text
stringlengths 12
234k
| embeddings
sequencelengths 1.02k
1.02k
|
|---|---|
Leave to appeal denied at 498 Mich 867. | [
6,
-8,
-41,
-17,
20,
49,
27,
48,
-50,
45,
-21,
19,
15,
-61,
22,
54,
79,
16,
-3,
-5,
-10,
2,
-6,
60,
-33,
-75,
66,
25,
-32,
-59,
5,
-42,
-42,
-64,
-26,
-11,
-19,
1,
-4,
8,
-34,
-34,
-9,
16,
-31,
-65,
6,
16,
-36,
7,
-59,
40,
-83,
34,
3,
47,
55,
-54,
-34,
57,
-43,
51,
42,
64,
19,
-2,
-42,
0,
22,
-23,
-16,
21,
-2,
31,
10,
26,
25,
77,
34,
66,
24,
18,
12,
16,
40,
48,
6,
50,
-12,
-6,
6,
-56,
-43,
46,
-51,
58,
-3,
-44,
34,
-80,
-17,
47,
11,
-40,
-6,
-25,
18,
57,
-42,
7,
47,
-31,
-26,
-21,
9,
-18,
-15,
8,
53,
6,
-28,
36,
19,
34,
51,
-12,
30,
-19,
-19,
-49,
3,
54,
81,
47,
-9,
-20,
55,
-108,
-30,
-64,
-21,
94,
43,
-31,
-23,
-68,
31,
-28,
19,
-50,
3,
10,
-8,
15,
-9,
43,
11,
-22,
49,
0,
17,
31,
-56,
5,
65,
-32,
28,
31,
44,
25,
22,
16,
15,
-55,
-21,
28,
-3,
39,
-41,
-1,
-44,
10,
-15,
25,
-13,
-70,
39,
-48,
-11,
-79,
-58,
-50,
94,
25,
19,
23,
31,
25,
-16,
18,
-13,
25,
-35,
34,
51,
-61,
-3,
-29,
26,
11,
-56,
8,
-25,
-21,
53,
-27,
-24,
25,
52,
8,
44,
32,
-2,
-6,
-14,
44,
-29,
37,
13,
-4,
3,
29,
10,
-21,
42,
-40,
20,
9,
69,
-58,
-63,
-10,
-20,
59,
-15,
-34,
-64,
-11,
44,
-46,
48,
5,
18,
-99,
-41,
-50,
-36,
12,
-3,
-7,
26,
-1,
45,
25,
-27,
29,
-30,
16,
30,
-57,
40,
35,
-9,
-53,
31,
3,
3,
31,
72,
10,
-41,
1,
3,
-16,
-65,
60,
21,
-20,
-24,
5,
3,
5,
25,
64,
7,
-30,
-35,
31,
-20,
16,
2,
55,
-40,
22,
42,
-54,
-57,
-61,
77,
30,
30,
-22,
13,
47,
17,
-61,
-13,
-105,
-37,
-11,
4,
4,
-20,
68,
-14,
64,
-26,
43,
27,
31,
9,
17,
-66,
86,
-19,
47,
-18,
-54,
-37,
20,
1,
58,
-12,
33,
-12,
9,
-91,
-20,
93,
20,
32,
50,
-25,
-47,
9,
70,
-23,
-42,
-49,
42,
17,
-64,
-9,
50,
0,
-25,
1,
57,
22,
32,
-63,
-2,
41,
-12,
31,
46,
-48,
-43,
4,
-32,
0,
-39,
-16,
37,
39,
18,
9,
14,
22,
71,
-11,
-59,
-29,
-33,
22,
-9,
24,
49,
12,
25,
-41,
-58,
-109,
69,
-31,
-38,
17,
18,
-29,
65,
-1,
18,
34,
22,
-63,
3,
71,
4,
-7,
-2,
-32,
-47,
-51,
17,
-47,
7,
-37,
4,
3,
68,
1,
-35,
7,
-45,
-27,
22,
16,
-41,
-2,
21,
-41,
-29,
32,
-94,
-7,
-72,
-32,
-4,
-91,
-61,
-15,
8,
0,
-41,
-49,
-49,
-51,
71,
4,
3,
-27,
-47,
-46,
54,
-14,
3,
-53,
48,
11,
-40,
-8,
14,
-47,
-37,
42,
-27,
-14,
-50,
-7,
-9,
15,
-20,
-10,
6,
20,
2,
6,
7,
-19,
4,
-15,
90,
40,
30,
-13,
58,
23,
0,
11,
9,
-50,
-21,
5,
16,
2,
-38,
-9,
-27,
-1,
-6,
10,
-23,
13,
26,
-57,
69,
-25,
3,
7,
-12,
-26,
12,
27,
9,
29,
-3,
-64,
-32,
15,
94,
-14,
6,
41,
56,
3,
-71,
43,
40,
-77,
60,
24,
-46,
-28,
18,
3,
44,
-51,
-53,
-14,
-8,
11,
-16,
-68,
5,
-13,
-38,
9,
-6,
26,
-22,
-12,
-8,
9,
29,
-34,
-49,
-19,
34,
11,
70,
62,
35,
8,
14,
65,
6,
34,
-9,
0,
6,
-33,
4,
47,
-36,
-11,
-70,
-64,
-12,
-25,
-6,
-48,
-14,
1,
-69,
19,
10,
-14,
0,
-5,
82,
-66,
17,
-16,
14,
1,
15,
-25,
0,
35,
22,
-20,
22,
-6,
-15,
-30,
5,
14,
24,
32,
-12,
74,
34,
-14,
-44,
-61,
-11,
11,
5,
55,
24,
-13,
76,
-2,
-48,
12,
29,
15,
21,
-7,
77,
19,
8,
4,
3,
19,
-34,
21,
-86,
-8,
-9,
-30,
40,
-13,
-19,
-3,
25,
-14,
-51,
33,
-15,
-28,
54,
-15,
24,
-55,
-57,
-1,
31,
95,
66,
-43,
51,
2,
0,
-8,
-30,
11,
-17,
-5,
42,
-34,
-22,
-10,
25,
-14,
-50,
19,
37,
9,
27,
50,
59,
41,
-7,
-46,
-11,
9,
58,
-27,
14,
0,
21,
3,
-27,
-6,
47,
-15,
-36,
-34,
-17,
-49,
1,
45,
16,
99,
15,
-33,
-41,
3,
-2,
7,
-12,
-78,
-32,
20,
54,
5,
-15,
56,
45,
8,
-20,
33,
-25,
-54,
10,
1,
15,
37,
13,
-23,
-37,
-14,
-54,
-7,
5,
50,
-51,
-3,
-63,
8,
-14,
-33,
73,
-66,
-36,
-14,
34,
20,
37,
18,
-50,
-44,
31,
32,
-9,
8,
2,
58,
24,
28,
-22,
22,
-29,
-9,
-24,
-29,
13,
36,
-7,
35,
1,
-58,
18,
42,
6,
-83,
-40,
-25,
-41,
21,
-76,
-10,
-7,
17,
29,
23,
-48,
37,
-4,
-4,
18,
6,
11,
9,
-24,
-53,
22,
-22,
-16,
43,
-17,
-53,
-16,
30,
-31,
64,
73,
-20,
-1,
26,
36,
-20,
8,
13,
-27,
2,
43,
32,
15,
0,
39,
86,
16,
-70,
-70,
0,
-52,
58,
19,
-2,
-33,
-28,
-43,
-39,
-5,
3,
-11,
-6,
-40,
-38,
-61,
-7,
9,
-4,
18,
-17,
20,
23,
23,
46,
28,
0,
49,
-33,
-2,
52,
-36,
31,
11,
2,
-92,
15,
25,
-24,
35,
-10,
-49,
15,
41,
11,
-32,
37,
-35,
75,
-23,
8,
11,
6,
24,
39,
11,
-57,
22,
35,
27,
4,
34,
-41,
-12,
17,
-51,
-28,
-32,
25,
-20,
33,
-19,
6,
0,
-64,
10,
-21,
-55,
40,
-71,
-100,
24,
-46,
14,
0,
-6,
-26,
-12,
6,
-34,
-10,
-12,
4,
-75,
59,
-48,
-30,
-15,
5,
-31,
-1,
-83,
2,
-14,
17,
62,
-30,
-34,
-14,
2,
-63,
29,
17,
20,
26,
-39,
57,
-33,
7,
29,
-47,
-26,
-46,
-2,
0,
16,
18,
55,
-13,
-9,
-12,
17,
-14,
34,
-11,
21,
23,
-11,
-47,
8,
-45,
-12,
55,
-19,
-13,
-51,
63,
-36,
-15,
-42,
10,
53,
-13,
-18,
-6,
21,
8,
-32,
36,
0,
-38,
26,
7,
83,
100,
19,
35,
-16,
4,
41,
13,
-24,
50,
18,
29,
29,
30,
35,
8,
-36,
8,
15,
-43,
78,
21,
-36,
-41,
-36
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals and we remand this case to the Kalamazoo 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. | [
42,
4,
-64,
-4,
-35,
29,
-25,
6,
-70,
29,
-2,
-49,
13,
-51,
5,
-4,
2,
18,
13,
39,
-19,
27,
-24,
36,
-39,
-23,
24,
7,
27,
-22,
2,
19,
27,
-46,
31,
-55,
55,
-21,
-7,
9,
-10,
-14,
-10,
-7,
-50,
-40,
7,
35,
7,
-12,
-13,
40,
-42,
9,
18,
56,
-15,
-2,
-63,
58,
-85,
50,
-32,
48,
40,
2,
30,
6,
-30,
-54,
5,
-11,
2,
8,
-14,
7,
11,
14,
29,
34,
35,
-7,
-7,
-76,
-12,
1,
22,
-16,
-23,
-2,
-12,
-24,
-61,
-59,
-4,
-4,
2,
-53,
37,
-38,
-9,
18,
12,
45,
10,
-28,
6,
17,
-6,
28,
0,
39,
3,
-57,
-42,
-3,
-32,
3,
-7,
-7,
11,
15,
25,
41,
67,
-49,
19,
-28,
-32,
-10,
-18,
40,
18,
-21,
16,
25,
24,
0,
0,
-9,
8,
43,
44,
-32,
45,
10,
33,
-3,
-27,
0,
22,
-17,
-2,
62,
48,
5,
41,
-16,
-16,
46,
14,
44,
-37,
30,
17,
9,
1,
7,
2,
-31,
15,
7,
30,
-1,
-7,
14,
-36,
8,
-16,
-3,
-36,
52,
17,
-38,
-27,
-18,
-24,
-16,
-39,
-13,
-55,
29,
8,
7,
61,
11,
-8,
27,
3,
-8,
-36,
36,
-16,
61,
21,
-33,
46,
-8,
15,
1,
-62,
18,
-30,
0,
-16,
-13,
24,
0,
-46,
45,
-3,
-4,
6,
23,
-17,
8,
-13,
46,
24,
-3,
41,
40,
29,
36,
-23,
47,
-6,
1,
69,
-58,
-26,
-32,
52,
-7,
23,
45,
15,
-14,
0,
-23,
50,
-2,
18,
8,
3,
-38,
-6,
0,
-52,
-7,
33,
30,
1,
-2,
-48,
68,
5,
20,
19,
-28,
3,
-5,
20,
-45,
7,
24,
4,
30,
38,
13,
-23,
26,
13,
33,
-18,
-8,
-8,
38,
35,
31,
11,
-19,
-29,
1,
30,
-16,
-19,
-8,
-35,
-3,
46,
32,
5,
17,
10,
5,
8,
24,
-27,
-16,
9,
21,
-6,
36,
-4,
2,
1,
34,
41,
-47,
-87,
12,
26,
-39,
49,
12,
33,
-40,
-27,
-22,
-33,
-3,
-1,
26,
43,
18,
21,
19,
-6,
34,
-8,
1,
14,
-14,
-2,
22,
-1,
-2,
11,
0,
0,
10,
24,
20,
-22,
-35,
-39,
-31,
-9,
0,
-14,
-27,
-31,
-6,
0,
16,
14,
8,
-11,
26,
2,
-11,
14,
-9,
-20,
15,
-1,
-18,
-6,
-11,
-42,
-13,
5,
-1,
32,
-44,
-7,
28,
38,
26,
10,
-51,
11,
-34,
-42,
30,
0,
-10,
23,
-46,
-25,
-22,
4,
45,
-16,
-12,
3,
38,
-16,
31,
0,
65,
4,
59,
-6,
-23,
6,
17,
19,
-46,
4,
-55,
11,
-18,
-17,
22,
-1,
-27,
2,
-20,
8,
-51,
14,
-83,
-49,
46,
-25,
-31,
20,
3,
-64,
8,
-21,
-2,
-4,
-48,
4,
-30,
-27,
-8,
-7,
-31,
1,
-57,
-30,
-15,
-12,
1,
25,
-17,
-6,
-17,
-33,
-2,
25,
-33,
-50,
-8,
23,
-2,
0,
18,
-11,
44,
-11,
-1,
5,
34,
2,
11,
14,
-31,
-55,
-31,
3,
11,
-5,
19,
31,
-25,
-32,
38,
-6,
17,
21,
19,
5,
-29,
3,
56,
5,
-25,
-1,
-22,
40,
-28,
19,
-78,
55,
-2,
0,
30,
5,
27,
-13,
9,
24,
-14,
47,
-18,
-15,
-18,
30,
-32,
-43,
20,
-86,
-6,
8,
58,
41,
-20,
32,
-34,
-11,
-49,
-23,
-54,
-6,
31,
6,
-17,
-12,
14,
1,
-1,
-28,
29,
8,
-9,
-37,
-7,
-43,
18,
-7,
-45,
-39,
41,
45,
-30,
24,
-17,
28,
35,
-33,
13,
-17,
-22,
26,
51,
71,
34,
-28,
26,
3,
33,
42,
19,
-35,
12,
25,
39,
21,
-45,
13,
-23,
-5,
6,
5,
-29,
-67,
-10,
26,
-50,
-24,
4,
-1,
-30,
34,
61,
-36,
62,
-4,
15,
49,
27,
25,
2,
0,
26,
33,
5,
-29,
-40,
17,
2,
21,
-23,
-23,
43,
-43,
-4,
0,
-48,
-21,
-43,
-25,
-10,
-57,
-39,
8,
29,
7,
-32,
-31,
5,
-16,
19,
-23,
0,
-1,
24,
8,
-24,
12,
5,
7,
-18,
-17,
10,
-30,
59,
-4,
-16,
68,
-47,
-14,
9,
30,
-6,
6,
8,
-44,
22,
-19,
7,
-32,
3,
74,
3,
25,
29,
-6,
2,
10,
-18,
11,
-12,
-25,
7,
-50,
-31,
7,
-14,
16,
22,
-46,
15,
6,
5,
34,
26,
30,
1,
24,
-24,
10,
71,
18,
-15,
8,
17,
56,
-23,
-2,
-19,
-3,
-5,
6,
7,
3,
35,
-4,
-2,
2,
-17,
-7,
-21,
16,
-9,
31,
-45,
-18,
24,
33,
46,
-34,
-10,
24,
-8,
7,
-4,
48,
-19,
-26,
8,
-27,
14,
17,
27,
6,
-10,
-52,
12,
-38,
42,
26,
7,
-18,
-10,
7,
38,
9,
10,
-79,
66,
30,
-33,
-50,
2,
-9,
28,
-18,
29,
-9,
-26,
55,
-30,
8,
14,
-9,
-20,
22,
2,
-24,
0,
35,
25,
-29,
-26,
11,
12,
-53,
3,
2,
-37,
-15,
-58,
-42,
-30,
11,
-48,
-15,
37,
65,
33,
45,
-33,
-10,
7,
23,
37,
2,
30,
-17,
18,
-16,
-8,
11,
-13,
77,
1,
-29,
38,
20,
-31,
16,
36,
-49,
-28,
47,
1,
-15,
-38,
13,
-17,
49,
-18,
23,
7,
-19,
16,
29,
35,
-30,
-34,
-6,
37,
28,
2,
12,
-38,
2,
-4,
-32,
50,
-8,
-12,
-27,
26,
-32,
0,
-50,
18,
-19,
3,
-18,
-16,
-13,
13,
23,
54,
-12,
11,
4,
28,
-27,
-23,
5,
-4,
12,
-62,
-2,
69,
-25,
36,
15,
-43,
-40,
27,
-6,
-38,
52,
-11,
23,
-35,
-48,
-15,
-28,
15,
35,
24,
-22,
-8,
-7,
27,
-16,
-5,
-18,
-38,
22,
-27,
2,
10,
77,
-9,
-4,
14,
0,
45,
-32,
39,
-24,
-25,
26,
-23,
-74,
-22,
10,
-48,
1,
63,
0,
0,
-50,
-27,
9,
-55,
-20,
3,
23,
-20,
0,
-56,
28,
-26,
17,
-26,
-5,
-26,
-30,
11,
-58,
-9,
-41,
20,
-33,
9,
21,
-35,
-34,
-7,
32,
1,
9,
6,
2,
-12,
-21,
-56,
-45,
10,
20,
16,
12,
22,
-44,
-8,
-18,
10,
17,
-29,
22,
-39,
-4,
20,
9,
-30,
23,
37,
-31,
-46,
7,
-9,
-53,
-13,
-36,
-37,
-44,
-63,
60,
-2,
6,
-21,
-28,
34,
-56,
-12,
-8,
20,
22,
31,
28,
-44,
-4,
-33,
25,
16,
-3,
75,
20,
17,
35,
10,
-25,
-8,
-33,
-11,
-43,
77,
-28,
9,
-64,
3
] |
The parties shall file supplemental briefs within 42 days of the date of this order addressing: (1) whether Miller v Auto-Owners Ins Co, 411 Mich 633 (1981), remains a viable precedent in light of Frazier v Allstate Ins Co, 490 Mich 381 (2011), and LeFevers v State Farm Mut Auto Ins Co, 493 Mich 960 (2013); and (2) if so, whether Miller should be overruled. The parties should not submit mere restatements of their application papers.
The Michigan Association for Justice, Michigan Defense Trial Counsel, Inc., and the Negligence Law Section of the State Bar of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae. | [
32,
51,
48,
-14,
6,
22,
51,
-4,
-9,
23,
-4,
-9,
0,
-28,
38,
1,
110,
11,
-2,
-38,
-39,
-3,
2,
-6,
-30,
8,
11,
-44,
-6,
25,
-71,
-14,
-42,
-8,
-23,
-21,
17,
48,
10,
32,
10,
13,
35,
-30,
-31,
-45,
25,
32,
25,
-19,
50,
29,
-47,
-34,
-13,
6,
-13,
-10,
0,
45,
15,
34,
66,
22,
15,
87,
18,
65,
52,
38,
-7,
0,
-25,
71,
37,
-14,
45,
18,
-35,
-6,
5,
-41,
50,
-14,
-13,
44,
-43,
-3,
12,
-65,
-53,
-69,
-43,
-5,
35,
12,
-7,
-37,
-6,
11,
-34,
25,
50,
22,
-42,
-11,
-21,
20,
17,
0,
17,
-30,
-14,
11,
-18,
0,
1,
49,
17,
16,
12,
12,
-21,
17,
-20,
2,
-37,
-5,
5,
26,
-6,
-5,
33,
6,
-2,
34,
55,
-43,
3,
-13,
0,
7,
8,
16,
24,
10,
15,
-46,
32,
19,
2,
-5,
-17,
14,
-13,
19,
1,
-20,
76,
3,
-1,
25,
22,
30,
-7,
14,
-1,
18,
-1,
-70,
8,
-18,
48,
-41,
9,
14,
-18,
64,
-17,
30,
4,
27,
41,
-20,
-31,
21,
-32,
-28,
22,
-43,
18,
-24,
28,
34,
-9,
10,
7,
83,
4,
13,
-1,
-47,
0,
-9,
-17,
-22,
-37,
-11,
-5,
14,
7,
40,
-37,
-28,
-18,
-27,
0,
-25,
14,
-13,
-3,
-69,
27,
-36,
-8,
-4,
-1,
-18,
-7,
-39,
21,
-32,
51,
-6,
6,
-18,
8,
-35,
82,
-18,
-10,
-21,
-19,
2,
-8,
54,
5,
-29,
62,
5,
38,
-9,
-14,
10,
6,
-33,
9,
16,
-45,
53,
-3,
25,
-6,
30,
-23,
5,
13,
-9,
-17,
39,
28,
8,
-26,
-2,
-51,
-11,
1,
-15,
4,
-22,
15,
-10,
-46,
-28,
-1,
33,
-5,
-11,
-44,
17,
1,
9,
-5,
0,
-42,
-6,
-34,
-21,
-21,
12,
17,
9,
31,
-41,
1,
-40,
-69,
-26,
1,
-32,
-46,
45,
-33,
5,
13,
-16,
0,
21,
18,
26,
58,
58,
10,
19,
-54,
-1,
77,
-34,
-11,
8,
-27,
-13,
2,
32,
-11,
-24,
33,
-34,
-45,
-28,
-1,
30,
-4,
33,
-3,
25,
40,
-17,
17,
-46,
-42,
-8,
-29,
59,
20,
-41,
10,
-26,
-49,
37,
18,
51,
15,
36,
-15,
14,
-33,
38,
11,
60,
16,
-27,
-36,
32,
-21,
-72,
-21,
14,
-12,
17,
-19,
-46,
-22,
9,
20,
23,
-4,
-44,
-36,
-23,
-28,
-62,
-20,
-16,
-47,
-47,
-10,
4,
-4,
-9,
19,
17,
29,
-10,
48,
3,
-16,
15,
17,
-14,
5,
2,
3,
35,
-5,
-1,
4,
26,
-20,
-30,
-46,
-15,
-18,
-68,
-17,
0,
70,
40,
0,
55,
-20,
47,
19,
7,
23,
4,
-6,
-50,
23,
6,
22,
-1,
-38,
10,
-22,
18,
-62,
-1,
3,
-22,
98,
18,
42,
3,
-21,
4,
38,
37,
-18,
-33,
11,
-71,
-13,
-47,
-67,
-5,
-14,
-31,
68,
-12,
-65,
1,
-3,
30,
-20,
-38,
-51,
40,
3,
23,
-41,
49,
-57,
-24,
-36,
-11,
-18,
9,
30,
1,
5,
-34,
-65,
19,
-70,
-11,
-50,
16,
-41,
18,
2,
10,
36,
15,
31,
-29,
20,
-57,
-2,
16,
-14,
-25,
13,
27,
-15,
72,
8,
-7,
-10,
40,
-52,
-1,
7,
0,
10,
11,
37,
-32,
-6,
6,
45,
-22,
29,
-58,
0,
33,
-39,
22,
-59,
0,
-16,
20,
-38,
-39,
24,
28,
-19,
23,
41,
1,
-17,
-29,
-23,
-20,
-1,
12,
8,
-13,
-10,
-47,
24,
4,
8,
-1,
29,
-31,
-52,
-13,
22,
-40,
-5,
40,
60,
9,
-20,
22,
28,
-44,
-55,
11,
-10,
35,
-19,
-10,
-68,
-43,
19,
-32,
5,
-10,
-3,
-15,
27,
10,
57,
27,
54,
9,
18,
3,
-10,
57,
-36,
-31,
-31,
36,
-51,
39,
22,
-41,
-5,
-21,
-34,
-11,
-47,
-37,
16,
-31,
55,
7,
31,
-33,
32,
27,
7,
-33,
17,
22,
-40,
16,
-42,
0,
-21,
-41,
-6,
29,
39,
12,
-2,
-16,
-33,
42,
60,
37,
78,
-84,
-5,
16,
17,
-27,
-18,
37,
-14,
-47,
10,
-16,
62,
-20,
-19,
-11,
-3,
18,
-42,
11,
-46,
-27,
29,
-40,
51,
18,
30,
41,
18,
6,
20,
34,
-7,
-11,
32,
34,
-35,
-17,
-28,
-8,
6,
-14,
50,
-18,
-6,
-7,
-8,
69,
-50,
-25,
-54,
-17,
5,
61,
-24,
-33,
-31,
19,
-28,
6,
-47,
45,
-80,
-6,
44,
50,
-33,
53,
-7,
1,
5,
59,
-27,
-21,
-15,
-61,
-22,
-16,
-33,
-11,
-2,
38,
-39,
-49,
1,
8,
-1,
-21,
22,
-24,
13,
15,
66,
-31,
-21,
18,
39,
-22,
31,
-17,
-21,
-2,
12,
20,
16,
-18,
-12,
-16,
37,
70,
39,
42,
9,
-26,
-37,
-4,
8,
-29,
15,
-3,
-2,
-26,
-21,
41,
-38,
-65,
-30,
58,
31,
-23,
10,
-16,
-8,
-22,
46,
-25,
5,
-43,
-4,
-48,
2,
-38,
23,
-47,
29,
41,
33,
1,
46,
-20,
37,
20,
53,
-40,
25,
22,
24,
-20,
12,
-6,
-17,
-2,
-27,
34,
73,
3,
29,
33,
-40,
-41,
5,
16,
9,
22,
-19,
-9,
8,
29,
-17,
-16,
5,
0,
-19,
-8,
18,
-14,
49,
-18,
1,
14,
3,
14,
66,
11,
10,
2,
74,
-47,
-16,
17,
3,
41,
-19,
13,
47,
0,
-16,
-24,
-4,
-4,
22,
12,
-1,
-37,
12,
-12,
13,
-22,
-22,
14,
54,
-37,
-32,
1,
-10,
48,
-18,
-4,
-68,
39,
-10,
-36,
-15,
-7,
-18,
-9,
22,
-6,
19,
-29,
-61,
-5,
11,
19,
-90,
31,
33,
33,
-39,
2,
-6,
3,
-2,
2,
15,
-7,
-34,
34,
6,
70,
2,
40,
-21,
11,
-47,
-25,
14,
32,
0,
0,
-24,
3,
-46,
15,
30,
4,
-3,
6,
-4,
-47,
-7,
4,
0,
11,
-17,
-6,
4,
-42,
-52,
-39,
22,
-28,
55,
-57,
2,
-24,
-14,
4,
-17,
25,
-10,
-21,
20,
-26,
-38,
-17,
5,
-32,
-14,
29,
36,
-16,
52,
24,
-14,
20,
4,
-16,
11,
-18,
28,
-55,
-38,
-29,
39,
51,
2,
27,
-34,
51,
6,
0,
26,
-20,
-6,
-19,
17,
-71,
12,
-14,
9,
33,
-25,
-16,
10,
-6,
-19,
34,
4,
-13,
-30,
-5,
-26,
39,
9,
4,
14,
68,
4,
43,
-31,
3,
-60,
20,
16,
66,
-26,
15,
-54,
-33,
1,
16,
-34,
-27,
4,
-67,
29,
5,
-28,
-24
] |
Leave to appeal denied at 497 Mich 1011. | [
21,
-13,
-39,
-4,
4,
54,
17,
39,
-23,
23,
-30,
5,
22,
-44,
20,
40,
92,
31,
-22,
3,
-44,
-21,
-9,
34,
-32,
-68,
33,
8,
-29,
-62,
-15,
-57,
-34,
-61,
-39,
-30,
-35,
-9,
3,
8,
-41,
-22,
-1,
22,
-25,
-67,
7,
13,
-35,
26,
-58,
24,
-68,
38,
17,
30,
41,
-41,
1,
59,
-34,
49,
34,
50,
8,
20,
-32,
-4,
33,
-8,
-15,
33,
-10,
42,
2,
16,
37,
87,
12,
75,
30,
30,
15,
21,
23,
31,
-7,
54,
-10,
11,
9,
-58,
-40,
49,
-34,
53,
-2,
-33,
29,
-71,
-2,
42,
2,
-63,
-8,
-58,
9,
69,
-29,
17,
17,
-28,
-10,
-30,
7,
-22,
-39,
-11,
42,
-9,
-29,
46,
23,
38,
38,
9,
37,
-5,
0,
-49,
12,
68,
74,
68,
-13,
-13,
57,
-92,
-40,
-81,
-27,
118,
34,
-27,
-36,
-71,
42,
-24,
37,
-55,
0,
26,
5,
27,
-17,
36,
11,
-13,
51,
18,
4,
38,
-67,
3,
61,
-19,
17,
42,
36,
14,
22,
24,
12,
-66,
-40,
15,
-5,
44,
-41,
0,
-41,
0,
-14,
28,
-24,
-73,
14,
-39,
40,
-75,
-30,
-50,
95,
51,
21,
26,
24,
26,
-37,
14,
-16,
46,
-53,
27,
46,
-72,
7,
-53,
0,
8,
-44,
-6,
-5,
-18,
35,
-42,
-31,
29,
37,
-10,
54,
11,
-9,
1,
-18,
43,
2,
29,
7,
-5,
22,
29,
7,
1,
42,
-59,
5,
18,
59,
-61,
-91,
-22,
-12,
68,
3,
-30,
-67,
-9,
71,
-52,
49,
9,
36,
-94,
-51,
-62,
-49,
11,
-5,
-19,
21,
10,
13,
5,
-12,
33,
-17,
23,
15,
-83,
31,
23,
-6,
-83,
22,
0,
6,
16,
58,
21,
-46,
14,
10,
-6,
-74,
32,
18,
-7,
-35,
9,
-10,
17,
19,
71,
9,
-20,
-9,
41,
0,
27,
19,
37,
-38,
27,
27,
-35,
-57,
-62,
81,
43,
31,
0,
-7,
50,
17,
-43,
-13,
-94,
-32,
-5,
5,
-16,
-28,
76,
-9,
74,
-20,
