot driving on. his own affairs. Disobedience of how to handle business placed in his.charge did not relieve the master.:- The liability of defendant depends npion whether' Wagner., in taking gasoline to the renter of one of defendant’s cars, was acting within the scope of his employment.
“In Riley v. Roach, 168 Mich 294; 307 (37 LRA NS 834), it was said:
.“ ‘The phrase “in the ,course or scope of his employment or authority,” when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business.'
“See, also, Hartley v. Miller, 165 Mich 115 (33 LRA NS 81, 1 NCCA 126); Brinkman v. Zuckerman, 192 Mich 624; Hill v. Haynes, 204 Mich 536.
“Wagner was authorized to sell gasoline at the garage. He made a , sale of what he was employed to sell but delivered the article in disobedience of instructions given him by his master, and employed defendant’s vehicle in doing 'so, contrary to the master’s instructions. He was, therefore, about his master’s business but acting in a forbidden way. Wagner’s disobedience in not notifying the defendant and in leaving the garage and using the automobile did not place him outside of the scope of his emplovment. * * *
“In Smith v. Yellow Cab Co., 173 Wis 33 (180 NW 125), a taxicab driver, in violation of his master’s instructions, took passengers outside of ,a city and, Avhile returning, caused an accident. It wás claimed the servant was outside the scope of his employment. In passing on this claim the court said [pp 35, 36]:
“ ‘If it were true that a servant is outside the scope of his employment whenever he disobeys the orders of his master the doctrine of respondeat superior would have but scant application, for the master coidd always instruct his servant to use ordinary care under all circumstances. The servant’s negligence would therefore always be contrary- to orders and the nonliability of the master would follow. But such is not the law. The servant is within the-scope of his employment when he is engaged in the mas ter’s service and furthering the master’s business though the particular act is contrary to instructions. The purpose of the service rendered by the employee, and not the method of performance, is the test of whether or not the servant is within the scope of his employment. If the purpose is to further the master’s business and not that of the servant, the latter is within the scope of his employment though he be negligent or disobeys orders as to the method of its execution.’ * * *
“The tort of the servant was committed while he was about the business of his master and not while on any affair of his own. The case should have been left to the jury.”
This Court in Loveland v. Nelson, 235 Mich 623, considered a malpractice suit involving the extraction of a tooth. At the close of plaintiff’s proofs the trial judge directed a verdict on the ground that the testimony left the question of the proximate cause of plaintiff’s condition too conjectural to authorize the submission of the case to the jury, and that without adopting res ipsa loquitur no negligence of defendant was established. We said (p 625):
“This Court has not adopted the rule res ipsa loquitur but this does not prevent a plaintiff making a case by circumstantial evidence. In Burghardt v. Detroit United Railway, 206 Mich 545 (5 ALR 1333), this Court, with the citation of numerous sustaining authorities, said:
“ ‘This Court has not adopted the rule res ipsa loquitur; we have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts that at least a prima facie case is made.’
“And it is the province of the jury to draw the legitimate inferences from the established facts in this character of cases. Marx v. Schultz, 207 Mich 655 (19 NCCA 976); Wood v. Vroman, 215 Mich 449. The Wood Case was a malpractice case, and it was said by Mr. Justice [Nelson] Sharpe, speaking for the Court (pp 461, 462):
“ ‘The plaintiff was not required to prove to an absolute certainty that the infection was caused by the introduction of the germs in the pus. He was required to establish facts from which such an inference might fairly have been drawn by the jury.’
“So, if the plaintiff’s testimony, taken in its most favorable light, tends to make such a case that, by excluding other causes and the establishing of the circumstances surrounding the incident, the jury would, by drawing the legitimate inferences from the established facts, find negligence on the part of defendant, they have established at least a prima facie ease entitling them to take the judgment of the jury.”
Appellee in his brief urges the point that general principles controlling responsibility in master and servant cases are not applicable in this instance and states that “there is a limitation to the general rules of agency or master and servant.”
The only authority appellee cites for making this exception is 41 Am Jur, Physicians and Surgeons, §112, pp 223, 224:
“It is the established rule that a physician or surgeon must exercise due care in selecting his assistants, and on the simplest principles of the law, agency, or of master and servant, a physician or surgeon may be liable for the neglect or fault of his employee or servant, such as an assistant who is working under his direction, for injury resulting therefrom to a patient.”
We do not believe the above-cited section confines responsibility of a physician or doctor to only acts which are committed by the assistant who is working under the direction of the doctor.
In 70 CJS, Physicians and Surgeons, § 54, pp 978,, 979, it is stated:
“A physician is responsible for an injury done to a patient through the want of proper skill and care in his assistant, and through the want of proper skill and care in his apprentice, agent, or employee. The fact that a physician’s assistant is a’ member of' the same or a similar profession does not make the rule of respondeat superior inapplicable, and a physician is liable not only for negligence of laymen employed by him, but also for the negligence of' nurses or other physicians in his employ.”
Massachusetts has adopted a different principle than is advocated by appellee, as is evidenced by McDonald v. Dr. McKnight, Inc., 248 Mass 43 (142 NE 825). In a tort action against a dentist for personal injuries alleged to have been caused by the negligence of the employee of the defendant the court held (syllabi):
“(1) The question, whether the extractor of the tooth was acting within the scope of his ostensible employment as between the parties, was for the jury;
“(2) The plaintiff had a right to trust to appearances and to the not unreasonable assumption that the defendant would not permit unauthorized persons to appear to be acting as his agents; and he could not be expected nor was he required to ask for proof of the authority of the cashier or of the registered dentist or of the extractor of the tooth;
“(3) The defendant could not avoid liability by evidence that the extractor’s authority was limited.”
In McConnell v. Williams, 361 Pa 355 (65 A2d 243), the doctor was charged with being responsible for the negligent acts of an interne in a hospital after a baby’s birth and after the doctor gave the baby to tbe interne to apply drops to the baby’s eyes. The court said (p 357):
“Physicians and surgeons, like other persons, are subject to the law of agency.”
In the New Jersey case of Klitch v. Betts, 89 NJL 348 (98 A 427), the question was presented as to a dentist’s negligence fo.r the improper extraction of a tooth by his assistant. The court stated (pp 351, 352):
“The claim that the relationship of master and servant did not exist was based upon the fact that Snively’s hours in the defendant’s office were from 9 a.m. to 6 p.m., and that he was not authorized to extract teeth except under the supervision of the defendant, the contention being that because the tooth was extracted after 6 o’clock, and in the absence of the defendant, it was the independent act of Snively, and not done in the course of his employment. What Snively did was within his implied authority, and even if done without the authority of the defendant, for any violation of general rules laid down for Snively’s guidance the master is still responsible. When the defendant employed Snively and left him in charge of his office so that persons going there had a right to infer that he represented the defendant, the mere fact that it was after 6 o’clock did not destroy the relation of master and servant.
“The general rule is a very clear one, that the master is liable for any act of his servant done within the scope of his employment, and if a servant is acting in the execution of his master’s orders, and by his negligence causes injury to a third party, the master will be responsible, although the servant’s act was not necessary for the proper performance of his duty to his master or was even contrary to his master’s orders. McCann v. Consolidated Traction Co., 59 NJL 481, 487 (36 A 888, 38 LRA 236).
“The application of the rule respondeat superior does not depend upon the obedience- of the servant to his master’s orders, nor upon the legality of the servant’s conduct; where a servant is acting within the scope of his employment, and in so acting does something negligent or wrongful, the employer is liable, even though the acts done may be the very reverse of that which the servant was actually directed to do. Driscoll v. Carlin, 50 NJL 28, 30 (11 A 482). * * *
“To rebut the presumption of liability of a master for damage consequent upon the negligent act of a servant, done within the apparent scope of the latter’s employment, it must be shown either that the act was purely wanton or that it was not performed in furtherance of any duty within the actual scope of the servant’s authority. Rhinesmith v. Erie Railroad Co., 76 NJL 783 (72 A 15).
“In cases where the scope of authority of a servant or agent depends upon disputed matters of fact, the extent of such authority is ordinarily a question for the jury. Dierkes v. Hauxhurst Land Co., 80 NJL 369 (79 A 361, 34 LRA NS 693).”
There are no statutory provisions in this State applicable to the question presented to this Court, and, therefore, the common law determines the question of defendant’s liability for the admitted negligent burning of plaintiff’s hands. If the common-law rule is to be abandoned in this State it will have to be through legislative enactment rather than by a decision of this Court.
The defendant’s negligence in this case was established because;
1. There was sufficient evidence that the defendant authorized the X-ray treatment to submit the question to the jury and sufficient evidence to sustain the jury’s verdict;
2. It was not necessary for the plaintiff to prove that it was the usual and customary practice for Bonnie Esterbrook to give X-ray treatments or that the treatment was given under the direction of the de fendant. There was sufficient evidence that Bonnie Esterbrook gave the X-ray treatment within the scope of her employment and to further the interest of the defendant rather than her own interest. We cannot sustain the trial court’s reason for judgment notwithstanding the verdict.
Defendant urges another reason not mentioned by the lower court for sustaining the judgment for defendant notwithstanding the verdict, namely, the failure of the plaintiff to meet the proof required in Ballance v. Dunnington, 241 Mich 383 (57 ALR 262); Nemer v. Green, 316 Mich 307; Facer v. Lewis, 326 Mich 702. In each of these cases this Court stated that the defendant physician’s responsibility to his patient would be determined by deciding whether he exercised the reasonable and ordinary care, skill and diligence possessed by others in the same line of practice in similar localities. The reason for these decisions is obvious—to determine the responsibility of the physician who claimed to be qualified to administer X-ray treatments.
The above-cited cases do not apply to the present case. No one, including the defendant, claimed that Bonnie Esterbrook was qualified to administer X-ray treatments, and all the facts and circumstances justified the jury’s finding that she was not qualified.
The judgment for the defendant notwithstanding the verdict is reversed and the case is remanded with directions to the trial court to enter a judgment in favor of the plaintiff in accordance with the verdict of the jury. Costs to plaintiff.
Bittzel, C. J., and Carr, Bushnell, Boyles, and Reid, JJ., concurred with Kelly, J.
Dethmers, J. I concur in result for the first reason herein advanced.
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Ostrander, J.
(after stating the facts). The question is not whether the identical property which was destroyed was insurable by defendant if it was upon a farm and used as farm property, because it is conceded that it was not upon a farm nor used in. any way in connection with a farm or with farming. Kept in a building rented and used for a slaughterhouse, and a part of the paraphernalia of the business of slaughtering there carried on, it was not, in fact, property such as, under the statute referred to, the defendant had the right to insure.
Aside from a contention raised by the defendant that plaintiff should have submitted his demand to arbitrators, the case of the appellant in this court is made to rest, as we understand the brief, upon the testimony, either offered ;and rejected or offered and received, tending to show that the president of the company knew what property plaintiff desired to have insured and with that knowledge took the application, making it out himself, and issued the policy ; that the same property, or property in the same building, had been before insured in defendant company; that after the fire the president of the company had admitted that he always knew that it was a slaughterhouse, and that by accepting the application, when the director and president of the defendant knew that the building in which the property was situated was a slaughterhouse, .and receiving assessments from the plaintiff for two years, the defendant is estopped to deny liability; that, in any event, the testimony should have been submitted to the jury with proper instructions.
The testimony offered for the plaintiff does not tend to prove that he acquainted the president of the company at the time of making his application with the fact that he was carrying on at the place in question the business of slaughtering animals, or that the property which was sought to be insured was used in carrying on said business. Nor does it appear that the president of the company knew that the property which plaintiff desired to have insured was, in its use or otherwise, property not insur.able by the company. . But, admitting that if defendant was a stock company, authorized to carry on, generally, the business of fire insurance, the testimony was sufficient to require the case to be submitted to a jury to determine whether the company was estopped to deny liability, it does not follow that the court below committed error. Defendant is not authorized to insure any and all personal property, but to insure certain classes of personal property, “being upon farms as farm property.” In form, the contract of insurance described property insurable by de. fendant. No such property was destroyed. A contract insuring the risk which plaintiff claims was actually covered, the defendant company could not lawfully make. Plaintiff was hound to know this. He was both insurer and insured. As contract holder, he is presumed to have knowledge of the terms of his contract, and as member of the defendant company, to have knowledge of its powers.
In Eddy v. Insurance Co., 72 Mich. 651, it appeared that the business of the company was, by the act of incorporation, restricted to certain territory. An amendment to the statute removed the territorial restrictions. The amendatory law was held to be invalid. A risk taken upon property outside the original territorial limits of business, during the time the amendatory statute was ^supposed to be in force, was held to be void as one which the company had no power to assume, although the company received and retained a premium of 1100, and was, upon the facts, otherwise liable.
It has been held that where a statute prohibits mutual companies from insuring property not owned by members of the company, regular members were not estopped by having received the benefit of insurance to deny liability to assessment to pay losses on policies issued by the company to nonmembers of which they had no knowledge. Corey v. Sherman, 96 Iowa, 114 (32 L. R. A. 490). So, where mutual companies were forbidden to insure one not a member or to receive premiums, it was held that a policy, issued to one not a member and who paid a' premium, was void, and that the company was not estopped to plead that the contract was ultra vires, since the insured was presumed to know that the contract was prohibited. In re Assignment of Mutual Guaranty Fire-Ins. Co., 107 Iowa, 143. And see, generally, 21 Am. & Eng. Enc. Law (2d Ed.), pp. 267, 268.
The judgment is affirmed.
Grant and Blair, JJ., concurred with Ostrander, J. | [
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Boyles, J.
Plaintiff Ellen Hoffman was granted a decree of divorce from which she appeals. Her only claim here for review is that the property settlement, in the decree is grossly inadequaté and unfair to her.
Tlie parties were married in 1941 and separated in 1949, at which time the plaintiff filed a bill of complaint for divorce which was dismissed by the trial court, affirmed by this Court in Hoffman v. Hoffman, 329 Mich 486. In 1951, the plaintiff filed a second bill for divorce, charging the defendant with additional acts of extreme cruelty subsequent to the allegations in her former bill. The trial court heard the proofs and granted a divorce to the plaintiff, from which the defendant has not appealed.
We hear the case de novo on the sole ground claimed by the appellant that the property settlement is inequitable.
The decree awarded the plaintiff $21 per week for the maintenance of their only child, a boy now 11 years of age, and no other maintenance or alimony. At the time of the trial the plaintiff and the boy were living with her father. She was unemployed and had no property of her own.
The decree awards the plaintiff the household goods and $1,500, payable in quarter-annual instalments of $375, in lieu of dower or any other interest or claim she may have in the property of the defendant.
The only testimony in the record as to the property of the defendant is that given by him when called by the plaintiff for cross-examination under the statute. He testified that they owned, as husband and wife, a home in Montague, Muskegon county, first acquired by using $4,900 from the sale of a former home standing in both their names. He testified that this property was worth $10,000. The record does not indicate that there is any encumbrance on it. He further testified that in 1946 he and his brother, as partners, purchased on contract a brick-stone building in Montague, known as Kroll’s Tavern, and the tavern personal property in it, for $60,000—$40,000 for the real estate and $20,000 for the tavern. They paid $15,000 down, and the balance, at the rate of $200 per month, has been paid until at the time of the hearing in August, 1952, the balance due on the contract on the real estate was $20,378 and on the tavern $10,838. According to defendant’s testimony, his property interests at the time of the trial were worth about $25,000—material-ly increased since by payments. He testified he owed his brothers $10,000. He had no property of any substantial value except said home and his half interest in the tavern and building. He testified his net income for 1951 (the year prior to the hearing) was $5,710.24, and indicated that for 1952 it would be about the same.
The award of property to the plaintiff was grossly inequitable. It has mostly been acquired during the marriage. As a minimum, in addition to the provisions made for her by the decree, she should have been awarded an equal interest as a tenant in common in the home owned by them as tenants by the entirety. CL 1948, § 552.102 (Stat Ann § 25.132). See Allen v. Allen, 196 Mich 292; Szatynski v. Szatynski, 327 Mich 613. She has the custody of the boy, no home except with her father, no property, and no particular earning power. She should have at least approximately 1/3 of their property. The defendant will be left with his income-producing business as well as a half interest in the home.
A decree may be entered in this Court conforming* to the provisions in the decree from which plaintiff has appealed, with the addition that the parties shall be tenants in common of the home owned by them in Montague, and further providing that the decree be remanded to the trial court for enforcement. Costs to appellant.
Butzel, C. J., and Carr, Bushnell, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred*
See CL 1948, § 617.66 (Stat Ann § 27.915).—Repostes. | [
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McAlvay, J.
Plaintiff brought suit March 2, 1905, .against defendant in the Wayne circuit court upon three •certain promissory notes and interest at the rate of 7 per cent., made and executed August 13, 1892, as follows: One for $500 due one year after date; one for $740 due two years after date; and one for $729 due three years after date. On the $500 note there were several indorsements of $10 each, the last of which is dated September 20, 1894. No payments were made on the two other notes. Defendant pleaded the general issue, and gave notice of the statute of limitations. It is admitted that the notes on their face are barred by the statute. Appellant claimed that the bar of the statute had been removed by new promises in writing made by defendant. The notes and the letters which were claimed ■to contain such new promises were offered in evidence by' plaintiff. No evidence was offered by defendant.' The trial judge held that the language of the letters could not be construed as amounting to an acknowledgment of indebtedness and a new promise to pay, and instructed a verdict for defendant.
The only question in the case is whether the court erred in his construction of the letters, and in directing a verdict. Plaintiff lived in Toledo and defendant in Detroit. The notes were given in settlement between them of a certain business venture in which they had been engaged. The correspondence upon which plaintiff relies was had between them in October, 1902.
Plaintiff wrote defendant October 7th:
“ Kindly get me the abstract on those lots of mine as soon as possible and give it to Mr. Wood. I may be able to get the money I want on them here, and if so will want the abstract. Do not give up trying to get for me in Detroit, as I may fall down on it here. I am counting on your paying the $500 on the first of' Nov. as I’ll haye to have it or will not be able to do as I want to.”
Defendant answered October 14th:
“ I will have the abstract out of Burton’s office and will deliver to Mr. Wood. Please let me know whether or not you have the loan. I do not like to ask people to loan money when I do not know whether or not the loan will be needed. I am working hard; next week will have auction sale that I am certain will give me money to pay you. I have made money all year, but it is hard to get cash when I want it. Will write you again in a few days.”
Plaintiff wrote again October 16th:
“Yours of the 14th, inst. received, and in reply will say that I have not been able to make the loan here as I hoped when I wrote you before, so leave it to you to get it for me,' and I hope you will be able to get more than $500.00 on the lots as I need the money. I send the deed to Mr. Wood the first of the week. * * * I think I told you that I must have the money by Nov. 1st, or it’s all off with me, so keep things stirred up and be Johnny on the spot.”
Defendant wrote October 27th: _
‘ ‘ I suppose you have wondered why I did not answer your last letter. I waited because I wanted to know just what I could do. I have bent all my work to get money' for you, and it was not till today that I was sure. I will be able to send you $500.00 for myself on the 1st, and I have no doubt I will be able to secure you $500 on the lots. * * * ”
Defendant wrote again October 29th:
“Now in regard to, our matter. Yesterday I was offered cash for a piece of property here that I had not figured on selling till next year in the spring or summer. The offer is about $1,500 less than I had figured on getting, but I want to get cleared up and I thought you would be willing to help. You will, of course, remember the nature of the deal. * * * I agreed to take entire responsibility for everything and included in the notes even salary to you for the time we were together. Of the Toledo lots everything that I received went to clear up the indebtedness, and I still have $500 to pay. Should I pay the notes on the basis you proposed, I would be out on the deal altogether about $5,000 in cash, more or less, and you would have had a much better investment for your money than if it had been in the bank. As I look back at it, the division of loss does not seem proper. Of course you have my notes. I think they are outlawed, but that question need not enter into the matter. If you will say that you will take $1,000 now and give me back the notes I will endeavor to make sale I spoke of in first part of letter. If you do so and in the future you need any money I will endeavor to give it to you. In thinking this over try to put yourself in my place. Remember I am not backing up or repudiating anything. In any way of looking at it I cannot but think I made a mistake of inexperience and youth in giving the notes. Now that I am older and see that others do not use me that way I feel that I have a right to endeavor to lighten my.burden.”
Plaintiff answered this letter November 3d:
“* * * I was very much surprised when I read your proposition, and I do not feel that I can accept it. These notes have been running a long time and you have not paid anything on them and it has been very hard for me, as I have needed the money but I have not pushed you, and I feel that I have done all I can. I made you a good offer in Detroit and you accepted it, and that more than took off the item of salary which was $240 only. I hope you will get the money for me on my lots, and also send me the agreed $500 on the notes at once as I am waiting for it, before I can do anything here, and I agreed to make good Nov. 1.”
In the foregoing letters of defendant everything is given which bears upon the notes in question. Letters written by plaintiff are given because he cláims that as part of the correspondence they are material. These are the writings which plaintiff claims amount to a new promise on the part of defendant. In his brief plaintiff fairly and clearly states the proposition before us in this case.
“The question then is: Has Mr. Russell in his letters to Mr. Throop made such new promises as to constitute an acknowledgment of the debt sufficient to remove the bar of the statute and revive the debt for six years from the date of such letters ? ”
In this State the law is well settled as to what constitutes a new promise in writing sufficient to remove the bar of the statute. This court has said:
“ Whenever a new promise is set up to remove the bar of the statute, it ought to be proved in a clear and explicit manner, either expressly, or in such unqualified acknowledgment as authorizes its implication. ' * * * And although it is held ño set form of words is requisite to constitute a sufficient acknowledgment, and that it may be inferred from facts without words; yet the acknowledgment ought to contain an unqualified and direct admission of a present subsisting debt which the party is liable and willing to pay and be unaccompanied by any circumstances or declarations which repel the presumption of a promise or intention to pay.” Ten Eyck v. Wing, 1 Mich. 40, and cases cited.
This is the leading Michigan case and the learned judge in the able opinion cites and digests the leading English and American authorities. This case has been accepted as the law in this State upon this question.
In the case at bar the writings of defendant relied upon as a sufficient acknowledgment to create a new promise-are all set forth above. The letters from plaintiff which are given in this opinion, and to which the letters of defendant are answers, make no direct mention of the notes in question except the last one in answer to the proposition of settlement. The letter of October 29th, written by defendant, is the one upon which plaintiff places most reliance. The entire part material to the case has been quoted. Defendant, in portions not necessary to give in this opinion, states how the indebtedness on the notes arose, and his present financial condition. He says:
“ Of course you have my notes. I think they are outlawed, but that question need not enter into the matter. If you say you will take $1,000.00 now and give me back the notes I will endeavor to make sale I spoke of in first part of letter. If you do so, and in the future need any' money I will endeavor to give it to you. In thinking this over put yourself in my place. Remember I am not backing up or repudiating anything.”
We construe this to be a proposition by defendant, who knew the notes were outlawed, that if the plaintiff would surrender them he would pay him $1,000. To this proposition plaintiff replied:
“I was very much surprised when I read your proposition and I do not feel that I can accept it.”
The proposition was conditional, it contains no promise to pay unless the condition was accepted, and we do not construe it as a waiver of the right to rely upon the defense of the statute.
In the case of Rumsey v. Settle’s Estate, 120 Mich. 372, relied upon by plaintiff, and in which this court held fhat the letters of decedent contained a new acknowledgment and promise to pay, the letters state “ I will say this, that every cent I owe you will be paid,” and, “ * * * and I owe you. Now I want to fix your matter up in some way; that is, give you a new note, or if you think a note worthless, what will you take in cash and balance all I owe you ?”
It will be noticed that in the first letter, written before any of the notes were outlawed, there is an explicit acknowledgment of the indebtedness and a promise to pay, which the court held would prevent the running of the statute for six years thereafter, and the second letter, written two years before that time expired; was to the same effect and operated in the same way. It will be seen that Rumsey v. Settle’s Estate, supra, is easily distinguishable from the case at bar.
In the case of Halladay v. Weeks, 127 Mich. 363, the promise was held to be a conditional one and not sufficient' to comply with the statute.
Our conclusion is that the circuit judge was right in holding that under the decisions the evidence offered was not such an acknowledgment of the indebtedness that a promise to pay could be inferred therefrom.
The judgment is affirmed.
Carpenter, C. J., and Grant, Blair, and Moore, JJ., concurred. | [
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Dethmers, J.
Defendants appeal from an order confirming jury verdict in condemnation proceedings. Defendants Luther and Irene Wilber, husband and wife, hereinafter called parents, are record title owners of the entire premises sought to be taken, and their son and his wife, defendants Donald and Constance Wilber, hereinafter called children, are alleged in the pleadings to be in possession of a portion thereof as contract purchasers.
Plaintiff’s petition alleged that parents were the only persons who owned or had any claim to the premises. They answered, alleging that other persons were in possession of a portion thereof under a land contract, without naming such persons or describing the portion thus affected. Plaintiff, on leave granted, then amended its petition to allege that insofar as petitioner knew or could with diligence ascertain parents owned the entire premises in fee and children, as land contract vendees, resided on the northeasterly portion of lot 101. Parents answered, admitting said allegation and further alleging that children were contract vendees of the northeasterly portion of lot 101, describing said portion as being lot 10 of a proposed plat. Children appeared by the same attorneys ás parents and filed an answer which adopted the answer of parents.
On trial plaintiff introduced proofs that the records of the office of register of deeds disclosed parents to be the sole owners of the entire premises in fee. Plaintiff offered no other evidence of ownership nor did defendants or their witnesses testify to an interest in children. Defendants placed an expert witness on the stand to testify concerning the valué of the premises. He did not testify as to a separate value to be placed on any portion being purchased by children, but, on the contrary, testified only as to the value to be placed on the entire premises.' The record supports the statement of the trial court that the attorney for defendants, in a lengthy opening statement, never mentioned children or indicated that they were entitled to a share in the award, but based his statement entirely on the premise that parents were the sole owners and entitled to any damages resulting from a taking; that the entire case Avas presented on that basis; that no proofs were offered as to a contract interest in children nor any proofs upon which an aAvard to them could properly have been made by the jury. The court Avent on to say that defendants’ attorney failed, even in his closing argument, to make any mention of children or their interest and that he made no request that the jury return a separate aAvard to them.
The jury found necessity for the taking and awarded compensation in the amount of $40,000.06, employing for that purpose a blank verdict form Avhich recited that they found it necessary to take the private property described in the petition and that the compensation to be paid was the mentioned amount, but spaces in the form intended for description of the property and for names of owners to whom compensation was to be paid were left blank by the jury. On plaintiff’s motion, supported by the testimony of the jury’s foreman that this -was in accord with the jury’s intention, the court ordered the verdict form to be amended to show the description of the entire premises and to name parents as the persons who were the owners to whom the award was made and ordered the foreman to sign it as amended.
Defendants claim error in failure of the jury to award compensation to children. The latter were made parties to the case, entered an appearance, filed an answer, were represented on trial by the same counsel as parents and had their day in court. That plaintiff’s petition and defendants’, answers contained the mentioned references to a land contract does not alter the fact that children failed to assert any interest in the premises during the hearing. They permitted their counsel to proceed as if the property involved was one piece belonging to parents only. That the proceedings ended in no award to them constituted no failure of due process in view of the course pursued by them and their counsel at trial inasmuch as they were given every opportunity to assert their rights and neglected to do so. They cannot now challenge the verdict for failure to make a separate award to them. Despite superficial differences in the facts in the cases, this is the only conclusion possible within the meaning of Todd v. State Highway Commissioner, 227 Mich 208. It follows that the court did not err' in ordering the form of verdict amended in the manner above indicated inasmuch as the record contained nothing that would have supported an award of- compensation to anyone other than parents. PA 1911, No 149, § 11 (CL 1948, § 213.31 [Stat Ann § 8.21]), permits the descriptions and names of occupants or owners to be. inserted in the blank verdict by either the court or the jury. Section 12 of that same act, being.the act under which these proceedings were brought, provides in part as follows:
“Amendments either in form or substance may be allowed in any paper, petition, process, record or proceedings or in the description of the property proposed to be taken, or the name of any person whether contained in the resolution passed by the public corporation or State agency or otherwise, whenever the amendment will not interfere with the substantial rights of the parties. Any such amendment may be made after as well as before judgment confirming the verdict of the jury.”
That amendment of the verdict is permissible under the statutory provision when substantive rights of parties are not injuriously affected was held in City of Detroit v. Fidelity Realty Co., 213 Mich 448. In view of the state of the record, the amendment here made was authorized by the statute.
The petition described the entire premises to be taken, named the record title owner thereof and alleged on information and belief that children held a contract interest to a portion thereof. Was the petition defective for failure to separately describe the parcel occupied by children as alleged vendees'? So contending, defendants cite Chicago & M. L. S. R. Co. v. Sanford, 23 Mich 418. Involved there was CL 1857, § 1963 et seq., the provisions of which permitted a jury trial to those owners demanding it while leaving a jury deemed to have been waived by other owners involved in the same proceedings. The Court discerned therein a legislative intent that the parcels of individuals and separate owners should be separately described and the owner of each specifically named in order to implement the holding of jury trials for some and nonjury trials for the others. The statute here involved, CL 1948, § 213.25 (Stat Ann § 8.15), provides, in part, as follows:
“The petition shall state among other things that it is made and filed as commencement of judicial proceedings * * * designating the same. * * * A description of the property to be taken shall be given, and also the names of the owners and others interested in the property so far as can be ascertained.”
The quoted language does not reveal a legislative intent that the petition shall describe separate parcels within the entire premises described as being the property to be taken merely because there may happen to be unrecorded legal interests attaching to such individual parcels within the fee being condemned.
Parents in their statement of questions involved bring into question the correctness of the court’s rulings on admissibility of proffered evidence in 4 respects, as follows:
a. The court’s admission of amendments to a zoning ordinance, which were adopted after commencement of the condemnation proceedings, changing the permissible use of the property in question from industrial to single-residence purposes. In this connection the legal question is raised whether the value of the property taken is to be determined as of the date of commencement of proceedings or date of trial. The facts in the case make a determination of that legal question unnecessary here. Plaintiff’s appraisers testified that in their opinion the fair market value of the entire premises was $33,250 and that in arriving at that opinion they had considered all the possibilities for industrial, commercial or other uses of the premises, but had concluded that its highest and best use would be for single residences. One of defendants’ appraisers was permitted to testify that in his opinion the best use was for multiple dwellings and that, as such, he fixed its value at $150,000. The court instructed the jury that it was possible for the ordinance to be amended again to allow multiple dwellings or other uses, that the city was contemplating a rezoning program and that the jury had a right to take those facts into consideration ; and, further, that if it found that the premises were suitable for apartment building purposes or other uses suggested by defendants and found such use to be its highest and best use, then it should make its award on that basis. Consequently, the error complained of, if any, was harmless.
b. The court’s exclusion of the answer of a defendants’ witness to the question whether he knew of any spaces available for rental at that time. Counsel stated that he sought to show thereby that the location in question was particularly beneficial to parents’ business and that removal to another location would cause damage to the business. Any evidence going to the question of the highest and best use of the premises, including its use for the purposes of defendants’ business, was material and admissible as bearing on its value. Evidence of the character here proffered was not material thereto and was therefore inadmissible.
c. The court’s exclusion of the answer of a defendants’ witness to the question whether he knew the asking price for parcels in the vicinity.
“We hold that knowledge of specific sales of property of similar character may be employed by a witness in forming an opinion of the value of other lands equally circumstanced, but other specific sales of similar land and prices paid therefor may not be introduced as substantive evidence of the value of a particular parcel.” Commission of Conservation v. Hane, 248 Mich 473, 477.
If, as held in Hane, sale prices of similar lands are not admissible as substantive evidence of the value of a particular parcel, the asking prices therefor would he even less so. The exclusion was not error.
d. The court’s alleged exclusion of evidence of the value of the property in question for gravel extraction purposes. While defendants point to instances where such evidence was excluded or stricken, the record discloses nonetheless that defendants did succeed in getting such proofs before the jury, including testimony that the cubic content of all land in the premises above water level was 700,000 yards and that there were 80,000 yards of gravel on the premises worth 25 cents per yard. The court instructed the jury that they might take this testimony in consideration and that gravel under the surface was to be considered by them as affecting and in determining the value of the land. No prejudicial error resulted.
Did the award of $40,000.06 constitute just compensation for the property taken? Plaintiff offered testimony of 2 expert appraisers who testified that they had taken into account all the possible uses of the land suggested by defendants, but had concluded that its highest and best use was for single residences and that they appraised it at $33,250. Defendants produced 1 witness who testified solely to the replacement value of buildings on the premises, which he fixed at $49,388.93, but he testified that he had not considered what their fair market value was. A second witness for defendants testified only to the value of gravel on the premises, placing it at $20,-000, and a third testified that the highest and best use for the premises was as a site for commercial buildings and for multiple dwellings or apartments and placed its value as such at $150,000. The award was within the range of the testimony and ought not to be disturbed. In re Widening of Michigan Avenue, 299 Mich 544. It was for the jury to determine which witnesses it would believe and what the 'truth was as to value. While it was proper for the jury to consider all the possible uses to which the land might be put in fixing its value, the fair market value could not be determined by adding together the several values of the premises for each one of several different uses or purposes. It is evident that,use for some of the mentioned purposes would exclude use for others.
“It is the general rule that where fixtures, improvements and mineral deposits are involved, they are valued together with the land as a whole.” In re Civic Center (City of Detroit v. Detroit & Cleveland Nav. Co.), 335 Mich 528, 534.
It is not a combination of all the mutually exclusive uses, but, rather, the highest and best use which is the standard to be applied. In re Widening of Bagley Avenue, 248 Mich 1. Loss of profits due to interruption of business necessitated by moving and the expense of removing personal property are not proper items to be considered in making the award. In re Slum Clearance, 332 Mich 485. The possibility of liability on the part of parents to children under an alleged land contract was not a factor to be considered by the jury in determining the amount of award to parents inasmuch as the award to them presumably was based on the jury’s conclusion as tó the fair cash market value of the entire premises without diminution for any possible interest of children therein. Under the standards laid down by this Court, the compensation awarded for the property taken must be deemed to have been just and proper and the jury’s determination in that regard is not to be disturbed here.
Affirmed, with costs to plaintiff.
Btjtzel, C. ' J., and ' Carr, Bushnell, Sharpe, Boyles, Reid, and Kelly, JJ., concurred. | [
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Ostrander, J.
(after stating the facts). The points argued in the brief for appellant will be considered in the order in which they are presented. The first is that, where service is obtained by garnishment or garnishment and attachment, if the garnishee defendant is not liable to the principal defendant, the court has no jurisdiction to render judgment against the principal defendant. It is predicated upon the recital, in the brief, that the garnishee defendant in its disclosure and in answer to interrogatories denied all liability to the principal defendant. We find neither the writs, the disclosure, nor the answers of the garnishee defendant incorporated in the record. Even in proceedings in which jurisdiction of the trial court must be made affirmatively to appear, this court will not consider exceptions to a ruling sustaining jurisdiction without the evidence upon which the ruling was made.
Objection was made to the reception of certain testimony given by witnesses for plaintiff. The grounds of objection are:
(a) That conversations, related, were by telephone, and the identity of the person talked with was not established; (b) that it was improperly assumed that certain persons were officials of the Pennsylvania Railroad Company; (c) that statements made to and by the representative of the firm of attorneys referred to were immaterial; (d) that incompetent and immaterial testimony of the financial responsibility of the said chapter was received.
The testimony leaves no doubt concerning the identity of the persons communicating by telephone and the official character of those who were assuming to speak for the defendant. The connection between the firm of attorneys and the said chapter and, as to the particular issue, the defendant, is also made out. None of the statements made by the attorneys is used to bind the defendant. Their authority to speak for the said chapter with respect to the particular matter was recognized by both the chapter and the railroad officials. The fact that the arrangement for the special service was made and the money consideration for it paid is not disputed.
It was essential to a recovery by plaintiff to show that it had sustained damage by reason of the alleged wrongful intermeddling of defendant. The president of plaintiff company was asked:
“ Did this branch of the Daughters of the Confederacy have any financial responsibility ?
“ A. No, sir.
“ Mr. Weaver: That is objected to as immaterial.
“ Q. Or property ?
“ Mr. Weaver : Incompetent.
“The Court: He may answer.
“ Mr. Weaver: Give us an exception.
“A. No.”
The argument made is that it does not appear that the witness had any knowledge of the facts to which he testified, or had made any inquiry to satisfy himself upon that point, and if he had knowledge the fact proven was immaterial. The answers of the witness import knowledge. He was not asked for an opinion. The fact was, upon plaintiff’s theory, material. As to the admission in evidence of certain letters, two, dated respectively October 23, 1902, and January 3, 1903, written by plaintiff, and one, dated January 15, 1903, written by defendant, no exceptions are found in the record.
The declaration consists of four counts, and it is insisted that the evidence makes no case within the declaration. No objection was taken to the joinder of counts or of causes of action. The first count is trover, for conversion. The second count avers that defendant without authority possessed itself of the monument and delivered it to said chapter, which was irresponsible, and received from said chapter money of the plaintiff which it refuses to pay over. The third count avers the knowledge of defendant that said chapter had collected and had in its possession $1,500 to be paid to plaintiff as the price of a monument to be delivered at Richmond, and that for the purpose of making such delivery and getting a part of said money defendant wrongfully possessed itself of the monument and delivered it to said chapter without the payment to plaintiff of said sum of $1,500. In a fourth count, added to the declaration at the hearing, the alleged facts are set •out, with scienter, in detail, with the averment that defendant, to obtain for itself $700 which otherwise would have been paid to plaintiff, knowing that said sum would thereby be wholly lost to plaintiff, wrongfully took possession of and forwarded the monument upon its contract made with strangers, thus losing such sum to plaintiff. The jury might have found, from the evidence, that the •defendant, with knowledge of all the facts, refused its regular service to the plaintiff, thus preventing plaintiff from performing, as it would otherwise have done; its contract with said chapter; that the special service, rendered over the protest of plaintiff, was unnecessary, and resulted, and was bound to result, in diverting to the defendant $700 which otherwise would have been paid to plaintiff and which has, in consequence, been wholly lost to plaintiff. These facts support the declaration. Found to have existed, they warrant a recovery by plaintiff, because they establish a breach of the duty of defendant and a wrongful interference with the rights of plaintiff to its damage and to defendant’s profit. The fact that defendant transported the property of plaintiff, as it was bound to do, from Jersey City to Eichmond, and there delivered . it to the consignee, in good order, does not afford a com píete answer to plaintiff’s claim, because to defendant’s knowledge, upon the above assumption of facts, regular transportation, which was refused, would have cost plaintiff a very few dollars, whereas the service actually rendered was bound to cost, and defendant knew would cost, plaintiff |700, which sum the defendant, instead of plaintiff, would receive. The supposed facts are not found, but, upon an idea of the import of the evidence not in harmony with that here advanced, the court directed a verdict.
For defendant it is contended that a verdict should have been directed in its favor. We are satisfied that a directed verdict for defendant would have been wrong, and that defendant’s requests to charge were properly refused. We cannot, however, say that but one conclusion may be or should be reached upon the facts. As presented, it is a case in which inference and deduction perform no inconsiderable offices. We think that there were questions for the jury, and that the case should have gone to the jury with instructions.
The judgment is reversed, and a new trial ordered.
Grant, Blair, Montgomery, and Moore, JJ., concurred. | [
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Bushnell, J.
This is an appeal by plaintiff Robert Rigo from a decree denying him equitable relief. This decree was entered on the pleadings upon defendants’ motion. Rigo sought a dissolution of an oral partnership agreement which he had entered into with defendant John DeGutis. He also asked for an accounting of the funds and assets of the partnership.
According to plaintiff’s bill of complaint, he entered into an oral partnership agreement in June of 1945, for the purpose of acquiring a certain liquor business in the city of Hamtramck. It is the claim of Rigo that DeGutis represented that it would be better to have the license of the proposed bar registered in the name of defendant Catherine DeGutis, his wife, and, relying upon this representation, he (Rigo) acquiesced in this plan, and the bar business was so acquired in September of 1945. Rigo worked in the bar for a period of time during which the partners withdrew funds from the profits of the business until each had been repaid his initial investment. Rigo further claimed that sometime in 1947, DeGutis told him that the bank account of the partnership, which was then in the names of Rigo and DeGutis, would have to be changed to the name of DeGutis alone, because he (DeGutis) had been advised that the liquor license issued in the name of his wife, Catherine, could be revoked because Rigo was a silent partner. Plaintiff consented to this transfer of the hank account, and later that year or in the early part of 1948 asked that the surplus of the partnership be distributed. DeGutis refused to make any accounting and told Bigo that he had used some of the funds of the partnership in other ventures, “and that in a short while he would straighten the matter out and come to a proper accounting.”
It is further alleged that DeGutis and his wife sold the bar and purchased a new one located elsewhere, known as the “Bowery Cafe.”
It is the claim of Bigo that the Bowery transaction and others involving various oil interests were made with the funds of the partnership. In an amended bill of complaint, Bigo alleged that he had only a very limited business experience and was at all times completely uninformed of the rules and regulations of the liquor control commission regarding disclosure of ownership; that he had no.knowledge of any violation of law or rules of the commission until that issue was raised by DeGutis, and that he has since come to the realization that DeGutis was attempting to perpetrate a fraud upon him.
In their motion for a decree on the pleadings, defendants asserted the following grounds:
That Bigo is a silent partner, has admitted there is no written partnership agreement, and that the license was in the name of Catherine DeGutis only. The allegations as to the partnership agreement were denied under oath by defendants in their answer. Defendants further insisted in their motion that, even if there was an agreement, it would be contrary to public policy, prohibited by the statutes of the State and regulations of the commission, and, therefore, illegal, invalid and void; hence, no recovery should be granted upon an illegal contract, made in violation of the law which forbids the existence of a silent partnership in the liquor business. Conse quently, say defendants, equity should not grant relief to violators of the law who seek to benefit as a result of their own violation; and finally, that equity will not grant relief upon the breach of an agreement pertaining even to a legal business if conducted in an illegal manner.
Plaintiff, in opposing a decree upon the pleadings, insisted that his bill of complaint, together with defendants’ reply thereto, clearly sets up a cause for equitable relief; that defendants should not be permitted upon a plea of violation of public policy to unjustly benefit by a fraud practiced by them upon plaintiff, who was not a party to any illegal contract and who relied upon the representations set forth in his bill and defendants’ reply thereto.
The trial judge granted defendants’ motion and entered a decree dismissing plaintiff’s bill of complaint based upon the finding that the alleged oral agreement was against public policy and, therefore,, unenforceable; and, consequently, that plaintiff was not entitled to relief in a court of equity.
The sole question raised on appeal is whether plaintiff was entitled to a hearing on the merits.
That a partnership, to operate a. liquor business with a silent partner, is against the public policy of the State, and unenforceable, is clearly suggested in Beemer v. Hughes, 179 Mich 110. Higo contended, however, that he is entitled to show that the liquor control commission has “closed its eyes to silent partnerships in the matter of liquor licenses and liquor establishments and that the regulation, if there is such a regulation, is not uniformly enforced.” He argues further that if there is any such regulation, it “is observed mainly by its breach.”
The enforcement by the liquor control commission of its regulations and its policy respecting the liquor laws of this State is not now before us. The alleged nonfeasance is neither material nor relevant to the issues presented, and is not subject to review on the pleadings in this case.
The Michigan Administrative Code (1944), pp 435, 437, and Supplement No 12, p 25, containing the rules and regulations of the liquor control commission, provide:
“23. * * * No licensee shall sell or transfer his license, or any interest therein, without the consent of the liquor control commission. Nor shall any person or persons obtain a license in his or their name for the use and benefit of another person whose name does not appear on the license.”
’ “29. * * * No licensee shall transfer location of his license, nor make any alterations in the physical structure of his licensed premises, nor install any additional bars, without the consent of the liquor control commission being first duly obtained.”
See, also, CL 1948, §§ 436.7 and 436.45 (Stat Ann 1953 Cum Supp § 18.977, Stat Ann § 18.1016).
The weight of authority is that the equitable remedy of accounting will be denied where the agreement in question is in violation of public policy and the law of the State. This principle is clearly stated in Nahas v. George, 156 Ohio St 52 (99 NE2d 898, 32 ALR 1338) and authorities cited therein. In that case the court, after discussing the development of ¡this principle, said (p 58) in commenting on the decision in Vandegrift v. Vandegrift, 226 Pa 254 (75 A 365, 18 Ann Cas 404):
“It was held further that under circumstances like those disclosed equity will leave the parties where it finds them and will not lend its aid toward the recovery of money derived from the partnership business which one partner claims is due him from the other.”
The Nahas Case, as reported in 32 ALR2d, is followed by extensive annotations beginning at page 1345, entitled: “Right of partner or joint adventurer to accounting where firm business or transactions are illegal.” Beginning at page 1410 of this annotation there is collected under the heading of “Liquor Laws,” the available authorities on this subject, among which are the Beemer, Nahas and Vandegrift Cases, supra.
In the light of the material allegations stated in the pleading, and viewing them most favorably to plaintiff, the trial court correctly found that Rigo’s claim was based upon an alleged contract which is contrary to public policy and, therefore, unenforceable. Hence, plaintiff may not resort to a court of equity for an accounting.
The decree is affirmed, with costs to appellees.
Btjtzel, C. J., and Cask, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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] |
Moore, J.
The respondents were indicted for selling intoxicating liquors to a minor. They were tried by a jury and convicted. The case is brought here by writ of error. Thirty-four assignments of error are urged. The regularity of the grand jury is attacked. The validity of the indictment is questioned. The appointment of an attorney to assist the prosecuting attorney is said to be error. Exceptions are urged to the admission of testimony, to the refusal to give certain requests, and to many portions of the general charge of the court.
With reference to the proceedings before the grand jury, the validity of the indictment, the regularity of the grand jury, and the assistance rendered the prosecuting attorney, we shall content ourselves by saying the record does not present a case where a reversal should be had, growing out of those questions. As to the’requests to charge, some of them might well have been given, but the subject-matter thereof was fairly covered by the general charge. There are, however, two portions of the general charge which call for more detailed discussion. At this; point some statements of fact are essential.
The respondents are partners. The respondent Bronner made a sale to a minor in the presence of the other-respondent. It is claimed the minor said he was past 21 years of age, and that his statement was believed by Bronner. It is also claimed the respondent Herold had nothing to do with the sale, and knew nothing of it.
In his general charge the court, among other things, instructed the jury as follows:
“ Now, as to the defendant Herold, it is claimed in this-case that the defendant Herold did not furnish any liquor to the minor. It. is, however, undisputed that he was a partner in the saloon. If you believe from the evidence beyond a reasonable doubt that Herold was close enough to Bronner when the beer was furnished to Wiley that he noticed it or could see it, and see Wiley, that is sufficient. It is not necessary for Herold to hand out the glass of liquor himself to the boy. That could be done by Bronner and Herold be equally guilty. If you believe beyond a reasonable doubt the evidence of the people’s witnesses regarding the place and position of Herold to his partner, Bronner, when Bronner furnished the beer to the minor, then the question of the possible ignorance of Herold makes no difference, as he would be equally guilty with Bronner. If the prosecution has satisfied you beyond a reasonable doubt that Herold stood where they claimed he stood at the time the beer was furnished to the minor, it was impossible for him not to know it unless he lacked some of his senses or was willfully ignorant. * * *
“ The first proposition that Wiley is a minor is undisputed. The second proposition that he obtained the beer in the saloon of the defendant on the day alleged is undisputed. This makes out a clear prima facie case against the defendant Bronner and a clear prima facie case under the statute against Herold, if you believe from the evi denee that he was as close when the liquor was furnished as is claimed by the people’s witnesses.
“ The statute itself presumes conclusively that the defendants Bronner and Herold intentionally violated the law. As I have before indicated, they can rebut this presumption, if they can, by showing that he was not a minor, or showing that his appearance was such that they were warranted in good faith as prudent, cautious, and honest men to believe that he was of age, The burden of proof of these facts, however, is upon the defendants. It is an affirmative defense, and the burden of proof is upon the liquor seller to show any and all absence of intent.”
This is not the rule as stated by this court in People v. Welch, 71 Mich. 548 (1 L. R. A. 385). See, also, People v. Hughes, 86 Mich. 180, and People v. Curtis, 129 Mich. 1. And the conviction as to Herold should be set aside.
Near the close of the instruction the court gave the following request of the defendant Bronner:
“The proof by the people in this case of the sale of liquor makes a prima facie case against Bronner; that is to say, that if the question of intent is not rebutted or overcome by the testimony introduced on behalf of the defendant Bronner, then your verdict should be guilty. But, as I have already stated, if you find from the evidence that said Bronner had good reason to believe and did believe that the said Wiley was of the age of 21 years, then it is your duty to acquit.
“A minor who is approaching his majority might have the appearance of being 21 years old, and if, on being inquired of, he shall assert that he was of full age, a dealer might in good faith sell him liquor without any intention of violating the law. If this be your conclusion in this case, then your verdict should be ‘ Not guilty.’ ”
It is conceded that Bronner sold the liquor to the minor, and evidently the jury did not believe that he sold it to him in good faith upon the belief that he was of age.
We think this correctly stated the law as applicable to . the defendant Bronner, and as to him the conviction should be affirmed.
Grant, Blair, Montgomery, and Ostrander, JJ., concurred. | [
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Bushnell, J.
Claimant Florence Thomas is the wife of Vernon Clair Thomas, a brother of George J. Thomas, deceased. Vernon Thomas and his wife held title as tenants by the entireties to their home on Candler avenue in the city of Highland Park.
George Thomas died January 5, 1952, and his widow, Helena E. Thomas, was named as administratrix with the will annexed. Florence Thomas filed a claim against the estate in the probate court of Oakland county for $2,080 for the rental of 2 rooms and board at the Thomas home at $20 per week for 104 weeks. This claim ivas disallowed. On appeal to the circuit court following a trial before a jury, a verdict of no cause of action was rendered and a judgment entered accordingly, from which claimant has appealed.
The questions raised have to do with claimed erroneous rulings on the admission of evidence, errors in the court’s charge to the jury, and refusal to give certain requests to charge.
Vernon Thomas, the husband of claimant, was called as a witness. Following an objection to his testimony the trial judge ruled that he was an adverse party within the meaning of the so-called “dead man’s” statute. CL 1948, § 617.65 (Stat Ann §27.914).
The trial judge properly held that the husband was an adverse party with respect to rents and profits from property owned by the entireties during coverture, under the rule in Morrill v. Morrill, 138 Mich 112 (110 Am St Rep 306, 4 Ann Cas 1100), and Dombrowski v. Gorecki, 291 Mich 678. Claimant recognizes the rule of these cases, but argues that the contract in question was made by George Thomas with Florence Thomas, in the presence of her husband, Vernon Thomas, and that no objection was made by the husband. It is therefore insisted that the husband consented to the contract and that the situation is governed by Wis niewski v. Wisniewski’s Estate, 254 Mich 663, where the Court said (p 664):
“The rule that services of the wife in and about the home belong to the husband is not one beyond the power of the husband to waive. A husband may, by his consent, permit the wife to contract for special services to be rendered another in their home and to receive pay therefor.”
That case involved a claim for the care and maintenance of a daughter of a deceased under an oral agreement. There (p 664):
“The evidence justified the jury in finding that the contract was made with plaintiff, not only by express consent of her husband to that effect, but, as well, in directing his father to make the contract with her.”
Here, adequate proof of consent is lacking.
The claim in the instant case is not for services but for rents and board. The trial judge permitted claimant’s husband to answer certain questions, but excluded answers to those pertaining to the claimed conversation between his wife and the deceased, on the basis that the witness had an interest in the income from the house.
The portions of the court’s charge, which are claimed to be erroneous, are as follows:
“If there was an express contract, what did it mean? That is the second question for your consideration. What length of time was it to run? Was it to run during the rest of his lifetime, or was it to run only during the period that he occupied the rooms ? That is a question of fact for your consideration. * * *
“Now then, as bearing upon the intent of the deceased at the time he entered into this contract, if you find there was an express .contract, is the length of time he occupied it. Was it his intent at the time he entered into this contract that it should be rented during the period of his life, or just during the time that he occupied it? What was his intent at the time he entered into this contract? Was it, as I have said, for the rest of his life, or was it only during the period of his occupancy? That is a question of fact for your consideration. * * *
“Now, the burden of proof is upon the claimant in this case to prove that there was an express contract and the burden of proof, if you find there was an express contract, would show the length of time this contract was to run. The burden of proof means that the claimant must show by a fair preponderance of the testimony that she is right in her claim and she has established a contract and that she is entitled to pay for the rental of these 2 rooms in question.”
Appellant argues that this charge was prejudicial because of the emphasis upon the fact that the testimony failed to show that the contract was for the natural life of the deceased, and absence of evidence of the time the contract was to run. A short answer to this is that the claim filed was for the rental of 2 rooms and board from December 25, 1949 (the date upon which it is claimed the contract was made) to January 5,1952 (the date of death).
Furthermore, the charge in this case, like all others, must be taken in its entirety. So taken, it was not prejudicial and did conform to the testimony and the proofs required in such cases.
The remainder of the objections relate to the court’s refusal to give the following requests:
• “1st. That if the jury find from the evidence in this cause that George J. Thomas, the deceased, did agree with Florence Thomas, the. claimant, on the 25th day of December, 1949 to rent of Florence Thomas 2 rooms in her home and pay to her $20 per week for the same, and that he took possession of said rooms by putting in said rooms his personal belongings or some of Ms personal belongings and that he keep possession of these rooms until his death, your verdict will be for the claimant, Florence Thomas, in the sum of $2,080.
“2d. If the jury find that the agreement was made by George Thomas to rent these rooms as above mentioned, it will not be necessary for him to personally occupy these rooms, as he would be holding possession as long as some of his personal belongings were in these rooms.
“I charge you that the court takes judicial notice that the 25th day of December, 1949 was on Sunday. Hoard v. Stone, 58 Mich 578.”
The first and second requests were given, in substance, in the court’s charge to the jury. The claim filed was based upon an express contract. If the court had given the third request to charge,, i.e., that the 25th day of December, 1949, fell on Sunday, such a charge would have established the invalidity of the contract. The court’s failure to give the charge requested was not detrimental to the claimant. An examination of the testimony and the charge in its entirety discloses no reversible error.
The judgment entered upon the jury’s verdict is affirmed, with costs to the estate.
Butzel, C. J., and Carr, Sharpe, Boyles, Reid. Dethmers, and Kelly, JJ., concurred. | [
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Montgomery, J.
A writ of error has been sued out to review the action of the circuit judge in allowing the final account of the executors on appeal from probate court. Decedent was, at the time of his death, a resident of Minnesota, and his estate was mainly administered in Hennepin county, in that State. The estate was closed in that court in December, 1898, and upon the distribution there was assigned to Christine I. McDonald, in addition to personal and real property in Minnesota, lands in Michigan.
In May, 1899, an exemplified copy of decedent’s will and of its probate in Minnesota was filed in the probate court of Marquette county by the executors. ' The will was admitted to probate, and letters testamentary were issued to Margaret J. McLeod and Hugh N. McDonald. On February 2, 1900, Henry Shouldice filed his claim against the estate for $2,500 and interest from October 9, 1882. The claim was disallowed by commissioners, and an appeal was taken to the circuit court. The case was twice tried at the circuit, and twice reviewed in this court, a judgment of $6,029.16 being finally affirmed. (130 Mich. 444, 135 Mich. 337.)
The executors filed an account which included charges of attorneys and for the executors’ time in contesting against this claim. The circuit judge found these charges reasonable in amount, that the defense of the claim was undertaken on the advice of attorneys and was made in good faith, and allowed the executors’ account. The estate in Michigan was insufficient to pay the claim of Shouldice, in fact is not likely to pay the amount of the executors’ account as allowed.
It is contended that in these circumstances the executors should be held to have undertaken the defense at their peril, and should be required to look to the legatees for their compensation. We cannot discover that the rule that the executor is entitled to be repaid the reasonable expenses of administration (3 Comp. Laws, §§ 9402, 9438) is subject to any such qualification. On the other hand, we understand the rule to be that an executor is entitled to defend against a claim presented against his testator, provided he acts in good faith, upon the advice of counsel, and may be reimbursed his expenditures. Jackson v. Leech's Estate, 113 Mich. 391; Ammon’s Appeal, 31 Pa. 311; 2 Woerner on American Law of Administration, § 515. The cases cited by appellant are not opposed to the general rule, nor do they ingraft an exception on the rule which excludes compensation to an executor of an insolvent estate. In Brinton's Estate, 10 Pa. 408, the effort was to charge an attorney fee in an unwarranted proceeding by an executor to obtain a review of his own account; it was termed “a mere experiment for the benefit of the executor.” In Royer’s Appeal, 13 Pa. 569, the attorney fees which it was sought to recover were incurred in the attempt to probate a suppositious will. In neither case was the expense incurred in a good-faith defense of an estate vested in the executor.
The judgment is affirmed.
Blair, Ostrander, Hooker, and Moore, JJ., concurred. | [
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Boyles, J.
Plaintiff, as assignee of the lessors in a written lease with the defendant as lessee, sued the defendant for rent claimed to be owing the plaintiff under said lease. It was executed November 15, 1946, bn certain store property located at 7758 and 7760 West Vernor highway in Detroit, to-be used by the defendant in a retail business. Also involved in- the case is a second lease executed by. plaintiff as lessor and defendant as lessee August 9, 1948, ending December 31, 1951, on the store building at 7752 West Vernor-highway adjoining the property described in the first lease. The termination date in both leases was the same. The controversy involves the construction of the 2 leases; and, particularly, whether they should be construed together, in determining the amount of rental to which the plaintiff lessor is entitled. . .
The plaintiff, suing on the first lease, claims he should have $6,922.78. The defendant claims both leases are involved, in determining the rental, and that his maximum liability is $333.32, which amount he tendered to the plaintiff at the pretrial hearing. The court found for the plaintiff and entered judgment for the full amount of his claim. The defendant appeals.
Upon execution of said first lease the defendant went into possession of said premises at 7758 and 7760 West Vernor highway, paying the minimum guaranteed monthly rental called for by the lease.
The rental provisions in the said first lease were as follows:
“The tenant hereby hires said premises for the term aforesaid, and covenants:
“1st. To pay the landlord as rental for said premises the sum of $400 representing the minimum guaranteed rental for the first month of the lease upon delivery hereof, and a like sum in advance on the 1st day of each calendar month thereafter during the term of 2 years. Commencing January 1, 1949 the minimum guaranteed rental shall be $450 for the remaining 3 years of this lease. * * *
“11. Tenant shall have the option to extend this lease for an additional 5-year period at the minimum guaranteed rental of $500 per month against 4% of the gross annual sales which additional rent shall be due and payable semiannually. * * *
“13. The attached rider is made part of this lease.”
(Rider attached to lease.)
“1. The tenant shall pay to the landlord as rental for said leased premises a sum equal to 4% of the gross sales made in or from the demised premises during each year of the term of this lease; provided however, that anything herein otherwise contained notwithstanding, the tenant shall pay to the land lord on the first day of each and every month of the term of this lease a guaranteed minimum monthly rental of $400 for the first 2 years and $450 per month for the last 3 years of this lease, which minimum rental shall be applied against the percentage rental hereunder. Any additional rental due as percentage rental over and above the guaranteed rental shall be paid semiannually.”
On August 9, 1948, these parties entered into another written lease under which the defendant rented the adjacent store at 7752 West Vernor highway, also for the same term ending December 31, 1951. This lease contained the following provisions:
“It is futher understood that all conditions and options that exists (sic) between the parties hereto in the lease of 7758-60 West Vernor-way (sic) are made and become a part of this lease. * * *
“The tenant hereby hires said premises for the term aforesaid, and covenants:
“1st. To pay the landlord as rental for said premises the sum of $150 representing the minimum guaranteed rental for the first month of this lease upon delivery hereof, the rental of this store is an addition to the rental of the lease executed for the premises known as 7758-60 West Vernor highway, and Max Nusbaum being the same lessee in both leases, and a like sum in advance on the 1st day of each calendar month thereafter during the term.
“See conditions and obligations in lease of 7758-60 West Vernor highway which are made a part hereof. That upon renewal of said option the rent of this particular store shall remain the same, to wit: $150 per month for the duration of said lease, and this rental is not to be included in figuring the minimum guaranteed rental of 7758-60 West Vernor highway lease.”
The defendant conducted only 1 business in both buildings—the sale of linoleum, floor coverings, and kindred lines. An opening was made and uséd through, the wall between the 2 buildings. The outside entrance from West Veriior highway into the building at 7752 was permanently closed, and the same business was. continued in the.entire floor space, as it had been before. No separate record was kept by the defendant of his gross sales, as between the 2 buildings, or under each lease. It is not disputed that the trial court correctly found that:
“The amount, of business done in the premises 7758-60 West Vernor highway was never separated by Nusbaum himself from the amount of business done at 7752 West Vernor highway. It was all one business, and apparently Nusbaum so'regarded it, and so did his accountant, by giving to the plaintiff the amount of gross business done at 7758 West Yer-nor highway, the premises referred to in the old, or first lease. * * * The business was conducted in the old premises and the new premises as one business. The new premises apparently were leased by the defendant as an adjunct to the old premises, and where he broke through the wall, the-premises/were' occupied as one place of business. The new premises provided more floor space, but there was one busir ness there, and the defendant agreed to pay the plaintiff 4% of the gross done on those premises, and be given credit for the amount paid by him, the minimum rent.”
Plaintiff relies on the “first” lease, dated November 15, 1946. On the other hand, the defendant contends that the second lease, dated August 9, 1948, on the building adjacent to. that covered .by the first lease, should also be considered, in determining the amount of rent he owes the plaintiff. The trial court said:
“In the last analysis, the question seems to be: Is the defendant entitled to credit against the gross business done for the amount of rent he paid on the new premises occupied under Lease Number Two? I do not think so.” '
This would eliminate the second lease from consideration. We do not agree with that conclusion. In effect, it would allow the plaintiff, as rental, 4% of the' gross sales of defendant’s entire business, without any deduction for the payment by the defendant of the minimum guaranteed rental, $150 per month under the second lease. The 2 leases, by their express terms, were tied together insofar as their provisions apply to the guaranteed minimum rentals, and the maximum rentals based on the defendant’s gross sales. The tenant was required to pay a guaranteed minimum rental on each of the 2 buildings. It was agreed by the parties that the conditions and obligations of the first lease were expressly to he “made and become a part of” the second lease. The 2 leases should have been considered and construed together. The second lease, in providing for a minimum guaranteed rental for 7752 West Yernor highway, stated that the rental of that building should be “an addition to the rental of the lease executed for the premises known as 7758-60 West Yernor highway.” It is important to note that this refers to the rental—not the minimum g%iaranteed rental. We construe the provision in the second lease, that the $150 minimum guaranteed rental for that building was “not to he included in figuring the minimum guaranteed rental of 7758-60 West Yernor highway lease,” to mean exactly what it says. It was to be $150 minimum guaranteed rental in addition to the minimum guaranteed rental under the first lease—“not to he included” in figuring that minimum rental. When the defendant went into possession of the building at 7752 West Yernor highway, the total minimum guaranteed rental owing by the defendant, under both leases, was to start at $550 per month, $400 plus $150. Eegardless of the amount of the defendant’s gross sales, the defendant was obligated to pay that amount as the minimum rental. If, under both of the leases, 4% of the gross sales made by the defendant in his business exceeded in amount the “minimum guaranteed’’ rental, the defendant was required to pay the difference between the 2 figures.
The amount of the defendant’s gross sales is not in dispute. The defendant has paid the agreed “guaranteed” minimum rental. The difference between that amount and 4% of defendant’s gross sales is likewise not in dispute. It is $333.32. We hold that the 2 leases are to be construed together, as claimed by the defendant, in determining the amount of rent he owes, and the plaintiff is entitled to judgment only for that amount.
The defendant tendered plaintiff $333.32 at the pretrial hearing, but the record here does not indicate that the tender was kept good by payment into court. The judgment for the plaintiff is set aside and the case remanded with direction to enter judgment for the plaintiff for $333.32, plus interest, and with the costs in the trial court. See Baird v. Salnave, 174 Mich 409, 411. Defendant having prevailed here may tax his costs of the appeal in this Court.
Butzel, C. J., and Carr, Bushnell, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred.
January 1, 1947-December 31,1951. | [
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] |
McAlvay, J.
Complainant on January 19, 1905, was in the occupancy and possession of certain farm lands in Monroe county, together with the buildings thereon and personal property used in connection therewith. On that date a local director of defendant company, a Michigan corporation, solicited insurance in said company of the buildings and personal property. An application, among other things, contained the following:
“ I do hereby make true answers to the following questions as the facts now are. * * * In whom is the title to the property both real and personal ? Fred Ruppert. * * * Is any of it incumbered ? If so what' is the amount of the incumbrance? No. * * * And the undersigned states and warrants for the purpose of obtaining such insurance, the representations and statements ^herein to be the truth and agrees that this application’together with the policy of said company, its articles of association and by-laws are a part of the contract of insurance with said company, and that no statements, agreements or representations shall be of any effect not contained in said writings. * * * I accept this insurance subject to the articles of association and rules and by-laws of said company now in force or that may hereafter be in force.”
Upon this application and the payment of the required amount of money, a policy of insurance was issued January 24, 1905, to complainant upon the dwelling house and contents, the barns and contents, including live stock and so forth, granary and contents, toolhouse and contents, and poultry house, specifying the amount of insurance placed on each item, the total being $1,700, against loss or damage by fire or lightning, during the term of five years from January 19, 1905, “ as specified in the articles of association and by-laws printed hereon, and which are signed by the assured and which are together with the application a part of this policy and agreement.” At the time the policy issued complainant’s mother had a life estate in the premises and complainant had mortgaged the premises for $1,300, all of which was unknown to defendant company. On January 29, 1905, a part of this prop erty so insured was destroyed by 'fire. Soon after the fire complainant made out a statement of his loss, and furnished the same to the company. The loss was adjusted by the officers of the company February 4,1905, at $347.38. On February 24th defendant notified complainant that the claim would not be paid. March 13th complainant received notice that the arbitration committee would meet March 16th, and to be present if he desired to appear in regard to his claim. He appeared with his attorney and was examined as to his loss. On March 31st he received notice from the arbitration committee that because of fraud and false representations as to incumbrances on the property defendant was not liable to him for any loss under the policy. This is the firstmotice he had that defendant refused to pay on that account. Afterwards complainant filed his bill of complaint in this cause, setting up the facts hereinbefore stated, alleging that he answered “No” to the question which was asked by the agent who took the application for insurance relative to any incumbr&nce. on his property; that he is a German, understanding the English language imperfectly, and did not understand the meaning of the word “incumbrance,” and thought when the question was asked by the agent that he was inquiring whether his sister (an heir at law of his deceased father) had any interest in the property. He says he knew the meaning of the word “ mortgage,” and if asked whether there was any mortgage upon the property he would have understood and answered that there was, and alleges that it was through mistake, and his ignorance of the English language, and because he was not asked if there was any mortgage upon the premises that the application states incorrectly that there was no incumbrance upon the property; further, that the existence of the mortgage upon said property in no manner contributed to the destruction thereof; that defendant was in no manner injured or defrauded because of the existence of said mortgage; and that under the statute of this State defendant is not relieved from its liability for the loss so sustained by him because of said mortgage. The prayer of the bill asks that the loss sustained by him by reason of the destruction of the property insured be ascertained and determined, and the percentage to which he- is entitled by the terms of the policy be decreed by the court to be paid by defendant, and also for general relief. Defendant answered the bill of complaint, and coupled with its answer a demurrer in due form as required by rule, duly certified by the solicitors, for the following reasons:
1. Because complainant has not made or stated such a case as entitles him to relief.
2. Because complainant has a complete and adequate remedy at law.
3. Because the bill of complaint attempts to set up a new contract to the terms of which defendant never agreed and upon which relief depends.
A replication was filed and by stipulation proofs were taken in open court. The court in his opinion found the facts as claimed by complainant, and that he was entitled to the amount of the loss as adjusted, with interest, and granted a decree in his favor for that amount, with costs.
Defendant appeals from this decree, and urges upon this court that the demurrer should have been sustained. It will be necessary to consider but one of the grounds of demurrer, namely, that a court of equity has no jurisdiction of the case because complainant has an adequate remedy at law. We do not find that the bill of complaint alleges sufficient to bring the case within equity jurisdiction. The allegations constitute a contract of insurance enforceable at law. No fraud, deceit, or misrepresentation is charged, nor does the bill seek for an accounting, or a reformation of the contract. The allegations relative to the mistake in answering a question in the application by reason of ignorance of the English terms used, together with the other allegations as to the acts and conduct of the officers of the defendant, show that these are questions of fact to be tried out on the law side of the court before a jury, in an action upon the insurance contract. An ex- animation of the proofs taken upon these matters, which were the only disputed questions in the case, makes this the more apparent. The demurrer should have been sustained.
For the reasons given, the decree of the circuit court is reversed and set aside, and the bill of complaint dismissed without prejudice, with costs of both courts to defendant.
Carpenter, C. J., and -Grant, Blair, and Moore, JJ., concurred. | [
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Butzel, J.
In 1942, Frank A. Summers, plaintiff herein, moved from the city of Detroit to Otsego lake in the vicinity of Gaylord, Michigan, where he has since resided being principally engaged in dealing in and developing gas and oil lands. At one time he was a real-estate broker but his license was revoked in 1929 and in 1940 he was found guilty of violating the blue sky law of the State of Michigan. In 1937, while still living in Detroit he became acquainted and very friendly with George Hoffman and Mary L. Hoffman, his wife, defendants herein. For very many years Hoffman was engaged in the tavern business but apparently of late has invested in real estate.
In 1948 plaintiff learned that a Mrs. Fowler claimed ownership to 250 acres of land in Otsego county, Michigan, a part of which abutted on Otsego lake. She was willing to dispose of the property for $10,000 which was deemed a very low price. However, the condition was exacted that the purchaser would be obligated to clear the title to the land at his own expense. This was not deemed an insurmountable difficulty. Plaintiff notified his friends, the defendants, of the opportunity and they ¡very shortly thereafter went to Gaylord and agreed ¡to purchase the property. The transaction was consummated by land contract running from Mrs. Fowl er to defendants. The alleged agreement between plaintiff and defendants regarding this and other property is the matter in dispute that gives rise to the present litigation. Plaintiff absolutely testified that an oral agreement was entered into whereby the defendants would put up the money to purchase' the property, clear the title and develop the land, and plaintiff would superintend the litigation to clear title and manage the entire development and disposition of the property in return for which he-would be entitled to 1/2 of the profits made from the sale thereof after defendants were paid in full for all moneys expended by them in connection with the property. There can be no question but that plaintiff assisted very materially not only in the selection of attorneys and subsequent clearing of the title but also traveled at his own expense to various points in the State in an effort to acquire possible adverse interests and secure evidence. He also performed manual services in assisting in the clearing of part of the property, looking after the felled lumber resulting from the cutting of trees for roads and he generally devoted much time and effort to the enterprise. Mrs. Fowler, the vendor, filed a bill to-quiet title, using the same attorneys who appear for plaintiff in the instant case. As a result she obtained a decree quieting title which we affirmed in Fowler v. Cornwell, 328 Mich 89. The record in that case-indicates that plaintiff was apparently interested in the clearing of the title.
At one time at the hearing defendants took the position that plaintiff was to have certain mineral rights in the property in return for his extensive services. This was not set up in the original answer to the bill nor in a later amended answer filed after the hearing of this case. We do not consider it in this opinion. - -
In October, 1949, plaintiff and defendants acquired by land contract from the same Mrs. Fowler an adjoining parcel of land. containing 160 acres. This title ran to plaintiff and defendants, the latter again putting up the money to acquire the property. Plaintiff claims that the same agreement regarding division of profits, et cetera, also applies to this parcel.
Various transactions as well as the aforementioned physical development of both parcels of land were carried on with plaintiff’s assistance and defendants’ encouragement. A portion of the first parcel was sold to the township and a 40-acre tract in the second parcel was traded for a similar one belonging to the State of Michigan. After the portion next to the lake had been subdivided plaintiff was able to arrange for the sale of a lake-front lot, the purchaser paying $100 to the plaintiff as deposit. Plaintiff turned this money over to defendants by check with the notation thereon that it was a deposit. Defendants refused to recognize it as such but kept the money and subsequently when the purchaser turned over more money to plaintiff, Hoffman refused to accept it or have any further dealings with plaintiff and denied the existence of any agreement between them. Thereafter this suit was instituted.
The lengthy record indicates that the parties are in complete disagreement as to what occurred. The defendants do not deny that plaintiff was instrumental in the purchasing of the property, the clearing of the title and the development of the property, but they claim he was more or less of an interloper, wormed his way into the enterprise and then set up the present claim. They further claim that plaintiff owed them a considerable amount and they believed that he was thus trying to repay them. The claims of the parties are irreconcilable but we believe that plaintiff made out his case to a sufficient extent so that the trial judge, who heard and saw the parties and was familiar with all of the litigation, both in Fowler v. Cornwell, supra, and the instant ease, correctly concluded that plaintiff was telling the truth and decided in his favor. A de novo review of the lengthy record before us sustains his finding.
The trial court dismissed defendants’ contention that the agreement as made was void under the statute of irauds and the broker’s license statute with the conclusion that:
“The dealings of the parties contemplated by such oral agreement constituted a joint aaventure.'’
Defendants have appealed on various grounds from the decree compelling specific performance of the agreement.
We sustain the finding that the agreement amounted to a joint adventure. In Denny v. Garavaglia, 333 Mich 317, this Court reaffirmed a definition of a joint adventure set out in Hathaway v. Porter Royalty Pool, Inc., 296 Mich 90, 102, 103 (138 ALR 955), where we stated:
“It can be said that a joint adventure contemplates an enterprise jointly undertaken; that it is an association of such joint undertakers to carry out a single project for profit; that the profits are to be shared, as well as the losses, though the liability of a joint adventurer for a proportionate part of the losses, or expenditures of the joint enterprise may be affected by the terms of the contract. See 17 Ann Cas 1022, 1025; 24 Ann Cas 202, 203, and 39 Ann Cas 1210, 1214. There must be a contribution by the parties to a common undertaking to constitute a joint adventure (see annotation, 63 ALR 909, 910); and a community of interest as well as some control over the subject matter or property right of contract.”
Also, see Price v. Nellist, 316 Mich 418; Fletcher v. Fletcher, 206 Mich 153. A consideration of the salient facts in the instant case shows that the contract embodied characteristics of a joint adventure. A single project was involved, namely, the development and sale of 2 large parcels of real estate. The profits, after expenses, were to be divided 50% to plaintiff and 50% to defendants. Both made a contribution: plaintiff contributed his time, skill and supervision, while defendants contributed the capital. Both had control over the property as defendants were the record owners of one parcel and joint owners with plaintiff of the other, while plaintiff was conducting the physical improvement of the land and endeavoring to sell the lots. But defendants claim that under the agreement plaintiff would not share any losses or bear the risk of loss in case of an adverse decision in the suit involving the title to the property. With this contention we cannot agree. “Loss” does not necessarily mean actual “monetary loss.” If the land was eventually sold at a loss the result would be that plaintiff’s expenditure of time would have been for naught as would defendants’ monetary investment. If the title litigation had been decided adversely then plaintiff would have lost large out-of-pocket expenses and the value of the time which he had theretofore spent on the project which, while not quite as concrete or measurable as defendants’ cash investment, is nevertheless a loss. It cannot be said that the plaintiff did not share any risk of loss, for as we said in Hathaway v. Porter Royalty Pool, Inc., supra (p 103):
“Though the liability of a joint adventurer for a proportionate part of the losses or expenditures of the joint enterprise may be affected by the terms of the contract.”
Defendants contend that the contract plaintiff' seeks to enforce is void under the statute of frauds, CL 1948, § 566.132 (Stat Ann §26.922), which provides :
“In the following cases specified in this section, every agreement, contract and promise shall he void, unless such agreement, contract or promise, or some note or memorandum thereof he in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized, that is to say: * * *
“5. Every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate.”
The question to be considered is: Does this statute apply to an agreement between joint adventurers for a division of profits on the sale of land?
While the statute has never been considered in a case like the one at bar, it has been interpreted on a number of occasions. The statute is in derogation of the common law and must be strictly construed. Stephenson v. Golden, 279 Mich 710, 753. It has been held to apply to a commission to be paid in the form of a percentage of sales. Wilcox v. Dyer-Jenison-Barry Land Co., 217 Mich 35. The scope of the statute was considered in Smith v. Starke, 196 Mich 311. The Court was there considering circumstances where the defendant broker offered to give the plaintiff, who was not a broker or salesman, part of the commission if the plaintiff would secure a purchaser for a farm listed with the defendant. In finding the agreement void, the Court stated (p 314):
“The word ‘commission’ implies a compensation to a factor or other agent for services rendered in making a sale. * * * The compensation which plaintiff was to receive under his oral agreement with defendant was commission, and therefore within the act. * * *
“Does the act in question apply to contracts other than those between owner and broker? We think it does. There are no words of limitation contained in it. It reads ‘every agreement’—not only agreements between owner and broker, but ‘every agreement’—all agreements. The act is unambiguous, clear in its terms, and without exceptions. * * * The legislature having failed to use the words of limitation, we cannot add them by judicial construction.”
In spite of this broad language this Court in later eases has restricted the scope of the statute to an area consonant with its legislative purpose. In Thompson v. Carey’s Real Estate, 335 Mich 474, the Court was considering an agreement whereby the defendant agreed to pay the plaintiff a certain percentage of the commissions received by the defendant on sales produced by the plaintiff, a salesman in defendant broker’s employ. The Court held the statute inapplicable saying (pp 476, 477):
“Whatever our present view may be of dicta in that case (the Starke Case), we do not believe that the decision need be considered as holding, nor do we now deem it to have been the legislative intent, in enacting the quoted portion of the statute of frauds, to select, from the whole realm of employer-employee contractual relationships the one existing between a real-estate broker and his employee salesman. * * * We can conceive of no characteristics peculiar to the broker-salesman relationship which might have suggested to the legislature the necessity for written contracts of employment in that field under circumstances where none is required in any other kind of employment. We are in accord with the following from 12 CJS, Brokers, § 62b:
“ ‘The legislative purpose in adopting such legislation was to protect real-estate owners against unfounded or fraudulent claims of brokers.’ ”
That case has been followed. Borisoff v. Schatten, 335 Mich 684. This Court has also recently held the statute inapplicable to an oral agreement between 2 brokers to divide a commission. Beznos v. Borisoff, 339 Mich 12; but see Renaud v. Moon, 227 Mich 547. The case of Krause v. Boraks, ante, 149, does not support defendants’ position. While the court relied primarily upon Smith v. Starke, supra, it did so in a situation where the plaintiff attorney was clearly acting as defendant’s agent for the obtaining of a purchaser. Under any interpretation of the statute such an agreement is void. Such is not the case here.
It is evident that the trend of the decisions has been to interpret this statute in the light of the legislative intent prompting its enactment. While we do not necessarily agree with the broad language set forth in Smith v. Starke, supra, we do note that the Court there said that “ ‘commission’ implies a compensation to a factor or other agent." (Emphasis supplied.) We feel that the statutes do not apply to the activity of one joint adventurer in selling the property which is the subject of the venture and in which he has a distinct interest. The joint adventure relationship is a fiduciary one in which the members owe each other a high degree of good faith. Each member is both an agent for his coadventurer and a principal for himself. 48 CJS, Joint Adventures, § 5, p 827. The property acquired in behalf of the adventure, even though title might be in only 1 person, is held in trust for all members, each of whom may acquire an equitable interest in the land or the proceeds on performance of his obligations. See Lane v. Wood, 259 Mich 266; Rossman v. Marsh, 287 Mich 720; 48 CJS, Joint Adventures, § 7, p 833;
We cannot discern why the legislature would intend to have the statute cover this situation where the legal duties and obligations of the parties are clearly defined, are adequately enforced and protected in the courts, and where the parties are, in effect, acting on their own behalf in selling property in which they have much more than the usual agent’s interest.
In Eads v. Murphy, 27 Ariz 267, 272 (232 P 877, 879) (1925), the court had to consider a similar agreement. In applying the section of the statute of frauds relating to “an agreement authorizing * * * an agent or broker to * * * sell real estate * * * for * * * a commission” (the seventh clause of the statute), the court stated:
“This allegation sets up a joint adventure in a contract to purchase certain lands, and an agreement to share equally in the profits thereof. Such agreement, of course, does not come within the seventh clause of our statute of frauds. It is in no way an agent’s or broker’s agreement.”
See, also, Furth v. Farkasch, 26 Ohio App 258 (159 NE 142).
While our own statute is not expressly limited to an agreement of an “agent or broker,” we conclude that such was the legislative intent and that it therefore cannot be construed to encompass a remuneration based upon sales of the subject property of a joint adventure paid to one of the adventurers who is in effect dealing with the property as his own.
We are also in accord with the trial court’s additional ground in relying in its opinion on the case of Epstean v. Mintz, 226 Mich 660, wherein it was held that an agreement to share in profits derived from the sale of realty is not within the statute of frauds, CL 1948, §566.108 (Stat Ann 1953 Rev §26.908), requiring contracts for the sale of an interest in land to be in writing. This was a reaffirmation of the doctrine set forth in the following cases where this question arose: e.g., Petrie v. Torrent, 88 Mich 43; Carr v. Leavitt, 54 Mich 540. The lower court analogized those decisions under that statute to the facts and statute involved in the instant case, as did the Ohio court in Furth v. Farkasch, supra. We affirm this reasoning as an additional basis for our decision.
Defendants further assert as a defense the broker’s licensing statute. Plaintiff in his brief has declined to discuss this particular issue on the grounds that it was not originally pleaded and that a belatedly filed amended answer was not sufficient to raise the issue thereafter. Because his original answer and replication did not specifically set forth this particular defense, the defendants, during the trial, orally moved to amend their answer to include it. Plaintiff objected. The court said:
“I can’t see too much objection to an amendment but I do think, as counsel has pointed out, that it should be, the motion should be in writing so there isn’t any question. I mean it is too broad a verbal statement ‘I would like to amend my pleadings in a certain regard.’ If you will propose exactly in writing what you do propose the court will then consider it.
“I know the testimony has been taken in regard to these matters so far as the real-estate license is concerned and if the pleadings are amended in that regard I certainly am going to give the plaintiff an opportunity to put any testimony in they desire along that line. But if your motion is put down concretely as to just what paragraph you are amending and how you are amending it, I think that should be done. I will certainly consider it inasmuch as there has been testimony taken along that line.”
About 1 week later defendants did file an amended answer embodying this specific defense. After the court made the above statement further testimony was taken in the case.
Amendment of pleadings rests within the sound discretion of the trial judge. The opinion in this case was not rendered for some 10 months after the trial, thus giving plaintiff ample opportunity to meet the defense raised by the amended answer. In Sweitzer v. Littlefield, 297 Mich 356, 362, regarding an amendment to a pleading, we stated:
“A specific order or ruling allowing the amendment does not appear to have been made, but obviously the trial court thereafter considered the case as though the motion to amend had been granted. We consider this tantamount to a formal order permitting amendment.”
We thus move to a consideration of the merits of this defense.
The broker’s licensing statute, CL 1948, § 451.201 et seq. (Stat Ann 1953 Cum Supp § 19.791 et seq.), makes it unlawful to act as a real-estate broker or salesman, therein defined, unless a license is procured in accordance with its provisions. Defendants argue that plaintiff was acting in such capacity and therefore is precluded from recovering for his services because he had not obtained a license. We find no merit in this contention for the reason that plaintiff was not acting in such a capacity as would bring him within the statute.
Section 2 of this statute reads in part:
“The provisions of this act shall not apply to any person, firm, partnership association, copartnership or corporation, who, as owner * * * shall perform any of the acts aforesaid with reference to property owned by them, unless performed as a principal vocation not through brokers duly licensed hereunder.”
What we have previously stated regarding the character and nature of a joint adventure serves to bring this case within the scope of this exception. When we consider that for the purpose of this statute as well, a joint adventurer, when selling property of the venture, is doing so as an owner, this exception is applicable. In Devereaux v. Cockerline, 179 Or 229 (170 P2d 727) (1946), the court had before it a somewhat similar question. While the case was decided adversely to the claimant, the court in the course of its opinion pointed out that the broker’s licensing statute, if applicable, would prevent recovery. The court went on to say (p 237):
“The foregoing discussion assumes, though it does not decide, that, if the agreement is one of partnership, its effect was to invest the plaintiff with part ownership of the property. If he was an owner, he did not come within the definition of a real-estate broker, so far as the transaction in question is concerned.”
The court concluded that the partnership relation did not exist. In Smith v. Guy, 24 Tenn App 352 (144 SW2d 702) (1940), the court was concerned with an action for services rendered under a certain alleged agreement. After sustaining the finding that the parties were engaged in a partnership, the court stated (p 356):
“We find without merit the insistence that complainant’s bill should have been dismissed because of the nonpayment of a real-estate broker’s license fee. According to the briefs the parties were dealing for themselves and complainant was not engaged in the business of a broker.”
Defendants cite the case of Jaenicke v. Davidson, 290 Mich 298, as support for their position. That case held in essence that a negotiation of assignments of oil and gas leases constituted dealing in interests in real estate within the meaning of the statute, and the court therefore denied a bill for accounting and specific performance of the oral agree ment. The plaintiff in that case apparently raised the contention that the parties were engaged in a joint adventure hut the court refused to consider the argument because it was not properly raised.
The Michigan statute itself further supports our conclusion by reference to those persons covered as those dealing, et cetera, “for others” and “of or for another.” . It cannot he said that a joint adventurer is so doing when he is selling the property of the venture. In Davis v. Alexander, 25 Wash2d 458 (171 P2d 167) (1946), a somewhat analogous situation arose under a statute requiring contracts for commission to be in writing, the statute defining a real-estate broker as one who deals in real estate for another person. The court stated (p 466):
“Respondent was not working for another person. He was working for himself first and, second, for the partnership of which he was a member. The land of the partnership is regarded in equity as personalty, and, when either partner handled it, either in purchasing or selling, he was not dealing-in real estate for another, he was representing the partnership and disposing of a real-estate asset of the partnership the same as if it were personal property.”
We thus conclude that the broker’s licensing statute is inapplicable to the facts in the instant case by reason of the fact that a joint adventure existed between the parties.
The decision of the court below and the decree entered pursuant thereto is hereby affirmed.
Carr, C. J., and Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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] |
McAlvay, J.
Certiorari to mandamus proceedings before the circuit court for Kalamazoo county. Relator, prosecuting attorney for Kalamazoo county, by written order directed and requested respondent, judge of the recorder’s court of the city of Kalamazoo, to take the complaint of, John H. Blaney, and issue a warrant for one Arend Bos of said city, for a violation of Act No. 200 of the Public Acts of 1905. The recorder took said complaint, but refused todssue a warrant upon it, for the reason that in his opinion, the complaint did not set forth a violation of said act. Said act is entitled:
“ An act to provide for the compulsory education of children, for penalties for failure to comply with the provisions of this act, and to repeal all acts or parts of acts conflicting with the provisions of the same.”
Section 1 provides:
“Every parent, guardian, or other person in the State of Michigan having control and charge of any child or children between and including the ages of seven and fifteen years, shall be required to send such child or children to the public schools during the entire school year. * * * ”
Section 3 makes a failure to comply with the provisions of the act a misdemeanor and fixes the penalty. The child in this case was of the age of 15 years and 8 months. An order to show why a writ of mandamus should not issue compelling respondent, to issue said warrant, issued from the circuit court, and upon a hearing the writ was denied, and the proceeding dismissed. The provision of the act repealed by this act relative to the age limit was, “* * * between the ages of eight and fifteen years, and in cities between the ages of seven and fifteen years.” Act No. 83, Pub. Acts 1901. This repealed the provision of a former act which was as follows: “ * * * between the ages of eight and fourteen years and in cities between the ages of seven and sixteen years.” Act No. 95, Pub. Acts 1895.
The only question in the case is whether the statute applies to children above the age of 15 years. The circuit court held that it did not, and error is alleged upon such holding. The contention of the relator is that it applies to children over 7 years and under 16 years of age. The words of the statute before us for construction are, “any child or children between and including the ages of seven and fifteen years.” It is urged that to give any force to the word “ including ” the section must be construed to include children during the entire fifteenth year and until they become, sixteen years old. We think to do so would be a doubtful construction and the court should hesitate to make an act a crime by such means. The statute is not ambiguous in designating tbe age limit between tbe ages of 7 and 15 years. The word “including” has no force to extend that limit beyond the time specifically designated. A child over 15 years of age is not between the ages of 7 and 15 years, and therefore not within the provisions of the act. An examination of these provisions of the earlier acts shows: That by the act of 1895 compulsory education was enforceable for a period of 6 years as to children not in cities, and as to children in cities for a period of 9 years; that by the act of 1901 compulsory 'education was enforceable for a period of 7 years as to children not in cities, and as to children in cities for a period of 8 years. In each of these acts the children in cities were subject to its provisions one year earlier in life than other children in the State. The evident intent of the legislature in the portion of the act of 1905 under discussion, establishing the limit between the ages of 7 and 15 years, being a period of 8 years, was to fix the same age limit for all of the children in the State, at such a time in their lives, and for such a term between the two extremes of the former acts, as experience had shown would be most satisfactory.
The judgment of the circuit court is affirmed, without costs.
Carpenter, C. J., and Grant, Blair, Ostrander, and Moore, JJ., concurred with McAlvay, J.
Montgomery, J.
We think the statute treats the year as the unit, and that it follows that the words 7 to 15 years inclusive includes the year in which the child is generally spoken of ás 15 years of age. See 1 Comp. Laws, § 50.
Hooker, J., concurred with Montgomery, J. | [
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Kelly, J.
Plaintiff sought recovery of damages sustained May 12, 1948, when defendants’ vehicles collided on Ball bridge, over Macon creek in Monroe county, 3 miles south of Milan, on US-23. A statement of claim was attached to plaintiff’s declaration, as follows:
“Cost of replacement of bridge....... $ 4,160.00
Temporary structure, et cetera...... 3,575.00
Maintaining detour ................ 2,575.00
Total $10,310.00.”
The trial court refused plaintiff’s offer of proof in regard to detour costs, relying on Jackson County Road Commissioners v. O’Leary, 326 Mich 570.
Plaintiff introduced testimony showing that it would cost more to repair the bridge than to rebuild it, and that a new bridge of similar design could be built at a cost of $4,160.
During the introduction of proofs the trial court informed plaintiff that the proof of damage must meet the test as set forth in Jackson County Road Commissioners v. O’Leary, supra. At the close of proofs the court granted defendants’ motion for directed verdict because plaintiff failed to meet the test above referred to.
The bridge was 52 years old at the time of the accident. It was a 1-way bridge even though the highway approaching the bridge carried '“quite heavy” traffic, being the trunk line from Ann Arbor to Dundee and Toledo. A new bridge, adequate to meet present traffic demands, was built at a cost of $57,000. The exact location of the new bridge is not established in the record, but it appears that appellant not only decided to construct a different type of bridge but also to relocate it.
Plaintiff contends that “all that was required of him was to prove either the cost of repairs or the value to the plaintiff” and “that upon the proof of either the cost of repairs or the value to the plaintiff the burden of proceeding to show the lesser amount as the reasonable damage shifts to the defendant.” Plaintiff failed to introduce proof as to the value of the bridge .to the plaintiff, only offering proof as to what it would cost to build a new bridge of similar design. The burden of proof was on the plaintiff and did not shift to the defendants.
The trial court was correct in his interpretation of Jackson County Road Commissioners v. O’Leary, supra, and in determining that “the measure of damage recoverable by the plaintiff in this case would be the cost of the repair of the injuries to that bridge if the cost of the repair were not equal to or greater than the value of tlie bridge prior to the accident. If the cost is equal to or greater, then the amount recoverable is the value of the bridge prior to the accident.” Plaintiff did not establish- the value of the bridge and did not prove damages. The trial court did not err in granting the motion of defendants for directed verdict in regard to plaintiff’s claim for damages, to the bridge.
The trial court in refusing to accept proof of costs of constructing and maintaining the detour stated: “If I had been trying this case before the Supreme Court wrote the opinion 326 Michigan (Jackson County Road Commissioners v. O’Leary) I would hold with you as it seems to me that (cost of constructing detour) is an element of damage.”
An examination of .the record in the O’Leary Case discloses that plaintiff did not sue for detour damages; that the question was not raised before the trial court and was not presented to this Court. There was no reference to a detour in the opinion, but there was a determination that proof of costs for building a temporary bridge would not constitute proof of value of the 48-year-old damaged bridge. The trial court in the instant case was in error in concluding that this Court had passed on the question here presented, namely: Should defendants he held responsible in damage for the costs of a temporary detour caused by the tortious acts of defendants?
Appellee cites State v. F. W. Fitch Co., 236 Iowa 208, 215, 216 (17 NW2d 380), and quotes from that decision as follows:
. “One element of appellees’ claim was the cost of maintaining a detour while a temporary bridge was constructed. Appellees have appealed from the adjudication that such cost is not a proper element of damage. They cite no authorities in support of their contention and the proposition has never been determined by this court. Various expressions have been used by other courts in stating the amount allowable for damage to public bridges, such as cost of repairing, cost of rebuilding, amount necessary to repair or restore, expense incurred to rebuild and repair, amount necessary to restore to former condition. (Citing cases.) >
“The question of the expense of maintaining a temporary detour was not considered in any of the foregoing cases except State Highway Commission v. Stadler, 158 Kan 289 (148 P2d 296), which followed State Highway Commission v. American Mutual Liability Insurance Co., 146 Kan 187 (70 P2d 20, 22), in holding such expense was not allowable under a statute which allowed recovery for damages to the bridge itself. Likewise, under section 5035.24, Code of Iowa, 1939, hereinbefore set out in part, recovery is limited to damage to the highway or structure. Although that section does not govern this case, it would seem desirable, from the standpoint of uniformity, that a like rule be here adopted.
“Under the circumstances we are constrained to hold that the cost of maintaining the detour is not a proper element of damage in this case. This accords with the adjudication of the trial court.”
In State Highway Commission v. American Mutual Liability Insurance Co., 146 Kan 187 (70 P2d 20), cited in the above-quoted Iowa case, the Kansas supreme court said (p 192):
“Included in plaintiff’s claim for damages is an item of $582.40 for expense in maintaining a detour of 2 miles while the new bridge was being constructed. But the statute only allows a recovery for the damage to the bridge itself. * * * Nothing under this statute is recoverable as consequential damages.”
This case was cited with approval in State Highway Commission v. Stadler, 158 Kan 289 (148 P2d 296), wherein the court stated that consequential damages allowable under the common law could not be recovered because the statute superseded the common law and made no provision for consequential damages.
United States v. State Road Department of Florida (CCA), 189 F2d 591, reviews 2 of the cases referred to above, and states (p 596):
“We have considered the authorities cited by the appellant, that the proper measure of damages for injury to a nontoll bridge is the cost of repairing and restoring it, as well as adjudications that the cost of maintaining a detour is not a proper item of recoverable damage for injury to a bridge. There can be no quarrel with the text authorities to the effect that the cost of repairing or restoring the bridge is generally the proper measure of damages for injury to it. However this does not reach the precise question here. The cases cited were determined upon consideration of statutes which restricted recoverable damages to such as ‘resulted to such bridge’ or damages which the ‘bridge may sustain’ and the courts expressly construed the statutes there involved as not authorizing the recovery of consequential damages. The Florida statute provides for recovery of actual damage to the highway. ‘Highway’ is a broader term than ‘bridge’ or ‘structure.’ We have found no Florida decision which construes the Florida statute to exclude the recovery of consequential damages. It is our independent opinion that a fair and reasonable construction of the statute furnishes a basis for the recovery now involved since the damages claimed are the natural and reasonable consequence of the injury to the bridge, the highway.”
The court, in the above-cited case, commenting on necessity of keeping traffic moving after damage to a bridge, stated (pp 595, 596):
“It is also contended that since the statute limits recovery to only ‘the actual damage to the highway’ it does not authorize the recovery of the damages here involved. It is conceded that the detour bridges were built to keep traffic open over the State and Federal highway, of which the damaged bridge was a part. The trial judge in sustaining the motion to strike this defense was of the opinion that a failure to consider the cost of constructing the temporary bridges as a necessary part of the over-all construction costs of the repairs of the permanent bridge would ‘be to blindly ignore the importance of present day use of arterial highways.’ We are impelled to the same view. Under the circumstances here present, where a permanent bridge, which the State has the obligation to maintain and keep open to accommodate a heavy flow of traffic, is damaged, the cost of constructing temporary facilities essential to maintain the regular flow of traffic is so directly related to the injury to the bridge and such a well understood and necessary consequence of such injury that such expense should be deemed legally a part of the damages sustained by the injury to the permanent bridge. So closely related are the repairs to the permanent bridge and the necessity for main taining the traffic artery which it affords that we think the expense here in question constitutes ‘actual damage to the highway’ within the fair intent and meaning of the Florida statute. Actual damages are compensatory damages. Expenses which naturally and reasonably follow from an injury to property are proper items of recovery.”
The common law prevails in determining the question here before this Court as there is no statute applicable similar to the Iowa, Kansas and Florida statutes. There is a Michigan statute (CL 1948, §247.293 [Stat Ann §9.1423]) providing that “any highway official who shall neglect or refuse to provide suitable detours * * * shall be deemed guilty of a misdemeanor.”
We are of the opinion that the trial court erred in refusing to permit introduction of evidence as to the cost of a temporary detour as consequential damages caused by the tortious acts of defendants.
Reversed and remanded. No costs, a public question being involved.
Carr, C. J., and Btjtzel, Bttshnell, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred.
State Highway Commission v. American Mutual Liability Insurance Co., supra; State v. F. W. Fitch Co., supra. | [
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Hooker, J.
The accompanying plat will serve to explain the situation of the parties at the time the controversy now before us arose. Prior to 1882 a road extended east, between sections 1 and 12, to within 80 rods of the east section line, and from thence north to the county line. In 1882 that portion of the road running north and south was discontinued; proceedings to that end being taken and assented to by the inhabitants of the vicinity. Lawrence, who owned 120 acres north, and 52 and a fraction south, of the east and west road, then built a fence on the section line, in the middle of said east and west road, from the east end thereof to the west side of the 52-acre parcel, and connected it there with a north and south fence, which he built across the road, putting a gate in the south, portion of Said cross-fence, and he has since maintained said fences and gate, except as in 1895 he removed the gate and south half of the cross-fence a short distance to the east to avoid being inconvenienced by a hill at that point. The effect was to throw the north half of that portion of the road so fenced into a cleared field, where it has since been used as improved land. The south half was thrown into a pasture lot;. the 52 acres never having been cleared and plowed. Lawrence died in 1895, and his lands have been divided; the 52-acre parcel becoming the property of A. E. Lawrence, this complainant.
In 1903 the highway commissioner served a notice upon the complainant, notifying him that the gate in question and a fence connecting to the gate across the road were an encroachment upon the highway, and ordering him to remove the same. Thereupon the complainant filed the bill in this cause, alleging the foregoing facts, and upon information and belief that the commissioner threatened to forcibly enter and remove the same, and take possession of a portion of the premises, and to destroy his fences and plow up, and grade the land, under the false claim that it was a public highway. The bill prayed a temporary and permanent injunction and that his title be quieted. The temporary injunction was issued. Defendant answered denying the material averments of the bill but admitting that he caused the notice to be served, and claiming the land to be a lawful highway. The answer contained the further averment that the defendant expected and intended to follow up the service of said notice by taking such further proceedings in furtherance thereof as the law in such case made and provided should point •out, with a view to recovering and freeing from obstruction said highway. .
The proofs in the case show title in the complainant as found by the learned circuit judge. It is within the ¿jurisdiction of equity to restrain highway officers from trespassing upon the lands of a private person under the claim that it is a public highway and to try'and quiet his title. Gamber v. Holben, 5 Mich. 334; Lyle v. Lesia, 64 Mich. 18; Neal v. Gilmore, 141 Mich. 519. If this were not so, the record is not in a condition to permit of a dismissal of the bill, on the ground that the proceeding should have .been at law rather than in chancery; the case having been heard upon the merits, and without objection, and without raising that question. Bennett v. Nichols, 12 Mich. 22.
The decree is affirmed, with costs.
McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred. | [
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] |
Reid, J.
Defendants on leave granted appeal from conviction and sentence for conspiracy to violate the gambling laws of the State of Michigan. The trial court denied a motion for a new trial.
Directly involved are 2 questions. Defendants claim: 1. That the search of the private residence of defendant Clay subsequent to defendant Clay’s arrest therein, without a search warrant, was not reasonable in the absence of any showing of necessity or emergency to excuse the officers for not obtaining . a search warrant; and defendants claim: 2. That the corpus, delicti of the crime of conspiracy was not established by a showing of multilateral participation in crime without showing any prior agreement with respect thereto.
On January 18, 1951, a captain of detectives in the city of Ypsilanti, William Reiman, received information from a confidential informant, considered by the captain as reliable, that defendant Paul Was-son was in a numbers business picking up numbers daily at the home of defendant Abbey Clay on Second avenue in Ypsilanti and that defendants Jdarshall Taylor and Harry Fuqua were with defendant Paul AYasson in the numbers business- and thát Harry Fuqua sometimes drove Wasson’s car to Detroit, taking numbers and money there, and the informant further informed the captain that AVasson would be leaving. Ypsilanti between 1:15 . and 2:30 p.m. daily. On the next day, January 19, 1951, Captain Reiman in checking the information thus given him, observed Wasson with someone in his car going to Detroit at 1:53 p.m., an hour of the day significant as to the numbers business or “racket” because of the deadline in playing certain night races. On Saturday afternoon, January 20, 1951, Captain Reiman placed 3 police cars in the city of Ypsilanti to wait for the Wasson car. At about 2:18 p.m., Captain Reiman recognized the Wasson automobile and pulled his own automobile behind the Wasson automobile at a red light. As Reiman and a fellow officer got out of their car and advanced toward the Wasson automobile, the Wasson automobile started up, ran through the red light, and at a speed of about 45 to 50 miles an hour ran through the traffic on the main street of' the city of Ypsilanti, and ran a second red light with police cars operating red flasher lights and sirens in pursuit. Finally the Wasson automo"bile was forced' to the curb by being sideswiped by a police car. The police placed all 3 occupants ih the Wasson car under arrest for conspiracy to violate the State gambling laws. The driver defendant Marshall Taylor was also given a ticket for running a red light.
After the arrest of the 3 occupants, a large quantity of policy tickets and numbers slips was found under the front seat of the car. On the front seat of the Wasson car beside the driver, defendant Taylor, was Paul Wasson. In his inside pocket was found a white envelope filled with mutuel numbers bet slips and in his topcoat pocket was found the sum of $375.83, of which $20.83 was in change and $355 in bills. A large amount of the bills were one-dollar bills. Numbers slips were also found in Wasson’s vest pocket and in his cap. In the back seat of the car was defendant Harry Fuqua. After the arrest, defendant Wasson stated he had been in the numbers racket for 5 or 6 months, taking the numbers to Detroit, and that the money and slips found on his person were' the money and slips he was going to. turn over to a man in Detroit as the day’s receipts and that sometimes Marshall Taylor drove him to Detroit and sometimes Harry Fuqua did. Defendant Marshall Taylor stated he drove Wasson to Detroit in Wasson’s car so that Wasson could take the numbers tickets to Detroit and that he had done this many times in the past. Defendant Taylor said that he saw Wasson put a large number of tickets in his pocket along with the money at his house that day.. He said he tried to get away from the police car because he knew he would be in trouble if they found those numbers tickets in the car. Defendant Fuqua stated that he had been writing numbers for several months and that he turned them over to Was-son and sometimes went to Detroit with Wasson to turn the numbers in there. He said his identifying mark “FU-2” was the mark that appeared on the numbers tickets taken from Wasson’s pocket in the white envelope.
After the arrest of the 3 defendants and acting on the same information that led to their arrest, Captain Reiman dispatched 2 uniformed officers about 3 p.m. on Saturday afternoon, January 20, 1951, to the home of defendant Abbey Clay on Second avenue in Ypsilanti, she having been reported also as writing numbers which Wasson picked up at her home to take to Detroit. The officers rapped at the door, asked for Abbey Clay and if they might come in, and were admitted by a woman who said she was Abbey Clay and said, “Yes, you may come in.” The officers then came in and because of their reliable information that she was guilty of a conspiracy to violate the gambling laws, placed her under arrest under such charge. Entering an L-shaped room divided by an open archway between the living and dining room sections, the officers told Abbey Clay she was under arrest for conspiracy to violate the State gambling laws. The officers searched a limited area, being solely the L-shaped room. They found a cardboard box on the dining room table in the dining room section of the L-shaped room, 10 or 12 feet from where Abbey Clay was arrested and clearly visible from the place where she was at the time of her arrest. The box was a manila-colored box with a slit in the top of it. The only things examined in the entire search were the cardboard box on the table, the sewing cabinet, Abbey Clay’s pocketbook, and a magazine rack in the living room section of the L-shaped room. The officer searched no other room of the 4- or 5-room house. The total time involved in leaving the police station, going to Abbey Clay’s home, arresting Abbey Clay, and making the limited search, and then returning to the police station, was approximately 20 minutes.
Under the front seat of the Wasson car were found policy slips with Abbey Clay’s identification mark, “8-X,” which she stated was her mark. These slips were identified by her as the slips she wrote for the $60 worth of numbers business which she had written that day. Defendants’ brief says, “Her home contained numbers tickets with numbers corresponding to those in the car.”
After their arrest, each of the 4 defendants, under circumstances described by the officers as witnesses, showing the freedom from compulsion or hope of reward, and after being informed that their statements might be used against them, separately confessed guilt of the crime charged.
Under question number 1, defendant claims a violation of the 4th Amendment to the Federal Constitution concerning unreasonable searches and seizures and, also, under the Constitution of the State of Michigan of 1908, art 2, § 10, as to freedom from unreasonable searches and seizures.
There is no showing that the officers would have or did have, sufficient time after the arrest of de fondants Taylor, Fuqua and Wasson,.tp get a search, warrant and come with the search, warrant to the home of Abbey Clay, the other defendant, before word would get to Abbey Clay of the arrest of her 3 confederates, the other 3 defendants. The officers were informed by a reliable informant (the subsequent facts clearly and convincingly showing the reliability of the information) that defendant Abbey Clay was in conspiracy with defendant Wasson in the matter of a numbers “racket,” before they went to the house of defendant Abbey Clay. They were admitted to the house by defendant Clay’s invitation. They were lawfully in the house. They had received reliable information that she was guilty of the conspiracy for which they then and there arrested her. The arrest of Abbey Clay was, by principles laid down in our previous decisions, the exercise of lawful authority on the part of the officers. The officers proceeded to investigate and search no more of the premises than what was with: in the immediate view and control of the defendant, Abbey Clay.
There would be no time left after Abbey Clay was arrested for obtaining a warrant to search the house without giving Abbey Clay’s husband and other friends, sufficient time to dispose of the damaging evidence of the presence of numbers tickets in practically the same room with her. Neither would there be any time after 3 police officers had overhauled on the public streets of Ypsilanti the 3 men defendants and caused their arrest for the officers then to go to a magistrate and obtain a search warrant of Abbey Clay’s residence before going there because the arrest of the 3 defendants on the public streets of Ypsilanti would be a publicly notorious thing, and the officers acting with reasonable prudence, would necessarily feel assured that knowledge of the arrest would probably get tp the Clay residence before they could arrive with a search warrant. The argument of the defendants that there was time for the procuring of a search warrant is entirely without foundation in any testimony in the record.
Notwithstanding the clear proof that no time sufficient had elapsed for the procuring of a search warrant, defendants proceed to argue in their brief as though there was some showing of such lapse of time. Defendants cite authorities and claim that Carroll v. United States, 267 US 132 (45 S Ct 280, 69 L ed 543, 39 ALR 790), sanctioned a search of automobiles without warrant only because of necessity. Defendants stress the propriety of the reasoning of the Federal court in that case, quoting, p 153:
“It is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”
The duplicate policy slips in the residence of defendant Clay could have been burned up in as brief a period of time as an automobile could convey them out of the limits of the city of Tpsilanti.
Defendants cite People v. Conway, 225 Mich 152, to support their argument that the search of the Clay residence was unlawful. However, in that ease we say (p 155): “It [the lawful arrest of defendant] gave him lawful access only to that part of the house which it was necessary for him to enter in order to serve his warrant.” In the instant case, the search of the premises of defendant Clay was only made in that part of the house which it was necessary for the officers to enter in order to arrest her. We do not consider that our decision in the Conway Case supports in anywise the contention of the defendants in this case. As already noted, the officers searched only what was in defendant Clay’s immediate view through an archway.
Upon the principle that the officer has a right to search the place where the arrest was made in order to find and seize things connected with the crime as its fruits or the means by which it is committed, see United States v. Rabinowitz, 339 US 56 (70 S Ct 430, 94 L ed 653). Also, Weeks v. United States, 232 US 383 (34 S Ct 341, 58 L ed 652, Ann Cas 1915C, 1117); and Agnello v. United States, 269 US 20 (46 S Ct 4, 70 L ed 145, 51 ALR 409).
The case of Harris v. United States, 331 US 145 (67 S Ct 1098, 91 L ed 1399), approved as lawful a search without a search warrant of a 4-room apartment in which the defendant was arrested. In People v. Lombardo, 301 Mich 451, we say at p 455:
“The search was not illegal. People v. Harter, 244 Mich 346. The officer had reasonable and probable cause to believe that defendant had committed or was committing a felony and the arrest was legal. People v. Stewart, 232 Mich 670. After arresting defendant under these circumstances, the search was not unlawful. People v. Cona, 180 Mich 641. The trial court did not err in denying defendant’s motion to quash the information and suppress the evidence.”
In People v. Heibel, 305 Mich 710, we say at pp 712, 713:
“The rule is well established that the illegality of seizure of evidence, where such illegality is known before the trial, must first be raised by a motion to suppress the evidence, timely made. The legality or illegality of the search and seizure is a collateral matter and the court will not turn aside from the trial of the case to consider such a collateral matter.”
See People v. Perrin, 223 Mich 132, and cases there cited. Also, 5 ALR 263 et seq., and many cases there cited.
We find without merit, defendants’ claim that we should disregard the evidence seized by the officers, either in the automobile or in the Clay residence. No 4 days notice of the motion to suppress required by Court Bule No 10, § 2 (1945), is claimed to have been given, and regardless of the court rule, the evidence had been lawfully seized.
The similarity of the numbers of the tickets found in the car and on the persons there arrested, with the duplicates of the tickets issued by defendant Clay, sufficiently connect up the 3 men arrested with defendant Clay, as guilty of planning and participating in the same conspiracy, in addition to which there are many circumstances likewise proving guilt of all 4 defendants. Each defendant, in the first place, was properly arrested on reliable information; and the evidence seized at the car, also the evidence seized at the Clay house, when considered and compared, clearly showed and proved the guilt of each of the 4 defendants and that they were all 4 knowingly guilty of participating in the same conspiracy.
Defendants’ objection to the subsequently drawn complaint and warrant is not sustained. The conviction and sentence in the case of each defendant, is affirmed.
Butzel, C. J., and Carr, Btjshnell, Sharpe, Boyles, Dethmers, and Kelly, JJ., concurred. | [
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Hooker, J.
The Citizens’ Mutual Fire-Insurance Company, of Jackson, Mich., was organized on March 21, 1893, under Act No. 82 of the Laws of 1873 of this State, and the acts amendatory thereto. The defendant, Murphy, made a written application for insurance against fire on November 14, 1896, and upon that day a policy was issued to him for the term of three years.
On December 7, 1899, the commissioner of insurance of the State, after making an examination of the affairs of the company, served notice upon its officers, requiring it to discontinue the issuing of policies at the expiration of 60 days, unless it should within that time collect assessments and pay losses and claims outstanding, and on May 22, 1900, he filed a petition in the circuit court for Jackson county for a receiver and to wind up the affairs of the company, and Forrest C. Badgley was appointed receiver, and he took possession of the property of the company. He subsequently obtained an order permitting him to levy an assessment, which he proceeded to do. This assessment was levied in relation to specific periods, 11 in number, and, when made, it was duly confirmed by the court. About $1,000 was collected upon this assessment, none of it paid by the defendant herein. Badgley brought an action against one Wood, in Jackson circuit court, to recover an assessment made against him, and the case was tried, James A. Parkinson acting as counsel for the receiver. Before the cause was decided, the presiding judge died, and Mr. Parkinson was elected his successor. On February 17, 1906, Badgley filed a petition setting up these facts and that it was impracticable for him to wind up the business, and his desire to resign. The commissioner of insurance supplemented this with his petition asking the»appointment of John Nichol as receiver in place of Badgley. Thereupon said Parkinson procured the attendance of Hon. Frank D. M. Davis, judge of the eighth judicial circuit, who heard the application and made an order accepting Badgley’s resignation, and appointing Nichol his successor. Nichol accepted and qualified, and on the same day applied to the court for a change of venue, or transfer of the proceeding to Ionia county, where he resided, upon the ground that the judge of Jackson circuit was disqualified to act as judge in the matter. Thereupon said Davis, while so presiding at the Jackson circuit, made such an order. Subsequently, and on March 22, 1906, Nichol, as receiver, filed a petition alleging irregularities in said assessment theretofore made by Badgley, and that it was grossly excessive in amount, and asking that it be set aside, and authority given him to make a new assessment for 75 per cent, of the amount of said first assessment ; and it was so ordered. Such assessment was made and confirmed, and the receiver was directed to proceed to collect the same. This action was brought to collect the share due from the defendant.
Upon the trial the court found the foregoing facts, and that by virtue of the policy the defendant became a member of the company, and that as such he was assessed and had paid the sum of #2.30, and that he was assessed the further sum of #2.88, which he did not pay; also that about a year after the policy issued, and after the payment of said #2.30, defendant notified one Charles ,P. Locke, a local agent of the company, that he desired to have said policy canceled, and he surrendered the same to said Locke, but it does not appear that the officers of the company, or any of them, were notified of such action at the time, and on November 18, 1899, the company sent defendant an application for renewal of his policy, on receiving which, he wrote the company as follows:
“Ionia, Michigan, October 19th, 1899. “The Citizens’ Mutual Fire-Insurance Company,
“ Jackson, Michigan.
“ Gentlemen: Your notice of éxpiration of insurance is at hand, and will say I withdrew from your company about two years ago, I think. Your agent, Charles P. Locke, of this city, was so notified and he so understood.
“Respectfully yours,
“E. A. Murphy.”
The following reply was sent him:
“Jackson, Michigan, October 21, 1899. “E. A. Murphy, Attorney,
“Ionia, Michigan.
“ Dear Sir: In regard to your policy No. 3,552 the situation is this: The policy was issued November 14, 1896, for three years, calling for $1,000, at the gross rate of $1.15, making your gross premium at $11.50. You paid $2.30 that year and an assessment of $2.30 in 1897, and an assessment of $2.88 was levied, due November 14, 1898, which you did not pay. We notified you that this assessment must be paid if you wish to retain the insurance, or if you desire cancellation, the policy must be returned, and the per cent, necessary at the time to relieve you was twenty-five per cent, of the unassessed premium, or $1.72. That liability still remains and trust you will remit at once. Enclosed find copy of two sections of our charter which will show you our authority for making such statement.
“ Yours respectfully,
“The Citizens’ Mutual Fire-Insurance Co.”
The defendant did not pay said sum, and in levying the assessment, the receiver levied the same for the full three years covered by his policy, a total of $32.42.
The court further found that at the time he took his policy it was represented to him, and he understood, that he would only be obliged to pay his equitable annual proportion of the rate necessary to pay the losses and expenses, not exceeding the sum specified in his application, during the life of his policy, to wit, $11.50, and that he paid no part thereof. That the receiver in levying the assessment only charged and assessed against said defendant his pro rata of the losses and expenses of the company, and the costs and expenses of such receivership, allowing a sufficient amount to cover all possible failures to collect, by reason of irresponsible membership and costs of collection.
Counsel for the defendant (who has appealed from a judgment of $32.42 and costs in favor of the receiver) raise the following questions:
“ (1) Could the circuit court for the county of Jackson, in chancery, make an order appointing John Nichol receiver, without notice ?
• “(2) Could the circuit court of Jackson county, in chancery, make an order transferring the proceedings to Ionia county, without notice ?
“ (3) Did the circuit court for Ionia county, in chancery, have the power to set aside the assessment made by Forrest C. Badgley, receiver?
“ (4) Was the said John Nichol authorized to levy an assessment under the orders of the court ?
“(5) Assuming that the court had jurisdiction in the premises, was the assessment legal, valid, and binding upon the defendant, under his contract ?
“ (6) If valid, what should be the amount of the judgment ?”
1. The proceeding in which the receiver was appointed was one between the State, acting for the benefit of the creditors of the company, against the company. A receiver had been appointed after the notice required by law had been given. The property was in the custody of the court, by its representative, the receiver. An emergency arose where it was necessary to change the receiver. It was clearly within the authority of the court having jurisdiction of the case to accept Badgley’s resignation, and to appoint a successor. If a proper notice was not served, as counsel contend, the advantage cannot be taken of it in a collateral proceeding which this is, Howard v. Palmer, Walk. Ch. (Mich.) 391; Thomas v. Wayne Circuit Judges, 97 Mich. 608. See 17 Enc. PL & Prac. p. 753, and cases cited; High on Receivers (3d Ed.), § 39a. There are many authorities which hold that an appointment made ex parte without notice to fill a vacancy is a valid act. See Nicoll v. Boyd, 90 N. Y. 516; Attorney General v. Day, 2 Mad. Chan. 470; Fowler v. Trust Co., 66 Fed. 14; Howarth v. Angle, 162 N. Y. 179 (47 L. R. A. 725); Sanger v. Upton, 91 H. S. 56. Were this a hearing in a direct proceeding to review the proceeding, we should be compelled to say that there is no occasion to disturb the order made.
2. The application to change the venue of the receivership proceedings was made to the court in which the action was pending, a judge of another circuit presiding. The members of the corporation, said to number some 9,000, were not entitled to notice. It would have been imprac ticable to give it. Moreover, if the defendant in this action has any right to question the order, he should have applied in a direct proceeding. The order cannot be made a shuttlecock in the 9,000 or less actions that must be commenced to collect assessments.
3. The order of the court in setting aside the Badgley assessment is not reviewable in this action unless it was void. We think that it was within the discretion of the court to set aside such assessment for irregularities, and because excessive, although perhaps not a void order. It does not appear that the defendant’s liability was in any way increased by such action.
4. The order authorizing Nichol to make the last assessment must be held to be valid, in view of what we have said upon other points.
5. The contention is made that defendant’s liability is limited to $11.50 by his contract. This is settled against plaintiff’s contention by the case of Russell v. Berry, 51 Mich. 387, as the law stood prior to the enactment of 3 Comp. Laws, § 5187, in 1885. That act in terms applies only to contracts theretofore made, and hence has no application to this case, and need not be further discussed. We have said in other cases that a limitation in the contract could not relieve members from a liability to pay a proportionate share of losses and expenses of a mutual fire-insurance company, for the period during which they were members, when the company’s affairs are being closed up by a receiver. Russell v. Berry, supra; Macklem v. Bacon, 57 Mich. 334; Bacon v. Clyne, 70 Mich. 183; Wardle v. Townsend, 75 Mich. 385 (4 L. R. A. 511); Wardle v. Cummings, 86 Mich. 395; Wardle v. Hudson, 96 Mich. 433; Ionia, etc., Ins. Co. v. Otto, 96 Mich. 558, 97 Mich. 522; Same v. Ionia Circuit Judge, 100 Mich. 606 (33 L. R. A. 481); Detroit, etc., Ins. Co. v. Merrill, 101 Mich. 393; Calkins v. Angell, 133 Mich. 77.
6. The remaining question involves the alleged cancellation. Upon the finding of fact that the plaintiff delivered his policy to the local agent, and asked to with -draw, it is contended that plaintiff was not thereafter liable for assessment for losses and expenses subsequent to that time. As we understand the record, if this was a cancellation, his liability should bejimited to $13.09. If not, the assessment should cover the term of his policy, which would make his liability $32.42. There is no doubt that the plaintiff sought to withdraw from the company, and gave his policy to the local agent, with such request. At that time he had been assessed $2.88, which he did not pay or offer to pay, and when, two years later, he wrote the company, and was advised that a liability remained yet, he did not pay it or respond further. His policy had then expired, and he probably supposed that no further liability remained except for assessments already made, which he did not pay. In that he was mistaken. See Schroeder v. Insurance Co., 87 Mich. 310; American Ins. Co. v. Woodruff, 34 Mich. 6; Buick v. Insurance Co., 103 Mich. 75; Snedicor v. Insurance Co., 106 Mich. 83; Manlove v. Bender, 39 Ind. 371; Burmood v. Insurance Co., 42 Neb. 598.
The judgment is affirmed.
Carpenter, C. J., and McAlvay, Grant, and Moore, JJ., concurred. | [
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] |
Boyles, J.
This is an appeal by the administrator of the above estate from a judgment entered in the circuit court for Kent county after a verdict by jury, on trial of an appeal from the probate court. The probate judge bad beld that the appellee Harriet Lergner was not the lawful widow of the decedent, and bad appointed the appellant as administrator of said estate. The circuit court, after the jury verdict, set aside the order entered in the probate court and ordered that the appellee Harriet Lergner, as the widow of the decedent, bad the prior right to nominate the administrator.
Decision depends on whether the appellee Harriet Lergner was tbe common-law wife of the decedent at the time of bis death and, hence, bis widow, with prior right to say who be appointed administrator. She claimed to have been bis common-law wife and consequently bis lawful widow at tbe time of bis death, and filed a petition in tbe probate court asking for the appointment of one Wencel A. Milanowski as tbe administrator of bis estate. A counterpetition was filed by Harry H. Lergner, Jr., son and beir-at-law of said decedent, asking for the appointment of one G-erald M. Henry as administrator.
If tbe appellee were tbe lawful widow of tbe decedent she bad tbe prior right to nominate tbe administrator. Tbe probate judge, after taking testimony, beld that tbe appellee was not tbe widow of the de cedent and entered an order appointing appellant as administrator, on the petition of the son and heir-at-law. Harriet Lergner appealed to the circuit court wdiere the question whether she was the common-law wife of the decedent was tried by jury, resulting in a verdict in her favor reversing the probate court. From the judgment entered thereon holding that she was the common-law wife and widow* of the decedent the defendant appeals.
For reversal appellant claims that the court erred in admitting the testimony of Harriet Lergner over appellant’s objection, and that it should have been excluded on the ground that it applied to matters equally within the knowledge of the deceased.
It is not necessary to encumber this opinion with the testimony of Harriet Lergner. There can be no question but that in many material particulars it referred to matters equally within the knowledge of the deceased. It had to do with facts and circumstances occurring during the lifetime of the decedent, obviously within his knowdedge, on which she relied to establish that she was his common-law wife. It was reversible error to admit this testimony. Skurski v. Gurski, 329 Mich 474.
Appellant also claims reversible error in several particulars in the court’s charge to the jury. Inasmuch as the charge depended in many respects on the inadmissible testimony of the appellee, and raises questions which obviously will not occur at another trial, we need not discuss the instances wherein the court erred in the charge.
Reversed and remanded for a new trial, with costs to appellant.
Butzel, C. J., and Carr, Bushnell, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred.
CL 1948, § 702.52 (Stat Auli 1943 Bev § 27.3178 [122]).
CL 1948, § 617.65 (Stat Ann § 27.914). | [
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Kelly, J.
General Telephone Company’s application of January 22, 1952, for rate relief in the amount of $1,100,000 was partially granted by the Michigan public service commission’s order of December 5, 1952, allowing a rate increase of $660,000.
The company appealed to the Ingham county circuit court and introduced additional testimony to that which had been introduced before the commission, and the court transmitted such testimony to the commission for its consideration. The commission refused to consider the additional testimony and advised the court that it found no occasion to modify its order.
On July 30, 1953, the court rejected the contentions of law.and fact contained in the commission’s report, and found that the rates prescribed by the commission were unreasonable, unlawful and confiscatory. On August 21, 1953, the court entered a decree remanding the matter back to the commission to fix “just, reasonable and nonconfiscatory rates,” and, pending action by the commission, the company was authorized to collect rates not in excess of the rates the company had requested the commission to approve. The company was also ordered to provide a $1,000,000 refund bond depending upon the outcome of the appeal by the commission to this Court.
At the hearing before Judge Coash, Ingham circuit court, held in March, 1953, the company introduced testimony in regard to its 1952 activities, including budget, actual expenditures, wage increases, additional and unexpected taxes, and increase in operating expense due to installation of 6,014 new telephones. The company also introduced evidence as to the impact of the commission’s order of December 5, 1952, and a claimed reduction in the company’s rate of return for 1952 from 6.6% to 4.23% on average capital.
The commission claims that the court erred in receiving and transmitting this testimony to the commission, as this additional testimony arose subse quent to the close of hearings by the commission on July 2, 1952. This testimony was received by the court and transmitted back to the commission pursuant to CLS 1952, § 484.116 (Stat Ann 1953 Cum Supp §22.1456), which reads as follows:
“If upon the trial of said action evidence shall be introduced which is found by the court to be different from that offered upon the hearing before the commission or additional thereto, the court before proceeding to render judgment, unless the parties in such action stipulate in writing to the contrary, shall transmit a copy of such evidence to the commission, and shall stay further proceedings in said action for 15 days from the date of such transmission. Upon receipt of such evidence the commission shall consider the same, and may alter, modify, amend or rescind its order relating to such rate or rates, charges, joint rate or rates, regulations, practice or service complained of in said action, and shall report its action thereon to said court within 10 days from the receipt of such evidence. If the commission shall rescind its order complained of the action shall be dismissed; if it shall alter, modify or amend the same, such altered, modified or amended order shall take the place of the original order complained of, and judgment shall be rendered thereon as though made by the commission in the first instance. If the original order shall not be rescinded or changed by the commission, judgment shall be rendered upon such original order.”
The legislature realized that the additional and/or different testimony introduced before the court could be of such importance that it would result in the commission’s altering, modifying, amending, or rescinding its previous order. The legislature provided for the commission’s immediate and serious consideration by not only stipulating that “the commission shall consider” the evidence, but, also, that the court “shall stay further proceedings in said action for 15 days from the date of such transmission.” There is a total absence of any inference that the evidence the commission shall consider should be restricted or confined to conditions existing or matters which arose previous to the close of the-hearing before the commission. It is our opinion, that if the legislature had so desired, the statute would have expressly provided for such a restriction.
A similar statute was construed by the supreme-court of Indiana in Public Service Commission v. Frazee, 188 Ind 573 (122 NE 328, PUR1919C, 979), as follows:
“Appellant complains of the admission of evidence of operating expenses at a time subsequent to the decision of the commission.
“The statute * * * provides that the court may hear evidence ‘different’ from, and ‘additional’ to, that heard by the commission; and the statute does not provide that such different and additional evidence shall relate only to matters occurring or existing prior to the hearing or decision of the commission; therefore, so far as expression in the statute is concerned, such evidence may relate to matters occurring after the board’s decision and up to the time of trial in the circuit court. The statute further provides that if the trial court hears ‘additional’ or ‘different’ evidence, the trial court shall, before rendering judgment, transmit a copy of the ‘additional’ or ‘different’ evidence to the commission for its consideration; and that the commission may alter or rescind its order, and must report to the court within 10 days. Thus the commission is placed upon the same footing, so far as evidence is concerned, as is the circuit court on appeal; and the fact that the evidence may relate to after matters is unobjectionable.
“Furthermore, the propriety of hearing evidence as to a practical test of the reasonableness of such order, especially where that question is not clearly solved hy a hearing- before the commission, is recognized by the courts. Willcox v. Consolidated Gas Co. (1908), 212 US 19, 54, 55 (29 S Ct 192, 53 L ed 382, 15 Ann Cas 1034, 48 LRA NS 1134); Northern Pacific R. Co. v. North Dakota (1909), 216 US 579, 581 (30 S Ct 423, 54 L ed 624). This clearly shows that it is proper to hear evidence of things happening- after such an order is entered to properly determine whether such order is valid or invalid. This disposes of all objections made to the admission of such evidence.”
The court did not err in receiving and transmitting this testimony to the commission.
The next contention presented by appellant is that:
“The opinion and decree of the circuit court constitutes a direction, in effect, to the commission to grant additional revenues to appellee beyond those already allowed whereby the court engaged in the legislative function of rate-making which was error.”
The decree of the court, filed August 21, 1953, contains the following:
“Now, therefore, by reason of the matters of fact and of law so found and determined, the court does hereby order, adjudge and decree that the rate order T552-52.ll of defendant Michigan - public service commission issued December 5, 1952, as affirmed by its statutory report dated May 22, 1953, is hereby reversed, vacated and set aside as unreasonable and unlawful but only insofar as said order violates the statutory and constitutional rights of plaintiff to earn a reasonable return on the fair value of its property and fails to prescribe reasonable, adequate and lawful rates for plaintiff General Telephone Company of Michigan.
“It is further ordered, adjudged and decreed that this matter be, and the same hereby is, remanded to the defendant Michigan public service commission to fix and determine in conformity with, the findings and holdings of this court as expressed in its opinion dated July 30, 1953, just, reasonable and non-confiscatory rates for General Telephone Company of Michigan upon the basis of the complete record, made in this matter including the proceedings before the defendant commission and the different or additional evidence offered at trial in this court.
“It is further ordered, adjudged and decreed that pending action by the commission in so fixing just, reasonable ■ and nonconfiscatory rates, the company be, and hereby is, permitted temporarily to establish and collect rates and charges not in excess of the rates and charges which it requested to be approved by the defendant Michigan, public service-commission in its application of January 22, 1952. * * *
“It is further ordered, adjudged and decreed that plaintiff shall set up on its books and records a reserve to which it shall credit currently as soon as practicable after the end of each calendar month a gross sum equal to the difference between the revenues actually billed in such month, and those revenues which would have been billed if the rates and charges prescribed in said rate order T552-52.ll had been billed as nearly as said difference can be determined reasonably by general estimate and. without detailed accounting as to each subscriber. The said reserve shall be employed by plaintiff to make such refunds, if any, as may be required by a further or supplemental order of this court .pursuant to the terms and provisions hereof. However,, plaintiff shall have full right to use the funds represented by the said reserve as freely for any purpose as' the funds represented by the general accounts on the books of the plaintiff.
“It is further ordered, adjudged and decreed that plaintiff shall file with this court a good and sufficient bond, without surety, for the refunding of any charges which might later be determined to be excessive as follows: If lawful and reasonable rates fixed by the commission are as great or greater than those established and collected by the company during the temporary period no refunds will be required ; however, if the commission shall fix and determine rates which are lower than the temporary rates collected by the company, and said rates fixed by the commission are lawful, reasonable and non-confiscatory, then the difference between the rates collected by the company during the temporary period and said rates prescribed by the commission shall be refunded to the company’s customers. Said bond shall be in the amount of $1,000,000; but, the court hereby reserves full jurisdiction and power to require a greater bond at any time in the future if the same appears necessary to guarantee the refunding of any charges which might later be determined to be excessive as herein provided.”
At the commencement of the hearing before the commission the applicant company requested that a reasonable and fair test period be adopted by using the actual fixed figures of operations for the 5-month period ending May 31, 1952, and the estimate for operational figures for the remaining 7 months of 1952. This request was denied by the commission and instead adopted its staff recommendation “of 1 full year ending December 31, 1951, adjusted to current ‘going rates’ for wages, taxes, and service charges as shown by the record in this cause.” The commission admits that on April 8, 1953, the court transmitted to the commission testimony to show “the impact of the commission’s order of December 5, 1952, as disclosed by the company’s balance sheet for the period ending December 31, 1952; actual revenues and expenses for 1952, and a claimed reduction in the company’s rate of return for 1952 from 6.6% to 4.23% on average capital.”
In its statutory report, the commission, in refusing to give consideration to the testimony transmitted to it by the court, stated: “General’s remedy in this regard is simple and expedient, namely, the presentation of a new rate application to this commission for the proper determination of snch facts affecting its revenues, expenses and services as have occurred since the close of the record upon which our order was based.”
The commission used the 1951 average invested capital of $16,596,600 in coming to its conclusion as to what rate order should be allowed. The testimony before the circuit court disclosed that as of. December 31, 1952, the actual invested capital had increased to $20,297,075, and that the average invested capital for the year 1952 was $18,834,400.
At the commission hearing the company offered proof to sustain its estimate that $1,366,000 would be necessary for maintenance purposes for the year 1952. The commission rejected this proof and instead relied upon its staff expert, Mr. Demorest, who testified in regard to the 1952 maintenance costs as follows:
“This is based on the assumption that the maintenance cost per station in 1952-will be the same figure it was in 1951. I have no way of knowing whether this is a correct assumption. * * * Any determination I made insofar as maintenance expense for 1952 is concerned merely reflects the average maintenance cost of 1951.”
By refusing to consider the testimony forwarded by the circuit court, the commission refused to consider proof that the actual maintenance expense for 1952 was $1,423,473.
Five items, namely, maintenance, traffic, commercial, general office, and other operating expense, were grouped together in determining operating expenses and totaled $3,684,862.60 for 1951. The testimony before the circuit court, which the commission refused to consider, disclosed that for 1952 these 5 items totaled $4,086,397, constituting $401,535 additional operating expense for 1952 over 1951.
It is evident from an examination of the statute that the legislature placed upon both the commission and the circuit court of Ingham county a joint responsibility to see to it that telephone rates were just and reasonable.
For the purpose of this opinion we shall quote from chapter 5 of the opinion and rate order dated December 5, 1952, wherein the commission stated:
“The legislature has provided that telephone rates in Michigan must be ‘just and reasonable’, CL 1948, § 484.103 (Stat Ann § 22.1443). Just and reasonable rates have been defined, insofar as the customer is concerned, when they are neither oppressive nor permissive of exorbitant and speculative profits, City of Detroit v. Michigan Railroad Commission, 209 Mich 395 (PUR1920D, 867); City of Detroit v. Michigan Public Service Commission, 308 Mich 706 (54 PUR NS 65). Insofar as the utility is concerned, rates are just and reasonable when sufficient to cover all reasonable costs of doing business, including interest on the bonded indebtedness and a fair dividend on the equity invested in the plant, City of Detroit v. Michigan Public Service Commission, supra; Federal Power Commission v. Hope Natural Gas Co., 320 US 591 (64 S Ct 281, 88 L ed 333, 51 PUR NS 193).”
To meet this test and provide rates that are “just and reasonable” the commission should consider not only all reasonable costs of doing business, including interest on the bonded indebtedness and a fair dividend on the equity in the year preceding the hearing, as the commission did in this case, but should also consider these factors as they will influence yields for a reasonable time in the future. See McCardle v. Indianapolis Water Co., 272 US 400 (47 S Ct 144, 71 L ed 316, PUR1927A, 15).
This Court made it very clear in Michigan Bell Telephone Co. v. Public Service Commission, 315 Mich 533 (66 PUR NS 287), that the commission cannot establish a retroactive rate thereby correcting injustice caused by delay in establishing rates for the past. When failure to provide adequate rates in the past cannot be remedied by retroactive orders, it follows that every reasonable effort should be made by the commission to eliminate unnecessary delay and to pass judgment on facts that will not only reflect upon the present but a reasonable period in the future. The commission failed to meet this test not only at its hearing but failed again when the testimony received before the court was transmitted to it, and it was in error in informing the court that the company’s “remedy in this regard is simple and expedient, namely, the presentation of a new rate application to this commission for the proper determination of such facts affecting its revenues, expenses and services as have occurred since the close of the record upon which our order was based.” The commission was in error in refusing to consider the testimony transmitted by the court, and the trial court properly held that the commission’s order of December 5, 1952, failed to meet statutory and constitutional requirements.
The court by its decree did not establish a rate, but only provided, dependent upon final adjudication by the court, that the company could collect the charges it requested in its application as a trust fund under a bond of $1,000,000, and further provided that the company “set up on its books and records a reserve to which it shall credit currently, as soon as practicable after the end of each calendar month, a gross sum equal to the difference between the revenues actually billed in such month and those revenues which would have been billed if the rates and charges prescribed in said rate order T552-52.ll.”
As further proof that the court provided for a trust fund to he collected' during the interval between the time the commission refused to give consideration to the testimony and the time when consideration would be given by it, is the following:
“If lawful and reasonable rates fixed by the commission are as great or greater than those established and collected by the company during the temporary period no refunds will be required; however, if the commission shall fix and determine rates which are lower than the temporary rates collected by the company, and said rates fixed by the commission are lawful, reasonable and nonconfiscatory, then the difference between the rates collected by the company during the temporary period and said rates prescribed by the commission shall be refunded to the company’s customers.”
In Michigan Bell Telephone Co. v. Ingham Circuit Judge, 325 Mich 228 (81 PUR NS 599), headnotes read:
“Bate-making proceedings relating to telephone companies before the public service commission and review thereof by the circuit court are purely statutory and are designed to accomplish speedy final determination of issues involved.
“The circuit court is vested with the general equity jurisdiction to protect a telephone company from confiscatory rates being fixed by the public service commission.”
We believe that the circuit court properly exercised its general equity jurisdiction to protect the company from confiscatory rates during the interval that the court realized must elapse between the time the commission refused to give consideration to the testimony regarding the impact of its order upon the company during 1952 and the time when said commission Avould give that consideration.
The record discloses the fact that the commission was somewhat confused in regard to granting a rate increase to a company that while striving to render a service was meeting with a great problem. This is evidenced by the following from the commission’s opinion and rate order of December 5, 1952:
“Present management has made valiant efforts with the tools at hand to raise the level of service provided. However, changing social and economic conditions have rendered the task almost insurmountable. Eighty thousand stations spread thinly over approximately 5,648 square miles in 33 counties provide a service and maintenance problem to try the wisdom of a Solomon.”
In its application, the company called to the commission’s attention the following in regard to its plant in service:
“This commission is familiar with the fact that on January 1, 1946, applicant had total telephone plant in service in the aggregate amount of $7,122,173; that, on January 1, 1949, applicant’s total telephone plant in service aggregated $10,382,516; that on January 1, 1950, applicant’s telephone plant in service aggregated $12,607,826. On November 30, 1951, applicant’s telephone plant in service amounted to $18,329,802. For the year 1952, applicant has budgeted for additions to its telephone plant the sum of $3,418,400 in gross additions, and that consequently, by December 31, 1952, the total of applicant’s telephone .plant in service will aggregate $21,-339,700, or an increase of 200% over the total amount of telephone plant in service on January 1, 1946.”
On January 8, 1951, the commission, by order, adopted the standards and service to he observed by the company and, among other things, said order prescribed a reduction to 10 in the number of subscribers attached to a single rural line. This order was amended on January 22, 1952, and the commis sion in its opinion and rate prder of December 5, 1952, had the following to say in regard to that order:
“Testimony shows that the total number of rural lines with over 10 stations has been reduced from 700 at the time of the January 8, 1951, order, to 510 at September 30, 1951; that at the end of 1952, an additional 226 rural lines will be unloaded, and the balance will be completed during 1953. The total unloading program involved all but 13 of the applicant’s 75 exchanges, and some 20,562 main stations, and was estimated to cost about $1,017,500.”
Certain confusion does exist in this record due to statements of the commission in its rate order, as follows:
“We are of the opinion that under the law increased charges for such service might be denied until such time as service reaches the standard which should be furnished by a monopoly telephone company in 1952.
“On the other hand, applicant has been unable to pay a dividend on its common stock since August, 1951, and all available money has been utilized to rehabilitate and expand its equipment and facilities. Outright denial would not achieve the end of improving service, but rather existing service would deteriorate further through inability of applicant to attract its share of additional capital.”
The record discloses that plaintiff and appellee,. General Telephone Company of Michigan, is successor to the Associated Telephone Utilities Company which was forced into receivership in April, 1933. It serves approximately 88,000 telephones through 78 central offices in 75 exchanges. Thirty central offices, serving slightly more than 50% of the stations are dial type; 13 with approximately 28% of the stations are of the common battery type; and the remaining 35 with 22% of the stations are still of the magneto type.
The commission’s hearing on the application was held in Lansing on February 5, 6 and 7, 1952. That hearing was followed by 7 regional hearings held outstate in June, at which hearings over 150 telephone subscribers testified in regard to the service they were receiving.
The commission not only spent a major part of its time preparing its report and rate order upon this testimony, but used 24 pages of the printed record, of the 36 pages required for its statutory report, reviewing this testimony.
Services and rates, although related, are not dependent on each other, and this Court approves the following from Elyria Telephone Co. v. Public Utilities Commission of Ohio, 158 Ohio St 441, 446, 447 (110 NE2d 59, 98 PUR NS 246):
“There is, of course, no doubt that a utility must render adequate service to its patrons, and the general assembly recognizing that at times service might be inadequate has provided a means whereby a utility may be compelled by the commission to improve its services and facilities. The commission has the power to require adequate service under sections 614-21 and 614-27, General Code, but services and rates, although related, are not wholly dependent on each other. As to rates the question is whether the company is receiving a just and reasonable return on the value of its existing property; the question as to adequate service is whether the company is rendering or is capable of rendering reasonable service with its existing property or whether by improvements, either in the use of the property it owns or by new installations, this can be done. Under the provisions of sections 614-27 and 614-28, General Code, the commission has ample power to require adequate service but it lacks the authority to demand that certain installations and improvements be made before the company may claim and receive just and reasonable rates for the services actually being rendered.
“Although it may be true that there should be a connection between rates and service, the record here shows the company was rendering at least fairly adequate service. It had expended over $1,-000,000 in the last 10 years for new equipment, was aware of certain inadequacies in the service and was attempting to correct the same by new construction. Furthermore, the company was faced with emergency conditions which created, and still create to some extent, difficulty in procuring new equipment. At the same time an unprecedented demand for service existed and still exists. Under such facts, where the commission finds that rates being charged are inadequate it can not arbitrarily condition an increase in rates on an improvement of services and facilities.
“There is still another aspect to the problem. A utility to survive must receive a fair return on its property. Otherwise capital will not be attracted to furnish the funds for the new equipment needed to meet the demands of increased population and the consequential necessity for increased service. The commission’s order as made has the effect of creating serious difficulties for the company. A situation is present where the company needs an increase in rates to attract capital to buy new equipment and to meet increased demands, and the commission says, in effect, ‘we will give you the new rates to attract the new capital to purchase new equipment when you show that you have installed the new equipment.’ Adoption of such an attitude would hamstring the utility.
“A public utility commission may not so act as to confiscate the property of a utility, and where it is determined that adequate rates do not exist, an order granting an increase but suspending the same until such time as certain facilities and improvements are provided does have that effect. Upon the record in this case, the commission erred in suspending the increased rates until such time as the services and facilities have been improved.”
The trial court was not in error in setting aside the rate order of the commission of December 5, 1952, or in requesting the commission to give further consideration to the testimony introduced before the court and to determine new rates.
The decree from which the appeal has been taken is affirmed and the cause remanded to the circuit court of Ingham county for such further proceedings as may be found necessary and expedient. A public question being involved, no costs are allowed.
Butzel, C. J., and Carr, Bushnell, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred. | [
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Ostrander, J.
Some references to testimony will be necessary to an understanding of the case, and will be made. The opinion of the trial judge, however, so fully outlines the case that it is here set out at length:
“ In this case the complainant in her own behalf, also as administratrix of her father, John C. Pomeroy, together with the widow and heirs at law of said deceased, files her bill in the nature of a bill of review against the defendant, asking that a decree heretofore entered in this court, which this bill seeks to. review, be set aside and an accounting be had between Patrick Noud, defendant, and the estate of John C. Pomeroy, and that said defendant be decreed to pay such estate any amount found due.
“On January 5, 1895, John O. Pomeroy, deceased, was insolvent, and defendant was indorser for him in the amount of about $40,000, and also held certain mortgages on real estate of said Pomeroy, and said Pomeroy, on January 3, 1895, gave defendant a mortgage for $43,000 to secure such indebtedness. This mortgage gave defendant a right to take possession of the property described therein ‘ and use and operate the same in such manner and for such length of time as to said second party shall seem advantageous, and apply the net earnings and proceeds to the payment of the obligations and indebtedness secured hereby, whether the same are due, or not; the operation of said bottling works and said mill property to be at the risk and expense of the said party of the first part.’ Defendant took possession January 6, 1895, of the property turned over to him under the mortgage and certain other property not described or included therein, for the purpose of making the attempt to realize the large amounts for which he had become indorser for Pomeroy, and proceeded to operate the said property and .so continued until the years 1901 and 1902. Defendant, as mortgagee in possession, found it necessary in order to operate the property to any advantage to put in large amounts of fresh money of his own, and claims that it was necessary for him to borrow in order to do this, and pay interest. J. C. Pomeroy died in December, 1897, and the complainant, Emelia Pomeroy Mackin, was thereafter appointed administratrix of his estate.