60,
20,
5,
-9,
30,
-52,
72,
-34,
47,
-7,
-77,
-44,
30,
8,
35,
11,
25,
-18,
-17,
-89,
-18,
89,
38,
34,
73,
-29,
-35,
9,
61,
-29,
-32,
-38,
31,
5,
-61,
1,
47,
2,
-35,
-20,
37,
-9,
42,
-63,
-7,
35,
7,
13,
58,
-58,
-43,
-22,
-30,
0,
-22,
-14,
7,
36,
30,
18,
16,
43,
61,
5,
-72,
-9,
-17,
26,
-12,
23,
76,
13,
28,
-57,
-44,
-75,
80,
-7,
2,
23,
14,
-29,
68,
-11,
45,
34,
25,
-59,
6,
75,
-15,
2,
9,
-21,
-60,
-47,
14,
-38,
4,
-36,
29,
6,
69,
-8,
-43,
5,
-31,
-26,
22,
19,
-18,
6,
1,
-49,
-37,
4,
-94,
0,
-76,
-32,
-24,
-98,
-54,
-23,
6,
10,
-55,
-54,
-44,
-63,
54,
7,
5,
-41,
-40,
-54,
49,
-8,
6,
-67,
43,
32,
-44,
-11,
12,
-35,
-21,
20,
-20,
-21,
-36,
-11,
-3,
9,
-36,
-12,
9,
27,
12,
0,
-8,
-29,
0,
-15,
86,
41,
37,
-20,
48,
18,
-20,
-2,
4,
-36,
-3,
-5,
23,
-3,
-32,
15,
-29,
-6,
-2,
0,
-7,
12,
42,
-33,
57,
-37,
13,
-4,
-23,
-11,
-7,
22,
7,
34,
-3,
-64,
-26,
25,
100,
-26,
-11,
23,
44,
7,
-61,
42,
33,
-66,
52,
32,
-40,
-39,
5,
31,
53,
-49,
-60,
-27,
11,
18,
-6,
-82,
-6,
-17,
-32,
15,
-11,
6,
-13,
-2,
-36,
24,
23,
-39,
-34,
-31,
49,
9,
76,
66,
27,
7,
-3,
48,
-9,
33,
-4,
-16,
-1,
-14,
12,
39,
-27,
-25,
-53,
-73,
-16,
-27,
-17,
-35,
-5,
-6,
-85,
14,
28,
4,
2,
-2,
88,
-75,
11,
-9,
28,
-16,
32,
-19,
13,
38,
8,
-38,
41,
18,
-14,
-50,
2,
3,
8,
20,
-5,
68,
43,
-10,
-39,
-45,
-10,
22,
1,
32,
13,
15,
74,
28,
-38,
13,
26,
10,
8,
-9,
72,
0,
1,
-3,
20,
4,
-23,
2,
-73,
-11,
-16,
-33,
20,
-36,
-18,
5,
34,
-5,
-42,
27,
-20,
-21,
65,
-13,
48,
-73,
-51,
1,
38,
97,
50,
-30,
49,
14,
-16,
-9,
-31,
9,
-5,
3,
34,
-47,
-17,
-25,
25,
13,
-24,
6,
40,
-1,
36,
45,
48,
38,
-13,
-44,
-10,
-22,
58,
-22,
12,
8,
45,
0,
-18,
-9,
33,
-2,
-34,
0,
-18,
-49,
5,
48,
4,
96,
19,
-33,
-36,
27,
-10,
4,
-23,
-71,
-30,
25,
67,
-9,
-18,
57,
38,
-30,
-16,
16,
-3,
-43,
14,
16,
34,
45,
0,
-21,
-37,
-1,
-57,
-13,
3,
48,
-35,
1,
-49,
12,
-30,
-20,
77,
-51,
-19,
-31,
14,
20,
31,
6,
-67,
-51,
15,
13,
-2,
19,
37,
49,
40,
8,
-24,
5,
-17,
5,
3,
4,
10,
21,
-10,
40,
-13,
-51,
14,
32,
10,
-54,
-53,
-10,
-34,
5,
-65,
-9,
-13,
26,
23,
34,
-37,
26,
3,
9,
18,
19,
17,
18,
-36,
-58,
23,
-26,
-22,
50,
26,
-58,
-2,
42,
-33,
68,
69,
-17,
3,
54,
18,
-28,
0,
8,
-29,
17,
54,
17,
14,
13,
28,
75,
8,
-43,
-72,
-5,
-57,
74,
9,
-3,
-38,
-21,
-46,
-52,
-4,
12,
-26,
-7,
-47,
-45,
-51,
-13,
9,
0,
56,
-11,
17,
20,
6,
63,
36,
1,
44,
-37,
-18,
28,
-72,
36,
42,
13,
-64,
6,
21,
-27,
26,
-11,
-51,
13,
37,
3,
-37,
39,
-45,
82,
-13,
4,
9,
-19,
11,
62,
-27,
-59,
25,
25,
10,
12,
28,
-46,
-12,
3,
-53,
-15,
-33,
41,
-13,
36,
5,
10,
7,
-64,
0,
-28,
-50,
29,
-59,
-86,
25,
-17,
17,
9,
18,
-22,
-11,
6,
-22,
-35,
3,
5,
-80,
42,
-34,
-27,
-29,
-25,
-26,
17,
-106,
-3,
-12,
15,
49,
-43,
-31,
-9,
32,
-45,
25,
12,
26,
32,
-53,
51,
-24,
0,
8,
-30,
-11,
-47,
-14,
7,
17,
13,
45,
-13,
-12,
-25,
14,
2,
47,
-10,
21,
11,
-5,
-57,
19,
-80,
-9,
55,
-4,
-23,
-63,
62,
-42,
-17,
-36,
-4,
11,
-8,
-17,
-16,
10,
-4,
-31,
34,
-1,
-40,
19,
10,
95,
118,
43,
4,
-24,
-2,
25,
30,
-39,
37,
25,
25,
34,
52,
29,
24,
-29,
0,
36,
-40,
91,
22,
-28,
-29,
-32
] |
Leave to appeal denied at 497 Mich 1012. | [
17,
-13,
-34,
-16,
0,
54,
16,
58,
-28,
29,
-24,
-4,
18,
-44,
26,
57,
92,
36,
-11,
5,
-40,
-6,
-5,
34,
-31,
-75,
26,
19,
-33,
-73,
-12,
-55,
-47,
-58,
-47,
-36,
-46,
-7,
11,
0,
-27,
-19,
-3,
12,
-4,
-70,
16,
7,
-37,
18,
-45,
16,
-68,
19,
23,
32,
38,
-31,
4,
64,
-45,
50,
36,
46,
10,
2,
-26,
0,
25,
-11,
-22,
18,
-10,
35,
-13,
18,
35,
88,
17,
82,
31,
26,
16,
30,
28,
24,
2,
53,
2,
13,
8,
-47,
-51,
54,
-34,
52,
-3,
-35,
39,
-57,
-7,
44,
8,
-51,
-11,
-61,
31,
59,
-36,
-3,
18,
-24,
-4,
-35,
3,
-18,
-23,
6,
37,
-23,
-14,
51,
15,
53,
46,
14,
34,
-13,
1,
-52,
5,
75,
65,
46,
-11,
-10,
56,
-85,
-47,
-68,
-30,
110,
33,
-22,
-41,
-71,
47,
-18,
29,
-55,
0,
18,
5,
23,
-20,
44,
31,
-19,
49,
13,
17,
41,
-58,
11,
59,
-21,
19,
37,
40,
22,
14,
20,
18,
-56,
-53,
10,
-7,
38,
-39,
20,
-37,
4,
-10,
37,
-21,
-65,
8,
-41,
34,
-83,
-40,
-49,
88,
40,
17,
37,
23,
26,
-16,
11,
-19,
49,
-53,
21,
50,
-69,
10,
-48,
-1,
10,
-52,
-18,
-4,
2,
39,
-35,
-43,
32,
34,
-21,
42,
-1,
-1,
-3,
-13,
35,
-2,
40,
23,
-11,
6,
47,
-6,
1,
36,
-65,
23,
21,
48,
-58,
-92,
-9,
-7,
77,
0,
-43,
-76,
-33,
65,
-52,
50,
10,
34,
-89,
-54,
-56,
-46,
12,
-7,
-23,
17,
11,
7,
-2,
-18,
30,
-37,
23,
18,
-79,
24,
27,
-6,
-95,
30,
-1,
12,
25,
63,
24,
-33,
11,
5,
-24,
-67,
39,
23,
-6,
-27,
10,
-8,
13,
22,
69,
8,
-41,
-6,
32,
-1,
26,
19,
35,
-45,
22,
39,
-33,
-52,
-57,
100,
24,
38,
-9,
0,
36,
6,
-35,
0,
-93,
-27,
5,
-4,
-15,
-16,
76,
-29,
68,
-25,
64,
20,
19,
0,
33,
-54,
76,
-32,
37,
-4,
-64,
-51,
34,
-12,
48,
2,
16,
-21,
-28,
-96,
-14,
86,
53,
32,
75,
-33,
-46,
1,
85,
-25,
-43,
-45,
42,
-6,
-60,
15,
39,
2,
-42,
-13,
40,
-19,
31,
-75,
4,
45,
14,
14,
44,
-49,
-39,
-20,
-26,
-2,
-23,
-16,
12,
32,
26,
9,
21,
46,
64,
-6,
-68,
-12,
-9,
45,
-8,
20,
70,
21,
30,
-56,
-46,
-88,
83,
-15,
4,
18,
14,
-23,
63,
-7,
44,
43,
30,
-76,
0,
69,
-18,
-3,
0,
-29,
-69,
-55,
21,
-27,
-3,
-44,
16,
0,
64,
4,
-45,
-1,
-37,
-36,
27,
11,
-14,
-4,
0,
-46,
-37,
8,
-80,
-2,
-60,
-35,
-35,
-99,
-42,
0,
13,
0,
-32,
-54,
-46,
-60,
54,
18,
-8,
-29,
-39,
-55,
46,
-1,
6,
-66,
43,
29,
-61,
2,
15,
-44,
-28,
43,
-8,
-26,
-33,
-15,
2,
14,
-26,
-2,
1,
21,
13,
7,
-9,
-32,
6,
-23,
78,
30,
23,
-18,
60,
21,
-18,
9,
7,
-36,
14,
0,
20,
-2,
-39,
1,
-22,
-11,
1,
7,
-6,
-9,
43,
-35,
46,
-43,
0,
-5,
-27,
2,
-11,
25,
0,
33,
-6,
-54,
-24,
11,
94,
-26,
-24,
36,
40,
0,
-56,
34,
18,
-80,
46,
32,
-40,
-29,
-9,
23,
44,
-44,
-48,
-22,
1,
20,
-12,
-86,
-7,
8,
-52,
23,
-7,
20,
-3,
-8,
-38,
26,
24,
-35,
-35,
-23,
28,
15,
70,
73,
36,
-3,
-11,
48,
-10,
36,
-7,
-14,
17,
-7,
1,
37,
-37,
-27,
-51,
-59,
-18,
-20,
-10,
-36,
0,
-9,
-79,
12,
28,
-12,
-3,
-1,
98,
-67,
-1,
-5,
8,
-28,
29,
-14,
12,
36,
9,
-38,
62,
20,
-9,
-43,
11,
-11,
8,
14,
-8,
57,
37,
-7,
-38,
-42,
0,
27,
7,
37,
13,
29,
55,
18,
-41,
16,
24,
10,
0,
-4,
65,
8,
14,
-10,
13,
-11,
-28,
9,
-65,
-14,
-33,
-30,
27,
-23,
-15,
12,
37,
-3,
-44,
21,
-14,
-3,
46,
-15,
64,
-68,
-55,
4,
35,
108,
57,
-53,
52,
7,
0,
-4,
-49,
25,
-10,
2,
34,
-41,
-30,
-18,
11,
14,
-31,
10,
32,
1,
29,
41,
51,
48,
-7,
-35,
0,
-30,
67,
-19,
13,
13,
25,
-4,
-11,
-1,
53,
-2,
-29,
-15,
-5,
-55,
7,
49,
14,
92,
27,
-23,
-32,
27,
-8,
15,
-19,
-74,
-29,
28,
68,
-4,
-19,
56,
33,
-27,
-6,
13,
-22,
-26,
14,
16,
26,
36,
6,
-26,
-33,
-6,
-51,
-6,
5,
57,
-24,
12,
-48,
11,
-29,
-9,
75,
-52,
-30,
-32,
11,
13,
23,
16,
-55,
-56,
23,
16,
-5,
18,
23,
63,
28,
18,
-36,
-2,
-25,
10,
8,
-5,
11,
18,
-21,
25,
-26,
-49,
17,
38,
13,
-59,
-61,
-2,
-61,
6,
-67,
-16,
-15,
27,
21,
27,
-38,
34,
5,
3,
1,
12,
27,
14,
-23,
-53,
23,
-12,
-31,
41,
18,
-52,
7,
31,
-27,
58,
73,
-10,
13,
49,
4,
-35,
8,
10,
-19,
13,
56,
29,
10,
2,
36,
72,
7,
-54,
-79,
-13,
-55,
77,
17,
0,
-27,
-19,
-41,
-38,
-11,
13,
-26,
-11,
-35,
-37,
-39,
-15,
15,
-4,
31,
-8,
21,
27,
3,
71,
43,
2,
49,
-34,
-12,
26,
-55,
26,
32,
12,
-77,
8,
21,
-27,
22,
-3,
-50,
8,
35,
-7,
-45,
46,
-47,
79,
-18,
8,
13,
-11,
20,
54,
-19,
-52,
17,
32,
19,
3,
39,
-49,
-14,
24,
-41,
-14,
-28,
39,
-5,
33,
-7,
9,
22,
-58,
3,
-30,
-49,
27,
-58,
-99,
29,
-26,
3,
7,
11,
-20,
-11,
9,
-16,
-32,
4,
16,
-78,
42,
-21,
-18,
-38,
-15,
-42,
16,
-99,
-1,
-14,
9,
47,
-45,
-21,
-23,
21,
-43,
25,
2,
29,
25,
-56,
46,
-22,
-15,
10,
-27,
-1,
-43,
-3,
22,
14,
24,
53,
-9,
-2,
-19,
20,
3,
45,
-15,
21,
6,
0,
-60,
19,
-78,
-13,
42,
-19,
-25,
-61,
52,
-41,
-11,
-35,
-21,
22,
-28,
-21,
-10,
12,
-3,
-15,
31,
-1,
-42,
3,
12,
97,
104,
42,
10,
-38,
0,
38,
24,
-48,
32,
28,
22,
36,
47,
33,
35,
-28,
10,
15,
-42,
86,
21,
-26,
-44,
-39
] |
reported below: 308 Mich App 318. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the majority opinion and affirm the judgment of the Court of Appeals for the reasons stated in the concurring opinion, to wit, that the plaintiff cannot make the requisite showing of “substantial proximate cause.” MCL 691.1416(1). | [
-46,
-41,
-35,
2,
33,
35,
45,
3,
-44,
40,
12,
-4,
5,
-77,
-9,
-23,
24,
-18,
5,
8,
-47,
-13,
-22,
-8,
-8,
-32,
12,
-33,
38,
-43,
-32,
-31,
-23,
0,
26,
-48,
27,
-17,
-12,
5,
35,
18,
6,
-5,
-35,
-54,
14,
30,
13,
18,
-18,
-7,
-31,
19,
-12,
2,
12,
15,
-15,
66,
13,
48,
6,
18,
-2,
70,
-17,
-23,
-36,
-4,
-17,
58,
31,
15,
-7,
3,
27,
29,
25,
55,
25,
10,
34,
12,
17,
7,
2,
19,
-36,
-31,
-34,
-25,
-67,
-26,
-33,
30,
25,
-30,
18,
6,
11,
0,
-8,
-18,
-31,
-15,
-2,
27,
-22,
-17,
7,
-47,
-8,
-34,
7,
22,
-48,
10,
-14,
-28,
1,
30,
22,
38,
23,
11,
40,
28,
-37,
48,
-1,
50,
-10,
16,
50,
-35,
27,
-41,
2,
-3,
25,
22,
37,
-7,
12,
11,
10,
-8,
-8,
-7,
18,
19,
-23,
35,
-27,
-15,
-15,
-6,
49,
19,
21,
36,
-11,
-3,
30,
-10,
-27,
0,
8,
6,
50,
-62,
16,
-65,
-66,
-41,
-35,
7,
-60,
-2,
-38,
21,
28,
-39,
-17,
-16,
-45,
-11,
-50,
-91,
-17,
-21,
49,
-14,
7,
19,
17,
54,
1,
10,
-16,
-33,
-25,
-23,
-20,
-52,
-12,
-22,
-20,
-25,
-8,
37,
-53,
-40,
29,
-35,
8,
1,
-32,
0,
5,
-14,
-4,
-26,
25,
-25,
-9,
11,
-6,
29,
12,
27,
-8,
20,
19,
40,
7,
-6,
91,
-49,
-17,
-9,
10,
-29,
-3,
40,
7,
10,
63,
-55,
54,
-26,
11,
-41,
-27,
24,
-45,
25,
-8,
15,
12,
52,
-57,
43,
-55,
45,
-3,
-27,
10,
-29,
9,
26,
6,
-39,
-7,
-24,
-21,
2,
14,
38,
-28,
23,
-42,
38,
-69,
51,
52,
2,
41,
-7,
-38,
-25,
-3,
31,
38,
13,
-64,
-32,
-19,
-27,
10,
-3,
21,
13,
17,
-50,
-53,
-22,
11,
-47,
1,
59,
20,
37,
13,
-8,
-31,
8,
16,
-43,
-21,
18,
-48,
-36,
-43,
-13,
44,
-71,
16,
25,
30,
39,
-18,
43,
-10,
34,
7,
-7,
2,
7,
27,
-14,
-29,
23,
15,
30,
-31,
-20,
42,
10,
14,
10,
30,
10,
0,
-8,
-7,
-49,
-25,
-19,
-31,
-8,
2,
-7,
50,
53,
-14,
0,
-17,
0,
-32,
-4,
-11,
39,
-10,
11,
27,
2,
-41,
28,
-21,
-21,
-18,
-6,
21,
1,
-47,
46,
-21,
15,
-33,
-67,
13,
0,
-22,
4,
0,
-18,
30,
26,
2,
-16,
-17,
58,
-34,
-54,
30,
-4,
-3,
43,
0,
72,
22,
38,
-5,
0,
38,
28,
32,
-24,
-6,
-28,
-18,
1,
-14,
-7,
50,
-21,
17,
-14,
1,
5,
6,
-30,
-18,
34,
23,
-73,
17,
39,
-29,
-3,
18,
-48,
-23,
-49,
-17,
8,
-54,
-30,
48,
10,
34,
-18,
3,
-43,
17,
-26,
6,
6,
11,
-47,
-47,
20,
-23,
-2,
-48,
6,
56,
3,
-6,
8,
-9,
39,
-44,
0,
-10,
19,
-1,
4,
19,
-13,
-37,
-10,
12,
50,
10,
38,
-15,
-20,
-26,
60,
18,
16,
-26,
-25,
-11,
-28,
-23,
44,
-4,
-14,
-30,
27,
35,
-21,
-21,
-51,
51,
31,
4,
6,
6,
63,
-23,
-12,
-23,
-40,
10,
7,
-42,
-55,
-12,
-4,
-16,
-8,
-55,
-18,
-15,
15,
38,
-2,
6,
13,
-15,
5,
2,
-31,
-12,
49,
8,
4,
34,
-15,
50,
35,
-23,
0,
40,
20,
-26,
-42,
-4,
28,
-2,
-39,
-40,
-16,
37,
-11,
-8,
-25,
10,
9,
-13,
14,
-20,
-7,
-18,
29,
34,
6,
54,
-52,
55,
4,
36,
-24,
-29,
12,
12,
50,
-19,
-25,
29,
-46,
-14,
-23,
10,
-5,
-49,
-7,
14,
-18,
3,
73,
5,
13,
-37,
97,
-2,
-27,
-38,
32,
7,
3,
-41,
-22,
22,
-32,
1,
18,
-48,
-1,
-40,
-14,
11,
15,
27,
57,
24,
0,
18,
-25,
-3,
-43,
32,
-22,
-14,
0,
38,
46,
2,
-23,
-21,
52,
25,
7,
-42,
13,
-26,
55,
-4,
12,
50,
-20,
48,
-59,
-35,
-1,
4,
85,
-3,
27,
66,
-1,
52,
-2,
55,
-48,
29,
-4,
-9,
-25,
2,
1,
4,
64,
69,
63,
-16,
40,
17,
45,
-20,
21,
23,
33,
-14,
-10,
-64,
-44,
-17,
43,
12,
-48,
-40,
10,
0,
-18,
14,
52,
51,
45,
-17,
-49,
-20,
45,
16,
-51,
-19,
-3,
10,
-6,
-15,
5,
-26,
5,
60,
-12,
-51,
36,
-42,
55,
20,
17,
-17,
-20,
-11,
-10,
40,
-50,
-17,
-16,
29,
34,
22,
36,
37,
-17,
-6,
-46,
12,
17,
-51,
-8,
-6,
-6,
-18,
45,
25,
-11,
3,
-22,
23,
47,
23,
44,
6,
6,
30,
0,
29,
50,
9,
-1,
2,
18,
-10,
24,
5,
-57,
-18,
26,
33,
-34,
0,
15,
-15,
-14,
-5,
10,
39,
-28,
-21,
0,
-30,
36,
-6,
0,
-22,
-28,
-28,
21,
-8,
-12,
-13,
-28,
-21,
10,
46,
-58,
2,
-13,
23,
-21,
21,
-53,
-41,
4,
23,
12,
40,
-25,
-46,
23,
-40,
51,
27,
-14,
7,
-35,
-15,
-4,
4,
-9,
26,
-15,
-49,
-7,
80,
22,
-36,
-18,
-18,
-4,
-2,
18,
25,
-29,
38,
-44,
-2,
37,
4,
-70,
28,
-13,
18,
-33,
19,
-39,
-29,
-28,
-34,
17,
-24,
-4,
-2,
-34,
-6,
5,
-7,
-12,
35,
-19,
-2,
3,
59,
20,
27,
78,
-32,
-15,
42,
35,
-11,
53,
40,
-6,
57,
-20,
-12,
4,
-22,
9,
0,
-27,
-16,
37,
-4,
-21,
0,
-45,
49,
-7,
-9,
-20,
-68,
26,
60,
54,
17,
42,
-21,
42,
-43,
-13,
7,
25,
-19,
-34,
-8,
51,
72,
0,
8,
31,
24,
49,
-28,
28,
-38,
-19,
58,
31,
-21,
-19,
7,
-22,
29,
1,
-13,
-28,
1,
-15,
11,
22,
-16,
-27,
8,
-45,
-26,
-50,
55,
-46,
20,
-19,
-23,
10,
-22,
-25,
46,
1,
-18,
-27,
-12,
3,
-68,
0,
16,
-26,
29,
-24,
-13,
78,
42,
-79,
-28,
28,
-21,
-14,
0,
-10,
29,
10,
-63,
10,
-14,
22,
-22,
-1,
5,
-36,
-43,
-5,
-23,
-10,
-52,
-11,
29,
-44,
-10,
-52,
-36,
-46,
-26,
8,
-21,
-31,
35,
-7,
-7,
-32,
-6,
-13,
36,
13,
13,
56,
3,
1,
-11,
-44,
3,
15,
-43,
-13,
10,
68,
28,
17,
39,
-33,
42,
-9,
17,
0,
-53,
-9,
38,
-8,
-35,
-39
] |
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 of the defendant’s issue regarding the Ingham Circuit Court’s assessment of court costs, which the Court of Appeals did not address during its initial review of the case. 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. | [
11,
-21,
-106,
-51,
0,
24,
40,
-1,
-55,
4,
10,
7,
49,
-26,
-5,
15,
19,
35,
11,
-4,
-16,
52,
25,
8,
-27,
-79,
46,
-25,
-16,
-29,
2,
0,
-40,
-1,
12,
5,
40,
9,
16,
-5,
-15,
3,
-3,
-43,
-52,
-44,
14,
-9,
-17,
50,
15,
16,
-48,
5,
8,
83,
25,
-19,
-84,
-19,
-12,
61,
-12,
46,
44,
31,
-19,
-69,
-6,
-53,
-21,
20,
-9,
13,
18,
-60,
-15,
29,
51,
46,
34,
27,
9,
-52,
35,
19,
6,
12,
-16,
58,
-7,
13,
-32,
-21,
-11,
61,
-36,
-52,
63,
13,
-11,
35,
5,
-7,
4,
-1,
-14,
4,
-20,
15,
39,
-20,
-20,
-68,
-46,
-1,
-33,
-10,
1,
-1,
4,
41,
8,
17,
27,
18,
18,
20,
-46,
2,
-18,
-5,
33,
21,
-14,
-45,
54,
-5,
-67,
-18,
-28,
57,
46,
-9,
20,
42,
22,
-24,
-12,
-3,
36,
35,
-45,
32,
0,
-17,
21,
-5,
6,
22,
0,
71,
-32,
-30,
90,
-12,
-24,
11,
55,
-7,
38,
67,
43,
16,
-35,
51,
0,
6,
-14,
5,
-44,
2,
29,
-9,
-11,
5,
15,
14,
-69,
-57,
-22,
-28,
2,
21,
40,
12,
27,
-7,
9,
-6,
-56,
3,
-11,
29,
43,
-51,
5,
-30,
9,
-66,
-5,
53,
-25,
-17,
9,
-11,
35,
14,
-24,
72,
10,
32,
15,
-47,
-61,
10,
-9,
31,
23,
-34,
-25,
52,
-19,
58,
-31,
7,
3,
18,
59,
-42,
-53,
9,
28,
-49,
-12,
-12,
-12,
23,
-9,
-39,
70,
20,
-2,
-50,
-15,
-11,
29,
35,
-42,
-27,
21,
63,
13,
-30,
-42,
29,
-8,
10,
17,
5,
-20,
67,
12,
-53,
10,
28,
13,
30,
37,
36,
6,
0,
-19,
-8,
-46,
-2,
-13,
-7,
75,
0,
-16,
-12,
14,
-33,
23,
-27,
-43,
20,
-29,
-33,
23,
-35,
5,
-25,
42,
6,
13,
9,
11,
-31,
34,
14,
-1,
-19,
17,
-2,
-34,
-27,
-2,
-44,
-11,
-17,
-13,
-22,
33,
10,
17,
-74,
-17,
20,
-5,
-55,
-28,
32,
24,
36,
-13,
7,
12,
14,
-4,
32,
-30,
36,
0,
-8,
-68,
-39,
25,
46,
-34,
6,
-12,
39,
35,
9,
-36,
-29,
-61,
27,
13,
-32,
38,
-28,
24,
-33,
49,
14,
16,
8,
27,
-37,
28,
-5,
-25,
4,
-21,
9,
-18,
-24,
-26,
-55,
-28,
-10,
13,
-40,
10,
27,
51,
27,
-1,
-16,
17,
-20,
-34,
11,
-7,
14,
50,
24,
-8,
-26,
-37,
30,
-27,
-29,
16,
-3,
-37,
22,
-23,
56,
-27,
67,
0,
-21,
12,
-23,
-7,
-18,
12,
-28,
-5,
-1,
-6,
2,
-5,
-35,
21,
17,
-32,
-44,
-14,
-63,
-19,
27,
-10,
-21,
-8,
16,
-66,
5,
16,
-1,
-51,
-70,
-21,
-3,
4,
-11,
-30,
-42,
-4,
-41,
-29,
-25,
-7,
13,
20,
-52,
13,
-41,
21,
41,
21,
-7,
-45,
54,
7,
44,
-28,
62,
30,
9,
-6,
-9,
-5,
6,
-15,
13,
-14,
-9,
-35,
13,
-5,
51,
-13,
8,
28,
9,
-6,
54,
11,
-3,
12,
49,
54,
-51,
0,
4,
-21,
-32,
14,
-49,
71,
-59,
-26,
-43,
38,
-34,
6,
32,
40,
1,
-12,
47,
37,
-6,
0,
-6,
32,
-20,
-19,
-21,
-12,
35,
-59,
-37,
53,
0,
30,
-20,
1,
-20,
-32,
-71,
8,
-30,
20,
39,
-4,
2,
10,
10,
-10,
22,
-2,
-29,
23,
22,
-29,
-1,
10,
22,
-1,
-32,
-12,
-48,
10,
11,
-10,
-7,
8,
13,
43,
-26,
-22,
-40,
5,
62,
102,
33,
-2,
55,
17,
-21,
24,
5,
16,
-4,
-25,
-23,
-13,
-49,
-19,
-15,
-19,
36,
-18,
-44,
-52,
-19,
8,
-9,
18,
21,
35,
-36,
17,
35,
-18,
-1,
-14,
10,
-19,
42,
-4,
32,
-27,
-19,
10,
-19,
35,
-33,
-41,
-8,
-10,
4,
5,
5,
-37,
-2,
-27,
3,
-60,
-41,
20,
-4,
-3,
-28,
12,
47,
16,
-21,
-28,
-23,
-32,
10,
-9,
-54,
11,
28,
-9,
-27,
-13,
-22,
25,
-31,
-60,
33,
-13,
76,
-27,
10,
13,
-16,
-14,
0,
22,
-9,
26,
-29,
5,
61,
-55,
-7,
-32,
26,
71,
18,
-12,
23,
-4,
34,
-32,
-10,
11,
14,
-2,
-11,
-30,
-50,
9,
-29,
-9,
4,
5,
-1,
-12,
44,
32,
-21,
50,
18,
-13,
-17,
13,
48,