“ Much testimony has been offered relative to matters equally within the knowledge of the deceased and testified to by the parties to this proceeding. Such matters as are clearly within the prohibition of the statute (although some such testimony was put in the record) the court strikes out and holds such testimony incompetent.
“ The business of the deceased consisted of a sawmill and planing mill, with some cedar and other timber to supply it, also a bottling works at Manistee, and at Frankfort, and certain real estate not described in the mortgage, all of which property and business the defendant took into his possession, except the bottling works and the homestead occupied by Pomeroy’s wife and family, and, as before stated, proceeded to run the mill business and dispose of some of the other property.
“After the appointment of the administratrix and in December, 1897, or early in 1898, certain reports or statements of the business were made to the administratrix, and afterwards for the years 1898, 1899,1900, 1901, and in the year 1902 the defendant began proceedings to foreclose his securities for the purpose of realizing a balance of $11,752.34, claimed by him to be due and unpaid upon the amount of indebtedness owing him under such securities. Personal service was had upon the defendants, who were the same as complainants in this suit, and a decree pro confesso was afterwards entered therein in favor of Patrick Noud and against the defendants for the amount claimed. Petition was filed early in 1903 asking leave to file a bill in the nature of a bill of review, which was heard and granted, and afterwards the bill of complaint in this cause was filed.
“ The contention of the complainants in this suit is that the defendant, Patrick Noud, was practically a trustee, subject to all the duties and obligations required of trustees; that he in administering said property was extravagant and made charges for personal service and also charges of large amounts for compound interest; that he neglected to deal with tlje representative of the estate fairly, and by a system of bookkeeping covered up his acts and doings so that they were not intelligible and understood by the administratrix, and that in this and other matters he did not deal fairly and honestly in the premises; that these matters complained of were not known to the complainants and could not be easily ascertained, and that, in truth and in fact, at the time this accounting is asked, for, the estate of J. C. Pomeroy is entitled to a large amount of money from defendant and all the property upon the foreclosure proceedings he took or sold to satisfy his claim.
“ Both on the hearing of the petition hereinbefore mentioned for leave to file a bill of review, and upon hearing of the case after the bill was filed and an issue joined, much more time than usual has been given by the court to this matter. The perplexities surrounding the case under the proofs are not few, and the questions raised are of great importance and in a branch of the law under which there are not many cases to guide the court in coming to a determination.
“The proofs show that the defendant, Patrick Noud, took this property at a time when the same was of little value, and by wise administration and business shrewdness, assisted by a rising market in timber, successfully administered it. The books of account disclosed that he kept an account called ‘ Patrick Noud, Mortgagee,’ and also ah account called ‘ J. C. Pomeroy, Special;’ that in the first account all the transactions and doings relative to the property within the mortgage were entered, and in the second account matters not connected with the mortgage itself, but property outside of the mortgage received and administered by him. So far as the bookkeeping is concerned, its accuracy is- undisputed, and the competency of his bookkeeper, Michael Fay, is not questioned. In fact, the expert accountant, H. N. Doughty, who spent much time upon these books for the complainant, and who, without question, is competent, certified to the accuracy of the bookkeeping, and that in arriving at his final figures they would be exactly the same as Fay’s if the service account and interest account were added. Statements from these books were furnished in 1897 to 1901, inclusive, and after the administratrix was appointed and a large amount of claims proved in probate court, I think in the year 1901, a meeting of the creditors, the administratrix, and defendant Patrick Noud, was had for the purpose of going over the matters contained in said statements and discussing the claim of this defendant. A large number of creditors were represented, and the statements were submitted and discussed, and an adjourned meeting was had 30 days later for the purpose of ascertaining if any margin could be gotten for the creditors out of this property. Defendant Noud made the proposition to discount his claim to any one who would take the business off his hands, also to pay costs of foreclosure in case he began proceedings. At the second meeting of- the creditors his proposition was not accepted, and no action was taken. He afterwards filed his bill, as hereinbefore stated, to foreclose his securities. The main question to be determined, as appears to the court, before a decree will be set aside upon the bill of review, is whether the showing made upon the proof discloses that there is new matter not within the knowledge of the complainants at the time of the former trial and.not easily ascertained by them, or whether error of law has been committed in granting the decree. Taking the proofs offered on the part of the complainant and giving them their widest possible significance and weight, the court is not able to say that there is matter which' was not within the knowledge of complainant, Emelia Pomeroy Mackin, administratrix, or easily ascertainable by her in time to be presented and heard on former trial. The statements furnished in 1897 to 1901 are practically the same as furnished now from the books and by Mr. Pay, and also it is claimed that the interest account did not accompany all of these statements. It appears to the court that any person with ordinary knowledge and discrimination could take these statements and know that a charge for service had been made by defendant Noud for himself and his bookkeeper.
It is contended, on the part of complainants, that no service account should be allowed, but the mortgagee, Noud, was obliged to take the property and work out his indebtedness without charge. This is the old rule as to trustees, but the later and better authorities do not hold that in cases of this kind, where a mortgagee is in possession for the purpose of realizing from a bankrupt, property sufficient to save him from loss, he must do so gratuitously. The only proof in the case upon the value of his services is to the effect that the charge is reasonable. The other claim as to interest being compounded and added into the decree heretofore made is also a matter which entered into the statements heretofore referred to furnished by Noud, and there is proof in the case that, if interest had been computed according to the rule recognized by our courts in this State, the amount of the balance would have been greater than if computed as was done. These are the two matters upon which the complainants finally rested their case and claimed that this service account and compound interest account amount to the sum of $9,775 and that a decree should be made in their behalf for that amount and for the property sold upon the foreclosure decree; that at the time of the foreclosure defendant Noud was indebted to the estate in the sum aforesaid, and should have turned over the property to the administratrix. In the argument this contention is made on behalf of creditors except as represented by the administratrix and as claimed in the argument. The creditors have not appeared in this case, yet it is apparent to the court that the creditors have carefully gone over the statements rendered at the creditors’ meeting and satisfied themselves that no margin remained for them, and, when it is considered that any amount this court might decree due the estate from defendant would be applied entirely upon the creditors’ claims, their conduct in the premises has considerable weight with this court. The defendant is criticised also on account of dealing with the State Lumber Company, with which he was the largest owner, in purchasing lumber and sawing logs for him in carrying on his business. To any one acquainted with lumber business it is apparent that, when the timber is .practically exhausted and the logs come in very slow, to keep a mill crew on the pay r,oll full time for the few days each month logs could be supplied would not be wise management, especially when at a fair figure the logs could be sawed at any other place. There is no proof, whatever, showing that any of the prices charged were exorbitant, or that the lumber purchased was not worth the price paid. In fact, the testimony is all to the contrary. The court is satisfied from the proofs in the case that there is no new matter such as is necessary and requisite to plant a bill of review upon disclosed in these proofs, and that the case when all in on the part of the complainants does not differ in its results from the case made under the mortgage foreclosure.
‘ ‘ Therefore the prayer of the bill of complaint is denied, and the bill dismissed, without costs, and a decree will be entered accordingly.”
It appears that leave wás granted to the parties complainant here to file a bill in the nature of a bill of review in a foreclosure proceeding instituted in said court May 3, 1902, which, regularly, resulted in a decree which was filed September 6,1902, and was later completed by a sale of the mortgaged property. The foreclosure proceeding involved, as appears from a bill of complaint therein, a certain mortgage, dated January 3, 1895, securing payment of $6,000, and a prior mortgage given September 28, 1887, securing payment of $5,000, assigned to complainant. The indebtedness secured by these mortgages was, all of it, so far as the foreclosure bill stated the facts, evidenced by certain promissory notes. No other indebtedness is mentioned in the foreclosure bill. There was no appearance of defendants in the foreclosure proceedings. The mortgage securing the payment of $6,000 is conditioned also upon paying certain other notes, amounting to $37,000, made by the mortgagor, indorsed by the mortgagee, and renewals thereof and interest and any other indebtedness of the mortgagor upon which the mortgagee was liable as indorser or otherwise. It appears further that the debtor gave to defendant, also, a chattel mortgage, dated January 3, 1895, securing the sum of $43,000, conditioned substantially as is the real estate mortgage of same date. No mention of this security is made in the foreclosure bill or in the bill of review. It is averred in the bill of review that, by virtue of the two real estate mortgages and a certain alleged parol agreement, Mr. Noud took possession of the real estate and personal property of said mortgagor described in the bill and operated and managed the same for the purpose of paying from the net proceeds said indebtedness, turning over any remainder to the debtor. With the answer of defendant to the bill of review is a plea, sptting out the proceedings, including the decree in the foreclosure proceedings, with the further averment that the bill of review was filed more than a year after expiration of the time given to appeal from said decree. This plea was overruled.
It is the theory of the bill of review that upon a proper accounting by Noud it would have been made to appear, in the foreclosure proceeding, that a less sum than was claimed, or no sum at all, would have been found to be due. The debtor, John C. Pomeroy, died in December, 1897, at a time when the defendant had for nearly three years managed and directed his business and such property as he had taken possession of. It is averred that complainants, some of whom were and are infants, were, at the time of the foreclosure proceeding, ignorant of the manner in which defendant had managed the property, were financially unable to defend the foreclosure proceedings, were ignorant of business methods, were relying upon the integrity and business ability of defendant — for which reasons the matters now sought to be brought upon the record were not produced in the foreclosure proceedings.
The testimony clearly supports the finding of the circuit judge to the effect that there is nothing now brought upon the record which the defendants, and especially the administratrix, might not have produced in the foreclosure case. They have since learned nothing which they did not then know, unless it is that upon the facts, then and now known, certain legal propositions might have been advanced for the purpose of decreasing the amount which the complainánt in the foreclosure proceedings showed to be his due. It is beyond doubt that the business was conducted and the property managed, for the first three years, or thereabouts, with the knowledge of the debtor Pomeroy. Thereafter, from time to time, statements were furnished to the administratrix, which she reviewed, showed to, and talked over with the expert bookkeeper formerly employed by her father, the decedent, exhibited to the judge of probate and to various friends. The statements were correct statements. The books were properly and honestly kept.
I have no doubt of the power of a court of chancery, after granting leave to file a bill of review, to dismiss the bill at the hearing if it then appears, contrary to the averments of the bill, that there is, in fact, no new matter or no matter which might not have been produced upon the original hearing; this, without considering to what extent, if any, the omitted matter, if produced, might or would have varied the terms of the decree sought to be reviewed. In the case at bar, it is indicated in the opinion filed that not only is there no proper showing made for opening the foreclosure proceedings, but that if the matter had been produced in the foreclosure proceedings no different result would have followed. This court has many times stated the considerations which should affect the granting or refusing of leave to file a bill of review. Detroit Savings Bank v. Truesdail,, 38 Mich. 430, 443; Sanford v. Haines, 71 Mich. 116; Sherwood v. Savings Bank, 104 Mich. 65; Brown v. Napper, 143 Mich. 636, are some of the cases decided. The rules laid down are to some extent founded in considerations of public policy, as well as those of private right.
A consideration of weight in determining whether relief, if otherwise warranted, should be granted in this proceeding, is the one of the relations of defendant Noud to the property in question and to the owners. It is not always that a trustee is permitted to urge, against the strict examination of his accounts, pll of the rules of legal warfare governing in purely adversary proceedings. His duty to render an account not only mathematically correct, but equitably fair, and to submit his performances of the trust duties to examination, operates, often, to the advantage of the cestuis que trust, who might be, otherwise, considered to be irretrievably in default. This rule is also one largely of public policy.
This consideration has led to a very careful examina tion of the record. Defendant Noud had never accounted. No bad faith is attributed to him; but, conceding his acts and his bookkeeping both to have been honest, and that he charged no greater sum for interest and no more for his services than he believed himself entitled to receive, what he did had never been subjected to the scrutiny to which he was bound to submit. Such scrutiny implies more than the identification of items and the honesty of the trustee. It involves the test by the rules of law. It appears that no one learned in the law ever applied himself to an examination of the account of the trustee until after the foreclosure sale. No defense was made in the foreclosure proceedings. The sale was made ■on January 19, 1903, pursuant to decree of September 6, 1902, and petition for leave to file the bill of review was filed June 23, 1903. It does not appear that any accounting by the trustee was attempted in the foreclosure proceedings, or that the attention of the court was directed at all to the fact that the complainant in that suit had for years conducted the business of the mortgagor. It does appear that the guardian ad litem for five infant defendants was present and submitted all questions concerning the rights of his wards to the court.
In view of the facts and for the reasons given, the court should proceed to an examination of the case upon the merits. There are but two subjects which require attention. They are the charges made for services of defendant and the charges for interest. As to all other matters of dispute no reason is found for interference.
The record warrants the assumption that the debtor, Pomeroy, knew of the charges made by Noud for the years 1895, 1896, 1897 of $1,000 per annum for services, and from the fact of knowledge ratification and approval may be found. After 1897 there was no one who did in fact assent, and no one who could, by mere implication, be held to have assented, to such a charge. The facts that the statements which were furnished to the administratrix showed such a charge, and that no objec tion was made thereto, are not sufficient to sustain a charge by agreement. The facts are not like those considered in the case of Quimby v. Uhl, 130 Mich. 198, cited by counsel for defendant. Should such charges for years subsequent to 1897 be for any reason approved ? It is said the charges were reasonable. This may be admitted, if we "consider merely the value of the services of defendant in the management of such a business. His position was, however, a voluntary one, assumed in his own interest, and the services were given in securing payment of indebtedness to himself or for which he was liable to others. It is true that there is no imperative rule of law which requires that such services shall be gratuitous. Defendant has, however, charged and received interest upon all the indebtedness, upon that directly paid, to the time of its payment, upon that paid and carried by himself. It is equitable that he should receive interest paid by him, and interest upon the indebtedness owed to himself. He should not receive both interest and salary.
As to the charges for interest': The fact that Mr. Noud, after paying notes- of the debtor, charged the amounts thereof in an account, would not operate to render such an account an open account, unliquidated and noninterest bearing. And if, in the conduct of the business, he advanced money as was necessary to purchase material and for labor, such sums so advanced would not be unliquidated items and for that reason noninterest bearing. The difficulty is that in any account of the operation of the business there must appear side by side upon the books of account items of money advanced and also of moneys received. So long as there was no actual application of moneys upon the indebtedness owing to Mr. Noud, the interest upon such indebtedness, including advancements, would continue to run. Mr. Noud kept two accounts; one called “J. C. Pomeroy Special Account,” one “ P. Noud, Mortgagee.” It appears further that the books of account were'continued to August, 1904, and that, as to the indebtedness other than the $11,000 involved in the foreclosure proceeding, interest was charged on open account and on notes. It is not possible for this court to state the account. The record must be remanded and a reference made to a commissioner to take and state an account, upon the testimony produced at the hearing and such other testimony as the parties may introduce. In taking such account, all charges for the services of Mr. Noud, after the year 1897, will he disallowed. He will be credited with all interest paid by him. He will be credited with interest upon all advancements made by him, for any purpose, at the statute rate. He will be allowed interest upon the $11,000 of indebtedness represented by the notes secured by the two mortgages at the rate mentioned in the notes. The actual applications of the proceeds of the business to the indebtedness will be made in the accounting as of the dates they were made by him, in fact, as shown by the books of account, and such accounting will include the period to August, 1904. Defendant Noud will, in any event, in said accounting, be disallowed the item of $220.68 for attorney’s fees “after the decree was rendered,” less the statutory fee for solicitor, and actual disbursements of a chancery foreclosure, if such charges are included in said item. If it shall be found that nothing is due to defendant, then fhe entire of said item shall be disallowed. If it shall appear, upon the coming in and confirmation of the account, that there is nothing due to defendant, or, if something being found to be due to him, such sums shall within 60 days after confirmation of said report and account be paid by complainants to defendant, the said decree and all proceedings thereunder shall be set aside and held to be void and of no force or effect. But if (it being claimed by defendant that the property so bid in by him at the foreclosure sale is worth no more than $5,000) said complainants shall not pay to defendant any sum so found to be due to him, within 30 days after confirmation of said account, said decree and sale shall remain in full force and effect. If defendant has been paid in full, and has in his hands any sum realized from said business or said property, he must pay it to the administratrix of said estate.
The decree below is reversed, and a decree will be entered in this court in conformity with this opinion, remanding the record. Complainants will recover the costs of this appeal.
Grant, Blair, Montgomery, and Hooker, JJ., concurred.
But see Gilluly v. Shumway, 144 Mich. 661, and Barnard v. Patterson, 137 Mich. 633. — Reporter. | [
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] |
Dethmers, J.
This is a chancery action challenging validity of an election in defendant Deerfield, a primary school district, to consolidate with defendant Howell school district.
The board of Deerfield consisted of 3 members. On June 25, 1953, two attended and one was absent from a meeting called orally that day. The absent member knew of the meeting, and had stated that he would be unable to attend but that whatever the other 2 did at the meeting would be all right with him. The 2 adopted a motion calling a district meeting for July 9, 1953, to start at 12 noon and end at 8 p.m., for the purpose of voting on the consolidation. Afterwards the absent member filed a waiver of notice of the board meeting. On July 9th the board members appeared at the district meeting, at about 5 minutes past 12 the director said “Let’s get going,” and he then swore in the tellers. At 2 p.m. the moderator left. The minutes report that the meeting closed at 8 p.m., that the ballots were then counted and the consolidation carried. When asked how the meeting was closed the director testified, “As far as I know someone said let’s go home and that was it.”
Plaintiffs contend that the board meeting was not legal, citing CL 1948, § 342.13 (Stat Ann 1953 Rev § 15.13), which provides that a written notice of such meeting shall be served on the members at least 24 hours in advance but that a meeting shall be legal without such notice when all members are present. Here no written notice was served and all members were not present. Plaintiffs rely on Vreeland v. School District No. 2, Monguagon Twp., 264 Mich 212, in which this Court held that a school board meeting convened under similar circumstances was not legal and that, hence, a contract approved thereat was not binding on the district. Proceeding from the premise that the board meeting was not legal plaintiffs say that it follows that “the resolution which should have established jurisdiction to hold the election,” which was adopted at that board meeting, was invalid and that, therefore, the election or meeting of July 9th was illegal. Validity of the latter is' also challenged, on the grounds that CL 1948, §342.14 (Stat Ann 1953 Rev § 15.14), provides that the moderator shall preside at such meetings, while here the record does not show that he convened the meeting, but that it was the director who, at the outset, said “Let’s get going;” and, further, that when the moderator left the meeting the voters present did not elect a chairman in his place as provided in CL 1948, § 342.9 (Stat Ann 1953 Rev § 15.10); and, finally, that there was no formal closing of the meeting other than that someone suggested “Let’s go home” and they did so.
This case is readily distinguishable from Vreeland because in that case there was involved a question of binding the district, to its prejudice, by a contract entered into by the board at an illegal meeting, while here the action taken by the board was merely ministerial, in no way prejudicing either the absent member or the district itself, but serving only to set in motion the machinery whereby the electors themselves were enabled to decide the ultimate question of consolidation.
There is no necessity for considering plaintiffs’ conténtion that the trial court erroneous^ decided the case on the basis of Michigan’s general election-laws rather than its school laws because of the citation and reliance in its opinion on cases construing election laws. "When cases are analogous they have precedential value regardless of the diverse fields of law involved. Accordingly, we think the trial court properly considered applicable the following:
“We are here dealing with an election which is past and asked to declare it void because a particular detail of the law relative to notice has not been strictly observed,-without any showing that thereby any elector was deprived of his right to vote or in any way misled or that the result was affected by the irregularity complained of. The validity of an election does not involve the technical question of jurisdiction as in a case where the court is acting judicially between litigating parties.” Hulan v. Township of Greenfield, 229 Mich 273, 280. (Quoted with approval and applied in Blue v. Oakland County Board of Education, 324 Mich 90.)
“In the final -analysis, we must consider the fact that this election, was honestly and fairly conducted. Slight irregularities are more than apt to creep into the procedure. As a rule those in charge of such an election are not lawyers. When, as in this case, even doubt is raised in the briefs presented as to which law the election should have followed, it is evident that a knowledge of the law and its details is frequently not possessed by the officers and electors in a fractional school district, whose honesty and fairness are not even remotely questioned. To hold that slight irregularities, for which the voters were not to blame, should invalidate the election, is contrary to public policy. Unless the irregularities consist of failure to observe mandatory provisions, the neglect to follow which will invalidate ■ the election, they will be overlooked, in the absence of fraud or coercion.” Thompson v. Cihak, 254 Mich 641, 646.
As for the alleged irregularities at the July 9th district' meeting, we consider the objections frivolous. They relate to nothing that could have prevented the will of the majority of the electors voting from being expressed, ascertained and made effective. Technical failures to comply with the directory provisions of the statute by officials ought not to be permitted to disenfranchise electors or to set their exercise of the franchise at naught when there is no reason to conclude that the will of a majority of those present and voting was thwarted. Applicable is the language in Attorney General, ex rel. Miller, v. Miller, 266 Mich 127, 133 (106 ALR 387), taken from Corpus Juris, as follows:
“ ‘Statutes giving directions as to the mode and manner of conducting elections will he construed by the courts as directory, unless a noncompliance with their terms is expressly declared to be fatal, or will change or render doubtful the result. * * * Before election it is mandatory if direct proceedings for its enforcement are brought, but after election it should be held directory, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or the ascertainment of the result, or unless the provisions affect an essential element of the election, or it is expressly declared by the statute that the particular act is essential to the validity of the election, or that its omission will render it void.’ 20 CJ, pp 181, 182, Elections, § 223.”
Although plaintiffs should have proceeded at law under CL 1948, §§638.28, 638.29 (Stat Ann §§27.-2342, 27.2343), rather than in chancery, no good purpose would be served by remanding the case for trial on the law side inasmuch as the decree dismissing plaintiffs’ bill of complaint effected a result in accord with our view that the results of the consolidation election ought not to be disturbed.
Affirmed, with costs to defendants.
Butzel, C. J., and Carr, Bushnell, Sharpe, Boyles, Reid, and Kelly, JJ., concurred. | [
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Carpenter, C. J.
Plaintiffs are husband and wife. They own a farm and carry on the business of farming ;and market gardening. About one year before this suit was commenced plaintiff Arthur Feenstra, who then, owned several cows, purchased three additional cows from ■one Berkompas. Subsequently Berkompas obtained a judgment against said Arthur Feenstra for the purchase price of said three cows. Execution was issued upon said judgment and placed in the hands of defendant, who was a constable, with directions to levy the same. Said defendant, as constable, levied upon the three particular ■cows sold by Berkompas to said Feenstra, and upon no •other property, though said Feenstra was a householder living upon his farm and had at that time other cows and animals. Defendant made no inventory or appraisal of' the property levied upon. Plaintiff thereupon brought this suit in replevin to recover possession of said cows. The case was tried in the lower court without a jury. The court made a finding of facts, from which we have taken the foregoing, and rendered a judgment for the plaintiffs. Defendant asks us to reverse that judgment. The law controlling this case is contained in the following-sections of the Compiled Laws:
“Sec. 10322. The following property shall be exempt from levy and sale under any execution, or upon any other final process of a court; * * *
“Sixth. To each householder, ten sheep, with their fleeces, and the yarn or cloth manufactured from the same; two cows; five swine, and provisions and fuel for comfortable subsistence of such householder or family for six months. * * *
“ Eighth. The tools, implements, materials, stock, apparatus, team, vehicle, horses, harness or other things, to enable any person to carry on the profession, trade, occupation or business in which he is wholly or principally engaged, not exceeding in value two hundred and fifty dollars. * * *
“Sec. 10324. The property exempted in the subdivision of which this act is amendatory [subdivision 8 ] shall not be exempt from any execution issued upon a judgment rendered for the purchase money for the same property. * * *
“Sec. 10328. Whenever the defendant in an execution shall have cows, sheep, swine, or other animals or articles, some of which are exempt by law from sale on execution, and some of which are not so exempt, the officer may take all of such horses, cows, sheep, swine or other animals or articles into his possession, and the defendant or his authorized agent may, immediately, on being notified of the levy, select so many thereof as are exempt by law from execution, but if the defendant be absent, or neglect to make such selection on being notified, the officer shall make the same for him.”
The trial court decided that the execution should, in accordance with section 10328, have been levied upon all the cows of plaintiffs, and that they should have been per mitted to select therefrom the cows which are exempt under subdivision 6 of section 10322, above quoted, and because this was not done plaintiffs were entitled to recover. This was clearly correct (see Parker v. Canfield, 116 Mich. 94), unless the cows were by virtue of section 10324 liable to seizure on the execution issued upon the judgment rendered for the purchase money. If they were so liable, they were properly seized, and defendant was and is entitled to judgment. Lillibridge v. Walsh, 97 Mich. 459. The sole question in controversy, then, is this: Were the cows liable to be taken on an execution issued upon a judgment for the purchase money by virtue of section 10324. This depends upon whether they are exempt from execution by virtue of subdivision 8, for section 10324 applies only to property exempt in that subdivision. It is to be inferred from this record that plaintiffs kept these cows for use on their farm. In Hutchinson v. Whitmore, 90 Mich. 255, this court held that ‘ ‘ hay, oats, corn, a yearling steer, a heifer and two spring calves” used by the plaintiff on his farm were exempt under subdivision 8 as “stock to enable” him to carry on his business of farming. The only ground upon which it may be said that the language of subdivision 8 exempts a steer, heifer, and calves, and does not exempt plaintiffs’ cows, is. that two of those cows are exempt under subdivision 6. This distinction is unimportant. In Stilson v. Gibbs, 46 Mich. 215, it was held that the wheat of a farmer was exempt under subdivision 6 as provisions for the comfortable subsistence of his family, and under subdivision 8 as seed to enable him to carry on the business of farming. If the distinction under consideration is sound, a dairyman who is a householder, whose entire property consists of several cows, is entitled to an exemption of only two cows (for his cows are exempt under subdivision 6), while a dairyman who is not a householder is entitled to an exemption of cows to the value of $250 (for his cows, not being exempt under subdivision 6 are exempt under subdivision 8). Reasoning which compels us to conclude that subdi vision 8 describes tbe cows of a dairyman wbo is not a householder, and does not describe the cows of a dairyman who is a householder, and which results in giving to the former a greater exemption than to the latter, cannot be sound. I conclude, therefore, that Hutchinson v. Whit-more, supra, authoritatively determines that the cows in question were exempt under subdivision 8, and were properly seized upon the execution, and that the facts shown upon this record entitle defendant to a judgment.
This conclusion does not, as plaintiffs contend, deprive them of the exemption of two cows given them by subdivision 6. Their right to.,that exemption is fully recognized. A farmer who is also a householder owning several cows for use on a farm is entitled to an exemption of two cows under subdivision 6. In addition to this he is entitled to an exemption of $250 worth of the property described in subdivision 8. Included in this latter property are said cows. In other words, the cows kept for use on a farm, if the farmer is a householder, are exempt under both subdivisions 6 and 8. As plaintiffs’ cows are exempt under subdivision 8, they are liable to execution under section 10324, even though they are also exempt under subdivision 6.
No other point demands discussion. Judgment should be reversed, and a judgment entered for defendant, with costs of all the courts.
McAlvay, Grant, Montgomery, and Ostrander, JJ., concurred. | [
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] |
Boyles, J.
(dissenting). The defendant appeals from an order following a jury verdict of guilty of being the father of the illegitimate child of the complaining witness, a single woman. The proceeding is commonly referred to as a bastardy case, although the statute does not use that term. The objective sought by the statute is to compel the father of an illegitimate child to assist in its support, and to prevent the child from being a public charge. The proceeding is quasi-criminal in nature in that the statute provides for a performance bond by the father and commitment to jail for failure to perform. However, the rules of evidence in civil cases apply and do not require that the guilt of the defendant be proved beyond a reasonable doubt. Semon v. People, 42 Mich 141; People v. Phalen, 49 Mich 492; Harley v. Ionia Circuit Judge, 140 Mich 642.
The complaining witness, a former schoolteacher with a B.S. degree, 27 years of age, testified that for some time in 1950 she saw the defendant, also 27 years of age, 2 or 3 Saturday nights a month. She testified that while riding in an automobile they gradually “necked” and caressed, and that in January or February, 1951, they had sexual intercourse at their “favorite parking spot” in the country. In May, 1951, she was pregnant. She testified that at that time they again had sexual intercourse, and that “these are the only 2 times I ever had sexual relations with him or anyone.” The child was born November 20, 1951. She decided to keep the child, telephoned the defendant, they met, she gave the baby to the defendant to hold and told him it was their child: She further testified:
“I have never had sexual intercourse with any other person than Mr. Nichols. I was afraid of sex. He was the only one who ever touched me.”
Her testimony that she was with the defendant frequently in 1950, that they were together at the Moose club on a Saturday night in January or February, 1951, left in an automobile to take a “baby sitter” home from her sister’s house late at night and did not return until 5 or 6 o’clock in the morning (on which occasion she testified they had sexual intercourse) was corroborated by her sister and her brother-in-law, at whose home she was staying. Her testimony as to being at her brother-in-law’s home late on Saturday night on January 20 or 27, or February 10, 1951, was corroborated by her sister and brother-in-law, and also by the “baby sitter” who confirmed the complaining witness’s testimony that she (the complaining witness) and the defend ant were together at that time and that they took her (the “baby sitter”) home late at night.
The defendant, testifying in his own behalf, admitted that he had been out with the complaining witness, of having “made love” to her, denied having been with her in January or February, 1951, and categorically denied ever having had sexual intercourse with her.
The defendant seeks reversal solely on the claim that the court erred in receiving testimony, over his objection, that blood-type tests of the blood of himself, the complaining witness, and of the child disclosed that their blood was all of the same type, and. that it indicated he could be the father; and that the court erred in charging the jury that it could give such testimony whatever weight the jurors deemed proper.
Whether this was error is a question of first impression in this State.
In March, 1952, before the trial, the blood of the defendant, of the complaining witness, and of the child, was submitted to blood-type tests, requested by the defendant at the suggestion of his counsel. The samples of blood were taken by a doctor who was director of the branch laboratory of the Michigan department of health in Grand Rapids, when the defendant, the complaining witness and the child were there at the defendant’s request. These 3 blood samples were tested for blood-group type by Doctor Muehlberger, the doctor in charge of the crime detection laboratory of the Michigan department of health at Lansing. He testified at length as to the scientific method of determining blood types, and how the results were obtained. Over objection by the defendant, he was allowed to testify that the types of said 3 specimens of blood were the same, and that this indicated that the defendant could be the father of the child insofar as blood type was concerned. The doctor also testified that his finding of possible paternity was not conclusive, that any other person having the same type could have been the father, “so there is nothing definite about it;” and in answer to the question “How large the class is not known?” (he., having the same results from the test) said “there are about 2 billion people in this world.” Doctor Muehlberger testified as to the scientific tests used to determine blood types, as follows:
“Q. Will you explain to the jury just what type of examination you made, or analysis you made of these particular samples of blood that were delivered to you and to your office?
“A. Well, I submitted them to what are known as blood-group tests to find out what particular blood group these 3 specimens fell into. There are several ways in which one can blood group—group bloods. We all have present in our blood either, or both, or neither of 2 factors which are known as the A and B factor. A person who has neither of them is type 0 blood, or has type 0 blood. The person who has A but not B has type A blood. If he has B, but not A, then he has type B blood, and if he has both of them, then he is type AB blood, so there are 4 possible classifications, based on the presence or absence of the A and B factors. Then there are 2 other factors known as the M and N factors, which may be either or both present in every person. No person has ever been found who has neither M nor N. He is either M, N, or both of them, which is called MN, so that we can group people on the basis of the presence of the M and N factors. Then there is still another type of grouping, which we call the EH factors, EH because they originally were developed from the Ehesus monkey, and that’s why they are called EH factors. Now, there are 3 separate subgroups of the EH. There is EH°, which is the original EH factor, then there is an EH Prime and EH Double Prime factors. So the presence or absence of those 3 EH factors can also be determined in every person. So that was the basis on which these 3 bloods were typed to determine which of these groupings they fell into.
“Q. Will you explain to the ¡jury, after you made these various tests, and examinations of these 3 samples of blood, into which blood groups the blood of Mr. James Nichols fell?
“A. With respect to the AB factors, Mr. James Nichols was type A. With respect to the M and N factors, Mr. Nichols was type M, and with respect to the 3 RH factors, Mr. Nichols was RH°. That is, the first RH type was positive. RH Prime was negative and RH Double Prime was positive.
“Q. And your examination of the blood of this child as to these various factors, what did it show?
“A. It showed exactly the same thing. The baby boy Nichols—baby boy Fedewa was type A, so far as A and B factors was' concerned; type M so far as M and N factors was concerned and RH°, positive, RH Prime, negative; RH Double Prime, positive.
“Q. And the baby’s blood agreed in every respect with the blood of Mr. James Nichols, is that right?
“A. That is right.
“Q. And your examination of the blood of Miss Juliana Fedewa as to these various factors, what did thát show?
“A. Well, it was exactly the same as the other 2 bloods with the exception that instead of type A, it was type 0. That is, with respect to the M and N—with regard to the AB factors, Juliana Fedewa had neither one of them, which is type 0. With respect to the M and N factors, Juliana Fedewa had type M only, and with respect to the RH factors, Juliana Fedewa had RH° positive; RH Prime, negative, RH Double Prime, positive.
“Q. She agreed in all respects with the blood of Mr. Nichols and this baby, except as to the A and B factors ?
“A. That is right. That is correct.
“Q. Are you able, based upon this examination that you made and your knowledge of this field, are you able to draw any conclusions from the various factors and blood groupings in which the blood of these 3 persons falls, are you able to draw any conclusion from that?
“A. As to paternity or possible paternity?
“Q. Yes, as to paternity or possible paternity?
“A. Yes, a person having the blood grouping: characteristics of Mr. James Nichols could be the father of a baby born to Juliana—a person having the blood group of Juliana Pedewa, and which baby had the blood group of the baby boy Pedewa. That is, it is entirely possible that such a person could have been the father of such a baby.
“Q. Is there any other conclusion that you can draw from this test regarding the paternity of this child?
“A. No, I don’t believe so.”
On cross-examination, the doctor testified:
“Q. Dr. Muehlberger, in regard to your answer to the last question, I noted that you used the words, ‘could have been.’
“A. That’s right.
“Q. In other words, you are stating, and stating it very carefully to the jury that your findings are not in any way conclusive?
“A. Of course not. Any other person having the same blood grouping could have been the father, and there are possible other blood grouping possibilities, that could have been the father, so there is nothing definite about it. All I can say is that he could have been the father. I wouldn’t—I would be entirely incapable of saying on the basis of blood groups that any person was the father of a certain child. You can say under certain circumstances he could not be the father of a child, but you never can say that he must have been the father of a certain child.
“Q. Are these blood groupings, Doctor, which you set forth originally, that is, the 0, the A and the B and the AB, are they divided among our population, that is, is our population divided into certain percentage groups along those lines?
“A. Yes, the white population of this country falls roughly into about 45% of type 0, 42% of type A, about 10% of type B, and about 3% of type AB. Is that what you—
“Q. That is what I wanted. In other words, the majority of our white population in this country is either type O or type A?
“A. Yes, in fact, 87% of them. That is 7 out of 8.”
For a more comprehensive article by an experienced expert in taking blood-grouping tests, explaining the scientific steps used, see Michigan State Bar Journal, January, 1954, p 12.
The court, in referring to the blood-type testimony, charged the jury as follows:
“In this case, the court did permit evidence as to the blood test, from which it appeared, by the evidence this morning, the blood test was requested by the respondent. It has not yet been established by a decision of our Supreme Court whether such tests should be permitted in evidence. I did permit the test because I assumed you parties, as intelligent jurors, could weigh the evidence, and give to it such weight as you deem proper. Under the blood tests, as I understand the evidence, they can definitely determine whether a man could be the father, that is, they could rule it out—-those tests-—at least that, but they have not yet reached the point where they definitely determine that he is the father, only that he could be—-the blood is of a type so that he is within the class that could be the father of the child.”
The question of the admissibility of this testimony has not heretofore been before this Court. In other jurisdictions, it has been passed upon, under various differing facts and circumstances. In 104 ALR 430 the case of State v. Damm (1933), 62 SD 123 (252 NW 7), is reported in full. The headnotes in 104 ALR at pp 430, 432, say:
“The result of tests made by competent persons for the ascertainment of blood types or groupings is admissible in evidence upon the issue of paternity of a child. (On rehearing.)
“The taking of blood for test purposes from a party to a civil action or proceeding does not infringe any constitutional right.
“A trial court of record has inherent power in a civil case, in its reviewable discretion, to order the taking of blood for the purpose of ascertaining groupings in eases where paternity is at issue and where in the opinion of the court the making and reporting of such tests are likely to be helpful in ascertaining the truth; and may do so on its own motion.”
In deciding the case, the supreme court of South Dakota, 62 SD 123 at pp 131, 132, 136, said:
“A medical expert called by appellant testified concerning the matter of proof of paternity by blood test. It was not the contention of this witness that paternity could in any case be affirmatively proved by such blood test, but he did contend that in quite a percentage of cases the impossibility of claimed paternity could be demonstrated by blood test. It was, in substance, the testimony of this witness that human blood is divided into 4 recognized types or groups, and that, if the blood groups of both parents are known, the blood group of the offspring can, to a certain extent, be predicted. Conversely, if the blood groups of a mother and child are known, it can he said what must have been the blood group of the father, and consequently the impossibility of certain paternity may be effectively demonstrated. Appellant in this case offered to submit himself to such blood test, and asked the court to require prosecutrix and her infant child to submit thereto. * * *
“It appears that evidence as to blood tests in paternity cases has been accepted in continental countries. We can find no record of the question being passed upon by any courts of last resort in the ■United States. * * *
“Without endeavoring to arrive at any decision on other questions involved in connection with this particular claim of error, we hold that the learned trial judge did not abuse his discretion in refusing to order the blood test requested by appellant.”
On rehearing of State v. Damm, 64 SD 309 (266 NW 667), said court referred to articles from medical and law journals and foreign jurisdictions, and at pp 315-317, reported in 104 ALR at pp 444-446, said:
“It would seem quite clear that physical examination or the taking of a few drops of blood does not amount, therefore, to an infringement of any constitutional right, for if it was such infringement, manifestly the legislature would be powerless to decree it. * * * The primary function of the judiciary is the administration of justice, and justice can never be rightly administered unless truth be first ascertained as nearly as may be. * * * We perceive no valid reason why courts of record may not require of any person within their jurisdiction the furnishing of a few drops of blood for test purposes when, in the opinion of the court, so to do will or may materially assist in administering justice in a pending matter. * * *
“We recapitulate the views hereinbefore set forth by saying that we think (1) the reliability of the blood test is universally conceded by competent scientific authorities; (2) a trial court of record in this State has inherent power and authority, in its reviewable discretion, to order the taking of blood for such purposes in cases where paternity is an issue and where, in the opinion of the court, the making and reporting of such test will be, or is likely to be, helpful in ascertaining the truth.”
In Arais v. Kalensnikoff (1937), 10 Cal2d 428 (74 P2d 1043, 115 ALR 163) (decided in the absence of statute law), the court held (syllabi):
“Testimony as to the result of a blood test to determine paternity is expert opinion, the conclusions of the examiner being based upon medical research and involving questions of chemistry and biology with which a layman is entirely unfamiliar, and while expert testimony is to be given the weight-to which it appears in each case to be entitled, the law makes no distinction whatever between such testimony and evidence of other character, and no evidence is by law made conclusive or unanswerable unless so declared by statute, it being for the jury to determine the relative weight of the evidence in the case of a conflict between scientific testimony and testimony as to facts.
“Parentage is not exclusively a subject for expert evidence; and where there is testimony of the mother of the child, and of corroborating witnesses, concerning the numerous visits of defendant to her home, his actions with the child, his payment of bills for groceries supplied the mother and his admissions that he was the father of the child, and there is contrary medical testimony that the results of a blood test show that he was not the child’s father, it is the duty of the court to determine the fact of parentage upon all the evidence, and a finding that the defendant is the father of the child, being supported by substantial evidence, may not be disturbed on appeal.
“The fact that the mother, in the birth certificate, caused a third person to be named as the father of an illegitimate child, did not raise an estoppel against her or require a reversal of the judgment that defendant was the father of the child and responsible for its support, where there was no.evidence that the mother led defendant to believe that said statement was true, and the record supported the implied finding that she gave a fictitious name for the father at the request of defendant and for the purpose of protecting him.
“Where there is ample evidence to support the finding of parentage in such a case, there is no abuse of discretion in denying a motion for a new trial on that ground.”
In the more recent Charles Chaplin case, of Berry v. Chaplin (1946), 74 Cal App2d 652 (169 P2d 442), the California court held (Pacific syllabi):
“The blood test as legal evidence of paternity is ‘expert opinion’ because the conclusions reached by examiner are based upon medical research and involve questions of chemistry and biology with which a layman is unfamiliar.
“Expert testimony is to be given the weight to which it appears in each case to be justly entitled.
“When scientific testimony and evidence as to facts conflict, the relative weight of evidence is to be determined by trier of facts.”
In so holding, the court said (pp 665, 666):
“Were the blood tests conclusive that defendant is mot the father of plaintiff The qualifications, competency, and integrity of the physicians designated to make the blood tests are not questioned. * * *
“But the blood tests were not conclusive evidence. It was so declared in the only reported case in California in which blood tests were used for the purpose of attempting to determine the parentage of a child. Arais v. Kalensnikoff, 10 Cal2d 428 (74 P2d 1043, 115 ALR 163). In that case the court held (pp 431, 432), that the evidence concerning the blood test ‘is expert opinion because the conclusions reached by the examiner are based upon medical research, and involve questions of chemistry and biology with which a layman is entirely unfamiliar,’ but that such tests and the evidence thereof are not conclusive because not so declared by the code (Code Civ Proc § 1978); and further, that expert testimony is to be given the weight to which it appears to he justly entitled. * * *
“When scientific testimony and evidence as to facts conflict, the jury or the trial court must determine the relative weight of the evidence. * * *
“The decision in the Aráis Case has been the subject of discussion and criticism in law reviews and other legal periodicals hut not by other courts as far as we have been able to ascertain, and it remains the law of this State until modified or overruled by the court that rendered the opinion.”
The California cases were decided in the absence of any statute declaring whether or not the testimony of blood-group tests should he admissible without regard to the results. A like absence of such a statute prevailed in this State at the time the instant case arose and was decided in the trial court. Subsequent to the California decisions, California and Michigan have enacted such statutes. The Michigan statute is worded quite unlike the statutes under consideration in other jurisdictions and does not apply to the situation here.
In decisions from other jurisdictions, the question involved the construction of statute law and they are not controlling in the absence of a statute in the instant case. In Ohio, the statute provided that blood-grouping tests might be required to determine whether a person could be excluded as being the father of a child and expressly declared that the result of the test, if it establishes nonpaternity, shall be receivable in evidence. The court held that the statute authorized the admission of such testimony only where the results established nonpaternity, otherwise not admissible. In State, ex rel. Freeman, v. Morris (1951), 156 Ohio St 333, 337, 338 (102 NE 2d 450), the court said:
“It cannot be assumed, therefore, that in the enactment of the statutes above quoted there was any purpose on the part of the general assembly to make competent any such affirmative evidence in such proceedings. By the clear provisions of section 12122-1, General Code, such blood-grouping tests, are ‘required or authorized’ only ‘to determine whether or not the defendant can be excluded as being the father of the child,’ and it is only ‘in cases where exclusion is established’ that ‘the results of the tests together with the finding of the expert or experts of the fact of nonpaternity shall be receivable in evidence.’
.“It is to be observed that this same provision appears in both sections of the statute above quoted.
“The maxim, expressio unius est exclusio alterius, clearly applies. Over the strenuous objection of the defendant a concedeclly qualified pathologist was permitted to testify at length as to the results of a blood-grouping test of the complainant, her' baby and the defendant. His findings were so broad and general that they could not properly be applied in the determination of the paternity of complainant’s child. Under the limitations prescribed by our statutes the evidence should have been excluded.”
In Beach v. Beach, United States Court of Appeals for the District of Columbia (1940), 72 App DC 318 (114 F2d 479, 131 ALR 804), also decided in construing a statute, the appellant alleged pregnancy by the defendant, which he denied. A child was born pending suit and the district judge, on motion of the defendant, ordered that the mother and child submit to blood-grouping tests to compare with the blood of the defendant. The court said (pp. 480, 481):
“The value of blood-grouping tests as proof of nonpaternity is well known. On this point it is enough to cite the report of the American Medical Association’s Committee on Medicolegal Blood- Grouping Tests, which shows that although such tests cannot prove paternity, and cannot always disprove it, they can disprove it conclusively in a great many cases provided they are administered by specially qualified experts. * * * The use of the tests as disproof of paternity, with or without a statute expressly authorizing it, has been approved in a number of cases.
“Formerly Federal courts could not subject plaintiffs to physical examination except in States where such examinations were authorized by statute. But Rule 35(a) of the Rules of Civil Procedure, 28 USCA following section 723e, provides: ‘In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician.’ As the rules were authorized and tacitly ratified by Congress, and adopted by the supreme court, it is clear that a physical examination may now be ordered in a case covered by Rule 35(a). Appellant’s contention that the rule modifies the ‘substantive rights’ of litigants, and is therefore unauthorized, is not sound.”
Flippen v. Meinhold, 156 Misc 451 (282 NYS 444), also considered the effect of a statute where the plaintiff, in a suit for support of plaintiff’s child, sought a court order to compel the defendant to submit to blood grouping under a statute. The court said (pp 445, 446):
“Plaintiff seeks by these blood-grouping tests to obtain further proof of defendant’s paternity.
“Previous to the enactment of section 306-a of the civil practice act, it had been held that a party to an action conld not be compelled to submit to a blood-grouping test. * * * The evident purpose of the statute was to obviate injustice wherever possible, and this becomes apparent when due consideration is given to the extent to which such tests are of scientific value. These tests may, in some instances, conclusively prove nonpaternity; they never establish paternity. * * *
“Chapter 197 amends the inferior criminal courts act so as to permit blood-grouping tests ‘on motion of the defendant.’ The same phrase appears in chapter 198, which amends the domestic relations law (adding section 126-a). Chapter 196 of the Laws of 1935 (section 306-a of the civil practice act), with which we are presently concerned, provides that the court shall direct ‘any party to the action and the child of any such party to submit to 1 or more blood-grouping tests.’ This section, however, provides for these tests only ‘wherever it shall be relevant to the prosecution or defense of an action.’
“In brief, the blood-grouping tests here sought by the plaintiff are not ‘relevant to the prosecution’ of her alleged cause of action, as even a positive result would furnish no satisfactory proof of defendant’s paternity. The application therefore does not fall within the scope of section 306-a of the civil practice act, which was clearly intended to be used as a shield and not as a sword, and must be denied.”
To recapitulate, New York, Pennsylvania, Ohio and the Congress have enacted statutes which provide for the taking of blood-group tests in paternity cases, and for the admissibility in evidence of the results where the exclusion of the defendant from such paternity has been established. In construing such statutes, the courts have held that testimony of the result shall he admissible in evidence only where the result of such tests establishes the exclusion of the defendant from such possible paternity.
They cannot be said to control in the case at bar where there is no such statute to be construed. California and Michigan seem to be the only 2 jurisdictions where this question has been brought before the courts of last resort, in the absence of a statute to be construed in deciding the precise question here. We are in accord with the reasoning of the California court, that in the absence of statute, testimony of the result of blood-group tests is to be considered as expert testimony, admissible as such for such consideration as the trial judge or jury may consider it should be given in that case. In the instant case, disregarding the testimony as to the result of the blood tests, the great weight of the testimony adduced here fairly establishes the paternity of the defendant. The testimony of the complaining witness is convincing and it was not disturbed by cross-examination. We do not decide here whether under different circumstances the admission of testimony of blood-grouping tests would require reversal and a new trial. Nor do we decide here the effect of the Michigan statute subsequently enacted. Under the circumstances here, the admission of the testimony and the court’s charge was not reversible error. There has been no miscarriage of justice.
The judgment should be affirmed.
Dethmers, J.
Admission of testimony concerning results of blood tests to establish paternity constituted reversible error. A contrary view is scarcely supported by State v. Damm, 62 SD 123, 64 SD 309 (252 NW 7, 266 NW 667, 104 ALR 430, 441); Arais v. Kalensnikoff, 10 Cal2d 428 (74 P2d 1043, 115 ALR 163); or Berry v. Chaplin, 74 Cal App2d 652 (169 P2d 442). In. the South Dakota case, a rape case in which the issue of paternity became highly material, the decision boils down to the simple holding that it was not error to refuse to require prosecutrix and her infant to submit, on defendant’s motion, to blood tests for the purpose, as defendant hoped, of establishing his nonpaternity. Language in that case to the effect that such tests are reliable and the results admissible in evidence was not only dicta, but it was expressed against a background in which the tests were sought for the purpose of establishing nonpaternity, for which the tests are reliable, and not, as here, offered in evidence for the purpose of establishing paternity, for which they admittedly have no probative value whatsoever. In the 2 California cases expert testimony was offered to show that the tests had established defendants’ nonpaternity. No question as to the admissibility thereof into evidence was raised or discussed, but the same was apparently assumed. The holding in the 2 cases was that such expert testimony was not conclusive of the issue of nonpaternity but must be considered in connection with all other proofs in the case and that, therefore, the defendants were not, solely on the strength of the tests, entitled to reversal of judgments adverse to them. The 3 cases did not consider and, hence, cast no light on the question of the admissibility of such evidence to establish paternity as in the case at bar.
Should the New York case of Flippen v. Meinhold, 156 Misc 451 (282 NYS 444), and the Ohio case of State, ex rel. Freeman, v. Morris, 156 Ohio St 333 (102 NE 450), be dismissed as not in point because of the existence of pertinent statutes in those States 1 I think not. As appears from the quotation from the Flippen Case, contained in Mr. Justice Boyles’ opinion, the New York statute provides that the court shall direct parties, in certain actions to submit to blood tests “wherever it shall be relevant to the prosecution or defense of an action.” In that case the court held the prosecutrix not entitled to an order requiring defendant to submit to a blood test for the reason, as it said, that the test would not be “ ‘relevant to the prosecution’, * * * as even a positive result would furnish no satisfactory proof of defendant’s paternity.” Hence, the controlling question in that case, under the language of the statute itself, was the relevancy of the test. Relevancy is precisely the question here in determining the admissibility of the evidence concerning the results of the test. If evidence is irrelevant, it is inadmissible. Stroh v. Hinchman, 37 Mich 490. The New York case is authority for its irrelevancy. In the opinion in the Ohio case there appears the following (pp 336, 337):
“The case of State, ex rel. Walker, v. Clark, 144 Ohio St 305 (58 NE2d 773), presented the question of proof of nonpaternity in a bastardy proceeding, and it was there held that the finding and result of a blood-grouping test made by a qualified expert from the blood of the complainant, the child and one whose nonpaternity was sought to be established was competent for such purpose.
“In the course of the opinion in that case it was stated by Judge Zimmerman [pp 312, 313]:
“ ‘This sort of test is of comparatively recent origin, but medical authorities agree on its accuracy and reliability to establish nonpaternity in the great majority of instances. In the present stage of development, however, it is of no value in proving-paternity.’
“Although that statement may be regarded as dicta in that case it is pertinent here, for we now have the specific question of the competency of blood-grouping tests to prove paternity. Therefore, it may be here repeated that it is established that there is complete accord of experts in biology upon the proposition that results from such blood tests, disclosing a mere possibility of paternity, must be discarded and excluded from evidence as being valueless ; and that their admission in evidence is prejudicial.
“It cannot be assumed, therefore, that in the enactment of the statutes above quoted there was any purpose on the part of the general assembly to make competent any such affirmative evidence in such proceedings.”
From the quoted language it is clear that the Ohio court based its holding that the admission of such testimony to establish paternity was prejudicial on the “complete accord of experts in biology” and not on the provisions of the statute, holding, rather, that the statute did not disclose a legislative purpose to “make competent any such affirmative evidence” which the court considered would have been prejudicial and inadmissible, even in the absence of a statute, for the reason just stated. The Ohio case is significant for the further reason that the court also said the following (p 338) :
“The resulting prejudice was augmented by the language of the court’s charge wherein, following specific reference to the evidence in regard to the blood-grouping test, the court stated that it ‘is not to be concluded by you merely by reason of the fact that blood grouping compared favorably and that this accused could be the father of the child. In other words, the fact alone ivould not warrant you in finding him the father of this child, that fact alone.' (Emphasis supplied.)
“That statement, though negative in character, strongly suggested that weight should be accorded such evidence in the determination of the issue submitted. The prejudicial effect of the evidence as thus emphasized by the court’s charge becomes clear.”
In the ease at bar the trial court told the jury that defendant had requested the test, and then instructed them that they could weigh the testimony concerning the results and give it such weight as they deemed proper. In point is the quoted language of the Ohio court “that statement * * * strongly suggested that weight should be accorded such evidence. * * * The prejudicial effect of the evidence as thus emphasized by the court’s charge becomes clear.”
All the scientific evidence in this case and in the cited cases is in accord that the results of blood tests may rule out but can never establish paternity. In Stroh v. Hinchman, supra, this Court said (p 497):
“All evidence should have some legitimate tendency to establish or disprove the fact in controversy, and whatever has no such tendency should be rejected.”
The evidence here complained of had not the slightest probative value or tendency to prove defendant’s paternity. Accordingly, it should have been rejected.
That the error was, as the Ohio court held, prejudicial, there can be no doubt here. The jury was given to understand that the tests were made on defendant’s motion, to establish his nonpaternity and that when the results failed to do so he then objected to their admission into evidence and sought to conceal them from the jury. The possible psychological effect on the minds of the jurors cannot be ignored. The use of scientific apparatus and tests and expert testimony as to scientific results, placed before the jury with an instruction that they could accord such weight thereto, bearing on the controverted issue, as they might deem proper, could not have failed to mislead the jurors into believing that this totally irrelevant evidence might bo considered as having probative value. Tbe average juryman is bound to be impressed by an array of scientific material and data presented through the testimony of expert witnesses under circumstances in which its utter irrelevancy is not made clear, but, on the contrary, it is permitted to pose as relevant testimony to be weighed by the jury. This was prejudicial to defendant.
Plaintiff relies on CL 1948, §769.26 (Stat Ann § 28.1096), which provides in effect that a verdict shall not be set aside in a criminal case on the ground of improper admission of evidence unless, from an examination of the entire cause, it affirmatively appears that such error resulted in a miscarriage of justice. Plaintiff urges that the entire record is persuasive of defendant’s guilt. As we held in a civil case, Soltar v. Anderson, 340 Mich 242, where the similar provisions of CL 1948, § 650.28 (Stat Ann 1943 Rev § 27.2618), were urged against a claim of misdirection of the jury, the rule always in effect in Michigan, both before and after the enactment of the mentioned statutes and unaffected thereby, has been and is that the question of reversal is controlled by determination of whether the error was prejudicial. Having been prejudicial, it follows that the resulting verdict and judgment must be and are reversed, with new trial.
Btttzel, C. J., and Carr, Bushnell, Sharpe, Reid, and Kelly, JJ., concurred with Dethmers, J.
CL 1948, § 722.601 et seq. (Stat Ann and Stat Ann 1953 Cum Supp § 25.451 et seq.).
California, Deering’s Code of Civil Procedure, pt 4 (Evidence), 1953 Supp, ch 8, p 145, § 1980.1 et seq. (added by Stats 1953, ch 1426, §1).
PA 1954, No 128 (CL 1948, § 692.751 et seq. [Stat Ann § 25.471 et seq.]).
Citing In re Lentz, 247 App Div 31 (283 NYS 749); State v. Damm, 64 SD 309 (266 NW 667); State v. Damm, 62 SD 123 (252 NW 7, 104 ALR 430, 441); Arais v. Kalensnikoff (Cal App), 67 P2d 1059, qualified in Id., 10 Cal2d 428 (74 P2d 1043, 115 ALR 163); State v. Wright, 59 Ohio App 191 (17 NE2d 428), reversed on other grounds 135 Ohio St 187 (20 NE2d 229); Commonwealth v. Zammarelli, 17 Pa D & C 229.
See 28USCA, § 2072—Eepokter.
14 McKinney’s Consolidated Laws of New York, § 126-a; 66 McKinney’s Consolidated Laws of New York, pt 3, § 67-la.
Purdon’s Pennsylvania Statutes, Annotated, 1953 Cum Pocket Pt, title 28, § 306.
5 Page’s Ohio General Code, Annotated, 1952 Cum Supp § 8006.16 [8006.16].
Beach v. Beach, 114 F2d 479. | [
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] |
Hooker, J.
William R. Fox was carrying on the business of manufacturing machinery tools, among which was a trimmer which he had invented, and Stone, the complainant, was his traveling agent. In 1890 Stone went to England to introduce the trimmers there, under an arrangement with Fox, which need not be stated in detail. Whatever it was, he found the opening such as to induce him to enter business there as an independent dealer, associating with one Stanton, whom he supposed and represented to Fox to be able and willing to furnish the necessary working capital, and business was after-wards done with them under the firm name of “ J. B. Stone & Co.” This arrangement began about March 1, 1891. The new firm difi business until some time in 1892, when Mr. Stone succeeded to its business and made a written contract with the Fox Machine Company, a corporation, which had been organized meantime, and which appears to have continued to do business with Fox and Stanton after it began business, as the successor of Fox. The date of its organization may be stated in the record, but we do not readily find it, and it is not very important.
The contract of October 11, 1892, was in writing and was made in pursuance of an adjustment of differences between the parties while Stone was in America in 1892, where he was sued by the machine company, or Fox, upon the Stone & Co. account. Stone did business under this writing for some years. It is claimed that this contract expired by its own limitation in 1894. However that may be, the parties continued to do business upon substantially unchanged terms until 1897. There was much complaint of Stone’s failure to pay for his purchases, and in 1897 the Fox Machine Company refused to give him further credit. This resulted in an arrangement whereby the Fox Machine Company made one Mahoney, of London, their agent; he becoming responsible to them for goods sold him. Mahoney made a contract with Stone, agreeing to continue the arrangement of the Fox Machine Company as to giving him the sale of trimmers in territory named, which, in this contract (which was in writing), did not include Germany. It is claimed that it was afterwards included under a later concession, which appears to have been oral, if it was made, so far as we can ascertain from the evidence. This arrangement ended in trouble between the Fox Machine Company and Mahoney in 1898, or 1899, and he became largely indebted to the Fox'Machine Company, a large portion of which indebtedness it never collected.
In 1899 Stone owed Mahoney $6,000 or over, and Stone also owed the Fox Machine Company something more than that, according to its claim. In June, 1899, Mr. Widdicomb, a director of the Fox Machine Company, went to London, carrying an assignment to his company of the Mahoney claim against Stone, and he and Stone made a settlement, whereby a new contract was made on June 14, 1899. At that time Stone paid in cash the assigned claim, and for all goods shipped him after Maho ney ceased to do business. All subsequent purchases were thereafter paid for in cash, as had been arranged prior to the making of this contract. The Fox Typewriter Company, Limited, was a-limited partnership association organized May 1, 1902, and succeeded to the business of the Fox Machine Company. It continued the sale of goods to the complainant. There was a steady falling off in his purchases and much correspondence grew out of this and of his claim that the company was selling goods to other persons and dealers in Europe, and otherwise breaking the contract. On November 7, 1903, a letter signed "Fox Typewriter Company, Ltd.,” was sent to complainant, stating that the contract had expired. This was in reply to some charge that the contract was not being lived up to by the company.
On February 9, 1904, a letter signed " Fox Machine Company,” was sent. It was received by Stone March 5, 1904. It was as follows:
“ Messrs. J. B. Stone & Co.
" Finsbury Pavement,
“ London, Eng.
" Gentlemen: In respect to the so-called agreement bearing date June 15, 1899, signed Fox Machine Company, by John Widdicomb, and J. B. Stone & Company, upon which you have commenced suit here, we desire again to state what we have heretofore repeatedly stated to you, that the Fox Machine Company went out of business in May, 1902; that the Fox Typewriter Company, Limited, an independent organization, purchased most of its assets and continued the manufacture of machinery theretofore made by the Fox Machine Company, but never knowingly took over or assumed any rights or obligations under the aforesaid agreement, and has not knowingly or intentionally recognized it in any manner. To avoid any possible future misunderstanding in regard to that agreement we hereby repeat the notice that has already been given to you; and in case said agreement should be held to be in any way binding upon the Fox Typewriter Company, Limited, it is hereby declared terminated and canceled, and further, that the prices and terms for goods as mentioned therein, are and will be changed in accordance with quotations already sent you or that may be sent from time to time.”
This suit had been commenced when the letter was written. The bill made Fox, the Fox Machine Company, and the Fox Typewriter Company, Limited, defendants.
It alleged that the several defendants failed to perform the contracts mentioned, and that by reason thereof the business of the complainant had been injured and crippled, and that he had suffered damage by reason thereof; that Fox was in reality the owner of all or substantially all of the stock in and controlled by the policy of the Fox Machine Company and the Fox Typewriter Company, Limited; and that the organization of the latter was a fraudulent device of Fox to avoid the contract between complainant and the Fox Machine Company. It prayed:
(a) That the defendants be ordered to come to a fair and just accounting, touching the amount due to complainant, by reason of the misconduct aforesaid, and that they, or some of them, be decreed to pay the amount found due him; (b) that the defendants be required to disclose the whole extent of their business in Europe in said trimmers since April, 1897, with persons other than’complainant and Mahoney; (c) that Fox be decreed to be a party to all of the contracts mentioned; (d) that the Fox Typewriter Company, Limited, be decreed to be a party to the contract of June 14, 1899, instead of the Fox Machine Company; (e) an injunction against the further sale of trimmers for sale in Europe, and the quotation of prices to any one except complainant; (/) that the injunction be continued in force until the contract should be terminated by proper notice; (g) that it be decreed that advertising by defendants in Europe was fraudulent in not mentioning complainant as “ sole agent in Europe,” and that each defendant be decreed to pay the amount of damage done by him to complainant.
The complainant obtained a decree for several thousand dollars damages against all defendants, and they have appealed.
As the defendants answered and went to hearing upon the merits without objection to the jurisdiction or plead ings, we shall discuss no such questions. This should not be construed as an intimation that this is a contract susceptible of enforcement specifically, or that equity is a proper forum for the recovery of damages for breach of contract. We do not pass upon these questions, as they have not been presented to us. An examination of the record has convinced us:
1. That the transactions with Fox were closed and settled at the time relations between the complainant and the Fox Machine Company began, and that complainant has no just claim arising out of such transaction against any of the defendants.
%. That the Fox Machine Company was a lawful corporation, and that after its organization the dealings of the complainant were with it, or its successor, the Fox Typewriter Company, Limited, and not with Fox personally. It follows that the bill of complaint should have been dismissed, with costs, as to Fox, whatever the conclusion should have been as to the liability of other defendants.
3, That the differences between complainant and the Fox Machine Company were settled at the time that the contract of June 14, 1899, was made. It follows that earlier transactions cannot be the subject of damage.
4. The writing of June 14, 1899, was made at a time when the parties were at variance over the delay of the complainant in paying for goods, and the question of his right to be the sole representative of the Fox Machine Company in Europe, which the latter had repeatedly and strenuously denied in its correspondence, on the grounds, first, that it had not agreed to make him its sole representative; and, second, that while it had been willing to forego selling to others so long as he should reasonably push sales in the respective countries he had not done so, although it had persistently and repeatedly urged him to do so.
At this time it was requiring payment for the goods, before delivery, and that practice was adhered to afterward. The writing is as follows:
“June 14th, 1899.
“It is hereby understood and agreed between John. Widdicomb, representing the Fox Machine Co., and J. B. Stone & Co., that the said J. B. Stone & Co. shall continue to be the sole agents for the Fox Machine Company for the sale of Fox trimmers throughout the United Kingdom and Europe, and that they are to prosecute the business of selling trimmers and further the interests of the Fox Machine Co. faithfully as in the past; such agency to continue for the term of three (3) years and from year to year thereafter until terminated by either party by giving six (6) months’ written notice posted in a registered letter in London by J. B. Stone & Co., or in Grand Rapids by the Fox Machine Co. The said J. B. Stone & Co. are not to handle any other conflicting machines, and they are to anticipate their wants in the line of goods to be furnished by the Fox Machine Co., as far in advance as possible, in order to give the Fox Machine Co. reasonable time in which to execute their orders.
“ The prices and terms at which goods have been sold to J. B. Stone & Co. so far during the present year, shall govern for the term of one year from this date, and no change shall be made at the expiration of the said one year unless three (3) months’ previous notice is given and a written notice to this effect posted in Grand Rapids, by registered letter, which letter shall be considered as received in London on that date, should the same be received and receipted for. After the expiration of such term, six (6) months’ notice must be given as above. It is the intent of the Fox Machine Co. that no advance is to be made in price unless the cost of labor and material increase over the cost of labor and material at the date of this agreement.
“ It is understood that the Fox Machine Co. do no advertising iii any European papers without including the name and address of J. B. Stone & Co. as their sole European agents, the intention being to bring before the public of the United Kingdom and Europe the fact that J. B. Stone & Go. are the sole agents for the Fox Trimmers in such territory, and that all inquiries from such territory received by the Fox Machine Co. shall be referred to J. B. Stone & Co. and that the Fox Machine Co. will not knowingly supply any trimmers to any person or persons in that territory excepting through J. B. Stone & Co.
“ It is further understood that the name and address of J. B. Stone & Co., as sole European agents, shall be by nameplate or other suitable manner affixed to each trimmer, furnished to J. B. Stone & Co. excepting it may be in the case of machines now on order in course of construction, which cannot be so labeled on account of lack of time.
“Fox Machine Company,
“ By John Widdicomb.
“ J. B. Stone & Co.
“Witness: E. M. Kennedy.”
We agree with the circuit judge that the contract of 1899 contemplated that complainant alone should be the representative of Fox Machine Company, to the exclusion of others, and obligated it to make its sales of trimmers through him, and that the notice given terminated such contract on June 14, 1905, and not before. The Fox Typewriter Company, Limited, was a legal partnership association, and it appears to have been willing to carry on the business of the machine company under its contract, and we think it made the performance of such contract, as to all sales made by it, its own, but we discover nothing warranting the inference that it can be made liable for any prior transactions. On the other hand, it gave complainant a right to understand that it was willing to continue business under such contract to which he appears to have consented, and therefore he can have no valid claim against the Fox Machine Company upon such transactions.
It is unnecessary to include in this opinion an analysis of the evidence. It would require many pages, and would not elucidate any legal question. We have endeavored to examine it critically, with a view to a disposition of the meritorious questions involved. We do not discover that the defendant “ Fox Typewriter Company, Limited,” ever refused to sell its trimmers to complainant, and we think that his claim that it unreasonably raised the price is not sustained by the proof. We are also of the opinion that the proof shows that the complainant did not use such diligence in the countries of the continent as the terms of the contract required, and that to this fact, and the further fact that he was unwilling to make a price upon the trimmers that would enable him to sell them in competition with other similar goods of other makes, his failure to obtain business upon the continent was due. The record is full of testimony indicating a sincere desire on the part of the defendants to protect complainant, and to aid. him, and not to undermine him, and that they made but few sales where the goods went to the continent, and that these in no sensible degree lessened his profits, or his prospective business.
The claim that the contract required the defendants to advertise complainant as sole agent in Europe is untenable. It did provide that they should not advertise in European papers without including his name and address as sole European agent. We construe this to mean papers printed and published in Europe, and not American papers printed in this country. We are of the opinion that the testimony shows no breach of this agreement entitling complainant to damages. There was no occasion for the preliminary injunction.
The bill will therefore be dismissed as to all defendants, with costs of both courts.
Carpenter, C. J., and McAlvay, Grant, and Moore, JJ., concurred. | [
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] |
Sharpe, J.
The facts in this case are not in dispute. Plaintiff, Leon Ide, sustained an accidental and personal injury while in the employment of defendant, Scott Drilling, Inc. At the time of the injury he was living with his wife and son, Terry. At the time of the injury on October 26, 1951, his wife was pregnant, and a child was born on November 19, 1951.
Defendants paid compensation based upon 2 dependents, but refused to consider the child born less than 30 days after the injury as a dependent. The problem presented is one of first impression in Michigan. The workmen’s compensation commission made an award to plaintiff based upon the theory that the unborn child was a dependent.
Section 9, part 2 of the workmen’s compensation act, being CL 1948, § 412.9, as amended by PA 1949, No 238 (Stat Ann 1950 Rev § 17.159), provides a graduated scale for disability compensation, depending on the number of dependents, and reads, in part, as follows:
“Sec. 9 (a) While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation equal to 66 2/3 per centum of his average weekly wages, but not more than $24.00 if such injured employee has no dependents; $26.00 per week if 1 dependent; $28.00 if 2 dependents; $30.00 if 3 dependents; $32.00 if 4 dependents. * * *
“(b) * * * The following persons shall be conclusively presumed to be dependent for support upon an injured employee: * * *
“2. A child under the age of 16 years, or over said age, if physically or mentally incapacitated from earning, living with, his parent at the time of the injury of such parent.
“(c) In all other cases questions of dependency shall be determined in accordance with the fact, as the fact may be at the time of the injury. No person shall he considered a dependent unless he or she is a member of the family of the injured employee, or unless such person bears to such injured, employee the relation of husband or wife, or lineal descendant. * * #
“(e) No increase in payments shall be made for increased numbers of dependents not so dependent at the time of the injury of an employee.”
It should be noted that “questions of dependency shall be determined in accordance with the fact, as the fact may be at the time of the injury.” In King v. Peninsular Cement Company, 216 Mich 335, we held that a posthumous child was considered as living at the time of the father’s fatal injury and entitled to dependency, compensation as a result of the death of its parent. In the above case decision was predicated on a statute relating to the descent and distribution of real and personal property. The court said (p 340):
“A. child en ventre sa mere is totally dependent upon its parents for nourishment.”
While the above statement may have been obiter dictum, yet it expressed the attitude of our Court upon the problem presented in the case at bar. In 58 Am Jur, p 695, Workmen’s Compensation, § 176, it is said:
“Provisions of compensation acts relating to or affecting the status and rights, as dependents, of the children of a deceased employee, are ordinarily construed as including those born after the occurrence . of the injury or death; at least, where such children are en ventre sa mere at the time of the injury.”
In 13 ALE 706, it is said:
“A posthumous child, according to the general presumption that such a child is to be regarded as born already, if it is for his benefit, may rank as a dependent. Williams v. Ocean Coal Co., [1907] 2 KB (Eng) 422, 76 LJKB NS 1073, 97 LT NS 150, 23 Times LR 584, 51 Sol Jo 551, 9 WCC 44. The father of a posthumous illegitimate child had, before his death by accident, recognized the paternity of the child to be born, and arranged to marry the' mother, and support her and the child. On a claim for the child as a dependent, it was held,' applying the rule laid down in Williams’s Case (Eng), supra, and assuming the child as born, that there was clear evidence that in this case the child was dependent. Orrell Colliery Co. v. Schofield, [1909] AC (Eng) 433, 78 LJKB NS 677, 100 LT NS 786, 25 Times LR 569, 53 Sol Jo 518, 2 BWCC 294, affirming [1909], 1 KB 178, 78 LJKB NS 150, 100 LT NS 104, 25 Times LR 106, 53 Sol Jo 518, 2 BWCC 301.”
In harmony with the above statement of the law upon this problem is Shimkus v. Philadelphia & Reading Coal & Iron Company, 280 Pa 88 (124 A 335).
In Routh v. List & Weatherly Construction Company, 124 Kan 222 (257 P 721, 62 ALR 150), Routh was injured August 1, 1925. A child was born to his wife March 12, 1926, and South died July 4, 1926. The question of dependency of the unborn child at the time of South’s injury was the principal question in that case. In reversing the judgment, of the trial court to 'oiie in favor of plaintiff the court said (pp 224, 225):
“‘For certain purposes, indeed for all beneficial purposes, a child en ventre sa mere is to be considered as born. * * * It is regarded as in esse for all purnoses beneficial to itself, but not to another. * * * Formerly, this rule would not be applied if the child’s interests would be injured thereby, * * * but, for the purpose of the rule against perpetuities, such a child is now regarded as a life in being, even though it is prejudiced by being considered as born. * * * Its civil rights are equally respected at every period of gestation.’ 1 Bouvier, Law Dictionary, p 1038.
“ ‘A child en ventre sa mere at the time of the father’s death is deemed to have been born so far as it is for the benefit of such child, and will be entitled to claim compensation as a legal dependent, providing the child is legitimate; and the posthumous child of a deceased workman would have the same rights to compensation as other children.’ Harper, Workmen’s Compensation (2d ed), p 261.
“ Where the father of the unborn child of an unmarried woman publicly expressed his intention to marry the woman and 4 days prior to the marriage, was killed, it was held that the child was entitled to an award for total dependency.’ 1 Schneider, Workmen’s Compensation Law, p 961.
“We conclude that the plaintiff is a dependent within the meaning of the law and entitled by her guardian to maintain an action in this case as such.”
Under the facts in the case at bar we conclude that a child en ventre sa mere is a person in being and as such is a dependent. It follows that the award of the workmen’s compensation commission must be affirmed, but without costs as plaintiff did not file a brief.
Btitzel, C. J., and Carr, Bushnell, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Per Curiam.
This is an application for mandamus to compel respondent to frame an issue, or show cause why he should not do so, in a certain mandamus proceeding pending before him in said court wherein relator sought to compel the council of the village of G-obleville to approve a certain druggist’s bond presented by said relator. For the reason that it appears from the return of respondent circuit judge in the answer of said council that while said bond was in the custody of said village council, the same not having been accepted and approved, three of the four sureties thereto filed in writing with said council their withdrawal from said bond as sureties and notice of refusal to serve as such, therefore at the time the said mandamus was heard before respondent there was no proper bond to be passed upon by said council or said respondent, further proceedings would have been useless.
The writ is denied, with costs. | [
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Beid, J.
Plaintiffs filed a bill for an injunction restraining defendants from preventing plaintiff Dr. Albert from practicing medicine and snrgery in the county hospital (a public hospital) and from preventing other plaintiffs (patients) from the use of the facilities of the county hospital and also enjoining defendants from enforcing as against plaintiffs, certain bylaws, rules and regulations of the board of trustees of the defendant, hospital, and for other relief. The court disposed of the case on the pleadings after answer was filed and some testimony taken. From a decree for plaintiffs, defendants appeal.
The validity of certain rules adopted by the defendant board, by which the defendant board assumed to regulate the practice of medicine and surgery in the public hospital, is the controlling-issue in this case.
The plaintiffs are Samuel G-. Albert, a physician and surgeon licensed by the State board of registration in medicine (see CL 1948, §§ 338.51, 338.53 [Stat Ann §§14.531, 14.533]) to practice medicine and surgery in Michigan, residing at Ironwood in Gogebic county, and James C. Williams and Mr. and Mrs. Albert Behrendt, Jr., patients of plaintiff Albert, who also reside in Gogebic county. Grand View hospital is Gogebic county public hospital and the only public hospital in the county. Plaintiffs claim that each of the plaintiffs is entitled to the use of the facilities of Grand View hospital under the terms of the county hospital act, PA 1913, No 350, and un•der such of the rules and regulations of defendant hoard of trustees as are lawful.
Defendant board of trustees is a body corporate and is the governing body of Grand View hospital. Neither'the defendant board of trustees nor any of its members is licensed to practice medicine. Defendant medical staff is an unincorporated voluntary association composed of 24 physicians and surgeons licensed to practice either in Michigan or Wisconsin or in both States. Defendant medical staff was formed in this State and conducts its business therein and is known as “medical staff of Grand View hospital.” Although individual members of the defendant medical staff are licensed practitioners of medicine, defendant medical staff itself is riot so licensed.
Defendant William H. Wacek is a licensed physician and surgeon hut not a member of defendant medical staff. He is the resident physician of Grand View hospital, employed as such by defendant board of trustees. Defendant Drazkowski is administrator or general manager of Gogebic county public hospital, employed as such by defendant board of trustees.
Grand View hospital was established under the provisions of the county hospital act, PA 1913, No 350, as amended (CL 1948, §331.151 et seq. [Stat Ann § 14.1131 et seq.]) and is supported at present by public funds as contemplated by such act. It contains approximately 100 beds, more.than half of which are in the general section of the hospital. In addition to Grand View hospital, 3 small private hospitals of 20 beds each are located in Gogebic county. Grand View hospital serves an area including parts of Ontonagon and Iron counties in Michigan and Iron county in the State of Wisconsin. It seems that Iron county, Wisconsin, has no hospital and that Ontonagon county, Michigan, has one 20-bed public hospital while Iron county, Michigan has one 17-bed public hospital and one 20-bed private hospital.
The 17-year-old daughter of plaintiff Williams was denied admission to Grand View hospital just prior to August 30, 1951, unless she would agree to select a doctor other than Dr. Albert. Plaintiffs Behrendt were unable to have their 2 minor daughters admitted to Grand View hospital on August 24, 1951, unless they agreed to select for the care of said daughters in said hospital a physician other than Dr. Albert.
Plaintiffs ask that certain rules and regulations (among other rules) adopted by the defendant med ical staff and approved by the defendant board be treated by the court as void and defendants enjoined from enforcing them, particularly articles 5, 6, 7, 16, 17, 23, 24, 25, 26, 28, 29, 32 and 33, which are as follows :
“Art. 5. The medical staff of this hospital shall consist of physicians and surgeons who have been licensed to practice medicine and surgery in the State of Michigan by the State board of registration in medicine and who have been organized as a medical staff of this hospital and have complied with all the rules and requirements in regard to obtaining membership on the staff, according to the rules and regulations adopted by the trustees.
“The staff shall be divided into 2 divisions—senior and junior. All general practitioners and specialists who reside in the county of Gogebic or the county of Ontonagon, Michigan, or the county of Iron, Wisconsin, who are licensed to practice in Michigan and who have practiced 20 years shall be members of the senior division of the staff.
“The board of trustees shall thereafter admit such physicians and surgeons to the staff as they shall deem qualified and who possess the other qualifications herein set forth, and shall classify such physicians and surgeons as either senior or junior members. In making such selections and classifications they may consider the recommendations of the senior staff members.
“Any member of the junior division may be advanced to the senior division at any time the board of trustees shall deem such junior member qualified. In making such advancement, the board of trustees may consider the recommendations of the senior staff members.
“Physicians and surgeons desiring to be admitted to the staff shall make application on the form provided by the board of trustees.
“Art. 6. No physician or surgeon shall perform a major operation in this hospital unless he is a mem ber of tbe senior staff or has in attendance, prepared for assisting in the operation, 1 or more senior members of the staff of this hospital in addition to a person qualified to administer anesthesia.
“A major operation is one which involves a serious hazard to the life of the patient.
“Art. 7. No patient shall be admitted to this hospital for any operation or treatment unless under the direction of some licensed physician or surgeon, according to the rules and regulations of this hospital, except in case of an emergency.”
“Art. 16. No person shall be allowed to practice medicine in this hospital unless- he has in full force and effect a license from the State of Michigan to practice medicine and surgery in all its branches in the State of Michigan and who is in good standing in the medical profession, and is physically and morally and mentally qualified to practice his profession.
“Art. 17. No person claiming to be a physician and surgeon, who is not a member of the senior or junior staff and who is not accompanied by some member of the senior or junior staff, shall practice in this hospital until he has submitted to the superintendent his license to practice medicine in the State of Michigan, or otherwise shown to the superintendent that he is duly licensed to practice medicine as a physician or surgeon.”
“Art. 23. Any reputable nonresident physician may bring his patients to the hospital for treatment but must leave them in charge of a member of the staff of this hospital. Any member of the staff shall not be considered a nonresident within the meaning of this article. Nonresident physicians and surgeons shall be those not residing in either Gogebic county or Ontonagon county, Michigan, or Iron county, Wisconsin.
“Art. 24. The attending physician shall be held responsible for a complete record of the patient for the hospital files; this record shall include identification, date, complaints, personal history, family history, history of present illness, physical examination, special reports, such as consultations, cliniical laboratory, X-ray and others; provisional diagnosis, medical or surgical treatment, pathological findings, gross and microscopic; progress notes; final diagnosis; condition on discharge; follow up record; and autopsy findings when such autopsy has been performed. This record shall always be up to date.
“Art. 25. A complete history, physical examination record and working diagnosis shall be completed within 36 hours after admission and except in emergency, shall be required prior to operation. No case record shall be filed until complete. All records are the property of the hospital and must not be taken away, but the patient or physician may obtain copies or abstracts on request by furnishing the proper legal instruments. Patients to be operated on in the morning shall be in the hospital by 4 p.m. the day previous.
“Art. 26. All operations performed are to be fully described. All tissues removed at operation are the property of the hospital and must be examined by a competent pathologist, whose report shall form a part of the patient’s record.”
“Art. 28. No Caesarian operation shall be performed upon a patient except after consultation between the operating surgeon and a senior member of the staff, and the consultant has filed a report on a form prescribed by the board of trustees with the superintendent of the hospital. And in all Caesarian sections, the indications for the operation, including especially the history of previous deliveries, X-ray pelvimetry and symptoms threatening toxemias must be fully recorded.
“Art. 29. No operation for ‘sterilization’ shall be permitted without a previously signed statement from the patient, her husband or his wife (as the case may be) or a responsible member of the family.
“Consultation with a senior member of the staff is also imperative before operation.”
“Art. 32. The medical staff shall adopt s'uch rules and regulations as may he necessary for the proper conduct of its work. Such rules and regulations may be amended at any regular meeting without previous notice by a 2/3 vote of the total membership of the medical staff. Provided that such rules do not conflict with rules and regulations adopted by the board of trustees and provided that they do not infringe upon the powers of the board oí trustees.
“Art. 33. The board of trustees reserves the right to remove any member of the medical staff or to deprive any physician or surgeon of the privileges of the hospital whenever, in their sole judgment, the good of the hospital or of the patients therein demand it; and it reserves the rigid at any time of making any changes in these rules, by amendment, addition, substitution, repeal or revision, as in its judgment may seem for the best interests of the hospital and those who are to become patients therein.”
Defendants claim that there are ill consequences of allowing physicians and surgeons to practice in the public hospital, who are legally licensed as physicians and surgeons, but not admitted specially to practice in and by the public hospital. As against such claim of the defendants, it is the claim of the plaintiffs in this case that as far back as 1946, plaintiff Albert was successfully performing surgery, which defendant medical staff through its surgical committee claimed he might be well qualified to perform, but should not be allowed to perform without payment of fee of $25 per operation as an “observation” fee exacted by the medical defendants; that from about February 24, 1950, until about November 1, 1950, plaintiff Albert was allowed to practice in Grand View hospital without interference from defendants and without observable ill consequences; and that from the time the injunction was issued on September 4, 1951, plaintiff Albert has been allowed to practice in Grand View hospital according to the dictates of his own medical knowledge and without interference on the part of defendants.
No ill consequences to patients resulting from plaintiff Albert’s practice in the hospital are alleged in defendants’ pleadings, nor in any testimony referred to in defendants’ brief.
The bill alleges that on December 30, 1946, the defendant board held a hearing on which the charge against plaintiff Albert was that he had performed a laparotomy and resection of the ureter which defendant board and defendant medical staff claimed he was not permitted to do under the rules of said staff then in effect and pertaining to Grand View hospital. The bill further alleges that on or about August 21, 1951, the defendant board adopted a resolution barring plaintiff Albert from bringing patients to Grand View hospital, practicing medicine and surgery in said hospital, and from the use of the facilities of the hospital, claiming that plaintiff had violated articles 6, 24, 25, 26, 28 and 29 of the rules and regulations.
Defendants insisted that the hospital board had power to make rules limiting practice of medicine and surgery in the hospital to classes designated by medical staff set up by article 5; and defendants introduced some testimony to prove the reasonableness of rules in dispute.
The statute, PA 1913, No 350 (CL 1948, § 331.151 et seq. [Stat Ann §14.1131 et seq.]), does not in any portion of the act, undertake to delegate to any board, person or persons the right to suspend by rule or otherwise the right to practice medicine and surgery granted by the State board and in no part of the act of 1913 is there any express or implied modification of PA 1899, No 237 (CL 1948, § 338.51 et seq. [Stat Ann § 14.531 et seq.]) regarding prac tice of medicine and surgery. The rig’ht given the hospital hoard to make rules, evidently in general for administrative (“economic and equitable”) purposes, is not a right to suspend or control treatment or operation on patients by a duly-licensed practitioner. No such meaning should be read into section 10 of the act of 1913.
A Florida case, Green v. City of St. Petersburg, 154 Fla 339 (17 S2d 517), relied on by defendants as showing the authority of public hospital boards to make rules such as those made by defendants and in question in this case, contains no suggestion that the rules limiting practice in the public hospital in the Green Case violated or in part suspended any Florida State license or was in conflict with any Florida statute.
Defendants cite Illinois and Indiana cases as to the rule-making power of county (public) hospitals: Selden v. City of Sterling, 316 Ill App 455 (45 NE2d 329), and Hamilton County Hospital v. Andrews (Ind App), 81 NE2d 699. The Indiana opinion cites and relies on the Illinois case. The Illinois statute with broad and inclusive language expressly makes the physicians, nurses and “all persons approaching or coming within the limits of the hospital,” subject to the rules and regulations adopted by the board, while in the hospital. The Illinois statute is much broader and more inclusive in that particular than the Michigan statute.
The Michigan statute, differing from the Illinois statute, has 3 sections in which the rule-making power of county hospital boards is referred to. Section 10 of the act (CL 1948, § 331.160 [Stat Ann § 14.1139]), in part, is as follows:
“Such hospital always being subject to such reasonable rules and regulations as said board may adopt in order to render the use of said hospital of the greatest benefit to the grehtest number; and said board may exclude from the use of such hospital any and all inhabitants and persons who shall wilfully violate such rules and regulations.”
In section 4 (CL 1948, § 331.154 [Stat Ann § 14.1134]) is the following:
“The board of hospital trustees shall make and adopt such bylaws, rules and regulations for its own guidance and for the government of the hospital as may be deemed expedient for the economic and equitable conduct thereof not inconsistent with this act, and the ordinances of the city or town wherein such public hospital is located.”
Also, in section 13 of the act (CL 1948, § 331.163 [Stat Ann § 14.1142]) is the following:
“The patient shall have absolute right to employ at his or her own expense his or her own physician or nurse, and when acting for any patient in such hospital the physician employed by such patient shall have exclusive charge of the care and treatment of such patient, and nurses therein shall as to such patient be subject to the directions of such physician, subject always to such rules and regulations as shall be established by the board of trustees under the provisions of this act.”
It is to be noted that in section 13 the legislature indicates that the board’s rule must be “under” not “in suspension of” “the provisions of this act.”
The statute sets forth the absolute right of the patient to be attended by his or her choice of licensed practitioners.
Whether the rules in controversy in this case shall be considered as made under section 10 or section 4 or section 13 of the act, or under all 3 sections, it is clearly our duty to declare void, any rule inconsistent with the act of the State legislature covering the subject matter. This was expressly indicated in section 4 of the act and is to be implied in regard to sections 10 and 13.
The objectives for adoption of rules set forth in section 4 are the guidance of the board, and economic and equitable conduct of the hospital: in section. 10 the objective is to render the use of the hospital of greatest benefit to the greatest number. In section 13 the patient is accorded the absolute right to employ the physician or nurse of his or her own choice and that such physician so employed shall have exclusive care of the patient subject to the board’s rules established under (but not in suspension of) the provisions of the act of the legislature. In no section of the act is there any suggestion that the hospital board may suspend, even partially, the license of a regularly licensed practitioner. Suspension is left with the State board of registration in medicine. See CL 1948, § 338.53, subd 7 (Stat Ann § 14.533, subd 7).
The license of plaintiff Albert granted him by the State board includes practice in public hospitals and shall be presumed to continue in such public hospitals until suspended or interrupted by some clearly and lawfully empowered authority.
Plaintiffs stress that the senior-surgeon required by criticized rules to be present at a major operation, is not required to be one who has performed or even witnessed such major operation and that mere lapse of time is substituted for proven knowledge and skill of the required onlooker. Plaintiffs claim that at one period at least Dr. Albert was required to pay a fee (or “kickback”) of $25 for each operation where the “onlooker” was required by the board.
Defendants criticize plaintiff Dr. Albert for not making records required by the rules in question, in the hospital of details of treatment of cases. Plaintiffs justify Dr. Albert under Massachusetts Mutual Life Insurance Co. v. Board of Trustees of Michigan Asylum for the Insane, 178 Mich 193 (51 LRA NS 22, Ann Cas 1915D 146), which see. See, also, CL 1948, § 617.62 (Stat Ann § 27.911), which in part is as follows:
“No person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.”
In their motion for decree on the pleadings (after partial taking of testimony) plaintiffs limit the issue to the question of the power of defendant board to make the rules in dispute, and the parties agreed that the trial court might consider the testimony so far as taken. The trial court accepted and acted upon such limitation of the issues. In consequence, such issues as noncompliance and “kickback” are not before us for decision. We further need not determine whether the medical staff is dominated by practitioners willing to deprive plaintiff Albert of practice so that they may share it among themselves.
We do not in this case determine the nature or limitation of the management or control of State institutions, such being not in issue herein.
Among other things the trial judge found as follows :
“13. Purporting to act under authority given to them by the county hospital act and claiming to act under color of law defendant board of trustees on August 21, 1951, issued an order barring plaintiff Albert from practicing medicine and surgery in Grand View hospital for alleged infraction of articles 6, 24, 25, 26, 28 and 29 of the 1950 rules of defendant board.
“14. On August 23,1951, Diane Lee, of the age of 4 years, and Gloria Jean, of the age of 2 years, infant daughters of plaintiffs Behrendt, became ill, suffering with fever and pain in the neck and legs. The Behrendts communicated with plaintiff Albert who advised hospitalization for said children whereupon plaintiffs Behrendt took said children to Grand View hospital but were unable to procure the admission of said children as patients in said hospital unless they chose as physician for said children someone other than plaintiff Albert. Similar refusal was made in the case of Mary Ellen, daughter of plaintiff James C. Williams, who was advised that plaintiff Albert was not permitted to practice in Grand View hospital and that she could not be admitted as a patient of plaintiff Albert.
“15. Defendant board of trustees has no power, by rule, regulation or otherwise, to regulate the practice of medicine and surgery in Grand View hospital.
“16. Articles 5, 6, 7, 16, 17, 23, 28, 29 and 33 of the 1950 rules and regulations of defendant board of trustees, as placed in effect on November 1, 1950, do so attempt to regulate the practice of medicine and surgery in Grand View hospital, and consequently they are void and of no effect and the same are hereby set aside.
“17. All lawful power to discipline any duly licensed physician and surgeon, or to suspend or revoke his right to practice in any public hospital organized and existing under PA 1913, No 350, as amended, is exclusively committed to the State board of registration in medicine and is accordingly determinable by and in pursuance of the medical practice act, and article 33 of said 1950 rules is accordingly void as an attempted usurpation of powers, duties and procedure set forth in the medical practice act, and the same is hereby set aside.”
We conclude that the trial court was correct in his decision as far as quoted, and that articles 5, 6, 7, 16, 17/23, 28, 29, 32 and 33'aré without the power and ■ authority of the defendant hospital board to adopt and are void.
■ The decree appealed from provided that articles 24, 25 and 26 shall be complied with after the decree by plaintiff Albert unless and until at a future hearing, said articles shall be shown and found to be improper or beyond the power and authority of the board to adopt. Plaintiffs request that the decree be- affirmed. The case is remanded to- the trial court for.'a -hearing on and determination of the validity of said 3 articles upon petition of plaintiffs. The decree appealed from is affirmed. No'costs, a matter and questions of public importance being involved.
Butzel, C. J., and Carr, Bushnell, Sharpe, Boyles, Dethmers, and Kelly, JJ., concurred.
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Hooker, J.
The questions in this case are two:
1. May an action brought by a receiver or trustee of a ■foreign mutual insurance company, which has never ob tained authority to do business in Michigan, upon a policy issued to a resident of this State by said company in. Cincinnati, upon an application sent by mail from Chicago, upon a sawmill situate in this State, to recover an assessment, as provided in its policy, to pay losses, be defeated upon the ground that the plaintiff has no right to prosecute in the courts of this State ?
2. Can such defense be made under a plea of the general issue and without special notice ?
It is contended that this contract of insurance was; valid under the case of Allgeyer v. Louisiana, 165 U. S. 585, being made in Ohio, and, being valid there, is valid everywhere. That case was a prosecution for a penalty against a resident of Louisiana who made a contract for insurance in New York upon property temporarily in Louisiana. The act supposed to be a violation of the law was the mailing to the insurance company of a notice of the shipment of certain cotton, in accordance with the terms of the policy. The court held that sending this notice through the mail, notifying the company of the property to be covered by the policy already delivered, did not constitute a contract made or entered into in Louisiana, and that it was but the performance of an act rendered necessary by the provisions of the contract already made between the parties outside of the State, which contract was to be performed outside of the State and in New York, where the premiums were to be paid and losses, if any, adjusted. The act (Act No. 66, Acts of 1894) alleged to be violated was as follows:
“An act to prevent persons, corporations or firms from dealing with marine insurance companies that have not complied with law.”
The act reads as follows:
“Be it enacted by the general assembly of the State of Louisiana, that any person, firm or corporation who shall fill up, sign or issue in this State any certificate of insurance under an open marine policy, or who in any manner whatever does any act in this State to effect, for himself or for another, insurance on property, then in this State, in any marine insurance company which has not complied in all respects with the laws of this State, shall be subject to a fine of one thousand dollars.”
The court held that the sending of such notice was not within the terms of the statute. Whatever may be thought of the question whether the sending of the notice was not an act effecting insurance upon the 100 bales of cotton, which might not otherwise have been covered by the existing policy, the determination that the contract was valid is not conclusive of the question before us.
If it be conceded that the policy before us was valid between the parties, the question still remains, Must the courts of this State enforce it at the suit of the insurance company, which has defied its authority by insuring property within this State without having complied with the conditions which our statute imposes? The legislature has attempted to restrict the issue of insurance policies upon property in this. State to companies that have, after compliance with conditions imposed, obtained a certificate of authority from the State insurance commissioner, and this applies to domestic as well as foreign companies. See Seamans v. Temple Co., 105 Mich. 404 (28 L. R. A. 430); Swing v. Lumber Co., 140 Mich. 344; 2 Comp. Laws, §§ 5157, 5162; Hartford Fire-Ins. Co. v. Raymond, 70 Mich. 501. If it be said that this statute applies to cases where the contract is made within the State, we reply that the evident intent, as shown by the entire scheme of our insurance laws, was to protect the owners of property in this State from questionable insurance, and whether the law is effective in making contracts made elsewhere invalid or not, and whether or not it can collect a penalty in such a case, there can be no doubt of its right to withhold a certificate from offending companies until the penalties are paid under section 5162. See cases cited in Hartford Fire-Ins. Co. v. Raymond, supra. In dealing with property within its jurisdiction, it has seen fit to provide restrictions upon insurance, and when insurance companies disregard and disobey such laws, relying upon their rights to do such business elsewhere, though in violation of and contrary to the expressed policy of the State, their right to enforce the same here may be denied by the State. 3 Comp. Laws, § 10467, provides:
“(10467) Sec. 2. But when, by the laws of this State, any act is forbidden to be done by any corporation, or by any association of individuals, without express authority by law, and such act shall have been done by a foreign corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of, or made or entered into in consideration of such act.”
We have passed upon this section in the case of People's Mut. Ben. Society v. Lester, 105 Mich. 716, and held it applicable to foreign companies. It would be difficult for the legislature to state more plainly than is there stated that if a foreign insurance company sees fit to make contracts upon property in this State, without express authority of law, it must go elsewhere to enforce such contracts. This doctrine is supported by cases elsewhere, and the question was not passed on in the case of Allgeyer v. Louisiana, supra, unless the contrary rule must necessarily follow from the determination of the validity of the contract in that case.
In a case decided in Wisconsin, practically simultaneously with the decision of our own case of Seamans v. Temple Co., supra, a similar decision was made. See Rose v. Kimberly & Clark Co., 89 Wis. 545 (27 L. R. A. 556). Recognizing the propriety of enforcing in Wisconsin a contract made by a Wisconsin company insuring property in Missouri in violation of a Missouri statute (Seamans v. Knapp, etc., Co., 89 Wis. 177 [27 L. R. A. 362]), the court said:
“But it is obvious that that decision does not reach or control this case. The question here presented is whether the courts of this State will enforce a contract plainly and squarely opposed to the public policy and laws of the State.
‘ ‘ Doubtless the general rule of law is that a contract valid where made is valid everywhere, but this rule is not without exception. The provisions of our statutes which prescribe the conditions upon which alone foreign insurance companies may do business within this State are very stringent and sweeping. Sanborn & B. Stat. §§ 1915-1919. They provide, in substance, that no foreign fire-insurance company shall, directly or indirectly, take risks or transact any business of insurance in this State, except upon compliance with certain specified requirements. It is unnecessary to state what these requirements are in detail, but it is sufficient to say that they include, among other things, the filing of verified statements showing investments of capital in certain specified securities, and to certain amounts, or, in lieu thereof, a deposit with the State treasurer of a certain amount of United States bonds, also the payment of certain license fees, and the filing of various documents intended for the benefit and protection of policy holders within the State, and only upon compliance with all these requirements is the commissioner of insurance authorized to issue the license which authorizes the doing of business within this State. The object of this statute is so plain that it cannot be mistaken. It is to protect our citizens against irresponsible and worthless foreign companies of the very kind which we have now before us. The evil to be corrected is, not the writing of a policy by an unlicensed company within this State alone, but the writing of such a policy at all. Bearing in mind the object of the statute and the evil to be corrected, it is very plain that the object will be largely defeated, and the evil will flourish as before, if it be held that companies without license can establish their agencies just outside of the State line and conduct their business by mail.
“ Now, it will be observed that the legislature was not content with providing that no unlicensed company should make a contract of insurance within this State, but provided that no such company should, directly or indirectly, take risks or transact any business of insurance in this State. The writing of a policy of insurance upon property situated within this State would seem pretty clearly to be, in some degree at least, the transaction of insurance business in this State, whether the policy be written just within or just without the State line. In was said in Stanhilber v. Insurance Co., 76 Wis. 285, on page 291:
“ ‘ A contract insuring property in this State necessarily involves the doing of business in this State, and hence is subject to the laws of this State.’
“We regard the remark as entirely correct, and fully as applicable to the present case as to the Stanhilber Case. It is not meant by this that the legislation in question has extraterritorial effect, or that it will invalidate a contract made in Illinois, but simply that, when that contract is a contract insuring property within this State, it is against the policy of our law, and will not be enforced by the courts of Wisconsin unless the conditions prescribed by our laws have been complied with. In no other way can the manifest purpose and intent of the statute be reached. Any different construction would render the law of little effect.
“ These views necessitate reversal of the judgment.”
Again, in Seamans v. Zimmerman, 91 Iowa, 366, after citing and commenting upoD cases where contracts valid, because made out of the State, were enforced, the court said:
“ In none of the cases cited, so far as we have observed, were the statutes construed the same, in legal effect, as that of this State, and in several of the caaes stress was laid upon provisions which are wanting in that statute. The prohibition of section 1144 is directed, not merely to the agents as such, but to the companies themselves. They are forbidden to take any risks in this State, either directly or indirectly. The general assembly intended the prohibition to reach as far as its jurisdiction extends. The power of the legislature of a State to make contracts like those under consideration void is not questioned. It was recognized in Columbia Fire- Ins. Co. v. Kinyon, 37 N. J. Law, 33. Comity does not require the enforcement of a contract valid where made but in violation of the law of the State where it is sought to be enforced. The provision of the statute under consideration was designed to protect the property owners of this State from irresponsible insurance companies, and the contracts in question belong to the class which the general assembly intended to prohibit. To hold that the company may recover the assessments would be to give it all the benefits which it ever expected to derive from the contracts, and would be an evident violation of the spirit and intention of the statute. The contracts are contrary to the policy of this State as expressed in the statute, and the courts of this State will not aid the company to enforce them. Our conclusion finds support in the following authorities: Cincinnati Mut. Health Assurance Co. v. Rosenthal, 55 Ill. 86; American Ins. Co. v. Stoy, 41 Mich. 401; Ætna Insurance Co. v. Harvey, 11 Wis. 394. The certificate of the trial judge does not show where the policies make the assessments in question payable; but we have, for the purposes of this appeal, assumed that the policies are Wisconsin contracts, designed to be performed there.”
A similar holding will be found in Swing v. Munson, 191 Pa. 582 (58 L. R. A. 223). In that case this plaintiff was trying to collect assessments in Pennsylvania. Upon the assumption that the contract was made in Ohio the court said:
“ It is argued that the contract was made in the State of Ohio. It being valid there, under the Constitution of the United States, it is enforceable in Pennsylvania. The evidence does not show that the contract was made in Ohio. To our minds, it shows quite the contrary. The attempt by a pretense to shift the place of the contract to Ohio, to evade the prohibitions of our statutes, is so manifest that it would, perhaps, have warranted a peremptory instruction to the jury to find for defendant on the evidence. But that we may meet a more important question, because it affects the interests of all foreign insurance companies that seek to do business in this State, we prefer to assume that the contract was made in Ohio, and is lawful there. It was a contract, however, in direct violation of the laws of this State. It was the indemnification of a citizen of Pennsylvania against loss by fire on property wholly within Pennsylvania. Without regard to where the contract was made, the subject of it was property within this State. It is the attempt of a foreign insurance company to do business in this State in violation of the laws of this State. * * *
“ All these acts were violated by this appellant corporation. It made no pretense of observing the provisions of any of them. Assume that the contract, because made in Ohio, could have been enforced in the courts of that State, it does not follow that the courts of this State will lend their aid to the enforcement of a contract in violation of' its own policy as declared in its laws. If these laws contravene the Constitution of the United States, or that of Pennsylvania, our courts would enforce the contract, because it would then be lawful here, as in Ohio. But if our statute be constitutional, then the contract is directly opposed to our declared law. * * *
“ Our legislature had the constitutional power to enact these statutes. Under them this contract is unlawful in. this State. Shall our courts by enforcing it declare it lawful ? This would be subversive of the very policy our State had adopted. It would, as to results, repeal all the statutes regulating contracts with foreign insurance companies.”
We think the question has been passed upon and is foreclosed in this State, and see no reason for asserting a contrary doctrine.
Is the absence of notice of this defense prohibitive ? In the case of Heffron v. Daly, 133 Mich. 613, we held that it is the duty of the court to take notice of an illegality in a contract, although not pleaded. Richardson v. Buhl, 77 Mich. 632 (6 L. R. A. 457); Oscanyanv. Arms Co., 103 U. S. 261. Although it be conceded that the contract was valid, because made in Ohio, it is so far in contravention of our law as to justify the application of that rule.
, The judgment should be affirmed.
Carpenter, C. J., and McAlvay, Montgomery, and Moore, JJ., concurred with Hooker, J. | [
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] |
Boyles, J.
Warren township in Macomb county is a charter township, incorporated as such April 3, 1950, by a vote of its qualified electors on a referendum under PA 1947, No 359, § 2, as then amended by PA 1949, No 70. At an election held April 2, 1954, the qualified electors of said township voted in favor of the following bonding propositions:
“1. Township Garage Proposition
“Shall the Charter Township of Warren, Macomb county, Michigan, borrow the sum of not to exceed $271,000 and issue its bonds therefor for the purpose of erecting and furnishing a township garage and acquiring a site therefor in the township?
“2. Police Station Proposition
“Shall the Charter Township of Warren, Macomb county, Michigan, borrow the sum of not to exceed $158,000 and issue its bonds therefor for the purpose of erecting and furnishing a police station in the township ?
“3. Fire Station Proposition
“Shall the Charter Township of Warren, Macomb county, Michigan, borrow the sum of not to exceed $171,000 and issue its bonds therefor for the purpose of erecting and furnishing 2 fire stations and acquiring sites therefor in the township?
“4. Township Hall Proposition
“Shall the Charter Township of Warren, Macomb county, Michigan, borrow the sum of not to exceed $300,000 and issue its bonds therefor for the purpose of erecting and furnishing a township hall and acquiring a site therefor in the township?”
At the same election the following proposition was separately submitted to and adopted by the qualified voters:
“General Improvement Millage Increase
“Shall the limitation on the total amount of taxes which may be assessed against all property in the Charter Township of Warren, Macomb county, Michigan, for all purposes, except taxes levied for the payment of principal and interest on obligations incurred prior to December 8, 1932, be increased, as provided by section 21, article 10, of the Constitution of Michigan, by 1/10 of 1% (0.1%) (1 mill) of the assessed valuation, as equalized, of all property in the township for a period of 12 years from 1954 to 1965, both inclusive, for the purpose of providing funds to pay the principal and interest on bonds of the township in the principal amount of not to exceed $900,000, to be issued for the purpose of erecting and furnishing a township garage, police station, 2 fire stations and a township hall, and acquiring sites therefor, in the township?”
On July 27, 1954, the township board adopted a resolution authorizing the issuing of $900,000 public building bonds, the proceeds of the sale thereof to be deposited in separate earmarked construction funds to provide money for the construction “of said separate projects hereinbefore referred to. At the same meeting the township board adopted a form of notice of sale of said bonds. Thereupon the township clerk made application to the State municipal finance commission for permission to issue said bonds and for its approval of said form of notice of sale, as the statutory condition precedent to advertising said bonds for sale or completing a sale thereof. The municipal finance commission issued an order permitting the issuance of said bonds but refused to approve the form of notice of sale as submitted by plaintiff. It did, however, approve a notice of sale in the same form as that adopted by the township board, except for the deletion of the following paragraph:
“The said bonds are payable from ad valorem taxes subject to such limitation on said taxing power as may result from the provisions of section 21, article 10 of the Michican Constitution and the Michigan property tax limitation act. The qualified electors of said Charter Township of Warren, Macomb county, Michigan, at a special election held on April 2, 1954, voted an increase in the constitutional tax-rate limitation of 1/10 of 1% (1 mill) of the assessed valuation, as equalized, of all property in the township for a period of 12 years, from 1954 to 1965, both inclusive, for the sole purpose of providing-funds to pay the principal and interest on bonds of the Charter Township of Warren herein authorized.”
The commission inserted the following sentence in lieu thereof:
“The bonds will be general obligations of Charter Township of Warren payable from ad valorem taxes without limitation as to rate or amount.”
The municipal finance commission took the position that charter townships incorporated under PA 1947, No 359, as amended, are not subject to the provisions of article 10, § 21 of the Michigan Constitution (1908), called the “15-mill constitutional amendment;” and that section la, ch 7, PA 1943, No 202 (the municipal finance act), as added by PA 1945, No 300, and amended by PA 1952, No 145, applied to charter townships, and to the notice of sale here involved, wherein it states:
“No limitation in any statute or charter shall prevent the levy and collection of the full amount of taxes required by this section for the payment of debts, but nothing herein shall authorize the levy of a tax for any other purpose exceeding the existing statutory or charter tax limitation.”
Thereupon Warren township filed in this Court this petition for a writ of mandamus to compel the municipal finance commission to approve the notice of sale of the proposed bonds in the form submitted to it by said township. On leave granted we issued an order directing the municipal finance commission to show cause why the writ should not be granted as prayed for. Issue has been joined thereon, briefs filed, and the matter submitted as a motion. It is conceded that bond attorneys have refused to approve the proposed bonds as unlimited tax bonds until the status of "Warren township, a charter township, should be clarified in relation to article 10, §21, Constitution (1908), as to whether the limitation of the total amount of taxes which may be assessed against property in any 1 year applies to said township.
The township claims that its tax rate in all particulars is subject to article 10, § 21, of the Constitution (1908), and the fact that it is a charter township having a statutory charter providing a different tax-rate limitation than that provided by said constitutional amendment does not remove the township from said constitutional limitation.
The attorney general, on behalf of the municipal finance commission, claims, on the contrary, that a charter township incorporated under PA 1947, No 359, as amended, is not subject to the tax-rate limitation in article 10, § 21, of the Constitution (1908); and that the State municipal finance commission correctly construes the following exception in the tax limitation amendment wherein it provides:
“That this limitation may be increased for a period of not to exceed 20 years at any one time, to not more than a total of 5% of the assessed valuation, * * * when provided for by the charter of a municipal corporation.”
The 15-mill constitutional amendment in itself provides for exceptions to limiting to 1-1/2% of the assessed valuation the amount of taxes that may he assessed in any 1 year against.property for all purposes. The first exception applies to taxes levied for the payment of principal and interest “on obligations heretofore incurred,” to he “separately assessed in all cases.” It is not involved in this case. The other exceptions are covered in the following proviso:
“Provided, That this limitation may he increased for a period of not to exceed 20 years at any one time, to not more than a total of 5% of the assessed valuation, by a majority vote of the electors of any assessing district, or when provided for-by the charter of a municipal corporation.”
The proviso is permissive, and where it applies it constitutes an exception to the general tax limitation in the enacting part of the amendment.
“It is true the office of a proviso in a statute is, usually, to explain, modify, qualify, t-he enacting clause, and not to enlarge it. While this is the appropriate and the presumed office of a proviso, it may he clearly designed to perform some other office. And so it has been held that a proviso may be construed to enlarge the scope of the act, or to he equivalent to an independent enactment. 36 Cyc, p 1161 et seq.” People v. American Central Insurance Co., 179 Mich 371, 376.
Under 2 separate and plainly-defined circumstances this proviso permits an increase, to-not more than 5% of the assessed valuation, for a period of not more than 20 years, in the amount of the taxes that may he assessed against property in any 1 year. The first circumstance, which is not involved in the instant case, is an increase by a majority vote of the- electors in the assessing district. The other is ■when tlie increase is “provided for by the charter of á municipal corporation.” The precise question ■before us is whether this last exception, sometimes heretofore cálled the “third exception,” applies to Warren township.
Warren township is a municipal corporation. The legislature, in providing for its incorporation as a so-called charter township,' has expressly so declared.- PA 1947, No 359, § 1. Said section also expressly provides that the act “shall constitute the charter of such municipal corporation.”
The question before us then is, what are the provisions, if any, in said act, as to the total amount of taxes that may be assessed for all purposes against property in said township; because that exception in the proviso applies only when the charter of a municipal corporation (in this case the statute) so provides.
Said statute (PA 1947, No 359, as amended) provides for assessments for taxes in charter townships. Section 14 of said act, as amended by PA 1949, No 70,* * authorizes a charter township to acquire property for public purposes, and provides:
“That no taxes shall be levied to acquire any such property, public building, park, or facility, unless such levy shall be approved by a majority of the electors of the township voting thereon at any regular or special township election.”
It is conceded thát a majority of the electors has approved the levy here involved.
Section 14a of said act,- as added by PA 1953, No 188, provides that the township may borrow money and issue bonds on the credit of the township to ac quire such improvements upon approval thereof by a majority of the electors,
“Provided, however, That the net bonded indebtedness of the township incurred for all public purposes shall at no time exceed 10% of the assessed value of all real and personal property in the township: * * * Provided further, That such bonds shall he issued subject to the provisions of Act No 202 of the Public Acts of Michigan 1943, as amended.”
Section 27 of said act, as amended by PA 1953, No 188, authorizes the township board, not later than November 1st of each year, to appropriate and provide for a levy of the amount necessary to be raised by taxes for municipal purposes of the township, and states as follows:
“which levy shall not exceed 1/2 of 1% of the assessed valuation of all real and personal property subject to taxation in the township: Provided, That the electors of each charter township shall have power to increase such tax levy limitation to not to exceed a total of 1% of the assessed valuation of all real and personal property in the township for a period of not to exceed 20 years at any one time.”
It is obvious that the legislative charter of Warren township in itself provides for a tax limitation.
The township in its petition for mandamus takes the position that:
“The municipal finance commission is incorrect under the law, in that the only municipalities excepted from the operation of the 15-mill constitutional amendment, by virtue of the decisions of this Court in School District of the City of Pontiac v. City of Pontiac, 262 Mich 338, and City of Hazel Park v. Municipal Finance Commission, 317 Mich 582, are incorporated cities and villages.”
It is difficult to understand how the township can find any support for said position from either of said ■ decisions. In the Pontiac Case, after holding that article 10, § 21, of the Constitution (the tax limitation amendment), had been legally adopted, the Court said (pp 345-347, 349, 351):
“We are asked to construe in certain particulars this amendment to the Constitution. * * *
“This appeal presents for determination the proper construction of the phrase ‘or when provided for by the charter of a municipal corporation’ as embodied in the context of this amendment. The charter of the city of Pontiac adopted under the so-called home-rule act (CL 1929, § 2228 et seq.), vested the city with power to levy annually a general tax upon real and personal property not exceeding 2% of the assessed valuation. The tax so authorized was for the sole use of the city. The question now presented is this: Does the 1932 constitutional amendment limit the annual tax assessment for State, county, school, and city purposes to 1-1/2% in the city of Pontiac (except taxes levied to meet existing indebtedness) ; or does the city, because of the exception contained in the above-quoted phrase, still have power to tax for municipal purposes to the maximum charter limitation of 2%? * * *
“This brings us to what a fair reading of the amendment indicates is a third exception to the general limitation of taxation, which exception the framers and adopters of this amendment seemingly deemed essential, and which we think gave rise to including in the amendment the words ‘or when provided for by the charter of a municipal corporation.’ * * * At the expense of repetition, we state again that (disregarding the exception of taxes levied for
payment of debts), we think the amendment must be construed as though it read:
“ ‘The total amount of taxes assessed against property for all purposes in any 1 year shall not exceed 1-1/2% of the assessed valuation of said property: Provided, That this limitation may be increased for a period of not to exceed 5 years at any one time to not more than a total of 5% of the assessed valuation, by a 2/3 vote of the electors of any assessing district, or (that this limitation may be increased) when provided for by the (present or future) charter of a municipal corporation.’
“In the foregoing, reference has been made to the so-called home-rule cities, but we think the same result would follow as to cities having special charters with like provisions as to the exercise of the power of taxation. The result of the above construction is that the 1932 amendment neither increased nor decreased the charter power of a city to levy taxes for its municipal purposes. * * *
“With villages and fourth-class cities much the same result follows from the foregoing construction of the 1932 amendment.”
In the Hazel Park Case, supra, the city sought mandamus to compel the State municipal finance commission to approve a notice of sale of bonds, “payable from ad valorem taxes within the 1.8% charter tax limit for city purposes.” In lieu thereof the commission inserted the following:
“The bonds will be the general obligations of the city payable from ad valorem taxes without limitation as to rate or amount.”
The municipal finance act provides:
“No limitation in any statute or charter shall prevent the levy and collection of the full amount of taxes required by this section for the payment of debts, but nothing herein shall authorize the levy of a tax for any other purpose exceeding the existing statutory or charter tax limitation.”
Relying on the above-quoted provision in the municipal finance act, in the Hazel Park Case we said (p 606):
“The provision in the municipal finance act, supra, that no limitation in any statute or charter shall prevent the levy and collection of the full amount of taxes to pay the bond issue, must be read into plaintiff’s charter, and controls the instant case notwithstanding the 1.8% tax limitation in the charter. * * *
“We conclude that the 15-mill constitutional limitation does not apply here, but on the contrary the exceptions, as construed herein, control decision. The writ is denied.”
See, also, Council of the City of Saginaw v. Saginaw Policemen and, Firemen Retirement System Trustees, 321 Mich 641.
The Pontiac and Hazel Park Cases do not support the position taken by the township, under the circumstances of the case at bar. They do not hold, as claimed by the township, that incorporated cities and villages are the only municipalities excepted from the operation of the 15-mill constitutional amendment. On the contrary, the Pontiac Case states that with villages and fourth-class cities the same result follows the construction therein given to the constitutional amendment. Charter townships are in the same category.
We are not in accord with the township’s claim that its notice of sale should provide that:
“The said bonds are payable from ad valorem taxes subject to such limitation on said taxing power as may result from the provisions of section 21, article 10 of the Michigan Constitution and the Michigan property tax limitation act.”
As confined to the issue now before us there is no essential difference between charter townships and incorporated cities and villages. All are municipal corporations. Fourth-class cities have legislative charters (PA 1895, No 215, as amended) ; likewise, “general law” villages (PA 1895, No 3, as amended). The 15-mill tax amendment makes no distinction between charters of municipal corporations, in the exceptions to the 15-mill constitutional limitation.
Mandamus denied. No costs, a public question being involved.
Butzel, C. J., and Carr, Bushnell, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred.
For said PA 1947, No 359, prior to subsequent amendments, see CL 1948, §§42.1-42.34 (Stat Ann 1947 Cum Supp §§5.46 [1]-5.46[34]). For said act including subsequent amendments, except PA 1954, No 169, see Stat Ann 1953 Cum Supp §§ 5.46(l)-5.46(34). The amendment by PA 1954, No 169, has no bearing on this case.
See amendment of 1948 (PA 1949, p 688 [Stat Ann 1953 Cum Supp, art 10 § 21]).
PA 1943, No 202, eh 7, § la, as added by PA 1945, No 300, and amended by PA 1952, No 145 (CLS 1952, § 137.1a [Stat Ann 1953 Cum Supp § 5.3188(45a)]).
Changed in 1948 by amendment to article 10, § 21.
See footnote page 612.
As amended by PA 1949, No 20 (CLS 1952, § 42.1 [Stat Ann 1953 Cum Supp § 5.46(1)]).—Reporter.
CLS 1952, §42.14 (Stat Ann 1953 Cum Supp § 5.46[14]).
Stat Ann 1953 Cum Supp § 5.46(14a).
Municipal finance act, CL 1948 and CLS 1952, §§131.1-137.3 (Stat Ann 1949 Rev and Stat Ann 1953 Cum Supp §§ 5.3188[1]-5.3188[47], inclusive).
Stat Ann 1953 Cum Supp § 5.46(27).
CL 1948 and CLS 1952. § 117.1 et seq. (Stat Ann 1949 Rev and Stat Ann 1953 Cum Supp § 5.2071 et seq.).—Reporter.
PA 1943, No 202, ch 7, § la, as added by PA 1945, No 300, and amended by PA 1952, No 145 (OLS 1952, § 137.1a [Stat Ann 1953 Cum Supp § 5.3188 (45a)]).
CL 1948, § 81.1 et seq., as amended (Stat Ann 1949 Rev and Stat Ann 1953 Cum Supp § 5.1591 et seq.).
CL 1948, § 61.1 et seq., as amended (Stat Ann and Stat Ann 1953 Cum Supp § 5.1201 et seq.). | [
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Grant, J.
(after stating the facts). The gravest and most important question in the case arises upon the action of the court in discharging the third jury, after the people had rested their case and the respondent had entered upon his defense. The record discloses no specific acts which showed a disqualification of any juror. In discharging the jury the presiding judge stated that “no direct proof of any wrong-doing had been presented to the court in sufficient volume to satisfy the court that any wrong had been actually perpetrated.” He also stated to the jury that they were an average body of men in intelligence, honesty, and ability. No jurors were examined as-to any misconduct, and nothing appears upon the record tending to show any misconduct upon their part. The record shows only the statement of the presiding judge, based on an ex parte investigation, in which it appears that neither the defendant nor his counsel were permitted to take any part, and the jurors were allowed no opportunity to defend themselves from any charge. Even under the language of the Constitution of Michigan (article 6, § 29), which is different from that of the Constitution of the United States and many other States upon the question of jeopardy, a jury impaneled, accepted, and sworn cannot be discharged except for inability to agree, or for some other overruling necessity, which courts hold to constitute a mistrial. People v. Taylor, 117 Mich. 583; People v. Jones, 48 Mich. 554. After a jury has been impaneled it may be shown at any stage of the trial that a juror has testified falsely as to his qualifications, in which case a juror may be withdrawn and the jury discharged. Simmons v. U. S., 142 U. S. 148. The court in that case quoted with approval the language of Mr. Justice Story in U. S. v. Perez, 9 Wheat. (U. S.) 579:
“We think that, in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. But, after all, they have the right to order the discharge ; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this as in other cases, upon the responsibility of the judges, under their oaths of office.”
Mr. Justice Curtis, in TJ. S. v. Morris, 1 Curt. (U. S.) 37, said:
“It is a mistake to suppose that, in a court of justice, either party can have a vested right to a corrupt or prejudiced juror, who is not fit to sit in judgment in the case.”
A qualified jury is essential to constitute jeopardy. The court may, at any time during the progress of the trial, arrest it to determine the legal qualifications of a juror. If it be ascertained, upon an examination, that a juror was disqualified when sworn and accepted, or by subsequent conduct has become disqualified, the court may discharge the jury without prejudice to a new trial. Such conduct on the part of a juror is that overruling necessity essential to constitute a mistrial. In re Ascher, 130 Mich. 540.
In People v. Jones, supra, the plea of former acquittal showed no verdict, but did show that a jury was impaneled and proofs taken, and the court held:
“ Under all the authorities this entitled the defendant to a verdict one way or the other, and if the jury was discharged without verdict and without any overruling necessity this was a final discharge of the accused.”
Appellate courts will not interfere with the action of trial courts in discharging juries, where facts are found upon which such action can be based. But the facts must be found and placed upon the record. State v. Wiseman, 68 N. C. 203. The court cannot arbitrarily discharge a jury upon rumors of improper conduct, or of attempts to corrupt one or more of them. In the Ascher Case the trial judge made a specific finding of facts showing corrupt conduct on the part of some of the jurors, an utter disregard of the instructions of the court, and pre-existing bias on the part of some of the jurors in favor of the respondent contrary to their sworn statements when examined upon the voir dire, and that an officer in charge of the jury was made drunk by some of the jurors. Under such conditions the accused had not been in jeopardy. No such state of facts is found- here. No juror is found to be disqualified; neither is the entire panel found to be tainted. Rumor and suspicion are not sufficient; neither is the fear on the part of the trial judge “ that a fair and impartial trial is not certain to be the result.” Under the facts of this case, both the accused and the people were entitled to have th¿ case submitted to the jury. The accused was in legal jeopardy. No overruling necessity for the discharge of the jury had arisen. It follows that the conviction must be reversed, and the prisoner discharged.
"While it is unfortunate that the respondent shall escape punishment for his crime, it is essential, for the public safety, and for the protection of accused persons, to preserve those forms of procedure provided by the Constitution and the laws, and guaranteed to every citizen. While in the Ascher Case the trial judge entered upon an ex parte and private examination, as did also the judge in this case, and made his finding from such an examination, speaking for myself, I desire to say that I do not regard that as the proper practice. I think the examination should take place in the presence of the prosecuting attorney, the respondent;/ and his counsel, and the jury or jurors who are charged with misconduct. It is justice to a juror that he h'ave a hearing before a jury is summarily discharged because of misconduct charged against him.
2. While it is unnecessary to refer to any other of the errors alleged, w-e deem it important to refer to one. It is clearly the duty of the court not to discharge the jury so long as there is any reasonable probability that they can agree. The second jury in this case did not state that they could not agree, their only statement being that they had so far been unable to agree. The plain inference from this language is that the jury had not reached the conclusion that an agreement was improbable. The judge arbitrarily refused to ask them as to the probability of an agreement. No authority is cited which holds that the court may discharge a jury without ascertaining whether an agreement is probable. As to thelength of time a jury should be kept out, and what it is essential the record should show, the authorities are not agreed. The common practice has been, in this State, at least, to inquire of the jury as to their ability to agree, and the court is justified in accepting their statement that they cannot agree as proper evidence in determining the question. People v. Harding, 53, Mich. 481. Chief Justice Shaw stated the rule as follows:
“It has been held in modern times, though it was long doubted, * * * that where the jury, after being long kept together, cannot agree, where it is manifest that they have no reasonable prospect of agreeing, and no means remain but famine or exhaustion to compel them to agree, or where the powers of the court are - near terminating by the legal termination of their session,, the court, as a power necessarily incident to the due. and regular administration of justice, may discharge the jury without the consent of the prisoner, and again impanel a jury and put him upon his trial.” Com. v. Roby, 12 Pick. (Mass.) 496.
The jury had made no requ st to be called into the court-room. The presiding judgt sent for them after they had been out only about four hour A and discharged them upon the sole statement that so far ihey had been unable to agree. Whether this would be fetal to the conviction we need not determine. We discuss the matter in order to show what we believe to be the proper practice, as a guide in future cases. The practice indicated is justice to the accused, to tbe jurors, and to the people.
Conviction reversed, and the prisoner discharged.
McAlvay and Blair, JJ., concurred with Grant, J. | [
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Carr, J.
Plaintiff brought this action in assumpsit in the circuit court to recover money paid out by defendant on forged checks and charged to her account. The cause was submitted and determined on a stipulation of facts. In 1939 the plaintiff, then Dorothy I. Shaft, opened a commercial account in the Central National Bank of Battle Creek, Michigan. At that time she signed a signature card containing a statement that she agreed to certain rules and regulations appearing on reverse side of said card. Among such rules was one authorizing the bank to give notices to depositors personally, or by mail, or by publishing for 4 successive weeks in a Battle Creek paper. For a number of years no check was drawn against the account, and there remained on deposit on April 8, 1950, the sum of $5,465.77. While the account remained inactive the bank did not send statements to plaintiff. It is conceded that the defendant in the present case succeeded to the rights and obligations of the Central National Bank before the occurrence of the matters giving rise to the present case.
In 1945 plaintiff removed to Florida where, on February 27, 1950, she married John E. Benge. On April 8th, following, she drew a check in the sum of $1,550 on her account in the defendant bank which check was duly presented and paid. On April 20th thereafter defendant sent a statement of account and the canceled check to the plaintiff, and the record indicates that she received them. During the period beginning April 28, 1950, and ending July 17th of the same year, 12 checks, on which the plaintiff’s signature was forged by her husband, were presented to defendant and paid. Subsequently 2 other checks, one for $50 and one for $15, both forgeries, were presented and payment refused because of insufficient funds. Both of the latter checks were payable to J. E. Benge, plaintiff’s husband.
On May 20, 1950, and at intervals thereafter, defendant forwarded to plaintiff, at her address in Lake Worth, Florida, statements of account together with canceled checks for each period covered. It is agreed that plaintiff did not actually receive such statements and vouchers because, after reaching her residence, they were intercepted by her husband. On or about August 20, 1951, defendant sent to plaintiff’s address, in the usual course of business, a statement of account. Plaintiff received this communication and immediately thereafter notified defendant that checks paid by it, as above indicated, had been forged. Her demand for reimbursement because of payment of the forged checks was refused, whereupon the present case was instituted. Plaintiff had judgment in the trial court, and defendant has appealed.
The stipulation of facts does not disclose any basis for a conclusion, or claim, that plaintiff was negligent in any respect or that she is estopped to maintain the present action because of any act or omission on her part. The situation is that defendant honored checks on which plaintiff’s name had been forged and charged the same against her account. It is not open to question that the relation existing between the parties was that of debtor and creditor, and that the hank owed to plaintiff the duty to make no payments out of her account except on her order. Under the common-law rule the violation of such duty gives rise to a cause of action. It is defendant’s claim, however, that recovery in the instant case is barred under the provisions of PA 1907, No 95 (CL 1948, § 487.661 [Stat Ann 1943 Rev § 23.371]), which reads as follows:
“No bank shall be liable to a depositor for the payment by it of a forged or raised check unless within 3 months after the return to the depositor of the voucher of such payment such depositor shall notify the bank that the check so paid is forged or raised.”
It is the claim of the defendant that, because the statements and canceled checks were sent by mail to plaintiff’s address in Florida, it is in position to claim the benefit of the statutory provision quoted notwithstanding the conceded fact that plaintiff, because of the wrongful act of a third party, did not actually receive them. It is argued in substance that there was a “return to the depositor” of the vouchers showing the payments, that it was in no way responsible for the act of the wrongdoer, and that, not having been notified within the 3-months period that the checks- were forged, it is entitled to invoke the statute to preclude recovery by the plaintiff. It is the position of counsel for the appellee that defendant’s claim is not well founded and .that the - statute must be construed as requiring actual delivery to the depositor, and failure to give, the specified notice, in order to relieve the debtor bank from liability in a situation of this character. The-issue thus becomes, primarily, a matter of statutory construction.
The precise question involved has not heretofore been determined by this Court. In Detroit Piston Ring Co. v. Wayne County & Home Savings Bank, 252 Mich 163 (75 ALR 1273), liability was asserted against the defendant bank because of its action in honoring checks on which the indorsements of payees had been forged. It was held that the forged indorsements did not render the checks forgeries within the meaning of the statutory provision above quoted. In discussing the question as to the scope of said provision it was said (p 171):
“This statute was enacted for the purpose of giving the bank prompt notice that a check' has been forged or raised. This could be readily discovered by the drawer of the check immediately, upon its return to him. He knows his signature better than any one else. He might not know the signature of a payee with, whom he was unacquainted, and it might take longer than 3 months to discover that the check had been indorsed by some one other than the payee. Similar cases have been before the courts in- other States, and it has been uniformly held that the statute only applies to facts that necessarily must be within the knowledge of the drawer at the time of the return of the check to him, namely, whether his name has been forged, or the check raised, or the name of the payee changed. It has not been applied to the forging of the indorsement of the payee.”
Obviously a depositor on whose account forged checks have been paid is not in position to discover such fact unless and until he receives such checks, or notice of payment thereof, from the bank. When the instruments come into his possession he is, at least under ordinary circumstances, charged with the duty of making a reasonable examination, as contemplated by the quoted statute, for the purpose of detecting possible forged or raised checks. If he discovers such, then it becomes his duty to notify the bank accordingly and unless he does so within the 3-months period he may not recover because of the breach of duty on his own part. Clearly, however, such duty does not arise unless he is given the opportunity to discover what has occurred—unless he has, personally or by his duly authorized agent, received the forged or raised instruments. Under the terms of the statute the sending of the canceled checks, with accompanying statements, to the correct address of the depositor is not sufficient to preclude liability on the part of the bank if it pays forged or raised checks against the depositor’s account unless the depositor is given the opportunity to examine the same, which implies that they must come to his personal possession or that of his authorized agent, and then fails to give the notice that the statute requires. Such interpretation is consistent with the language of the Court in Detroit Piston Ring Co. v. Wayne County & Home Savings Bank, above quoted.
In McCarty v. First National Bank of Birmingham, 204 Ala 424 (85 So 754, 15 ALR 153), the court discussed at some length the relation existing between a bank and a depositor, recognizing the general rule that the former is bound to know the signature of its depositors, and that a depositor to whom accounts and vouchers have been returned owes the duty of examining the same and advising the bank as to any improper action taken. In discussing this phase of the case, it was said, in part (pp 426, 427):
“In all of the reported cases, this duty of diligence was imposed upon the depositor by reason of the fact that his passbook and canceled checks had actually been returned to him, so that notice of the forgeries was placed in his possession, and knowledge of them thereby made immediately accessible. The rationale of the rule is that, having been furnished with the means of knowledge, it is the depositor’s duty to know; and, knowing, he is under the further duty of informing the bank of whatever he finds to be wrong. * * *
“A statement of account, though prepared and ready for delivery, does not become a stated account, with legal consequences, until it is actually placed in the hands of the party to be charged, and, with knowledge of its purport, he has acquiesced in its correctness. Comer v. Way, 107 Ala 300 (19 So 966, 54 Am St Rep 93); [1 CJ, Accounts and Accounting, § 250, p 679]. Manifestly the balanced passbook could not have become a stated account until after its reception by plaintiff on September 4, 1914. The theory upon which a depositor is required to examine his balanced passbook and his canceled checks within a reasonable time and with due care after they are returned to him by the bank, and to report errors and irregularities, if any there be, with reasonable promptness to the bank, is that, if he fails. to do so, the bank may rightly presume that previous payments of checks were properly made upon the authority of the depositor, and that they have his sanction and approval, and that, so presuming, the bank may be naturally induced to make similar payment of similarly forged or unauthorized checks in the future.”
Consistent with the theory that a depositor must have an opportunity to actually examine statements and canceled checks returned to him before being-charged with the duty of giving notice to the bank is the holding of the circuit court of appeals of the eighth circuit in England National Bank v. United States, 282 F 121, 126, 127, where it was said:
“It is the duty of a bank, upon the request of a depositor thereof, to furnish him with a statement of the account, and to accompany that statement with the checks it has paid as vouchers for such payments. It is the duty of a depositor, who receives such a statement and such paid checks, within a' reasonable time to examine them, to ascertain whether or not the account is correct, and whether or not the paid checks are just and legal vouchers for the amounts charged on the account of them, and, immediately upon the discovery of any error in the account, or any fraudulent altered or defective paid check or voucher, to notify the bank thereof,, in order that it may at once proceed to protect itself before others exhaust the property of the wrongdoer who caused the loss; and the negligence or failure of the depositor to make the examination within a reasonable time, or speedily to notify the bank after his discovery of an altered, defective, or fraudulent cheek or voucher, is in law a conclusive admission of the correctness of the account and the legality and justice of the vouchers, upon which the bank has the right to rely, and which the depositor may not consequently deny. Leather Manufacturers’ Bank v. Morgan, 117 US 96, 106-113, 115 (6 S Ct 657, 29 L ed 811); United States Bank v. Bank of Georgia, 10 Wheat [23 US] 333, 343 (6 L ed 334); Robb v. Vos, 155 US 13, 39, 40 (15 S Ct 4, 39 L ed 52); First Nat. Bank v. Farrell (CCA), 272 F 371, 376 (16 ALR 651); Citizens’ Bank & Trust Co. v. Hinkle, Adm’r, 126 Ark 266, 277 (189 SW 679). These rules of law were discussed, considered, and established in the courts of the United States in the case first cited in 1886, and they have since been repeatedly affirmed and followed in a long line of decisions too numerous to cite.”
Likewise recognizing the general rule that. the depositor is entitled to actual possession of paid and canceled checks drawn on his account is Van Dyke v. Ogden Savings Bank, 48 Utah 606 (161 P 50).
In Lincoln National Bank of Cincinnati v. Morgan, 46 Ohio App 9 (187 NE 646), the defendant bank paid forged checks drawn on an account created by a guardian for the benefit of a minor ward. Apparently the canceled checks were sent to an attorney who.had filled out the signature card in the name of the guardian and who, as it was claimed, committed the forgeries. In seeking to defeat recovery in the trial court the bank relied on section 11225-1 of the Ohio General Code, which read as follows:
“No bank which has paid and charged tó the account of a depositor any money on a forged_ or raised check issued in the name of said depositor shall he liable to said depositor for the amount paid thereon unless either, (1) within 1 year after actual written notice to said depositor that the vouchers representing payments charged to the account of said depositor for the period during which' such payment was made are ready for delivery, or (2) in case no such notice has been given, within 1 year after the return to said depositor of the voucher representing such payment, said depositor shall notify the bank that the check so paid is forged or raised.”
In sustaining judgment for the plaintiff it • was pointed out that the canceled checks had not been returned to the depositor, that the party who committed the forgery did not stand in that position, and that (p 18) “to avail itself of the privileges of the statute the bank must bring itself strictly within its provisions.” The court further expressed the opinion that the legislature did not intend to relieve from liability unless the depositor had received notice of the payment of forged instruments. It is a fair inference that the court construed the reference in the statute to the “return” to the depositor of the canceled vouchers as, in effect, requiring the receipt thereof by the depositor. We think that the statutory provision involved in the instant case must be given a like interpretation for the reasons above considered. A depositor who does not receive knowledge, or the means of knowledge, that forged checks have been paid by his bank and charged against his account may not be denied the right to recover because of his failure to give the notice contemplated by the statute. Had the legislature intended any such result, we think the intent would have been clearly expressed.
Under CL 1948, § 439.107 (Stat Ann § ±9.147), notice of dishonor of a negotiable instrument is deemed sufficient if duly addressed and deposited in the post office. No analogous provision was incorporated in the statute involved in the instant case. It may be conceded that proof of sending statements and canceled checks by mail raises a presumption of receipt, but in the case at bar it is stipulated that plaintiff did not in fact receive them, nor were they received by anyone duly authorized to act as her agent for that purpose. In the interpretation of the statute we are bound by the language of the legislature read in the light of previously-established and recognized rules of the common law.
Counsel for appellant raises a further question based on the language of the signature card above mentioned. It is insisted that by signing such card plaintiff in effect consented that bank statements and canceled checks might be sent to her by mail. Such claim is not tenable. As before indicated, the particular rule on which defendant relies not only allowed mailing of notices but further, in the alternative, publication thereof for 4 successive weeks in a Battle Creek paper. It is scarcely conceivable that the bank had in mind in the adoption.of such rule that statements, or canceled checks, might be published in the manner indicated. One signing the signature card, if he read the rules and regulations printed on the reverse side, would scarcely interpret the one in question here as applicable to such checks or statements. Furthermore, there is nothing to indicate that plaintiff’s attention was in any way directed to the rule. See in this connection Ackenhausen v. People’s Savings Bank, 110 Mich 175, 182 (33 LRA 408, 64 Am St Rep 338).
Neither the statute, on which defendant relies, nor the signature card, may be given the effect of barring recovery under the stipulated facts. Under the rules of the common law governing the rights and duties of banks and depositors the defendant was at fault in honoring the checks on which the signature of the drawer was forged. Plaintiff is not estopped to assert liability. There is nothing in the record suggesting that plaintiff was in any way at fault because defendant did not receive actual knowledge until August of 1951 that it had honored forged checks.
The trial court correctly determined the issues in the case and the judgment entered is affirmed. Plaintiff may have costs.
Butzel, C. J., and Bushnell, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred.
This provision is now found in Ohio Revised Code, § 1307.08.— Reportee. | [
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Butzel, J.
Plaintiff, township of Warren, a municipal corporation, is situated in Macomb county, not far distant from the city of Detroit. It contains the village of Warren and outlying agricultural lands and some subdivisions. Among the latter are Piper’s Van Dyke 'Subdivision No. 10 and Piper’s Van Dyke Subdivision No. 7, all in Warren township, Macomb county. These two subdivisions adjoin one another and are laid out with streets that have been dedicated to the public. They contain 230 lots, all facing upon streets of the subdivision. In order to secure sewer facilities for these lots, an application for laying out a designated drainage district was filed with the county drain commissioner of the county of Macomb, defendant in this cause. The petition was signed by 22 freeholders of the town ship, who assert that they own. 16 of the 230 lots of the two Piper subdivisions. The location of the drain was to be along Essex, Jewett, and Chapp streets, and also along Lorraine avenue, to which the first named three streets run at right angles. Upon the granting of the petition, an order laying out and designating the district was made by defendant on February 27,1930. The' drain was named “Jewett Avenue West Lateral and Branches of North Lorraine Arm Drain.”
On the 24th day of March, 1930, a petition for locating, establishing, and constructing a drain, signed by 18 of the same parties, was filed and the first order of determination was made by defendant on April 15, 1930. The commissioner found the drain was practicable, necessary and conducive to public health, convenience, and welfare.
Thereupon, plaintiff filed a petition for writ of certiorari in the circuit court for Macomb county, in order to prevent the construction of a sewer by virtue of the foregoing proceedings. It claims that the proposed drain is to be a city sewer, and that the building of such a structure is not authorized by Act No. 316, Pub. Acts 1923, as amended by Act No. 365, Pub. Acts 1925, Act No. 331, Pub. Acts 1927, and Act No. 318, Pub. Acts 1929, which together constitute a codification of the drain laws of the State. The plaintiff further claims that the drainage district and the proposed drain constitute three separate drains, inasmuch as they run along three parallel streets.
Our attention is called to the fact that notwithstanding Act No. 318, Pub. Acts 1929, which amends what appears to be a complete codification of the drain law, nevertheless, at the very same session of the legislature, Act No. 158, Pub. Acts 1929, was en acted. It provided for the establishment of drainage districts by the county drain commissioner, etc. This law applies to agricultural lands, was approved May 20, 1929, and is inconsistent with the drain code as amended by Act No. 318, Pub. Acts 1929. For the purposes of this case, Act No. 158, Pub. Acts 1929, which applies strictly to agricultural lands, need not be considered. The lands which the proposed drain or sewer is to serve have been so cut up, subdivided, and sold to separate parties that they can no longer be considered agricultural lands. We call attention, however, to the inconsistency in these two laws and the need of further legislation to harmonize and clarify them.
We first consider whether the present drain code, as amended by Act No. 318, Pub. Acts 1929, permits the building of a sewer. It is admitted that a sewer is to be built. In the case of Clinton v. Spencer, 250 Mich. 135, we stated that under the drain code as it existed in 1927, there was no provision for,the building of a sewer, and that there was a difference between a drain and a sewer. In an effort to overcome this objection, Act No. 318, Pub. Acts 1929, was enacted. It amended the previous code by not only providing that the definition of the word “drain” should include a sewer, but it also amended the title of the former act so as to provide for the building of a “sewer” as well as a drain. Objection is made to the fact that, notwithstanding these amendments, the body of the act remains substantially as it formerly was and only makes provision for the construction of a drain and not a sewer, except as incidental to the building of a drain in places which require a covered sewer connection.
Our attention is called to the fact that the petitions for locating, establishing, ánd constructing a drain are signed by 18 owners of the 230 lots. The petition no more than gives jurisdiction to the officers in whom the law vests discretion. If a drain is to be built or an assessment levied, public hearings are held with notice. The owners of property subject to assessment may contest the necessity of such improvement, show cause why it should not be built or that it does not benefit them, and have certain other legal redress. These provisions provide for a rapid gwusi-legal procedure, and were originally adopted for the construction of an inexpensive surface water drain and not an expensive city sewer.
Further objection is made to the provisions of the act which require that the petition shall be signed by a number of freeholders in said drainage district whose lands would be liable to assessment and benefits, equal to one-half of the number of freeholders whose lands would be traversed by the drains applied for. As a matter of fact, in the case at bar, the only party whose land would be traversed is the plaintiff, a municipal corporation, which in the present proceedings is questioning the authority to build a sewer under the drain law. There being only one freeholder whose property will be traversed by the drain, it follows that any one lot owner whose property would be assessed can make the application, and thereupon it would become a discretionary matter with the commissioner and the board of determination to determine whether a drain or sewer be constructed or not. They might come to this determination, notwithstanding the fact that the vast majority who would be assessed for building the sewer were absolutely opposed tó the project. Twenty-one owners of the 230 lots in the subdivision made the application in the present instance. The township of Warren, whose property alone would be traversed, did not join in the application. If defendant is correct in Ms construction of the law, then, if the drainage district were larger and all of the property abutted a road owned by the township, a person owning but one lot, or less than 1% of all of the property proposed to be served, could make the application. This would institute proceedings which might result in the vast majority of the owners of the property being forced to pay an enormous assessment for a city sewer in front of their property, notwithstanding that it would be of no use, benefit, or value to them. The assessment as in Clinton v. Spencer, supra, might be so far out of proportion to the value of their lots or farms as to be confiscatory. There is much force in plaintiff’s contention. However, there is no doubt but that the act was amended so as to provide for the building of sewers. This is shown in the inclusion of the word “sewer” in the amendment to the title of the act, and by further stating in section 2 (chap. 1) of the act that the word “drain” shall include “any sewer or conduit composed of tile, brick, concrete or other material” (section 2, chap. 1, Act No. 318, Pub. Acts 1929).
No matter how unwise and impractical we personally might deem the legislation to be, we cannot set aside a law unless there are constitutional objections to it. None have been pointed out- to us. The fact that sewers at a cost of over $10,000,000 had been constructed under this law since the 1929 amendment, as is pointed out by defendant, would not overcome any constitutional' objections were they pointed out to us. The remedy for the defects in the law is with the legislature.
Further objection is made to the drain on account of the fact that it traverses three independent streets and runs into,Lorraine avenue, the main thoroughfare into which the three streets run. These three streets are parallel to and within a few hundred feet of one another. The whole scheme is a homogenous one. The laterals all run into the same sewer on Lorraine avenue. They are not independent and a mile from one another as was the case in Clinton v. Spencer, supra.