12,
24,
-24,
-36,
62,
19,
20,
17,
-46,
-26,
21,
6,
-9,
84,
-18,
-8,
35,
-26,
-46,
-36,
14,
-21,
27,
-76,
8,
2,
-4,
22,
16,
2,
38,
-49,
1,
20,
21,
-35,
-34,
-38,
21,
-2,
44,
24,
-22,
-14,
-2,
-41,
-12,
61,
48,
6,
-50,
25,
7,
0,
-35,
36,
-48,
18,
31,
-48,
6,
0,
19,
-4,
35,
13,
-28,
-45,
16,
6,
25,
44,
-5,
29,
51,
-33,
25,
20,
-6,
32,
21,
12,
-6,
-23,
0,
51,
-23,
-53,
-54,
-74,
-25,
-17,
33,
-13,
-8,
28,
29,
28,
6,
-5,
-13,
-11,
-1,
32,
41,
-4,
-9,
1,
-16,
47,
20,
-22,
40,
-37,
-35,
8,
22,
-76,
1,
32,
-24,
-41,
33,
26,
-47,
-15,
-18,
-12,
32,
34,
46,
-12,
-33,
-44,
35,
36,
4,
-43,
12,
15,
4,
-16,
18,
-25,
8,
-11,
28,
38,
-27,
-4,
38,
31,
-15,
-21,
-19,
5,
-40,
-21,
-15,
23,
55,
19,
10,
59,
43,
23,
-9,
9,
-6,
-32,
49,
-43,
19,
-54,
17,
21,
0,
9,
-3,
-9,
31,
32,
-5,
-58,
40,
-17,
11,
17,
-29,
-13,
-14,
4,
17,
12,
9,
34,
4,
0,
-23,
22,
-56,
-17,
-21,
-39,
0,
-1,
59,
-48,
-9,
-18,
6,
71,
-33,
54,
-55,
-14,
79,
-14,
-65,
-33,
-7,
-7,
31,
22,
-30,
25,
-23,
-67,
79,
-41,
-26,
-25,
44,
1,
-29,
3,
13,
-25,
10,
-17,
-73,
31,
-3,
27,
-14,
-21,
-39,
31,
-18,
71,
6,
-14,
-24,
-72,
31,
14,
-17,
27,
-20,
-27,
-29,
1,
-49,
-22,
-24,
19,
4,
36,
-50,
30,
-63,
-7,
-4,
30,
23,
-34,
37,
38,
-21,
-22,
28,
74,
19,
-82,
-21,
-21,
-38,
-17,
-17,
-24,
-31,
-13,
29,
-34,
24,
-15,
17,
53,
-26,
2,
11,
2,
21,
28,
9,
-39,
36,
25,
6,
36,
0,
16,
21,
35,
61,
1,
-53,
-6,
-25,
-12,
-69,
52,
-2,
-8,
-23,
-28
] |
Leave to appeal denied at 498 Mich 855. | [
16,
-17,
-35,
-9,
20,
54,
25,
51,
-57,
29,
-28,
0,
13,
-53,
30,
47,
79,
34,
-10,
7,
-23,
-4,
-4,
51,
-25,
-93,
49,
19,
-45,
-59,
5,
-48,
-43,
-57,
-26,
-21,
-28,
-2,
-5,
26,
-48,
-32,
-4,
23,
-19,
-56,
16,
31,
-30,
15,
-52,
32,
-71,
29,
-4,
33,
55,
-34,
-13,
49,
-47,
46,
46,
41,
28,
-11,
-42,
1,
29,
-27,
-20,
10,
6,
32,
4,
15,
20,
73,
30,
61,
18,
8,
9,
7,
47,
37,
0,
51,
0,
8,
-5,
-36,
-39,
42,
-45,
62,
11,
-45,
52,
-66,
-11,
40,
10,
-49,
-15,
-20,
25,
66,
-38,
12,
24,
-35,
-29,
-44,
20,
-25,
-9,
6,
47,
-6,
-11,
35,
23,
51,
40,
-17,
44,
-16,
-10,
-56,
5,
71,
94,
36,
8,
-11,
57,
-85,
-44,
-56,
-32,
100,
39,
-26,
-31,
-72,
30,
-24,
40,
-40,
-8,
7,
1,
7,
-17,
56,
25,
-13,
55,
18,
43,
24,
-66,
19,
63,
-24,
26,
37,
48,
18,
4,
2,
17,
-63,
-30,
21,
2,
51,
-29,
2,
-43,
9,
-4,
30,
-6,
-65,
27,
-29,
2,
-66,
-44,
-38,
86,
23,
30,
24,
16,
25,
-13,
9,
-26,
52,
-35,
36,
39,
-74,
-10,
-42,
37,
34,
-45,
-4,
-33,
-19,
42,
-28,
-50,
36,
38,
0,
35,
25,
-14,
-12,
-5,
48,
-15,
25,
19,
-11,
11,
29,
4,
-12,
44,
-31,
19,
17,
46,
-63,
-89,
-8,
-4,
68,
-16,
-33,
-66,
-32,
61,
-37,
40,
12,
19,
-83,
-55,
-53,
-19,
2,
0,
1,
18,
-6,
22,
26,
-25,
33,
-42,
10,
30,
-56,
35,
39,
-1,
-75,
24,
14,
-4,
15,
75,
0,
-21,
10,
2,
-15,
-73,
63,
20,
-15,
-18,
22,
12,
-1,
30,
44,
6,
-50,
-28,
27,
-21,
12,
-2,
49,
-29,
25,
57,
-38,
-53,
-44,
90,
20,
19,
-12,
-15,
46,
18,
-52,
1,
-92,
-41,
-15,
-10,
-4,
-19,
63,
-17,
59,
-21,
67,
39,
21,
6,
17,
-55,
97,
-12,
48,
-4,
-63,
-36,
32,
2,
47,
-6,
24,
-26,
-12,
-96,
-6,
92,
35,
28,
40,
-21,
-44,
11,
75,
-30,
-31,
-52,
53,
18,
-63,
-15,
61,
-9,
-34,
6,
49,
2,
28,
-49,
-3,
54,
-24,
18,
45,
-45,
-55,
-2,
-35,
-17,
-59,
-26,
11,
28,
9,
18,
31,
26,
58,
-36,
-49,
-28,
-37,
41,
-4,
26,
59,
23,
39,
-58,
-45,
-86,
84,
-18,
-9,
12,
15,
-26,
60,
-2,
12,
32,
19,
-55,
5,
60,
-25,
-25,
2,
-34,
-57,
-59,
13,
-38,
-1,
-42,
9,
9,
42,
5,
-41,
17,
-41,
-11,
32,
25,
-18,
-15,
33,
-55,
-17,
26,
-92,
0,
-56,
-23,
-17,
-86,
-51,
-12,
21,
-1,
-46,
-49,
-45,
-45,
86,
14,
0,
-39,
-45,
-53,
59,
-12,
-16,
-56,
40,
26,
-34,
-2,
16,
-46,
-24,
29,
-47,
-29,
-48,
-19,
-18,
4,
-18,
2,
15,
22,
6,
-4,
7,
-39,
6,
-19,
71,
42,
25,
-27,
59,
17,
-14,
23,
7,
-45,
13,
-6,
7,
11,
-32,
0,
-37,
16,
-10,
7,
-26,
7,
27,
-36,
63,
-40,
18,
7,
-40,
-17,
4,
26,
-16,
20,
5,
-68,
-22,
3,
101,
-8,
-20,
16,
34,
0,
-91,
47,
26,
-81,
51,
44,
-27,
-24,
-3,
5,
30,
-63,
-58,
-16,
1,
22,
-19,
-75,
-3,
0,
-34,
14,
-14,
12,
-16,
-12,
-15,
0,
18,
-34,
-38,
-29,
31,
16,
63,
65,
46,
-5,
9,
55,
13,
38,
-7,
-6,
0,
-24,
-3,
30,
-44,
-19,
-50,
-48,
-7,
-15,
-22,
-37,
-24,
-9,
-84,
16,
11,
-12,
11,
-21,
98,
-61,
19,
-7,
16,
10,
25,
-16,
18,
24,
-4,
-16,
51,
7,
-6,
-34,
-1,
5,
12,
23,
0,
74,
40,
-13,
-34,
-54,
8,
3,
0,
44,
22,
-2,
68,
34,
-36,
19,
20,
3,
20,
-4,
58,
22,
-3,
-18,
10,
10,
-44,
15,
-70,
-6,
-17,
-34,
37,
-17,
-36,
9,
26,
-13,
-57,
26,
-9,
-23,
56,
-9,
45,
-52,
-57,
-2,
25,
89,
50,
-43,
52,
2,
-6,
-13,
-12,
12,
-4,
-15,
61,
-27,
-34,
-14,
6,
8,
-39,
15,
25,
30,
37,
54,
39,
51,
-15,
-48,
-3,
-2,
69,
-34,
5,
0,
34,
11,
-24,
-9,
48,
-7,
-47,
-27,
8,
-49,
1,
48,
7,
97,
20,
-43,
-54,
6,
-2,
22,
-15,
-89,
-38,
29,
46,
12,
-19,
49,
31,
-1,
-8,
26,
-31,
-42,
11,
7,
12,
25,
12,
-18,
-27,
9,
-41,
-14,
-3,
48,
-49,
4,
-49,
2,
-10,
-21,
85,
-45,
-19,
-11,
41,
34,
30,
19,
-54,
-34,
19,
13,
-4,
0,
10,
44,
45,
27,
-40,
34,
-20,
-9,
-5,
-13,
9,
47,
-10,
21,
-4,
-60,
19,
45,
13,
-81,
-33,
-19,
-35,
6,
-86,
-10,
-18,
37,
27,
16,
-45,
34,
8,
2,
10,
2,
33,
24,
-16,
-58,
27,
-16,
-32,
32,
-6,
-81,
0,
46,
-28,
64,
84,
-11,
-4,
42,
27,
-26,
6,
6,
-34,
5,
52,
31,
30,
-4,
30,
66,
5,
-63,
-65,
-2,
-56,
58,
23,
9,
-43,
-18,
-46,
-32,
-14,
-5,
-17,
4,
-40,
-35,
-29,
-7,
25,
-6,
13,
-26,
22,
33,
19,
43,
38,
-7,
45,
-40,
1,
36,
-43,
20,
23,
-4,
-81,
13,
16,
-15,
46,
-9,
-54,
-7,
28,
8,
-46,
31,
-48,
78,
-18,
-2,
46,
-7,
35,
35,
14,
-62,
17,
25,
23,
14,
35,
-40,
-24,
20,
-66,
-31,
-28,
47,
-15,
18,
-5,
0,
-6,
-58,
6,
-18,
-57,
51,
-78,
-98,
37,
-38,
-9,
3,
4,
-37,
-21,
-1,
-23,
-12,
1,
0,
-74,
49,
-41,
-21,
-24,
0,
-34,
9,
-92,
-4,
-1,
13,
67,
-59,
-20,
-19,
13,
-58,
33,
21,
21,
22,
-42,
62,
-34,
-11,
18,
-37,
-5,
-71,
0,
0,
4,
26,
42,
-16,
9,
5,
18,
-7,
44,
0,
24,
16,
-14,
-59,
7,
-58,
-1,
54,
-18,
-14,
-75,
61,
-30,
-19,
-31,
-12,
54,
-20,
-21,
-8,
12,
22,
-38,
35,
-3,
-30,
32,
4,
73,
101,
33,
19,
-23,
-7,
44,
25,
-51,
30,
10,
20,
38,
31,
30,
9,
-34,
14,
2,
-40,
85,
15,
-28,
-36,
-30
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate that part of the Court of Appeals opinion holding that it cannot be concluded that the two separate assaults constituted part of the “same transac tion” under MCL 750.520b(3). We agree, however, that the sentencing judge failed to identify specific evidence from which one could conclude that the imposition of consecutive sentences was warranted. We therefore remand this case to the Kent Circuit Court. On remand, the trial court shall either issue an order that provides a basis for its conclusion that the two criminal offenses arose from the same transaction, or impose concurrent sentences. We do not retain jurisdiction. | [
27,
32,
-46,
19,
-106,
-8,
-23,
-13,
-5,
70,
0,
12,
-5,
-49,
2,
8,
-12,
9,
-12,
4,
-12,
27,
22,
44,
-12,
-33,
26,
15,
2,
27,
17,
16,
28,
-6,
7,
46,
27,
16,
2,
-2,
26,
13,
-8,
23,
-15,
-14,
15,
16,
20,
-24,
-7,
6,
4,
-10,
36,
5,
2,
14,
54,
29,
-11,
31,
-68,
-21,
3,
-53,
5,
-6,
6,
-60,
-13,
-2,
0,
-25,
22,
-13,
-47,
6,
35,
3,
25,
29,
33,
15,
44,
3,
-24,
-41,
-13,
3,
-23,
-42,
-55,
-57,
16,
25,
2,
-27,
32,
-46,
-9,
7,
1,
36,
-11,
9,
-2,
-29,
0,
59,
22,
21,
20,
-65,
-35,
3,
-45,
-13,
-23,
30,
20,
45,
43,
39,
35,
-49,
-9,
-47,
-17,
-32,
-24,
-25,
5,
-35,
4,
4,
14,
36,
-18,
26,
14,
42,
14,
34,
57,
49,
34,
-27,
26,
36,
-15,
-19,
-25,
41,
-21,
-34,
-1,
-15,
-57,
7,
-2,
33,
11,
23,
6,
-17,
-5,
-10,
-19,
0,
59,
37,
72,
51,
1,
50,
-34,
37,
26,
-6,
-11,
-25,
9,
-14,
10,
0,
-35,
-33,
-33,
-29,
-25,
-7,
-9,
-17,
49,
8,
14,
9,
-9,
0,
-53,
16,
-4,
38,
17,
-38,
102,
11,
2,
-49,
-13,
-11,
-21,
-74,
-11,
19,
12,
-12,
-10,
17,
-25,
-13,
7,
-31,
-27,
-59,
-34,
32,
38,
-21,
19,
-2,
-3,
51,
-13,
5,
25,
11,
66,
-3,
-1,
-22,
-15,
-72,
62,
26,
-23,
19,
-43,
-44,
56,
-12,
-13,
32,
-17,
-42,
23,
1,
-35,
20,
-4,
19,
2,
-6,
-41,
31,
28,
6,
-55,
27,
-21,
0,
31,
-53,
-8,
0,
-11,
58,
33,
40,
39,
14,
58,
40,
-27,
0,
-54,
98,
81,
-30,
-10,
-34,
16,
21,
7,
0,
0,
2,
-20,
25,
25,
-27,
39,
-25,
67,
35,
45,
-6,
-45,
-33,
17,
-25,
29,
-8,
-29,
-5,
14,
35,
10,
-55,
-34,
27,
52,
-28,
38,
-9,
23,
-8,
12,
-39,
22,
-20,
4,
-31,
4,
25,
-2,
-8,
13,
30,
4,
-51,
23,
-34,
25,
14,
-28,
-21,
14,
29,
-37,
-1,
53,
50,
-16,
0,
-30,
-23,
4,
11,
18,
-5,
-45,
-23,
-1,
-15,
46,
14,
-5,
59,
14,
-55,
-30,
27,
-25,
-16,
56,
-1,
-15,
0,
-26,
18,
31,
-45,
58,
7,
11,
2,
39,
-7,
-13,
-7,
6,
-51,
-7,
-1,
-44,
-1,
37,
-70,
-30,
-27,
42,
11,
-26,
13,
5,
0,
-5,
-22,
-21,
14,
-23,
66,
-24,
23,
-37,
4,
-22,
13,
54,
-42,
35,
-49,
2,
-31,
-24,
-7,
-20,
-30,
-18,
20,
12,
-76,
-51,
11,
-47,
5,
23,
-27,
-91,
15,
-41,
26,
10,
0,
12,
-47,
39,
42,
-13,
8,
1,
-41,
-45,
46,
4,
30,
55,
-14,
54,
-11,
-49,
-11,
57,
-35,
-68,
-45,
10,
-64,
5,
36,
29,
47,
6,
25,
4,
28,
20,
9,
0,
-19,
-64,
-14,
14,
-22,
-14,
-26,
18,
-56,
0,
8,
26,
50,
30,
48,
-37,
-15,
-40,
15,
-31,
-27,
-25,
15,
40,
8,
-5,
-40,
-8,
12,
-3,
51,
26,
-16,
-42,
-13,
-10,
-7,
-29,
-5,
68,
-29,
38,
-11,
-13,
13,
-36,
-40,
-22,
20,
38,
-10,
15,
-77,
48,
12,
-3,
-81,
12,
7,
-20,
0,
-6,
-17,
38,
27,
32,
0,
2,
8,
-2,
76,
26,
-10,
-6,
-20,
5,
-1,
-10,
-32,
3,
-28,
22,
30,
4,
32,
-35,
-40,
3,
26,
45,
21,
-58,
40,
26,
34,
-2,
15,
-26,
25,
24,
13,
-73,
-28,
-22,
2,
21,
8,
-19,
-50,
-35,
-5,
0,
-6,
13,
-13,
-13,
-20,
-29,
22,
54,
-5,
-11,
-49,
42,
-44,
-1,
42,
-8,
-11,
2,
27,
-30,
33,
-17,
-29,
12,
10,
-63,
1,
-2,
-64,
-30,
-1,
-45,
-15,
4,
-22,
-51,
9,
-17,
-10,
29,
13,
-21,
18,
9,
-25,
-45,
-17,
-6,
99,
-21,
41,
8,
37,
3,
20,
13,
4,
-22,
46,
21,
-10,
45,
-38,
9,
-34,
3,
-21,
2,
13,
-2,
65,
-33,
-48,
-43,
-23,
57,
-37,
-20,
18,
24,
10,
32,
-29,
2,
12,
23,
-29,
-10,
-22,
-19,
-81,
20,
22,
-41,
-10,
-5,
34,
0,
-34,
-24,
-1,
41,
16,
-8,
24,
-71,
46,
7,
25,
39,
13,
30,
-20,
-56,
-9,
28,
32,
2,
32,
-2,
4,
21,
-36,
-41,
-19,
-29,
-46,
6,
-52,
34,
-38,
32,
28,
11,
-38,
49,
-1,
11,
30,
-6,
17,
-3,
-54,
-24,
35,
20,
9,
-15,
-35,
-14,
-9,
7,
1,
-32,
3,
-22,
6,
10,
13,
0,
-16,
-34,
49,
25,
-65,
-48,
-14,
21,
9,
35,
26,
-38,
-90,
4,
-51,
49,
5,
-30,
-10,
16,
35,
-41,
1,
11,
-12,
0,
-3,
-28,
0,
-45,
19,
-20,
-75,
-42,
-57,
-27,
7,
41,
-29,
4,
45,
5,
32,
4,
-17,
-2,
13,
3,
64,
19,
14,
-28,
17,
17,
-18,
5,
23,
44,
-14,
-52,
32,
57,
15,
21,
-7,
-3,
-35,
10,
-15,
-21,
-49,
-28,
28,
15,
17,
-3,
13,
47,
0,
-3,
40,
-9,
-1,
4,
9,
16,
18,
12,
-8,
35,
-17,
15,
31,
18,
-24,
0,
-9,
20,
-42,
-35,
-39,
-6,
3,
-8,
56,
-33,
14,
14,
56,
-21,
-1,
-58,
33,
-17,
-3,
-23,
2,
-28,
-26,
18,
64,
-34,
19,
-9,
-1,
-50,
21,
-25,
-38,
13,
34,
24,
-76,
-39,
-5,
-35,
-7,
63,
-6,
-41,
0,
1,
-5,
5,
23,
-42,
-12,
-18,
-52,
-45,
17,
35,
-4,
12,
4,
-1,
36,
-11,
71,
10,
13,
11,
8,
-25,
-21,
40,
-21,
17,
58,
55,
29,
9,
-30,
-34,
-11,
0,
-8,
8,
3,
-65,
-47,
-17,
-34,
40,
-23,
30,
-16,
-12,
29,
-39,
16,
-52,
27,
-20,
28,
-19,
-1,
-22,
1,
5,
-9,
6,
2,
-4,
19,
-73,
3,
-9,
35,
11,
-13,
16,
17,
-21,
4,
-60,
-17,
32,
-61,
-16,
-12,
28,
-27,
-12,
-14,
-26,
-2,
4,
-67,
23,
-8,
-52,
45,
-18,
61,
-51,
-13,
29,
-31,
41,
6,
-17,
45,
-56,
16,
-16,
-31,
41,
40,
49,
-42,
33,
25,
43,
33,
47,
-34,
-14,
71,
24,
-6,
58,
29,
-23,
0,
19,
50,
-25,
1,
-6,
-19
] |
Morse, J.
In this case the falling of the roof was in and of itself some evidence that the work of raising it was not being done with the ordinary care and skill. It is true that the mere fact of an injury does not impute negligence on the part of any one, but, where a thing happens which would not ordinarily have occurred if due care had been used, the fact of such happening raises a presumption of negligence in some one. For instance, if the wall of a building falls down, and injures a person, walking along the street or standing beside the building, the clear presumption is that the building was either negligently built, or that it was not kept in a reasonably safe condition after it was erected, since buildings properly constructed do not ordinarily fall of their own weight. In the present case it must be apparent, and within the knowledge of every one, that a roof of this kind could be raised safely, and without falling, if such raising were done with proper care and caution, and by one having the necessary skill and experience to manage the work.
There was no negligence shown on the part of plaintiffs intestate. He in no manner caused or contributed to the injury. The falling of this roof cannot be considered a mere accident for which Providence alone is responsible. The fact that some of the witnesses do not know what caused it to fall has no bearing upon the issue, except that they were ignorant of the cause of the disaster. One witness, Henry Yincent, testifies on direct examination:
“Q.' What was the cause of that roof going down?
“A. Because it was not properly braced.
“Q. If it had been properly braced, would it have fallen?
“A. I think not.
“Q. Now, why was it not properly braced? Whose business was it to do it?
“A. The carpenters’, I think; they done all the bracing there.
“Q. What do you mean by properly braced?
“A. It was not braced right; there was not braces enough.
“Q. Could it have been braced sufficiently to keep it in a perfect position?
“A. Yes, I think it could.
“Q. Don’t you know that it could?
“A. They did not throw the next one down, and I think they would not have thrown this one down if they had worked it the way they did the second one.”
On cross-examination he further says:
“Q. Now you say that all you noticed was four braces of 2x4?
“A. On each side.
“Q. And two ropes?
“A. Yes, sir.
“Q. You knew that it was clearly insufficient?
“A. I did not know anything about it. I don’t know whether it was enough or not. I never worked under a roof being raised in that shape.
“Q. So that you do not pretend to know whether or not it was sufficient or insufficient?
“A. I know' that if it had been braced more it would not have fallen.
“Q. I mean except by the result.
“A. That is all, — by the result.”
This is what any one would say at once upon reading this record, — that the remit shows that the roof was not properly braced; that the fact of this falling of the roof, taken in connection with the manner of raising it, shows presumptively that it fell because it was not properly braced; and there the mind 'would naturally rest, until some evidence was produced showing that it fell from some other cause or agency. This roof not properly supported would fall as a natural result of the laws of gravitation, but if properly braced there would be no reason for its falling from that cause, and it would not fall from any other cause without the interposition of the elements or some human agency. Therefore, without any other showing than that it suddenly gave way, slipped or tipped to one side, and fell, the presumption is almost conclusive that it fell because it was not suffi ■ciently braced or stayed. The defendant made no showing to explain why it fell, and the case should have been •submitted upon the plaintiff’s proof.
“Negligence, like any other fact, may be inferred from ■the circumstances, and the case may be such that, though there be no positive proof that defendant has been guilty •of any neglect of duty, the inference of negligence would ■be irresistible.” Alpern v. Churchill, 53 Mich. 607, 613; Crosby v. Railway Co., 58 Id. 458; Bish. Non-Cont. Law, § 443.
Mr. Helson was responsible, if any one can be held liable, for the falling of this roof. While Mr. Kaiser took the job of raising the roof, the testimony shows that the timber bracing of the roof while it was being raised was to be done, and was done, by Helson through the direction of his foreman, Mr. Myers.
The judgment is reversed, and a new trial granted.