While we are much impressed with plaintiff’s contentions, we are constrained to uphold the judgment of the lower court dismissing plaintiff’s petition. This being a matter of public interest, neither party will recover costs.
Wiest, C. J., and Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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Butzel, J.
Defendant Gerhart Nickels, a building contractor, on the 27th day of April, 1928, entered into a contract with defendant Otto O. Hoppe, for the construction of a house in the city of Detroit, Michigan. Hoppe paid Nickels the sum of $500 as a first payment upon the execution of the contract. The photostatic copy of the contract attached to the record shows that the description of the lot was omitted. The contract was drawn by filling in a printed form, in which the space to be filled in with the description of the property was limited to a quarter of a line. Nickels testified that on account of this lack of space the description of the lot was not inserted, but that Hoppe told him that he had purchased lot No. 37 in the Burleigh Park subdivision of P.Cs. 126 and 127, Detroit, and, in reliance upon this statement, Nickels signed the contract and began work the following day. Hoppe claims that on April 27, 1928, he was not certain whether to purchase lot No. 37 aforesaid or another lot on which he had made a deposit, and for this reason the description was omitted from the contract. The fact that Hoppe was willing to make a deposit of $500 on the building contract, and the further corroborative testimony of one Samyn, an excavator, that he began to excavate lot No. 37 on the following day under a subcontract with Nickels, lend credence to Nickels’ testimony, notwithstanding the fact that the contract of purchase for the lot with one Teppert, the prior owner, is dated May 1, 1928, to which day the abstract was extended. The contract of purchase runs to Hoppe and his wife, defendant Evelyn Hoppe, to both of whom a deed from Teppert was executed a few days later. It is admitted that this deed was not recorded up to and including the time of the hearing in the lower court, and that the title, as far as the records in the register of deeds’ office show, remained in Teppert. Hoppe claims that he lent the abstract to Bickels so that Bickels could use it to check up the dimensions of the lot, but he also states that Bickels knew the lot and had first suggested its purchase to him. Evelyn Hoppe did not testify on account of a very serious illness, and is not an appellant in the present case; she has died since the case was heard in the lower court. On May 14, 1928, or thereabouts, Hoppe loaned Bickels the deed from Teppert in order to procure a building permit from the bureau of licenses and permits of the city of Detroit. This permit runs to defendant Otto C. Hoppe alone.
Plaintiffs furnished labor and materials for the construction of the house under subcontracts with Bickels. The first of such labor and materials was furnished after May 3, 1928, the day Hoppe and wife took title by unrecorded deed. It is conceded that the liens are regular in form and the amounts claimed thereunder are due claimants, provided valid liens can be created under subcontracts with a main contractor whose contract was signed only by the husband, although within a very few days after the execution of the contract, and prior to any labor or materials being contracted for from lien claimants, the title of the property became vested in the husband and wife as tenants by the entirety by an unrecorded deed. The testimony was taken before a court reporter and submitted to the circuit judge, who rendered a decree upholding the validity of the liens.
Appellant claims that the case is governed by section 2 of the mechanics’ lien law (section 14797, 3 Comp. Laws 1915), which provides that a lien accrues against property owned by husband and wife by the entirety when the contract for the labor and material is signed- by both of them. The lien claimants, on the other hand, claim that their liens are valid under the third section of the mechanics’ lien law (section 14798, 3 Comp. Laws 1915), which provides that in the event a person contracts for a new building on property to which he has no title, the lien claimant shall have a lien on the new building but not on the land. This court has held frequently that a mechanic’s lien is an unusual remedy, created by statute, and cannot be enlarged beyond the scope of the statute by equitable principles. On the other hand, after a lien has once attached, equitable principles will prevail to carry out the purposes of the statute. The circuit judge in his opinion held that the case came within the rule laid down in Holliday v. Mathewson, 146 Mich. 336, where a somewhat similar question arose and a lien on the building and not on the land was upheld, although the contract was signed solely by the husband for a building on property that was to be and did become the homestead of husband and wife.
In his opinion the trial judge attempted to distinguish the present case from Bauer v. Long, 147 Mich. 351 (118 Am. St. Rep. 552, 11 Ann. Cas. 86); Sheldon, Kamm & Co. v. Bremer, 166 Mich. 578, and Restrick Lumber Co. v. Wyrembolski, 164 Mich. 71. In Bauer v. Long, supra, the lien was held void because at the time the contract was made the title to the property was vested in husband and wife but the contract was not signed by both of them.
In Sheldon, Kamm & Co. v. Bremer, supra, the court was divided in its conclusions. In denying the right of a subcontractor to a lien on entirety property, when the contract was signed by the husband alone, the court in the majority opinion said:
‘ ‘ Complainant is a subcontractor. When it began to furnish material, the title to the land was held by Galbraith and his wife, by entireties. The original contract was made by Galbraith, who at the time had no title to the land. Assuming, which I am not willing to do, that the subcontractor may rely upon the state of the title at the time the original contractor began to furnish material or labor, complainant is not aided, because at that time the land was owned by entireties, and the improvement was begun upon land thus owned. If the court is to continue to hold, as it has heretofore held, that a mechanic’s lien must rest in strict right, and not upon mere equities, complainant is entitled to no relief. ’ ’
The property was owned by the entireties and the deed had been recorded before the general contractor began his work, conditions that do not exist in the ease at bar. In the minority opinion of the court,- sustaining the lien as far as the building was concerned, Mr. Justice Hooker, at page 585, stated as follows:
“The situation may be succinctly stated thus: The wife owned this land. Had she retained her title, a valid lien would have existed upon the house. Had she conveyed the title to the husband, the lien would have been good as to both land and house. Can she by conveying to him, creating and reserving an estate by entireties (which is practically what she did), exempt both house and land as to both of them? Had this been done with the intent to over reach the contractor, would it not be a fraud that would fail of its purpose, and, although lacking in moral turpitude, can it be permitted to accomplish such a wrong
The case of Restrick Lumber Co. v. Wyrembolski, supra, could not be so easily distinguished were it not for one important element which enters into the present case and does not exist in any of the cases just referred-to. If the contract was made with Hoppe at a time, as he claimed, whén he had no interest whatsoever in the property and after the first materials were furnished under the contract, then the title was in Teppert, and, under section 14798, 3 Comp. Laws 1915, the liens of. claimants would be good, unless voided by reason of the fact that subsequent to this time the deed ran to both Hoppe and wife. We believe, however, that lien claimants had the right to rely upon the title as it stood at the time that Rickels made his contract with Hoppe, unless by actual or constructive notice it was brought to their knowledge, or attention that Hoppe and wife had taken title by the entireties. The deed from. Teppert to Hoppe and wife for some reason not disclosed was never recorded. Under the circumstances, we believe that, inasmuch as there is absolutely no testimony showing that any of the lien claimants knew or had reason to know that the deed ran to Hoppe and wife by the entireties, they had a right to rely upon the record title, which showed Teppert as the owner, or else upon the showing that Hoppe was the owner of- the property as evidenced by Rickels’ testimony and the contract itself. In either event, they would therefore have a right to a lien on the building alone and not upon the. land. To hold otherwise' would open the door to fraud and enable a dishonest owner of property to avoid the provisions of the lien law. It would enable one, after entering into a contract, to deed property to himself and wife, withhold the deed from record, and then claim the defense that is made in the present case.
Error is claimed in admitting’ the testimony of Samyn, the excavator, who first testified as to the date when he began work by referring to the memorandum which he had taken from his books. He, however, stated that he had merely consulted his books to refresh his memory. It is not necessary for us to discuss this claim. Appellant did not demand the production of the books. Samyn swore positively that he remembered without looking at his books that he began excavating in the month of April, which was prior to the time Hoppe claims he purchased the property. .
The decree of the lower court is affirmed, with costs to plaintiff.
Wiest, C. J., and Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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] |
Potter, J.
Plaintiff filed a bill for divorce against defendant asking for a division of defendant’s property, maintenance, temporary alimony, solicitor’s fees, and an injunction. Defendant answered, denying all the material allegations of the bill of complaint. The case was heard on pleadings and proof, an opinion filed, and decree entered for plaintiff. Defendant appeals.
The disputed questions involve the value of the defendant’s property and the amount of permanent alimony, $2,500, awarded by the court to plaintiff. When, in 1919, plaintiff and defendant married, defendant had a farm of 80 acres and approximately $1,000 in money. After his marriage he built a new house on the farm. A barn on the premises burned. It is not seriously in dispute that at the time of the trial defendant owed $2,547.80 in addition to a $700 mortgage on the farm, or $3,247.80 in all. He had personal property of only nominal value. The' testimony as to the value of defendant’s farm took a wide range. The plaintiff and her witnesses testified it was worth nine thousand dollars. The defendant testified it was worth $4,200. Some witnesses were sworn who were familiar with the place and fair judges of its value. The supervisor of the township in which the farm is located placed a value of the farm at $4,200. A banker in Kent City near the farm estimated its value at $4,600. One of defendant’s neighbors called by him as a witness placed the value on the farm at $5,000, and another neighbor familiar with the farm, sworn by plaintiff, testified it was worth about $5,000.
We think the fair value of this farm as shown by the testimony is $5,000. This amount, léss $3,247.80, the amount of indebtedness shown to be outstanding against defendant and his property, leaves the net worth of defendant $1,752.20, one-half of which would be $876.10. Even though defendant has personal property of some value, we think the award of the trial court was in excess of the amount which should have been awarded plaintiff, in view of defendant’s equity in the property. The amount of alimony should be reduced to $1,000. A decree will be entered affirming the decree of the trial court except as to alimony, which will be fixed as indicated herein. No costs will be awarded.
Wiest, C. J., and Butzel, Clark, McDonald, Sharpe, North, and Fead, JJ., concurred. | [
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] |
Wiest, C. J.
These two cases involve the validity of drain proceedings and the right to recover special drain taxes paid under protest.
In the Watson Case plaintiff had judgment, and in the Crawford Case judgment passed for defendants. Plaintiff Watson recovered on the ground that the drain proceedings were invalid; that she was not a party participating and had no valid notice of the steps taken therein. Plaintiff Crawford was held estopped from having recovery by reason of the fact that he was one of the petitioners for the drain, was aware of all proceedings taken, and his remedy, if any, was review, in proper season, by certiorari, and he could not stand by, let the drain be constructed, pay his special tax under protest, and recover in an action at law.
The circuit judge filed opinions in both cases and we quote and adopt the same.
Watson Case:
“Plaintiff in this cause brought suit to recover the amount of a drain tax paid under protest.
“It appears from the evidence that many years before the date of filing the petition in the present drain proceedings, a drain known as the Wells drain had been constructed as an intercounty drain, partly in Bethany township, G-ratiot county, and partly in Jasper township, Midland county, and by subsequent proceedings the lands of plaintiff had been included in this drainage district.
“A petition bearing date July 1, 1919, was filed with the county drain commissioner of Gratiot county on December 5,1919, signed by Alf. F. Crawford and eight other freeholders, praying for the locating, establishing, deepening or tiling, and construction of a drain over the line of this old Wells drain.
“At the time this petition was filed, the drain law then in force (1 Comp. Laws 1915, § 4939, as amended by Act No. 162, Pub. Acts 1919), provided that whenever a drain of this character needed cleaning out, deepening, widening and extending a number of freeholders of either county, equal to at least 10 per cent, of the number of freeholders liable to assessments for benefits, who are owners of land which at the time of the construction was assessed therefor, might petition therefor.
“That statute also provided that in the case of the construction of a new drain, the petition therefor should be signed by not less than one-half of the freeholders whose lands are traversed by said drain.
“It is very doubtful whether the petition filed on December 5, 1919, complies with the provisions, either for a new drain or for the improvement of an old one. There is no recital in this petition that any of these signers are the owners of land which, at the time of the original construction of the Wells drain, was assessed therefor; nor does it say that the petitioners equal one-half the number of freeholders whose lands are traversed by such drain for which the petition is made. The second paragraph in the petition was not filled out at all, and must be disregarded as a part of the petition.
“It was early held that the petition for a drain, in order to confer jurisdiction on the commissioner to act, must show upon its face that it is signed by such petitioners as are required by the statute. Tinsman v. Probate Judge, 82 Mich. 562.
“In the case at bar the attorneys for the defendants insist that the petition can be upheld as one to improve the old Wells drain. The converse of this question came up in a recent case where the petition was not sufficient as a petition for improvement of an old drain, and it was sought to sustain it as a petition for a new drain, but the Supreme Court held, citing the Tinsman and other similar cases, that an application for a new drain in order to confer jurisdiction must show that the signers ‘are freeholders liable to assessment for benefits and in number equal to one-third of the number of freeholders whose lands are crossed by said drain.’ G. R. & I. R. Co. v. Round, 220 Mich. 475.
“In a later case this doctrine is reaffirmed, although in that case the court found from all the allegations in the petition that it contained the necessary recitals. White v. Palmer, 233 Mich. 32.
“Counsel for defendants claim that, inasmuch as the statute provides that the eligibility of the signers shall be determined by the records in the office of the register of deeds and elsewhere, that therefore the original application for the drain need not show on its face that the signers are qualified under the statute. This same contention was made in the Round, Case cited above, where proof was made in probate court that those who signed the application were sufficient in number and qualification to sustain the application. That case arose under the same statute under consideration here, but the court held against this contention, citing not only the Tinsmcm Case but many others, and pointing out that language used in Auditor General v. Bolt, 147 Mich. 283, apparently to the contrary, was dictum and unnecessary to that decision.
“No action was taken on this petition after its filing upon any notice as required by the statute until January 21,1925. An opinion signed by the commissioners of both counties had been filed February 10, 1921, but this was an ex parte proceeding taken without notice to anyone, and may be disregarded.
“On January 21,1925, nearly four years after the date of the filing of the petition, a public hearing was held, at which time a determination of necessity was made by the commissioners of the two counties. The notices for this meeting were published in one county on January 15,1925, and in the other on January 16, 1925. The statute then in force (Act No. 316, Pub. Acts 1923) required this notice to be published for not less than one week. Neither of the notices complied with this statute. The plaintiff in this case was a nonresident, and she was entitled to notice as required by law. The commissioners could retain jurisdiction to assess her lands in case they had not theretofore lost it, only by giving notice by publication as provided by this statute, and failing to give such notice, their subsequent proceedings must be held void as to her. She never had actual notice, and never waived any of these jurisdictional requirements. Wright v. Drain Commr., 44 Mich. 557.
“In my judgment the delay of nearly four years is fatal also. In the Wright Case it is intimated that delay of nearly a year without excuse might be fatal. In a later case, delay of two years was excused where showing was made of a large amount of work on hand. Corning v. Potter, 171 Mich. 691.
“In two other cases reasonable delays were excused upon proper showing. Ranney Refrigerator Co. v. Smith, 157 Mich. 302; Chase v. Porter, 166 Mich. 21.
“In the case at bar no reasonable excuse has been shown for the long delay. Certainly there must come a time when a drain commissioner cannot lawfully act on an old petition for a drain, and I think that this is such a case.
“For all the reasons pointed out, I am obliged, to hold that plaintiff is entitled to recover back the amount she paid under protest as drain taxes on this drain, with lawful interest * * * from the date of payment; and judgment may be entered in her favor therefor.”
Crawford Case:
“This is a companion case to Watson v. Fox, decided herewith, in which plaintiff is held entitled to recover back drain taxes paid under protest.
“In the Watson Case the plaintiff was a nonresident, and never waived any of the jurisdictional defects in the construction of this drain; but the plaintiff in this case was one of the signers of the original petition for the drain, and as late as July 18, 1925, voluntarily released right of way. He was active in helping carry on the improvement, and by standing by and seeing this work completed and the lands of his neighbors assessed, and not having taken any steps to review the proceedings by certiorari or otherwise until he brought this action, he is estopped from contesting the validity of the drain proceedings in this case.”
The Watson Case is affirmed, with costs to plaintiff, and the Crawford Case is affirmed, with costs to defendants.
Btjtzel, Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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Clark, J.
Defendant for several years was chief of police of the city of Ypsilanti. He caused vouchers to be prepared, approved, ordered paid, and checks issued to and in the name of certain persons believed by the disbursing officers of the city to be police officers. A large number of the checks were paid. Defendant admitted that from time to time he indorsed the several names of the several payees on the checks and procured the money from the bank. There was no city record of the appointment of such police officers, no oath of office filed by any of them. Defendant’s contention is that they were “undercover” men, and for that reason he cashed the checks and obtained the money for them and for that reason, too, there was no record of their appointment. The information relates to a certain check of April 17th for $75 issued to Chas. Hall, and charges that defendant procured the check to be issued and obtained the check and the money by •false pretenses, and that Hall was not employed by the city. Defendant, convicted and sentenced, brings error.
Complaint is made of argument of the prosecuting attorney as prejudicial. No objection or exception was taken at the time, and no ruling or instruction sought. We therefore cannot find it reversible error, although it may be prejudicial. People v. Korn, 217 Mich. 170.
One objection to such argument properly saved for review relates to the following:
“If you acquit John Connors, the people of the State of Michigan have no recourse; the people of the State of Michigan have no appeal. If you made a. mistake the people cannot complain. But on the other hand, members of the jury, to convict John Connors and you have made a mistake, he has the right to appeal.”
Thereupon, on objection by defendant’s counsel, the court said:
“I presume, inasmuch as there has been an objection made, although the question has been largely covered by my instructions to the jury, I would say and I ought to say to the jury that the defendant in this case, if granted the right appeal by the Supreme Court may on any errors that may have been committed in the trial of this cause. That right has to be granted him, of course, upon application to the Supreme Court. That is the practice at this time. I didn’t get just exactly what Mr. Stuhrberg said.”
And the court referred to the matter again in the charge. We think the prejudicial effect of the argument cured by the instructions of the court.
Error is assigned on the instruction relative to evidence of good character adduced by defendant. The instruction as a whole, seemingly based on the criticized case of People v. Mead, 50 Mich. 228 (see People v. Best, 218 Mich. 141; note 10 A. L. R. 58), and People v. Garbutt, 17 Mich. 9 (97 Am. Dec. 162), is not assailed, but the assignment as briefed is substantially on the following excerpt: “This testimony is not proof of the guilt or innocence of the respondent.” The expression may not be fortunate, but it is not technically incorrect. Proof is the effect of evidence. It is the sufficient reason for assenting to a proposition, the establishment of a fact by evidence. People v. Bowers, 2 Cal. Unrep. Cas. 878 (18 Pac. 660); Orth v. Railway Co., 47 Minn. 384 (50 N. W. 363); 6 Words and Phrases (1st Ser.), p. 5684. It is apparent that character evidence is not proof of guilt or innocence. The court gave it its proper significance, quoting from the instruction:
“You are instructed that good character may not only raise a doubt of guilt which would not.otherwise exist, but it may bring conviction of innocence. In every criminal trial, it is a fact which the defendant is at liberty to put in evidence, and being in, the jury have a right to give it such weight as they think it is entitled to.”
Complaint is also made of the following excerpt from the charge:
“If you find from the evidence that the said John F. Connors did procure from the city of Ypsilanti on April 17th, A. D. 1928, the sum of $75, then it is your duty to render a verdict of guilty as charged”—
that it charged defendant out of court, and ignored his admission that he got the money and his defense that he got it for his said undercover men. Reading the charge as a whole, we think it apparent the court was here speaking of defendant’s getting the money for himself, and, in view of the defense made, we think the jury were not misled.
Much of the record is taken by a motion for change of venue, with affidavits and articles from local newspapers. The motion denied was renewed, supplemented by extensive examination of jurors on voir Aire. The denial of the renewed motion is urged as error. The gist of the motion is that such great publicity had been given the case by local newspapers that a fair jury could not be obtained. In denying the motion the court observed:
“This is a day of large publicity. The papers have the news of the day. Every home in Washtenaw county has á paper. Eeading the papers does not disqualify the juror from sitting. It is a question whether or not he can remove that from his mind and accept the case and the law. Every criminal case is discussed in the papers. A glance at the daily papers will show that. It is discussed and made a topic of importance that can’t be set aside”—
and said, in effect, that defendant could have and would have a fair trial in the county. Space forbids setting out further particulars of the matter. We are not persuaded the court abused his discretion in denying the motion (People v. Rich, 237 Mich. 481), and in this regard it may be said that on this record a jury could not well have returned any verdict except that of guilty. Eemaining questions have been considered, and, as it appears there has been no miscarriage of justice, we think the judgement should be affirmed, agreeable to the code of criminal procedure, chapter 9, § 26, Act No. 175, Pub. Acts 1927. Miskiewics v. Smolenski, 249 Mich. 63.
Affirmed.
Btjtzel, McDonald, and Sharpe, JJ., concurred. Wiest, C. J., and Potter, North, and Fead, JJ., concurred in the result. | [
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Wiest, C. J.
Plaintiff sold defendant a cement mixer, manufactured by the Archer Iron Works of. Chicago, and brought this suit to recover the balance of the purchase price. Defendant set up a warranty, breach thereof and rescission. The court below found right to rescind, if any, lost by user of the mixer, and entered judgment for plaintiff. Defendant reviews by writ of error, having saved, by proper procedure, right to have this court pass upon the findings of fact and conclusions of law.
Defendant claimed an express warranty that the mixer would work properly, and, if it did not, plaintiff would take it back and refund payments made. Plaintiff dealt in equipment for contractors, did not handle the mixer defendant wanted, but, at defendant’s request, procured it for him and claimed that it was “sold on guarantee it will work properly and in accordance with recommendations made by the Archer Iron Works,” of Chicago. This appears reasonable, but was in sharp conflict with defendant’s version. The recommendations do not appear in the record. At defendant’s request the mixer was mounted upon an automobile chassis and delivered to defendant in February or March of 1925. Upon trial the mixer did not operate to defendant’s satisfaction, and, with some cause for doing so, he complained to plaintiff. Parts of the.mixer were sent to Chicago for repair and repairs were also made in Detroit.
Defendant claimed that he kept the mixer and endeavored to make it work properly at plaintiff’s earnest request, but finally, in September, 1925, he dismantled the mixer from the chassis and notified plaintiff to take it and was willing to lose upward of $600 he had paid if the balance of the contract price was canceled. Plaintiff refused to accept the mixer.
Under defendant’s version he had a right, at one time, to rescind. That right survived mutual efforts to repair defects, but called for prompt exercise after plaintiff refused further co-operation, and was lost by delay and recognition of obligation to pay, and by the payment of $400, after defendant was convinced that the mixer was no good. June 8, 1925, defendant paid $400 on the mixer. He was then aware of all the claimed defects, but says that plaintiff pressed payment and assured him that the money would be returned if the mixer did not work.
The circuit judge found there was no breach of warranty established, and “that if there was it was ' waived by defendant in continuing to use and operate the machine after he had learned of such breach.” The evidence sustains the latter finding.
Defendant relies upon rescission, and makes no claim for damages for breach of warranty.
The judgment is affirmed, with costs to' plaintiff.
Btttzel, Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred, | [
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] |
McDonald, J.
The defendant was convicted on a .charge of receiving stolen goods knowing that they had been stolen.
The people’s testimony shows that he bought a quantity of tobacco which had been stolen by two men who testified they told him they stole it from the warehouse of Lee & Cady at Caro, Michigan. He admitted receiving the tobacco, but denied knowledge of the theft.
The assignments of error relate to the refusal of the court to submit defendant’s requests to charge, particularly one which reads as follows:
“The testimony of the respondent’s good character, of his truth and veracity, may be sufficient to raise a reasonable doubt in your minds of his guilt. If it does, you should acquit him.”
In view of the fact that no character witnesses were sworn as to the defendant’s reputation for hon esty and integrity, this request was not pertinent and was properly refused. There was testimony as to his general reputation for truth and veracity but, as that trait, of character was not involved in the crime charged, such testimony went to sustain his credibility, and not to the probability of guilt or innocence. It could not be considered as raising a reasonable doubt.
Other assignments of error are not argued in defendant’s brief, and therefore we do not discuss them.
The judgment of conviction is affirmed.
Wiest, C. J., and Btjtzel, Clark, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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McDonald, J.
After conviction and sentence in the recorder’s court for the city of Detroit of one John Figgins on a charge of robbery, not armed, the prosecuting attorney filed a supplemental information charging a prior conviction of a similar offense. When arraigned on this information, the defendant stood mute, and a plea of not guilty was entered by order of the court. The defendant’s counsel then demanded a preliminary examination, which was allowed. This court has granted an order to show cause why the writ of mandamus should not issue to compel the trial judge to vacate his order.
The sole question involves the right of one after cónviction for felony to a preliminary examination before a magistrate on the filing of a supplemental information charging former conviction of a similar offense.
Prior to the criminal code, Act No. 175, Pub. Acts 1927, there was no provision in the law for an independent trial to determine the fact of a prior conviction. It was tried out in the trial for the subsequent offense. It was necessary to charge it in the complaint and warrant and prove it on the examination and trial unless examination was waived. Otherwise the court was without jurisdiction to consider it in imposing sentence. But section 13, chapter 9, of the code, authorizes an independent trial of that .question on the filing of a supplemental information after conviction and sentence for the subsequent offense. It makes no provision for a preliminary examination or for other proceedings applicable to the trial of one charged with crime. It merely provides a procedure after conviction for the determination of a fact which the court is required to consider in imposing sentence. The purpose of an examination is to determine if a crime has been committed and if there is probable cause for believing the accused party committed it. If no crime is 'charged, an examination is not required. In People v. Palm, 245 Mich. 396, it was held that a supplemental information, filed after conviction, alleging a prior conviction, does not charge any crime.
After considering the applicable section of the criminal code, it is our conclusion that the accused is not entitled to a preliminary examination. If necessary, the writ of mandamus will issue requiring the defendant to vacate the order entered.
Wiest, C. J., and Butzel, Clark, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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Wiest, C. J.
For many years, the statute relative to the assessment, levy, and collection of taxes has provided:
“The following real property shall be exempt from taxation: * # *
“Lands owned by any * * * school district and buildings thereon, used for public purposes.” 1 Comp. Laws 1915, § 4001. Re-enacted in Act No. 331, Pub. Acts 1919, Act No. 55, Pub. Acts 1925, and Act No. 118, Pub. Acts 1927.
In 1925, plaintiff, by condemnation, obtained title to a tract of land in the defendant village, upon which were dwelling houses, intending to use the land for school purposes. At the time the suit at bar was brought the property had not been used for such purposes, and the dwelling houses thereon had been let for private residence purposes at substantial rentals. In 1927, the property was assessed for village taxes. Plaintiff asserted exemption under the statute, and, after levy of the tax, paid the same under protest, and brought this suit to recover the sum paid. Upon motion of defendants, the circuit court held the tax valid, and dismissed the suit.
The record does not disclose the date of the assessment, and we must assume, for the purpose of the legal question involved, that the tax lien attached before Act No. 319, Acts 1927, which consolidated the school laws and exempted the property of school districts from taxation, became effective.
The exemption of property from taxation, made contingent upon use for public purposes, does not extend to a future intended use hut is limited to present use.
The rule is stated in 2 Cooley on Taxation (4th Ed.), § 687:
“An intention to use property at some uncertain time in the future, for purposes which will render it exempt from taxation under the laws of the State, does not preclude its taxation before actually used for the purpose warranting an exemption. If the use determines the right to exemption, it is the present use and not the intended use in the future which governs.”
The intent to use the property for school purposes does not meet the exemption condition of being presently used for public purposes.
The language of the statute is plain, and requires no construction or citation of authority.
In the companion case between these parties, involving taxation subsequent to 1927, and after Act No. 319, Pub. Acts 1927, became effective, we hold, in an opinion filed herewith (Board of Education v. Blondell, post, 528), that by virtue of such act the property was no longer subject to taxation.
The judgment is affirmed, with costs to defendants.
Butzel, Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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Potter, J.
Frank F. Glerum and James L. Spencer were co-partners operating a private bank at Linden, Michigan. Glerum was agent for the Home Insurance Company. Spencer was agent of insurance companies. The partnership itself was agent of insurance companies. The partnership carried on a general insurance business, issued policies, and collected premiums thereon. The bank became insolvent; a bill was filed to wind up its affairs. Michael H. McHugh was appointed receiver. The Home Insurance Company, by its State agent, filed an amended petition in the circuit. court for the county of Genesee in chancery setting up that it was engaged in the insurance business, Glerum was one of its agents; McHugh was receiver of the bank; Glerum wrote policies and collected premiums aggregating $164.54; the premiums belonged to the insurance company; Glerum received the same in a fiduciary capacity and held the same in trust; such funds constituting premiums collected by Glerum were deposited in the bank; such moneys so deposited never became the property of the bank but remained the property of petitioner; the bank held the same in a fiduciary capacity as trustee for petitioner; and such deposits were not subject to the claims of general creditors of the bank. The receiver took possession of the assets of the bank subject to the rights of the insurance company, and the insurance company asked for a hearing upon the petition and that McHugh as receiver be directed to pay forthwith the sum of $164.54 to the insurance company. Upon hearing of the petition the court entered an order denying the same, and the insurance company appeals.
There is no dispute about the facts. We think, under the statute, an insurance agent receives payment of premiums in a fiduciary capacity.
“Any money, substitute for money or thing of value whatsoever, received by any agent, solicitor or broker as premium or return premium, on or under any policy of insurance or application there for, shall be deemed to have been received by such agent, solicitor or broker in his fiduciary capacity.” Section 10, subdiv. 3, chap. 4, pt. 2, Act No. 256, Pub. Acts 1917. Comp. Laws Supp. 1922, § 9100 (118).
The bank, under the circumstances, must be held to have received the premiums from the insurance agent for deposit with knowledge of their trust character. Central National Bank v. Connecticut Mut. Insurance Co., 104 U. S. 54; Union Stock Yards Bank v. Gillespie, 137 U. S. 411 (11 Sup. Ct. 118).
“The case of National Bank v. Insurance Company, 104 U. S. 54, is in point. He kept an account with the bank — the account was entered on the bank books with him as general agent. As agent of the insurance company he collected, and it was his duty to remit, the premiums. In the course of his dealings with the bank he borrowed money on his personal obligation.. Finally the bank sought to appropriate his deposits to the payment of this debt. The insurance company filed its bill in equity to recover the amount of those deposits as equitably belonging to it. The fact that they were premiums received for the insurance company was shown. It was held that, under the circumstances, the bank received them with knowledge that, though the legal title to the moneys was in Dillon, the beneficial ownership was in the insurance company, and the decree in favor of the insurance company was therefore sustained.” Unión Stock Yards Bank v. Gillespie, supra.
The receiver for the bank stands in relation to this deposit in the same position as did the bank.
“Trust property or property substituted for it may be recovered from the trustee, and all persons having notice of the trust. If the fund can be distinctly traced, the court will follow it and fasten the purpose of the trust upon it, unless the rights of innocent third parties have intervened. As against the trustee, the mingling of trust funds in a private deposit will not necessarily prevent their identification. If equity can follow the fund into the deposit, and it is still there, that is sufficient. In the absence of facts showing the contrary, the presumption is that money drawn out of a mixed deposit by the trustee for his own use is taken from the portion of the fund that is his own, whatever the relative dates of the deposits. The better opinion is that, even as to creditors, the mixing of trust funds with private funds in a general deposit does not obliterate the trust. Carley v. Graves, 85 Mich. 483 (24 Am. St. Rep. 99); Cavin v. Gleason, 105 N. Y. 256, 262 (11 N. E. 504); Board of Fire & Water Com’rs of Marquette v. Wilkinson, 119 Mich. 655 (44 L. R. A. 493); 2 Perry on Trusts (6th Ed.), § 828.” Gillen v. Wakefield State Bank, 246 Mich. 158.
The decree of the trial court will be reversed, and a decree entered for petitioner, with costs.
Wiest, C. J., and Butzel, Clark, McDonald, Sharpe, North, and Fead, JJ., concurred. | [
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McDonald, J.
The plaintiff brought suit to recover for loss of household goods by fire on a policy covering the goods and building in which they were located. By indorsement, the defendant permitted the removal of the goods. Subsequently, they were returned to the original location without indorsement. For that reason the company denied liability for the loss. The loss on the building, which was also destroyed by the fire, was adjusted and paid. On the trial, at the close of plaintiff’s case, both parties moved for a directed verdict. The court directed a verdict in favor of the defendant. The plaintiff has brought error.
The first question to be determined is whether the defendant was relieved of liability for loss because the goods were changed to the original location without indorsement on the policy permitting such change.
Before the goods were returned to the original location, the plaintiff called at the office of Mrs. Osborn, the defendant’s agent who wrote the policy, informed her of the contemplated change, and asked for an indorsement on the policy. She consented to it, but advised him that it would be safer to wait until he had actually moved. After removal, he notified her of the fact, and supposed she made the indorsement. The fire occurred about a year later. Because the indorsement was not made, the defendant denied liability. In seeking to avoid liability because its agent neglected to do what in duty she was bound to do, the company has taken an unconscionable position. The law will not permit it. When notified of the removal of the goods, it was her duty either to make the indorsement or to cancel the policy and return the unearned premium. Having done neither, the company must be held to have consented to the change. Pollock v. Insurance Co., 127 Mich. 460; Schlee v. Insurance Co., 238 Mich. 112, and cases cited.
The second reason advanced by the defendant for relieving itself of liability is that there was a settlement in writing signed by the plaintiff, in which he accepted $600 for loss under the policy and agreed that he would not make any further demands. The applicable portion of this agreement reads as follows :
“The actual cash value of the dwelling thus situated and described in aforesaid policy at the time of fire was $1090.11 and the actual loss and damage by said fire was $1090.11 as shown specifically in annexed schedules and insured claims under this policy $600, payment of which insured agrees to and will accept in full satisfaction and demand no more.”
The main purpose of the agreement was to settle the loss on the building. There was no dispute between the parties as to the amount. It was" $600. The insured was claiming a loss of $700 on the household goods, but, in the settlement, he was paid nothing on that loss. The agreement was prepared by the company and forwarded to the agent, with instructions to secure the plaintiff’s signature. It did not expressly refer to the household goods, and the plaintiff wanted to be sure that it did not include that loss, so he inquired of Mrs. Osborn:
“I asked her when I signed this paper if it would make any difference about collecting on the household goods, and she said, ‘No, it was a separate policy.’ And she showed me that on the note there was two policy numbers and one was the household goods and the other was the dwelling. I mean she showed me in her records two separate policy numbers just like those numbers.”
As a matter of fact, the insured held two policies issued by defendant company. One was a tornado policy, and the other a fire insurance policy covering the building and household goods. Both were written by the agent, Mrs. Osborn. She was also agent for the Federal Land Bank from which she had secured a loan on the plaintiff’s farm. When she received the policies, she forwarded them to the Federal Land Bank. The insured never had possession of them, so had no means of verifying her statement that the household goods were covered in a separate policy. Mrs. Osborn was not called as a witness. There is no evidence in denial of the plaintiff’s testimony that she induced him to sign the settlement agreement by falsely representing that it referred to a policy which did not cover the household goods. Her representations were not, as defendant claims, representations as to the legal effect of the agreement. They were representations of facts. They were relied on by the plaintiff and were false. Therefore he is not bound by the agreement.
There remains to be considered the effect of the act of both parties in moving for a directed verdict. It is rightly claimed by the defendant that, if there was substantial evidence to support the court’s finding of fact and he was right on the questions of law, the judgment must be affirmed. In his direction of a verdict for the defendant, the court very briefly said:
“Gentlemen of the jury, as the court sees it, this ease resolves itself into a proposition of law, and therefore there will be no question of fact left to your consideration. Without leaving your seats, by order and direction .of the court, you will find a verdict of ‘No cause for action,’ in favor of the defendant.”'
In this brief statement we are not informed that the court found against the plaintiff on the facts. It rather indicates that, conceding the facts to be as plaintiff claimed, he could not recover as a matter of law. Outside of the plaintiff’s testimony, there was nothing to raise an issue of fact. His testimony was undisputed. If the court found against him on the facts, his finding is not supported by any evidence. On what proposition of law he disposed of the case, we are not informed, but, whatever it was, he was wrong. The law, as- applied to the un disputed facts, does not support the judgment. He should have directed a verdict for the plaintiff.
The judgment is reversed. The cause is remanded for the entry of a judgment for the plaintiff in the sum of $700, the amount of his loss as shown by the record. The plaintiff will have costs.
Wiest, C. J., and Butzel, Clark, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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BROOKE, J.
(after stating the facts). It is conceded by counsel for appellants that:
“Dr. Wedgewood’s liability grew out of conditions which section 15, part 3, does not cover. It is our contention, however, that the doctrine of election as followed generally is applicable to this case and that section 15, of part 3, may be useful as showing the general policy of the law as intended to be applied to workmen’s compensation cases.”
In this connection it is urged that in the suit against Dr. Wedgewood claimant took the position that his present condition of total disability is due solely to the alleged malpractice of Dr. Wedgewood; that.he fraudulently abstained from communicating the fact that he received upwards of $2,000 from Dr. Wedgewood to the officers of the State accident fund, and continued to receive from that fund his weekly payment of $6.49; that the position assumed by claimant at this time is of necessity inconsistent with the one taken by him in his suit against Dr. Wedgewood and that having elected to look to Dr. Wedgewood he should therefore now be held to have abandoned any other source of compensation. In this connection it is said:
“When claimant received $2,125 in payment for his injuries, did he not by that act receive full and complete compensation for the then condition of his arm \ If he did he most surely could not expect compensation from the State accident fund, as he had been fully compensated by:
“(a) The State accident fund for the original injury and by
“(b) Dr. Wedgewood for the injury caused by the malpractice.
“If this view is correct, then there should be no further compensation paid. In fact, the State acci dent fund should have an action back against Smith for that portion of the compensation which they have paid him since the institution of the suit for malpractice.”
In support of the position taken, counsel cite the case of Ruth v. Witherspoon-Englar Co., 98 Kan. 179 (L. R. A. 1916E, 1201, 157 Pac. 403), the headnote of which follows:
“In an action under the workmen’s compensation act a recovery can be had only upon the basis of disability to labor resulting from the injury received in the course of employment, without the intervention of an independent cause, the separate consequences of which admit of definite ascertainment. It cannot be augmented by the fact that the disabling effects of the injury are increased or prolonged by incompetent or negligent surgical treatment, even where the employer is responsible therefor.”
See, also, Della Rocca v. Stanley Jones & Co., Ct. of Appeal, England, Jan. 21, 1914, W. C. & Ins. Rep. 34; annotated in 6 Neg. & C. C. A. 624, and Humber Towing Co. v. Barclay, 5 B. W. C. C. 142 (1911). The difficulty in applying the principle announced in the cases cited to the case at bar lies in the fact that here upon the hearing on the petition there was testimony of physicians to the effect that claimant’s present condition of total disability:
“was entirely due to the original injury in 1915 and that such injury was the proximate cause of his. present condition.”
Another physician testified:
“I would consider Mr. Smith totally disabled, and that this condition of total disability is due in large part to the original injury in April, 1917 (1915?). Approximately the original injury was the cause of his resulting present physical condition. I would state that even if this doctor who treated this arm in the summer of 1915 had done the best that could ordi narily be done by a careful, skilled, prudent, physician this arm would still, or might reasonably still, at the present time, be in a condition resulting in total disability.”
There was other medical testimony before the board from which, if believed by the board, it would appear that by submitting to an operation or operations the condition of-plaintiffs arm would be greatly improved and that thereby he might regain from 25 to 50 per cent, of its normal use. This court, however, does not concern itself with the determination of questions of fact when there is any competent testimony sup-d porting the conclusions reached by the board. In the light of the statements of the physicians quoted above it can hardly be said that there was no testimony in the case warranting the board in concluding that the claimant’s present condition of total disability is due to the original accident.
Not complicated, therefore, with claimant’s action against Dr. Wedgewood, the order of the board denying the petition should be affirmed. Does the fact that claimant started suit against Dr. Wedgewood by declaration in which he averred that his condition of total disability was the result of malpractice and not of the original accident, estop him from now asserting that such condition is due to the original injury? We are of opinion that the board was correct in holding that the averments of the declaration were not conclusive as admissions against the claimant, but might be considered by the board as evidence in connection with all the other evidence in the case. Ruth v. Witherspoon-Englar Co., supra.
The only question remaining is whether defendant State accident fund should have credit for the $2,125 received by the claimant from Dr. Wedgewood in reduction of the amount due from it to claimant under the terms of the statute. Our law makes no provision for- the application of sums received by a claimant from a third party not connected with the original accident in reduction of the master’s liability under the act. If such an application should be made it is a matter for legislative action rather than judicial interpretation.
The order of the board stands affirmed.
Ostrander, C. J., and Bird, Moore, Sthere, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Steere, J.
On November 2, 1899, defendants Andrew J. Harnden and Mary, his wife, conveyed to defendant George Hamden by warranty deed the S. W. % of the S. E. % of section 35, town 10 north, of range 14 east, in the county of Sanilac, for an expressed consideration of one dollar, with the following reservation:
“It being especially provided that the said parties of the first part hereby reserve the entire use, profit, possession and control of the said premises for and during their natural lives, jointly, and also during the life of the survivor. It is also especially provided and agreed that the said party of the second part shall pay all taxes and assessments against said premises; also agreed that the said party of the second part shall clear said premises from all existing incumbrances and shall keep the same clear with the exception of a mortgage of $250 to be made and fully paid according to its terms by the said party of the second part.”
On the same day they conveyed to Eber Harnden by warranty deed the southeast quarter of the northeast quarter of the same section for an expressed consideration of one dollar with the same reservations and recitals above quoted. These instruments were duly recorded in the office of the register of deeds of Sanilac county.
Andrew J. Harnden is the father of the grantees George and Eber Harnden. Mary J. Harnden, whom he married not very long before the date of these conveyances, is his second wife and their stepmother. He was at that time about 60 years of age, and she about 40. The land conveyed as stated was for many years owned, cultivated and occupied by Andrew J. Harnden with his wife and family, until his children were grown and his home broken up by the death of his then wife. He thereafter lived at the old home with his son George until his second marriage, in 1899, when he went to live with his present wife, who then ran a store and had a house in the village of Yale, some ten miles distant from his old home farm, which George occupied and worked.
What, if any, occupation Andrew J. Harnden followed or what other resources he had after 1899 does not appear, but in September, 1915, he gave a promissory note for $75, due September 1, 1916, to William McIntyre of Roseburg, which was sold to plaintiff before maturity, and on April 1, 1916, he gave a note to the Yale State Bank for $22.60, due six months after date, in renewal of a former note, which was sold to plaintiff prior to April 16, 1917.
On April 16, 1917, plaintiff brought suit upon those notes in a justice’s court of St. Clair county against defendant Andrew J. Harnden, recovering a judgment of $106.83, with $3 costs, and on April 26, 1917, removed the judgment by certified transcript to the circuit court of St.. Clair county. Execution was then issued out of that court, on the transcript of judgment, running to the sheriff of Sanilac county, who, on the 80th day of April, 1917, levied on the right, title, and interest of Andrew J. Harnden in and to the 80 acres above described, recording said levy in the office of the register of deeds of Sanilac county.
Certain garnishment proceedings were also had in the circuit court of St. Clair county in which it is claimed to have been shown that the interest of defendants Andrew J. Harnden and Mary, his wife, in said premises, though evidenced by a life lease reserved to them in the deeds, was in fact and effect by understanding of the parties only a mortgage by George Harnden to secure the performance of a contract to support them for life; whereupon said levy was discharged by the sheriff of Sanilac county and the execution returned nulla bona, as was also an execution issued to the sheriff of St. Clair county in August, 1917.
On October 6, 1917, plaintiff filed this bill of complaint in the circuit court of St. Clair county as a judgment creditor’s bill to reach the proceeds from defendant Andrew J. Hamden’s, interest in the Sanilac county land. Defendants duly answered issuably, claiming amongst other things that whatever rights in said land were reserved in the deeds of 1899 were joint between Andrew J. Hamden and Mary J. Hamden, and therefore not holden for the debts of either of them separately.
The relief prayed for in plaintiff’s bill is an accounting between Andrew J. Harnden and wife and George Harnden, that George Harnden be decreed to pay the judgment and costs to plaintiff if the sum he is shown to owe his father and stepmother be found sufficient; and if not that he be decreed a trustee for plaintiff’s benefit of any future sums which may become due from him to his father and wife until the accumula tion thereof is sufficient to pay the judgment, and that he be restrained in the meantime lrom making any payments to Andrew J. Harnden and wife, or either of them, until such judgment is satisfied.
Upon the hearing a transcript of the testimony of George Harnden as garnishee defendant in an action by plaintiff - against his father to recover the debt involved here was introduced in evidence against the objection of defendant Mary J. Harnden that it was taken in proceedings to which she was not a party nor in any way interested. The transcript showed that he then testified he lived on the 40 acres deeded to him as above described and there never was any written agreement as to his occupation and use of the farm, but when he went on the place and took charge of both 40’s his father told him to “go on and work the place and all I want is a living, you can see I am taken care of”; that at first, while his father was living on the farm before he married again, the arrangement did not of course apply to his second wife. Of the situation after that event he said:
“I have always worked both 40’s and gave my father and mother their living off them. I agreed to do that at the time the deed was signed in 1899. I have kept no record of what I have paid my father during those years. I don’t think it would be $500 worth of stuff. * * * I never kept any account of it. No bargain was ever made as to what I was to let him have. * * * I am not supposed to be paying rent for the land. I took title to the property and am supporting my father and mother for ft. I am to keep them as long as they live.”
He also said:
“My father gets his living from me in lieu of rent. * * * I pay him in everything, some money and some provisions.”
His conclusions as to the nature of their relations, on suggestive interrogation of counsel, were as follows :
“Q. Then the reservation of the use, operation, possession and control of each of these 40’s reserved in the deed — that has always been regarded by you as security for his living off the farm, is that right?
“A. Yes, I have always ever since I have been on the place and I expect I will yet, if I went off the place I would keep him.”
The records of the Yale State Bank, in which Andrew J. Harnden had a small account at times, show that during the years 1914-15 a total of $283.64 was deposited to his credit by checks from George Harnden.
In dismissing plaintiff’s bill the trial court said in part:
“If the situation is such that defendants Andrew J. and wife have lost their life estate and that the only interest they now have in the land is in the nature of a lien or mortgage to secure their support, such interest would not be subject to execution, levy and sale. Chandler v. Parsons, 100 Mich. 313. Plaintiff’s attorney contends that this is the situation. But I fail to understand how the legal relation that the defendants bore to one another under the deed of November 2, 1899, could be varied or altered by parol or by a long continued custom. After the deed was made and delivered, defendant George was the owner of the reversion, and the father and stepmother, the other defendants, were the owners of the life estate. A life estate is a freehold and cannot be conveyed by parol or in any other way than by a written instrument. Defendants Andrew J. and wife are now the owners of a life interest in the land in question, as much as they were when the deed was made and delivered.”
Plaintiff’s counsel say in their brief:
“In this we claim he is in error. It must be borne in mind that at the 'time these transfers were made they were made with the intention on the part of Andrew J. Harnden and wife to part with the title to said land for all time, reserving a life lease, which as we have pointed out above, was nothing more or less than a mortgage to secure the performance of the agreement on the part of defendant George Harnden to support them for life. They- did not own a life estate absolute, it was only operative in case the defendant George Harnden failed to support them. * * * It is the same proposition as a deed absolute in form, being given as security for the payment of money or the performance of another obligation. In case of the payment of the money, or the performance of the obligation, parol evidence is always admissible to show the true condition and to effect a redemption.”
The basic infirmity of this proposition is that George Harnden never gave his father and wife a deed absolute in form, or any other instrument in writing as security for payment of money, or performance of any other obligation. They conveyed to him and his brother, by separate warranty deeds, each a 40 acres of land, reserving to themselves a life estate, “jointly, and also during the life of the survivor,” imposing upon each, separately, as to his 40 acres, payment of taxes, a $250 mortgage, or his half of a $500 mortgage upon the 80 acres, and an obligation to keep the same clear from incumbrances. Each son had a fee title to his property, subject to an incumbrance of $250, which he was obligated to pay, and burdened by a life estate under which Andrew J. Harnden and wife had the right of possession, use, and control of the property during their lives. Whatever further arrangement they made with George Harnden under which he took possession of and worked both 40’s rests in parol. Whether it be called a trust or power over or concerning the land, or an estate or interest in lands or a lease exceeding a year, as the testimony seems to indicate, it was void under the statute of frauds (section 11975, 3 Comp. Laws 1915), or at most only good as a lease tor a year with unliquidated rent contingent on the necessities of the parents for that year. At the end of the year George could quit or they could dispossess him, regardless of how faithfully he had performed during the year.
This is a bill in equity filed in St. Clair county claiming under a parol agreement a denied construction of the reservation of a life estate in a warranty deed to lands located in Sanilac county, by which it is contended that, under conditions shown, the only interest Andrew J. Harnden and wife have in the land is their support for life “analogous to an annuity,” as to which an accounting is prayed for, a trusteeship in George Harnden asked, and that he be enjoined from any payment to his parents for use of the farm. His possession and use of the land is but as a tenant under life tenants who own a freehold interest in the land to the extent of an estate for life carrying the right of possession, use, and income of the property so long as either survives. His right of tenancy rests in parol and whether it be at will, sufferance, or from year to year is unimportant, for in any event it can soon be terminated by either party. The rent is limited, so far as any agreement is shown, to the indefinite amount of the parents’ needs, with no fixed time of tenure or payment, and nothing is shown or inferable as due. He bore no trust or contract relations with plaintiff, and it certainly cannot be claimed that in this proceeding fraud is imputable to any of the defendants by reason of the conveyances from Andrew J. Harnden and wife to the two sons given and duly recorded in 1899, some 15 or 16 years before Andrew J. Harnden incurred the debt which plaintiff is now seeking to recover.
We find no occasion to disturb the conclusions reached by the trial court and its decree dismissing plaintiff’s bill is affirmed, with costs to defendants.
Bird, C. J., and Ostrander, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Kuhn, J.
In this action it is sought to recover on two policies of insurance issued by the defendant upon the life of one Isrel Kane on November 26, 1915. In the application for insurance the applicant certified that he had read all the statements and answers in the application and agreed, on the part of himself and any person who may claim under the policy, that all the statements and answers so made, and all that may be made to the medical examiner in continuation of the application, are full, complete and true and are representations made as inducements to the issuing of the policy. He was subsequently examined by the company’s medical examiner, and upon the strength of the application and this examination the two policies here in suit were issued. The plaintiffs are the sons of the insured and beneficiaries under these policies. The defendant filed a plea of the general issue, to which notice was attached to the effect that false and fraudulent statements were made to it in the application of insured and false and fraudulent statements were made in the statements to the medical examiner, referring to the following question and answer which occurred in the application:
“Has your application for life insurance ever been declined or postponed by any other company or fraternal organization? No.”
—and the following in the medical examiner’s report:
“Have you ever been declined or postponed by any life company? (If so, give name of company.) No.”
The defendant in its notice alleges the falsity of these statements and charges the truth to be that the insured had made application to, and was declined by, the New York Life Insurance Company, November 16, 1915, and claimed that because of these false statements made in the application and to the medical examiner, the policies issued thereunder are void and not collectible. Isrel Kane, the insured, died June 27, 1916, some seven months after the policies were issued, and it is the claim of the defendant that the defendant first discovered that the statements made by the insured in his application and statement to the medical examiner were false, after that time. It is admitted that Kane had made an application to the New York Life Insurance Company, and the proofs show that he had been rejected by the company and that he had received this information prior to his making application for insurance to the defendant company. The testimony further discloses that the application for insurance was written by one Herman Solomon, who at that time was agent for the New York Life Insurance Company, and was the agent who had written the application for Isrel Kane in that company, which had been rejected. Solomon was called as a witness for the plaintiffs, who claimed the right to cross-examine him as though he were the agent of the defendant company, which agency was denied by the defendant, the defendant claiming that Solomon never was an agent of the company and never was authorized to write insurance for said company by any person empowered to authorize it. It appears that the application, in. most of its parts, is in the handwriting of Solomon, and was signed, as agent, by Jacob Meltzer,' a general agent of the company. The testimony of Solomon shows that he took the application to the insured, who signed it before the same was filled out, and it is his claim that he filled out a part of it and that the other portions thereof were filled out by a Miss Herber, who was the secretary of Mr. Meltzer, and that the insured never signed the application at all, but merely signed a blank, and that it was fixed up entirely by himself and Miss Herber. This statement is denied by Miss Herber in her testimony. It is his claim that the false answer to the statement complained of by the defendant, purporting to have been made by the insured in his application, .was answered in that way for the reason that Miss Herber told him that it made no difference; that the Detroit Life Insurance Company was not interested whether he had ever been rejected or not, which statement is also denied by Miss Herber. A copy of the application and medical examination was attached to the policy and made a part thereof. Plaintiffs further claim that the insured could neither read nor write, and the testimony of Solomon showed that Meltzer was informed, prior to the making of the application by the insured, that the insured had been rejected by the New York Life Insurance Company prior to his application to the defendant company, which testimony is denied by Meltzer. There is also some testimony given by Mr. Solomon to the effect that Mr. Baty, the secretary of the company, had' knowledge that the insured was a rejected risk before the delivery of the policies to the insured, which testimony is denied by Baty. Solomon's testimony further showed that he had been requested by Meltzer to bring risks rejected by the New York Life Insurance Company, upon applications secured by him, to the defendant company, and that it was pursuant to this arrange ment that the application of the deceased was brought to the defendant company. The insurance of Isrel Kane went onto the books of the company as the business of Meltzer, the city manager for the company, but Solomon was paid the regular commission paid to subagents of the company, and the books of the company showed the payment of this commission to Solomon.
At the close of the proofs, the following colloquy was had between the court and counsel:
“The Court: Anything further?
“Mr. Watson: Nothing on our part.
“The Court: Nothing further on your part?
“Mr. Aldrich: No, your honor.
“The Court: Gentlemen, you may be excused for a few moments until I call you in.
“The Court: I know the counsel upon- both sides asked for directed verdict.
“Mr. Aldrich: I know we did, your honor.
“Mr. Watson: I don’t think it should go to the jury.”
Here followed a discussion between the court and counsel for the respective parties, and thereupon defendant’s counsel presented certain requests to charge, the fourth of which read as follows:
“If you find from the evidence in this case that Isrel Kane made application for insurance in the defendant company and before the policy was written .appeared before the medical examiner and there answered the questions propounded to him by the medical examiner and therein stated ‘No’ in reply to the question ‘Have you ever been declined or postponed by any life company; if so give the name,’ and if you find that he answered this question in the manner above, that answer was a misstatement and was a fraud upon the company; and if you find that the company had no knowledge that the answer was fraudulent and false, the plaintiffs in this case cannot recover, it being entirely immaterial that Mr. Solomon knew that it was false. The knowledge of Mr. Solo mon cannot be imputed to the company, he being a party to the fraud and apparently anxious to put through the insurance. And it is immaterial as to whether he will be deemed an agent of this company, or not, for the reason that an agent cannot co-operate with an applicant in perpetrating a fraud on the company and later on have the fraudulent act of the agent used for the purpose of excusing the applicant for making untruthful statements in his application for the insurance and in his examination by the medical examiner.”
The court, however, directed a verdict for the plaintiffs, and counsel for appellees now say that the appellant is precluded from raising any question as to the nonsubmission of a question of fact to the jury, in view of the dialogue which occurred between the court and counsel, above set forth, and the following Michigan cases are relied upon: Culligan v. Alpern, 160 Mich. 241; Germain v. Loud, 189 Mich. 38; Kyselka v. Assurance Co., 194 Mich. 430. The presentation to the court of the request to charge above set forth must be said to have negatived any intent on the part of counsel, if his statements to the court are to be so construed, to waive the right of his client to have the jury pass on the questions of fact involved in the controversy. In our opinion, this record clearly raises such questions of fact.
Section 9305, 2 Comp. Laws 1915, reads as follows:
“Any person who shall solicit an application for insurance upon the life of another shall, in any controversy between the assured or his beneficiary and the company issuing any policy upon such application, be regarded as the agent of the company and not the agent of the assured.”
We can, therefore, assume that by virtue of this, statute, so far as any controversy is concerned between the assured, or his beneficiary, and the company issuing the policy upon such application, the per son soliciting the application must be regarded as the agent of the company and not the agent of the assured. Plaintiffs further claim that the offer by an agent duly authorized to write insurance for one company, of a rejected risk to another company is a perfectly legitimate transaction, even though he had no license from the last named company, by virtue of section 6, Act No. 124, Pub. Acts 1915 (2 Comp. Laws 1915, § 9144), which reads as follows:
“Any authorized agent of an insurance company transacting business in this State shall have the right to procure the insurance of risks or parts of risks, that have been refused by companies represented by him, in other like companies duly authorized to transact business in this State, but such insurance shall only be consummated through a duly licensed resident agent of the company taking the risk: Provided, however, That nothing herein contained shall be deemed to authorize the conducting of any insurance brokerage business in this State.”
It conclusively appears that Solomon was not a regularly appointed agent for the Detroit Life Insurance Company and had no certificate of authority to act as its agent, and that being the case, the only business he could legally do for the Detroit Life Insurance Company would be to procure the insurance of risks, or parts of risks, that had been rejected by the companies represented by him, duly authorized to transact business in this State, and such insurance could only be consummated through a duly licensed resident agent of the company taking the risk. Whether or not the defendant company had knowledge that Kane had been rejected by any other insurance company was a question of fact for the jury, and the testimony is at variance in the record on this point, Solomon testifying that the officers of the company had such knowledge, and Meltzer, Baty and Miss Herber contradicting him with reference to his claims thereto. Whether Kane actually knew of the false statements in his application and signed statement to the medical officer becomes immaterial, he having had them in his possession, as a part of the policies, for seven months, and it was his duty to know that the representations therein contained and which constituted the inducement for the issuance of the policies, were true. Silence during the life of the policy has been held to be persuasive proof of fraudulent intent. See Metropolitan Life Ins. Co. v. Freedman, 159 Mich. 114 (32 L. R. A. [N. S.] 298), and cases therein cited. If the jury should find that the defendant company, through its officers, Meltzer and Baty, had actual knowledge of the fact of Kane being a rejected risk in any other company, the false statement relied upon would become immaterial, but even under the theory advanced by counsel for plaintiffs, that Solomon, by virtue of the statute (2 Comp. Laws 1915, § 9305), above set forth, became, so far as this controversy is concerned, an agent for the defendant company, and he having full knowledge of the false statements, still his knowledge should not be imputed to the defendant company.
The rule sustaining this conclusion was announced in Ketcham v. Accident Ass’n, 117 Mich. 521, and is there thus stated:
"The courts have always been anxious to take care of the rights of the assured when the applicant has relied upon the agent informing the company what had been truthfully told to him about the character of the risk; but the courts never have said the company is bound by statements contained in an application, when not only the agent, but the assured, knows they are untrue, and calculated to deceive, and the application is to be forwarded to the company as the basis of its action. To so hold would put these organizations completely at the mercy of dishonest and unscrupulous agents.”
See, also, Haapa v. Insurance Co., 150 Mich. 467 (16 L. R. A. [N. S.] 1165, 121 Am. St. Rep. 627).
We are of the opinion that these questions of fact should have been submitted to the jury and that'at least the substance of the fourth request to charge should have been given to the jury for determination..
The judgment must therefore be reversed and a new trial granted, with costs to the appellant.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. | [
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] |
Stone, J.
Relator presented his petition, sworn to on May 3, 1918, to this court praying that a writ of mandamus might issue, directed to the Michigan State board of dental examiners commanding that board to cause a license to be issued to said petitioner, under Act No. 338 of the Public Acts of 1907, as amended by Act No. 183 of the Public Acts of 1913 (2 Comp. Laws 1915, § 6748 et seq.), to practice dentistry in this State. In his petition to this court relator represented that he was a graduate of the Marquette University, dental department, and was graduated in the class of May 1, 1905, and received his diploma to practice dental surgery; that said Marquette University is a reputable dental college duly organized under the laws of the State of Wisconsin; that under said license he practiced dentistry and dental surgery in a number of towns and cities in Wisconsin; that in the fall of 1917, desiring to locate and practice his profession in this State, he made an application under the provisions of the statute above referred to, to be licensed and registered by the respondent board, and for an examination as to his proficiency in his profession, and that acting under section 5 of the act above specified, he filed ah application in writing supported by an affidavit, stating the facts which entitled him to such examination, and that before taking such examination he presented to said board his diploma and license from said university and the State of Wisconsin, for verification as to genuineness; that he paid the legal fee of $20, and presented himself for examination to the respondent, at the first regular meeting for examination, after his application had been madeas provided by law.
In and by his petition, relator further represents that he was examined by the respondent, upon the subjects included in section 5 of the act above referred to, said examination being practical, and oral, both, and that he successfully passed the examination required of him by the respondent, but that he has never received his license to practice dental surgery in this State from said board, and that said board now refuses to give the same to him.
After stating that he is a person of good moral character, relator reiterates that he successfully passed such examination, and was entitled to receive such license, and that respondent refuses to state why the same is withheld; and he states that respondent at no time has denied that he passed the required examination.
The petition then sets forth an extended correspondence between the attorney of the relator and the secretary of the respondent, which in our view of the case, as shown by this record, it is not necessary to consider.
An order to show cause why the writ of mandamus should not issue was made, and the respondent board has made return and answer thereto. In its return the respondent board, among other things, says:
“Answering paragraph 5 (unnumbered), respondent says that relator took the examination before respondent board in practical dental work as provided might be done in such cases by said reciprocity contract hereinbefore set forth. Such examination consisted of clinical and practical work on the subjects of: (a) Filling; (b) Crown; (c) Plate. That the rules and practice of said respondent board fixed a standard upon a scale of 100 points perfect in marking all applicants taking such examinations, and the standard upon each of those three subjects which must have been attained by the relator as applicant for a Michigan license in order to pass the examination was 75 points. That if he fell below that standard on any one of the three subjects, he failed and was in no event entitled to a license. That said rules are uniform and apply alike to all applicants under said reciprocity contract. That on the examination before respondent board which relator applied for and took in November, 1917, his standings were as follows: on filling, 70 points; on crown, 77 points; on plate, 70 points and which results were entered úpon the official records of this board and are a part thereof. That-his degree of proficiency and technical skill attained in dentistry, as shown by his examination, was not sufficient according to the uniform standard set by respondent board in such cases to entitle him to a license to practice dentistry in Michigan, and he failed to pass the examination. That his case on said examination was dealt with and decided, by the same methods and uniform rules which apply to every other applicant similarly situated. That by reason of his failure to pass his examination on two of the foregoing subjects, said applicant is and was not entitled to a dentist’s license to practice under the laws of the State of Michigan. The applicable rules then and now in force provided as follows:
“ ‘Rule 15. Applicants taking the examination under the terms of reciprocal contracts with other States will be required to take the examinations in practical work only.
“ ‘Rule 18. In the theoretical work of the examination the applicant must have a general average of seventy-five per cent. In practical operative, and in practical prosthetic and crown work, if the applicant falls below seventy-five per cent, he shall fail to pass; but he may be re-examined on that in which he failed at the next regular examination.’
“Respondent, therefore, for the reasons and facts herein set forth, says that relator is not entitled to a license to practice dentistry or dental surgery in Michigan.”
Section 2 of the act above referred to gives the said board power “to make by-laws and necessary regulations for the fulfillment of' their duties under this act.”
In the course of the correspondence between relator’s, attorney and the secretary of the respondent, as appears by petition of the relator^ and under date of February 20, 1918, the secretary wrote said attorney as follows:
“I, have to suggest that it appears that you have been misinformed concerning this board having informed Dr. Thiedemann that he had successfully passed the Michigan State board of dental examiners.
“Entirely aside from the question, however, we believe that we are fully prepared to show why the doctor may not be given his license to practice dentistry in this State at this time. I do not recall at this moment the standings of the doctor, but whatever percentages he earned in the examination will be found upon the records properly placed to his credit.
“I have the honor to refer you for all further correspondence in the matter, to Dr. B. S. Sutherland, the new secretary, of Owosso, Mich.”
Under date of March 4, 1918, appears the following letter from Dr. Sutherland, the secretary, addressed to the attorney of the relator:
“Dear Sir: Your recent letter regarding Dr. W. L. Thiedemann at hand and contents noted. I do not know, nor can I understand, just what contention Dr. Thiedemann is making or what inference you draw from the letters you mention. But permit me to say in all kindness that the records now in my hands do not show that he successfully passed this board.
“Yours very truly,
“B. S. Sutherland.”
These facts must have been known to relator two months before he filed his petition here.
Section 6750, 2 Comp. Laws 1915, being section 3 of the said act as amended, reads in part as follows:
“All persons who desire to begin the practice of dentistry in this State after the passage of this act, and who shall have a license from the dental board of another State, requiring preliminary education before examination for license equal to the standard required of applicants for examination and registration in this State, or who shall have received a diploma from the faculty of some reputable college duly organized under the laws of this or any other State of the United States, or any other country, shall have the right to apply to the dental board of this State for examination as to their proficiency; and all successful applicants shall be licensed and registered by said dental board.”
There can, we think, be no question of the power of the board to make reasonable rules and regulations in regard to such examination. And there can be no question as to the reasonableness of the rules here referred to.
An examination of this record shows that there was no plea filed to the return or answer of the respondent board. Section 4 of chapter 36 of the judicature act (3 Comp. Laws 1915, § 13440), relating to mandamus proceedings, reads as follows:
“Whenever a return shall be made to any such writ, the person prosecuting the same may plead to all, or any of the material facts contained in said return; and such issue of fact thus joined, shall be determined as in other cases: Provided, That all material facts stated in said return, that are not specifically denied by plea, shall be taken as admitted to be true. In case no plea is filed to such return, the cause shall stand for hearing upon the petition and return.”
It has been frequently held that in a case heard on petition and answer, the averments in- the respondent’s answer must be taken as true, in the absence of a plea. Michigan Railroad Commission v. Railway Co., 192 Mich. 426, 433; Anderson v. Newaygo Circuit Judge, 173 Mich. 608, 610.
There can, in our opinion, be no question as to the conclusiveness of the return of the respondent board, upon the question of the relator having failed to pass a successful examination. This is sufficient to dispose of the case.
The writ is therefore denied, with costs.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. | [
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Per Curiam:.
Following a bench trial, defendant was convicted of two counts of first-degree criminal sexual conduct (esc), MCL 750.520b(l)(a); MSA 28.788(2)(l)(a), and one count of second-degree esc, MCL 750.520c(l)(a); MSA 28.788(3)(l)(a). Defendant’s 50-to-150-year prison sentences for the two first-degree esc charges ran concurrently with each other and concurrently with defendant’s ten-to-fifteen-year prison sentence for second-degree esc. Defendant appeals as of right. We affirm.
Defendant pled guilty to one count of knowingly mailing five color Polaroid photographs, the production of which involved the use of a minor engaging in sexually explicit conduct and which depicted a minor child engaged in such conduct. 18 USC 2252(a)(1). Before defendant’s arrest on that charge, defendant’s home was searched pursuant to a federal search warrant. Sexually explicit material involving minors was seized. Defendant entered into a sentence agreement with the federal authorities and agreed to provide the federal government with the names of persons appearing in the photographs as well as other distributors. Defendant did provide the names of several people who were in the photographs to the federal authorities.
Thereafter, the state authorities apparently read of defendant’s guilty plea and asked the federal authorities to forward such materials to them. The federal authorities forwarded the materials; however, the local authorities did not receive the names of all the persons involved in the photographs. On September 6, 1984, the local authorities received a picture which involved an unknown minor. The following day, a police officer contacted defendant’s wife and showed her the pictures received. She identified defendant as being in one picture and also stated that two of the pictures were taken in her home. She further identified the child in the picture received on September 6 as someone other than the present victim. She then identified one of the children, who had been photographed, as the victim in this case. She was unable to identify other victims who were photographed.
At trial, the victim testified that at various times during the summer of 1980, when she was ten years old, defendant made her feel his erect penis, made her perform fellatio upon him, and engaged in vaginal intercourse with her. Defendant photographed these latter two acts by using a timer on his camera. Although defendant was apparently not entirely visible in some of these pictures, the victim identified the six pictures as being those of herself and defendant.
Gary Kinney from the United States Postal Service testified that the photographs identified by the victim were seized from defendant’s home pursuant to a federal search warrant. Defendant did not present any defense. As noted above, the trial court found defendant guilty on all three counts.
Defendant first claims that he was denied a fair trial because of a long-standing conflict between his trial counsel and the trial court. We will treat defendant’s claim as one that the trial judge should have granted defendant’s motion to disqualify himself. A judge should be disqualified when he cannot impartially hear a case because he is personally biased or prejudiced against a party or attorney. MCR 2.003(B)(2). Where the challenged judge denies the motion, the chief judge shall decide the motion de novo. MCR 2.003(C)(3)(a). An order denying a party’s motion for disqualification will be reversed only where the court abused its discretion. Czuprynski v Bay Circuit Judge, 166 Mich App 118, 124; 420 NW2d 141 (1988). Moreover, the party moving for disqualification bears the burden of proving actual bias or prejudice. Id.
Defendant’s trial attorney was Mr. Edward Czuprynski. The trial judge was Bay Circuit Judge Eugene Penzien. The chief judge was Bay Circuit Judge William Caprathe.
Czuprynski filed a motion to disqualify Judge Penzien on the following grounds: (1) in Czuprynski’s first trial before Judge Penzien, Madigan v Madigan, unpublished opinion per curiam of the Court of Appeals, decided November 6, 1985 (Docket No. 80119), lv den 425 Mich 884 (1986), Judge Penzien engaged in numerous improper actions; (2) after Czuprynski was charged with a misdemeanor, of which he was later acquitted, the circuit court no longer appointed him as counsel for indigents on the ground that it might be alleged that Czuprynski was not vigorous in his clients’ defenses because he feared retaliation in his own case; apparently, Czuprynski withdrew from an unrelated criminal case, where he had been appointed counsel, when Judge Penzien informed the defendant in that case of the appearance of impropriety which might have resulted; (3) in another unrelated criminal case, where Czuprynski was appointed counsel, Judge Penzien declined to hear Czuprynski’s motion for disqualification because he had failed to attach an affidavit as required by the court rules; (4) in that same matter, Judge Penzien offered to appoint different counsel for the defendant because Czuprynski believed that Judge Penzien was prejudiced against him and, therefore, he might act in a different ' manner before Judge Penzien than another judge; (5) in another unrelated civil matter, Judge Penzien allegedly acted in a prejudicial manner toward Czuprynski, including denying his motion for disqualification in that case; (6) in yet another unrelated civil matter, Judge Penzien again treated Czuprynski in an unfair manner and again denied his motion for disqualification; (7) Judge Penzien unjustifiably reduced Czuprynski’s attorney fees in appointed criminal cases; and (8) previous political involvements of Judge Penzien and Czuprynski, including Judge Penzien’s involvement in Czuprynski’s resignation as an investigator from the public defender’s office following Czu prynski’s guilty plea to a possession of marijuana charge, made it impossible for Judge Penzien to treat Czuprynski fairly. Czuprynski also filed a complaint against Judge Penzien with the Judicial Tenure Commission and filed a complaint for writ of superintending control to permanently disqualify Judge Penzien from presiding over cases in which Czuprynski was counsel. Czuprynski, supra.
In Czuprynski, this Court noted that such relief was given in Auto Workers Flint Federal Credit Union v Kogler, 32 Mich App 257; 188 NW2d 184 (1971). In Auto Workers, one hundred motions to disqualify Genesee Circuit Judge Donald Freeman were filed by a law firm and most were granted by the other circuit judges because the affidavits in support of those motions sufficiently disclosed prejudice and hostility toward the law firm on the basis of events which had occurred before the judge’s election. This Court held that the judge’s past conduct along with a grievance filed by the law firm with the State Bar was sufficient to permanently disqualify Judge Freeman from hearing the law firm’s cases. Auto Workers, supra.
In Czuprynski, this Court distinguished Auto Workers, noting that Czuprynski had filed twenty-five motions to disqualify Judge Penzien during Czuprynski’s four-year practice and, of those which had been referred to Judge Caprathe, all had been denied. This Court further rejected Czuprynski’s claim that the filing of a grievance against Judge Penzien with the Judicial Tenure Commission required him to be permanently disqualified from hearing Czuprynski’s cases. Czuprynski, supra, p 126.