Champlin, C. J., McGrath and Long, JJ., concurred with Morse, J. | [
24,
18,
15,
-36,
19,
38,
-4,
39,
64,
7,
27,
-21,
14,
-43,
1,
-44,
-25,
37,
-5,
-5,
11,
-32,
-32,
-38,
-24,
-8,
68,
-35,
-15,
63,
38,
8,
-39,
-19,
-57,
17,
0,
-2,
11,
-17,
-16,
13,
15,
-98,
64,
-26,
35,
-19,
27,
46,
15,
-5,
92,
-40,
5,
-12,
51,
45,
-7,
-5,
-4,
-7,
-8,
2,
-4,
10,
-8,
16,
-23,
-5,
-38,
92,
-7,
-27,
-31,
-39,
-1,
64,
-17,
-1,
1,
11,
62,
-4,
10,
-8,
-41,
19,
-35,
-6,
-22,
-27,
-34,
11,
-76,
44,
-44,
46,
-25,
65,
24,
54,
-20,
0,
-76,
-5,
-23,
-38,
30,
15,
-45,
70,
0,
14,
-1,
-16,
14,
8,
-54,
2,
7,
41,
-20,
-2,
0,
35,
32,
-47,
-24,
-9,
6,
1,
-53,
47,
-55,
-22,
5,
-23,
-19,
-43,
-7,
28,
0,
15,
-55,
12,
-21,
-11,
18,
-22,
-14,
6,
-24,
-27,
-16,
2,
-74,
-10,
22,
5,
8,
14,
-9,
0,
-33,
-37,
-44,
7,
26,
38,
49,
29,
-4,
-12,
44,
44,
-2,
-52,
-27,
-2,
12,
1,
58,
27,
-24,
-28,
-35,
37,
73,
-13,
2,
-17,
-93,
39,
-39,
33,
-13,
19,
6,
-46,
-18,
36,
-31,
-27,
-31,
42,
-35,
-59,
38,
-25,
29,
17,
-68,
23,
13,
2,
-26,
-8,
-20,
-42,
-66,
39,
-15,
-23,
-60,
-15,
-48,
5,
-12,
-35,
-1,
-8,
26,
-12,
73,
-44,
18,
39,
13,
-19,
26,
12,
-29,
38,
-62,
-52,
16,
-10,
-33,
16,
19,
39,
40,
18,
-17,
-17,
-19,
39,
-52,
-39,
24,
7,
-1,
-22,
93,
-18,
-29,
11,
-24,
-7,
14,
53,
15,
12,
-53,
-1,
-31,
7,
50,
26,
-9,
29,
-50,
-7,
-40,
9,
15,
-2,
-33,
-5,
8,
-62,
21,
-43,
52,
27,
44,
-8,
-52,
-74,
17,
-29,
-1,
-8,
58,
70,
-35,
24,
-15,
-10,
-20,
0,
-10,
12,
10,
35,
-36,
-57,
-35,
-4,
-8,
-26,
-17,
-8,
1,
23,
26,
-16,
-12,
41,
-22,
26,
22,
35,
7,
41,
37,
9,
-26,
-1,
-52,
52,
53,
-58,
-25,
25,
0,
15,
-15,
-5,
-1,
65,
-25,
-36,
-44,
12,
22,
0,
-27,
40,
40,
15,
18,
69,
-25,
0,
-20,
-40,
-17,
49,
38,
-14,
-3,
-32,
-9,
2,
-7,
55,
-87,
49,
-18,
6,
70,
-41,
-43,
-1,
-9,
6,
-20,
-7,
-47,
-56,
79,
16,
-2,
-26,
-22,
0,
-6,
-21,
-34,
29,
-17,
-38,
-15,
-8,
0,
-53,
-18,
-7,
-16,
43,
52,
6,
-9,
-19,
30,
10,
-5,
37,
-4,
-16,
56,
-6,
13,
-30,
-2,
-37,
-79,
-40,
-36,
-17,
43,
-4,
13,
-22,
15,
20,
-44,
-30,
-77,
-29,
-20,
0,
39,
17,
27,
-2,
28,
-53,
-10,
7,
51,
-6,
17,
-2,
48,
-61,
48,
8,
6,
-8,
8,
-25,
85,
6,
-15,
-49,
46,
-32,
8,
-68,
9,
38,
4,
0,
9,
35,
-50,
3,
7,
34,
45,
-56,
-46,
-7,
-9,
38,
-6,
-4,
23,
36,
-43,
-28,
-50,
9,
1,
21,
-67,
-8,
0,
48,
-32,
-44,
48,
-58,
19,
-25,
30,
20,
-47,
-22,
39,
45,
-31,
1,
1,
4,
-14,
18,
-12,
-45,
-20,
-23,
24,
36,
-40,
34,
-33,
-68,
14,
-52,
2,
43,
8,
-6,
9,
-16,
53,
-40,
-50,
24,
39,
19,
40,
-2,
-6,
42,
26,
27,
52,
14,
31,
57,
10,
-8,
24,
-8,
18,
-9,
-16,
-7,
48,
16,
25,
19,
-14,
36,
55,
-32,
-29,
20,
-11,
50,
-70,
-15,
-12,
50,
-4,
-12,
39,
0,
-12,
-2,
-40,
-16,
-15,
-25,
-11,
-4,
-11,
49,
9,
-6,
-49,
-44,
-8,
24,
-7,
3,
-43,
-36,
-16,
26,
-7,
48,
22,
-26,
48,
30,
-13,
-19,
-29,
-15,
-48,
5,
-16,
5,
40,
11,
3,
-26,
-48,
-23,
-30,
-28,
73,
10,
-10,
-46,
-50,
48,
-32,
10,
-15,
-39,
-6,
5,
6,
22,
1,
17,
10,
-20,
-42,
-13,
11,
65,
6,
4,
-33,
-4,
-18,
-2,
48,
-43,
1,
-6,
-26,
-36,
-5,
12,
6,
15,
-65,
41,
12,
38,
0,
-20,
2,
16,
3,
29,
10,
-51,
0,
17,
-2,
-1,
34,
-26,
39,
-28,
39,
-14,
-32,
-16,
1,
7,
-18,
-35,
20,
9,
5,
35,
10,
8,
22,
32,
18,
-65,
38,
-14,
-19,
10,
23,
-18,
30,
-44,
8,
65,
-22,
20,
8,
-9,
-45,
-7,
-30,
-12,
60,
-1,
47,
-42,
12,
-2,
49,
-3,
-9,
1,
13,
-32,
-45,
31,
37,
-5,
33,
26,
30,
-34,
-8,
-9,
-11,
-10,
-28,
1,
92,
-6,
30,
-24,
39,
-18,
39,
-58,
-5,
-53,
-14,
45,
-4,
11,
49,
-10,
4,
-37,
-13,
-2,
19,
-18,
-7,
-32,
21,
31,
38,
-29,
-4,
24,
5,
-49,
45,
5,
-4,
8,
24,
77,
-39,
-56,
20,
-17,
26,
15,
-9,
43,
5,
39,
27,
-32,
-10,
11,
-18,
-26,
12,
3,
-14,
-19,
2,
0,
-27,
45,
13,
-11,
62,
-53,
-64,
-22,
-45,
0,
32,
-19,
10,
52,
13,
42,
-32,
-69,
44,
-31,
1,
-40,
43,
-4,
20,
-17,
-34,
-17,
48,
4,
-11,
7,
-17,
18,
23,
13,
2,
38,
39,
-81,
-13,
31,
-39,
45,
-8,
15,
83,
10,
-13,
5,
-4,
0,
45,
11,
-7,
17,
-5,
28,
-37,
-9,
3,
38,
17,
-46,
40,
21,
-31,
-8,
-46,
-10,
-5,
-19,
38,
10,
4,
68,
-39,
48,
-66,
-35,
-8,
-39,
32,
78,
36,
3,
-2,
0,
-4,
-8,
-20,
29,
-57,
-11,
-46,
32,
13,
29,
57,
-24,
-13,
-34,
-34,
36,
-8,
7,
-30,
-31,
-22,
90,
3,
-45,
-7,
44,
-22,
12,
21,
-14,
-8,
60,
-3,
-1,
-15,
21,
-10,
-9,
0,
12,
-6,
-10,
22,
-28,
-42,
17,
28,
-17,
-47,
35,
-26,
-20,
-3,
-9,
30,
-37,
8,
23,
30,
44,
55,
0,
-32,
-10,
-16,
-9,
-28,
5,
1,
0,
50,
17,
35,
-27,
-13,
-56,
33,
-10,
19,
-14,
28,
22,
-26,
-62,
1,
41,
-9,
-64,
-7,
8,
-20,
-48,
37,
-7,
-52,
-36,
-41,
-27,
-27,
12,
-43,
-57,
-59,
-49,
25,
34,
20,
-27,
27,
11,
54,
52,
34,
58,
-9,
-41,
-14,
53,
31,
37,
1,
26,
-101,
-15,
-4,
-39,
86,
22,
27,
0
] |
Morse, J.
This is a proceeding under the log-lien ■statute in the circuit court for the county of Chippewa, in which the plaintiff recovered judgment against the principal defendant, Eobert Houghton, and a lien upon ■the logs, for the sum of $367.96.
Wiggins commenced this suit in behalf of himself and Thomas Howie, Archie Hall, Michael Meagher, and George Baynes. Wiggins was appointed the agent of the others to prosecute their claim by the following instrument, produced and proven on the trial:
“We, the undersigned, having filed a statement and claim of lien on a certain quantity of saw-logs and timber reported to be owned by James Connolly, of Marquette, Michigan, with the clerk of Chippewa county, Michigan, and each of our claims for labor, etc., is less than one hundred dollars, and for the purpose of prosecuting our claim in the circuit court for Chippewa county, we do hereby designate and appoint James Wiggins, one of our number, our agent for prosecuting our said liens, or any suit necessary to enforce the same, in his name, and as fully as we, or each of us, could or-might do.
“Dated on this 1st day of May, 1890.
“Thomas Howie.
“Archie Hall.
“Michael Meagher.
“George Baynes.”
A separate statement of lien was filed in each case by Wiggins. The following is the statement in Meagher’s case. The others used the same, except as regards the name of the claimant.
“ State or Michigan,
“ County of Chippewa,
gg
“ James Wiggins, of Marquette, in the county of Marquette, and State aforesaid, being first duly sworn, deposes and says that he is agent for and makes this statement of lien for work and labor performed by Michael Meagher, and this statement is made for and in behalf of said Michael Meagher in hauling and laboring, and in working in and about the following described property, to wit, a quantity of board timber and boom timber and saw-logs. All of said timber and saw-logs are marked with the sign as follows, R, and gotten out by Robert Houghton, and reputed to be owned by James Connolly, of Marquette, Michigan; and said property is now situate in sections 27 and 35, in town 45 north, of range 7 west.
“That the last day’s work of said .labor was done on the 5th day of April, 1890; that Michael Meagher actually did said work and labor, and the same was performed in the county of Chippewa, in said State, and that the same described property, or considerable portion thereof, is now in the county of Chippewa, State of Michigan; that there is now due this Michael Meagher, claimant, for said work and labor, so as aforesaid by him done and performed, over and above all legal set-offs, the sum of forty-five dollars ($45.00), as near as may be, for which said sum this deponent claims a lien upon said described property; and this deponent has personal knowledge of the facts herein set forth. »
“Jambs Wiggins, Claimant.
“ Subscribed and sworn to before me this 2d day of April, 1890.
“A. Donaldson,
“Notary Public in and for Chippewa County.”
They were all filed in the county clerk's office on the 12th day of April, 1890. These statements showed the claim of Wiggins to be $397.82. The. others were each less than $100. On the trial Wiggins remitted all of his claim except $99.50, and was permitted to have judgment to that amount for his labor, against the objection and exception of the intervening defendants. The affidavit .for attachment was made May 5, 1890, and is as follows r
“ State or Michigan,
“County of Chippewa,
gg .
“Thomas J. Martin, being duly sworn, deposes and' says that he makes this affidavit for and in behalf of James. Wiggins, and says that defendant in the annexed writ is indebted to James Wiggins, plaintiff named in the writ,, in the sum of five hundred sixty-six and 28-100 dollars,, as near as may be, over and above all legal set-offs, and the same is now due for work and labor performed by-James Wiggins, Thomas Howie, Michael Meagher, GeorgeBaynes, and Archibald Hall, in scaling, hauling, swamping, timekeeping, and working in and about the property mentioned in the annexed writ, and that James. Wiggins has been designated the agent of Thomas Howie, Michael Meagher, George Baynes, and Archibald Hall by-each of said parties, for the prosecution of their said liens; that the last day's work of said labor was done on the 5th day of April, 1890; and that the said property described in the annexed writ, or a portion thereof, is now situate in the county of Chippewa, State of Michigan; and that a statement of lien required by law was on the 12th day April, 1890, duly filed with the clerk of the county of Chippewa, State of Michigan, where said labor was performed.
“ Thomas Martin.
“Subscribed and sworn to before me this 5th day of May, 1890.
“A. Donaldson,
“Notary Public, Chippewa county, Mich.
“ Filed May 5, at 12 o’clock m., 1890.
“Wm. Webster, Clerk.”
The principal defendant, Houghton, did not appear, and was duly defaulted. On the day of the trial, February 6, 1891, the intervening owners, James Eoss and John T. Eoss, appeared specially by Watts S. Humphrey, their attorney, and moved to dismiss the writ of attachment, as against the logs and timber, for the following reasons:
“1. That no affidavit was made as required by law by the plaintiff, or any person in his behalf, and annexed to the writ before the same was executed.
“2. That by the affidavit made in said cause it does not appear when the labor was performed by each of the laborers mentioned therein, or when the last day of said labor was performed.
“3. That the affidavit does not show that each of the laborers named therein has filed his claim of lien, as the law directs, within thirty days after the last day of said labor was performed by him.
“4. That the affidavit does not show what amount was due to each of the laborers whose claims are sought to be united, and that the same are each under $100.
“ 5. That the affidavit does show upon its face that some of the claims do exceed $100, and that they could not be united under this statute.
“6. That the affidavit does not show who the owner of the logs and timber is, or that the owner is unknown to affiant.
“7. That the affidavit does not show for whom the labor was performed, or that the same was performed under any contract relation whatever.
“8. That the said affidavit does not show that the several laborers have united their claims under the statute, or that they have designated the plaintiff, James Wiggins, as their agent or attorney to prosecute the claim for and in behalf of each.
“9. That said writ was issued without jurisdiction and is void.”
The objections to the affidavit were overruled, and the trial proceeded. The cause comes into this Court on writ of error.
This affidavit does not show when the last day of labor was performed by each claimant. It would have been better practice to have done so, but the evidence on the trial showed that such last day of labor for each one was performed on the 5th day of April, 1890, and each statement of lien was filed within thirty days from that time. This brings the case within Pack v. Circuit Judge, 70 Mich. 135. The statements, which were sufficient in form, also showed the last day’s labor of each claimant. They also showed the amount to be due each one for such labor by each claimant.
We think that the affidavit sufficiently shows that a statement of lien had been filed as required by law.
The fourth and fifth objections may be considered together. The affidavit does not show what amount was due each of the laborers whose claims are sought to be united, and it does not show that each of the claims is for an amount less than $100. On the contrary, it appears that the claims of the five laborers, united, amounted to $556.28, and that, therefore, one or more of them necessarily must be greater than $100.
The statute (Act No. 229, Laws of 1887, 3 How. Stat. § 8427a et seq.) provides that the first proceeding in the establishment of the lien shall be the' filing of a statement, under oath, of the claimant or some one in his behalf, in the office of the county clerk. This statement is the very beginning and a recognized part of the proceedings in the case. If this statement is filed by each one of the claimants joining in the suit, as it was in this case, and such statements show that the court has jurisdiction in this respect, we are of the opinion that the affidavit and statements must be considered together, and that it is not absolutely necessary that the affidavit, standing alone, should show such jurisdiction upon its face. ■ The statements are as much a part of the proceeding, and just as essential, as the affidavit, and if the two, taken together, show the claims each to be less than $100, it is sufficient to give the court jurisdiction, although it is better practice to show this fact in the affidavits as well as in the statements. It has been the policy of this Court to give a most liberal construction to the log-lien law in the interest of justice and equity.
But it is claimed that this affidavit distinctly informed the court of its want of jurisdiction in the premises, and that the statement of lien and the evidence upon the trial showed that the claim of Wiggins exceeded the limit of $100, and that this defect could not be remedied upon the trial, after a motion to dismiss for want of jurisdiction had been made. The statute provides:
“ Sec. 7. No attachment shall be issued under the provisions of this act in any of the circuit courts of this State, unless the amount claimed in said writ and affidavit for said work or labor, over and above all legal set-offs, shall be the sum of one hundred dollars and upwards; but in case two or more persons shall have claims for labor and services against any products in less sums than one hundred dollars each, and when such claims shall have accrued against the same person or persons, it shall be lawful for two or more persons claiming such lien to unite their claims either before or after filing statement of liens, and designate one of their number their agent or attorney for prosecuting such. lien, or any suit necessary to enforce the same, and claims, when thus united, shall be received and treated as one lien, and suit or attachment may be brought as for one claim, and concluded as one cause or suit, and the person so designated as such agent or attorney shall be named in such suit or attachment as plaintiff; and when said suit or attachment shall be commenced in the circuit courts of this State the writ of attachment may be in the following form.”
It is contended, under this provision of the statute, that Wiggins could not be designated as the agent or attorney of the other claimants, because the amount of his claim was more than $100. It must be conceded that Wiggins, whose claim exceeded $100, would have been entitled, under the statute, to prosecute his lien singly and in his own name. It must also be conceded that, if the other claimants had selected one of their own number as their agent, such agent could have prosecuted in his name their liens to a successful termination. In such case Wiggins would have recovered the full amount of his lien, and the other claimants their liens, and no question of jurisdiction would have arisen. But because the others chose Wiggins as their agent it is argued that the court had no jurisdiction to enforce any of the liens.' This would appear to be a mere technicality, requiring two suits to determine a controversy which could be as well and as justly settled in one suit. The question depends upon the construction of the phrase, “and designate one of their number their agent or attorney for prosecuting such lien,” etc. Does “one of their number” necessarily restrict their choice of agent or attorney to one having a claim less than $100, or is the phrase broad enough to include one of the persons having claims for labor and services upon the same products, and against the same person or persons? We can see no reason why the statute should be interpreted in the narrower sense of the expression. We think it competent for any number of persons having claims less than $100 to choose and appoint as their agent one of the number of claimants against the same products, notwithstanding his claim may exceed $100, and he might, if such appointment were not made, prosecute his lien alone. We can perceive no possible harm to any person by this construction of the statute, and it saves one suit. The object of the statute is to prevent a multiplicity of suits by providing that persons having claims less than $100 may unite their claims in one proceeding. If the statute in this purpose is a just and beneficial one, there can be no reason for requiring that the agent must also be a person whose claim is less than $100.
As to the sixth objection, it is not necessary that the .affidavit shall show who is the owner of the logs. Babcock v. Cook, 55 Mich. 1, 7; Shaw v. Bradley, 59 Id. 199; Reilly v. Stephenson, 62 Id. 509, 515.
The judgment of the court below is affirmed, with costs.
Champlin, C. J., McGrath and Long, JJ., concurred. Grant, J., did not sit. | [
10,
51,
14,
-9,
-9,
19,
-8,
-23,
29,
23,
-5,
-15,
-7,
17,
41,
16,
-36,
-45,
-4,
15,
51,
-33,
-7,
-26,
-15,
-30,
15,
-1,
-5,
-10,
-24,
42,
-17,
-24,
16,
-20,
-21,
-16,
-48,
-15,
-35,
-30,
48,
-7,
12,
-24,
4,
-12,
55,
12,
-11,
-7,
14,
-21,
-28,
15,
26,
19,
32,
40,
20,
-24,
5,
5,
11,
-56,
-1,
50,
53,
-20,
6,
22,
3,
15,
29,
6,
-40,
-38,
-41,
59,
-12,
14,
1,
1,
-39,
-42,
-70,
-24,
10,
11,
-5,
23,
-35,
54,
62,
15,
10,
37,
-63,
39,
36,
63,
14,
8,
-30,
-22,
14,
-43,
-47,
40,
-32,
-9,
29,
2,
15,
-22,
40,
1,
87,
-2,
-6,
-38,
-17,
5,
-13,
32,
11,
-36,
16,
25,
68,
-38,
-34,
-37,
0,
45,
-2,
18,
-38,
27,
41,
1,
-2,
25,
-29,
1,
14,
-2,
-4,
7,
-6,
16,
-34,
22,
0,
-4,
33,
14,
22,
-50,
64,
-16,
14,
-33,
-76,
7,
37,
-3,
-5,
42,
29,
-13,
-64,
-24,
0,
16,
21,
26,
8,
23,
40,
-27,
35,
-14,
-29,
11,
17,
-12,
-19,
41,
42,
-2,
-25,
3,
-46,
21,
21,
-1,
-67,
-11,
44,
-103,
26,
-13,
-16,
-31,
23,
29,
-14,
7,
-29,
-11,
-21,
-1,
17,
57,
-6,
-4,
58,
-23,
36,
83,
63,
0,
-19,
-18,
-1,
23,
22,
-25,
-39,
-30,
37,
-14,
-42,
-30,
-5,
6,
-2,
-14,
-34,
-54,
-38,
30,
26,
-25,
-76,
-1,
-38,
55,
-65,
26,
-5,
-22,
-14,
-26,
34,
0,
-50,
2,
-53,
-27,
-16,
8,
13,
-25,
8,
30,
-29,
12,
-21,
0,
56,
-23,
-36,
2,
-17,
16,
-37,
-35,
47,
-40,
-73,
24,
-46,
19,
-5,
14,
-39,
-11,
-2,
26,
3,
-70,
24,
-5,
-7,
-53,
46,
30,
-35,
-6,
-4,
-64,
-16,
-12,
-3,
-9,
-13,
32,
-3,
-35,
-63,
-31,
29,
-19,
13,
33,
-31,
-38,
-9,
-6,
-26,
-20,
30,
57,
25,
26,
-21,
26,
0,
-22,
21,
12,
-14,
19,
5,
6,
4,
-26,
4,
23,
-3,
57,
-17,
-23,
13,
-12,
18,
-30,
-18,
-54,
24,
14,
-60,
10,
16,
18,
-12,
16,
56,
30,
11,
58,
3,
-30,
-55,
-19,
18,
10,
-17,
-22,
19,
21,
39,
-46,
-21,
8,
-66,
46,
-15,
42,
6,
20,
25,
-4,
-11,
-1,
-50,
-37,
-40,
6,
17,
44,
3,
-30,
2,
-40,
-58,
-43,
-17,
49,
51,
38,
-19,
-6,
-21,
-56,
21,
-20,
28,
-10,
-30,
-10,
34,
-39,
29,
41,
20,
33,
42,
7,
-25,
-1,
80,
-16,
36,
5,
-17,
-34,
11,
9,
40,
22,
51,
15,
-76,
21,
-56,
-9,
3,
-16,
16,
-38,
29,
-59,
-21,
53,
17,
-14,
-18,
-21,
-55,
-32,
-45,
31,
-2,
-51,
16,
14,
-28,
-3,
10,
-20,
-2,
9,
22,
-24,
23,
46,
12,
7,
-72,
-23,
-29,
-45,
8,
-5,
12,
-10,
-6,
-22,
12,
-3,
-21,
-26,
-11,
1,
11,
-36,
38,
-16,
-9,
7,
-20,
14,
-83,
-20,
70,
51,
-33,
-16,
0,
-29,
-1,
-5,
-32,
32,
1,
62,
20,
-41,
23,
-34,
-44,
65,
-11,
-20,
-28,
-10,
-9,
-2,
-22,
26,
7,
40,
19,
-42,
14,
20,
4,
-45,
-19,
15,
9,
-22,
19,
18,
-34,
-18,
33,
0,
74,
23,
-12,
35,
5,
-43,
38,
13,
-7,
-13,
32,
-12,
-16,
56,
-14,
-22,
-11,
-38,
23,
-72,
10,
-48,
16,
-21,
-3,
25,
6,
-32,
6,
24,
45,
34,
-10,
29,
-23,
-9,
25,
-13,
-8,
-18,
0,
-3,
0,
-19,
6,
-1,
-35,
22,
-17,
-18,
-57,
18,
-17,
-5,
13,
81,
34,
-3,
25,
-5,
-32,
-13,
-11,
-31,
14,
16,
12,
29,
-5,
5,
40,
37,
9,
11,
39,
-56,
17,
34,
32,
-6,
-27,
19,
-31,
1,
37,
-12,
-45,
-16,
-72,
27,
-45,
58,
33,
38,
6,
17,
-54,
10,
-13,
-33,
-17,
-24,
7,
-29,
-29,
1,
-7,
-9,
-8,
-28,
16,
37,
14,
-35,
11,
13,
-3,
-21,
40,
20,
-17,
36,
-16,
-13,
-36,
0,
6,
39,
52,
-18,
-15,
-16,
-31,
-52,
-21,
29,
54,
29,
33,
-2,
76,
0,
37,
-23,
3,
63,
-8,
13,
2,
43,
43,
-9,
-41,
29,
-19,
18,
63,
-71,
25,
17,
13,
0,
0,
12,
15,
-16,
-6,
19,
13,
11,
55,
63,
-13,
102,
-21,
-9,
-4,
-37,
-12,
-44,
-4,
-33,
20,
-11,
20,
-15,
-25,
-22,
17,
74,
-1,
-17,
67,
-40,
0,
44,
-77,
66,
32,
-51,
-54,
-4,
-14,
12,
58,
-36,
-7,
-6,
26,
0,
13,
28,
14,
-58,
-24,
5,
-33,
5,
30,
2,
-4,
-22,
-32,
-8,
-27,
-25,
30,
-46,
8,
25,
-54,
-22,
-2,
0,
12,
50,
44,
-13,
53,
-28,
-28,
10,
-18,
-16,
12,
-13,
24,
-23,
-36,
-73,
13,
2,
-40,
-36,
60,
-28,
-39,
24,
-1,
39,
8,
44,
-24,
0,
-15,
0,
-27,
4,
-30,
7,
-13,
-43,
-1,
33,
-22,
33,
18,
44,
-54,
-29,
4,
0,
16,
7,
7,
-17,
-53,
19,
43,
-14,
0,
-1,
22,
-34,
17,
-43,
-57,
-21,
19,
9,
-49,
-19,
-31,
-16,
7,
6,
0,
-34,
-14,
2,
-9,
33,
-57,
-17,
18,
-8,
3,
38,
17,
-42,
-52,
-12,
-25,
16,
13,
-19,
-30,
-13,
21,
-11,
-49,
-10,
31,
25,
2,
-5,
13,
-27,
-38,
30,
-17,
-26,
-27,
3,
34,
-39,
60,
32,
-16,
-19,
-11,
26,
-14,
-17,
-32,
-60,
-56,
-15,
-21,
-10,
26,
31,
-27,
-8,
2,
8,
20,
36,
6,
-18,
-24,
-7,
-69,
-20,
-13,
32,
-19,
47,
-1,
-15,
-1,
10,
-9,
59,
36,
29,
-19,
55,
-44,
22,
-22,
-25,
31,
11,
27,
-52,
24,
25,
41,
39,
7,
-17,
28,
-4,
18,
0,
9,
78,
53,
-2,
33,
77,
-12,
45,
-24,
-37,
20,
-5,
21,
13,
26,
35,
-6,
6,
-7,
2,
31,
-16,
-11,
-19,
-5,
-37,
5,
-32,
11,
15,
16,
-48,
32,
-16,
-24,
28,
17,
-10,
32,
-11,
-17,
18,
-13,
-10,
3,
-22,
38,
-31,
10,
-27,
-87,
-42,
50,
-5,
-7,
30,
30,
44,
25,
33,
-4,
-18,
-44,
32,
2,
-31,
9,
37,
-40,
0,
49,
-15,
63,
-25,
-5,
47
] |
opinion at 497 Mich 363. | [
20,
3,
8,
-63,
-2,
66,
65,
88,
-11,
-17,
-19,
-37,
-48,
18,
47,
-20,
86,
-27,
-25,
-30,
-69,
-20,
24,
20,
-67,
-7,
24,
-3,
0,
-41,
-36,
-37,
-17,
-3,
25,
-8,
-40,
-19,
-3,
3,
-10,
0,
-8,
-7,
0,
-22,
-5,
-35,
5,
-35,
-47,
-17,
-33,
22,
17,
-3,
1,
38,
-5,
84,
32,
4,
47,
0,
22,
-41,
19,
0,
58,
3,
-15,
13,
-3,
31,
10,
66,
18,
35,
-37,
-16,
-59,
-1,
-19,
37,
5,
-1,
-26,
9,
-110,
-24,
81,
-53,
-3,
69,
7,
0,
43,
-60,
28,
-38,
-17,
-37,
-15,
-14,
-29,
-27,
-22,
-44,
54,
-49,
-20,
-18,
10,
-12,
-22,
25,
-48,
6,
34,
41,
-59,
8,
-34,
65,
-23,
-12,
-6,
1,
-2,
-60,
7,
17,
120,
7,
64,
-11,
-11,
-36,
11,
-4,
34,
30,
66,
-4,
-66,
-18,
-60,
-44,
50,
-13,
-23,
36,
-5,
-35,
-58,
-48,
-21,
-33,
75,
18,
5,
23,
-44,
-1,
-36,
-5,
3,
11,
-16,
102,
9,
-32,
-1,
-23,
-51,
28,
-51,
46,
-20,
-5,
-29,
-38,
-36,
23,
-61,
-57,
70,
-75,
-15,
-41,
-16,
-15,
62,
-33,
-16,
44,
26,
37,
-40,
12,
-8,
1,
-57,
-3,
-46,
-70,
-52,
-27,
-35,
52,
36,
6,
-47,
-8,
50,
-21,
-50,
12,
24,
-70,
97,
-55,
54,
17,
10,
-28,
-56,
27,
-29,
-75,
51,
5,
-15,
-3,
39,
6,
0,
7,
6,
-73,
-37,
-25,
46,
74,
61,
27,
14,
-23,
64,
20,
5,
-39,
-33,
-54,
-25,
-1,
-8,
48,
40,
-20,
-34,
12,
-7,
54,
-20,
21,
-37,
8,
8,
-6,
36,
50,
19,
-43,
-28,
45,
17,
7,
60,
-10,
-39,
-10,
49,
22,
43,
57,
5,
-17,
11,
-52,
11,
7,
43,
19,
14,
22,
-31,
-2,
35,
10,
6,
57,
-22,
5,
66,
-63,
-39,
4,
42,
33,
-11,
11,
-8,
58,
-19,
-35,
-21,
-12,
51,
37,
-4,
32,
-11,
3,
-36,
-9,
63,
36,
-4,
-45,
49,
-1,
5,
73,
-14,
38,
21,
-60,
-31,
-42,
80,
10,
45,
98,
20,
19,
-110,
6,
-30,
-11,
-12,
88,
-23,
33,
10,
-4,
-21,
66,
7,
-52,
11,
21,
29,
13,
-26,
-35,
-6,
-6,
-2,
35,
-45,
11,
-36,
83,
12,
-11,
9,
-39,
-9,
23,
47,
-56,
-7,
-10,
38,
11,
-50,
24,
-40,
5,
-69,
-37,
-27,
49,
-28,
-61,
8,
15,
-47,
-47,
-31,
-18,
-52,
53,
30,
64,
57,
8,
59,
57,
35,
2,
-3,
-18,
-37,
-4,
104,
16,
4,
2,
-40,
23,
-43,
3,
-29,
2,
-4,
-9,
-15,
83,
6,
-38,
-23,
58,
-3,
-37,
19,
-23,
44,
-50,
-7,
17,
13,
-48,
-9,
-58,
-31,
50,
-9,
-82,
43,
-16,
5,
-50,
-19,
21,
-1,
-10,
25,
-18,
3,
-65,
-13,
5,
-41,
9,
-42,
50,
88,
-36,
-28,
15,
8,
11,
34,
-38,
0,
-36,
-11,
31,
23,
-22,
-19,
-16,
-40,
-37,
6,
45,
-42,
-2,
24,
1,
0,
-37,
39,
24,
52,
12,
-12,
17,
9,
32,
-54,
-30,
-71,
-24,
-44,
-14,
-8,
-18,
77,
-28,
0,
99,
-61,
28,
-23,
-53,
30,
35,
-3,
-31,
8,
12,
35,
24,
14,
-16,
13,
1,
-22,
-33,
10,
-8,
42,
37,
28,
52,
-28,
10,
31,
-11,
38,
-51,
-3,
-31,
-1,
-50,
17,
42,
-43,
16,
-80,
-32,
29,
-20,
-21,
-3,
43,
-45,
-8,
19,
15,
-21,
-6,
-2,
0,
-16,
46,
-27,
1,
-29,
80,
0,
-20,
-36,
-34,
9,
16,
0,
-61,
-40,
6,
15,
27,
-2,
0,
-24,
0,
-24,
-29,
9,
-22,
51,
-35,
-1,
37,
47,
25,
26,
13,
-23,
16,
-27,
2,
53,
-22,
-40,
38,
25,
-5,
20,
35,
-10,
-25,
78,
-1,
8,
13,
-22,
-31,
8,
61,
0,
24,
-24,
33,
-5,
-19,
7,
-97,
16,
-1,
-1,
-9,
28,
29,
-10,
-20,
31,
-64,
5,
6,
33,
59,
-50,
-27,
16,
-15,
15,
-40,
-4,
-30,
-21,
-23,
-32,
43,
-33,
45,
42,
43,
43,
8,
21,
-59,
-80,
-13,
27,
57,
45,
-30,
0,
-11,
-30,
46,
63,
-3,
30,
0,
80,
-66,
69,
-40,
48,
-3,
-74,
-9,
43,
19,
12,
26,
45,
43,
-14,
-33,
-23,
-4,
5,
1,
24,
20,
-2,
-18,
-59,
-36,
28,
28,
15,
-54,
-11,
34,
-13,
-9,
17,
16,
-7,
-34,
-42,
2,
16,
13,
0,
-47,
-15,
22,
22,
-49,
0,
1,
60,
-15,
-46,
12,
-47,
-17,
30,
22,
-23,
-18,
-53,
-17,
19,
-35,
-46,
-24,
5,
56,
36,
8,
3,
-21,
-26,
86,
26,
-32,
-20,
10,
63,
7,
54,
0,
-20,
-92,
9,
69,
-47,
-32,
30,
-39,
-25,
39,
27,
-70,
38,
-44,
-17,
-39,
-12,
10,
15,
-19,
0,
-16,
-40,
-8,
-4,
-5,
-76,
-24,
-1,
-45,
-26,
31,
-12,
51,
10,
37,
-29,
21,
-7,
9,
27,
23,
45,
-19,
16,
-57,
16,
9,
12,
73,
16,
-23,
-47,
18,
-38,
64,
43,
-45,
-18,
-2,
-56,
40,
-47,
34,
-4,
-9,
10,
13,
2,
92,
11,
38,
3,
-103,
-30,
0,
-38,
62,
59,
42,
-33,
-46,
-15,
-41,
-2,
53,
-44,
-55,
-58,
-63,
8,
-13,
-37,
19,
8,
-48,
42,
12,
48,
25,
53,
15,
82,
18,
-23,
22,
-25,
24,
31,
-10,
0,
-4,
-3,
-27,
46,
-3,
-30,
-17,
-11,
22,
-46,
92,
-48,
85,
0,
55,
-6,
14,
-21,
17,
-12,
18,
-39,
-54,
28,
19,
-20,
-39,
0,
-4,
22,
-12,
69,
63,
-9,
25,
-8,
-7,
-20,
-45,
-2,
-7,
2,
-16,
0,
-55,
-29,
14,
12,
17,
1,
67,
-41,
0,
-41,
-1,
-17,
-23,
8,
-26,
18,
-67,
-25,
-17,
-35,
71,
3,
23,
42,
-29,
47,
-85,
-5,
59,
20,
-35,
-14,
-27,
-44,
9,
22,
-14,
-38,
30,
51,
35,
-5,
-74,
46,
9,
25,
37,
-66,
-21,
-29,
-65,
44,
84,
40,
-53,
10,
-12,
23,
-53,
-50,
-45,
-55,
-29,
-39,
-9,
26,
69,
18,
34,
-29,
33,
21,
14,
-28,
-8,
-6,
-31,
-76,
-44,
18,
36,
25,
23,
11,
55,
24,
-24,
-23,
-54,
-42,
-36,
-23,
56,
11,
25,
17,
39,
-4,
-10,
28,
17,
-22,
46,
1,
70,
4,
-78,
-37
] |
Leave to appeal denied at 497 Mich 983. | [
26,
4,
-21,
-21,
1,
55,
19,
56,
-50,
7,
-24,
5,
8,
-44,
24,
46,
86,
44,
-19,
0,
-38,
-9,
-7,
30,
-37,
-70,
24,
17,
-44,
-61,
-22,
-54,
-42,
-51,
-40,
-34,
-51,
-11,
11,
13,
-51,
-20,
-11,
6,
-6,
-58,
17,
3,
-19,
5,
-64,
33,
-74,
19,
38,
34,
35,
-41,
4,
51,
-38,
42,
29,
46,
12,
9,
-51,
-1,
27,
-8,
-24,
18,
11,
39,
-6,
39,
34,
84,
34,
63,
36,
31,
13,
25,
25,
18,
10,
58,
-3,
4,
5,
-65,
-44,
54,
-42,
42,
-19,
-56,
28,
-68,
0,
47,
3,
-48,
-1,
-46,
20,
55,
-15,
3,
-8,
-18,
-4,
-37,
0,
-21,
-37,
3,
44,
-10,
-11,
32,
29,
55,
46,
-10,
13,
0,
-1,
-52,
19,
39,
74,
54,
-15,
3,
40,
-101,
-20,
-63,
-36,
102,
36,
-34,
-29,
-78,
56,
-35,
17,
-40,
0,
13,
-4,
11,
-9,
36,
10,
-19,
53,
13,
26,
49,
-56,
6,
54,
-12,
7,
43,
16,
25,
26,
31,
8,
-65,
-41,
19,
-2,
36,
-22,
1,
-45,
-2,
-22,
33,
-14,
-78,
12,
-36,
35,
-74,
-41,
-41,
67,
22,
18,
41,
21,
22,
-24,
31,
-18,
36,
-50,
8,
48,
-49,
10,
-35,
11,
21,
-42,
-18,
-25,
-15,
27,
-33,
-58,
39,
29,
-21,
45,
19,
-21,
2,
-17,
40,
-14,
39,
-4,
-10,
25,
20,
9,
10,
31,
-79,
11,
15,
55,
-61,
-88,
-21,
-27,
71,
8,
-9,
-78,
-8,
76,
-48,
64,
-1,
25,
-86,
-53,
-71,
-61,
19,
3,
-13,
0,
23,
19,
6,
-18,
35,
-34,
28,
12,
-74,
33,
35,
5,
-84,
11,
8,
5,
21,
47,
11,
-47,
0,
7,
1,
-59,
46,
11,
-12,
-7,
9,
-17,
21,
19,
73,
16,
-35,
-26,
31,
7,
24,
21,
33,
-53,
33,
41,
-28,
-68,
-64,
93,
44,
25,
4,
-6,
41,
0,
-51,
-5,
-101,
-29,
2,
8,
-7,
-31,
87,
-16,
68,
0,
66,
22,
13,
-2,
23,
-61,
73,
-39,
46,
-4,
-63,
-37,
30,
0,
57,
2,
34,
-2,
-36,
-103,
-10,
91,
29,
21,
82,
-20,
-49,
-14,
68,
-30,
-31,
-43,
40,
14,
-62,
12,
64,
-6,
-44,
6,
37,
-5,
32,
-65,
-11,
42,
10,
25,
49,
-45,
-36,
0,
-11,
13,
-13,
-15,
22,
28,
29,
13,
19,
42,
72,
-19,
-62,
-36,
-21,
30,
-15,
27,
72,
15,
52,
-47,
-39,
-85,
67,
1,
12,
9,
8,
-16,
75,
4,
21,
39,
28,
-74,
3,
71,
-34,
-31,
18,
-18,
-54,
-51,
0,
-46,
5,
-53,
29,
1,
86,
4,
-38,
9,
-44,
-30,
25,
7,
-14,
-6,
2,
-49,
-49,
16,
-73,
2,
-56,
-47,
-18,
-96,
-53,
16,
22,
3,
-33,
-56,
-64,
-61,
59,
4,
-7,
-55,
-45,
-46,
43,
0,
4,
-52,
42,
21,
-40,
-24,
40,
-53,
-22,
35,
-18,
-43,
-41,
-14,
12,
14,
-20,
-28,
-2,
29,
5,
-2,
-5,
-31,
5,
-13,
90,
37,
29,
-24,
50,
15,
-18,
7,
-8,
-42,
-13,
-7,
14,
17,
-50,
8,
-14,
-14,
2,
18,
-8,
8,
39,
-26,
61,
-38,
-2,
-20,
-22,
-15,
15,
15,
3,
40,
-9,
-69,
-27,
27,
86,
-19,
-20,
18,
58,
10,
-57,
47,
34,
-90,
52,
24,
-39,
-25,
1,
14,
52,
-46,
-57,
-26,
-4,
11,
-20,
-77,
-12,
-6,
-46,
19,
-22,
7,
-8,
-12,
-37,
29,
16,
-32,
-39,
-21,
24,
21,
54,
78,
35,
9,
-2,
39,
10,
32,
12,
-19,
0,
-32,
3,
45,
-26,
-15,
-53,
-69,
-21,
-20,
-5,
-34,
-15,
-10,
-76,
6,
14,
-7,
8,
-3,
77,
-61,
21,
3,
16,
-13,
46,
-13,
23,
29,
6,
-28,
46,
13,
-21,
-28,
0,
4,
5,
20,
-8,
83,
35,
-4,
-55,
-50,
-22,
17,
6,
46,
6,
-2,
72,
14,
-36,
29,
25,
6,
6,
-18,
57,
17,
0,
-11,
17,
8,
-33,
11,
-68,
-26,
-32,
-57,
24,
-29,
-21,
15,
10,
0,
-49,
26,
-5,
-16,
45,
-13,
42,
-53,
-55,
-6,
36,
85,
68,
-40,
44,
27,
-22,
2,
-17,
3,
-6,
0,
35,
-27,
-17,
-13,
26,
2,
-41,
8,
14,
25,
49,
37,
51,
52,
-21,
-19,
-3,
-8,
54,
-19,
17,
13,
41,
-10,
-36,
-13,
48,
0,
-31,
-8,
-3,
-39,
6,
36,
-6,
102,
11,
-32,
-43,
23,
-4,
7,
-20,
-76,
-34,
34,
65,
-2,
-13,
59,
32,
-14,
-3,
18,
-25,
-64,
1,
12,
9,
30,
0,
-25,
-35,
0,
-55,
-9,
-7,
68,
-42,
6,
-56,
17,
-21,
-6,
87,
-37,
-31,
-26,
30,
29,
35,
6,
-56,
-69,
24,
10,
-6,
8,
20,
65,
29,
17,
-25,
5,
-16,
-6,
4,
0,
34,
15,
-18,
28,
-23,
-52,
18,
42,
0,
-72,
-66,
-8,
-47,
22,
-44,
-4,
-17,
40,
12,
21,
-43,
17,
-2,
-5,
18,
13,
31,
11,
-19,
-42,
27,
1,
-13,
53,
9,
-47,
-7,
39,
-55,
58,
69,
-9,
10,
31,
17,
-29,
1,
27,
-37,
21,
58,
14,
15,
0,
37,
89,
-3,
-62,
-70,
-12,
-55,
73,
20,
-10,
-45,
-27,
-33,
-29,
9,
5,
-33,
-22,
-59,
-36,
-46,
-1,
21,
-4,
31,
-29,
17,
30,
7,
60,
35,
0,
48,
-35,
-11,
48,
-50,
25,
24,
11,
-63,
-8,
16,
-19,
47,
6,
-20,
12,
22,
19,
-45,
43,
-53,
78,
-11,
-8,
8,
8,
12,
52,
-12,
-70,
22,
47,
24,
30,
36,
-45,
-9,
9,
-55,
-8,
-20,
33,
-21,
45,
12,
5,
4,
-66,
8,
-29,
-56,
40,
-73,
-105,
27,
-26,
25,
6,
-3,
-9,
-10,
2,
-28,
-24,
17,
24,
-73,
40,
-24,
-18,
-30,
-21,
-26,
21,
-115,
0,
3,
12,
68,
-52,
-19,
-11,
13,
-46,
26,
5,
21,
31,
-63,
48,
-14,
-18,
10,
-25,
-17,
-56,
-8,
22,
17,
0,
45,
-26,
-7,
-17,
30,
3,
45,
-7,
25,
17,
-11,
-65,
-24,
-71,
-15,
52,
-34,
-1,
-56,
61,
-49,
-17,
-44,
-6,
21,
0,
-30,
-13,
14,
19,
-26,
43,
-1,
-44,
22,
17,
81,
117,
33,
17,
-18,
-17,
26,
23,
-30,
41,
33,
27,
36,
47,
43,
12,
-29,
29,
35,
-22,
72,
26,
-7,
-33,
-42
] |
reported below: 309 Mich App 22. Summary disposition at 497 Mich 1042. | [
-5,
15,
-14,
-24,
-76,
17,
34,
30,
26,
-2,
-16,
-30,
-64,
17,
-17,
63,
42,
-55,
-27,
-2,
-48,
-25,
-22,
19,
2,
57,
3,
35,
61,
-31,
-41,
37,
-48,
-15,
64,
7,
-12,
9,
35,
-29,
2,
-3,
33,
-15,
0,
-42,
32,
0,
71,
-50,
-3,
7,
38,
-52,
53,
-16,
3,
2,
-40,
85,
-13,
44,
11,
-22,
5,
20,
26,
26,
24,
-20,
-31,
38,
-24,
31,
-34,
13,
21,
57,
-37,
14,
6,
-19,
-8,
47,
-10,
-4,
-9,
7,
-48,
-1,
0,
-19,
-9,
19,
23,
10,
21,
-16,
-37,
2,
20,
5,
40,
17,
-22,
-25,
35,
-37,
-57,
4,
2,
-55,
23,
-56,
5,
3,
-30,
7,
61,
31,
19,
9,
9,
-39,
-5,
-19,
-23,
-9,
23,
-29,
-27,
24,
-21,
16,
34,
13,
18,
8,
-26,
21,
-28,
-53,
18,
-41,
-1,
89,
-35,
-3,
26,
-25,
-60,
33,
16,
24,
-38,
-17,
-4,
-18,
27,
-14,
-4,
-63,
52,
-32,
-29,
1,
-12,
10,
-19,
62,
-11,
-53,
59,
-86,
-31,
50,
-31,
95,
16,
41,
28,
-49,
21,
-33,
-36,
-32,
8,
-30,
-74,
-32,
-19,
-5,
31,
47,
-63,
22,
33,
54,
-37,
-39,
-8,
-85,
-28,
-55,
-55,
-9,
19,
-6,
-1,
2,
12,
-29,
-16,
-10,
25,
-25,
44,
-2,
6,
-19,
39,
-21,
33,
19,
42,
-54,
-21,
15,
2,
-17,
73,
7,
24,
-26,
22,
6,
3,
30,
32,
-48,
-19,
-59,
-23,
-62,
60,
67,
-15,
-31,
14,
-30,
19,
-21,
-54,
-42,
-9,
-40,
-3,
32,
14,
13,
-3,
40,
42,
64,
-72,
58,
-52,
-45,
-53,
-4,
-8,
4,
-36,
-85,
-15,
6,
-1,
53,
28,
27,
-4,
-63,
57,
-1,
39,
-23,
-25,
76,
-24,
-42,
-23,
17,
-3,
-41,
-1,
5,
-23,
-53,
-1,
18,
-24,
-21,
-48,
19,
8,
23,
13,
23,
43,
-8,
-12,
-5,
64,
1,
-33,
-9,
10,
10,
19,
77,
14,
60,
-8,
-13,
-22,
-20,
41,
31,
32,
26,
-26,
0,
-32,
-22,
-59,
53,
-53,
-11,
-23,
-15,
43,
4,
0,
7,
15,
33,
-39,
-19,
2,
-19,
-46,
66,
39,
27,
9,
-2,
29,
30,
-1,
22,
-3,
-4,
33,
-49,
-24,
-14,
-41,
0,
-16,
30,
-47,
27,
-25,
101,
26,
29,
11,
-44,
-62,
-1,
11,
26,
3,
15,
33,
-1,
-9,
20,
29,
7,
19,
-19,
-39,
19,
7,
-90,
13,
36,
-67,
-39,
39,
-15,
-13,
68,
1,
-3,
84,
10,
45,
53,
3,
-10,
21,
-3,
-14,
-12,
59,
40,
16,
-21,
53,
70,
-39,
-5,
-16,
1,
-9,
-22,
27,
28,
16,
-6,
0,
38,
-11,
66,
-28,
-17,
45,
-23,
41,
-42,
-29,
-7,
3,
-61,
-53,
-34,
22,
-26,
48,
49,
-9,
-38,
-14,
-1,
-15,
-3,
-32,
-23,
-24,
-90,
-43,
-14,
-80,
15,
18,
2,
23,
-17,
-28,
-24,
-39,
8,
58,
17,
0,
3,
-11,
-13,
22,
9,
-4,
-34,
-47,
-7,
-26,
60,
-91,
7,
3,
-50,
0,
30,
16,
-2,
-21,
23,
-6,
6,
20,
-26,
-1,
19,
2,
-13,
-26,
42,
6,
11,
5,
32,
-11,
-18,
-34,
7,
-31,
-41,
35,
39,
0,
12,
-13,
37,
47,
33,
66,
-34,
-16,
28,
-11,
-65,
42,
-46,
77,
9,
-53,
26,
-56,
-62,
19,
-18,
67,
-24,
31,
20,
3,
8,
-5,
-8,
-52,
-20,
-21,
17,
14,
-23,
42,
-3,
25,
5,
-10,
-9,
-32,
-32,
7,
-29,
-21,
-1,
-2,
7,
24,
-5,
80,
-5,
-18,
19,
11,
-13,
5,
-24,
-5,
13,
50,
-10,
6,
22,
66,
13,
29,
-6,
-29,
19,
-34,
6,
-18,
27,
-7,
52,
-42,
37,
-27,
-26,
-6,
0,
-20,
34,
6,
4,
21,
-34,
0,
39,
12,
30,
-58,
26,
9,
-23,
15,
5,
-24,
31,
62,
51,
44,
-18,
3,
-31,
-71,
7,
36,
-8,
-14,
-58,
-15,
30,
58,
-67,
14,
-14,
-47,
22,
2,
28,
48,
-27,
0,
-39,
-9,
23,
-39,
-4,
-69,
15,
-2,
7,
-23,
-42,
57,
-6,
-8,
45,
-5,
6,
-42,
-58,
43,
-21,
79,
-3,
1,
7,
-59,
-35,
1,
61,
-13,
53,
84,
36,
-41,
5,
-44,
45,
0,
-64,
42,
60,
42,
-10,
-30,
38,
7,
69,
-47,
-2,
-2,
29,
30,
-17,
4,
-28,
-22,
-40,
-34,
18,
9,
39,
-75,
-4,
4,
0,
16,
25,
-33,
35,
27,
18,
-45,
-8,
15,
14,
0,
-56,
34,
38,
-21,
-46,
-26,
14,
1,
35,
-25,
-26,
23,
-26,
-6,
32,
-22,
-13,
37,
-10,
-43,
-103,
-67,
18,
-15,
56,
0,
-7,
11,
12,
73,
-7,
-16,
21,
56,
-42,
-66,
39,
-50,
-42,
-39,
43,
66,
-15,
-6,
-8,
22,
-44,
-27,
7,
-56,
3,
-54,
11,
-25,
23,
-3,
-37,
-11,
-30,
-45,
-9,
-2,
10,
13,
-89,
69,
-49,
-63,
2,
38,
-4,
1,
34,
56,
-30,
-42,
-60,
23,
15,
-19,
19,
15,
19,
8,
-6,
-35,
24,
17,
27,
-24,
-64,
64,
4,
17,
-35,
29,
-62,
18,
-24,
-11,
6,
-17,
21,
0,
25,
16,
-37,
58,
23,
-13,
19,
-85,
-48,
36,
-97,
15,
34,
-3,
-53,
-20,
-36,
-33,
-13,
18,
-3,
17,
-59,
-25,
9,
35,
-14,
-2,
88,
-4,
27,
22,
-4,
35,
30,
1,
13,
-25,
43,
45,
-2,
21,
14,
9,
13,
-9,
46,
-13,
24,
-22,
-30,
28,
-50,
49,
-22,
50,
-41,
14,
14,
31,
-29,
-42,
10,
-3,
42,
-25,
-31,
-32,
29,
77,
8,
-18,
-20,
55,
24,
-30,
40,
3,
52,
-8,
14,
-8,
0,
-75,
-7,
6,
36,
-66,
-57,
0,
-26,
57,
-37,
44,
-35,
28,
8,
53,
-24,
24,
39,
-39,
-40,
-13,
13,
-55,
-19,
45,
-20,
11,
-30,
2,
66,
-4,
15,
-33,
8,
74,
0,
1,
-19,
-26,
-8,
47,
-1,
32,
0,
-31,
70,
91,
5,
-18,
-40,
50,
-23,
-12,
-37,
-8,
6,
-42,
-13,
35,
12,
-40,
26,
-13,
3,
0,
-43,
5,
-32,
-19,
-11,
-22,
-13,
-34,
-2,
-1,
-33,
11,
40,
6,
5,
14,
-25,
38,
13,
-12,
-44,
15,
4,
-30,
5,
62,
-49,
-9,
-33,
8,
-69,
35,
-35,
6,
44,
-8,
74,
10,
-36,
39,
-13,
-7,
40,
15,
22,
74,
-2,
-19,
17
] |
Leave to appeal denied at 497 Mich 1027. | [
13,
-1,
-41,
6,
2,
59,
32,
36,
-24,
19,
-30,
32,
20,
-64,
26,
48,
98,
10,
-12,
-9,
-40,
-12,
-17,
51,
-39,
-75,
60,
35,
-41,
-56,
7,
-44,
-55,
-57,
-38,
-17,
-35,
-18,
-3,
4,
-33,
-47,
0,
20,
-39,
-76,
11,
15,
-31,
9,
-67,
20,
-70,
25,
12,
27,
49,
-35,
4,
59,
-44,
49,
39,
47,
20,
0,
-11,
-7,
14,
-15,
-19,
27,
-11,
43,
13,
17,
36,
88,
32,
76,
36,
13,
10,
8,
18,
15,
11,
57,
-15,
8,
7,
-49,
-53,
55,
-32,
56,
7,
-28,
43,
-68,
3,
35,
20,
-49,
2,
-48,
7,
65,
-32,
0,
47,
-20,
1,
-34,
8,
-7,
-29,
15,
38,
4,
-21,
53,
9,
34,
45,
-3,
26,
-12,
3,
-47,
15,
37,
41,
36,
-16,
-23,
53,
-98,
-16,
-33,
-20,
111,
41,
-26,
-20,
-61,
35,
-23,
23,
-63,
-6,
20,
-7,
23,
-9,
34,
14,
-19,
34,
5,
2,
33,
-50,
28,
76,
-32,
25,
44,
38,
16,
10,
19,
16,
-56,
-41,
18,
-24,
42,
-26,
19,
-38,
8,
-5,
21,
0,
-60,
3,
-49,
31,
-76,
-38,
-50,
103,
41,
13,
31,
31,
39,
-15,
6,
-4,
39,
-43,
17,
38,
-62,
11,
-42,
3,
6,
-48,
2,
0,
-24,
67,
-17,
-36,
34,
46,
3,
39,
11,
0,
-7,
-20,
20,
-20,
36,
7,
6,
20,
34,
11,
-17,
43,
-30,
6,
-8,
62,
-69,
-84,
-12,
-18,
77,
-3,
-31,
-78,
15,
51,
-46,
33,
-8,
25,
-85,
-35,
-64,
-32,
34,
-9,
-13,
20,
19,
30,
5,
-27,
15,
-19,
-2,
11,
-68,
35,
22,
-12,
-78,
38,
-9,
18,
43,
60,
6,
-39,
14,
-4,
-27,
-67,
50,
28,
-5,
-35,
7,
-8,
8,
43,
75,
-4,
-47,
-34,
38,
-3,
36,
26,
57,
-38,
3,
20,
-48,
-51,
-66,
77,
23,
41,
-18,
8,
45,
15,
-48,
-20,
-95,
-28,
-6,
-13,
2,
1,
86,
8,
52,
-20,
50,
44,
16,
-5,
22,
-60,
75,
-18,
52,
-17,
-55,
-39,
22,
4,
69,
19,
24,
-19,
-8,
-96,
-15,
82,
34,
24,
62,
-6,
-33,
18,
55,
-15,
-35,
-48,
36,
9,
-38,
-3,
49,
10,
-27,
-17,
40,
25,
43,
-61,
3,
45,
3,
15,
41,
-50,
-54,
-20,
-22,
-18,
-25,
-15,
26,
22,
10,
15,
12,
22,
59,
0,
-76,
-9,
-22,
40,
-6,
7,
69,
12,
24,
-56,
-48,
-100,
63,
-29,
-13,
21,
-2,
-32,
84,
-7,
36,
40,
26,
-50,
7,
61,
-6,
20,
1,
-14,
-61,
-48,
22,
-51,
5,
-54,
9,
-5,
59,
-9,
-49,
-3,
-46,
-42,
32,
24,
-22,
-2,
9,
-38,
-37,
21,
-89,
8,
-61,
-48,
-37,
-97,
-71,
-13,
-16,
12,
-41,
-43,
-38,
-66,
39,
-5,
1,
-33,
-35,
-55,
25,
-2,
15,
-65,
44,
10,
-49,
-21,
4,
-41,
-48,
46,
-8,
-6,
-20,
-3,
-12,
20,
-11,
-16,
7,
27,
-8,
11,
0,
-20,
6,
-22,
88,
43,
45,
-30,
54,
17,
-5,
-1,
30,
-41,
-2,
11,
37,
-12,
-36,
6,
-17,
0,
2,
0,
-27,
-10,
16,
-60,
57,
-25,
23,
8,
0,
1,
1,
22,
10,
21,
8,
-68,
-52,
19,
93,
-18,
-9,
33,
53,
11,
-66,
46,
38,
-68,
61,
23,
-30,
-32,
25,
22,
51,
-63,
-41,
-6,
-7,
20,
-10,
-62,
-1,
0,
-36,
5,
-15,
18,
-15,
-4,
-25,
33,
20,
-55,
-37,
-31,
41,
14,
94,
67,
41,
7,
11,
58,
9,
8,
6,
-22,
0,
-13,
23,
40,
-15,
-19,
-60,
-63,
-31,
-15,
-13,
-50,
-4,
5,
-69,
4,
23,
-9,
-9,
6,
75,
-72,
5,
-20,
19,
-33,
42,
-33,
-8,
39,
25,
-36,
43,
3,
-12,
-45,
-5,
1,
6,
25,
-7,
79,
20,
-15,
-45,
-58,
-35,
18,
4,
22,
16,
-21,
68,
0,
-44,
18,
19,
0,
-1,
1,
87,
2,
2,
3,
21,
-2,
-22,
7,
-92,
-14,
-11,
-28,
27,
-37,
-9,
10,
21,
-10,
-44,
37,
-11,
-9,
70,
-28,
55,
-72,
-57,
0,
45,
96,
57,
-27,
41,
0,
3,
5,
-63,
18,
-18,
0,
36,
-40,
-2,
-17,
17,
18,
-39,
17,
33,
9,
19,
48,
55,
42,
3,
-49,
-12,
-16,
51,
-20,
16,
1,
23,
-1,
-29,
12,
59,
-7,
-41,
-36,
0,
-49,
9,
51,
18,
96,
15,
-18,
-33,
6,
-16,
15,
-10,
-79,
-14,
3,
64,
0,
-18,
47,
47,
-12,
1,
35,
-9,
-43,
26,
21,
31,
24,
16,
-24,
-48,
-17,
-51,
-17,
-2,
54,
-43,
0,
-58,
26,
-40,
-9,
64,
-75,
-36,
-33,
9,
9,
22,
8,
-59,
-42,
32,
14,
-11,
16,
19,
59,
23,
24,
-4,
4,
-32,
-17,
-10,
-7,
6,
12,
-12,
42,
-15,
-57,
8,
47,
4,
-69,
-48,
-22,
-46,
36,
-65,
9,
-7,
10,
35,
17,
-38,
28,
0,
0,
17,
17,
19,
13,
-29,
-50,
23,
-27,
-24,
44,
17,
-57,
-15,
25,
-40,
71,
72,
-22,
-4,
45,
12,
-41,
8,
21,
-25,
-9,
47,
32,
10,
3,
35,
70,
6,
-63,
-67,
-19,
-70,
73,
10,
-9,
-33,
-24,
-37,
-25,
6,
28,
-29,
-21,
-47,
-55,
-56,
0,
-5,
-11,
47,
-10,
16,
18,
12,
53,
19,
0,
43,
-42,
0,
42,
-53,
38,
13,
3,
-64,
17,
17,
-12,
23,
-6,
-48,
10,
43,
18,
-52,
49,
-70,
75,
-29,
27,
9,
-9,
26,
46,
2,
-51,
22,
54,
28,
8,
27,
-38,
8,
0,
-48,
-15,
-31,
30,
-22,
36,
-6,
17,
10,
-70,
29,
-22,
-58,
24,
-58,
-97,
30,
-37,
17,
12,
-10,
-16,
-6,
17,
-31,
-21,
-4,
1,
-69,
56,
-48,
-28,
-35,
-7,
-18,
6,
-90,
-1,
-17,
11,
62,
-37,
-39,
1,
14,
-46,
15,
13,
12,
24,
-43,
43,
-43,
-7,
1,
-40,
-26,
-34,
-18,
9,
19,
17,
43,
-16,
-23,
-7,
3,
-7,
55,
-26,
19,
15,
-10,
-48,
20,
-72,
-11,
77,
-15,
-16,
-46,
59,
-50,
-27,
-43,
3,
17,
-17,
-16,
-11,
21,
7,
-19,
37,
-2,
-45,
14,
-1,
89,
105,
36,
26,
-33,
13,
35,
15,
-22,
56,
31,
25,
31,
48,
26,
19,
-37,
-3,
17,
-24,
87,
5,
-38,
-37,
-39
] |
The Judicial Tenure Commission has issued a Decision and Recommendation, to which the respondent, Honorable R. Darryl Mazur, 12th District Court Judge, consents. It is accompanied by a settlement agreement, in which the respondent waived his rights and consented to a sanction of a public censure and 30-day suspension without pay.