In Clemens v Bruce, 122 Mich App 35; 329 NW2d 522 (1982), this Court held that the circuit judge should be disqualified from hearing a case where the attorney had filed a complaint against him with the Judicial Tenure Commission as the result of a dispute over counsel’s appointment in criminal cases. This Court held that, even in the absence of actual prejudice, the probability of actual bias was too high where the attorney had personally abused or criticized the judge or the judge was enmeshed in other matters involving the attorney (i.e., the filing of a complaint with the Judicial Tenure Commission).
While we believe that the remedy of disqualification may have been proper in Clemens, we disagree that the mere filing of a party’s or attorney’s complaint is sufficient to require automatic disqualification. To hold otherwise would allow an attorney to judge shop by filing even frivolous grievances. We note that the Judicial Tenure Commission’s proceedings are confidential as to the judge until a complaint is filed by the commission, the judge is privately censured, or the investigation is dismissed. MCR 9.207. Hence, we believe that disqualification is not required until the judge is privately censured or a complaint is filed by the Judicial Tenure Commission itself. See and compare Czuprynski, supra, p 126; Clemens, supra.
Czuprynski took defendant’s case before the preliminary examination after defendant’s other counsel withdrew. On September 20, 1985, defendant moved to permanently disqualify Judge Penzien for the above-discussed reasons. Following a lengthy hearing, Judge Penzien denied defendant’s motion only after thoroughly responding to the allegations contained in defendant’s motion.
Defendant then moved for an evidentiary hearing before Judge Caprathe on the disqualification issue. Judge Caprathe properly denied defendant’s motion for an evidentiary hearing because the chief judge must decide such motions by a de novo review of the record. MCR 2.003(C)(3)(a).
On November 22, 1985, defendant brought a new motion to permanently disqualify Judge Penzien. This motion was essentially the same as the previous motion, but added Judge Penzien’s ruling on the previous motion in support of defendant’s claim. Judge Penzien again denied defendant’s motion.
On February 3, 1986, defendant filed a renewed motion to permanently disqualify Judge Penzien. Defendant claimed new evidence of Judge Penzien’s bias, including the fact that Czuprynski had filed a grievance against Judge Penzien with the Judicial Tenure Commission. Defendant relied on Clemens, supra. Judge Penzien again denied defendant’s motion. In particular, Judge Penzien noted that he had not been contacted by the Judicial Tenure Commission and did not believe that mere filing of a complaint with the commission should result in disqualification absent a real dispute between the participants which would affect the trial court’s ability to impartially hear the matter.
Defendant then moved for a de novo review of the motions to permanently disqualify Judge Penzien before Judge Caprathe. Defendant again moved for an evidentiary hearing on the motion. Judge Caprathe denied defendant’s motion for an evidentiary hearing. MCR 2.003(C)(3)(a). Defendant then moved to disqualify Judge Caprathe from hearing the motion to disqualify Judge Penzien. Following a hearing, Judge Caprathe denied defendant’s motion to disqualify him and also denied the motion to disqualify Judge Penzien.
Having thoroughly reviewed Czuprynski’s allegations as well as the transcripts of the hearings held and the opinions issued, we hold that neither Judge Penzien nor Judge Caprathe abused his discretion when each denied the various disqualifi cation motions which were made. Czuprynski, supra, p 124.
Defendant next claims that he was denied effective assistance of counsel because Czuprynski was involved in his own personal battle with Judge Penzien. In particular, defendant claims that Czuprynski failed to pursue an insanity defense and failed to move to suppress evidence allegedly derived from defendant’s allegedly involuntary statement to the federal authorities.
The test for ineffective assistance of counsel is a bifurcated one. People v Juarez, 158 Mich App 66, 73; 404 NW2d 222 (1987). First, defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law. Id. Second, even if this first test is satisfied, defense counsel must not have made a serious mistake but for which defendant would have had a reasonably likely chance of acquittal. Id.
Generally, a defendant, who claims that counsel was ineffective, must move for a new trial or file a motion for remand for an evidentiary hearing in order to preserve the issue for appellate review. Id. Nonetheless, where the record below is sufficient, no such motions need be made. Id. Here, defendant has not filed a motion for a new trial or for remand; therefore, we must rely on the record below.
Defendant’s initial counsel’s motion for forensic examination was granted. Defendant was found competent to stand trial and the parties stipulated to the contents of the forensic report. That report is not included in the record.
On December 16, 1985, defendant filed a notice of insanity defense. Defendant claimed the testimony of Drs. Knack, Maroquin, Nichols and Smith would support his defense. The prosecution filed a notice of rebuttal to the insanity defense on De cember 30, 1985, listing those same witnesses in support of its notice.
Defendant moved for adjournment of the February trial date because he had not had sufficient time to have his psychological evaluations completed. The prosecutor opposed the motion to adjourn claiming that defendant’s notice of insanity defense was untimely filed. A notice of insanity defense must be filed not less than thirty days before the date set for trial. MCL 768.20a(l); MSA 28.1043(1)(1). The original trial dates were December 3 and 16, 1985. The adjourned trial dates were January 14, 1986, and then February 26. While the trial court noted that it believed that defendant’s notice was untimely, it held that it had not formally been requested to rule on the prosecutor’s claim that the notice was untimely because only an oral argument had been made rather than a written motion filed. The trial court noted that defendant might not choose to pursue an insanity defense and, therefore, the issue could be moot. The trial court then held that it would reserve its ruling on the timeliness issue until trial, at which point the prosecutor could orally object to the notice’s timeliness. The trial court denied defendant’s motion to adjourn because there was no reason given why the psychologist’s reports could not be completed by the February 26 trial date. As noted above, defendant presented no defense.
Reviewing the entire record, we cannot say that Czuprynski’s failure to present an insanity defense at trial was ineffective assistance of counsel. Juarez, supra. Compare People v Lotter, 103 Mich App 386, 390-391; 302 NW2d 879 (1981), lv den 412 Mich 852 (1981); People v Blocker, 45 Mich App 138; 206 NW2d 229 (1973), aff'd 393 Mich 501 (1975).
Defendant also claims Czuprynski was ineffec tive because he failed to move to suppress allegedly involuntary statements defendant gave the federal authorities. In particular, defendant claims that he disclosed the victim’s name to the federal authorities as part of his plea bargain and that this information was given to the state authorities. But see the facts discussed above. Defendant asserts that this information, acquired under a grant of federal immunity, could not be utilized in a later state prosecution. Defendant relied on Murphy v Waterfront Comm of New York Harbor, 378 US 52; 84 S Ct 1594; 12 L Ed 2d 678 (1964).
On January 29, 1986, Czuprynski moved to quash the information on the grounds of the previously granted immunity. Defendant claimed the state authorities were required to honor the immunity granted in the federal prosecution and that the state’s prosecution was barred by the previously granted immunity. Defendant further claimed that his rights against self-incrimination would be violated if the state prosecution continued in light of the previously granted federal immunity.
On February 10, 1986, defendant filed an amended motion to quash the information on grounds of previously granted immunity and use of an involuntary statement. The motion was essentially the same as defendant’s previous motion. In both motions, defendant requested an evidentiary hearing to establish the grounds supporting his motion.
During a hearing on defendant’s various motions, the prosecutor asked if defendant’s amended motion to quash could be heard because he had some witnesses to present on that motion. Judge Penzien agreed; however, defendant objected, claiming that he had no witnesses to present because his motion had asked for an evidentiary hearing. Eventually, Judge Penzien asked Czuprynski if he could call defendant to the stand to indicate what promises outside of the plea agreement were made. Czuprynski refused, claiming that he wanted to call Kinney first and that defendant’s testimony was protected by the attorney-client privilege. Czuprynski further noted that he was pursuing an insanity defense. Judge Penzien ruled that the federal agreement was clear in that it only barred federal prosecution for other mailings and that defendant’s motion merely alleged that defendant had made the statements pursuant to the federal agreement, but would not have made them if he had known of the subsequent state proceedings. This, the trial court held, was not the same as a promise of total immunity and, where defendant was unwilling to testify that any promises were made regarding state immunity, defendant’s statements were voluntary.
In Murphy, supra, the United States Supreme Court held that, where a witness before a state grand jury is compelled to testify under a grant of state immunity, the constitutional privilege of self-incrimination protects the state witness against incrimination under state as well as federal law. Similarly, a federal witness compelled to testify before a federal grand jury under a grant of federal immunity is protected against incrimination under federal as well as state law unless the authorities from the other sovereign demonstrate that they have an independent, legitimate source for the disputed evidence.
We agree with Judge Penzien that defendant’s testimony was not coerced. Defendant was free to enter the plea agreement, which provided limited federal immunity for the information disclosed, or to reject it. We believe Murphy is distinguishable on this basis.
Defendant also claims that he should have been given Miranda [v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966)] warnings concerning possible later state prosecutions. We believe that Miranda is inapplicable where defendant agrees to provide information under the terms of a plea bargain and later provides such information.
Defendant next claims the state prosecution violated his state right against double jeopardy. In People v Cooper, 398 Mich 450, 461; 247 NW2d 866 (1976), our Supreme Court held:
Const 1963, art 1, § 15 prohibits a second prosecution for an offense arising out of the same criminal act unless it appears from the record that the interests of the State of Michigan and the jurisdiction which initially prosecuted are substantially different. Analysis on a case-by-case basis cannot be avoided. [Emphasis supplied.]
This state’s interest would be substantially different if: (1) the maximum penalties involved in the federal and state prosecutions are greatly disparate; (2) there is some reason the other sovereign cannot be entrusted to fully vindicate this state’s interest in securing a conviction; or (3) the differences in the state and federal statutes are more substantive than jurisdictional. Id.
We note that defendant moved to dismiss the information below on double jeopardy grounds. The prosecutor responded that this case did not involve the same conduct because the pictures mailed by defendant, which served as the basis of his guilty plea, were not pictures of the victim. Moreover, even if they were, the factors enumerated in Cooper supported prosecution in this case. The trial court held that defendant failed to assert that the photographs of the victim were used to obtain defendant’s federal conviction. In any event, the trial court ruled that the same criminal conduct was not punished by each sovereign and, even if it was, Cooper allowed the state prosecution because Michigan’s and the federal government’s interests were substantially different (i.e., there were substantive differences between the state and federal statutes).
We agree with Judge Penzien’s ruling. We note that defendant’s federal prosecution was for mailing pictures, the production of which involved the use of a minor engaging in sexually explicit conduct. 18 USC 2252(a)(1). Defendant did not have to be involved in the conduct or produce the pictures. On the other hand, this state’s esc statutes prohibit one from engaging in sexual penetration of or sexual contact with a minor. MCL 750.520b(l)(a) and 750.520c(l)(a); MSA 28.788(2)(l)(a) and 28.788(3)(l)(a). Here, defendant assaulted the then-ten-year-old victim on different occasions during the summer of 1980. The photographs defendant was charged with mailing in the federal prosecution were sent in late 1983 and were apparently not pictures of this victim. Clearly, the federal and state charges against defendant did not arise, out of the same criminal act. Cooper, supra.
Finally, defendant claims that his sentence, which greatly exceeded the sentencing guidelines recommendation of from three to six years’ imprisonment, was either cruel and unusual punishment or was the result of an abuse of discretion. The sentences imposed were within the statutory limits and, therefore, were not cruel and unusual. People v Glantz, 124 Mich App 531, 535-536; 335 NW2d 80 (1983); People v Banks, 116 Mich App 446, 451; 323 NW2d 436 (1982). As to defendant’s claim that his sentence should shock our conscience, we can only unanimously state that this pedophile’s crimes were shocking, his sentence was not. People v Coles, 417 Mich 523; 339 NW2d 440 (1983).
Affirmed.
Judge Penzien’s decision was affirmed by this Court in a two-to-one decision. | [
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Per Curiam.
On May 31, 1985, plaintiffs filed suit against defendant alleging negligence, violation of the Michigan Consumer Protection Act, MCL 445.901 et seq.; MSA 19.418(1) et seq., and breach of contract arising out of defendant’s handling of plaintiffs’ brokerage account. Defendant subsequently filed a motion to stay proceedings pending arbitration, asserting that, under paragraph thirteen of the customer agreement signed by plaintiffs, plaintiffs were required to submit tó arbitration controversies arising out of or relating to their account. Plaintiffs opposed defendant’s motion contending that they had attempted to resolve the controversy with defendant during 1984, and that defendant’s agent terminated negotiations by letter dated June 26, 1984. Plaintiffs also contended that defendant’s delay in seeking arbitration precluded its reliance on the arbitra tion provision in the contract. The circuit court agreed with plaintiffs and denied defendant’s motion. Leave to appeal was granted by this Court following the denial by the circuit court of defendant’s motion for rehearing or reconsideration.
Defendant raises three claims of error with respect to the circuit court’s ruling, one of which we find dispositive. Specifically, defendant did not have the burden of submitting the controversy at issue to arbitration and, hence, its delay in seeking arbitration was not cause for denial of its motion for a stay of proceedings pending arbitration.
The arbitration provision of the customer agreement does not place the burden of initiating proceedings on either party. Rather, the agreement states "any controversy . . . shall be settled by arbitration.” As noted by defendant, if there is no matter in dispute, there is no question to be arbitrated. Toledo SS Co v Zenith Transportation Co, 184 F 391, 404 (CA 6, 1911). In this case, defendant could not have been aware that plaintiffs felt an arbitrable dispute existed until plaintiffs filed their complaint on May 31, 1985. Hence it obviously would not have initiated arbitration proceedings before that time. Upon becoming aware of the dispute by the filing of the complaint, defendant promptly demanded its right to arbitration.
Since plaintiffs were contractually bound to arbitrate any controversies arising out of their brokerage account, and since plaintiffs were the aggrieved parties and the only ones who were aware, between June 26, 1984, and May 31, 1985, that a .dispute existed, the burden of initiating arbitration proceedings was on them. Affirmation of the trial court’s decision that defendant should have initiated arbitration proceedings earlier than it did would be contrary to common sense and judicial economy. As a result of such a decision, a defendant would be forced to seek arbitration any time it had any complaints against it.
In any event, a panel of this Court has held that where substantive issues of a dispute are proper subjects for arbitration procedural matters arising out of the dispute are for the arbitrator and not the courts to determine. Bay Co Building Authority v Spence Brothers, 140 Mich App 182, 188; 362 NW2d 739 (1984), lv den 422 Mich 975 (1985). Likewise, the timeliness of the bringing of an arbitration proceeding is a procedural issue to be determined by the arbitrators rather than the courts. Fenton Area Public Schools. v Sorensen-Gross Construction Co, 124 Mich App 631, 641; 335 NW2d 221 (1983), lv den 419 Mich 856 (1984). On these bases the trial court should have allowed the. matter to go to arbitration.
Accordingly, we conclude that the burden of initiating arbitration proceedings in this case was on plaintiffs and, hence, defendant’s failure to do so was not a proper ground for denial of its motion.
The circuit court’s order is vacated. The case is remanded with instructions to grant defendant’s motion and stay proceedings pending arbitration.
Defendant’s motion to stay the circuit court proceedings pending this appeal was also granted by this Court.
An issue on which there is no dispute in this case. | [
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Per Curiam.
Defendant Frank Lee Bufkin was tried by jury in Detroit Recorder’s Court for possession of cocaine. MCL 333.7403(2)(a); MSA 14.15(7403)(2)(a). Trial commenced on May 19, 1986. On May 21, 1986, the jury advised the court by a note that it had reached a verdict. When the jury was brought into the courtroom, the foreman announced a verdict of not guilty.
The prosecutor, as permitted under MCR 2.512(B)(2), requested that the jury be polled. The judge then polled the jury, and the first ten jurors answered, as expected, that the not guilty verdict was his or her verdict. However, the eleventh juror said it was not her verdict.
Defense counsel asked the judge to instruct the jury to continue deliberation in accordance with MCR 2.512(B)(3). However, the prosecutor argued that, since the jurors had revealed the state of their deliberations, the judge was required to declare a mistrial. After brief argument, the trial judge declared a mistrial.
Subsequently, defendant filed a motion to dismiss his reprosecution, presumably based on the grant of a mistrial without a proper reason. That motion was denied by order dated June 6, 1986. Defendant appeals by leave granted the denial of his motion.
At issue in this case is MCE 2.512(B):
(B) Return; Poll.
(1) The jury agreeing on a verdict must return to the court and announce the verdict.
(2) A party may require a poll to be taken by the court asking each juror if it is his or her verdict.
(3) If the number of jurors agreeing is less than required, the jury must be sent out for further deliberation; otherwise the verdict is complete, and the court shall discharge the jury.
The prosecutor’s argument for mistrial at trial and on appeal is based on CJI 3:1:20(10):
During your deliberation, you must not reveal to any person, including the Judge, how your voting stands. Therefore, until you return with a unanimous verdict, do not reveal this information outside of the jury room.
However, this rule is not absolute, and, absent some coercive impact caused by revealing the state of deliberations, error is not presented. See the discussion in People v Holmes, 98 Mich App 369, 378; 295 NW2d 887 (1980), modified on other grounds 417 Mich 960; 332 NW2d 397 (1983). Given the circumstances presented in this case, there was no impropriety present. The jurors were merely responding to a poll as directed by the court. Moreover, MCR 2.512(B)(3) contemplates this exact situation and expressly dictates that the jury must be sent out for further deliberation.
As shown by this record, there was no manifest necessity for the granting of a mistrial. Accordingly, retrial is barred by the double jeopardy clauses of the United States and Michigan Consti tutions. People v Grimmett, 388 Mich 590, 598; 202 NW2d 278 (1972); People v Alvin Johnson, 396 Mich 424, 431; 240 NW2d 729 (1976).
Reversed and remanded for entry of an order of unconditional dismissal. | [
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] |
Per Curiam.
Plaintiffs commenced this action in the Wayne Circuit Court against defendant Jason’s Lounge, a foreign corporation located in Windsor, Ontario, seeking damages for injuries allegedly suffered by plaintiffs as a result of being assaulted and battered by defendant’s employees on defendant’s premises. In lieu of filing an answer, defendant moved for summary disposition pursuant to MCR 2.116(C)(1), asserting alternative grounds: (1) lack of personal jurisdiction, or (2) the doctrine of forum non conveniens required dismissal of the case. After a hearing on the motion, the court held that it had personal jurisdiction over defendant but that Canada was a more appropriate forum to try the case. Therefore, defendant’s motion for summary disposition was granted on the basis of the doctrine of forum non conveniens. It is from that ruling that plaintiffs bring this appeal of right. We affirm.
The doctrine of forum non conveniens establishes the right of a court to resist imposition upon its jurisdiction even though such could properly be invoked. It was first recognized as a viable doctrine in this state by our Supreme Court in Cray v General Motors Corp, 389 Mich 382; 207 NW2d 393 (1973). The Cray Court set forth the following balancing test for determining whether the doctrine should be applied in a particular case:
A balancing out and weighing of factors to be considered in rejecting or accepting jurisdiction in such cases should include:
1. The private interest of the litigant.
a. Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses;
b. Ease of access to sources of proof;
c. Distance from the situs of the accident or incident which gave rise to the litigation;
d. Enforceability of any judgment obtained;
e. Possible harassment of either party;
f. Other practical problems which contribute to the ease, expense and expedition of the trial;
g. Possibility of viewing the premises.
2. Matters of public interest.
a. Administrative difficulties which may arise in an area which may not be present in the area of origin;
b. Consideration of the state law which must govern the case;
c. People who are concerned by the proceeding.
3. Reasonable promptness in raising the plea of forum non conveniens. [Id., pp 395-396.]
In deciding whether to apply the doctrine, the Cray Court further directed trial courts "to consider the plaintiffs choice of forum and to weigh carefully the relative advantages and disadvantages of jurisdiction and the ease of and obstacles to a fair trial in this state.” Id., p 396. Ordinarily, a plaintiffs selection of a forum is accorded deference. Anderson v Great Lakes Dredge & Dock Co, 411 Mich 619, 628-629; 309 NW2d 539 (1981).
The decision on whether to decline jurisdiction is in the discretion of the trial court. Such decision will not be overturned on appeal absent an abuse of discretion. Cray, supra, pp 395-397; Jemaa v MacGregor Athletic Products, 151 Mich App 273, 280; 390 NW2d 180 (1986), lv den 426 Mich 872 (1986). To constitute an abuse of discretion, "the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.” Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). In the instant case, the trial court properly recognized and exercised its discretion because there is only a slight nexus between the litigation and this state. The competing interests weighed in favor of a Canadian forum.
The alleged tortious conduct occurred in Canada. Also, many of the res gestae witnesses — particularly defendant’s employees and the attending medical personnel — are presumably Canadian residents and, thus, may be beyond the subpoena power of Michigan courts. See MCR 2.506(G)(1). This would undoubtedly increase the costs of litigation. "Considering such costs and the likelihood that the attendance of some witnesses could not be procured, the defendant may be forced to conduct, a trial by depositions, if even that is possible.” Anderson, supra, p 630. Moreover, both this Court and our Supreme Court have taken judicial notice of the fact that the Wayne Circuit Court, where this action was filed, has the most crowded civil docket of any court in the state. Id., p 631; Duyck v International Playtex, Inc, 144 Mich App 595, 601; 375 NW2d 769 (1985); Beilin v Johns-Manville Sales Corp, 141 Mich App 128, 133-134; 366 NW2d 20 (1984). As stated by the Beilin Court:
We do not suggest that the judges of that circuit use their backlogs, standing alone, as justification for dismissal of any litigation with a foreign tinge. Nevertheless, where a plaintiff’s interest in a forum is slight, the plaintiff’s choice of forum is entitled to less weight. [Id., p 134.]
Plaintiffs’ adamancy that the Wayne Circuit Court retain jurisdiction over the matter seems to stem from the fact that Canada apparently has a law which places a $100,000 ceiling on recovery of mental anguish damages in a personal injury suit. If true, this would of course increase this state’s interest (i.e., full compensation of its injured residents) in having the case decided by a Michigan court. But, the converse is equally true: Canada would have an increased interest in seeing that its residents are not subjected to exorbitant foreign damage awards. The Canadian damage limitation law is probably designed, at least in’ part, to protect its citizens from exactly this sort of litigation. Defendant would have cause to complain if damages were not assessed in accordance with the law of its domicile. See Olmstead v Anderson, 428 Mich 1, 28-29; 400 NW2d 292 (1987).
Moreover, our review of the circumstances of this case convinces us that the doctrine of lex loci delicti mandates application of Canadian law because such would promote certainty, predictability of results, ease of application, and would prevent forum shopping. Id., p 24. Therefore, since plaintiffs would be bound by Canadian law regardless of the forum in which the trial was conducted, their interests in having the case tried here is even less. The trial court did not abuse its discretion in deciding to decline jurisdiction on the basis that the balancing of interests favors a Canadian forum.
Affirmed. | [
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Per Curiam.
Plaintiff brought suit against defendant W. W. Grainger, Inc., alleging breach of employment contract, race and sex discrimination, retaliatory discharge, and intentional infliction of emotional distress. Prior to trial, Grainger was granted partial summary disposition on all but the contract and discrimination claims. However, on December 17, 1985, following a three-day jury trial, Wayne Circuit Judge Michael L. Stacey granted a directed verdict in Grainger’s favor on those claims. Plaintiff now appeals as of right, raising four issues. We reverse and remand for a new trial.
Defendant is a wholesale electronics distributor, headquartered in Chicago, Illinois, with five branches in Michigan. Plaintiff was hired in the Detroit branch in July, 1975. Her duties included billing, invoicing, telephone sales and general office duties' In 1978, plaintiff moved to the Troy branch when the Detroit branch was closed and its operations relocated to Troy.
During plaintiff’s employment with defendant, she took several medical leaves of absence. Plaintiff took a leave sometime in 1976, also from May through June of 1979, again from May, 1980, through January, 1981, and finally from March to April 27, 1981. When plaintiff returned to work on April 27, 1981, she was told that she was being laid off because there was no work available for her. Plaintiff asked if jobs were available in the warehouse or in counter sales positions but was told that women did not work in those positions. The instant suit followed.
i
Plaintiff first argues that the trial judge erred in granting defendant’s motion for a directed verdict on plaintiff’s breach of employment contract claim. We agree.
If the evidence, viewed in a light most favorable to plaintiff, establishes a prima facie case, a defense motion for directed verdict should be denied. If material issues of fact remain upon which reasonable minds might differ, they are for the jury. A plaintiff has the right to ask the jury to believe the case as presented to it, however improbable it may seem. Taylor v Wyeth Laboratories, Inc, 139 Mich App 389; 362 NW2d 293 (1984).
In Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), the seminal case in Michigan on wrongful discharge, our Supreme Court ruled that the oral and written statements of an employer could create contractual rights for an employee. Defendant concedes that plaintiffs job performance was satisfactory. Further, there was substantial testimony regarding plaintiffs damages, her inability to find full-time employment and her emotional injuries. Thus, the only remaining issue was the terms of the contract between the parties. Rash v City of East Jordan, 141 Mich App 336; 367 NW2d 856 (1985).
In granting defendant’s motion for a directed verdict, the trial judge stated:
Counsel, as far as this Court is concerned, the only competent testimony indicates that when the plaintiff returned from her medical leave in April of 1981, she was terminated because of lack of work. As per the written policy introduced as an exhibit in this case.
There is a total lack of credible evidence on the allegation of breach of contract.
We.believe that the trial judge erred in granting defendant’s motion for a directed verdict because questions of fact existed concerning whether plaintiff was terminated from employment or merely laid off and concerning the terms of defendant’s leave of absence and layoff policies.
First, a question of fact existed concerning whether plaintiff was terminated pursuant to the leave of absence policy or laid off pursuant to the unwritten work reduction policy. Both Zigmund Jakubowski and Michael Balsey, defendant’s Branch Operations Manager, testified that plaintiff was terminated pursuant to defendant’s leave of absence policy. That policy provided that an em ployee returning from a medical leave would be given the same job or a comparable job, if one were available (emphasis supplied). Jakubowski and Balsey testified that plaintiff was terminated because defendant was undergoing a work force reduction following a period of poor sales and no position was available for her. However, plaintiff testified that Jakubowski told her she was being laid off because of the lack of work. This fact is significant because, according to plaintiff, layoffs were determined on a seniority basis. Plaintiff claims that she was laid off even though she had greater seniority than other workers who were not laid off. Thus, the jury must resolve this question of fact.
Second, if the jury determines that plaintiff was terminated pursuant to defendant’s leave of absence policy, as defendant claims, it must next decide the terms of that policy. As noted, Jakubowski testified that the policy provided that an employee returning from a leave of absence would be given a comparable job, if one were available. However, plaintiff testified that her understanding of the leave of absence policy was that, when an employee returned to work following a medical leave, his or her previous job or a comparable job would be made available to the employee, according to seniority. According to plaintiff, she would not have been laid off had this policy been followed.
Similarly, if the jury determines that plaintiff was laid off, as she claims, it must decide the terms of defendant’s layoff policy. Jakubowski and Balsey both testified that, at the time plaintiff was terminated, defendant had an unwritten layoff policy. The branch manager was to make ninety-day staffing projections. If layoffs were necessary, they were to be based upon employee skills, perfor manee and ability. Seniority was not a factor. However, as noted according to plaintiff, layoffs were to be based solely on seniority.
Accordingly, we conclude that the trial judge erred in granting defendant’s motion for a directed verdict in light of the questions of fact that remained in the case. We remand the case to the trial court for a new trial on plaintiff’s breach of employment contract claim.
ii
Second, plaintiff claims that the trial judge erred in granting a directed verdict for defendant on plaintiff’s race and sex discrimination claims. We agree.
Plaintiff’s claim of race and sex discrimination is based upon the Civil Rights Act. That act states:
(1) An employer shall not:
(a) Fail or refuse to hire, or recruit or discharge, or otherwise discriminate against an individual with respect to employment compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. [MCL 37.2202; MSA 3.548(202).]
In determining the substantive law in discrimination cases, it is appropriate to consider federal precedent. Matras v Amoco Oil Co, 424 Mich 675; 385 NW2d 586 (1986); Meeka v D & F Corp, 158 Mich App 688; 405 NW2d 125 (1987).
The burden and order of proofs in an employment discrimination case were stated in Texas Dep’t of Community Affairs v Burdine, 450 US 248, 252-253; 101 S Ct 1089; 67 L Ed 2d 207 (1981), reaffirming the holding of McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973):
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” . . . Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
See also Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 793; 369 NW2d 223 (1985).
In Michigan, a prima facie case of race or sex discrimination can be made in one of two ways, by showing disparate treatment or by showing intentional discrimination. Jenkins, supra; Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641; 378 NW2d 558 (1985):
"(1) Disparate treatment. To make a prima facie showing of discrimination, the one alleging disparate treatment must show that he was a member of the class entitled to protection under the act and that, for the same or similar conduct, he was treated differently than one who was a member of a different race. (2) Intentional discrimination. Here, plaintiff must show that he was a member of the affected class, that he was discharged, and that the person discharging him was predisposed to discriminate against persons in the affected class and had actually acted on that disposition in discharging him.” [Citations omitted. Jenkins, supra, pp 793-794.]
Viewing the evidence in a light most favorable to plaintiff, we conclude that plaintiff established a prima facie case of race and sex discrimination under both theories. Plaintiff was a member of a protected class, a black female, and was treated differently at defendant’s Troy office in that she was terminated for a lack of work when other whites and males with less seniority than she wére retained. Further, plaintiff was the lone black female in the Troy office and there was evidence that the supervisors tolerated racial slurs and epithets directed at plaintiff, suggesting a predisposition to discriminate.
The fact that plaintiff established a prima facie case of discrimination is not enough, alone, to preclude a directed verdict because the term "prima facie case” has a different meaning in discrimination cases than that normally attached to it. Bouwman v Chrysler Corp, 114 Mich App 670, 679; 319 NW2d 621 (1982). As the Bouwman Court stated:
In federal cases, the term "prima facie .case” is used to mean that the plaintiff has provided enough evidence to create a rebuttable presumption of age discrimination. Federal discrimination cases do not use the term "prima facie case” in the other accepted sense, to wit, was sufficient evidence produced to allow the case to go to the jury. . . .
Once a plaintiff has established a "prima facie case”, the burden shifts to the defendant, who must articulate some legitimate, nondiscriminatory reason for the employee’s rejection or dismissal. Should the defendant meet this burden, the plaintiff must then be given an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a mere pretext for discrimination. [114 Mich App 679.]
In the present case, defendant offered a legitimate, nondiscriminatory reason for plaintiff’s dismissal, namely, lack of work. Testimony established that at the time of plaintiff’s layoff, defendant was attempting to reduce its workforce due to slumping sales. In addition to plaintiff, defendant terminated two white males, one in February and the other in June, 1981. Further, in February, 1982, defendant laid off three additional employees, two white males and a white female.
Thus, the burden shifted to plaintiff to show that defendant’s reasons were merely pretextual. As this Court noted in Clark v Uniroyal Corp, 119 Mich App 820, 826; 327 NW2d 372 (1982), to avoid a directed verdict after the defendant presents a legitimate nondiscriminatory reason rebutting plaintiff’s prima facie case of discrimination,
the plaintiff must put forth factual allegations to raise a triable issue of fact as to whether the proffered reasons were mere pretext. Thus, a plaintiff must present factual allegations allowing the inference that the defendant had a discriminatory reason that was more likely its true motivation or factual allegations that show the defendant’s proffered reason was unworthy of credence. The plaintiff must set forth specific facts showing that there is a genuine issue for trial; conclusory allegations are insufficient to rebut evidence of nondiscriminatory conduct. [Citations omitted.]
In the present case, plaintiff presented evidence raising a triable issue of fact as to whether defendant’s proffered reasons were merely a pretext. There was evidence that after plaintiff was laid off two white male employees were hired for the warehouse. Further, there was evidence that other employees laid off after plaintiff were recalled before she was. Accordingly, we conclude that the trial judge erred in granting defendant’s motion for a directed verdict.
hi
Third, plaintiff claims the trial judge abused his discretion by admitting defendant’s written leave of absence policy when the policy was not disclosed during discovery. Plaintiff claims she was prejudiced by the fact that the policy was not disclosed to her until her trial. However, since this case is being remanded for a new trial, any claim of prejudice by admission of the policy is now moot.
To assist the court should the issue arise again, we conclude that the trial judge did not abuse his discretion in admitting the document. MCR 2.313(B)(2)(b) does not require the exclusion of evidence not properly disclosed during discovery but instead grants the trial judge the discretion to exclude such evidence. The imposition of sanctions for failure to comply with a discovery order is a matter within the trial court’s discretion. This Court will not reverse a trial judge’s decision not to exclude documents and evidence from trial absent a finding that the trial court abused its discretion. Farrell v Auto Club of Michigan, 155 Mich App 378; 399 NW2d 531 (1986).
There was no abuse of discretion in the instant case because, at the time of plaintiff’s motion, the substance of the policy was already before the jury through Jakubowski’s testimony. Further, plaintiff was offered and refused a mistrial, thus waiving any error. Osborn v League Life Ins Co, 20 Mich App 19; 173 NW2d 724 (1969).
IV
Last, plaintiff argues that the trial judge abused his discretion by excluding from evidence defendant’s answers to interrogatories which, plaintiff argues, would have assisted plaintiff in establishing a prima facie case of race and sex discrimination.
This issue is now moot since we have concluded that plaintiff did establish a prima facie case. Nonetheless, we address the issue because it may reassert itself upon retrial since the statistical evidence might be relevant to the issue of pretext.
The admission or exclusion of evidence is within the sound discretion of the trial court and this Court will not reverse unless that discretion is abused. Zokas v Friend, 134 Mich App 437; 351 NW2d 859 (1984). The use of statistics may be relevant in establishing a prima facie case of discrimination or in showing that the proffered reasons for a defendant’s conduct are pretextual. McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).
In the present case, the trial judge refused admission of the statistics without stating his reasons on the record. In the face of the potential relevancy of the statistics, we hold that this was error. If the issue should reassert itself upon retrial, we admonish the trial judge to support his ruling on the record.
CONCLUSION
The trial judge’s ruling granting defendant’s motion for a directed verdict on plaintiff’s wrongful discharge claim and her race and sex discrimination claims is reversed and the case is remanded for a new trial.
Reversed and remanded. We do not retain jurisdiction. | [
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Per Curiam.
Defendant was charged with carrying a concealed weapon, MCL 750.227; MSA 28.424. A supplemental information charging defendant as an habitual offender was also filed. Defendant was on parole from a conviction for armed robbery at the time of the alleged offense. He pled guilty to attempted carrying of a concealed weapon. In exchange for his plea, the supplemental information was dropped. Sentenced to twenty to thirty months’ imprisonment, defendant appeals as of right from his sentence.
Defendant claimed that he borrowed the weapon from his ex-girlfriend for the purpose of assuaging his current girlfriend’s fears of harassment. Her fear was prompted by recent vandalism to defendant’s automobile, which defendant attributed to his present occupation as a prison guard. Defendant’s arrest occurred following a stop for speeding. The state trooper who stopped defendant asked him what was in a bag lying beside defen dant’s feet. Defendant handed the bag to the trooper and acknowledged that it contained a gun. Defendant further claimed that he had intended to return the weapon that weekend. Defendant admitted that he had a lengthy juvenile record. However, he urged the trial court to consider his continuous two-years’ employment since his parole and his lack of malicious intent. The sentencing guidelines applicable to defendant recommended a minimum sentence of zero to twelve months’ incarceration. This recommendation took into account defendant’s juvenile record and his prior conviction for armed robbery. In deviating from the guidelines, the trial court focused on defendant’s prior record, that defendant had been paroled from the armed robbery conviction after only serving approximately one-half of his minimum term, and that defendant’s present conviction involved a weapon.
Our review of a sentence is limited to whether the sentencing court abused its discretion to the extent that it shocks the conscience of this Court. People v Coles, 417 Mich 523, 550-551; 339 NW2d 440 (1983). We find that the sentence imposed in this case was excessively severe, and accordingly we reverse.
As the Court noted in Coles, an "excessively severe” sentence is "one which far exceeds what all reasonable persons would perceive to be an appropriate social response to the crime committed and the criminal who committed it.” 417 Mich 542-543. We believe that defendant’s sentence far exceeds the need to discipline defendant or to protect society. While we recognize that carrying a concealed weapon is a serious offense, a number of mitigating circumstances accompanied the commission of this crime. First, defendant was moti vated by a desire for self-protection. This desire was reasonable in light of two instances of vandalism to his automobile within a month. Further, there was no indication that defendant ever intended to use the weapon. He was merely carrying it in a bag in his automobile. When questioned about the contents of the bag, defendant voluntarily turned the bag over to the trooper and acknowledged the presence of the weapon.
Moreover, the sentence imposed disregards the significant progress defendant has made since his parole. Not only has he been employed continuously for two years, the instant offense appears to be his first contact with the criminal justice system since his parole. We further note that the sentencing court apparently placed a negative connotation on defendant’s early release from prison. Because the release was the result of defendant’s good behavior while in prison, the timing of his release should be considered a positive factor.
We further hold that defendant’s resentencing should be performed by a different judge. While the record does not indicate any bias towards defendant by the original judge, we believe that reassignment is advisable to preserve the appearance of justice and fairness. It would be unreasonable to expect the trial judge to be able to put out of his mind his previously expressed views and findings without substantial difficulty. Further, the advancement of the interests of justice and fairness outweigh any waste or duplication which might incidentally occur. People v Evans, 156 Mich App 68, 72-73; 401 NW2d 312 (1986).
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Per Curiam.
Plaintiffs’ decedents were killed when their pickup truck, driven by decedent Blanch Chandler, heading southbound on M-40 collided with a vehicle heading westbound on M-43 and driven by Vickie Sholes. The collision occurred at the intersection of the two highways in Van Burén County. The Chandler vehicle either did not stop or it failed to come to a complete stop at the stop sign on M-40. In each case, plaintiffs sought recovery against the Department of Transportation alleging that it violated its statutory duty to maintain the road in reasonable repair and in a condition reasonably safe and fit for travel. MCL 691.1402; MSA 3.996(102). The cases were consolidated by the Court of Claims. Sitting without a jury, the lower court entered a judgment of no cause of action against plaintiffs and each appeals as of right.
Plaintiffs dispute the finding of the trial court that defendant was not negligent in its maintenance and installation of traffic control devices at the intersection in question.
All governmental agencies, state and local, remain statutorily liable for injuries arising out of the failure to maintain a highway in reasonable repair. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 591; 363 NW2d 641 (1984). MCL 691.1402; MSA 3.996(102) provides in pertinent part:
Each governmental, agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.
The statutory duty imposed upon defendant includes the duty to post signs at points of special danger to motorists, including intersections: specifically, signs sufficient to give adequate warning of the danger. Grof v Michigan, 126 Mich App 427, 434; 337 NW2d 345 (1983).
Evidence was presented in the instant case of various warning signs on M-40 leading up to the intersection. Specifically, a "stop ahead” warning sign was positioned on the right shoulder of southbound M-40, approximately 750 to 1,000 feet before the intersection. In 1979, a second stop ahead warning sign was placed on the left shoulder and set off slightly from the first. Three other signs were positioned between the stop ahead signs and the intersection indicating that there was an intersection ahead. A standard thirty-six-inch stop sign was positioned at the intersection on the right shoulder of M-40. Above the intersection was a twelve-inch flashing red beacon and a hanging forty-inch internally illuminated stop sign. According to the evidence presented, there was clear vision for 1,500 feet each way at the intersection.
At trial, plaintiffs contended that four-way stop signs should have been installed at the intersection. Plaintiffs’ expert witness, Dr. Donald Cleveland, an engineering expert in traffic design and traffic control devices, noted that over the past seven years there were ninety-six reported accidents at the intersection. Of those ninety-six accidents sixty-four involved right-angle collisions, the type of collision that occurred in the present case. Dr. Cleveland opined that, in the majority of cases, the cause of the accidents was driver failure; specifically, failure to stop on M-40. Dr. Cleveland felt that a four-way stop was necessary to make the intersection safe. Evidence was presented of two studies of similar intersections, the Lebel study and the Briglia study. In each study four-way stop signs were installed at the subject intersections and dramatic improvement in safety of the intersections occurred.
Edwin H. Miller, district traffic and safety engineer with the Department of Transportation, and the person responsible for traffic control devices at the intersection in question, testified that four-way stop signs were considered for the intersection but were not installed. Miller believed that four-way stop signs would not be practical in solving the problems of people failing to stop at an already existent stop sign. Miller verified that subsequent to the installation of the various traffic control devices now in existence at the M-40 and M-43 intersection, the incidence of accidents at the intersection decreased.
In entering the judgment of no cause of action against plaintiffs, the trial court found that the Department of Transportation was not negligent in failing to install four-way stop signs at the intersection in question:
The issue put to me, as I see it, was the engineer in charge, Mr. Miller, negligent in his .discretionary decision not to put up four-way signs with the knowledge that he had.
So, the issue is was the installation of the stop ahead sign some twelve hundred fifty (1250) feet back from the intersection, a second stop ahead notice sign on the left of the intersection approaching the stop sign, an overhead twelve (12) inch flashing red light, a forty (40) by forty (40) overhead internally illuminated sign, and the opposite less travelled intersection with the yellow flasher, is that a reasonable safety sign device under the condition existing at that time?
I listened carefully to the reasons why a four- way stop sign was testified to by the plaintiffs expert. I listened carefully to and [sic] the report, the study by Doctor Labelle [sic], and there is no question in the Court’s mind that Mr. Miller had the information concerning the four-way stop at that time in 1979. He also was aware of the number of accidents at the intersection. He was aware that the State Police had complained that this was a dangerous intersection and that some citizens had made the same complaint.
Now, I point out when I say dangerous intersection, it is not synonymous with reasonably safe and fit for public travelled [sic] condition. They are not synonymous.
I listened carefully to the testimony of the two (2) State Police officers and to the other parties that were called and said in their opinion this was a dangerous intersection. I also noted nobody asked them if this was reasonably safe and fit for public travel, which is the criteria that I have to judge by and I’m saying dangerous intersection and reasonably safe and fit for travel are not the same. I think everybody recognizes that.
I was impressed with the truck driver that indicated in answer to the question in your opinion is this a dangerous intersection and he said yes and no. A kind of wishy washy answer, but he explained it very carefully. He said if you are paying attention, it’s not a dangerous intersection. If you are not paying attention, it’s dangerous. Well, that’s true with everything.
So, I listened carefully as to the reasons they gave for their determination as to why this was a dangerous intersection and the reason came that it was the number of accidents. I don’t know of anything that says I can take from a statement that a number of accidents making people decide it’s a dangerous intersection is substantial reason for changing it, because there can be several accidents at any place and still not be the reason for the dangerous intersection.
There was also testimony that a four-way stop by Labelle’s study was most effective when they stop and then fail to yield right-of-way type of accident. And not necessarily for those running a stop sign. I weighed that also.
Now, in weighing that decision I also have to take in the testimony of what happened at this intersection under the circumstances that Mr. Miller studied this and made a decision. My notes indicate that it was effective in 1978. There were eleven (11) or nine (9) accidents at this intersection. There is this little discrepancy in this. In 1979 there were nine (9) accidents and in 1980 there were six (6) accidents. In 1981 up until the date of this accident, there were zero (0) to the date of the accident in April of 1981.
Mr. Fette did in fact argue the position and I took that into account that in the first quarter of each of these years there was not much change in the accident rate. I believe the better analysis and I so hold is to take the yearly figure to see if it’s effective. From the testimony here, which is not disputed, certainly from 1978 to 1981 the stop signs and the signs at the intersection certainly were effective to cut down on accident rate and, after all, that’s the duty of the engineer.
So, it’s my opinion, after reading all of the matters, considering all of the evidence, it’s my opinion that Mr. Miller was not negligent in' deciding that the intersection as he had it with the stop ahead on the right and the left with the cross road through trafile signs, with the overhead flashing light and the big, long illuminated sign, he was not negligent in making that decision to upgrade that in 1979.
This Court will not set aside the trial court’s findings of fact unless they are clearly erroneous. MCR 2.613(C). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976); Peterson v Dep’t of Transportation, 154 Mich App 790,.795; 399 NW2d 414 (1986). We cannot find in this case that the trial court’s findings were clearly erroneous. The evidence supports the trial court’s findings that the decision of whether to install a four-way stop sign was discretionary; that defendant had taken steps to improve the safety of the intersection; that the smooth flow of traffic was a safety factor; and that a four-way stop sign was not necessarily the most effective method of reducing the type of accident that occurred in this case, i.e., one arising out of the failure to stop at the existing stop sign.
Finally, the trial court correctly found that although there were numerous accidents at the intersection since 1978, the yearly accident rate had been reduced through the use of the control devices existing since 1979. In view of these well-supported findings, we conclude that the trial court did not err in finding that defendant was not negligent in failing to install four-way stop signs.
We disagree with plaintiffs’ contention that Grof, supra, is applicable. In that case the court found defendant negligent in failing to carry out its own work order after it had determined that the existing control devices at the subject intersection were not adequately controlling traffic. The court declined to decide whether defendant’s exposure to liability might have been different in the absence of such a determination by it or in the absence of such a work authorization.
Affirmed.
Between the stop ahead signs and the intersection were a sign indicating "junction M-43,” a highway number directional sign indicating M-40 straight ahead, and M-43 with arrows to right and to the left, and a sign indicating Paw Paw straight ahead, Kalamazoo to the left, and South Haven to the right. | [
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G. R. McDonald, J.
Plaintiff appeals as of right from an April 29, 1986, judgment of no cause of action in favor of defendant Taylor AMC/Jeep, Inc., on count v of plaintiff’s complaint entitled "Slander Per Se,” and an April 25 and 29, 1986, judgment for attorney fees and costs in favor of defendants American Motors Sales Corporation (amc) and Taylor.
Plaintiff worked for Taylor for approximately twelve years, the last eight years as parts manager. Plaintiff’s employment was terminated in June, 1982, for his alleged involvement with stolen parts.
During his employment as parts manager, one of the employees under plaintiff’s supervision was Laurie Cherup. Around the beginning of 1982, plaintiff had to discipline Cherup and eventually fire her. Rick Howard, the amc branch manager responsible for Taylor amc, reinstated Cherup and told plaintiff to leave her alone. Howard and Cherup were involved in a physical relationship in late 1981 or early 1982. Following plaintiff’s termination, Cherup became the new parts manager. Cherup was overheard on several occasions telling customers over the phone that plaintiff was no longer parts manager because plaintiff had "gotten caught stealing,” and that plaintiff was fired "for being involved in theft of parts.”
Plaintiff testified that he was not involved with stolen parts for profit or personal gain, but was working with Taylor Police Officer James Black in an attempt to set up persons attempting to sell stolen parts to Taylor. On June 15, 1982, plaintiff was contacted on the phone and asked if he wanted to buy a Jeep hardtop. The phone call made plaintiff suspicious that the hardtop was stolen, so plaintiff called Black, a personal friend, for advice. Black advised plaintiff that the police would need "hard evidence” such as names and driver’s license numbers of the suspects. Plaintiff purchased two hardtops which he suspected to be stolen, and placed them in the back of the parts department. When another Taylor employee indicated that a customer was interested in purchas ing one of the hardtops, plaintiff responded that they were not for sale as he had reason to believe the hardtops were stolen. Plaintiff was fired the same day Black was allegedly going to write up a report on the stolen goods.
On December 28, 1982, plaintiff filed a complaint against both defendants amc and Taylor alleging in part claims for wrongful discharge, sex discrimination, breach of contract and slander. All counts were dismissed as to defendant amc on March 25, 1986.
On April 29, 1986, a jury verdict of no cause of action in favor of defendant Taylor on plaintiff’s slander and sex discrimination claims was received by the court. The jury also returned a verdict in favor of plaintiff against defendant Taylor on plaintiff’s wrongful discharge claim in the amount of $9,610 inclusive of costs and interest. On appeal, plaintiff does not seek review of the verdict of no cause of action entered on the sex discrimination claim and the dismissal on all counts as to defendant amc. The entirety of the appeal questions the propriety of the verdict of no cause of action on the slander claim and the reasonableness and necessity of the attorney fees awarded by the trial court.
Plaintiff first requests a new trial on the slander claim. Plaintiff argues that the trial court erred in instructing the jury on qualified privilege and actual malice. We agree.
A communication is defamatory if it tends to lower an individual’s reputation in the community or deter third persons from associating or dealing with him. Swenson-Davis v Martel, 135 Mich App 632; 354 NW2d 288 (1984). Slander per se is found where the words spoken are false and malicious and are injurious to a person in his or her profession or employment. Swenson-Davis, supra.
Here, the trial court found that Cherup’s statements about plaintiff to defendant’s customers were protected from action by a qualified privilege. The initial determination of whether a privilege exists is one of law for the court. Lawrence v Fox, 357 Mich 134; 97 NW2d 719 (1959). In general, a qualified privilege extends to "all communications made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty . . . .” Swenson-Davis, supra, p 636.
Thus, in order to have a qualified privilege, the communication must be: (1) bona fide; (2) made by a party who has an interest, or a duty to communicate the subject matter; and (3) made to a party who has a corresponding interest or duty.
Although in the instant case neither party addresses the first prerequisite, the "bona fide” nature of the communication, we question whether Cherup’s statements were bona fide. Not only had plaintiff previously fired Cherup, but there was testimony indicating that another employee overheard a conversation between Cherup, Howard and two others regarding possible ways in which to "get rid of’ plaintiff, and wherein Howard allegedly suggested that they "link” plaintiff with some stolen parts.
Nonetheless, even if the statements were bona fide, we find that they do not meet the remaining two requirements. The problem with determining if a qualified privilege applies is that privilege varies with the situation; it is not a constant. Harrison v Arrow Metal Production Corp, 20 Mich App 590; 174 NW2d 875 (1969). Defendant Taylor contends that the particular facts of this situation call for the application of qualified privilege, argu ing that it had a duty to inform customers that the parts manager (plaintiff) had been fired for purchasing stolen parts. Taylor asserts that if the customers were not presently told and found out years later that stolen parts were purchased from Taylor, they would cease to do business with the dealership. In Taylor’s opinion, the potential detrimental effect on customer relations justifies the application of qualified privilege to the statements. We disagree.
For defendant’s argument to have merit, and before defendant could acquire an interest in telling customers why plaintiff was fired, a determination should have been made as to whether stolen goods were actually sold to customers. Taylor knew that plaintiff had possession of the Jeep hardtops. There was no reason to believe that any stolen goods ended up in customers’ hands. Therefore, there was no qualified privilege to tell customers that plaintiff was fired because he dealt with stolen parts. Thus, absent evidence that stolen parts had been passed along to customers, plaintiff’s good name should have, been protected by not allowing an employee to tell customers why plaintiff was fired. When dealing with a duty/interest privilege, the Michigan Supreme Court has said "the occasion determines the question of privilege.” Bacon v The Michigan C R Co, 66 Mich 166; 33 NW 181 (1887). The instant occasion did not give the employer a qualified privilege to defame plaintiff.
Furthermore, we find no corresponding interest or duty to hear the communication on the part of the customers. In Merritt v Detroit Memorial Hospital, 81 Mich App 279; 265 NW2d 124 (1978), this Court stated that an employer has a qualified privilege to tell those of its employees responsible for hiring and firing of accusations of employee misconduct. However, an employer cannot tell all employees why someone was fired in order to quiet rumors or restore morale. Sias v General Motors Corp, 372 Mich 542; 127 NW2d 357 (1964). In the instant case Taylor does not allege or offer proof that any customer received stolen goods purchased from plaintiff. If Taylor had a good faith belief that stolen auto parts had been sold to a particular customer, the customer may have had an interest, but that is not the situation in the instant case. Here, the customer’s interest is like the employees’ interest in Sias: just a general interest or curiosity in finding out why a former employee was fired.
The trial court erred in instructing the jury that a qualified privilege existed. Absent the existence of a qualified privilege, plaintiff would not have been required to prove actual malice. We cannot say that the instructional error was harmless beyond a reasonable doubt and therefore reverse for a new trial.
We reject plaintiff’s claim that the attorney fees awarded to defendants Taylor and amc were unreasonable. However, because plaintiff is entitled to a new trial on the slander claim against defendant Taylor, the award of attorney fees in favor of Taylor, whether incurred by amc’s attorney on behalf of Taylor or by Taylor’s counsel, must be reversed. The fees were awarded pursuant to the mediation court rule, MCR 2.405, for plaintiff’s failure to sufficiently improve his position. Since it is possible that plaintiff may in fact sufficiently improve his position on retrial, any award of attorney fees as to defendant Taylor is premature. However, the award of fees on behalf of defendant amc, incurred up to the date of dismissal, is affirmed, plaintiff not having appealed the dismissal order as to amc.
Reversed and remanded. | [
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R. R. Lamb, J.
In this consolidated appeal, the people appeal by leave granted from a Wayne Circuit Court order reversing a Wayne County Probate Court, Juvenile Division, decision waiving jurisdiction over the minor defendant to the circuit court. Defendant appeals as of right from his Wayne Circuit Court jury convictions on two counts of assault with intent to murder, MCL 750.83; MSA 28.278, one count of armed robbery, MCL 750.529; MSA 28.797, one count of assault with intent to rob while armed, MCL 750.89; MSA 28.284, and one count of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). We reverse the circuit court’s finding of improper waiver, reinstate the order of waiver and affirm defendant’s convictions.
On August 22, 1985, at approximately 11:30 p.m., defendant, then sixteen years old, and a companion, then fourteen years old, forced their way at gunpoint into a Taco Plaza restaurant located in Dearborn Heights. Once inside the restaurant, defendant and his companion encountered store employees Karen Kuderick and Cheryl Godfrey and Godfrey’s boyfriend, Keith Cummings. Defendant, with sawed-off shotgun in hand, herded the three into a small office where the store’s safe was located. There, Kuderick and Godfrey were ordered to open the safe. While Kuderick was attempting to do so, the gun discharged, wounding Godfrey and Cummings. The robbers then fled with Kuderick’s purse. They later turned themselves in to the authorities.
Prior to trial, the Wayne County Probate Court, Juvenile Division, held two hearings to determine whether there existed probable cause to believe that defendant committed the charged offenses, MCL 712A.4(3); MSA 27.3178(598.4)(3); MCR 5.950(B)(1), and whether the interests of defendant and the public would best be served by waiving jurisdiction to the circuit court, MCL 712A.4(4); MSA 27.3178(598.4)(4); MCR 5.950(B)(2). On November 19, 1985, the probate court issued its findings of fact and conclusions of law; it ruled that jurisdiction over defendant be waived to circuit court.
Trial commenced in circuit court on February 6, 1986. On February 10, 1986, defendant filed an appeal in the Wayne Circuit Court challenging the probate court’s waiver of jurisdiction. During the pendency of this appeal, defendant was tried, convicted on all counts and sentenced to twelve to twenty-five years imprisonment on each of the two assault with intent to murder convictions, five to fifteen years imprisonment on the armed robbery conviction, five to fifteen years imprisonment on the assault with intent to rob while armed conviction, and two years imprisonment on the felony-firearm conviction. Thereafter, on August 4, 1986, the circuit court entered an order reversing the probate court’s decision to waive jurisdiction.
On appeal, plaintiff challenges the circuit court’s finding that the probate court improperly waived its jurisdiction over defendant. When a child has reached the age of fifteen and has been accused of any act the nature of which constitutes a felony if committed by an adult, the probate court in the county wherein the offense allegedly occurred may waive jurisdiction over the minor upon motion of the prosecuting attorney. MCL 712A.4(1); MSA 27.3178(598.4)(1). Five criteria must be considered by the probate court in determining whether jurisdiction should be waived:
(a) The prior record and character of the child, his physical and mental maturity and pattern of living.
(b) The seriousness of the offense.
(c) Whether the offense, even if less serious, is part of a repetitive pattern of offenses which would lead to a determination that the child may be beyond rehabilitation under existing juvenile programs and statutory procedures.
(d) The relative suitability of programs and facilities available to the juvenile and criminal courts for the child.
(e) Whether it is in the best interests of the public welfare and the protection of the public security that the child stand trial as an adult offender. [MCL 712A.4(4); MSA 27.3178(598.4X4). See also MCR 5.950(B)(2).]
No one criterion shall be given preeminence over the others. People v Schumacher, 75 Mich App 505, 512; 256 NW2d 39 (1977). An order waiving jurisdiction will be affirmed whenever the judge’s findings, based upon substantial evidence and thorough investigation, show either that the juvenile is not amenable to treatment or that, despite his potential for treatment, the nature of his difficulty is likely to render him dangerous to the public, if released at age nineteen, or to disrupt the rehabilitation of other children in the program prior to his release. People v Dunbar, 423 Mich 380, 387; 377 NW2d 262 (1985), reh den 424 Mich 1201 (1985).
On September 18, 1985, probable cause was established by stipulation of the parties for the purpose of phase one of the waiver hearing. On November 14, 1985, the probate judge heard the testimony of two expert witnesses who had conducted a complete psychosocial background investigation of defendant. He also heard testimony of two additional expert witnesses who were familiar with the resources available in both the adult and juvenile correctional systems. Based on the testimony of these four witnesses, the probate court found: that defendant had no prior criminal record or contact with the probate court; that defendant was physically mature but emotionally immature; that defendant’s home life had been devoid of adult male leadership and guidance; that defendant’s mother demonstrated a distinct lack of insight into her son’s emotional development; that defendant’s home life and pattern of living lacked sorely in guidance; that the offenses committed were "most serious”; that defendant planned and executed the robbery with much premeditation and deliberation in order to secure money to pay a debt owed to a drug distributor incurred through the sale of cocaine; that defendant’s actions in planning and executing the robbery and his motivation to do so constituted "a repetitive pattern of offenses by a sociopathic young man well past rehabilitation under the regulatory [sic] statutory juvenile procedures and the time restraints thereon”; that facilities and programs provided by the juvenile correctional system and Department of Social Services were unsuitable to the needs of defendant; that defendant needed to participate in a structured treatment program for a period of time longer than could be offered by the juvenile correctional system; that, because of defendant’s needs for extended treatment, an adult correctional facility would be better able to provide the programs and facilities needed to rehabilitate defendant; and that, in the interest of public welfare and for the protection of society, defendant must stand trial as an adult. After making these findings, the probate judge waived jurisdiction over defendant to the circuit court.
We quarrel with but one of the probate court’s findings. On our review of the proceedings, it is clear to us that defendant lacked a prior criminal record. Lacking such a record, the instant offense could not be "part of a repetitive pattern of offenses.” The probate court’s finding to the contrary was clearly erroneous. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). Nevertheless, we do not believe that the probate court’s error warrants reversal of its decision to waive jurisdiction. There was substantial evidence on the record that defendant’s potential for rehabilitation was extremely limited and that the'nature of defendant’s emotional and intellectual difficulties were likely to render him dangerous to the public if he were to be released at age nineteen. As our Supreme Court pointed out in Dunbar, supra, pp 396-397:
Society must be protected from dangerous individuals, but the Legislature intended that the long-term protection for society is to come from the successful rehabilitation of the juvenile. Where the prospects for a juvenile’s rehabilitation are so slim that society’s protection requires a waiver, waiver must be ordered.
We note that the circuit court’s decision to reverse was premised on three errors. First, the circuit court misinterpreted and misapplied A Juvenile v Commonwealth, 380 Mass 552; 405 NE2d 143 (1980). This case does not, as asserted by the circuit judge, stand for the proposition that a transfer to adult prosecution should not be ordered for first-time juvenile offenders. Instead, we read A Juvenile v Commonwealth, supra, to stand, inter alia, for the proposition that the lack of a prior criminal record suggests a good prognosis for the rehabilitation of the juvenile offender. Id., 380 Mass 561; 405 NE2d 149. Properly read, it is clear that the Massachusetts case is factually distinguishable from the case at hand.
Thomas Regan, a psychologist employed by the Wayne County Probate Court’s Clinic for Child Study, testified that he gave numerous psychological and aptitude tests to defendant. Regan found defendant to be a passive, lethargic individual who lacks adequate verbal skills. Intellectually, defendant’s iq falls within the "slow learner” range and, therefore, defendant is considered borderline mentally retarded. His reading and mathematics skills have developed to a fourth-grade level. Even with intensive remedial help, defendant could not graduate from high school or obtain a ged. At best, defendant’s reading and mathematics skills could be raised to the fifth- or sixth-grade level. He could, however, be taught a trade and thereby learn to support himself.
Regan further testified that defendant lacks the requisite emotional and personality resources to cope with everyday existence and to relate in a meaningful way to others. He believed defendant to be primarily an immature, self-centered, self-indulgent person. Defendant harbors much hostility and demonstrates a disregard for- authority and social convention. His judgment is poor. He lacks the ability to empathize. Regan also testified that defendant’s reality testing is impaired; he misperceives and distorts much of what he experiences. Regan described defendant’s personality makeup as sociopathic. He then told the probate judge that individuals with such a personality makeup need adventure and excitement and tend to satisfy these needs through criminal activity. Based on his evaluation of defendant, he concluded that defendant lacks many of the necessary resources for successful rehabilitation. At best, Regan opined, defendant’s prognosis for rehabilitation is guarded.
In light of Regan’s testimony, we conclude that the circuit court erred in relying on A Juvenile v Commonwealth, supra.
Second, the circuit court committed clear error when it found that the probate court made inadequate findings on factor (d), the relative suitability of programs and facilities available to the juvenile and criminal courts for the child. Our Supreme Court has held that there must be evidence on the record, to which the probate court must refer, regarding the relative suitability of the programs and facilities available in the juvenile and adult correctional systems. Dunbar, supra, p 388. Moreover, the probate court’s findings of fact must be sufficiently specific for meaningful appellate review. People v Mahone, 75 Mich App 407, 413; 254 NW2d 907 (1977).
At the phase two hearing, Garry Kasenow, a parole supervisor for the Department of Corrections, testified as to the programs and facilities available if defendant was to be incarcerated in an adult correctional facility. Jennie Foster, an administrator for the Department of Social Services, testified as to the programs and facilities available if defendant was incarcerated in a juvenile correctional facility. She also testified that the juvenile programs keep the "average” juvenile offender twelve to fifteen months. Regan testified that, although the juvenile correctional facilities had programs that would prove beneficial to defendant, he believed that defendant needed to undergo rehabilitative treatment for a period of time longer than could be provided by the juvenile system. Specifically, Regan recommended a period of incarceration of three to five years. The probate judge referenced this testimony and relied upon it to support his finding that the juvenile facilities were not able to provide the treatment required by defendant. We find no error in his doing so.
Third, we disagree with the circuit court’s finding that factor (e), whether the best interests of the public welfare and the protection of public security require the child to stánd trial as an adult offender, does not apply on the facts of the instant case. Given defendant’s sociopathic personality and the slim likelihood that defendant can be rehabilitated within the time frame available to the juvenile court system, it is clear that society’s protection requires waiver. The probate court correctly found so.
Next, we turn to defendant’s claims of error arising out of his criminal trial in the circuit court. Defendant raises three such claims. We find them all without merit.
Defendant first argues that allowing Cheryl Godfrey to testify as to the seriousness of her injuries was prejudicial. We find that Godfrey’s testimony was admissible to show the aggravated nature of the assault. People v Sutherland, 104 Mich 468, 472; 62 NW 566 (1895); People v Cope, 18 Mich App 14; 170 NW2d 495 (1969), rev’d on other grounds 383 Mich 757 (1969).
Defendant next argues that the trial court abused its discretion when it permitted Eric Stacker to testify that he overheard defendant and defendant’s accomplice talking on the night of the crime and that one of them, which one Stacker could not say, told a third party that "we’re getting paid tonight.” It is well settled that admissions and statements are admissible against another defendant if there exists a concert of action between the defendants and the statements are made while the common scheme or plan is still in effect. People v Ayoub, 150 Mich App 150, 152; 387 NW2d 848 (1985), lv den 425 Mich 868 (1986). Here, the evidence showed that there existed a concert of action between defendant and his ac complice and that the statement was made while the common plan was in effect. Accordingly we find that Stacker’s testimony was properly admitted.
Finally, defendant argues that defense counsel’s failure to file a timely appeal from the probate court’s waiver of jurisdiction amounted to ineffective assistance of counsel. According to defendant, defense counsel’s inaction deprived him of a substantial defense, to wit: the circuit court’s lack of jurisdiction to try defendant as an adult.
In the instant case, defense counsel did appeal the waiver issue and did secure a ruling favorable to defendant. On these facts we do not find that counsel was ineffective. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977); Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
Accordingly, we reverse the circuit court’s decision to vacate the probate court’s waiver order. We reinstate the probate court’s order of waiver of jurisdiction to the criminal court. We affirm defendant’s convictions. | [
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B. A. Jasper, J.
Plaintiffs Michigan Education Special Services Association and The Equitable Life Assurance Society of the United States (elas) appeal as of right from an order entered on June 23, 1986, granting summary disposition in favor of defendant Michigan Commissioner of Insurance. In their complaint, plaintiffs sought a declaratory judgment from the trial court holding §2021 of the Michigan Insurance Code of 1956, as amended, MCL 500.2021; MSA 24.12021, violative of Const 1963, art 4, § 24. In granting summary disposition to defendant, the trial court found that § 2021 does not violate Const 1963, art 4, § 24. We affirm._
Messa is a tax-exempt voluntary employees’ beneficiary association organized as a nonprofit membership corporation. Messa provides insurance benefits for school employees and administrators throughout the State of Michigan by obtaining group insurance policies covering its members. During the time period relevant to this case, messa’s health insurance underwriter was elas.
In 1983, messa received requests from two of its members, Ferris State College and the Bay City Public Schools, for insurance rating information specific to those members’ employees. Messa refused to provide the requested information, claiming that the information was not readily available and that release of such information to its members could defeat the benefit of plaintiffs’ method of setting rates through the use of broad geographical locations. Plaintiffs contend that, if an employer were to learn that its experience was unusually good, the employer could use that information to obtain lower-cost health insurance elsewhere. Conversely, an employer who learned that its experience was unusually bad would retain its existing coverage to take advantage of other employers’ better experiences. This "self-selection,” plaintiffs argue, would defeat the overall benefits of averaging among a large group of individuals.
Following the filing of complaints with defendant by Ferris State College and the Bay City Public Schools, defendant commenced administrative proceedings against plaintiffs with respect to alleged violations by plaintiffs of § 2021. Section 2021 provides:
An unfair method of competition and an unfair or deceptive act or practice in the business of insurance includes failure by a rating organization and an insurer which makes its own rates, within a reasonable time after receiving written request therefor and upon payment of such reasonable charge as it may make, to furnish to any insured affected by a rate made by it, or to the authorized representative of such insured, all pertinent information to such rate.
Plaintiffs asserted as an affirmative defense that § 2021 was void and unenforceable because it was passed by the Michigan Legislature in violation of Const 1963, art 4, § 24. The parties stipulated to hold the administrative proceeding in abeyance pending judicial resolution of the constitutional challenge.
Plaintiffs filed their complaint for declaratory relief on August 31, 1984. Plaintiffs’ motion for summary disposition was denied by the trial court on November 18, 1985, following issuance of a bench opinion finding §2021 to be constitutional. The June 23, 1986, order granting summary disposition to defendant indicated that the defendant’s motion was granted "for the reasons set forth from the bench on November 14, 1985.”
Plaintiffs raise two issues on appeal. Plaintiffs argue: (1) the trial court applied an improper standard in determining the constitutionality of § 2021; and (2) the trial court erred in ruling that § 2021 was not enacted in violation of Const 1963, art 4, § 24.
Legislation challenged on a constitutional basis is presumed to be constitutional. Johnson v Harnischfeger Corp, 414 Mich 102, 112; 323 NW2d 912 (1982). Courts have a duty to construe a statute as constitutional unless the unconstitutionality is clearly apparent. Rohan v Detroit Racing Ass’n, 314 Mich 326, 342; 22 NW2d 433 (1946). This presumption of constitutionality equally applies where a statute is challenged on the basis that it was not enacted in accordance with constitutional procedural requirements. United States Gypsum Co v Dep’t of Revenue, 363 Mich 548, 556; 110 NW2d 698 (1961). The record fails to support plaintiffs’ contention that the trial court reviewed the constitutionality of § 2021 under an improper standard. Rather, the trial court’s presumption of constitutionality is mandated by law.
Plaintiffs alternatively argue that the trial court, by failing to limit application of § 2021 only to workers’ compensation insurers, misapplied the rule of statutory construction which provides that statutes are to be interpreted in such a manner as to render them constitutional rather than unconstitutional. Bohn Lumber Products Co v Public Service Comm, 317 Mich 174, 184; 26 NW2d 875 (1947). However, plaintiffs’ complaint did not request a declaration limiting application of § 2021 to workers’ compensation insurers; instead, plaintiffs sought a declaration on the threshold issue of the constitutionality of § 2021, assuming § 2021 does not apply only to workers’ compensation insurers. Moreover, the rule of construction alleged by plaintiffs to have been violated by the trial court does not apply where a statute is plain and unambiguous. Collins v Waterford Twp School Dist, 118 Mich App 798, 804; 325 NW2d 585 (1982), lv den 417 Mich 998 (1983). Section 2021 plainly and unambiguously refers to all rating organizations and insurers which make their own rates, not simply workers’ compensation insurers.
The primary issue raised on appeal is whether § 2021 was enacted by the Legislature in violation of Const 1963, art 4, § 24. Section 24 provides:
No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title.
It is the second sentence of § 24, commonly known as the "change of purpose clause,” which plaintiffs allege was violated by the Legislature in the enactment of § 2021. Specifically, plaintiffs claim that the original purpose of the bill which evolved into § 2021 was to reform the workers’ compensation insurance system. Plaintiffs argue that §2021, as passed, altered the original purpose of the bill because § 2021 applies to all types of insurance.
The change of purpose clause contained in the Constitution of 1963 was included in the same article and section of the Constitution of 1908 as the "five-day rule,” Const 1908, art 5, §22. The five-day rule (now contained in Const 1963, art 4, §26) provides that no bill is to be passed at any regular session of the Legislature until it has been printed or reproduced and in the possession of each house for at least five days. The purpose behind the five-day rule and the change of purpose clause is "to preclude last-minute, hasty legislation and to provide notice to the public of legislation under consideration.” Anderson v Oakland Co Clerk, 419 Mich 313, 329; 353 NW2d 448 (1984).
In Anderson, our Supreme Court set forth the analysis to be followed by a court in determining whether enactment of a statute violated the change of purpose clause. The plaintiffs in that case claimed that 1983 PA 256, which revised the boundaries of election districts, was enacted in violation of the change of purpose clause. 1983 PA 256 was introduced as House Bill 4481, which was described as a bill of "housekeeping” amendments to the Election Law.
Citing Moeller v Wayne Co Bd of Supervisors, 279 Mich 505; 272 NW 886 (1937), the Court stated that, in analyzing whether a bill has been altered or amended, a court is not limited to the contents of the title of the bill as introduced, but may also look to the title of the act which is being amended. Since 1983 PA 256, as passed, amended nothing, there was no title of an amended act to use as the measuring device. Anderson, supra, pp 326-327.
The second part of the Anderson Court’s analysis involved an examination of the objectives of the originally introduced bill. The Court found that House Bill 4481 as finally passed served none of the objectives of the original bill: "The only similarity between original House Bill 4481 and the substitute bill as enacted was its number and the enacting clause.” Anderson, supra, p 329.
Section 2021 was originally introduced as House Bill 5162. House Bill 5162 amended certain provisions of the Insurance Code. Section 2021, as passed, describes certain conduct as being an unfair practice in the insurance business. The provisions contained in § 2021 are certainly comprehended and included in the title of the Insurance Code. Moeller, supra, p 514._
Turning to the contents of House Bill 5162, as originally introduced the bill was designed to amend provisions of the Insurance Code relating to the regulation of insurance. While included within House Bill 5162 were sections regulating workers’ compensation insurance, House Bill 5162 amended sections of the Insurance Code relating to liability insurers generally. Section 2021 serves the objectives contained in the original House Bill 5162. Accordingly, we conclude that the enactment of § 2021 did not violate the provision in Const 1963, art 4, § 24 which prohibits the alteration or amendment of a bill during its passage through either house so as to change its original purpose.
Affirmed.
As introduced, House Bill 5162 was entitled:
A bill to amend sections 2406, 2431, and 2436 of Act No. 218 of the Public Acts of 1956, entitled as amended "The insurance code of 1956,” being sections 500.2406, 500.2431, and 500.2436 of the Compiled Laws of 1970.