In resolving this matter, we are mindful of the standards set forth in In re Brown, 461 Mich 1291 (2000):
Everything else being equal:
(1) misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct;
(2) misconduct on the bench is usually more serious than the same misconduct off the bench;
(3) misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety;
(4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does;
(5) misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated;
(6) misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery;
(7) misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship.
In the present case, those standards are being applied in the context of the following stipulated findings of fact and conclusions of law of the Judicial Tenure Commission, which, following our de novo review, we adopt as our own:
A. PEOPLE v [***][ ]
1. The case of People v r***1. Jackson District Court Case No. 1⅜⅜⅜1 was assigned to Respondent.
2. [The defendant] was charged with domestic violence (MCL 750.81[2]), and she was arraigned on June 9, 2014. On August 7, 2014, [the defendant] pled guilty. With the prosecutor’s consent, pursuant to MCL 769.4a, [the defendant] was placed on probation for 12 months, and she was assessed fines and costs.
3. In December of 2014, after seeing [the defendant] in the hallway of the courthouse, Respondent received a Christmas card from her, wishing him a [Mjerry Christmas and thanking him for being “an extremely firm yet fair judge.”
4. Respondent wrote back to [the defendant], on court stationery, indicating that he was also pleased to have run into her in the hall at the courthouse. In that same handwritten note, he said,
“You continue to sound well. No need to thank me. Well, maybe you can.
“I am not sure of your marital status. But if you are not, would you be interested in seeing me? Being on probation is a complication. I am interested if you are.”
5. Respondent and [the defendant] continued to e-mail each other through the month of January 2015.
B- PBDPT/B v JORDEN GRIFFIN
6. The case of People v Jorden Griffin, Jackson District Court Case No. 14-1326 SM was assigned to Respondent’s colleague, Judge Klaeren.
7. Ms. Griffin was a former neighbor of Respondent’s, and Respondent remained friends with her father, Paul Griffin.
8. Mr. Griffin called Respondent to tell him that his daughter Jorden had been arrested by the Jackson Police Department.
9. Respondent advised Mr. Griffin about pre-trial procedures, that the city attorney would likely negotiate a plea agreement, and that he, Respondent, would speak to the assigned judge about the case.
10. Respondent did, in fact, contact Judge Klaeren and discussed the matter with him. He also told Judge Klaeren that he (Respondent) wanted to discuss the matter further with him (Klaeren) and the city attorney.
11. Respondent also sent Judge Klaeren an e-mail asking him to “PR [release on a personal recognizance bond] her [Defendant, Jorden Griffin] and set a pre-trial and then direct her down to see [Respondent.]”
12. Judge Klaeren was disturbed by all of this and discussed his discomfort with Respondent.
13. Respondent is extremely remorseful over these matters, he has co-operated [sic] throughout the investigation, and he is desirous of resolving this grievance.
We adopt the Commission’s conclusion that these facts demonstrate that the respondent breached the standards of judicial conduct in the following ways:
The parties have stipulated, and this Commission agrees and separately finds as well that Respondent’s conduct violates the Code of Judicial Conduct and the standards of discipline for judges. The commission further finds that Respondent’s conduct constitutes:
(a) Misconduct in office, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30 and MCR 9.205;
(b) Conduct clearly prejudicial to the administration of justice, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30, and MCR 9.205;
(c) Failure to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to the Code of Judicial Conduct, Canon 1;
(d) Irresponsible or improper conduct which erodes public confidence in the judiciary, in violation of the Code of Judicial Conduct, Canon 2A;
(e) Conduct involving impropriety and the appearance of impropriety, in violation of the Code of Judicial Conduct, Canon 2A;
(f) Failure to respect and observe the law and to conduct himself at all times in a manner which would enhance the public’s confidence in the integrity and impartiality of the judiciary, contrary to the Code of Judicial Conduct, Canon 2B;
(g) Engage [ment] in ex parte communications with a party and with a judge, contrary to Canon 3(A)(4);
(h) Conduct which exposes the legal profession or the courts to obloquy, contempt, censure, or reproach, in violation of MCR 9.104(2);
(i) Lack of personal responsibility for his own behavior and for the proper conduct and administration of the court in which he presides, contrary to MCR 9.205(A); and
(j) Conduct that violates the standards or rules of professional responsibility adopted by the Supreme Court, contrary to MCR 9.104(4).
After review of the Judicial Tenure Commission’s recommendation, the settlement agreement, the standards set forth in Brown, and the above findings and conclusions, we order that the Honorable R. Darryl Mazur be publicly censured and suspended without pay for 30 days, effective 21 days from the date of this order. This order further stands as our public censure.
We further order that the Judicial Tenure Commission remove the name of the individual in the first matter addressed above from any public record it maintains or controls. MCL 769.4a.
The name of the individual and case number are redacted pursuant to MCL 769.4a. | [
17,
-60,
15,
-16,
0,
-4,
-58,
-41,
-16,
22,
-19,
-24,
36,
-24,
13,
-23,
19,
14,
-26,
-29,
0,
26,
4,
40,
-18,
54,
-44,
27,
42,
19,
-26,
20,
-26,
-65,
7,
-21,
14,
54,
-7,
27,
35,
-45,
-6,
31,
-50,
30,
-2,
12,
13,
-36,
-32,
37,
32,
5,
2,
33,
-15,
53,
32,
-19,
-18,
12,
-66,
-44,
36,
13,
16,
-4,
20,
-12,
24,
20,
20,
-30,
-61,
16,
-4,
13,
17,
25,
35,
52,
-21,
24,
1,
13,
41,
30,
61,
-9,
28,
53,
-56,
-16,
-24,
-13,
-11,
16,
35,
6,
-52,
-21,
18,
-15,
-47,
14,
59,
6,
17,
14,
45,
31,
0,
-78,
-43,
4,
7,
33,
-9,
-35,
50,
35,
-4,
15,
29,
-15,
54,
-12,
14,
25,
16,
-17,
-42,
-37,
18,
-18,
53,
39,
-12,
37,
-45,
-8,
-56,
53,
-30,
-21,
-56,
-12,
-10,
-54,
43,
12,
31,
-12,
1,
-82,
42,
-34,
41,
-7,
17,
28,
-31,
-56,
7,
-44,
2,
-23,
42,
0,
28,
65,
79,
1,
30,
-51,
-26,
15,
14,
-2,
-35,
8,
-48,
8,
-50,
41,
-22,
-20,
-32,
-45,
-47,
10,
51,
2,
65,
-19,
9,
50,
2,
-48,
-4,
-8,
-11,
17,
-56,
0,
-38,
-26,
-22,
-1,
4,
32,
6,
-21,
-7,
-41,
22,
-7,
-4,
2,
-14,
-71,
16,
-25,
-27,
-93,
15,
23,
5,
-33,
-25,
-9,
45,
-31,
69,
8,
71,
51,
59,
40,
5,
53,
-19,
48,
-53,
-9,
-22,
-9,
-10,
-9,
2,
-13,
5,
48,
-48,
59,
7,
94,
-32,
12,
-37,
8,
36,
13,
9,
-42,
-57,
70,
-5,
2,
2,
24,
0,
-43,
-48,
-6,
-36,
-13,
8,
1,
0,
24,
-3,
15,
-8,
13,
10,
1,
7,
-50,
7,
-5,
-64,
35,
77,
26,
52,
27,
-1,
-20,
18,
3,
-4,
-45,
-4,
45,
-6,
1,
17,
-40,
27,
-69,
9,
22,
0,
-34,
-23,
10,
65,
-25,
-26,
-37,
3,
-26,
-95,
-57,
87,
-101,
17,
-23,
22,
19,
-19,
45,
76,
8,
11,
59,
-48,
-13,
19,
-38,
14,
10,
4,
3,
0,
9,
-57,
8,
2,
2,
-5,
50,
-36,
-56,
-12,
-2,
25,
-13,
12,
47,
-9,
-67,
1,
3,
-31,
-56,
-12,
-22,
-17,
-9,
-59,
32,
10,
20,
63,
-14,
33,
22,
-27,
13,
26,
-15,
-9,
-69,
-73,
16,
-65,
-55,
-14,
47,
-52,
-2,
21,
-15,
40,
50,
-5,
-11,
18,
-38,
-26,
-16,
-18,
31,
-39,
-120,
4,
10,
15,
-4,
45,
34,
22,
9,
31,
-19,
49,
-34,
23,
62,
35,
-27,
12,
29,
17,
38,
51,
14,
-20,
12,
59,
-7,
24,
7,
-53,
-33,
-33,
34,
-2,
-3,
-15,
53,
-12,
9,
31,
56,
12,
20,
26,
-60,
4,
-24,
-9,
7,
-16,
29,
-4,
-43,
0,
-30,
-31,
30,
-21,
2,
-39,
34,
6,
-14,
15,
-29,
30,
104,
29,
-29,
-9,
-4,
28,
-31,
16,
-56,
-25,
-3,
-9,
31,
-58,
-53,
-28,
0,
-16,
-15,
-40,
0,
-32,
14,
27,
2,
-49,
48,
-24,
-7,
-17,
-5,
17,
-101,
17,
31,
16,
8,
-13,
-1,
-22,
57,
-4,
11,
-10,
-22,
20,
-44,
-43,
-36,
-10,
-3,
4,
-45,
-16,
6,
-50,
-24,
29,
43,
-2,
-19,
44,
77,
-50,
-53,
83,
-78,
18,
0,
-2,
7,
24,
8,
-22,
6,
-8,
44,
23,
-25,
-20,
-64,
-9,
-43,
-21,
-7,
57,
-12,
-87,
41,
47,
33,
12,
29,
-44,
-28,
22,
19,
31,
41,
11,
-12,
-24,
38,
25,
53,
14,
-15,
42,
-42,
-41,
49,
0,
-43,
-8,
-62,
51,
-37,
-18,
-12,
1,
-6,
-2,
-28,
55,
11,
8,
-23,
35,
28,
-4,
-17,
71,
-9,
27,
22,
-6,
-35,
-15,
0,
-27,
-2,
-11,
5,
5,
16,
-13,
65,
-55,
-68,
43,
-93,
-8,
-24,
48,
25,
35,
-32,
14,
26,
9,
-14,
6,
4,
-66,
-57,
-24,
-19,
37,
43,
17,
78,
98,
62,
-3,
45,
-26,
-22,
69,
13,
11,
-48,
22,
8,
-7,
81,
-14,
-37,
53,
26,
-18,
37,
-16,
8,
-27,
42,
-15,
10,
-8,
47,
38,
4,
20,
67,
86,
-37,
-4,
-22,
-34,
24,
-28,
-9,
-43,
13,
-23,
53,
-44,
-15,
-27,
6,
15,
31,
92,
4,
18,
-7,
-5,
16,
-29,
21,
2,
-17,
10,
-32,
-19,
-40,
-32,
-14,
-48,
53,
-48,
85,
-35,
8,
-81,
-41,
-71,
32,
-13,
50,
9,
15,
51,
-11,
-46,
40,
7,
-14,
31,
13,
0,
6,
-16,
6,
1,
47,
-22,
5,
-11,
7,
-6,
-18,
-14,
-8,
38,
46,
-22,
-8,
-12,
-61,
-6,
-10,
-5,
20,
59,
-46,
-18,
-1,
8,
67,
12,
-14,
-5,
24,
15,
-25,
-5,
-19,
1,
-42,
37,
76,
-6,
27,
10,
-53,
-3,
0,
-13,
-15,
-1,
-8,
-59,
-18,
10,
-25,
11,
-27,
13,
-35,
-46,
0,
44,
-12,
-38,
5,
-23,
-29,
-25,
-3,
-20,
-72,
-71,
40,
3,
-56,
18,
36,
15,
-32,
13,
34,
18,
16,
-19,
11,
-13,
-35,
52,
-42,
-13,
-3,
9,
-89,
-20,
-85,
20,
4,
-18,
30,
13,
9,
-15,
21,
-63,
21,
41,
35,
30,
-50,
-19,
-53,
3,
40,
-26,
1,
21,
22,
27,
0,
-26,
-48,
-13,
28,
-24,
-6,
52,
-19,
-21,
5,
-2,
-6,
-12,
81,
48,
-2,
46,
16,
-13,
45,
-6,
24,
-22,
-20,
18,
-24,
-22,
31,
20,
1,
-3,
0,
35,
19,
-14,
-62,
-69,
0,
60,
8,
25,
38,
-27,
10,
-3,
-5,
-20,
-33,
25,
23,
10,
-25,
-51,
27,
-5,
-11,
-44,
18,
-25,
10,
5,
49,
-38,
-1,
-13,
28,
45,
-68,
-1,
41,
9,
2,
0,
-2,
-12,
-16,
-31,
-10,
-10,
-12,
-18,
-42,
-11,
4,
-11,
20,
-3,
-48,
-42,
-1,
22,
5,
-18,
34,
-68,
-12,
-57,
12,
-17,
53,
29,
26,
-24,
-40,
-2,
70,
-18,
-22,
36,
24,
-4,
-55,
37,
26,
-29,
-14,
-56,
33,
26,
20,
-74,
25,
19,
-19,
-40,
-39,
-32,
-34,
-50,
1,
-34,
-12,
12,
-46,
-17,
38,
22,
-11,
42,
-22,
27,
-13,
-33,
-11,
-37,
24,
4,
-9,
57,
30,
-6,
-1,
26,
-27,
15,
-43,
-8,
13,
28,
-17,
48,
-15,
-12,
3,
12,
-81,
15,
-15,
-29,
49,
20,
58
] |
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. | [
-5,
-41,
-94,
2,
-15,
52,
-21,
-20,
-22,
0,
-16,
14,
20,
-75,
-23,
12,
-48,
-1,
-5,
-5,
-23,
39,
58,
21,
16,
-26,
20,
-24,
54,
-40,
-16,
19,
-35,
-50,
47,
-49,
68,
-25,
24,
-11,
-7,
21,
2,
-19,
-71,
-44,
32,
34,
80,
42,
0,
53,
-62,
4,
-14,
42,
-12,
-25,
-24,
35,
-13,
58,
-8,
15,
68,
23,
-12,
-59,
-5,
-57,
22,
26,
-31,
72,
-8,
40,
15,
19,
47,
66,
45,
6,
-25,
-43,
-1,
60,
31,
22,
-32,
32,
-19,
1,
-17,
-33,
-68,
26,
-5,
-41,
36,
58,
-25,
-14,
-15,
-36,
38,
-1,
-48,
10,
-30,
40,
47,
21,
7,
-67,
-3,
22,
-55,
11,
12,
5,
0,
53,
-9,
17,
38,
-7,
-10,
-2,
-44,
-13,
-26,
15,
12,
-8,
17,
22,
42,
-6,
-35,
-53,
-21,
82,
34,
-5,
35,
12,
-2,
-21,
-13,
11,
59,
-2,
-67,
56,
-48,
-6,
16,
-6,
7,
43,
-18,
32,
-5,
-14,
65,
-44,
-53,
10,
-8,
2,
46,
8,
26,
9,
-58,
43,
-17,
37,
-15,
23,
-78,
26,
-18,
-48,
-22,
1,
-84,
35,
-46,
-17,
-35,
-45,
46,
27,
13,
14,
-5,
24,
-34,
-10,
-101,
22,
-8,
-18,
-3,
-86,
14,
0,
20,
-48,
-15,
65,
-22,
-29,
38,
14,
26,
47,
-14,
72,
-10,
7,
37,
-27,
8,
33,
11,
56,
46,
-2,
10,
18,
26,
24,
4,
30,
25,
16,
70,
-62,
4,
-44,
23,
-46,
22,
-16,
-8,
49,
-3,
-69,
45,
-19,
30,
-23,
6,
1,
-22,
32,
15,
-5,
43,
44,
52,
12,
-76,
45,
-12,
-9,
9,
5,
9,
75,
32,
-57,
-8,
16,
23,
20,
48,
-10,
-12,
-3,
-86,
42,
-7,
-26,
-51,
-33,
34,
-19,
-24,
23,
57,
-20,
-1,
-11,
-86,
41,
-6,
-15,
11,
16,
9,
-22,
21,
13,
-40,
17,
35,
-44,
34,
20,
10,
-8,
27,
-31,
-29,
16,
15,
-42,
-16,
-6,
16,
-43,
-4,
13,
10,
-60,
-7,
41,
16,
-46,
-15,
-3,
-49,
85,
-7,
48,
22,
49,
-11,
31,
1,
10,
-13,
20,
-31,
-62,
10,
17,
-4,
-3,
-18,
41,
12,
-9,
-49,
-23,
-49,
18,
30,
-9,
-1,
-34,
46,
-6,
23,
3,
-14,
-38,
-30,
-44,
-9,
-24,
-56,
15,
12,
7,
-29,
-34,
-77,
-30,
-2,
-5,
-4,
-67,
-13,
67,
29,
6,
42,
2,
-28,
-13,
-34,
5,
14,
19,
27,
-30,
-25,
-4,
8,
25,
-17,
-45,
11,
-11,
-11,
48,
-16,
62,
-47,
43,
33,
-20,
24,
33,
19,
-25,
3,
-52,
-34,
-7,
-6,
48,
46,
-45,
0,
-21,
-11,
-61,
-47,
-23,
-43,
25,
-48,
-43,
13,
32,
-42,
-56,
-24,
-14,
-68,
-73,
-47,
-19,
-29,
-49,
-8,
-13,
33,
-30,
-21,
-43,
-33,
30,
-17,
-33,
-10,
-42,
31,
34,
23,
-26,
-41,
47,
11,
45,
-35,
-8,
50,
64,
-35,
-28,
-29,
37,
12,
-18,
-3,
-76,
-57,
27,
9,
56,
29,
72,
47,
49,
-11,
21,
-8,
49,
-34,
10,
16,
-43,
-22,
54,
-21,
-66,
5,
-9,
73,
-28,
-20,
-32,
36,
-8,
-40,
-51,
-2,
60,
35,
16,
5,
-2,
-11,
-43,
-39,
-23,
20,
-55,
-57,
19,
-74,
-1,
17,
0,
-32,
-15,
-11,
-38,
-13,
-23,
-55,
-31,
-16,
-26,
-6,
-17,
-6,
2,
18,
37,
-1,
25,
16,
33,
2,
34,
-4,
55,
0,
-24,
-61,
-8,
32,
-9,
9,
-21,
3,
10,
-29,
-21,
-36,
-11,
-16,
45,
100,
-37,
58,
75,
31,
23,
14,
13,
-6,
-12,
40,
21,
21,
-23,
25,
-22,
-51,
-8,
-4,
-26,
-36,
6,
8,
6,
-6,
36,
55,
14,
-76,
55,
-7,
16,
-51,
0,
-25,
46,
33,
13,
7,
18,
-12,
-29,
16,
13,
-57,
-48,
37,
40,
-24,
63,
-4,
-9,
-68,
-6,
-43,
-42,
35,
-3,
19,
-15,
8,
104,
26,
-18,
-33,
-16,
-2,
28,
-24,
4,
-20,
36,
31,
30,
-14,
-48,
57,
-39,
-23,
34,
43,
94,
14,
19,
35,
-23,
-6,
4,
63,
-23,
-21,
-21,
6,
3,
-38,
-37,
-42,
14,
25,
27,
18,
53,
-5,
54,
9,
-29,
33,
1,
-34,
-21,
-50,
-6,
-56,
10,
-14,
11,
19,
5,
-39,
56,
6,
17,
10,
32,
-35,
-24,
-3,
25,
60,
13,
-11,
-1,
45,
-8,
-15,
-11,
-35,
-14,
36,
-35,
16,
50,
-44,
13,
23,
-13,
-32,
-61,
31,
-14,
58,
-7,
-38,
5,
-15,
87,
-41,
42,
31,
-33,
3,
-26,
4,
-25,
-32,
-93,
-21,
54,
15,
67,
-19,
-34,
-39,
15,
25,
126,
45,
40,
-7,
16,
2,
11,
11,
-16,
-47,
16,
19,
-20,
-34,
15,
42,
-40,
-5,
54,
0,
-55,
12,
26,
-19,
-8,
-5,
21,
110,
-2,
-15,
32,
-26,
34,
7,
-20,
-33,
-33,
-22,
27,
0,
-53,
-57,
-85,
-52,
-14,
34,
-39,
25,
18,
53,
6,
23,
-56,
-24,
6,
6,
17,
-40,
45,
20,
37,
-18,
38,
20,
-11,
54,
0,
-29,
63,
-30,
3,
18,
15,
7,
-41,
57,
23,
-27,
-24,
12,
-6,
21,
25,
39,
-11,
-35,
-7,
30,
-1,
-25,
-23,
41,
-18,
33,
-27,
-37,
-47,
35,
-30,
-4,
32,
-42,
38,
24,
11,
-6,
7,
-6,
25,
-11,
-4,
-23,
32,
62,
15,
-16,
35,
69,
41,
26,
45,
3,
15,
54,
-29,
24,
-86,
27,
82,
-8,
21,
-10,
-11,
19,
46,
25,
-65,
39,
-55,
55,
18,
-11,
27,
-53,
9,
27,
83,
6,
53,
0,
18,
-21,
14,
-60,
12,
-37,
-21,
9,
7,
78,
-35,
-55,
0,
12,
67,
4,
50,
-62,
8,
51,
-9,
-37,
-27,
14,
-4,
41,
15,
-11,
-2,
-4,
-46,
13,
-62,
26,
-30,
16,
-32,
-56,
-51,
89,
-36,
-33,
-5,
-70,
-25,
-21,
9,
-14,
-11,
-10,
6,
0,
1,
29,
-29,
-36,
-9,
-4,
-20,
-12,
27,
-12,
17,
-11,
-10,
-64,
-51,
19,
-15,
-4,