At the time of enactment of § 2021, the title of the Insurance Code read in full as follows:
An act to revise, consolidate, and classify the laws relating to the insurance and surety business; to regulate the incorporation or formation of domestic insurance and surety companies and associations and the admission of foreign and alien companies and associations; to provide their rights, powers, and immunities and to prescribe the conditions on which companies and associations organized, existing, or authorized under this act may exercise their powers; to provide the rights, powers, and immunities and to prescribe the conditions on which other persons, firms, corporations, and associations engaged in an insurance or surety business may exercise their powers; to provide for the imposition of a privilege fee on domestic insurance companies and associations and the state accident fund; to provide for the imposition of a tax on the business of foreign and alien companies and associations; to provide for the imposition of a tax on the business of surplus line agents; to modify tort liability arising out of certain accidents; to provide for limited actions with respect to that modified tort liability, and to prescribe certain procedures for maintaining those actions; to require security for losses arising out of certain accidents; to provide for the continued availability and affordability of automobile insurance and homeowners insurance in this state, and to facilitate the purchase of that insurance by all residents of this state at fair and reasonable rates; to provide for certain reporting with respect to insurance, and to prescribe duties for certain state departments and officers with respect to that reporting; to establish and continue a nonprofit malpractice insurance fund to provide malpractice insurance to health providers; to modify and clarify the status, rights, powers, duties, and operations of the nonprofit malpractice insurance fund; to provide for the departmental supervision and regulation of the insurance and surety business within this state; to provide for the conservation, rehabilitation, or liquidation of unsound or insolvent insurers; to provide for the protection of policyholders and claimants of unsound or insolvent insurers; and to provide penalties for the violation of this act. | [
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Kuhn, J.
The testimony taken on the trial of this case discloses that on and prior to June 2, 1917, defendant Haynes was operating a small garage on National avenue in the city of Grand Rapids, where cars were storéd for owners and repairs made as desired. Defendant Haynes was absent from Grand Rapids on that day and the defendant Curren, who was employed in the work of the garage, was left in charge. One Conrad, who had a Chevrolet car stored in the garage, had left directions that a grease leak in the right rear wheel be stopped, and a direction to that effect was written upon a tag card and attached to the car. No further direction was contained upon the card and Curren received no further instruction either from his employer, Haynes, or from the owner of the car, Conrad, or from any other person, to do any other work upon the car. It appears from the testimony of Curren that he stopped the grease leak about 9 or 10 o’clock in the forenoon of June 2d, and made an entry upon the tag card to that effect, charging for three washers and one hour’s work done, and no further entry was made upon the card, which card served as a basis for the charge to be made to the owner, Conrad, for the services rendered. The car remained standing in the garage until noon, and Conrad had not called for it. At noon the defendant Curren took the car out, for the purpose, as he says, of testing the brakes, and drove it to his home in a distant part of the city to obtain his dinner. He did not stop on the way, and on his way back did not stop until a collision occurred with the plaintiff’s motorcycle at 1:15, at the intersection of Michigan street and Ottawa avenue, which is a business portion of the city of Grand Rapids. The plaintiff testified that as he was going south on Ottawa avenue, approaching the intersection of Michigan street, knowing that it was a bad corner because to the east was a steep hill, he slackened his speed to six or seven miles an hour; that he looked to the west and saw nothing but a team of horses, and then looked to the east and saw the defendant’s automobile some 250 feet away, and he continued on his way across the intersection looking to the west, and that he did not look again towards the east and towards the oncoming automobile until it was 10 feet away and when it was too late to avoid the accident, the two vehicles coming together and the plaintiff receiving the injuries complained of in this case. It was shown that by virtue of an ordinance of the city of. Grand Rapids, the plaintiff had the right of way coming down Ottawa avenue.
The case went to trial as to the liability of the defendant Haynes, as the defendant Curren made no defense, and at the close of the proofs counsel for the defendant Haynes made a motion for a directed verdict on the grounds: First, that there was no evidence tending to prove that the status of the defendant Curren as an employee of the defendant Haynes, at the time of the alleged collision with plaintiff’s motorcycle, was such that the defendant Haynes was responsible for any negligence on the part of Curren; and second, that a verdict should be directed because of the contributory negligence of the plaintiff in recklessly driving his motorcycle in front of the rapidly approaching car without taking such precaution as the ordinarily prudent person should take, under the circumstances. The trial judge directed a verdict for the defendant Haynes for the second ground alleged, and judgment was entered in his favor. Whether or not the court erred in directing a verdict upon the record as made is the question before us for review.
Without determining whether or not the court came to a correct conclusion with reference to the second proposition advanced, we are clearly satisfied that he could have properly directed a verdict for the defendant Haynes for the first reason urged by defendant’s counsel and that the result of his action, therefore, was a just and proper one. Accepting the testimony of Mr. Curren relative to taking the car out, under the circumstances of this case, in the light most favorable to the plaintiff’s claim, we are clearly satisfied that it shows no liability on the part of the defendant Haynes. The testimony of Curren relative to this phase of the case is as follows:
“Q. And isn’t that why you were telling the jury now you were under his (Haynes’) directions and were out testing cars?
“A. I was under his employ, yes, sir. The garage is about 100 feet back in behind the house.
“Q. He has a little bit of repair shop that he takes care of cars and stores cars?
“A. Yes, sir.
“Q. And you knew this car was in there for storage?
“A. Yes, sir. * * *
“Q. And you deliberately took this car out of this garage to take, it home to dinner?
“A. I had been working on the car.
“Q. You took it home to dinner?
“A. Yes, sir.
“Q. At twelve o’clock noon?
“A. Yes, sir.
“Q. And you were coming back on the hill at quarter to one?
“A. Yes, sir.
“Q. It happened when you were coming from lunch?'
“A. When I was coming from lunch.
“Q. And when you found you were going to be a party defendant in this case, you wanted to make this man Haynes to be the defendant in this case, and. make him bear the burden?
“A. Yes, sir.
“Q. You always enter up everything you do on a car?
“A. No, sir.
“Q. Keep a time slip?
“A. I do now.
“Q. Haynes could not charge for anything if you didn’t?
“Mr. Limey: Haynes.
“Q. You did that then?
“A. Yes, sir. * * *
“Q. Now, when you got through the work on this machine, you wrote it down on a card?
“A. I don’t remember whether I did or not.
“Q. He could not charge for it unless you did?
“A. A card was put in for the car before the repair work was done.
“Q. Was there anything said on that card about testing brakes?
“A. Didn’t say anything about testing brakes.
“Q. Of course it did not, and you knew that car was not in there for any brake testing purposes, didn’t you?
“A. Yes, sir, I did.
“Q. And you knew as a matter of fact that the only thing that car was in there for was to see why the rear hub on the right wheel was leaking grease?
“A. Yes, it was.
_ “Q. And you knew the rest of the time it stood right there, storage car, keeping it for him?
“A. Yes, sir.
“Q. And you know that that day it was noticed the wheel was leaking grease, and you were put there to fix the grease cup?
“A. Yes, sir.
“Q. That is all there was to it, wasn’t it? You went over and took that car because you wanted to go home to dinner?
“A. No, sir, I had been working on the brakes; I worked them on my own hook. * * *
“Q. You read the card, didn’t you?
“A. I read the card, certainly.
“Q. ‘Remarks: stop grease leak right rear wheel.’ There was nothing said anywhere that you knew of about brakes only of your own initiative, was there?
“A. No, sir. * * *
“Q. How far would you have to go out of the garage to see whether the brakes were tight?
“A. Well, you would have to go ten feet or twenty, or something like that. * * *
“Q. You could go out of — a hundred feet out of the garage as far as the little walk there, and have your brakes all tested?
“A. Yes, you could stay right in the garage there.
“Q. Mr. Haynes never told you to test those brakes?
“A. No.
“Q. And Mr. Conrad, the owner of the car, didn’t tell you to?
“A. No, sir. * * *
“Q. Why didn’t you run it out to the edge of the walk to see if the brakes worked — did you?
“A. No, sir.
“Q. Why didn’t you do it?
“A. I wanted to get home to dinner. * * *
“Q. Did any superintendent tell you to fix the brakes?
“A. No, sir, nobody only myself.
“Q. And when you got it fixed then and didn’t have any memorandum on this car, there was no way he could charge for it?
“A. No.”
The testimony of the witness is very convincing that. his claim that he was testing the car out with reference to the brake is merely an afterthought. He had no authority or direction either from his employer, Haynes, or the owner of the automobile, Conrad, to do anything whatever with reference to the automobile except to remedy a leakage from the grease cup in the hub of the right rear wheel. He admits that he was taking the machine out for the purpose of going to his dinner, and we are of the opinion that there was no testimony that would warrant submitting to the jury the question of whether he was acting within the scope of his authority in taking out the car as he did. His act in taking and driving the car, under the circumstances, was clearly wholly outside his functions or duties as an employee of Haynes. In the recent case of Eberle Brewing Co. v. Motor Co., 194 Mich. 140, it was said:
“The rule which plaintiff invokes is the rule which makes an employer responsible for the conduct of his servant, a part of which is that the servant must be acting within the scope of his employment. In recent cases the doctrine and its application were considered, and it was said:
“ ‘The phrase “in the course or scope of his employment or authority,” when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business.’ Riley v. Roach, 168 Mich. 294 (134 N. W. 14, 37 L. R. A. [N. S.] 834); Brinkman v. Zuckerman, 192 Mich. 624 (159 N. W. 316).
“It would be an invasion of the rule, and a false application of it, if it was held that a servant may, at any time, volunteer to borrow a car and carry a passenger, or for his own use drive it, at his master’s risk.”
This is the rule which should be applied here.
The judgment is, therefore, affirmed.
Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. | [
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Stone, J.
This case is here upon exceptions before sentence. The defendant was convicted in the supe rior court of Grand Rapids upon an information charging that:
“Charles R. Ellis * * * on, to wit, the 13th day of March, 1917, at the city of Grand Rapids, county of Kent, aforesaid, was then and there married to one Gertrude Britton, for the purpose of escaping a prosecution for bastardy, she, the said Gertrude Britton, having accused said Charles R. Ellis of making her pregnant with child, and she, the. said Gertrude Brit-ton, on the said 13th day of March, 1917, being then and there pregnant with child,' for which the said Charles R. Ellis was liable to prosecution under the laws of this State, and he, the said Charles R. Ellis afterwards, to wit, on the 13th day of March, 1917, did desert and abandon said Gertrude Britton Ellis without any cause or reason, whatsoever. Contrary to the statute,” etc.
The statute (Act No. 310, Pub. Acts 1913, being section 7794, 2 Comp. Laws 1915) is entitled:
“An act to provide punishment for wife desertion in certain cases.”
It reads as follows:
“Every man or boy who shall marry any woman or girl for the purpose of escaping prosecution for rape, bastardy or seduction, and shall afterwards desert her without good cause, shall be deemed guilty of a felony, and shall, upon conviction, be fined not more than one thousand dollars or be imprisoned in the State prison for not more than three years: Provided, That no prosecution shall be brought under this act after five years from the date of the marriage: Provided further, That in all prosecutions under this act, the wife may testify against a husband without his consent.”
We are met at the threshold with the proposition of defendant’s counsel, duly raised by an assignment of error, that a proper construction of this statute requires the dismissal of the case and the discharge of the defendant for the reason that the words, “for the purpose of escaping prosecution for * * * bastardy” are intended to apply to a case only where a prosecution for, or proceeding in, bastardy had actually been instituted against the defendant at, or prior to, the time of his marriage. It is undisputed that the evidence in the instant case shows that no actual prosecution or proceeding had been commenced at the time of the marriage.
There is no claim that the statute is unconstitutional, and that question is not before us.
This statute is here for consideration for the first time. It is apparent that it is a drastic, and radical statute, making it a felony for a class of persons named to desert their wives without good cause, without reference to financial ability, and making no provision, as did Act No. 144, Pub. Acts 1907, for suspension of sentence upon giving a bond conditioned to support the wife. See People v. Stickle, 156 Mich. 557.
We have examined the statutes and certain decisions from other jurisdictions, without receiving much aid therefrom. Counsel for the people called our attention to the statute and certain decisions of the State of Indiana. The statute of that State provides:
“That any male person who being at the time under or liable to a prosecution, either civil or criminal, for 'seduction or bastardy, fraudulently enters into a marriage with the female who has been seduced, or who is the mother of the bastard child, with the intent thereby to escape or avoid such prosecution or the consequences thereof, and who within two years after such marriage, without just cause, shall abandon his wife, or who shall, within such time, cruelly and inhumanly mistreat such wife, or fail and neglect to make reasonable provision for her support, shall be liable to an action for the recovery of a penalty which shall in no case be less than two hundred dollars.” 4 Burns’ Ind. Ann. Stat. (1914) § 8377.
Section 4 (8380) of the same statute provides that:
“the practice in such cases as to the execution of the bond, examination by the justice, commitment of the defendant for failure to give bond, trial, judgment, commitment for nonpayment or failure to secure the judgment rendered in the circuit court, execution, and as to all other matters shall be governed by the laws now in force governing prosecutions for bastardy.” * * *
It will be noted that this statute did not create a felony. It has been construed a number of times. See State, ex rel. Lannoy, v. Lannoy, 30 Ind. App. 335 (65 N. E. 1052); State, ex rel. Richeson, v. Richeson, 36 Ind. App. 373 (75 N. E. 846); Latshaw v. State, ex rel. Latshaw, 156 Ind. 194 (59 N. E. 471).
While the Indiana statute differs radically from ours, an examination of the above cited cases will disclose that in each instance the defendant had been arrested and prosecution was pending at the time of the marriage, and pending such prosecution the party sought escape by marriage. In fact we have been unable to find any case of a similar kind where a specific charge had not been made and prosecution instituted before the marriage.
In Morris v. Stout, 110 Iowa, 659 (78 N. W. 843), the court, speaking of a similar statute, said:
“It fixes the facts that will constitute the crime, and any man who does the prohibited act is guilty of the crime. One fact to appear is that there is a charge of seduction.”
By construction, the Indiana statute has, by her courts, been held to be supplementary to the bastardy act, and that under it provision might be made for the support of the wife and child. That being so, the courts have held the statute to be a remedial one, and it has been given a broad and liberal construction for that reason. We get but little aid from it in construing a statute like that which we have under consideration, which is not a remedial statute, but creates a felony and provides for drastic punishment. It will be observed that the word “prosecution” is used twice in our statute. Can it be said, with any force or reason, that the word “prosecution,” is used in different senses here? We think not. A prosecution is a definite thing. A prosecution is generally understood to be a criminal action; a proceeding instituted and carried on by due course of law before a competent tribunal for the purpose of determining the guilt or innocence of the person charged with some crime or offense. Black’s Law Dictionary (2d Ed.).
The language of this statute is not very clear in the particular mentioned. A criminal statute ought to be so plain and unambiguous that “he who runs” may read, and understand whether his conduct is in violation of its provisions.
It will be noted that the public prosecutor in the information in the instant case charged that the said Ellis “was liable to prosecution under the laws of this State,” thus substituting other words for those used in the statute. It is a fundamental rule of construction of criminal statutes that they cannot be extended to cases not included within the clear and obvious import of their language. And if there is doubt as to whether the act charged is embraced in the prohibition, that doubt is to be resolved in favor of the defendant. In other words, nothing is to be added by intendment. 36 Cyc. p. 1186, and cases cited in notes. See, also, Meister v. People, 31 Mich. 98; Van Buren v. Wylie, 56 Mich. 501; Crosby v. Railroad Co., 131 Mich. 288.
Considering the language and purpose of this statute, and applying the foregoing rules, it seems to us that the safer ruling is to hold that there must be a proceeding or prosecution for bastardy instituted before a person can be held to come within its terms; and the evidence showing that no such proceeding or prosecution had been had prior to the marriage in this case, we are of opinion that the defendant was not within the purview or scope of the statute.
It is urged, with some force, by counsel for defendant, that any other view of the provision of the statute than that contended for by him would render it a dangerous instrument in the hands of a deserted and unscrupulous wife, who, at any time within five years after the marriage, without any charge or prosecution having been ever instituted or appearing anywhere of record, could say to the husband:
“You seduced me before marriage and married me to escape prosecution, and I will therefore prosecute you under this criminal statute.”
The people’s attorneys claim that the words “liable to be prosecuted” are equivalent to prosecution. We are of opinion that the legislature has failed to express any such intent in the statute; and its provisions could be easily amended should the legislature see fit to do so.
In view of the language of the statute, we are constrained to hold that the people have failed by the evidence to bring the defendant within its terms. Having reached this conclusion, it is unnecessary to consider the other points raised by defendant’s, counsel. However, it perhaps should be said that a careful examination and scrutiny of the evidence in the case fail to show that the marriage was other than a voluntary one on the part of both the husband and wife. There was no threat even of a prosecution. The only threat shown was that the complaining witness said she would tell the defendant’s mother of her condition, if he did not marry her. It is true that the evidence shows that they were both minors, and were married' under the provisions of Act No. 180, Pub. Acts 1897, being section 11387, 3 Comp. Laws 1915, entitled:
“An act to provide for the protection of the reputation and good name of certain persons.”
This statute provides that the judge of probate may issue marriage licenses in certain cases. Section 1, in part, is as follows:
“The judge of probate of each county in the State shall have authority, and. it shall be his duty to issue, without publicity, a marriage license to any female making application to him, under oath, containing a statement that she is with child, which if born alive before her marriage will become a bastard, or has lived with a man, and has been considered as his wife, or for other good reason, expressed in such application and deemed to be sufficient by the judge of probate, desires to keep the exact date of the marriage secret, to protect the good name of herself and the reputation of her family.” * * *
Then follows the proviso with reference to written requests of parents and guardians in the case of female minors.
There is nothing in this act to indicate that the marriage there provided for is to take place to escape a prosecution. Nor is there any evidence in the case which shows that the marriage did in fact take place because defendant was either liable to a prosecution, or that it was for the purpose of escaping a prosecution for bastardy, rape, or any other oifense.
We are therefore of the opinion that the conviction should be reversed and set aside, and the defendant discharged.
Osteandee, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ. concurred. | [
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Bird, C. J.
Plaintiff brought replevin to tecover the possession of certain farm livestock which he had theretofore parted with in exchange for two Iron Mountain Light & Fuel Company bonds of $500 each. It was his claim that he had been defrauded in the transaction and, therefore, the title to the livestock never passed to the defendant. Plaintiff waived return of the property and the jury fixed the value thereof at $955.98. Judgment was rendered against defendant Wallace for that amount. A judgment of “not guilty” was directed by the trial court in behalf of the defendant, Lake View Farms Company. Defendant Wallace brings error.
1. The first point made by defendant’s counsel is that replevin will not lie to recover personal property under the circumstances of this case. It is plaintiff’s contention that the defendant Wallace made false and fraudulent representations to him concerning the value of the bonds which he took in exchange for the livestock; that when he discovered the fraud he tendered the bonds to defendant and demanded the livestock, and that upon defendant’s refusal to comply therewith he brought this suit in replevin. Under these claims we think plaintiff made no mistake in the remedy which he chose. The general rule in this State, as well as elsewhere, is that fraud or misrepresentation on the part of the buyer will entitle the seller to reclaim the goods from the buyer, and replevin has been recognized as the proper remedy in this State to recover them. 35 Cyc. p. 508; Ross v. Miller, 67 Mich. 410; Pangborn v. Ruemenapp, 74 Mich. 572; Koch v. Lyon, 82 Mich. 513; Reeder v. Moore, 95 Mich. 594.
2. It is contended that as the representations were made by Wallace in behalf of another, oral testimony was not admissible by reason of the statute of frauds. 3 Comp. Laws 1915, § 11983. This section provides that:
“No action.shall be brought to charge any person, upon or by reason of any favorable representation or assurance, made concerning the character, conduct,, credit, ability, trade or dealings of any other person, unless such representation or assurance be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.”
While it is true that defendant testified he was acting for a man in Lansing, it was plaintiff’s claim that defendant was acting for himself and making representations as to the value of his own property. The trial court took the view that the application of the statute depended upon a question of fact and, therefore, left this fact to the jury to find, with the instruction that if they found that defendant Wallace was acting for another, no recovery could be had upon his statements. If the statute has any application at all to the facts of this case, this charge was as favorable to defendant Wallace as he had a right to demand.
3. The representations concerning the bonds and their value, which plaintiff claims induced him to exchange his livestock for bonds, were the same, in substance, as those made -to induce him to exchange his farm for similar bonds a year previous. Litigation between these parties followed the farm trade and found its way to this court and is reported in 203 Mich. 622. Both cases were argued at the same term in this court. Many of the material questions raised on this record are the same as those raised and decided in that case and, therefore, need not be again considered.
In addition to the questions which are common to both records .there are some assignments of error aside from those we have considered, which we have examined, but find nothing therein which merits a- reversal of the case.
The judgment of the trial court should be, and is hereby, affirmed.
Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
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Stone, J.
The bill of complaint herein was filed to remove a cloud upon plaintiff’s title to lot twelve (12) and the westerly one (1) foot of lot eleven (11) in block sixty-seven (67) plat of Lower Saginaw, now Bay City, according to the recorded plat thereof, and for an injunction. The parties are owners of adjoining property and buildings in the business section of said city. The present condition of the buildings is shown by the photograph, Exhibit “M,” which appears in the record and is hereto attached. Prior to the year 1915 the condition of the property was as shown by Exhibit “A,” which also appears in the record and is also hereto attached.
In Exhibit “A,” the building which extends from W to X is known as the “old bank building.” The building which extends from X to a point half way between Y and Z is known as the “Warren” building, it having been built by one Byron E. Warren, although owned by the plaintiff during the period of this litigation. The building which extends east from the Warren building past Z and B to the alley, is known as the “Vanden Brooks building.” Plaintiff’s new bank building shown in Exhibit “M” occupies the space formerly occupied by the old bank building and the Warren building. An entrance doorway, within which is a stairway, is situate between the Warren and Vanden Brooks buildings in Exhibit “A.” The subject-matter of this litigation is that part of the structure occupied by this entrance and stairway (marked Y-Z on said exhibit, and hereafter referred to as “the stairway”). It is the claim of the plaintiff that this stands one-half on the land of each party.
In 1871, and for a number of years thereafter, the Vanden Brooks building was owned by the father of the defendant Vanden Brooks, and the Warren building was owned by Byron E. Warren. The plaintiff has succeeded to the rights of Warren, and defendant to the rights of the elder Vanden Brooks. The buildings were constructed at the same time, probably in 1871. The stairway in dispute, which is the main stairway leading from Center avenue to the second floor of the two buildings, has, as is claimed by plaintiff, its center line upon the property line, so that it stands one-half upon the land of each of the parties. It was built jointly by Warren and the elder Vanden Brooks, each paying one-half of the cost. This stairway had always been used in common by the owners and occupants of both of the blocks, and an open hallway at the head of the stairway, leading to the various offices in both blocks had always existed.
In 1914, the plaintiff owned the old bank building and the Warren building, and the defendant Vanden Brooks owned the Vanden Brooks building. Both were brick structures. The plaintiff was planning the erection of its new bank building, and desired to construct its. east wall on a straight line, following the property line, which it claimed ran through the middle of the stairway. This, it is evident, would necessitate either a reduction in the width of the stairway, or a change in its position. It was the claim of the plaintiff that, although the two halves of the stairway had always been separately owned, they had always been used in common by the tenants of all of the buildings, and the plaintiff attempted to make some satisfactory arrangement with defendant Van-den Brooks, before proceeding to demolish its half of the stairway. No agreement could be made. Said defendant objected, not only to the demolition of what, plaintiff claimed was its half of the stairway, but also claimed that the Warren and Vanden Brooks buildings had been so constructed, with halls, corridors and skylights used in common, that defendant had acquired a perpetual easement which entitled him to insist upon the maintenance of the Warren building, or at least to the entire stairway, as it stood.
Owing to the failure of the parties to reach an agreement, plaintiff filed this bill, praying among other things for an injunction restraining defendant Vanden Brooks from interference with its building operations. Defendant filed an answer and cross-bill, claiming title to the stairway by adverse possession, also claiming a prescriptive easement in respect to the skylights in the Warren building, and seeking to enjoin plaintiff from altering or removing the Warren building.
In his cross-bill, referring to the erecting of said buildings, defendant Vanden Brooks stated that an agreement was entered into between said Byron E. Warren and the said Andreas Vanden Brooks by which they adopted a common building plan by which both of such contemplated buildings should be constructed upon a common plan of similar architecture and construction, and by which the areas, halls, stairways and openings in and to the second and third floors should be used in common by both of said parties, and that certain skylights in the roof of each building should be so constructed that light would penetrate and be carried to the entire halls, openings and areas of both buildings. Also that the hallways on the second and third floors which lead into the various rooms and offices thereon, were go constructed, in pursuance of the aforesaid common plan of said parties, in the erection of both of said adjoining buildings; that said hallways were lighted by skylights of similar design placed in the roofs of both buildings; that it was contemplated and understood between the owners of both of said buildings at the time of their construction that skylights would be used by both owners, and that the skylights in the building on lot 12 had become and were a necessary appurtenance in furnishing light to the halls in that part of the building owned and. maintained by. defendant, and that the removal of the skylights in either of the said buildings would cause irreparable injury and damages to either of said buildings; that plaintiff was threatening to remove its said building and the skylights thereof, and to erect certain walls which would entirely obstruct any light from penetrating from the skylights above lot 12 to the halls of defendant’s building on lot 11; that said course would lessen the rental value of the second and third floors of defendant’s building, and would cause him irreparable injury and damage, and claiming the prescriptive easement as above stated. The plaintiff desiring to proceed with its new building, changed its plans so as to leave the stairway untouched, and notified the defendant that it would proceed to demolish its old building without further delay. Defendant at once pressed his application for a temporary injunction to restrain plaintiff, not only from interfering with the stairway, but also from interfering with the halls, corridors, and open spaces in the second and third floors of the Warren building. This application for injunction was, upon hearing, denied. The plaintiff was thus permitted to proceed, and did proceed with the construction of its new building, upon plans which left the stairway practically untouched. The final hearing did not take place until June 23, 1916, and after the new bank building was completed as shown in Exhibit “M.” The said defendant declined to try any question of damages in this proceeding, so that the hearing amounted to a mere controversy over the title to the stairway, and the land occupied by it. Said defendant claimed title by adverse possession, on the ground that his tenants, and those of his predecessors in title, had always occupied the rooms over the stairway, and that he had always treated the stairway as belonging to his building. Plaintiff offered some evidence tending to show that its tenants, and those of its predecessors in title, had always occupied the basement under the stairway, while the stairway itself had been used in common by the tenants of both buildings, including those of the old bank building. Plaintiff’s real claim, however, was, and is, that neither party had acquired title by adverse possession, but that the rights of both had always been purely permissive; that as a result of the revocation of the mutual license by the plaintiff, when it planned to construct its new building, and gave notice thereof, neither party had any right, title or easement extending beyond the property line which runs through the center of the stairway. The learned circuit judge who heard the case held with the plaintiff and entered a decree quieting plaintiff’s title to the center of the stairway, giving said defendant 18 months to make alterations, and remove so much of the structure as is upon plaintiff’s premises, and restraining said defendant from “interfering with the free and unrestricted use by plaintiff of the premises aforesaid, and with the removal by plaintiff of any structure, or other property which may remain on said premises at the expiration of the period of 18 months aforesaid.”
Upon the hearing below, it was.conceded that when the building in controversy was erected, the east part of lot 12, and the west one foot of lot 11, were owned by Byron E. Warren, and the remainder of lot 11 was owned by Andreas Vanden Brooks; that the plaintiff had succeeded, by various conveyances, to the title of the said Warren, and that defendant John C. Vanden Brooks had succeeded, by inheritance, and conveyances, to -the title of said Andreas Vanden Brooks. Mr. Warren’s deposition was taken and read upon the hearing at the circuit. He was the principal witness as to the loriginal agreement. On direct examination by the plaintiff, he testified in part as follows:
“I am acquainted with the stairway leading up* into the Bank block from Center avenue. I came down them a good many times.
“Q. How was that located with reference to the property line between you and Mr. Vanden Brooks?
“A. It was half of it supplied by Mr. Vanden Brooks, and half by myself — half of the frontage.
“Q. Where was the center of the stairway with reference to the property line?
“A. It was the center line between the two owners, Vanden Brooks and myself.
“Q. How was the building built that was on your land and Mr. Vanden Brooks’, that is, by contract, or by day labor if you know?
“A. I think both of them were built by day labor. Mr. Vanden Brooks personally superintended the construction of his part of the property, as it went along, and I did the same way. I do not know of any written agreement in respect to this stairway on Center avenue. I don’t think there ever was any written agreement:
“Q. What kind of an arrangement was there, if any, in regard to the stairway. Was there a definite verbal arrangement?
“A. I don’t hardly know how to answer that.
“Q. Describe what the arrangement was. That is the best way to answer it.
“A. Well, I should say that as incidents — when decisions or discussions were necessary, when it came up at the time and seemed to become necessary, we always settled it. We were working nicely together, without any friction in any way or shape, and the work went along, seemed to meet the views of both of us, and that is about all there was to the construction of the building. * * *
“Q. How much of an understanding or agreement, if any, did you have about the location of the stairway, being on both of your lands? Explain that.
“A. We decided that each would furnish the same proportion of the stairway, and that was done. My recollections are, and I believe I am correct, there was an understanding between myself and Mr. Van-den Brooks that the area underneath these stairs was to become exclusively for my use, and then the stairway itself was to be used jointly, and then above the .stairway, Mr. Vanden Brooks was to open, cut an opening through the wall, and have the use of that, and myself and tenants of my building were to have the right of the alleyway, which you don’t show here * * * I owned my building from 1871. I began building on it in 1871. I continued to own it, I think to 1891, then I was interested in it for a few years later. * * *
“Q. When this agreement or understanding was had between you and Mr. Vanden Brooks in regard to the use of these various spaces under and over this stairway, was anything said as to how long that use would continue?
“A. No. I guess we didn’t think it would ever come to an end.
“Q. What do you mean by saying you didn’t think, you and he didn’t think it would ever come to an end, explain that?
“A. We didn’t seem to make any provision for the future.
_ “Q. Did you then anticipate the tearing down of either section of that building?
“A. No, not in those days.” .
On cross-examination, Mr. Warren testified as follows :
“Q. Mr._ Warren, you rememher that Mi;. Vanden Brooks paid the entire expense of building this stairway?
“A. At the rear?
“Q. At the front.
“A. Oh, no. * * *
“Q. You shared the expense?
“A. Yes, it is my recollection that we paid for the work jointly, some way, excepting only just relating ' to that basement there.
“Q. And a heavy wall was built on the west side of the stairway?
“A. Yes.
“Q. North and south?
“A. Yes.
“Q. And that went to the roof and supported the roof of that same wall?
‘‘A. I think it goes clear to the roof, both sides.
“Q. And on the east side of the stairway, a wall was built which only came to the surface of the ground, and the rest was—
“A. No. You mean on the first floor.
“Q. Yes.
“A. I guess that is so, may be. * * * It is my remembrance that that goes all the way up, but it is wood instead of solid. I guess all the way. * * *
“Q. Just tell us how the wall on the east side of the stairway was built, of what material?
’“A. It is built of stone and brick, the first floor, and my recollection is that it was wood above that, at one time. What it is now I don’t recall, I didn’t look to see.
_ “Q. You considered when you built it that the dividing line on the stairway would be the wall on the west side of the stairway?
“A. No, no, the dividing line was right in the center, each of us owning a half of it.
“Q. Was that the arrangement with Vanden Brooks ?
“A. It must have been, because it was constructed under that system. * * * The only specific agreement with reference to who should use it, was in reference to these little rooms. When we kind of got finished, that is my recollection, and I guess I am right, coming along to where we were going to do something with these spaces, Mr. Vanden Brooks and I finally decided that he should have these two little rooms over the stairway.
“Q. Mr. Vanden Brooks has had possession of all of the space above the stairway from the time this building was constructed?
“A. Yes, I guess that’s right.
“Q. And Mr. Vanden Brooks shared in the building expense of the stairway that is in dispute?
“A. Yes, his half of it on his side of the building. I am almost sure about surrounding that stairway, because, as I recall it, I scolded about that on account of the fire risk, of his using wood in the construction of the first story, using studding instead of solid brick, on account of the insurance. My part would naturally cost more than the construction • of Mr. Vanden Brooks.”
He further testified, that in painting the front of his building, he just painted up to the windows and stopped there — up to the pilaster of the stairway. Also that he deeded to the Bank Building Company, and had charge of the property for at least a couple of years thereafter, adding:
“My best recollection is that it would be about 1892 to 1895. I should think it was about 1893.”
The defendant Vanden Brooks testified that he had known this property for 25 years, and had always supposed that he had the absolute title to the whole stairway. He testified:
“I can remember back as to the condition of this building for the last 25 years. * * * I never thought anything else, but the whole stairway belonged to the Vanden Brooks’ block. We always kept the stairway in repair, painted it, painted the walls, both sides. That would be right up to the west pilasters, considering that as a party wall, to the point Y on Exhibit ‘A.’ And we had possession of the rooms here, and rented them. At that time I had possession of everything above the stairway and I still occupy that. * * * I have control of all of that property. The west pilaster is an iron beam from the ground to the first floor, right from the basement, bottom of the basement, right to the roof, is a solid brick construction. I am referring to the pilaster as the point in Exhibit ‘A,’ marked Y. * * * That wall supports the roof, is a carrying wall for the roof from the second and third floors. * * * No one had ever made any claim that the First National Bank, or any successors of Mr. B. E. Warren had any title to that stairway during the 20 years, that I can remember. From the time that I had been administrator of my father’s estate to the time shortly before the commencement of this suit, no one ever made any claim that the First National Bank or any successors of B. E. Warren had any interest in the stairway.”
The position of the plaintiff is, as we understand it, that the use by Warren of the basement under the stairway, and by Vanden Brooks, of the rooms over the stairway, and of the joint use of the stairway itself, were in pursuance of an oral agreement between the parties, made when the buildings were constructed; that this agreement was never put in writing, and was not made for any definite time; that the arrangement between Warren and Vanden Brooks created a mutual, revocable license; that it was revoked by the plaintiff when the bill of complaint herein was filed; and that the original property line therefore marks the present boundary line of the property.
The plaintiff, from the foregoing position, claims that in this State there can be no adverse possession or prescriptive right made under such circumstances, and that the use was a permissive user, citing Gates v. Sebald, 180 Mich. 578, 583; Township of Jasper v. Martin, 161 Mich. 336, 341 (137 Am. St. Rep. 508); and Wilkinson v. Hutzel, 142 Mich. 674. And that where there is no prescriptive right, an easement cannot be created, in real estate, by parol or estoppel, or by any other means than a grant; citing Nowlin Lumber Co. v. Wilson, 119 Mich. 406, 410, 412.
The position and claim of defendant and appellant are frankly stated in the brief as follows:
“It is not disputed that defendant Vanden Brooks, and his father had sole possession of the space above the stairway for 42 years. The answer and the cross-bill are therefore founded upon the theory of title by adverse possession in and to the lands under the stairway, and all the spaces above it. The testimony, however, discloses that Mr. Vanden Brooks had not had exclusive possession of the spaces under the stairway for the statutory period, and for this reason, in the argument, the claim of title was abandoned, and the lower court was advised, as is this court, that defendant does not claim title by adverse possession, but does claim an easement in the stairway and the spaces above the stairway. * * * Inasmuch, however, as claim is not made by defendant in the title of the real estate under the stairway, for the purposes of this case, the discussion as to the party wall is of no importance, except as it tends to corroborate the testimony that Vanden Brooks has maintained an adverse user of all the space east of the wall since its construction.”
Defendant says:
“Plaintiff seeks to defeat the apparent equities of defendant’s position by the assertion of a hard rule of law, viz., that the testimony shows that Vanden Brooks’ continual use of this stairway and the space above it, was permissive only, and that under this rule of law, his apparent rights are defeated.
“Our position is, that the facts clearly show that the original possession and continual use of Vanden Brooks was not by permissive or revocable license, but was under an agreement which was to continue for all time. However, for the sake of this argument only, and conceding that the original arrangement between Andreas Vanden Brooks and B. E. Warren was permissive and revocable in character, another hard legal rule intervenes, which this court has announced in several cases, but has been loath to enforce where it is possible to make a decision on any other ground. This rule is, that a permissive license is revoked by operation of law, when the licensor parts with his title. This court has said:
“ ‘It is well settled that a conveyance of the land by the licensor operates ipso facto as a revocation of a license previously granted. Maxwell v. Bay City Bridge Co., 41 Mich. 466; Minneapolis, etc., R. Co. v. Marble, 112 Mich. 10; Eckerson v. Crippen, 110 N. Y. 585 (1 L. R. A. 487, 18 N. E. 443).’ Toney v. Knapp, 142 Mich. 652, 661.
“The testimony is undisputed that B. E. Warren parted with his title in 1891, which would be 24 years prior to the. filing of the bill of complaint in this case. Therefore, even though it should be found that the original arrangement was permissive and revocable in character, upon revocation of such license, the element of permission would from that time be eliminated.”
It is claimed by counsel for plaintiff that this question was a new one, not raised in the court below. Insofar as this record shows, the question is inherent both in the pleadings and the evidence. The defendant had claimed adverse possession and prescriptive right since 1871. Now he claims it since 1891, by reason of the deed of that date. The question has been discussed by counsel for both parties upon its. merits.
Conceding, as we do, the correctness of the position of the plaintiff as to the parol license and permissive use of the property in the first instance, we are constrained to hold that the deed of the premises by Warren in 1891 revoked that license and permissive use, and that the use of the defendant of the stairway and spaces above since that time has been of such a character as to give him a prescriptive right to the easement claimed. It is urged by counsel for plaintiff that the rule of revocation is a hard rule. We must say in reply that for 40 years it has been a rule of property in this State. In Minneapolis, etc., R. Co. v. Marble, supra, this court said that the rule was too well settled in this and other courts to need discussion. We applied the rule in the recent case of Voorhies v. Pratt, 200 Mich. 91. In that case, Justice Bird, speaking for the court, said:
“The drains appear to have had their beginning in favor, extended by Mr. Hatt to defendant, and, therefore, were permissive. While they were maintained as a matter of favor, defendant could not acquire any right by adverse user. People v. Ferguson, 119 Mich. 373. After a sale of the premises to Mr. James Pratt the favor was thereby extinguished (Maxwell v. Bay City Bridge Co., 41 Mich. 466), and the statute would begin to run.”
It cannot be said that, because other persons than this defendant used this stairway, his use was not exclusive. In Schmidt v. Brown, 226 Ill. 590 (80 N. E. 1071, 11 L. R. A. [N. S.] 457), it was held that because other persons besides the claimant of a right of way used it, did not prevent the claimant’s user from being exclusive, since exclusive use means that his right does not depend on a like right in others; the court citing Washburn on Easements, § 44, p. 164; Jones on Easements, § 272; Bennett v. Biddle, 150 Pa. 420 (24 Atl. 738); and McKenzie v. Elliott, 134 Ill. 156 (24 N. E. 965).
We do not think there is any incongruity in holding that defendant Vanden Brooks has a prescriptive right to the use of this stairway, and the spaces above it, so long as his present building stands; and that, upon this building being destroyed, or ceasing to exist, the easement will cease, and the land of the plaintiff as described in the bill of complaint and in the decree below, would no longer be charged with the easement. As to the stairway, and the spaces above it, the status quo would be maintained. We are of the opinion that we should so hold. Both parties seem to be standing here upon what they claim to be their strict legal rights. Under the circumstances here disclosed, we must leave the parties where they have placed themselves.
It follows that the decree below will be reversed; and if the plaintiff so elects, a decree will be entered here adjudging that the right and title of the plaintiff in and to said lot 12 and the westerly one foot of lot 11 is established and confirmed, subject to the easement above stated. And if such election is not exercised by the plaintiff, within 60 days from the filing of this opinion, the plaintiff’s bill of complaint will be dismissed.
In either case, the defendant Vanden Brooks will recover his costs in both courts, to be taxed. The party wall agreement of April 24, 1884, will not be affected by the decree.
Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. Ostrander, C. J., did not sit. | [
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Fellows, J.
(after stating the facts). It is most strenuously urged by defendant’s counsel that a verdict for the defendant should have been directed; that the evidence made no jury question of negligence of defendant’s employees; and that in any event error was committed in failing to instruct the jury as requested.
The plaintiff at the time of the accident was but five years old. Her movements were controlled more by the caprice of childhood than the exercise of judgment.
“Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly.” Powers v. Harlow, 53 Mich. 507.
The case before us is novel and differs from Powers v. Harlow, supra, Anderson v. Newport Mining Co., 202 Mich. 204, and kindred cases. There is no question but that plaintiff was lawfully upon the premises, nor was the accident occasioned by an instrumentality naturally calculated to attract children. Cases of the line above noted may therefore be dismissed from our consideration and makes it necessary in a considerable degree to seek our authorities outside of those cited in the brief; authorities which by analogy are applicable, however, are not wanting.
In the case of Oster v. Traction Co., 195 Pa. 320 (45 Atl. 1006), a child six years and eleven months old had been run over in the street adjoining a schoolhouse. The motorman saw children in the streets. The court said:
“He knew the school house was there, and seeing the children in the road was notice to him that it was recess, or, at least, that the school was not in session. These circumstances put on him the duty of at once getting his car under special control. Whether he did all that was reasonably proper for that purpose was necessarily a question for the jury. The cases of this kind, where it is for the court to direct the ver diet, are confined to those in which the uncontested evidence leads to the conclusion that the child ran in front of the car so quickly and under such circumstances that the driver or motorman had no reasonable ground to apprehend such action, and no time after it to avoid the collision.”
In Paducah Street R. Co. v. Adkins’ Adm’r, 14 Ky. L. Rep. 425, the decedent was five years and four months old. He, with other children, were in the street as defendant’s street car approached. He broke away from the others and ran across the street in front of the approaching car, then turned around and in an attempt to run back was struck by the car, causing his death. In disposing of the case the court said:
“Whether the child had, just before it was struck, run across the track, and whether from that circumstance the motorman should have anticipated that he would turn and attempt to re-cross, and whether, after thus seeing the danger which the child was about to place himself in, he could, with the appliance at his command, have stopped, or so retarded the speed of the cars as to have avoided injuring the child, were proper questions for the jury. Therefore, following the rules so often laid down by the court of appeals, and which show such a reluctance to withdraw from the jury cases presenting questions of negligence, we cannot say that the court erred in refusing the peremptory instruction.”
It is not necessary that we subscribe to all that was said in this case; it is illustrative, however, of the tendency of the courts to require a high degree of care for the protection of those of tender years and immature judgment.
In Citizens’ Passenger R. Co. v. Foxley, 107 Pa. 537, the child, aged four years, was injured in the street by a horsecar of the defendant. There was some testimony that the driver was conversing with some one on the platform and was inattentive to the track in front of him. In holding that a case was made for the jury the court-said:
“The parties were equally privileged in the use of the highway, and it was the duty of the defendant’s driver, in the enjoyment of his right, to exercise ordinary and reasonable care for the safety of such as he might meet or pass on the way. Whether, if his attention had been wholly given to his business, he might have seen the child in time to avert the injury was, under all the circumstances, clearly for the consideration of the jury. The child, at the time of the injury, being of the age of four years only, no question of contributory negligence can arise.”
In Hearn v. Railroad Co., 34 La. Ann. 160, the driver on a street car drawn by a mule had stopped the car, set his brakes and gone to the rear to drive off some boys who were jumping on the steps. While he was gone, deceased, a child of 22 months, came from the front steps of her home where she had been left, and was at the front legs of the mule when the driver returned. She was not where she would be seen by the driver, and she had not been playing in the streets. He started the mule forward, and the child was killed. It was held under these facts no negligence was proven. But the same court in the later case of Barnes v. Railroad Co., 47 La. Ann. 1218 (17 South. 782), had before it an injury to a 3-year-old child in a public street. There was evidence that the motorman was making change for a passenger and was not attentive to the track ahead of the car. In deciding the case the court quoted the following from Gallaher v. Railroad Co., 37 La. Ann. 288:
_ “If the accident happen from a sudden and unanticipated act, which is the result of the thoughtless impulse of a child, of which human forethought could not be prescient, no liability attaches to the driver or to his employer.”
And then said:
“The rule thus formulated is undeniably correct, and does not differ from the rule we have quoted from Thompson and Beach. But is this one such a case? Evidently not. For instead of the motorman of defendant’s car being on the lookout while his car was slowly descending the switch to the main track, propelled by its own momentum, he was engaged in making change for a passenger; and, in consequence of his attention having been thus diverted, he failed to observe the perilous situation of the child in time to arrest the progress of the car, and prevent the happening of the untoward event.”
In Passamaneck’s Adm’r v. Railway Co., 98 Ky. 195 (32 S. W. 620), the child killed was but 16 months old. After considering the authorities the court said:
“If the driver of the car could have discovered the presence- of the child on the track, by proper care and diligence, in time to have avoided the injury, it was his duty to do so. If he failed to do this, then the contributory negligence of the parents, if they were guilty of any, was canceled by the negligence of appellee’s servant.
“A greater degree of vigilance and caution must be observed in controlling the movements of street cars, to prevent injuries to children, than is required for the safety of adults not laboring under disabilities.”
In Rosenkranz v. Railway Co., 108 Mo. 9 (18 S. W. 890), the child was four years old. Holding that a case was made for the jury the court said:
“The street was a public highway open to the use of all persons, children as well as adults, at all places and not alone at intersections and crossings of other streets. This point on the street being much frequented by children demanded the greater vigilance on the part of the driver, and the fact that it was growing dark did not release him from watchfulness and caution, but rather demanded increased vigilance.”
See, also, Levy v. Railroad Co., 12 N. Y. Supp. 485; Healy v. Johnson, 127 Iowa, 221 (103 N. W. 92); Bergen County Traction Co. v. Heitman’s Adm’r, 61 N. J. Law, 682 (40 Atl. 651); Wallace v. Railway Co., 26 Or. 174 (25 L. R. A. 663, 37 Pac. 477); Zuponcic v. Brewing Co., 131 Minn. 112 (154 N. W. 790).
When we take into consideration all the facts and circumstances of this case; the fact that these six children of immature age were playing around this van, and in the front and small back yard during the three hours defendant’s agents were loading the van; that without any attempt to discover the whereabouts of the children, or to ascertain whether they were dangerously situated with reference to the van; that under one version of the transaction they remained under the cover of the van long enough to roll and light cigarettes and started without any outlook; the outcry of plaintiff’s brother; the immature age of the plaintiff with her childish instinct and impulses, which must have been known by defendant’s agents; when all these things are considered we are impressed that we cannot say as matter of law that a case was not made for the jury, or that the jury was not authorized in finding that the negligence of the defendant’s agents was the proximate cause of the injury. It was not error to refuse to direct a verdict.
While we are satisfied that the jury would be authorized in finding that defendant’s negligence was the proximate cause of the accident, we are also satisfied that the jury would be authorized in finding that the accident was due to the sudden, unanticipated and unforeseen act of the plaintiff in running after the ball and going under the van to get it. The defendant requested the court to charge the jury:
“5. In this case the defendant claims that the plaintiff and other children were playing ball in the back yard of the house where these goods were being moved out;'that after the van was loaded up the defendant’s servants got on the wagon to drive away and just at the time the driver was about to start the horses the ball was thrown by someone from the back yard and went under the back end of the van, and that this little girl, the plaintiff, suddenly and unexpectedly ran from the back yard to and under the back end of the van to get the ball, and that her hands were caught under the back wheel, and that this was a sudden and unexpected act on the part of this child, which the driver did not anticipate.
“6. Now, I charge you as a matter of law that if this injury and accident was due to the sudden, unanticipated and unforeseen act of this child and the defendant’s agents did not know or did not have reason to anticipate that this plaintiff was going to suddenly run under the back of the wagon, she cannot recover in this case. The law does not impose any duty on another to guard against sudden, unforeseen and unanticipated acts of another.”
Other requests of similar purport to the sixth were also preferred. The trial judge gave the fifth request but refused the sixth and similar requests. In general terms he instructed the jury as to what constituted negligence. The fifth request stated defendant’s claim, the sixth stated the law applicable to such' claim. Where the accident results from the sudden and unanticipated act of a child of immature years which could not be foreseen or guarded against, there is no liability. Baldwin on Personal Injuries (2d Ed.), § 198; Hoover v. Railway Co., 188 Mich. 313; Eichkern v. Brewing Co., 181 Mich. 1; Greenberg v. Railroad Co., 35 App. Div. 619 (55 N. Y. Supp. 135); Callary v. Transit Co., 185 Pa. 176 (39 Atl. 813); Chilton v. Traction Co., 152 Pa. 425 (25 Atl. 606). The sixth request should have been given either specifically or in substance. It was not sufficient to give in general a definition of negligence. The court gave to the jury defendant’s claim. It was entitled to have this done if the facts justified it as they did in this case. It was also entitled to have the law applicable to such claim given to the jury. This was not done. For this error we are constrained to reverse the case. A new trial will be granted, with costs to appellant.
Bird, Moore, Steere, Stone, and Kuhn, JJ., concurred with Fellows, J. | [
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Steere, J.
On May 4, 1917, plaintiff, a resident of Bay county, obtained a judgment for $2,248.49 in the circuit court of Alpena county against the city of AuSable and township of AuSable, municipal corporations located in Iosco county. The action was begun in the circuit court of Iosco county, where reputable attorneys appeared for each of the defendant municipalities. After the cause was at issue the venue was changed to Alpena county under the following stipulation of counsel and order of the court:
“Whereas, It appears in the above entitled cause that the defendants are not prepared to try the case at the June term of said court, and further that in case of the trial thereof the defendants desire to demand a jury trial; and, ¡
“It further appearing that if such continuance be granted and a jury trial demanded by the defendants and granted by the court, that it will be necessary for the plaintiff in order to protect her interest to move for a change^ of venue from said Iosco county owing to local conditions affecting the rights of the parties, and in order to settle all of the foregoing questions between the parties without costs or expense to them, it is hereby stipulated and agreed by and between their respective attorneys:
“First. That said cause may be continued over the June term of said court.
“Second.' That said defendants may at any time before the trial of said cause file a written demand for a jury trial therein.
“Third. That if said cause be tried that a change of venue be granted therein to Alpena county, all parties hereto agreeing that sufficient grounds exist for the granting thereof. That such order for change of venue may be made upon application of the plaintiff to said court without notice to the defendants herein.
“It is further agreed that in case of a transfer and trial of said cause that said trial will be had at the September, 19X6, term of the Alpena circuit court.
“Dated at' Alpena, Mich., June 15th, 1916.
“Fred. W. DeFoe,
“Attorney for plaintiff.
“John A. Stewart,
“Attorney for defendant city of AuSable.
“A. W. Black,
“Attorney for defendant township of AuSable.”
“State of Michigan.
“The Circuit Court for the County of Iosco:
“Augusta O. Hall,
“Adm’x of Estate of DeVere Hall, Deceased.
“Relator,
“v.
“William H. Dickinsion,
“Supervisor of Township of AuSable,
“Respondent.
“On reading and filing a stipulation signed by the attorneys for the respective parties in this cause consenting and agreeing to a change of venue therein to Alpena county, and on motion of Fred. W. DeFoe, attorney for plaintiff, it is ordered that the venue of this case be changed from the county of Iosco to the county of Alpena, and that the issue herein be tried in the circuit court for the county of Alpena aforesaid; and,
“It is further ordered that the clerk of said circuit court do forthwith transmit to the clerk of said circuit court for the county of Alpena all of the original files and papers in this cause, together with certified copies of all rules and orders made and entered in said cause.
“Albert Widdis,
“Circuit Judge.”
A trial by jury was thereafter had in Alpena county at which officers of both the city of AuSable and township of AuSable were present assisting in the management of the case and acting as witnesses, one of such officers being defendant William H. Dickinson, then ancl yet supervisor of the township of Au- Sable. After verdict and judgment as above stated, both defendants by their attorneys made motions for a new trial which were heard, considered, and denied by the trial court in a written opinion filed in the cause. ’
On August 17, 1917, steps were taken by plaintiff to collect the judgment pursuant to the method prescribed by statute, certified copies of the judgment being served upon the assessing officers of the defendant municipalities with request that they spread upon their assessment rolls added taxes sufficient to pay such judgment, which was not done.
On July 8, 1918, like steps were again taken by plaintiff under the statute and demand for such assessment made, when the assessing officers of defendants expressly refused to assess such judgment for collection on their respective rolls. After serving a written demand and copy of the statute in such case provided upon defendant Dickinson and his refusal to act, application was made by plaintiff to the circuit judge of Iosco county for a writ of mandamus to compel compliance with such demand by Dickinson as supervisor of AuSable township. The circuit judge of Iosco county, after examining such application, returned the papers to plaintiff’s counsel and declined to entertain the same on the ground that the cause had been, transferred to Alpena county and in his opinion he had no further jurisdiction m the premises. Application was then made, with proper showing, to the circuit court of Alpena county for a writ of mandamus against defendant William H. Dickinson, as supervisor of the township of AuSable, to compel him to spread a tax upon his assessment roll for payment of said judgment. After hearing upon an order to show cause thereon, a writ of mandamus was granted by the circuit court of Alpena county as prayed for. Defendant then removed the proceedings to this court by certiorari to review the order of the Alpena circuit court granting such writ of mandamus.
Counsel for defendant urges as error against such order the following reasons:
“First. Because the judge of the circuit court for the county of Alpena acquired no jurisdiction to render judgment in said cause.
“Second. Because the judgment was against the city of AuSable and the township of AuSable and_ could not be enforced, against one of said municipalities independent of the other.
“Third. Because the judge of the circuit court for the county of Alpena had no jurisdiction to issue a writ of mandamus, such defendant municipalities being outside of his judicial circuit.”
Concededly a municipality in this State cannot be sued outside of its own county, but it does not follow that the venue may not thereafter be changed and the case transferred to another county for trial. Section 12341, 3 Comp. Laws 1915, provides for transfer of causes, or change of venue, as follows:
“Each of the circuit courts, upon good cause shown, may change the venue in any civil cause pending therein, and direct the issue to be tried in the circuit court of another county, and make all necessary rules and orders for certifying and removing such cause, and all matters relating thereto, to the court in which such issue shall be ordered to be tried, and such court shall thereupon have full jurisdiction of such cause, the same as though such cause had been originally commenced therein; and in every such case all expenses of such trial which would be chargeable to the county in which the suit originated, had the cause been tried therein, as determined by the circuit judge of the county to which said cause has been transferred, shall be a charge upon the county in which the suit was commenced.”
Section 12342 provides for transfer of causes in case of disqualification of the judge in the jurisdiction where the suit is pending. Section 12343 authorizes application to the judge of an adjoining circuit, not disqualified, for an order of transfer, and further provides :
“The parties to any such suit may, by stipulation in writing, consent to the transfer of such suit or proceeding without any application to the judge, in which case the stipulation shall have the same effect as an order duly made for transfer.”
Section 12346 also provides:
“In case the parties to said suit or proceeding shall by stipulation in writing or otherwise agree upon the circuit court of the county to which said cause shall be transferred, said circuit judge shall make an order of transfer in accordance therewith.” * * *
It is not questioned that the order of transfer, with all other original or certified files, records and papers in the case were duly transmitted in prescribed time and manner to and filed in the circuit court of Alpena in compliance with the statute. By section 12347, the
“court to which said suit or proceeding is by said order directed to be transferred * * * shall have jurisdiction of the same to the same extent as if said cause or proceeding had been legally commenced in Said court,” etc.
It is urged by counsel for defendants that the stipulation for transfer was invalid because signed by the attorneys and not by the parties themselves. Defendants are municipal corporations, artificial legal entities, or personalities, created by law, which can only act through legally constituted agents and attorneys. This is a civil action in which reputable attorneys whose authority as such is not questioned entered their appearance for defendants and in their professional capacity duly filed their pleadings and conducted the defense. The cause was properly planted, pending and at issue in Iosco county where counsel for hll parties in interest stipulated a change of venue. An order was made by the court transferring the same which recites that it was made on motion of counsel for plaintiff and pursuant to the .stipulation filed in said cause. The transfer was not only stipulated for but subsequently acquiesced in and acted upon by all parties, who without objection proceeded to trial in Alpena county and actively participated therein until final judgment.
Indicating that legal minds sometimes run in the same channel but in opposite directions, counsel for defendant made the contention some 40 years ago that a change of venue was invalid and the court to which the case was transferred without jurisdiction because the stipulation was signed by the party himself instead of his attorney. Goebel v. Stevenson, 35 Mich. 172. Of this the court said:
“The transfer was by agreement of record. Both, courts acquiesced. Aldrich and Innes entered into it voluntarily and freely. That it was executed by Innes in person rather than by attorney is no ground of objection. If strict practice required it to be done through his attorney, which we do not admit, it is sufficient that it was afterward acknowledged^ and acted on as regular. * * * We think this objection is without force. * * * They went in and were recognized as standing there as masters of the litigation, and the court took full cognizance of the cause. * * * The court got jurisdiction of Aldrich and Innes by their agreement and submission, and they cannot be heard to complain.” * * *
It is further contended that no agent or attorney could bind the defendant municipalities by such stipulation unless authorized to sign the same by resolution of their governing bodies duly passed and recorded. What action if any those bodies took and made of record relative to this litigation prior to or after this judgment is not shown. This case was litigated to final judgment followed by denial of motion for a new trial and expiration of time for appeal without any question being raised as to the authority of the agents and attorneys of defendants, or the legality and regularity of its transfer to another county for trial. The presumption in this supplemental proceeding is that they were duly authorized to act, and there is no proof to the contrary. Dickinson, who is the defendant here, then and now supervisor of AuSable township, attended, participated in and testified as a witness for the defense at said trial. He was by statute agent of his township for transaction of its legal business. Section 2115, 1 Comp. Laws 1915, provides:
“That the supervisor of each township shall be the agent for his township for the transaction of all legal business, by whom suits may be brought and defended, and upon whom all process against the township shall be served.”
As a general rule attorneys have the power without expressly specified and granted authority to bind their clients in those things incidental to, or under the circumstances which arise deemed necessary or advisable for, the management and guidance of their side of the case in their client’s interest relating to the remedy being pursued, and ratification of their acts is infer-able from acquiescence and participation with full knowledge of the circumstances. All parties to this action and the proceedings in relation to it having participated with full knowledge and submitted themselves through their agents and attorneys to the jurisdiction of the Alpena circuit court by agreement and without objection, in the manner stated, were bound thereby; and in any event cannot now after final judgment question the jurisdiction of such court to which the venue was changed by stipulation and order of record accepted by all parties and acted upon by the court rendering the judgment. Want of jurisdiction is not shown here. Aside from that question, the general rule is well stated, with citation of decisions, in 23 Cyc. p. 1064, as follows:
“A proceeding to enforce a judgment is collateral to the judgment, and therefore no inquiry into its regularity or validity can be permitted in such a proceeding, whether it be a direct action on the judgment, dr on a note given in satisfaction of the judgment, or a proceeding to revive the judgment, or proceedings supplementary to execution, or bill in equity in aid of execution or to enforce the lien of the judgment, * * * or a proceeding by mandamus to compel the levying and collection of a tax to provide funds for the payment of the judgment, the debtor being a municipal corporation.”
We are cited to no authority in support of defendant’s second ^contention, that being municipal corporations the judgment cannot be enforced against one independent of the other. The general rule is well settled that a judgment creditor may at his option proceed to collect his judgment from any or all of the defendants against whom his judgment runs.
“Judgments in actions by or against municipal corporations do not differ essentially, as regards their rendition and form, from those in actions between individuals or other corporations.” 14 Enc. of Plead. & Practice, p. 243.
If the defendant township is compelled to pay the entire judgment it has an adequate remedy against the city for its proportion of the indebtedness as one partner would have against a copartner under like circumstances or an individual defendant against his judgment codefendant.
The case was legally transferred to the circuit court of Alpena county where a valid judgment was rendered against defendants and there stands unsatisfied and in full force. The remaining question is whether the court of that county or of the county from which the case was transferred has jurisdiction to issue a mandamus to enforce payment of said judgment. It is a general rule that the trial court loses jurisdiction of an action pending therein by granting a change of venue and no steps can be legally taken thereafter in that action by or before the court from which the venue is changed. This rule is recognized in our statute authorizing change of venue (3 Comp. Laws 1915, § 14563) which concludes as follows:
“Provided further, That in all suits, proceedings, causes or actions in which a change of venue has been granted, the court to which such suit, proceeding, cause or action has been transferred shall retain jurisdiction.”
Under such plain provision, Can it be successfully contended that jurisdiction of the Alpena circuit court was exhausted by rendition of judgment? In general, jurisdiction is as essential and complete for enforcement of a judgment as for its rendition, and continues until that judgment is satisfied:
“Jurisdiction is defined to be the power to hear and determine the subject-matter in controversy in the suit before the court, and the rule is universal that if the power is conferred to render the judgment, or enter the decree,.it also includes the power to issue process to enforce such judgment or decree. * * * Process subsequent to judgment is as essential to jurisdiction as process antecedent to judgment, else the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution.” Riggs v. Johnson County, 6 Wall. (73 U. S.) 166.
“A grant of jurisdiction implies the necessary and usual incidental powers essential to effectuate it; and a court's power to apply a remedy is coextensive with its jurisdiction over the subject-matter. * * * Again, a court may entertain proceedings ancillary to the judgment, for jurisdiction once acquired is not exhausted by the rendition of judgment, but continues until such judgment is satisfied and includes the power to issue all proper process and to take all proper proceedings for its enforcement.” 11 Cyc. pp. 677, 678.
The only proper or possible process or proceeding for enforcement of judgments rendered in this State against municipal corporations is by mandamus. The general rule founded on public policy that property acquired by such corporations for public purposes in their capacity as governmental agencies is held in trust for the public and cannot be seized and sold under execution to satisfy a judgment against the municipality has been enacted into statute law in this State and award or issue of execution forbidden, with a substitution of proper mandatory provisions for assessment and collection of taxes to satisfy such judgment following elapse of time for appeal. In case of refusal by the officer or officers whose duty it is to assess and levy a tax to pay the judgment after proper notice and request, mandamus is the appropriate and only process by which the court rendering the judgment can effect the ends of its existing jurisdiction in such cases when brought under its cognizance by whatever means. When so issued it is, for the only purpose it serves, but an ancillary process or proceeding, operating as a substitute for or the equivalent of a final execution to carry into effect the judgment of the court.
“A writ of mandamus to enforce collection of judgment against a municipality on its bonds is in the nature of, and is legally equivalent to, the statutory writ of execution. The right to prosecute the writ for such purpose is limited to the same period of time within which execution may be sued out on a judgment against individuals.” United States v. Township of Oswego, 28 Fed. 55.
As we understand the contention of defendant it is that this mandamus proceeding against him is a new and distinct civil action under the Constitution and laws of this State as interpreted by this court, and not subject to or affected by the change of venue ordered in the case between plaintiff and the municipalities against which the judgment was rendered. It is true that in Woodworth v. Old Second Nat. Bank, 144 Mich. 338 (8 Ann. Cas. 310), it was held that “mandamus proceedings are civil actions, within the meaning of Act No. 309 of the Public Acts of 1905.” In that case an order granting change of venue in a mandamus proceeding instituted to compel the bank and others to turn over their books for relator’s inspection was sustained. This was in harmony with the prevailing rule that .in those jurisdictions where the right to the writ and power to issue it no longer depend upon the prerogative power of the court it should be regarded as an ordinary process in cases to which it applies. This rule is stated in 1 Cyc. p. 723, as follows:
“The common-law remedies by prerogative and judicial writs, especially in forms which they finally assumed by virtue of statutory or other changes, are actions or suits within the usual meanings of those terms in law.”
Accepting the technical correctness of this designation it does not follow that it carries the refinement of definition to where it operates to change the fundamental purpose and uses of mandamus proceedings. This court has also said that it is from its very nature a remedy that can-net be hampered by narrow or technical grounds (Mabley v. Judge of Superior Court of Detroit, 41 Mich. 38), that in cases where the duty of the public officer is absolute and specific, mandamus is no more a matter of discretion than any other remedy, and courts may not refuse to enforce absolute rights (Auditor General v. Tuscola County Treasurer, 73 Mich. 32); of its propriety as a remedy to enforce contracts before judgment it is said in Burland v. Benefit Ass’n, 47 Mich. 424:
“Such a writ does not purport to adjudge or decide any right. It is rather in the nature of an award of execution than of judgment. It is the mode of compelling the performance of acknowledged duty or en forcing an existing right, rather than deciding what that right or duty is.”
Such is exclusively its nature and purpose when authorized as a substitute for and issued to perform the office of an execution to enforce a judgment, in aid of a jurisdiction that has previously attached. Its vitality and legality are contingent solely on the judgment to which it is incidental and auxiliary. For that purpose it would seem to follow that mandamus could only be issued in cases where jurisdiction already exists, not where jurisdiction is to be acquired by means of the writ.
The Iosco circuit court from which the venue was changed has rendered no judgment, no proceedings are pending before it and it now has no jurisdiction over that case. We know of no rule of the common law or statute of this State authorizing it to acquire' jurisdiction in that case and proceed to enforce a judgment of the Alpena circuit court by a writ of mandamus, when no jurisdiction exists to issue the writ except it be founded on the judgment. That mandamus proceedings are to be regarded as “civil actions” or suits within the meaning of certain statutory provisions does not divest the Alpena circuit court of its jurisdiction to issue the writ to enforce its judgment. That the proceeding is as to forms and sufficiency of pleading classed under our practice as a civil action is not of controlling significance. It is in no sense a separate, independent or primary action, but purely incidental and auxiliary to the original or main action, as is an action in garnishment, its only function being in aid of the judgment already rendered therein.
The order of the circuit judge is therefore affirmed, with costs.
Bird, C. J., and Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit. | [
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Fellows, J.
Defendants agreed for the sum of $450 to install a heating plant in plaintiff’s residence. It was to be done in a first-class manner. A heating plant was installed and the contract price paid. Plaintiff, claiming that the plant was not installed in accordance with the contract, brought this suit and recovered a judgment of $250. Defendants bring the case here asking for a reversal on two grounds:
(1) That there was no sufficient evidence to take the case to the jury; and
(2) That the verdict was against the weight of the evidence.
An examination of the record in the case satisfies us that defendants are quite wrong in both contentions. If the testimony of the plaintiff, her son, and her tenant is believed, and their credibility was for the jury, the plant never worked from the day it was first put in operation and was worthless. In addition to this testimony plaintiff produced two witnesses, both of whom were, and for many years have been, engaged in the plumbing and heating business; both of whom examined the plant, testified to many de fects, what was necessary to be done in order to make it workable, and estimated the expense it would cost to produce such result. That they did not measure the length of the piping they concluded should be taken out and larger size substituted, and that they estimated what it would cost for new material and labor to make the plant comply with the contract instead of going over it with a rule and accurately figuring each item was a proper subject of argument to the jury, but it did not render their testimony inadmissible or make the question one of law for the court.
One of the defendants was sworn and a heating engineer was also called by them. Both these witnesses gave testimony contradictory to that given by plaintiff and her witnesses. The case was one of fact; the charge of the court was a fair one, is not objected to, and left to the jury the questions to be determined. The verdict is not against the weight of the evidence.
The judgment is affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. | [
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Per Curiam.
Defendants appeal as of right from a January 8, 1987, order granting plaintiffs motion for summary disposition which was based on the court’s finding that plaintiff is not contractually obligated to provide insurance coverage to Carl Roy Nichols pursuant to two homeowner’s insurance policies.__
Plaintiff filed the instant action for declaratory judgment seeking a declaration that plaintiff no longer had a duty to defend and indemnify Carl Nichols with respect to claims made by Eric Hunt and Thelma Nichols in a separate action in which they sought damages for alleged injuries inflicted on Eric Hunt by Carl Nichols on November 10, 1984. Carl Nichols was being defended by plaintiff under a reservation of rights in that separate action. Plaintiff alleged in the instant action that the policy of insurance under which Nichols sought to be defended and indemnified specifically excluded coverage for the type of injury at issue.
There are two identical policies of homeowner’s insurance involved in the instant case. According to the insurance policy declaration sheets, plaintiff issued a "renewal” policy in the names of Carl and Thelma Nichols for coverage on a residence on 605 Raeburn Drive. The coverage period was from May 18, 1984, to May 18, 1985. Plaintiff also issued a "new business declaration” policy in the names of Carl and Thelma Nichols for coverage on a residence on Nye Highway. The coverage ran from April 10,1984, to April 10, 1985.
The personal liability coverage section of both homeowner’s insurance policies states in pertinent part: "We do not cover bodily injury to you or a family member residing in your household.”
Eric Hunt’s deposition testimony reveals that he was fourteen years old and was residing at the Raeburn Drive home with his mother and stepfather, Carl Nichols, when he sustained the injuries on November 10, 1984. He had been living at that residence for about one year prior to the incident. He was relying on his mother for support and did not get along well with his stepfather, Carl Nichols.
Thelma Hunt’s deposition testimony reveals that she was married to Carl Nichols from February 14, 1982, until January 24, 1985. She resided at the Raeburn address from 1978 through 1984. She acquired the home in a divorce from John Hunt in 1978. After their marriage, Carl Nichols moved into the house with her and lived there up to and including November 10, 1984. Hunt alone was supporting Eric at this time because Carl did not bring any money into the household.
On June 25, 1986, plaintiff moved for summary disposition in the instant case "pursuant to the provisions of MCR 2.116.” No subsection of the court rule was specified. Plaintiff contended in its motion that Eric Hunt was a "family member” as a stepson to the insured, Carl Nichols, residing in his household on Raeburn and that the insurance policy excludes from coverage bodily injury to the insured or a family member residing in his household. Because of this exclusion, plaintiff claimed it was entitled to a declaratory judgment that it had no obligation to provide a defense for Nichols or pay any claim relating to the injury sustained by Eric Hunt: Following a December 22, 1986, hearing on the motion, the court found that the bodily injury exclusion was applicable under both policies issued by plaintiff. Since there was no coverage provided for injuries to Eric or Thelma Hunt, plaintiff was not responsible "as a matter of contract” under either policy.
On January 8, 1987, an order was entered incorporating the court’s findings and granting plaintiff’s motion for summary disposition. Defendants now appeal as of right.
Defendants contend that the trial court erred in granting plaintiff’s motion for summary disposition. We disagree. Initially we note that plaintiff failed to state in its motion for summary disposition the subsection of MCR 2.116 under which the motion was being brought. In addition, no reference is found to the grounds upon which plaintiffs motion was granted in either the December 22, 1986, hearing transcript or the January 8, 1987, written order. Nonetheless, since the record is clear that the parties have relied on matters outside the pleadings to argue the motion, this Court construes the motion as one brought pursuant to MCR 2.116(0(10), no genuine issue of material fact, and reviews it as such. Huff v Ford Motor Co, 127 Mich App 287; 338 NW2d 387 (1983).
A motion for summary disposition premised upon MCR 2.116(0(10), no genuine issue as to any material fact, requires the trial court to review the entire record to determine whether the nonmoving party has discovered facts to support the claim or defense. Consequently, the trial court must look beyond the pleadings and consider affidavits, depositions, and interrogatories. In reviewing this evidentiary record, the trial court must give the benefit of any reasonable doubt to the nonmoving party in deciding whether a genuine issue as to a material fact exists. The party opposing the motion must then come forward with a showing that there is evidence to make an issue on which a dispute truly exists. If no showing is forthcoming, summary judgment is granted. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). Before judgment may be granted, the trial court must be satisfied that it is impossible for the claim asserted to be supported by the evidence at trial. Huff, supra.
The duty of an insurance company to provide a defense to a lawsuit brought against its insured is separate and severable from its duty to indemnify the insured for liability imposed after trial. Reurink Bros Star Silo, Inc v Maryland Casualty Co, 131 Mich App 139; 345 NW2d 659 (1983). The rule regarding an insurer’s duty to defend was elaborated on by this Court in Detroit Edison Co v Michigan Mutual Ins Co, 102 Mich App 136, 141-142; 301 NW2d 832 (1980):
"The duty of the insurer to defend the insured depends upon the allegations in the complaint of the third party in his or her action against the insured. This duty is not limited to meritorious suits and may even extend to actions which are groundless, false, or fraudulent, so long as the allegations against the insured even arguably come within the policy coverage. An insurer has a duty to defend, despite theories of liability asserted against any insured which are not covered under the policy, if there are any theories of recovery that fall within the policy. Dochod v Central Mutual Ins Co, 81 Mich App 63; 264 NW2d 122 (1978). The duty to defend cannot be limited by the precise language of the pleadings. The insurer has the duty to look behind the third party’s allegations to analyze whether coverage is possible. Shepard Marine Construction Co v Maryland Casualty Co, 73 Mich App 62; 250 NW2d 541 (1976). In a case of doubt as to whether or not the complaint against the insured alleges a liability of the insurer under the policy, the doubt must be resolved in the insured’s favor. 14 Couch on Insurance 2d, § 51:45, p 538.” (Emphasis in original.)