17,
-118,
13,
-42,
-42,
-5,
12,
12,
-12,
21,
4,
-16,
-44,
55,
62,
-31,
-42,
-19,
-72,
-45,
18,
-57,
-61,
-27,
-41,
36,
-32,
20,
4,
-24,
1,
-48,
-2,
32,
16,
42,
40,
16,
-70,
-10,
-4,
-17,
-4,
-12,
28,
34,
31,
44,
0,
18,
23,
15,
13,
-77,
50,
21,
-58,
-29,
-38
] |
Leave to appeal denied at 497 Mich 954. | [
30,
-6,
-42,
-4,
8,
54,
20,
47,
-44,
15,
-26,
11,
7,
-49,
25,
42,
85,
36,
-25,
12,
-51,
6,
1,
39,
-42,
-73,
43,
33,
-36,
-65,
-8,
-52,
-41,
-48,
-31,
-22,
-24,
-18,
-8,
0,
-41,
-42,
-8,
12,
-25,
-62,
6,
8,
-34,
15,
-70,
22,
-79,
14,
14,
24,
55,
-39,
-2,
44,
-40,
58,
49,
41,
29,
0,
-38,
-5,
25,
-19,
-12,
29,
14,
26,
9,
20,
37,
65,
35,
75,
19,
-5,
6,
-8,
31,
27,
8,
54,
-12,
3,
8,
-54,
-44,
36,
-44,
65,
-5,
-44,
43,
-51,
-20,
33,
12,
-66,
7,
-45,
13,
64,
-39,
5,
24,
-16,
-11,
-30,
8,
-15,
-22,
3,
47,
-13,
-26,
39,
11,
34,
44,
-16,
42,
-13,
0,
-69,
26,
48,
73,
51,
-6,
-18,
61,
-98,
-33,
-55,
-28,
111,
26,
-30,
-26,
-76,
26,
-38,
12,
-40,
-5,
7,
-10,
21,
-18,
39,
5,
-28,
42,
12,
29,
39,
-64,
32,
73,
-32,
24,
52,
30,
24,
24,
4,
7,
-48,
-32,
19,
-1,
46,
-18,
2,
-39,
10,
-7,
45,
-19,
-77,
2,
-30,
32,
-68,
-27,
-43,
80,
38,
23,
30,
20,
21,
-31,
19,
-19,
49,
-38,
27,
33,
-69,
-2,
-46,
32,
33,
-36,
-13,
-17,
-8,
37,
-17,
-45,
37,
33,
-13,
40,
27,
-25,
-7,
-3,
34,
-16,
30,
26,
-7,
16,
39,
-6,
-6,
35,
-39,
7,
15,
48,
-73,
-98,
-10,
-16,
64,
1,
-21,
-76,
-12,
66,
-40,
48,
0,
26,
-92,
-44,
-39,
-37,
23,
-8,
-14,
21,
9,
26,
10,
-29,
20,
-19,
21,
28,
-75,
29,
26,
-15,
-80,
33,
1,
14,
32,
58,
11,
-26,
12,
-2,
-9,
-62,
51,
25,
-14,
-25,
5,
2,
12,
19,
61,
7,
-42,
-35,
34,
-8,
29,
23,
44,
-43,
29,
33,
-31,
-54,
-55,
89,
25,
12,
-9,
-8,
31,
12,
-45,
-16,
-79,
-25,
0,
15,
0,
-3,
65,
-21,
71,
-17,
70,
29,
19,
-7,
26,
-54,
84,
-30,
55,
-6,
-73,
-42,
32,
9,
61,
5,
31,
-17,
-15,
-107,
4,
82,
41,
14,
54,
-1,
-48,
18,
72,
-24,
-28,
-44,
51,
8,
-52,
-20,
61,
-9,
-36,
-7,
28,
-1,
46,
-69,
-8,
51,
-2,
13,
52,
-30,
-43,
-21,
-16,
-25,
-31,
-12,
10,
39,
12,
32,
18,
17,
52,
-15,
-72,
-31,
-32,
51,
-10,
19,
65,
11,
20,
-63,
-39,
-92,
78,
-28,
1,
21,
12,
-28,
81,
0,
30,
25,
19,
-59,
6,
74,
-35,
-18,
0,
-18,
-64,
-44,
10,
-48,
-13,
-45,
9,
-11,
62,
0,
-44,
26,
-49,
-22,
30,
17,
-3,
-19,
20,
-54,
-26,
12,
-88,
9,
-70,
-36,
-27,
-98,
-55,
-8,
9,
1,
-36,
-46,
-57,
-58,
61,
24,
0,
-65,
-50,
-60,
45,
-7,
-2,
-55,
35,
21,
-37,
-18,
14,
-49,
-29,
36,
-24,
-10,
-45,
-27,
-4,
16,
-14,
-6,
2,
35,
13,
-2,
-6,
-36,
-9,
-21,
84,
43,
38,
-25,
65,
20,
-5,
16,
8,
-46,
12,
-7,
12,
-1,
-36,
12,
-20,
-4,
6,
8,
-15,
-13,
33,
-48,
75,
-36,
14,
11,
-30,
-22,
5,
11,
-7,
19,
3,
-60,
-37,
7,
102,
-28,
-17,
22,
32,
4,
-70,
56,
27,
-82,
55,
38,
-33,
-32,
-5,
26,
44,
-55,
-56,
-14,
15,
28,
-26,
-72,
9,
-1,
-33,
17,
-17,
24,
-29,
-12,
-17,
24,
29,
-40,
-38,
-20,
36,
21,
68,
64,
24,
0,
0,
60,
13,
34,
15,
-10,
-9,
-18,
-3,
32,
-44,
-14,
-60,
-62,
-23,
-4,
-11,
-32,
-16,
-8,
-76,
19,
18,
-2,
3,
-10,
80,
-58,
5,
10,
15,
-12,
41,
-18,
5,
22,
5,
-25,
49,
12,
-6,
-26,
-7,
-2,
15,
15,
5,
82,
30,
-12,
-40,
-53,
-19,
9,
1,
37,
3,
-2,
61,
31,
-20,
17,
22,
-4,
4,
-14,
58,
12,
-8,
-20,
15,
-4,
-20,
1,
-62,
-9,
-12,
-39,
31,
-35,
-33,
16,
21,
-4,
-54,
35,
-7,
-23,
66,
-30,
51,
-61,
-50,
0,
31,
87,
58,
-35,
46,
9,
0,
-3,
-42,
26,
2,
-6,
55,
-35,
-5,
-12,
24,
4,
-35,
6,
19,
32,
20,
43,
60,
50,
-10,
-39,
3,
-12,
56,
-27,
6,
6,
28,
11,
-18,
-8,
62,
0,
-53,
-21,
-3,
-33,
2,
46,
-4,
94,
35,
-24,
-46,
4,
-13,
11,
-25,
-76,
-14,
20,
42,
1,
-21,
53,
37,
-13,
4,
32,
-30,
-45,
14,
23,
23,
28,
10,
-19,
-35,
11,
-52,
-6,
-1,
52,
-36,
0,
-42,
14,
-26,
-16,
75,
-39,
-21,
-25,
30,
28,
32,
8,
-54,
-65,
28,
19,
-5,
14,
17,
69,
43,
11,
-34,
7,
-23,
1,
0,
-6,
12,
42,
-22,
29,
-24,
-63,
29,
52,
15,
-78,
-29,
-28,
-37,
23,
-62,
-7,
-13,
45,
32,
21,
-39,
30,
6,
2,
14,
2,
25,
13,
-14,
-51,
30,
-12,
-28,
52,
-8,
-74,
-4,
47,
-27,
71,
77,
-14,
-4,
45,
23,
-25,
3,
4,
-31,
5,
59,
19,
29,
-9,
29,
61,
7,
-47,
-75,
2,
-55,
68,
20,
-6,
-41,
-19,
-56,
-20,
-5,
11,
-28,
5,
-49,
-43,
-41,
0,
0,
1,
41,
-20,
23,
35,
14,
48,
33,
-16,
38,
-43,
8,
38,
-53,
31,
38,
-4,
-92,
9,
18,
-28,
49,
4,
-35,
-2,
35,
0,
-49,
41,
-52,
74,
0,
-1,
20,
-12,
25,
50,
2,
-42,
16,
40,
12,
-6,
38,
-45,
-25,
8,
-63,
-27,
-35,
40,
-19,
21,
-8,
2,
12,
-64,
23,
-3,
-48,
28,
-73,
-96,
33,
-42,
-10,
16,
4,
-22,
-9,
8,
-18,
-11,
-1,
-5,
-75,
46,
-31,
-32,
-19,
-21,
-16,
10,
-89,
4,
0,
19,
61,
-60,
-28,
-1,
13,
-68,
30,
24,
15,
15,
-47,
61,
-23,
-8,
8,
-26,
-16,
-49,
-6,
1,
11,
19,
44,
-34,
-7,
-6,
12,
5,
44,
-16,
20,
21,
-16,
-57,
16,
-70,
-1,
59,
-35,
-2,
-60,
58,
-47,
-14,
-54,
-11,
20,
-17,
-25,
-6,
15,
24,
-29,
33,
1,
-56,
24,
1,
93,
107,
44,
16,
-30,
10,
17,
11,
-40,
44,
19,
31,
28,
35,
43,
2,
-33,
-5,
24,
-38,
90,
17,
-21,
-12,
-35
] |
Leave to appeal denied at 498 Mich 877. | [
3,
-1,
-52,
-17,
7,
49,
17,
36,
-46,
35,
-22,
9,
8,
-48,
30,
53,
78,
29,
-9,
-2,
-24,
-9,
-4,
54,
-34,
-67,
63,
7,
-46,
-61,
-8,
-42,
-40,
-64,
-14,
-13,
-30,
-11,
-6,
1,
-31,
-41,
-14,
27,
-30,
-71,
7,
23,
-28,
10,
-51,
42,
-78,
41,
-9,
42,
47,
-57,
-36,
61,
-32,
44,
28,
45,
29,
4,
-52,
-17,
23,
-24,
-13,
15,
7,
16,
-5,
31,
17,
73,
32,
59,
18,
14,
7,
18,
33,
47,
8,
60,
-7,
-10,
-6,
-56,
-45,
49,
-50,
63,
-14,
-45,
40,
-68,
-3,
47,
13,
-44,
6,
-30,
15,
68,
-47,
2,
32,
-23,
-26,
-31,
0,
-19,
-28,
6,
43,
-3,
-34,
38,
33,
41,
43,
-4,
32,
-22,
-5,
-49,
-10,
44,
82,
52,
-13,
-3,
53,
-98,
-23,
-60,
-22,
98,
48,
-39,
-27,
-75,
26,
-36,
18,
-44,
5,
-3,
-5,
14,
-11,
47,
12,
-28,
64,
3,
21,
36,
-63,
12,
67,
-21,
21,
32,
41,
37,
16,
2,
19,
-50,
-14,
27,
0,
41,
-28,
-3,
-47,
14,
-13,
20,
-15,
-76,
43,
-46,
-11,
-78,
-55,
-50,
86,
25,
21,
36,
23,
10,
-6,
29,
-23,
24,
-28,
25,
38,
-76,
-5,
-24,
35,
27,
-48,
4,
-26,
-24,
51,
-20,
-32,
38,
58,
0,
49,
24,
-10,
3,
-10,
45,
-23,
25,
8,
-14,
10,
39,
15,
-7,
42,
-35,
17,
18,
66,
-62,
-62,
-17,
-25,
53,
-13,
-37,
-58,
-3,
59,
-45,
52,
3,
19,
-95,
-45,
-54,
-39,
18,
-11,
-2,
30,
7,
43,
15,
-28,
32,
-24,
2,
31,
-56,
42,
39,
-8,
-54,
25,
1,
2,
26,
63,
17,
-40,
5,
3,
-4,
-61,
56,
26,
-14,
-21,
3,
4,
4,
19,
62,
13,
-32,
-34,
32,
-9,
7,
13,
52,
-42,
24,
34,
-40,
-50,
-60,
91,
18,
35,
-26,
1,
46,
8,
-64,
1,
-101,
-30,
-3,
14,
-3,
-22,
81,
-16,
67,
-15,
47,
21,
28,
0,
17,
-57,
85,
-10,
49,
-14,
-55,
-34,
27,
6,
57,
-4,
20,
-23,
4,
-104,
-16,
93,
26,
37,
54,
-33,
-54,
4,
67,
-26,
-43,
-36,
46,
19,
-65,
11,
50,
5,
-35,
1,
53,
16,
36,
-59,
-2,
36,
-2,
37,
43,
-41,
-49,
1,
-37,
-9,
-35,
-12,
34,
29,
7,
22,
22,
25,
78,
-18,
-45,
-17,
-30,
24,
-2,
16,
73,
11,
34,
-67,
-52,
-107,
59,
-25,
-22,
27,
24,
-15,
58,
10,
37,
24,
17,
-61,
7,
73,
1,
-3,
7,
-22,
-54,
-53,
8,
-47,
9,
-49,
11,
0,
62,
4,
-31,
-2,
-36,
-26,
19,
7,
-27,
-16,
26,
-54,
-29,
25,
-97,
-7,
-65,
-27,
-9,
-98,
-55,
-3,
3,
6,
-41,
-45,
-49,
-50,
68,
6,
-1,
-44,
-41,
-51,
59,
-9,
6,
-56,
44,
6,
-36,
-8,
16,
-40,
-39,
48,
-32,
-20,
-51,
-8,
-12,
16,
-33,
-23,
12,
23,
13,
9,
3,
-20,
5,
-17,
91,
45,
24,
-15,
55,
21,
1,
17,
7,
-42,
-29,
-2,
6,
14,
-42,
-2,
-26,
-15,
-4,
9,
-9,
10,
32,
-49,
72,
-32,
5,
6,
-15,
-23,
15,
29,
-10,
27,
-6,
-61,
-32,
6,
83,
-12,
8,
27,
44,
6,
-59,
38,
45,
-72,
72,
33,
-44,
-34,
3,
17,
42,
-46,
-47,
-20,
-1,
4,
-8,
-75,
-2,
-7,
-57,
-1,
-10,
26,
-20,
-15,
-12,
7,
19,
-43,
-40,
-19,
26,
12,
59,
66,
24,
16,
20,
44,
-7,
26,
-11,
-20,
6,
-18,
1,
35,
-41,
-18,
-72,
-70,
-12,
-19,
9,
-36,
-19,
-12,
-69,
12,
6,
-10,
-4,
0,
80,
-59,
14,
-8,
24,
-8,
28,
-8,
2,
34,
7,
-27,
32,
1,
-33,
-34,
4,
15,
22,
34,
-12,
83,
29,
-5,
-51,
-54,
-18,
15,
5,
48,
26,
-8,
75,
-1,
-36,
15,
33,
10,
21,
-4,
75,
17,
5,
-1,
10,
22,
-18,
26,
-83,
-9,
-16,
-25,
40,
-24,
-31,
0,
25,
-1,
-53,
42,
-19,
-19,
59,
-29,
44,
-58,
-63,
-8,
34,
95,
56,
-29,
52,
14,
-15,
10,
-22,
4,
-17,
-8,
54,
-35,
-21,
0,
32,
-10,
-40,
22,
23,
13,
31,
53,
61,
38,
0,
-38,
-11,
3,
69,
-32,
24,
-2,
10,
2,
-18,
-6,
46,
-12,
-45,
-37,
0,
-50,
1,
54,
4,
99,
22,
-33,
-36,
10,
-7,
-2,
-28,
-74,
-27,
14,
56,
11,
-15,
59,
38,
-6,
-30,
25,
-35,
-56,
13,
-10,
7,
43,
17,
-33,
-43,
-2,
-53,
9,
6,
57,
-35,
0,
-61,
1,
-19,
-17,
89,
-74,
-25,
-12,
37,
29,
35,
21,
-57,
-36,
28,
22,
-17,
-2,
8,
57,
26,
26,
-22,
17,
-37,
-2,
-15,
-29,
5,
29,
-12,
38,
3,
-68,
23,
46,
17,
-71,
-47,
-32,
-49,
21,
-71,
4,
2,
17,
21,
23,
-53,
36,
2,
1,
14,
3,
18,
28,
-27,
-55,
16,
-18,
-37,
55,
-16,
-47,
-15,
46,
-26,
52,
72,
-3,
1,
27,
45,
-21,
2,
26,
-47,
8,
40,
46,
13,
-1,
41,
82,
5,
-62,
-77,
-8,
-48,
68,
14,
-20,
-25,
-20,
-48,
-32,
-8,
19,
-16,
-10,
-48,
-43,
-48,
-5,
16,
-2,
17,
-17,
34,
35,
23,
40,
23,
0,
65,
-24,
-8,
45,
-47,
32,
15,
-5,
-86,
6,
-1,
-34,
44,
-9,
-55,
7,
33,
4,
-31,
34,
-24,
64,
-22,
12,
14,
4,
20,
42,
12,
-54,
25,
37,
29,
12,
32,
-36,
-13,
19,
-48,
-25,
-19,
22,
-18,
34,
0,
6,
-7,
-62,
5,
-27,
-46,
41,
-73,
-100,
33,
-35,
13,
1,
-9,
-24,
-11,
12,
-41,
-18,
9,
6,
-82,
43,
-43,
-26,
-26,
-2,
-37,
-4,
-87,
-10,
-9,
3,
79,
-35,
-18,
-9,
17,
-77,
20,
3,
17,
16,
-47,
49,
-26,
12,
31,
-36,
-20,
-62,
-2,
20,
11,
18,
62,
-7,
-19,
-16,
29,
-6,
32,
-16,
24,
18,
-12,
-61,
1,
-44,
-18,
48,
-13,
-19,
-42,
71,
-42,
-22,
-39,
-11,
49,
-10,
-7,
-15,
11,
17,
-23,
29,
2,
-45,
29,
3,
82,
110,
22,
36,
-19,
4,
41,
20,
-39,
43,
21,
25,
18,
39,
35,
19,
-40,
14,
20,
-36,
90,
10,
-36,
-29,
-46
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse that part of the Court of Appeals judgment that addressed the claim of appeal filed by the Attorney General, Docket No. 317434, and we remand this case to the Court of Appeals for consideration of the merits of that claim of appeal. The fact that the Attorney General stipulated to a settlement agreement that recognized a rate increase is not inconsistent with the Attorney General’s appeal from the June 28, 2013 decision of the Michigan Public Service Commission. That decision resolved issues preserved by the Attorney General in the settlement agreement. Those preserved issues can be addressed independent of the $89 million in rate relief approved pursuant to the settlement agreement. This order does not disturb the Court of Appeals disposition in the consolidated case, Docket No. 317456. We express no opinion regarding the merits of the Attorney General’s appeal. We do not retain jurisdiction. | [
-15,
-18,
-88,
22,
19,
20,
14,
7,
-14,
4,
22,
-5,
23,
-29,
-51,
-47,
-1,
-17,
21,
54,
5,
-6,
53,
54,
-55,
18,
69,
-70,
30,
-30,
-62,
13,
-79,
-24,
-1,
-27,
-18,
41,
0,
-41,
-23,
-52,
0,
-38,
-116,
7,
-18,
-7,
34,
-57,
-3,
41,
-34,
-18,
12,
23,
7,
-51,
-67,
0,
-27,
46,
-7,
4,
34,
42,
-2,
-14,
50,
12,
11,
45,
1,
-6,
-4,
69,
-9,
-10,
-20,
12,
-38,
-3,
15,
-28,
6,
29,
17,
-32,
-41,
101,
-28,
-6,
-2,
14,
51,
31,
-8,
-31,
30,
36,
-47,
3,
12,
38,
15,
-5,
30,
-21,
32,
40,
46,
-7,
-35,
-75,
-20,
30,
5,
-15,
54,
17,
-9,
5,
-13,
46,
12,
-9,
48,
-11,
-87,
-4,
-18,
43,
1,
6,
29,
22,
49,
0,
52,
4,
26,
-55,
-8,
-64,
41,
-10,
24,
-79,
-12,
-31,
13,
1,
-3,
47,
-17,
-21,
6,
9,
37,
35,
5,
28,
-22,
14,
-49,
-58,
2,
2,
29,
-12,
43,
0,
54,
-19,
-2,
10,
-57,
44,
13,
23,
-21,
18,
23,
-61,
-16,
-22,
16,
-46,
-24,
-60,
5,
-29,
38,
0,
0,
61,
23,
21,
-27,
46,
-31,
-49,
26,
47,
40,
-35,
9,
-33,
20,
-31,
8,
5,
-66,
-47,
31,
20,
64,
19,
13,
1,
63,
7,
40,
2,
-4,
-22,
2,
-6,
5,
-37,
-12,
-10,
56,
12,
-17,
69,
-32,
55,
30,
-7,
-4,
6,
-10,
-43,
-24,
-10,
-24,
-25,
10,
-33,
19,
-55,
-9,
-11,
-5,
14,
29,
39,
-67,
8,
10,
15,
-15,
6,
-19,
57,
-95,
-22,
10,
-11,
2,
51,
82,
19,
-66,
-40,
7,
3,
34,
-12,
6,
-12,
-23,
-16,
-21,
52,
0,
-21,
26,
-1,
-2,
-40,
34,
5,
15,
1,
-19,
-5,
-29,
5,
-29,
27,
0,
-26,
4,
16,
13,
34,
25,
-2,
4,
10,
6,
34,
-10,
-69,
-5,
-2,
35,
-25,
18,
30,
-16,
-10,
-3,
-40,
35,
-27,
-42,
-13,
-9,
0,
-5,
-12,
45,
45,
-7,
20,
-20,
2,
46,
61,
51,
12,
-10,
9,
1,
-27,
17,
-8,
-46,
-32,
-8,
38,
-4,
-38,
-1,
-5,
-31,
26,
39,
29,
-10,
-41,
-16,
34,
28,
10,
24,
29,
-34,
-18,
-51,
26,
-20,
15,
0,
-1,
-25,
22,
6,
55,
-3,
-2,
64,
-12,
-27,
48,
-42,
4,
-14,
-46,
-26,
29,
7,
-19,
42,
-17,
-20,
-16,
93,
-9,
8,
24,
17,
6,
21,
-21,
-8,
17,
-9,
-18,
-50,
13,
-25,
-5,
49,
28,
28,
-18,
21,
0,
-23,
-73,
48,
-11,
29,
13,
5,
66,
-14,
31,
10,
-83,
-8,
39,
-25,
-25,
-74,
-1,
59,
38,
-10,
7,
-31,
-60,
-84,
5,
-16,
0,
27,
1,
41,
-11,
-62,
10,
-12,
-23,
-15,
-33,
-23,
-61,
-57,
2,
-47,
-65,
-16,
40,
17,
-20,
-45,
35,
0,
10,
3,
2,
-11,
-11,
-7,
9,
-27,
-29,
-20,
-3,
-28,
15,
10,
41,
-4,
1,
49,
0,
-25,
-14,
24,
6,
18,
-4,
61,
-22,
9,
-48,
15,
12,
2,
-17,
-62,
-47,
42,
-5,
7,
-25,
9,
57,
-28,
-3,
14,
-46,
11,
58,
-38,
-3,
24,
-40,
40,
29,
-71,
-21,
49,
13,
-12,
-22,
18,
-52,
-25,
-25,
10,
24,
19,
50,
17,
-3,
-74,
12,
13,
37,
-6,
16,
64,
-19,
29,
-11,
-34,
-22,
-37,
38,
-30,
-11,
4,
-58,
-26,
-2,
31,
38,
-25,
12,
-23,
-18,
18,
-10,
13,
5,
54,
39,
47,
4,
26,
-64,
-2,
-8,
1,
-4,
-16,
-61,
8,
-1,
6,
2,
-5,
-12,
0,
25,
-10,
3,
-3,
21,
11,
-22,
-17,
-35,
41,
20,
-33,
19,
49,
12,
26,
43,
22,
24,
34,
-22,
-15,
-9,
-21,
-33,
32,
-7,
32,
22,
6,
27,
28,
-44,
-10,
3,
-8,
-16,
-66,
41,
27,
-9,
23,
-16,
9,
29,
20,
22,
-15,
-17,
-36,
30,
-10,
7,
8,
23,
-33,
37,
27,
31,
11,
74,
7,
-1,
46,
13,
4,
-3,
15,
-22,
6,
0,
23,
0,
-55,
-13,
8,
-9,
36,
-38,
23,
32,
12,
-23,
49,
13,
-5,
45,
18,
40,
-59,
-22,
-53,
-11,
-31,
-12,
-66,
88,
-35,
37,
13,
-10,
-20,
2,
41,
-19,
20,
30,
28,
-24,
7,
8,
18,
-22,
-53,
-9,
-22,
-58,
34,
11,
33,
15,
0,
19,
24,
9,
-9,
-29,
9,
-35,
-33,
-37,
-29,
-30,
-21,
-2,
4,
-32,
-54,
-15,
-39,
19,
57,
11,
-55,
-8,
-32,
21,
-31,
4,
0,
3,
15,
-21,
-1,
23,
63,
54,
-13,
-3,
27,
-63,
-30,
80,
-34,
-19,
-20,
-6,
3,
47,
26,
-6,
14,
17,
29,
-9,
39,
8,
35,
-13,
11,
20,
25,
34,
20,
-49,
-13,
-8,
7,
-41,
-7,
29,
4,
-22,
-34,
-22,
25,
-84,
-57,
-11,
2,
17,
-1,
11,
11,
56,
11,
-14,
30,
-19,
-53,
-30,
-26,
-60,
-3,
37,
-12,
-4,
34,
10,
17,
-66,
29,
-9,
4,
-65,
-20,
18,
-54,
-36,
23,
17,
-69,
-17,
-36,
-25,
7,
14,
11,
25,
49,
25,
-24,
-6,
-17,
21,
1,
8,
-9,
-15,
14,
-71,
-21,
0,
-20,
35,
-64,
0,
15,
-12,
-33,
-37,
-28,
-3,
51,
33,
0,
-3,
35,
-36,
35,
75,
-23,
7,
24,
-38,
-7,
21,
-5,
15,
8,
-32,
-26,
13,
15,
15,
-18,
16,
15,
-48,
-37,
-26,
37,
-60,
19,
-7,
-30,
15,
-21,
52,
37,
10,
-48,
27,
7,
-34,
-51,
29,
33,
53,
25,
-44,
-37,
-18,
28,
45,
1,
-34,
-12,
47,
-47,
42,
28,
-24,
-41,
22,
-23,
-35,
18,
24,
12,
5,
-75,
-47,
-7,
-22,
32,
4,
-51,
-19,
-9,
15,
-10,
36,
72,
-14,
36,
18,
-32,
3,
-41,
52,
-27,
-30,
-33,
30,
-7,
18,
4,
0,
-6,
-40,
20,
42,
31,
1,
-30,
-7,
-60,
-30,
-52,
2,
12,
-45,
36,
-14,
-9,
21,
-40,
24,
8,
16,
-16,
-11,
0,
-9,
32,
-48,
50,
-50,
-17,
-41,
-13,
31,
-4,
-10,
-25,
15,
-31,
9,
38,
-18,
14,
-66,
-6,
-53,
-1,
-12,
27,
-25,
45,
30,
28,
21,
-5,
17,
28,
-7,
67,