Despite the above quoted pronouncement, the duty to defend is not an unlimited one. The insurer is not required to defend against claims for damage expressly excluded from policy coverage. The exception in the policy is part of the contract between the parties. See Burton v Travelers Ins Co, 341 Mich 30; 67 NW2d 54 (1954).
In the instant case, defendants claim that plaintiffs obligation to defend and indemnify arises from the following policy provision:
SECTION II
COMPREHENSIVE PERSONAL LIABILITY PROTECTION
PERSONAL LIABILITY COVERAGE
We will pay all sums arising out of any one occurrence which an insured becomes legally obligated to pay as damages because of bodily injury or property damage covered by this policy. If a claim is made or suit is brought against the insured for liability under this coverage, we will defend the insured. We will use our lawyers and bear the expense. We are not obligated to defend after we have paid an amount equal to the limit of our liability. We may investigate or settle any claim or suit as we think appropriate.
MEDICAL PAYMENTS TO OTHERS COVERAGE
We will pay the reasonable medical expenses incurred within three years from the date of the accident for each person who sustains bodily injury caused by accident to which this insurance applies.
Each person who sustains bodily injury is entitled to this protection when that person is:
1. on an insured premises with the permission of an insured, or
2. elsewhere, if the bodily injury
b. is caused by the activities of an insured or a residence employee in the course of employment by an insured. [Emphasis added.]
Plaintiff claims any such purported coverage is clearly excluded by the following specific exclusion and definitions provided in this policy:
We do not cover bodily injury to you or a family member residing in your household.
1. "You” and "your” mean the Policyholder named in the Declarations and spouse if living in the same household.
2. "We,” "us” and "our” mean Meridian Mutual Insurance Company.
3. "Bodily injury” means physical injury, sickness or disease to a person, and includes required care, loss of services, mental anguish and death resulting from the physical injury.
5.”Family member” means a person living in your household who is:
a. related to you by blood, marriage or adoption.
b. your ward, foster child or any other person who is your dependent.
Defendants counter plaintiffs argument claiming exclusion because the insurance policies do not define "household.” Defendants claim "household” should be defined according to the policies’ definition of "residence premises”:
10. "Residence premises” means the one or two family dwelling described in the Declarations including the structures and grounds, or that part of any other building where you reside and which is described in the Declarations. Residence premises does not include any portion of any premises used for business purposes.
Defendants argue the pertinent "household” that the "Nye Road” policy is referring to is the household at Nye Road, not Raeburn. Because neither Thelma Nichols nor Eric Hunt ever resided at Nye Road, Eric Hunt would not be a "family member residing in your household” for purposes of the bodily injury exclusion.
We agree with plaintiff that this line of argument improperly equates "household” with the definition of "residence premises.” "Residence premises” applies only to the property protection coverage portion of the policy, §11. Moreover, the term "residence premises” does not appear in the insuring language of § II which provides personal liability protection, the policy section under which defendants claim coverage.
In Thomas v Vigilant Ins Co, 156 Mich App 280, 282-283; 401 NW2d 351 (1986), this Court stated the following regarding the definition of the term "household”:
Insurance contracts are to be interpreted according to the commonly understood meaning of the words of the contract. Parrish v The Paul Revere Life Ins Co, 103 Mich App 95, 97; 302 NW2d 332 (1981). The terms of the policy must be construed in accordance with the ordinary and popular sense of the language used so as to avoid strained interpretations. Mich Mutual Ins Co v Sunstrum, 111 Mich App 98, 102; 315 NW2d 154 (1981), lv den 414 Mich 890 (1982). Black’s Law Dictionary (rev 4th ed), p 873, defines "household” as: "a family living together . . . [t]hose who dwell under the same roof and compose a family.” Webster’s Third New International Dictionary (1971) defines "household” as: "[tjhose who dwell under the same roof and compose a family; a domestic establishment; specifically, a social unit comprised of those living together in the same dwelling place.” The American Heritage Dictionary of the English Language (1976) defines "household” as: "[a] domestic establishment including the members of a family and others living under the same roof.” The commonly understood meaning of the word "household” is a family unit living under the same roof.
It is clear from the above that the term "household” has a different meaning than the term "residence premises” as defined in plaintiff’s insurance policy. "Residence premises” refers to a type of physical structure while "household” refers to a distinct type of living arrangement in the sense of a social unit.
Thus we believe the proper interpretation of the bodily injury exclusion excludes defendants’ claims. The deposition testimony establishes that on and well before November 10, 1984, Carl Nichols, Thelma Nichols, and Eric Hunt were living at 605 Raeburn Drive as a family and that Eric Hunt was a "family member” living within that household. Eric was a stepson of Carl Nichols, a named insured, the natural son of Thelma Nichols, a named insured, and dependent of Thelma Nichols, a named insured.
Defendants next contend the trial court erred in determining that plaintiff was not obligated to defend or indemnify Carl Nichols against a claim of damages for mental anguish, loss of services, loss of society and companionship, fright and shock, and emotional upset made by Thelma Nichols. However, the policy’s definition of "bodily injury” clearly encompasses these types of injuries and therefore they are excluded from coverage. Again, "bodily injury” as defined in the policy means physical injury, sickness, or disease to a person and includes required care, loss of services, mental anguish, and death resulting from the physical injury. Thelma Nichols’ claims fall clearly within the definition of "bodily injury.”
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ZAHRA, J.
In 2008, the voters of Michigan passed into law a ballot initiative now codified as the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. Unlike the procedures for the editing and drafting of bills proposed through the Legislature, the electorate—those who enacted this law at the ballot box—need not review the proposed law for content, meaning, readability, or consistency.
This lack of scrutiny in the lawmaking process is significant because initiatives such as the MMMA cannot be modified “except by a[nother] vote of the electors” or by a three-fourths vote of each chamber of the Legislature. This constraint on Legislative power suggests that there can be matters of public policy so important to the people that they cannot be left in the hands of the elected legislators. But this constitutionally protected reservation of power by the people comes with a cost. The lack of procedural scrutiny in the initiative process leaves the process susceptible to the creation of inconsistent or unclear laws that may be difficult to interpret and harmonize. The MMMA is such a law. While the MMMA has been the law in Michigan for just under seven years, this Court has been called on to give meaning to the MMMA in nine different cases. The many inconsistencies in the law have caused confusion for medical marijuana caregivers and patients, law enforcement, attorneys, and judges, and have consumed valuable public and private resources to interpret and apply it. This confusion mainly stems from the immunity, MCL 333.26424 (§ 4), and the affirmative defense, MCL 333.26428 (§ 8), provisions of the MMMA. We granted leave in People v Hartwick and People v Tuttle to once again consider the meaning and application of these two very important sections of the MMMA.
For the reasons fully explained in this opinion regarding § 4, we hold:
(1) entitlement to § 4 immunity is a question of law to be decided by the trial court before trial;
(2) the trial court must resolve factual disputes relating to § 4 immunity, and such factual findings are reviewed on appeal for clear error;
(3) the trial court’s legal determinations under the MMMA are reviewed de novo on appeal;
(4) a defendant may claim immunity under § 4 for each charged offense if the defendant shows by a preponderance of the evidence that, at the time of the charged offense, the defendant
(i) possessed a valid registry identification card,
(ii) complied with the requisite volume limitations of § 4(a) and § 4(b),
(iii) stored any marijuana plants in an enclosed, locked facility, and
(iv) was engaged in the medical use of marijuana;
(5) the burden of proving § 4 immunity is separate and distinct for each charged offense;
(6) a marijuana transaction by a registered qualifying patient or a registered primary caregiver that is not in conformity with the MMMAdoes not per se taint all aspects of the registered qualifying patient’s or registered primary caregiver’s marijuana-related conduct;
(7) a defendant is entitled to a presumption under § 4(d) that he or she was engaged in the medical use of marijuana if the defendant has shown by a preponderance of the evidence that, at the time of the charged offense, the defendant
(i) possessed a valid registry identification card, and
(ii) complied with the requisite volume limitations of § 4(a) and § 4(b);
(8) the prosecution may rebut the § 4(d) presumption that the defendant was engaged in the medical use of marijuana by presenting evidence that the defendant’s conduct was not for the purpose of alleviating the registered qualifying patient’s debilitating medical condition;
(9) non-MMMA-compliant conduct may rebut the § 4(d) presumption of medical use for otherwise MMMA-compliant conduct if a nexus exists between the non-MMMA-compliant conduct and the otherwise MMMA-compliant conduct;
(10) if the prosecution rebuts the § 4(d) presumption of the medical use of marijuana, the defendant may still establish, on a charge-by-charge basis, that the conduct underlying a particular charge was for the medical use of marijuana; and
(11) the trial court must ultimately weigh the evidence to determine if the defendant has met the requisite burden of proof as to all elements of § 4 immunity.
Regarding § 8, we hold:
(1) a defendant must present prima facie evidence of each element of § 8(a) in order to be entitled to present a § 8 affirmative defense to a fact-finder;
(2) if the defendant meets this burden, then the defendant must prove each element of § 8(a) by a preponderance of the evidence; and
(3) a valid registry identification card does not establish any presumption under § 8.
For the reasons stated in this opinion, and in accordance with the conclusions of law described above, we affirm in part and reverse in part the November 19, 2013 judgment of the Court of Appeals in People v Hartwick. We further remand Hartwick to the trial court for an evidentiary hearing regarding Hartwick’s entitlement to immunity under § 4. In People v Tuttle, we affirm in part and reverse in part the January 30, 2014 judgment of the Court of Appeals. We also remand Tuttle to the trial court for an evidentiary hearing regarding Tuttle’s entitlement to immunity under § 4.
I. STATEMENT OF FACTS
A. PEOPLE v HARTWICK
In late 2011, police officers in Oakland County received a tip regarding a marijuana growing operation at Hartwick’s home. Law enforcement officers confronted Hartwick, who admitted growing marijuana, but stated he was in compliance with the MMMA. After consenting to a search of his home, Hartwick led the police officers to a bedroom containing dozens of marijuana plants in varying sizes. The police officers also found a total of 104.6 grams (approximately 3.69 ounces) of usable marijuana in the home.
The Oakland County Prosecutor charged Hartwick with manufacturing 20 to 200 marijuana plants and possession with intent to deliver marijuana. Hartwick moved to dismiss those charges based on both the immunity (§ 4) and the affirmative defense (§ 8) provided in the MMMA. The trial court held an evi-dentiary hearing at which Hartwick was the only witness. Hartwick testified that he was a medical marijuana patient and his own caregiver, and a connected primary caregiver to five registered qualifying patients. He submitted into evidence the registry identification cards for himself and the five connected qualifying patients. Hartwick could not identify the debilitating conditions suffered by two of the qualifying patients statutorily connected to him. Further, Hartwick could not identify the certifying physician for any of the five connected qualifying patients.
The trial court concluded that Hartwick was not entitled to § 4 immunity. The court reasoned that Hart-wick did not comply with the requirements of the MMMA because he did not know if the patients connected to him even had debilitating medical conditions.
The trial court similarly denied Hartwick’s motion to dismiss under § 8 and his motion in the alternative to present a § 8 affirmative defense to the jury. The court determined that Hartwick failed to present “testimony regarding a ‘bona fide physician-patient relationship or a likelihood of receiving therapeutic or palliative benefit from the medical use of marijuana,’ or any testimony on whether defendant possessed no more marijuana than reasonably necessary for medical use.” Thus, Hartwick failed to establish his entitlement to a § 8 affirmative defense.
The Court of Appeals affirmed the trial court, rejecting Hartwick’s contention “that his possession of a registry identification card automatically immunizes him from prosecution under § 4 and grants him a complete defense under § 8.” The Court of Appeals focused on the “primary purpose” of the MMMA, “which is to ensure that any marijuana production and use permitted by the statute is medical in nature and only for treating a patient’s debilitating medical condition.”
B. PEOPLE v TUTTLE
Tuttle was a registered qualifying patient and his own caregiver. He was also connected as a registered primary caregiver to at least one other registered qualifying patient. On three separate occasions in early 2012, Tattle sold marijuana to William Lalonde even though Tuttle was not formally connected to La-londe under the MMMA. In addition to arresting Tuttle for providing marijuana to Lalonde, the Oakland County Sheriffs Office searched Tuttle’s home where they found 33 marijuana plants, 38 grams of marijuana (approximately 1.34 ounces), and several weapons locked in a gun safe. Tuttle was subsequently charged with multiple counts related to the possession, delivery, and manufacture of marijuana, as well as possession of a firearm during the commission of a felony.
Tuttle attempted to invoke the immunity provided under § 4 for Counts IV through VII relating to possession of the marijuana in his home. Tuttle argued that he possessed a valid registry identification card and complied with the volume and storage limitations of § 4(a) and § 4(b). The prosecution argued that Tuttle did not comply with the requirements of § 4 because Tuttle provided marijuana to Lalonde outside the parameters of the MMMA. According to the prosecution, these transactions (for which Tuttle was charged in Counts I through III) tainted all of Tuttle’s marijuana-related activity. The trial court agreed and denied Tuttle’s motion under § 4 for immunity and dismissal of the charges.
Tuttle then raised the § 8 affirmative defense to Counts I through III. At an evidentiary hearing, Tuttle presented his registry identification card and the registry identification cards belonging to two allegedly connected qualifying patients: Michael Batke and Frank Colon. Lalonde, Batke, and Colon testified at the hearing.
Lalonde testified that he was a registered qualifying patient who met Tuttle through an internet site that purported to match medical marijuana patients with caregivers. Lalonde also testified that he told Tuttle he used marijuana to treat chronic pain. Batke testified that he was a registered qualifying patient and that Tuttle was properly connected to him under the MMMA as a registered primary caregiver. Batke also testified that he would call Tuttle every time he needed marijuana, and Tuttle provided Batke with approximately two ounces of marijuana a month. Lastly, Colon testified that he was a medical marijuana patient, that he had a debilitating medical condition, and that he utilized Tuttle as a primary caregiver. Colon stated he requested between one and two ounces of marijuana a week from Tuttle.
After the evidentiary hearing, the trial court determined that Tuttle did not present prima facie evidence for each element of § 8(a). Specifically, the trial court determined that Tuttle failed to present any evidence that the medical marijuana users to whom Tuttle was connected had physicians who “completed a full assessment of each patient’s medical history and current medical condition” as required by § 8(a)(1). The court also concluded that Tuttle failed to establish a question of fact regarding whether the quantity of marijuana he possessed was reasonable under § 8(a)(2). The Court of Appeals affirmed the trial court and additionally concluded that Tuttle had not presented prima facie evidence as to Tattle’s own medical use of marijuana under § 8(a)(3).
Regarding § 4 immunity, the Court of Appeals concluded that providing marijuana to Lalonde tainted all of Tuttle’s marijuana-related conduct thereby negating Tuttle’s ability to invoke § 4 immunity for any charge. Regarding the affirmative defense available under § 8, the Court of Appeals concluded that Tuttle’s registry identification card did not establish prima facie evidence of the required elements of § 8. The court also concluded that the testimony of Tuttle’s patients was equally deficient in presenting prima facie evidence of those elements.
II. ANALYSIS
The possession, manufacture, and delivery of marijuana are punishable criminal offenses under Michigan law. Under the MMMA, though, “[t]he medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of th[e] act.” The MMMA grants to persons in compliance with its provisions either immunity from, or an affirmative defense to, those marijuana-related violations of state law. In the cases before us, we must resolve questions surrounding the § 4 grant of immunity and the § 8 affirmative defense.
A. STANDARD OP REVIEW
We review questions of statutory interpretation de novo. The MMMA was passed into law by initiative. We must therefore determine the intent of the elector ate in approving the MMMA, rather than the intent of the Legislature. Our interpretation is ultimately drawn from the plain language of the statute, which provides “the most reliable evidence” of the electors’ intent. But as with other initiatives, we place “special emphasis on the duty of judicial restraint.” Particularly, we make no judgment as to the wisdom of the medical use of marijuana in Michigan. This state’s electors have made that determination for us. To that end, we do not attempt to limit or extend the statute’s words. We merely bring them meaning derived from the plain language of the statute.
B. SECTION 4 IMMUNITY
Section 4 grants broad immunity from criminal prosecution and civil penalties to “qualifying patient [s]” and “primary caregiver[s].” Subsection (a) specifically grants immunity to qualifying patients and states in relevant part:
(a) A qualifying patient who has been issued and possesses a registry identification card/ 1 shall not be subject to arrest, prosecution, or penalty in any manner ... for the medical use1 1 of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified ... a primary caregiver ... , 12 marihuana plants kept in an enclosed, locked facility.1 1
A registered qualifying patient, therefore, may possess up to 2.5 ounces of usable marijuana. Additionally, a registered qualifying patient may possess up to 12 marijuana plants, kept in an enclosed, locked facility, unless that patient specified a primary caregiver during the state registration process. Section 4 immunity also requires that the registered qualifying patient was engaged in the medical use of marijuana.
Similarly, § 4(b) provides immunity to registered primary caregivers. It states, in relevant part:
(b) A primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner ... for assisting a qualifying patient to whom he or she is connected through the department’s registration process with the medical use of marihuana in accordance with this act.... This subsection applies only if the primary caregiver possesses an amount of marihuana that does not exceed:
(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department’s registration process; and
(2) for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and
(3) any incidental amount of seeds, stalks, and unusable roots.
A primary caregiver, therefore, may only possess up to 2.5 ounces of usable marijuana and 12 marijuana plants in an enclosed, locked facility for each registered qualifying patient who has specified the primary caregiver during the state registration process. Similar to § 4(a), this section only applies if the primary caregiver is assisting a qualifying patient with the medical use of marijuana.
1. PROCEDURAL ASPECTS OF § 4
We begin our analysis of the procedural aspects of § 4 with the rather unremarkable proposition that entitlement to immunity under § 4 is a question of law. Immunity is a unique creature in the law and is distinguishable from other traditional criminal defenses. A successful claim of immunity excuses an alleged offender for engaging in otherwise illegal conduct, regardless of the sufficiency of proofs in the underlying case. This is consistent with the way claims of immunity are handled in other areas of law. Moreover, the parties agree that § 4 immunity should be determined as a matter of law. There is no indication that the voters who enacted the MMMA intended to treat § 4 immunity differently than other claims of immunity.
Our decision in Kolanek supports this conclusion. There we explained that § 4 “ ‘grants qualifying patient[s]’ who hold ‘registry identification card[s]’ broad immunity from criminal prosecution, civil penalties, and disciplinary actions.” A registered qualifying patient, however, “who do[es] not qualify for immunity under § 4, as well as unregistered persons, are entitled to assert in a criminal prosecution the affirmative defense . . . under § 8 . . . .” By contrasting the broad grant of immunity in § 4 “from prosecution” with the affirmative defense in § 8 “in a criminal prosecution,” we implied that the decision regarding entitlement to immunity must be made before trial. By its very nature, immunity must be decided by the trial court as a matter of law, and in pretrial proceedings, in order to establish immunity from prosecution.
Deciding these questions of law necessarily involves resolving factual disputes. To determine whether a defendant is entitled to the § 4 grant of immunity, the trial court must make factual determinations, including whether the defendant has a valid registry identi fication card and whether he or she complied with the volume, storage, and medical use limitations. The expediency of having the trial court resolve factual questions surrounding § 4 underscores the purpose of granting immunity from prosecution.
Other matters routinely conducted in pretrial contexts, such as entrapment hearings, call for the trial court to act as both the finder of fact and arbiter of law. Like entrapment, § 4 immunity “is not a defense that negates an essential element of the charged crime. Instead, it presents facts that are collateral to the crime that justify barring the defendant’s prosecution.” We therefore conclude that the trial court must resolve factual disputes for the purpose of determining § 4 immunity.
Of course, the trial court’s determinations are not without review. Questions of law are reviewed de novo by appellate courts. Atrial court’s factual findings are subject to appellate review under the clearly erroneous standard:
Findings of fact by the trial court may not be set aside unless clearly erroneous. In the application of this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.1 1
We find no reason, nor have the parties offered any reason, to deviate from this model of appellate review. Therefore, we conclude that specific factual findings made by the trial court in a § 4 immunity hearing are reviewed under the clearly erroneous standard, and questions of law surrounding the grant or denial of § 4 immunity are reviewed de novo. Further, the trial court’s ultimate grant or denial of immunity is fact-dependent and is reviewed for clear error.
2. SUBSTANTIVE ASPECTS OF § 4
Section 4 provides a broad grant of immunity from criminal prosecution and civil penalties to registered qualifying patients and connected primary caregivers. As we have stated, the statute leaves much to be desired regarding the proper implementation of this grant of immunity. When addressing this question, we must consider (a) the evidentiary burden required to establish immunity and the presumption of medical use under § 4; (b) the elements required to establish immunity and the presumption of medical use; and (c) what evidence may properly rebut a presumption of medical use.
a. BURDEN OF PROOF
The MMMA is silent regarding the burden of proof necessary for a defendant to be entitled to immunity under § 4. When statutes are silent as to the burden of proof, “we are free to assign it as we see fit, as long as we do not transgress the constitutional requirement that we not place on the defendant the burden of persuasion to negate an element of the crime.”
Assigning the burden of proof involves two distinct legal concepts. The first, the burden of production, requires a party to produce some evidence of that party’s propositions of fact. The second, the burden of persuasion, requires a party to convince the trier of fact that those propositions of fact are true. The prosecution has the burden of proving every element of a charged crime beyond a reasonable doubt. This rule of law exists in part to ensure that “there is a presumption of innocence in favor of the accused . . . and its enforcement lies at the foundation of the administration of our criminal law.” To place the burden on a criminal defendant to negate a specific element of a crime would clearly run afoul of this axiomatic, elementary, and undoubted principle of law.
A defendant invoking § 4 immunity, however, does so without regard to any presumption of innocence. The defendant does not dispute any element of the underlying charge when claiming immunity. Indeed, the defendant may even admit to otherwise unlawful conduct and yet still be entitled to § 4 immunity. When claiming § 4 immunity, the defendant places himself in an offensive position, affirmatively arguing entitlement to § 4 immunity without regard to his or her underlying guilt or innocence of the crime charged. In People v D’Angelo, we determined that the accusatorial nature of a defendant’s request for a defense of entrapment, without regard to his or her guilt or innocence of the underlying criminal charge, required the burden of proof by a preponderance of the evidence to be allocated to the defendant. The accusatorial nature of an entrapment defense and the offensive nature of immunity are similar because in both the defendant posits an affirmative argument, rather than defending a particular charge. We now follow this well-established rule of criminal procedure and assign to the defendant the burden of proving § 4 immunity by a preponderance of the evidence.
b. ELEMENTS REQUIRED TO ESTABLISH IMMUNITY
A defendant may claim entitlement to immunity for any or all charged offenses. Once a claim of immunity is made, the trial court must conduct an evidentiary hearing to factually determine whether, for each claim of immunity, the defendant has proved each element required for immunity. These elements consist of whether, at the time of the charged offense, the defendant:
(1) was issued and possessed a valid registry identification card,
(2) complied with the requisite volume limitations of § 4(a) and § 4(b),
(3) stored any marijuana plants in an enclosed, locked facility, and
(4) was engaged in the medical use of marijuana.
The court must examine the first element of immunity—possession of a valid registry identification card—on a charge-by-charge basis. In most cases, satisfying the first element will be an all-or-nothing proposition. A qualifying patient or primary caregiver who does not have a valid registry identification card is not entitled to immunity because the first element required for immunity cannot be satisfied. Conversely, a qualifying patient or primary caregiver satisfies the first element of immunity if he or she possessed a valid registry identification card at all times relevant to the charged offenses. In some cases, there may be a gap between a qualifying patient’s or a primary caregiver’s earliest conduct underlying the charged offenses and his or her most recent conduct. A court must pay special attention to whether the effective date or expiration date of a registry identification card occurred within this gap and determine whether the conduct occurred when the patient or caregiver possessed a valid registry identification card. A qualifying patient or primary caregiver can only satisfy the first element of immunity for any charge if all conduct underlying that charge occurred during a time when the qualifying patient or primary caregiver possessed a valid registry identification card.
Generally, the second and third elements of immunity are also all-or-nothing propositions. The second element—the volume limitations of § 4(a) and § 4(b)— requires that the qualifying patient or primary caregiver be in possession of no more than a specified amount of usable marijuana and a specified number of marijuana plants. When a primary caregiver is con nected with one or more qualifying patients, the amount of usable marijuana and the number of plants is calculated in the aggregate—2.5 ounces of usable marijuana and 12 marijuana plants for each qualifying patient, including the caregiver if he or she is also a registered qualifying patient acting as his or her own caregiver. When a qualifying patient cultivates his or her own marijuana for medical use and is not connected with a caregiver, the patient is limited to 2.5 ounces of usable marijuana and 12 marijuana plants. A qualifying patient or primary caregiver in possession of more marijuana than allowed under § 4(a) and § 4(b) at the time of the charged offense cannot satisfy the second element of immunity.
The third element of § 4 immunity requires all marijuana plants possessed by a qualifying patient or primary caregiver to be kept in an enclosed, locked facility. Thus, a qualifying patient or primary caregiver whose marijuana plants are not kept in an enclosed, locked facility at the time of the charged offense cannot satisfy the third element and cannot receive immunity for the charged offense.
The fourth element conditions immunity on the “medical use” of marijuana, as defined in § 3(f). Unlike elements two and three, the fourth element does not depend on the defendant’s aggregate conduct. Instead, this element depends on whether the conduct forming the basis of each particular criminal charge involved “the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.” Whether a qualifying patient or primary caregiver was engaged in the medical use of marijuana must be determined on a charge-by-charge basis.
While the qualifying patient or primary caregiver retains the burden of proving this fourth and last element of immunity, § 4(d) of the MMMA creates a rebuttable presumption of medical use when the qualifying patient or primary caregiver satisfies certain requirements.
(d) There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver:
(1) is in possession of a registry identification card; and
(2) is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption [that one is engaged in the medical use of marihuana] may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act.[ ]
The requirements necessary to establish the presumption of medical use mirror the first two elements required to establish immunity. Therefore, a qualifying patient or primary caregiver is entitled to the presumption of medical use in § 4(d) simply by establishing the first two elements of § 4 immunity.
In sum, a qualifying patient seeking to assert the protections of § 4 must prove four elements by a preponderance of the evidence. A qualifying patient must prove that, at the time of the charged offense, he or she (1) possessed a valid registry identification card,- (2) possessed no more marijuana than allowed under § 4(a); (3) stored any marijuana plants in an enclosed, locked facility; and (4) was engaged in the medical use of marijuana. If the qualifying patient establishes the first and second elements, then a presumption exists that the qualifying patient was engaged in the medical use of marijuana, thereby establishing the fourth element.
Similarly, a primary caregiver seeking to assert the protections of § 4 must prove four elements by a preponderance of the evidence. A primary caregiver must prove that, at the time of the charged offense, he or she (1) possessed a valid registry identification card; (2) possessed no more marijuana than allowed under § 4(b); (3) stored any marijuana plants in an enclosed, locked facility; and (4) was assisting connected qualifying patients with the medical use of marijuana. If the primary caregiver establishes the first and second elements, then a presumption exists that the primary caregiver was engaged in the medical use of marijuana, thereby establishing the fourth element.
c. REBUTTING THE PRESUMPTION
The presumption of the medical use of marijuana is a powerful tool for a defendant in asserting § 4 immunity. But this presumption is rebuttable:
The presumption [that one is engaged in the medical use of marihuana] may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act.[ ]
According to § 4(d)(2), the presumption of the medical use of marijuana may be rebutted by examining “conduct related to marihuana . .. .” While the statute does not specifically state whose marijuana-related conduct may be used, when read in context it is clear that it refers to the defendant’s conduct. Stated differently, in § 4(d), only the defendant’s conduct may be considered to rebut the presumption of the medical use of marijuana. This interpretation is consistent with the purpose of § 4, which is to provide immunity from prosecution to a defendant who abides by certain restrictions.
For this reason, we hold that the prosecution may not rebut a primary caregiver’s presumption of medical use by introducing evidence of conduct unrelated to the primary caregiver, such as evidence that a connected qualifying patient does not actually have a debilitating medical condition or evidence that a connected qualifying patient used marijuana for nonmedical purposes. Similarly, the prosecution may not rebut a qualifying patient’s presumption of medical use by introducing evidence that the connected primary caregiver used the qualifying patient’s marijuana for nonmedical purposes.
We must also determine whether one or more transactions that are outside the scope of the MMMA may rebut the presumption of medical use for otherwise-compliant MMMA conduct. As noted § 4(d)(2) provides the prosecution with the ability to rebut this presumption.
In Tuttle, the Court of Appeals held that a noncom-pliant marijuana transaction negates a defendant’s ability to claim § 4 immunity as to the defendant’s entire marijuana-related conduct. The court determined that “§ 4 does not allow [a] defendant to decouple . . . illicit actions involving marijuana from . . . other [wise MMMA-compliant] marijuana-related activities . . . .” The court concluded that illicit marijuana-related conduct rebuts the § 4(d) presumption of medical use for otherwise MMMA-compliant conduct.
The prosecution agrees with the Court of Appeals, arguing that if a primary caregiver has provided marijuana to an unconnected individual, the presumption of medical use has been rebutted for all of the primary caregiver’s marijuana-related conduct, including con duct that otherwise complies with § 4. Therefore, according to the prosecution, any unprotected marijuana-related conduct rebuts a defendant’s presumption of medical use for all of the defendant’s marijuana-related conduct, regardless of its relevance to the charged offense.
Tuttle argues that unprotected marijuana-related conduct may only rebut the presumption as to otherwise protected conduct if a nexus exists between the unprotected conduct and the protected conduct. In Tuttle, Counts I through III relate to unprotected transfers of marijuana from Tuttle to an unconnected patient. Tuttle agrees that this conduct is not protected and that there is no § 4 immunity with regard to that conduct. Counts IV through VII, however, relate to the marijuana being manufactured in Tuttle’s home. Tuttle argues that the conduct in Counts I through III does not necessarily affect the conduct underlying Counts IV through VII.
Tuttle specifically stresses that § 4(d)(2) provides that the presumption of medical use “may” be rebutted. Tuttle relies on the word “may” for the proposition that the trial court in its fact-finding capacity may either reject or accept evidence presented by the prosecution. Therefore, Tuttle claims, the trial court is not obligated to accept evidence of an unrelated and unprotected transaction to rebut the presumption of medical use for an otherwise protected transaction.
It is clear, as Tuttle concedes, that conduct violating the MMMA directly rebuts the presumption of medical use when a defendant’s charges are based on that specific conduct (such as the illicit conduct on which Counts I through III against Tuttle are based). It is not clear, however, that conduct violating the MMMA would also rebut the presumption of medical use related to other charges against the defendant when the illicit conduct does not form the basis of charges (such as the otherwise MMMA-compliant conduct on which Counts IV through VII against Tuttle are based). While the statutory language is neither compelling nor expressly direct, we nonetheless conclude that the statutory text lends support for Tuttle’s proposition.
Use of the permissive “may,” in conjunction with the trial court’s general gatekeeping responsibility to admit only relevant evidence, leads us to conclude that to rebut the presumption of medical use the prosecution’s rebuttal evidence must be relevant, such that the illicit conduct would allow the fact-finder to conclude that the otherwise MMMA-compliant conduct was not for the medical use of marijuana. In other words, the illicit conduct and the otherwise MMMA-compliant conduct must have a nexus to one another in order to rebut the § 4(d) presumption. This is consistent with the conclusions that the fourth element of immunity— medical use—is dependent only on the conduct forming the basis for each particular criminal charge and that immunity is claimed and generally proved on a charge-by-charge basis.
Further, Tuttle’s view not only has statutory support, but also comports with how generally a presumption should be rebutted. Only relevant evidence that allows the fact-finder to conclude that the underlying conduct was not for “medical use” may rebut the § 4(d) presumption. A wholly unrelated transaction—i.e., a transaction with no nexus, and therefore no relevance, to the conduct resulting in the charged offense—does not assist the fact-finder in determining whether the defendant actually was engaged in the medical use of marijuana during the charged offense. Conduct unre lated to the charged offense is irrelevant and does not rebut the presumption of medical use.
Therefore, under § 4(d)(2), the prosecution may rebut the presumption of medical use for each claim of immunity. Improper conduct related to one charged offense may not be imputed to another charged offense unless the prosecution can establish a nexus between the improper conduct and the otherwise MMMA-compliant conduct. The trial court must ultimately determine whether a defendant has established by a preponderance of the evidence that he or she was engaged in the medical use of marijuana. The defendant may do so by establishing this powerful presumption of medical use. If the presumption of medical use has been rebutted, however, the defendant may still prove through other evidence that, with regard to the underlying conduct that resulted in the charged offense and for which the defendant claims immunity, the defendant was engaged in the medical use of marijuana, as defined in § 3(f).
C. SECTION 8 DEFENSE
Section 8(a) of the MMMA provides any patient or primary caregiver—regardless of registration with the state—with the ability to assert an affirmative defense to a marijuana-related offense. The affirmative defense “shall be presumed valid where the evidence shows”:
(1) A physician has stated that, in the physician’s professional opinion, after having completed a foil assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition;
(2) The patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition; and
(3) The patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition.[ )
In Kolanek, we determined that if a defendant establishes these elements and no question of fact exists regarding these elements, then the defendant is entitled to dismissal of the criminal charges. We also clarified that if questions of fact exist, then “dismissal of the charges is not appropriate and the defense must be submitted to the jury.” Additionally, if a defendant has not presented prima facie evidence of each element of § 8 by “present [ing] evidence from which a reasonable jury could conclude that the defendant satisfied the elements of the § 8 affirmative defense,. . . then the circuit court must deny the motion to dismiss the charges,” and “the defendant is not permitted to present the § 8 defense to the jury.”
A defendant seeking to assert the MMMA’s statutory affirmative defense must present prima facie evidence for each element of § 8(a). Overcoming this initial hurdle of presenting prima facie evidence of each element is not an easy task. The elements of § 8 are clearly more onerous than the elements of § 4. The statutory scheme of the MMMA is designed to benefit those who properly register and are meticulous in their adherence to the law. Presumably, a properly registered defendant facing criminal charges would invoke immunity under § 4. However, a § 8 defense may be pursued by any defendant, regardless of registration status. With this background, we consider each element of the § 8 affirmative defense.
1. SECTION 8(a)(1): THE IMPRIMATUR OP THE PHYSICIAN-PATIENT RELATIONSHIP
Section 8(a)(1) requires a physician to determine the patient’s suitability for the medical use of marijuana. It provides:
(1) A physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition].]1 1
This provision may be reduced to three elements:
(1) The existence of a bona fide physician-patient relationship,
(2) in which the physician completes a full assessment of the patient’s medical history and current medical condition, and
(3) from which results the physician’s professional opinion that the patient has a debilitating medical condition and will likely benefit from the medical use of marijuana to treat the debilitating medical condition.
Each of these elements must be proved in order to establish the imprimatur of the physician-patient relationship required under § 8(a)(1) of the MMMA. Hartwick and Tuttle argue that the registry identification card establishes these three elements. We do not find merit in this position.
As part of the process for obtaining a registry identification card, an applicant must submit, among other materials, a “written certification.” At the time of the offenses at issue, the MMMA defined a written certification as
a document signed by a physician, stating the patient’s debilitating medical condition and stating that, in the physician’s professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.[ ]
Thus, at the time of the offenses at issue, a written certification was a document prepared by a physician that contained at least two representations: (1) the patient has a debilitating medical condition, and (2) the patient will likely benefit from the medical use of marijuana. Further, MCL 333.26426(c) provides that the department “shall verify the information contained in an application” and that the department “may deny an application . . . only if the applicant did not provide the information required pursuant to this section, or if the department determines that the information provided was falsified.”
Comparing the definition of “written certification” with the elements of § 8(a)(1), a registry identification card satisfies the third element (the patient has a debilitating medical condition and would likely benefit from the medical use of marijuana). A registry identification card, however, does not establish the second element (a physician has completed a full assessment of the patient’s medical history and current medical condition). The second element must be established through medical records or other evidence submitted to show that the physician actually completed a full assessment of the patient’s medical history and current medical condition before concluding that the patient is likely to benefit from the medical use of marijuana and before the patient engages in the medi cal use of marijuana. Additionally, the physician certification leaves unsatisfied the first element of § 8(a)(1) (the existence of a bona fide physician-patient relationship).
At the time of the offenses at issue, the MMMA did not define “bona fide physician-patient relationship.” In Kolanek, we stated that “this term envisions ‘a pre-existing and ongoing relationship with the patient as a treating physician.’ ” Thus, to satisfy the first element—the existence of a bona fide physician-patient relationship—there must be proof of an actual and ongoing physician-patient relationship at the time the written certification was issued.
A primary caregiver has the burden of establishing the elements of § 8(a)(1) for each patient to whom the primary caregiver is alleged to have unlawfully provided marijuana. In this context, a primary caregiver who provides marijuana to a putative patient plainly assumes the risk that the patient does not actually meet the elements of § 8(a)(1) or that the patient may not cooperate in a subsequent prosecution of the primary caregiver, regardless what that person may have otherwise told the primary caregiver.
2. SECTION 8(a)(2): THE QUANTITY OF MARIJUANA
Section 8(a)(2) requires a patient or primary caregiver to show that
[the] patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition[.][ 1
The critical phrase from the above quoted passage is “reasonably necessary to ensure uninterrupted availability of marihuana [for treatment] . . . Hartwick and Tuttle maintain that a registry identification card establishes a presumption that any amount of marijuana possessed by a defendant is a reasonable amount of marijuana under the MMMA. In the alternative, they argue that a valid registry identification card, coupled with compliance with the volume limitations in § 4, establishes a presumption that the amount of marijuana possessed is reasonable. Again, we do not find support for the defendants’ position in the text of the MMMA.
The issuance of a registry identification card or compliance with the volume limitations in § 4 does not show that an individual possesses only a “reasonably necessary” amount of marijuana “to ensure uninterrupted availability” for the purposes of § 8(a)(2). A registry identification card simply qualifies a patient for the medical use of marijuana. It does not guarantee that an individual will always possess only the amount of marijuana allowed under the MMMA.
Further, nothing in the MMMA supports the notion that the quantity limits found in the immunity provision of § 4 should be judicially imposed on the affirmative defense provision of § 8. Sections 4 and 8 feature contrasting statutory language intended to serve two very different purposes. Section 4 creates a specific volume limitation applicable to those seeking immunity. In contrast, § 8 leaves open the volume limitation to that which is “reasonably necessary.” The MMMA could have specified a specific volume limitation in § 8, but it did not. In the absence of such an express limitation, we will not judicially assign to § 8 the volume limitation in § 4 to create a presumption of compliance with § 8(a)(2). Indeed, the only instance in which a primary caregiver must control a patient’s dosage is when he or she is the parent of a minor patient. That the statute requires these particular caregivers to control a patient’s dosage, but does not require it of others, indicates that all other caregivers need not be particularly aware of their patients’ medical needs. Instead, a primary caregiver may reasonably rely on the amount his or her patient states is needed to treat the patient’s debilitating medical condition.
A patient seeking to assert a § 8 affirmative defense may have to testify about whether a specific amount of marijuana alleviated the debilitating medical condition and if not, what adjustments were made to the consumption rate and the amount of marijuana consumed to determine an appropriate quantity. Once the patient establishes the amount of usable marijuana needed to treat the patient’s debilitating medical condition, determining whether the patient possessed “a quantity of marihuana that was not more than was reasonably necessary to ensure [its] uninterrupted availability” also depends on how the patient obtains marijuana and the reliability of this source. This would necessitate some examination of the patient/caregiver relationship.
The same analysis applies to primary caregivers seeking to present a defense under § 8. Primary caregivers must establish the amount of usable marijuana needed to treat their patients’ debilitating medical conditions and then how many marijuana plants the primary caregiver needs to grow in order ensure “uninterrupted availability” for the caregiver’s patients. This likely would include testimony regarding how much usable marijuana each patient required and how many marijuana plants and how much usable marijuana the primary caregiver needed in order to ensure each patient the “uninterrupted availability” of marijuana.
3. SECTION 8(a)(3): THE USE OF MARIJUANA FOR A MEDICAL PURPOSE
Section 8(a)(3) requires a patient or primary caregiver to show that
[t]he patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition.1 1
Although there is a purposeful distinction made between the amount of marijuana permitted under § 4 and the “reasonably necessary” restraint on quantity found in § 8(a)(2), § 8(a)(3) requires a patient and primary caregiver to show that any marijuana use complied with a very similar “medical use” requirement found in § 4, and defined in § 3(f):
“Medical use” means the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.f )
The slight variance between the definition of “medical use” in § 4 and medical use as it appears in § 8 can be attributed to the fact that only registered qualifying patients and registered primary caregivers may engage in the “medical use” of marijuana, as indicated by use of the term in § 4. Those patients and primary caregivers who are not registered may still be entitled to § 8 protections if they can show that their use of marijuana was for a medical purpose—to treat or alleviate a serious or debilitating medical condition or its symptoms. Hartwick and Tuttle again argue that a registry identification card alone, or a registry identification card coupled with compliance with either the volume limitations of § 4(a) and (4)(b) or § 8(a)(2), satisfies § 8(a)(3). Once again, defendants seek to attribute greater significance to the registry identifica tion card than that which is expressly provided in the MMMA. We simply do not find support for the defendants’ arguments in the text of the MMMA.
A registry identification card merely qualifies a patient for the medical use of marijuana. It does not establish that at the time of the charged offense, the defendant was actually engaged in the protected use of marijuana. Section 8(a)(3) requires that both the patient’s and the primary caregiver’s use of marijuana be for a medical purpose, and that their conduct be described by the language in § 8(a)(3). Thus, patients must present prima facie evidence regarding their use of marijuana for a medical purpose regardless whether they possess a registry identification card. Primary caregivers would also have to present prima facie evidence of their own use of marijuana for a medical purpose and any patients’ use of marijuana for a medical purpose.
III. APPLICATION TO HARTWICK AND TUTTLE
A. PEOPLE v HARTWICK
1. SECTION 4 IMMUNITY
Hartwick is a registered qualifying patient, his own caregiver, and at all times pertinent to this dispute, a primary caregiver to five registered qualifying patients. The prosecuting attorney charged Hartwick with manufacturing marijuana and possession of marijuana with the intent to deliver. Hartwick sought to invoke § 4 immunity. In order to qualify for § 4 immunity, Hartwick must prove by a preponderance of the evidence that for each charged offense he
(1) possessed a valid registry identification card for himself as a qualifying patient and for each of the five other connected registered qualifying patients,
(2) possessed no more than 72 marijuana plants and 15 ounces of usable marijuana,
(3) kept the marijuana plants in an enclosed, locked facility, and
(4) was engaged in the medical use of marijuana.
Hartwick is entitled to a presumption of the medical use of marijuana if he shows by a preponderance of the evidence that he possessed:
(1) a valid registry identification card for himself as a patient and for each of the five other registered qualifying patients to whom he is connected under the MMMA, and
(2) no more than 72 marijuana plants and 15 ounces of usable marijuana.
The prosecution may then rebut this presumption in accordance with § 4(d)(2).
The lower courts erred with respect to Hartwick’s entitlement to immunity under § 4. There is no statutory requirement under § 4 that Hartwick know the debilitating conditions of, the amount of marijuana needed for, the length of time treatment should continue for, or the identities of the physicians of, the registered qualifying patients to whom Hartwick is connected under the MMMA. This lack of information cannot be used to rebut Hartwick’s presumption of the medical use of marijuana under § 4(d). For purposes of § 4, the lower courts should have instead focused on Hartwick’s conduct.
The Court of Appeals also should not have determined that the number of marijuana plants Hartwick possessed was “moot.” The trial court never made a factual determination of the number of marijuana plants in Hartwick’s possession or the other elements of § 4. Even if such facts had been established, the Court of Appeals reviews the trial court’s factual findings for clear error. Thus, a new § 4 evidentiary hearing conforming to the holdings expressed in this opinion is necessary to determine Hartwick’s entitlement to § 4 immunity.
2. SECTION 8 DEFENSE
In contrast to Hartwick’s claim of immunity under § 4, the lower courts correctly concluded that Hartwick was not entitled to the § 8 affirmative defense. Even though Hartwick provided testimony of his own medical condition and evidence of registry identification cards for himself and five patients, he did not present prima facie evidence for each element of § 8(a). Specifically, Hartwick failed to provide any evidence of § 8(a)(1) (bona fide physician-patient relationship), § 8(a)(2) (amount of marijuana the patients needed), or § 8(a)(3) (whether the patients engaged in the use of marijuana for a medical purpose).
Further, to the extent the Court of Appeals determined that a written certification was comparable to a pharmaceutical prescription, this determination was erroneous. A written certification is not similar to that of a pharmaceutical prescription. Marijuana is a Schedule 1 controlled substance. Therefore, a doctor is not legally able to prescribe marijuana to an indi vidual for any reason. A written certification is a statutorily mandated document that must meet specific statutory requirements so that an individual may successfully apply for a registry identification card. While the MMMA states that “ [m]odern medical research . . . has discovered beneficial uses for marihuana in treating. . . debilitating medical conditions,” the terminology employed in the MMMA and the actual function of primary caregivers and patients is not comparable to a medical doctor’s treatment of an actual patient. Primary caregivers carry out a statutorily created task that is completely unrelated to how a doctor would treat a patient.
B. PEOPLE v TUTTLE
1. SECTION 4 IMMUNITY
Tuttle is a registered qualifying patient, his own caregiver, and a primary caregiver to at least one registered qualifying patient. The prosecuting attorney charged Tuttle with multiple counts of manufacturing, possessing, and delivering marijuana. Tuttle sought to have Counts IV through VII, which relate to the manufacture and possession of marijuana in Tut-tle’s home, dismissed under the immunity provisions of § 4.
In order to qualify for immunity under § 4, Tuttle must prove by a preponderance of the evidence that for each charged offense he
(1) possessed a valid registry identification card for himself as a qualifying patient and for each connected registered qualifying patient,
(2) possessed no more than the volume of marijuana permitted by § 4(a) and § 4(b),
(3) kept the marijuana plants in an enclosed, locked facility, and
(4) was engaged in the medical use of marijuana.
Tuttle is entitled to a presumption that he was engaged in the medical use of marijuana if he shows by a preponderance of the evidence that he possessed:
(1) a valid registry identification card for himself as a patient and for each connected registered qualifying patient, and
(2) no more than the volume of marijuana allowed by § 4(a) and § 4(b).
The prosecution may then rebut this presumption in accordance with § 4(d)(2).
The lower courts erred when they concluded that Tuttle’s provision of marijuana to Lalonde necessarily tainted all of Tuttle’s marijuana-related activity thereby negating his ability to claim § 4 immunity for each charged offense. Providing marijuana to Lalonde did not per se taint all of Tuttle’s marijuana-related conduct. Tuttle was not connected to Lalonde under the MMMA. Therefore, Tuttle was clearly outside the parameters of § 4 when he provided marijuana to Lalonde (Counts I through III).
Tuttle, however, may still be entitled to immunity for the remaining charges in Counts IV through VIL With regard to the charges of possessing and manufacturing marijuana in his home, the trial court must make factual determinations regarding the number of patients connected to Tuttle under the MMMA, the number of marijuana plants Tuttle had in his home and the amount of usable marijuana Tuttle possessed, whether the marijuana plants were stored in an enclosed, locked facility, and whether Tuttle was engaged in the medical use of marijuana.
Tuttle must prove entitlement to immunity for each charged offense. And the prosecution may only use evidence of conduct relating to one charged offense to rebut the presumption of medical use for another charged offense if a nexus exists between the charged offenses. Put simply, improper conduct related to La-londe in Counts I through III may only affect Counts IV through VII if the prosecution can establish a nexus between the improper conduct in Counts I through III and the otherwise MMMA through compliant conduct in Counts IV through VII. Only if this nexus exists can the trial court determine that the illicit conduct in Counts I through III rebuts the presumption that Tuttle was engaged in the medical use of marijuana for the conduct underlying Counts IV through VII.
The trial court must ultimately weigh the evidence to determine if the prosecution successfully rebutted Tut-tle’s presumption of medical use for Counts IV through VII by evidence of the conduct relating to marijuana in Counts I through III and, if so, whether Tuttle has otherwise shown that the charged conduct for which he claims immunity was consistent with the medical use of marijuana. The flexibility allowing the trial court to make this decision in § 4(d) permits the trial court to hear evidence to determine if Tuttle truly was a primary caregiver simply trying to assist patients, or if Tuttle acted outside the protection of the MMMA.
To that end, factual findings are needed to determine Tuttle’s entitlement to immunity under § 4 for Counts IV through VIL As a result, a new § 4 eviden-tiary hearing conforming to the holdings expressed in this opinion is necessary to determine Tuttle’s entitlement to § 4 immunity.
2. SECTION 8 DEFENSE
The lower courts properly concluded that Tuttle was not entitled to the § 8 affirmative defense. During an evidentiary hearing, Tuttle presented his registry identification card and the registry identification cards belonging to Michael Batke and Frank Colon. Lalonde, Batke, and Colon also testified at the hearing.
Lalonde testified that he first came into contact with Tuttle through an unofficial internet site intended to match medical marijuana patients and caregivers. He also testified that he was a registered qualifying patient and that he told Tuttle he was using marijuana to alleviate pain. Lalonde’s testimony, however, did not meet the first and third element of § 8(a), requiring his condition to be diagnosed in the course of a bona fide physician-patient relationship through which the physician found the condition suitable for the medical use of marijuana. Lalonde did not testify about how much marijuana he needed to treat his debilitating condition under § 8(a)(2) or if he engaged in the use of marijuana under § 8(a)(3) to treat his debilitating condition.
Batke testified that he was a registered qualifying patient and that Tuttle was connected to him as a registered caregiver. Batke also testified that he would call Tuttle every time he needed marijuana. As a result, Tuttle provided Batke with approximately two ounces of marijuana a month. This does not speak to the amount of marijuana Batke reasonably needed in order to treat his debilitating condition, only to the amount of marijuana actually provided. Nor did Batke establish that he had a bona fide relationship with a physician. Lastly, Colon testified that he was a registered qualifying patient, that he had a medical condition, and that he utilized Tuttle as a caregiver. Colon stated he would request between one and two ounces of marijuana each week from Tuttle. Colon did not testify that he received a full medical assessment in the course of a bona fide physician-patient relationship.
Lalonde’s, Batke’s, and Colon’s testimony was deficient in establishing at least one element of § 8(a). Additionally, the patients’ testimony combined with their registry identification cards did not establish prima facie evidence under § 8(a). Therefore, Tuttle failed to present prima facie evidence of each element of § 8(a). The Court of Appeals correctly affirmed the trial court’s denial of Tuttle’s motion to dismiss under § 8 and correctly denied his request to present a § 8 defense at trial.
IV. CONCLUSION
In People v Hartwick, Docket No. 148444, we conclude that (1) the trial court must hold a new eviden-tiary hearing to determine Hartwick’s entitlement to immunity under § 4, and (2) Hartwick is not entitled to an affirmative defense under § 8. Accordingly, we affirm the judgment of the Court of Appeals in part, reverse in part, and remand to the trial court for proceedings not inconsistent with this opinion.
In People v Tuttle, Docket No. 148971, we conclude that (1) the trial court must hold a new evidentiary hearing to determine Tuttle’s entitlement to immunity under § 4, and (2) Tuttle is not entitled to an affirmative defense under § 8. Accordingly, we affirm the judgment of the Court of Appeals in part, reverse in part, and remand to the trial court for proceedings not inconsistent with this opinion.
Young, C.J., and Markman, Kelly, McCormack, Viviano, and Bernstein, JJ., concurred with Zahra, J.
Under Article 2, § 9 of the 1963 Michigan Constitution, “[t]he people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative ....” A voter initiative may be invoked by a relatively small number of registered voters. “To invoke the initiative . .. , petitions signed by a number of registered electors, not less than eight percent... of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.” Const 1963, art 2, § 9.
The MMMA uses the variant “marihuana.” Throughout this opinion, we use the vernacular “marijuana” unless quoting from the statute.
Members of the Legislature generally request that the Legislative Council, a bipartisan, bicameral body of legislators established in Article 4, § 15 of the 1963 Constitution of Michigan, see that bills to be proposed in their respective chambers are drafted. See Const 1963, art 4, § 15; MCL 4.1103; MCL 4.1105. The council oversees the Legislative Service Bureau. MCL 4.1105. The bureau has a director and staff, and maintains a legislative reference library containing material that may be of use in connection with drafting and editing proposed legislation. MCL 4.1106; MCL 4.1107. At the request of the members of the Legislature, the bureau drafts “bills and resolutions or amendments to, or substitutes for, bills and resolutions; draft[s] conference committee reports; and examinéis], checkfs], and comparéis] pending bills with other pending bills and existing laws to avoid so far as possible contrary or conflicting provisions.” MCL 4.1108(a). In sum, the Legislature has a staff of experienced attorneys who work with the various legislators to develop and revise any manner of laws. After a bill is drafted and supported, the chambers of the Legislature may refer it to conference committees for additional review by legislators and the public. The Governor also has an opportunity to review bills before signing them into law. This extensive drafting process works to clarify language, limit confusion and mistakes, and in a general sense, ensure that enacted laws have a modicum of readability and consistency.
See Const 1963, art 2, § 9.
The Court previously interpreted the MMMA in the following cases: People v Mazur, 497 Mich 302; 854 NW2d 719 (2015); Ter Beek v City of Wyoming, 495 Mich 1; 846 NW2d 531 (2014); People v Green, 494 Mich 865 (2013); People v Koon, 494 Mich 1; 832 NW2d 724 (2013); State v McQueen, 493 Mich 135; 828 NW2d 644 (2013); People v Bylsma, 493 Mich 17; 825 NW2d 543 (2012); People v Kolanek, 491 Mich 382; 817 NW2d 528 (2012). This term, the Court granted leave in People v Hartwick, 496 Mich 851 (2014), and People v Tuttle, 496 Mich 851 (2014).
In Hartwick, we directed the parties to address the following questions:
(1) whether a defendant’s entitlement to immunity under § 4 of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., is a question of law for the trial court to decide; (2) whether factual disputes regarding § 4 immunity are to be resolved by the trial court; (3) if so, whether the trial court’s finding of fact becomes an established fact that cannot be appealed; (4) whether a defendant’s possession of a valid registry identification card establishes any presumption for purposes of § 4 or § 8; (5) if not, what is a defendant’s evidentiary burden ■ to establish immunity under § 4 or an affirmative defense under § 8; (6) what role, if any, do the verification and confidentiality provisions in § 6 of the act play in establishing entitlement to immunity under § 4 or an affirmative defense under § 8; and (7) whether the Court of Appeals erred in characterizing a qualifying patient’s physician as issuing a prescription for, or prescribing, marijuana. [Hartwick, 496 Mich at 851.]
In Tuttle, we directed the parties to address the following questions:
(1) whether a registered qualifying patient under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., who makes unlawful sales of marijuana to another patient to whom he is not connected through the registration process, taints all aspects of his marijuana-related conduct, even that which is otherwise permitted under the act; (2) whether a defendant’s possession of a valid registry identification card establishes any presumption for purposes of § 4 or § 8; (3) if not, what is a defendant’s evidentiary burden to establish immunity under § 4 or an affirmative defense under § 8; and (4) what role, if any, do the verification and confidentiality provisions in § 6 of the act play in establishing entitlement to immunity under § 4 or an affirmative defense under § 8. [Tuttle, 496 Mich at 851-852.]
The same panel of the Court of Appeals presided over People v Hartwick and People v Tuttle.
A valid registry identification card is a prerequisite to establish immunity under § 4. But possession of a valid registry identification card, alone, does not establish any presumption for the purpose of § 4. Further, the verification and confidentiality provisions in § 6(c) and § 6(h), MCL 333.26426(c) and (h), do not establish that a defendant has engaged in the medical use of marijuana, or complied with the requisite volume and storage limitations of § 4.
A valid registry identification card is prima facie evidence that a physician has determined the registered qualifying patient has a debilitating medical condition and will likely benefit from the medical use of marijuana to treat the debilitating medical condition. In addition, a valid registry identification card issued after April 1, 2013, the effective date of 2012 PA 512, is also prima facie evidence that a physician has conducted a full, in-person assessment of the registered qualifying patient. We reach this conclusion because § 6(c) requires the state to verify all the information contained in an application for a registry identification card; therefore, a valid registry identification card is prima facie evidence of anything contained in the application. This prima facie evidence satisfies two elements of § 8(a)(1), but does not satisfy the last element requiring prima facie evidence of a bona fide physician-patient relationship.
People v Hartwick, 303 Mich App 247; 842 NW2d 545 (2013).
People v Tuttle, 304 Mich App 72; 850 NW2d 484 (2014).
Hartwick alleges that 71 plants were found, while the police allege he possessed 77 plants. Hartwick, 303 Mich App at 253-254, 259-260. Additionally, while this issue was not appealed, we note that Hartwick testified the door to the bedroom was locked before he unlocked it for the police, while the police allege that it was unlocked when they arrived.
We do not use the terms “patient” and “caregiver” in the traditional sense associated with a patient/medical provider relationship. Rather, we use these terms because they are used in the MMMA. Under the MMMA, a medical marijuana user, or “patient,” may elect to either manufacture marijuana for personal medical use or have someone else manufacture and supply marijuana to him or her. Such a supplier is known under the MMMA as a “primary caregiver.” We refer to the qualifying patient as being his or her “own caregiver” when the patient has not designated a primary caregiver. We use the terms “patient” and “caregiver” throughout this opinion simply to track the language of the MMMA and not to suggest that someone asserting a defense or immunity under the MMMA is a “patient” or “caregiver” as those terms are generally understood. Whether one is a “patient” or “caregiver” under the MMMA, as opposed to a supplier or user of illegal marijuana, is a question to be resolved on a case-by-case basis.
When a qualifying patient elects a primary caregiver, a registry identification card is also issued to the primary caregiver. When a qualifying patient has properly designated a primary caregiver under the MMMA, the primary caregiver is said to be “connected” to that particular qualifying patient.
An individual claiming § 4 immunity must comply with the requirement that marijuana be only for a medical use.
Hartwick, 303 Mich App at 255.
Id. at 251.
Id.
At all relevant times, Tuttle was connected as a registered primary caregiver for Michael Batke. Additionally, Tuttle was at some point connected as a primary caregiver to Frank Colon. It is unclear whether Colon remained connected to Tuttle at the time of Tuttle’s offenses in this case. Colon may have renewed his MMMA card and listed himself as his own caregiver. Notwithstanding this possible inconsistency, Colon testified in the lower court that Tuttle supplied him with marijuana for his personal medical use. See page 208 of this opinion.
Counts I through III relate to Tuttle’s provision of marijuana to Lalonde. Counts IV through VII relate to the marijuana found in Tuttle’s home.
The physician’s statement indicates that Colon’s debilitating medical condition was shoulder and lower back pain.
Tuttle, 304 Mich App at 79.
The trial court did find the testimony of Lalonde, Batke, and Colon credible as to their need for the medical use of marijuana to treat a debilitating medical condition under § 8(a)(3).
See Kolaneh, 491 Mich at 394 n 24.
MCL 333.26427(a).
Kolanek, 491 Mich at 393.
McQueen, 493 Mich at 147 (“ ‘[T]he intent of the electors governs’ the interpretation of voter-initiated statutes, just as the intent of the Legislature governs the interpretation of legislatively enacted statutes.”) (citation omitted).
Id.
Schmidt v Dep’t of Ed, 441 Mich 236, 241-242; 490 NW2d 584 (1992).
The MMMA defines “qualifying patient” or “patient” as “a person who has been diagnosed by a physician as having a debilitating medical condition.” MCL 333.26423(i).
The MMMA defines “primary caregiver” or “caregiver” as “a person who is at least 21 years old and who has agreed to assist with a patient’s medical use of marihuana and who has not been convicted of any felony within the past 10 years and has never been convicted of a felony involving illegal drugs or a felony that is an assaultive crime ....” MCL 333.26423(h).
The MMMA defines “registry identification card” as “a document issued by the department that identifies a person as a registered qualifying patient or registered primary caregiver.” MCL 333.26423(j). The “department” is the “department of licensing and regulatory affairs.” MCL 333.26423(c).
“Medical use” is defined as “the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.” MCL 333.26423(f).
MCL 333.26424(a).
“Usable marihuana” is defined as “the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant.” MCL 333.26423(k).
When a patient does not specify a primary caregiver through the state registration process, the patient is typically considered his or her own caregiver. When no primary caregiver is properly identified under the law, the patient has legal authority to possess up to 12 marijuana plants.
Morden v Grand Traverse Co, 275 Mich App 325, 340; 738 NW2d 278 (2007) (“Whether a defendant is entitled to qualified immunity is a question of law . . . .”); Snead v John Carlo, Inc, 294 Mich App 343, 354; 813 NW2d 294 (2011) (“[T]he determination regarding the applicability of governmental immunity and a statutory exception to governmental immunity is a question of law .. ..”).
Kolanek, 491 Mich at 394-395 (emphasis added).
Id. at 415 (emphasis added).
See People v Julliet, 439 Mich 34, 61; 475 NW2d 786 (1991) (opinion by Brickley, J.) (entrapment determined by trial court); People v Jones, 301 Mich App 566, 575-576; 837 NW2d 7 (2013) (discussing similarities between § 4 immunity hearings and entrapment hearings).
Julliet, 439 Mich at 52 (opinion by Brickley, J.).
See People v Keller, 479 Mich 467, 473-474; 739 NW2d 505 (2007).
MCR 2.613(C).
See People v Johnson, 466 Mich 491, 497; 647 NW2d 480 (2002), citing People v Jamieson, 436 Mich 61, 80; 461 NW2d 884 (1990) (opinion by Bkickley, J.).
People v Mezy, 453 Mich 269, 283; 551 NW2d 389 (1996), citing Patterson v New York, 432 US 197; 97 S Ct 2319; 53 L Ed 2d 281 (1977).
See McCormick, Evidence (7th ed), § 336, pp 644-645.
Id. Some courts have conflated the burden of proof with the burden of persuasion or the burden of production. See Director, Office of Workers’ Comp Programs v Greenwich Collieries, 512 US 267, 272-276; 114 S Ct 2251; 129 L Ed 2d 221 (1994) (referring to the “burden of proof’ as the “burden of persuasion”). But these are different concepts. The burden of proof, which may also be generally referred to as a party’s evidentiary burden, refers both to a party’s burden to provide actual evidence of alleged facts and a party’s burden to persuade the trier of fact as to the veracity of those facts.
See People v Crawford, 458 Mich 376, 389; 582 NW2d 785 (1998) (“[T]he prosecution must carry the burden of proving every element beyond a reasonable doubt. . ..”).
Coffin v United States, 156 US 432, 453; 15 S Ct 394; 39 L Ed 481 (1895).
Id.
People v D’Angelo, 401 Mich 167, 180, 183; 257 NW2d 655 (1977).
MCL 333.26424(a) and (b).
For example, a registered qualifying patient who is his or her own caregiver and the caregiver to five other qualifying patients is allowed to possess up to 72 marijuana plants and up to 15 ounces of usable marijuana. If that individual actually possessed 73 marijuana plants or 16 ounces of usable marijuana and was charged with multiple marijuana-related offenses, the individual could not satisfy the second element of immunity under § 4 for any of the charged offenses because the individual possessed marijuana in excess of the volume limitations in § 4(a) and § 4(b).
MCL 333.26423(f).
MCL 333.26424(d).
These elements are (1) possessing a valid registry identification card, and (2) complying with the volume limitations of § 4(a) and § 4(b).
MCL 333.26424(d)(2).
We recognize that “conduct” may be misfeasance as well as nonfea-sance. Nothing in our holding should be interpreted to shield a primary caregiver who has actual knowledge that the marijuana provided to a qualifying patient is being used in a manner not permitted under the MMMA.
The MMMA requires the state to verify all information contained in an application for a registry identification card and to keep confidential the list of registry identification cards issued, except to verify the validity of such cards to law enforcement. Hartwick and Tuttle both argue that because of the verification and confidentiality requirements, the issuance of a registry identification card establishes either immunity under § 4 or, at least, a presumption of the medical use of marijuana under § 4(d). As we have already concluded, a registry identification card is only one requirement for establishing immunity under § 4. The verification and confidentiality provisions do not establish that a defendant has engaged in the medical use of marijuana or abided by the requisite volume and storage limitations of § 4(a) and § (4)(b). Simply put, a registry identification card, alone, does not establish § 4 immunity or a presumption of the medical use of marijuana under § 4(d).
MCL 333.26424(d)(2).
Tuttle, 304 Mich App at 84.
Id.
See MRE 401 and MRE 402.
MCL 333.26428(a)(1) to (3).
Kolanek, 491 Mich at 416.
Id.
Id.
Id. at 415-416. In Kolanek, we did not determine the standard by which a defendant must establish a § 8 defense. We now clarify that well-established rules of criminal procedure require a defendant to prove the affirmative defense by a preponderance of evidence. See, e.g., D’Angelo, 401 Mich at 183 (holding that the defendant has the burden of proving entrapment by a preponderance of the evidence). Thus, when the § 8 affirmative defense is submitted to a fact-finder, the defendant’s burden of proof is to establish the elements of § 8(a) by a preponderance of the evidence.
MCL 333.26428(a)(1).
MCL 333.26426(a)(1).
In 2012, the Legislature garnered sufficient votes to satisfy the three-fourths super majority required to amend a voter-enacted initiative and amended the MMMA to include the additional requirement that the physician conducted a full, in-person assessment of the patient. See 2012 PA 512, effective April 1, 2013.
Former MCL 333.26423©. “Written certification” has since been amended and renumbered as § 3(m). See 2012 PA 512, effective April 1, 2013.
We note that registry identification cards issued on or after April 1, 2013, the effective date of 2012 PA 512, establish the second element. See note 72 of this opinion.
The MMMA has since been amended by 2012 PA 512, effective April 1, 2013, to define a “bona fide physician-patient relationship.”
“Bona fide physician-patient relationship” means a treatment or counseling relationship between a physician and patient in which all of the following are present:
(1) The physician has reviewed the patient’s relevant medical records and completed a full assessment of the patient’s medical history and current medical condition, including a relevant, in-person, medical evaluation of the patient.
(2) The physician has created and maintained records of the patient’s condition in accord with medically accepted standards.
(3) The physician has a reasonable expectation that he or she will provide follow-up care to the patient to monitor the efficacy of the use of medical marihuana as a treatment of the patient’s debilitating medical condition.
(4) If the patient has given permission, the physician has notified the patient’s primary care physician of the patient’s debilitating medical condition and certification for the use of medical marihuana to treat that condition. [MCL 333.26423(a).]
Kolanek, 491 Mich at 396 n 30 (quoting a joint statement by the Michigan Board of Medicine and the Michigan Board of Osteopathic Medicine and Surgery).
We acknowledge that the actual text of the physician’s statement submitted as part of the registration process might suffice. Although hearsay, the physician’s written certification is a “report of. . . occurrences, events, conditions, opinions, or diagnoses, made at or near the time by ... a person with knowledge [that is] kept in the course of a regularly conducted business activity [and is a] regular practice of that business activity to make .. . .” MRE 803(6). That physicians are required by statute to prepare a certificate to recommend the medical use of marijuana tends to establish that the certificate is prepared in regular practice. Moreover, nothing prevents a physician from including a statement in the written certificate indicating that it was prepared in the course of a bona fide physician-patient relationship or indicating the physician’s recommendation as to the particular amount of marijuana. Likewise, nothing prevents the department from revising the physician certification to attest to these elements. Nor does anything prevent another individual from creating his or her own written certification acceptable to the department. Accordingly, the written certification could itself provide prima facie evidence of the elements of § 8(a). Further, a defendant may present patient testimony or other evidence to satisfy his or her burden of presenting prima facie evidence of the elements of § 8(a). A defendant who submits proper evidence would not likely need his or her physician to testify to establish prima facie evidence of any element of § 8(a).
Because “[possession, manufacture, and delivery of marijuana remain punishable offenses under Michigan law,” Kolanek, 491 Mich at 394, a caregiver-defendant’s patient might be unwilling to testify to the patient’s marijuana-related activities due to fear of criminal prosecution. This would present a significant barrier to the caregiver’s ability to establish a defense under § 8. And because a witness cannot be compelled to give testimony that the witness reasonably believes could be used against him or her in a criminal prosecution, a patient’s justified refusal to cooperate might prove fatal to the primary caregiver’s § 8 defense. See Hoffman v United States, 341 US 479, 486; 71 S Ct 814; 95 L Ed 1118 (1951) (“It is for the court to say whether [the witness’s] silence is justified.”). While this may seem a harsh consequence, this Court has no power to alter the statutory language.
MCL 333.26428(a)(2).
Section 4 grants broad immunity from, arrest or prosecution, while § 8 provides for an affirmative defense during a prosecution.
MCL 333.26426(b)(3)(C).
MCL 333.26428(a)(3).
MCL 333.26423(f).
The definition in § 4 includes “internal possession” and specifies that the patient is a registered qualifying patient. The permitted uses in § 8 do not include “internal possession,” and the requirements apply to “patients” who are not necessarily registered.
As a registered qualifying patient, Hartwick may possess up to 12 marijuana plants and 2.5 ounces of usable marijuana. As a primary caregiver, Hartwick may possess up to 12 marijuana plants and 2.5 ounces of usable marijuana for each connected registered qualifying patient.
Hartwick, 303 Mich App at 259.
See MCL 333.7212(c).
MCL 333.26422(a).
It is unclear in the record exactly how many qualifying patients Tuttle was connected to under the MMMA. Without that information, we are unable to determine how many marijuana plants and how much usable marijuana Tuttle was allowed to possess under § 4(a) and § 4(b). If Tuttle was his own caregiver and the primary caregiver to two other qualifying patients, then Tuttle would be permitted to possess no more than a total of 36 marijuana plants. Under those facts Tuttle would not be entitled to § 4 immunity for any charged offense if he possessed more than 36 marijuana plants.
Subject to the exclusion of “any incidental amount of seeds, stalks, [or] unusable roots . .. .” MCL 333.26424(4)(a) and (b)(3).
Under § 4, losing the § 4(d) presumption is not fatal. Even if the prosecution successfully rebuts the § 4(d) presumption in Counts IV through VII related to Tuttle’s manufacturing of marijuana for himself and any patients, Tuttle may still prove by a preponderance of the evidence that he satisfied the last element of § 4(a) and § (4)(b), which requires that he was engaged in the medical use of marijuana during the conduct resulting in the specific charged offense(s). | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Chippewa Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration as on leave granted. | [
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Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration as on leave granted. | [
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reported below: 307 Mich App 565. On order of the Court, the application for leave to appeal the October 30, 2014judgment of the Court of Appeals is considered, and it is denied, because we are not persuaded that the question presented should be reviewed by this Court prior to the completion of the proceedings ordered by the Court of Appeals. This denial is without prejudice to the ability of the City of Grand Rapids to raise a challenge, on remand, to whether the Tax Tribunal’s jurisdiction was timely invoked, where Family Fare, LLC did not file the initial petition, but was added as copetitioner at a later date. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration, as on leave granted, of whether the defendant, who possessed, cultivated, manufactured, or delivered marijuana to a patient or caregiver to whom he was not connected through the registration process of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., “may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a).” MCL 333.26428(b). Cf., State v McQueen, 493 Mich 135, 156 ns 59 & 60 (2013). In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court.
We further order that this case be argued and submitted to the Court of Appeals together with the case of People v Overholt (Docket No. 149795), which we remanded to the Court of Appeals for consideration as on leave granted by order of the same date, at such future session of the Court of Appeals as both cases are ready for submission. We do not retain jurisdiction. | [
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Leave to appeal denied at 498 Mich 873. | [
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] |
opinion at 497 Mich 337. | [
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] |
Leave to appeal denied at 497 Mich 976. | [
19,
-14,
-35,
-17,
19,
52,
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