1,
20,
36,
3,
1,
0,
35,
-13,
14,
17,
4,
30,
-16,
-78,
7
] |
On October 15, 2015, the Court heard oral argument on the application for leave to appeal the July 29, 2014 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal, we vacate the Court of Appeals judgment and remand this case to that court for reconsideration. The Court of Appeals erred by applying harmless error analysis without first determining whether the trial court’s order dismissing the habitual offender notice was erroneous. See MCR 2.613(A) (stating that a judgment or order of the court may not be vacated, modified, or otherwise disturbed “unless refusal to take this action appears to the court inconsistent with substantial justice”). The prosecutor has conceded that it did not timely serve the habitual offender notice under MCL 769.13. On remand, we direct the Court of Appeals to determine whether the trial court erred by concluding that the proper remedy for the prosecutor’s statutory violation was dismissal of the habitual offender notice. See In re Forfeiture of Bail Bond, 496 Mich 320 (2014). We do not retain jurisdiction. | [
-23,
-1,
-52,
13,
-40,
12,
-18,
-22,
-16,
20,
23,
-15,
-28,
-44,
-34,
-29,
-3,
15,
-28,
17,
44,
8,
50,
4,
-19,
-24,
4,
-4,
28,
-33,
15,
4,
-20,
-42,
27,
-39,
41,
-26,
50,
11,
11,
25,
-13,
-24,
-59,
-34,
-15,
17,
15,
3,
18,
24,
-36,
23,
17,
21,
-26,
-16,
-24,
22,
2,
51,
-79,
51,
28,
55,
-16,
-3,
-53,
13,
-34,
21,
-18,
33,
-20,
29,
-36,
-25,
24,
49,
-4,
10,
15,
15,
66,
-28,
24,
-8,
23,
-10,
-25,
16,
-36,
-78,
-52,
33,
-17,
-91,
40,
-44,
0,
7,
-22,
4,
-43,
-17,
-1,
-11,
-38,
20,
34,
56,
-10,
11,
3,
18,
-37,
-8,
62,
-15,
11,
4,
44,
-4,
45,
-78,
58,
22,
14,
18,
-37,
47,
5,
-72,
-19,
21,
35,
0,
-4,
-3,
12,
14,
33,
-1,
46,
-19,
25,
-9,
-1,
16,
-8,
22,
-35,
24,
-18,
-5,
46,
-45,
-26,
-18,
0,
32,
-57,
40,
25,
-3,
-18,
13,
1,
41,
61,
26,
34,
39,
-51,
-21,
-55,
26,
18,
-8,
-55,
18,
-24,
-17,
27,
-4,
-18,
-5,
-63,
7,
11,
-1,
-9,
5,
37,
6,
17,
32,
34,
34,
-41,
8,
21,
10,
5,
-50,
40,
-24,
4,
-4,
-71,
-18,
-42,
-21,
0,
-33,
80,
-21,
23,
27,
-12,
-13,
-19,
-37,
34,
-54,
-9,
13,
9,
0,
-23,
38,
49,
7,
-17,
38,
26,
29,
44,
6,
25,
45,
7,
6,
1,
27,
9,
-3,
-17,
-23,
3,
-33,
17,
-12,
-11,
-40,
-11,
-12,
-64,
6,
30,
11,
6,
11,
-44,
32,
-3,
1,
-55,
26,
-17,
-27,
-7,
-57,
-7,
-31,
-37,
6,
48,
17,
1,
19,
6,
51,
3,
19,
7,
7,
61,
-9,
-38,
-34,
-6,
27,
23,
-37,
-19,
-5,
0,
-26,
57,
47,
11,
3,
-24,
1,
10,
47,
-40,
17,
6,
27,
-22,
36,
4,
-13,
-4,
-7,
10,
-90,
-66,
44,
-25,
-59,
-11,
-23,
9,
-10,
0,
-5,
23,
-35,
3,
56,
40,
77,
6,
-7,
-25,
30,
28,
-16,
4,
-37,
20,
8,
-13,
24,
-3,
17,
-6,
55,
38,
20,
24,
-18,
-36,
-24,
33,
63,
61,
21,
-9,
2,
55,
23,
16,
18,
26,
10,
-14,
-53,
-34,
-24,
-12,
9,
7,
0,
-16,
0,
-15,
-23,
18,
22,
31,
-79,
-36,
42,
19,
24,
-40,
20,
-4,
-18,
37,
-34,
22,
5,
4,
-32,
16,
10,
46,
29,
14,
-17,
-39,
14,
-17,
23,
12,
66,
30,
77,
2,
-28,
-32,
-7,
-4,
-70,
39,
-17,
29,
-39,
-10,
-3,
14,
23,
23,
22,
18,
33,
5,
-28,
-10,
24,
-26,
-84,
13,
31,
-63,
-24,
-26,
9,
-14,
-56,
1,
-40,
-18,
25,
14,
16,
11,
-36,
-8,
-28,
54,
5,
-18,
-47,
27,
-66,
-48,
32,
-26,
-35,
-35,
-17,
20,
-9,
19,
-20,
12,
15,
-45,
-14,
-16,
62,
-5,
18,
46,
-26,
-20,
-13,
26,
20,
20,
-21,
-23,
25,
-13,
10,
-32,
19,
-3,
0,
-16,
-51,
-13,
50,
4,
-50,
-26,
22,
42,
-11,
13,
-45,
95,
9,
-11,
0,
-8,
52,
-25,
31,
-9,
-26,
39,
12,
-15,
-52,
30,
-35,
-36,
24,
-15,
-26,
-17,
33,
6,
-1,
21,
-30,
-14,
-4,
-46,
-36,
-14,
15,
4,
-11,
3,
16,
-8,
28,
3,
-36,
29,
-24,
-17,
18,
1,
-31,
-22,
-31,
-12,
54,
2,
-23,
-17,
9,
44,
49,
-38,
24,
-32,
-36,
7,
13,
64,
1,
5,
12,
26,
35,
-27,
-22,
31,
-24,
-4,
49,
-5,
-30,
27,
1,
3,
-32,
-3,
-26,
-25,
-5,
10,
-44,
-27,
-20,
-23,
0,
19,
59,
-8,
51,
-22,
35,
5,
1,
27,
14,
-29,
10,
37,
17,
-52,
3,
-30,
-24,
35,
6,
-44,
41,
-3,
-54,
-27,
22,
-1,
-38,
2,
-13,
7,
12,
-31,
48,
52,
-51,
-10,
31,
-6,
25,
2,
-42,
1,
45,
69,
-37,
-2,
68,
-6,
-14,
-15,
-7,
-1,
63,
-3,
4,
46,
-58,
-3,
10,
43,
-23,
28,
5,
-43,
-10,
-31,
6,
-66,
37,
19,
29,
-9,
-7,
-16,
45,
4,
0,
26,
-48,
13,
22,
-77,
-51,
-7,
15,
-30,
-31,
-60,
39,
6,
29,
2,
25,
44,
37,
18,
11,
-6,
65,
38,
-23,
0,
64,
52,
9,
-41,
-7,
0,
-3,
42,
-26,
-10,
76,
-14,
27,
25,
-31,
6,
-35,
-38,
-4,
4,
-20,
22,
17,
9,
38,
-20,
4,
13,
-53,
8,
1,
28,
-19,
-53,
-32,
-1,
-3,
-12,
17,
-19,
-10,
-3,
-1,
-18,
69,
29,
-24,
2,
-7,
33,
-19,
0,
20,
-26,
8,
37,
-31,
-37,
12,
42,
14,
16,
30,
-9,
3,
13,
-16,
-7,
17,
-38,
-45,
71,
33,
6,
39,
0,
29,
9,
-28,
-56,
27,
-49,
-19,
-1,
-31,
-48,
-27,
-78,
6,
27,
-23,
-32,
21,
29,
4,
31,
-37,
7,
4,
19,
-13,
3,
49,
-24,
56,
3,
48,
35,
-39,
1,
-5,
-1,
37,
37,
1,
-20,
-4,
8,
-59,
35,
47,
-11,
-20,
-19,
14,
22,
-3,
20,
17,
-42,
-34,
21,
25,
-25,
-46,
11,
34,
34,
-8,
16,
-30,
-5,
-29,
-3,
51,
-24,
-9,
31,
2,
-4,
26,
-12,
11,
-28,
-3,
-26,
6,
-16,
-2,
-3,
49,
13,
-61,
-23,
12,
-15,
-16,
11,
-58,
-25,
-34,
7,
87,
3,
13,
6,
-26,
-13,
13,
19,
-41,
58,
-78,
15,
-55,
-63,
-30,
-9,
9,
41,
33,
7,
33,
-12,
9,
-6,
-17,
12,
-18,
37,
-43,
-6,
-44,
-10,
-10,
0,
17,
29,
-4,
-49,
38,
-6,
-1,
62,
-9,
-47,
15,
48,
-53,
-25,
47,
33,
-12,
15,
-19,
-39,
-22,
10,
2,
-13,
41,
-42,
-12,
12,
-18,
12,
-38,
-20,
-28,
-32,
-10,
-32,
31,
-13,
24,
-14,
-17,
-34,
-37,
-32,
-33,
23,
3,
-10,
32,
-2,
3,
-52,
15,
-75,
-33,
25,
12,
24,
16,
-38,
-13,
-9,
13,
-37,
-68,
72,
0,
13,
15,
-13,
-19,
0,
19,
-19,
-60,
-42,
-64,
-2,
2,
-37,
9,
-28,
-23,
24,
-65,
15,
-12,
-42,
36,
-17,
-33,
-16,
19,
14,
41,
35,
-40,
30,
-2,
11,
-19,
-58,
18,
28,
0,
43,
51,
2,
-11,
21,
-1,
-49,
24,
-32,
51,
-53,
9
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals, and we remand this case to the Wayne 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. | [
36,
-5,
-59,
-26,
-31,
24,
-28,
3,
-65,
23,
0,
-31,
20,
-56,
12,
-11,
9,
24,
0,
42,
-22,
44,
-7,
37,
-41,
-28,
12,
8,
18,
-11,
-18,
3,
13,
-43,
25,
-54,
44,
-16,
-10,
1,
-33,
-24,
-14,
0,
-46,
-34,
12,
50,
8,
-12,
-18,
44,
-36,
5,
18,
48,
-22,
0,
-65,
61,
-73,
54,
-40,
42,
36,
-6,
18,
18,
-39,
-35,
3,
-20,
9,
15,
-14,
-1,
11,
11,
35,
24,
37,
-7,
-17,
-91,
-18,
-2,
28,
-13,
-20,
-5,
-1,
-13,
-63,
-56,
-12,
0,
-5,
-65,
33,
-34,
-10,
27,
30,
53,
16,
-32,
7,
26,
-15,
45,
16,
30,
8,
-48,
-19,
4,
-29,
-9,
6,
-20,
28,
-5,
7,
31,
59,
-46,
34,
-30,
-34,
-11,
7,
32,
30,
-34,
16,
35,
16,
6,
7,
-2,
16,
31,
51,
-35,
68,
24,
27,
2,
-20,
6,
27,
0,
4,
46,
38,
3,
48,
-29,
-21,
51,
25,
46,
-52,
29,
-6,
10,
-18,
6,
-7,
-9,
15,
15,
40,
-2,
-4,
22,
-37,
5,
-15,
5,
-47,
50,
-7,
-51,
-14,
-20,
-10,
-27,
-38,
-11,
-36,
16,
15,
19,
62,
20,
-3,
27,
5,
6,
-49,
35,
-25,
57,
17,
-42,
33,
3,
12,
-12,
-64,
18,
-10,
-9,
14,
0,
30,
-7,
-20,
50,
-10,
-2,
9,
16,
-7,
3,
-39,
52,
46,
5,
38,
45,
17,
46,
-37,
40,
-15,
-5,
65,
-41,
-37,
-33,
52,
-9,
18,
36,
21,
4,
8,
-20,
43,
-6,
21,
15,
-6,
-38,
-7,
-11,
-35,
1,
33,
41,
12,
-10,
-8,
60,
17,
18,
22,
-32,
4,
-8,
6,
-53,
1,
13,
4,
17,
32,
16,
-31,
14,
13,
35,
-1,
1,
-19,
24,
37,
57,
28,
-18,
-15,
12,
4,
-12,
-11,
-9,
-37,
-10,
41,
47,
11,
10,
5,
7,
-2,
26,
-35,
-23,
0,
19,
1,
33,
5,
-10,
0,
27,
26,
-49,
-78,
20,
21,
-36,
48,
-12,
36,
-37,
-36,
-38,
-43,
12,
7,
31,
36,
32,
13,
25,
-18,
24,
-4,
-1,
11,
-11,
2,
6,
3,
-16,
22,
10,
14,
-1,
36,
7,
-22,
-31,
-49,
-32,
-7,
-2,
-4,
-25,
-36,
3,
0,
16,
22,
5,
10,
29,
5,
-17,
15,
-16,
-10,
18,
3,
-27,
3,
-12,
-45,
-30,
11,
1,
30,
-32,
-26,
12,
45,
37,
-19,
-52,
0,
-25,
-35,
22,
18,
6,
44,
-31,
-21,
-32,
0,
54,
-8,
-8,
-12,
28,
-25,
31,
-24,
56,
-13,
55,
-12,
-10,
14,
21,
3,
-53,
-1,
-40,
23,
-15,
-16,
26,
15,
-39,
0,
-2,
17,
-57,
6,
-67,
-48,
39,
-35,
-36,
13,
4,
-61,
0,
-20,
4,
6,
-49,
-6,
-31,
-23,
-1,
0,
-29,
14,
-66,
-21,
-8,
-26,
16,
29,
-34,
-3,
-25,
-39,
-1,
4,
-22,
-42,
-5,
4,
-9,
-5,
16,
-7,
31,
-10,
-12,
-17,
7,
4,
10,
34,
-19,
-46,
-35,
7,
6,
-12,
-1,
39,
-20,
-40,
27,
3,
-1,
30,
29,
18,
-27,
-12,
51,
7,
-22,
4,
-19,
36,
-12,
18,
-84,
65,
14,
1,
21,
-12,
44,
-7,
12,
15,
0,
56,
-18,
-7,
-20,
42,
-38,
-40,
27,
-94,
-8,
4,
38,
42,
-21,
32,
-40,
0,
-32,
-25,
-52,
1,
29,
7,
-14,
-21,
27,
-1,
-12,
-12,
25,
13,
-12,
-20,
-10,
-30,
20,
-5,
-36,
-37,
20,
30,
-35,
17,
-20,
31,
27,
-19,
1,
-2,
-8,
35,
51,
58,
35,
-31,
30,
-1,
24,
43,
24,
-34,
3,
20,
36,
15,
-44,
22,
-13,
-5,
8,
4,
-25,
-62,
-17,
33,
-53,
-14,
-26,
3,
-25,
43,
74,
-38,
62,
4,
9,
48,
13,
17,
1,
-7,
15,
40,
-1,
-54,
-49,
38,
-3,
4,
-14,
-37,
54,
-24,
-5,
-12,
-48,
-15,
-46,
-21,
-12,
-60,
-22,
18,
38,
21,
-21,
-27,
6,
-3,
19,
-30,
14,
-1,
26,
21,
-23,
16,
9,
-8,
-30,
-6,
6,
-18,
64,
-1,
-20,
59,
-49,
1,
-18,
27,
-14,
11,
19,
-35,
23,
10,
1,
-47,
9,
51,
-13,
11,
35,
5,
4,
15,
-18,
19,
0,
-33,
25,
-60,
-13,
-18,
-21,
2,
13,
-64,
14,
8,
11,
29,
32,
24,
-11,
9,
-15,
21,
78,
7,
3,
5,
9,
59,
-21,
1,
-22,
3,
9,
-3,
-17,
13,
31,
-8,
0,
-2,
-12,
0,
-34,
16,
-10,
33,
-58,
-16,
19,
17,
47,
-46,
-15,
27,
-15,
19,
-19,
44,
-21,
2,
-2,
-34,
29,
5,
27,
12,
-1,
-54,
19,
-24,
19,
32,
14,
-20,
-7,
5,
43,
8,
20,
-61,
62,
44,
-46,
-44,
-4,
-6,
7,
-11,
36,
-10,
-25,
45,
-18,
13,
21,
-24,
7,
30,
-5,
-17,
12,
18,
28,
-28,
-28,
0,
26,
-33,
3,
-8,
-59,
-32,
-72,
-33,
-34,
8,
-56,
-34,
31,
67,
31,
55,
-28,
11,
20,
26,
44,
16,
34,
-12,
4,
-12,
-12,
17,
-19,
75,
22,
-20,
36,
12,
-40,
15,
35,
-29,
-20,
48,
24,
-13,
-50,
19,
-14,
30,
-19,
20,
12,
-28,
21,
36,
35,
-19,
-28,
-7,
27,
25,
-11,
15,
-22,
-4,
-5,
-24,
42,
-26,
-5,
-20,
31,
-26,
-6,
-59,
12,
-23,
5,
-12,
0,
-18,
-21,
8,
49,
-14,
2,
2,
19,
-40,
-27,
1,
9,
-3,
-45,
-10,
72,
-10,
34,
15,
-25,
-41,
26,
16,
-39,
39,
-8,
8,
-34,
-40,
-5,
-30,
14,
39,
10,
-39,
-9,
-4,
19,
-31,
6,
-9,
-50,
15,
-50,
6,
5,
60,
0,
-3,
3,
8,
33,
-40,
30,
-18,
-14,
28,
-13,
-59,
-34,
12,
-63,
1,
65,
2,
-14,
-58,
-41,
30,
-43,
-1,
-2,
6,
-25,
-5,
-58,
2,
-42,
16,
-31,
0,
-43,
-25,
10,
-66,
1,
-31,
19,
-47,
12,
0,
-46,
-17,
-25,
26,
7,
-1,
-3,
2,
-19,
-20,
-49,
-42,
12,
9,
14,
4,
32,
-42,
-10,
-21,
0,
10,
-36,
44,
-32,
5,
32,
12,
-29,
30,
35,
-32,
-46,
0,
7,
-40,
-25,
-18,
-28,
-51,
-45,
51,
-4,
1,
-24,
-26,
35,
-44,
-13,
-13,
27,
27,
40,
42,
-36,
15,
-23,
15,
16,
-1,
65,
17,
17,
28,
23,
-13,
-24,
-22,
-22,
-51,
58,
-10,
3,
-51,
2
] |
Leave to appeal denied at 498 Mich 884. | [
0,
-19,
-59,
-25,
20,
56,
6,
41,
-53,
25,
-16,
5,
7,
-43,
28,
49,
79,
35,
-2,
14,
-21,
7,
11,
42,
-23,
-78,
55,
8,
-33,
-67,
-9,
-52,
-48,
-59,
-1,
-21,
-21,
1,
-1,
5,
-41,
-31,
-15,
12,
-19,
-58,
8,
39,
-22,
16,
-52,
34,
-72,
27,
-19,
42,
53,
-42,
-43,
56,
-25,
48,
35,
35,
31,
-3,
-47,
1,
27,
-17,
-23,
11,
15,
11,
-1,
27,
29,
73,
29,
55,
15,
8,
0,
20,
46,
39,
10,
62,
-17,
-9,
-10,
-42,
-43,
34,
-49,
57,
-5,
-49,
49,
-70,
2,
43,
25,
-53,
1,
-24,
10,
74,
-56,
1,
23,
-20,
-27,
-36,
16,
-9,
-17,
8,
48,
-3,
-18,
39,
28,
46,
53,
-4,
39,
-11,
0,
-51,
-4,
69,
90,
45,
-7,
-10,
66,
-87,
-47,
-59,
-38,
97,
45,
-37,
-18,
-63,
33,
-33,
22,
-49,
-3,
-4,
0,
13,
-16,
48,
19,
-18,
48,
9,
43,
40,
-73,
26,
63,
-31,
29,
32,
48,
36,
24,
-14,
20,
-37,
-28,
4,
4,
36,
-27,
3,
-41,
25,
-11,
26,
-1,
-67,
42,
-42,
-12,
-86,
-42,
-51,
83,
30,
33,
24,
12,
12,
-16,
22,
-16,
29,
-28,
29,
40,
-70,
-24,
-32,
50,
32,
-43,
9,
-26,
-10,
38,
-10,
-25,
15,
52,
6,
43,
40,
-26,
-35,
-16,
51,
-7,
22,
21,
-12,
11,
26,
0,
-6,
38,
-37,
2,
19,
49,
-53,
-71,
-24,
-22,
53,
-13,
-30,
-68,
-18,
42,
-38,
43,
-1,
9,
-99,
-51,
-34,
-17,
1,
-14,
3,
14,
-1,
42,
26,
-35,
29,
-43,
12,
28,
-56,
22,
28,
-17,
-70,
22,
9,
8,
17,
66,
-5,
-22,
5,
1,
-2,
-55,
61,
15,
-17,
-18,
21,
15,
-9,
12,
48,
4,
-31,
-39,
13,
-15,
7,
15,
52,
-37,
30,
46,
-44,
-41,
-54,
97,
0,
19,
-21,
0,
37,
9,
-57,
-1,
-74,
-28,
-23,
5,
10,
-24,
75,
-42,
65,
-24,
60,
23,
23,
13,
22,
-61,
83,
-17,
47,
-25,
-65,
-24,
31,
-5,
56,
-6,
32,
-12,
-8,
-103,
-10,
88,
32,
28,
30,
-30,
-52,
9,
83,
-24,
-42,
-55,
51,
6,
-78,
-1,
50,
-4,
-38,
8,
58,
11,
29,
-66,
-7,
39,
8,
34,
39,
-23,
-47,
0,
-45,
-22,
-37,
-22,
12,
31,
16,
30,
26,
26,
75,
-26,
-60,
-34,
-28,
33,
-13,
29,
70,
18,
27,
-77,
-47,
-91,
83,
-26,
-8,
19,
24,
-22,
53,
-2,
22,
10,
15,
-51,
2,
69,
-19,
-16,
3,
-30,
-62,
-53,
9,
-47,
-2,
-50,
2,
13,
51,
0,
-38,
18,
-48,
-21,
25,
8,
-14,
-14,
32,
-49,
-29,
24,
-99,
-11,
-71,
-9,
-8,
-97,
-43,
-6,
21,
17,
-41,
-47,
-53,
-32,
82,
16,
9,
-50,
-43,
-63,
59,
-8,
-16,
-58,
47,
19,
-35,
6,
16,
-39,
-28,
39,
-50,
-25,
-52,
-24,
-20,
5,
-25,
-4,
13,
29,
30,
3,
-9,
-31,
-4,
-19,
68,
35,
26,
-19,
51,
26,
-9,
29,
4,
-49,
-6,
-14,
4,
14,
-35,
-1,
-30,
10,
0,
14,
-12,
-15,
52,
-44,
72,
-25,
14,
5,
-33,
-30,
-4,
23,
-16,
27,
0,
-53,
-20,
0,
67,
-23,
-10,
14,
27,
3,
-62,
54,
21,
-91,
71,
36,
-42,
-31,
-22,
9,
34,
-66,
-52,
-24,
6,
12,
-23,
-81,
-6,
-8,
-54,
-5,
-6,
26,
-16,
-10,
-14,
-8,
17,
-35,
-39,
-14,
28,
14,
43,
56,
20,
5,
5,
46,
-3,
32,
0,
1,
-9,
-38,
1,
23,
-38,
-13,
-60,
-64,
-7,
-14,
-1,
-35,
-4,
-21,
-60,
33,
7,
0,
7,
-6,
98,
-49,
8,
6,
10,
1,
14,
-9,
1,
25,
4,
-23,
51,
4,
-24,
-28,
-3,
7,
16,
27,
4,
84,
40,
-4,
-35,
-33,
-3,
1,
10,
43,
28,
-8,
71,
3,
-22,
27,
35,
24,
14,
-10,
64,
12,
-10,
-22,
9,
10,
-24,
22,
-70,
-4,
-16,
-29,
40,
-25,
-32,
19,
36,
-6,
-53,
43,
-28,
-22,
63,
-3,
39,
-56,
-61,
11,
17,
87,
49,
-32,
70,
16,
0,
-9,
-17,
10,
-1,
-12,
64,
-27,
-35,
-6,
25,
-5,
-48,
16,
15,
15,
35,
51,
51,
49,
-14,
-28,
-14,
-4,
70,
-21,
8,
9,
17,
22,
-28,
-12,
51,
-16,
-54,
-25,
9,
-55,
-10,
53,
-2,
91,
26,
-37,
-46,
-2,
-7,
1,
-29,
-75,
-17,
31,
45,
23,
-20,
52,
20,
0,
-21,
24,
-44,
-38,
-1,
-5,
12,
29,
18,
-26,
-23,
11,
-48,
-4,
4,
56,
-40,
-3,
-62,
-8,
0,
-18,
80,
-54,
-13,
-14,
39,
18,
44,
20,
-51,
-43,
15,
14,
-19,
2,
8,
48,
30,
29,
-36,
28,
-34,
-1,
-17,
-19,
-1,
41,
-9,
35,
-6,
-62,
35,
48,
24,
-84,
-33,
-32,
-40,
18,
-53,
-8,
-13,
24,
18,
22,
-45,
29,
3,
-9,
0,
12,
25,
37,
-20,
-54,
21,
-10,
-24,
33,
-8,
-57,
11,
55,
-16,
53,
72,
-4,
-8,
32,
49,
-21,
-5,
0,
-44,
12,
51,
54,
27,
2,
36,
67,
15,
-57,
-75,
5,
-46,
65,
6,
0,
-27,
-16,
-50,
-34,
-21,
14,
-15,
11,
-47,
-36,
-38,
-16,
25,
9,
22,
-23,
33,
33,
24,
37,
29,
0,
47,
-26,
6,
35,
-48,
32,
28,
-18,
-89,
23,
5,
-34,
44,
-22,
-46,
-11,
36,
9,
-42,
42,
-44,
78,
2,
19,
39,
2,
28,
48,
0,
-47,
23,
27,
17,
-4,
38,
-36,
-19,
23,
-66,
-14,
-20,
23,
-15,
24,
-2,
18,
-9,
-79,
8,
-16,
-46,
34,
-79,
-106,
40,
-43,
4,
2,
-14,
-28,
-23,
8,
-35,
-6,
6,
10,
-85,
44,
-48,
-27,
-16,
-8,
-21,
-2,
-86,
-3,
-14,
5,
89,
-47,
-7,
-3,
20,
-74,
27,
16,
13,
16,
-35,
68,
-28,
10,
28,
-24,
-15,
-62,
-2,
11,
17,
19,
64,
-23,
-3,
-10,
24,
0,
37,
-4,
7,
1,
1,
-65,
12,
-48,
-7,
52,
-23,
-11,
-56,
53,
-35,
-20,
-45,
-13,
52,
-11,
-9,
-13,
7,
26,
-25,
41,
6,
-36,
44,
4,
76,
95,
26,
18,
-31,
3,
43,
19,
-44,
31,
15,
36,
26,
27,
39,
21,
-41,
23,
12,
-35,
97,
17,
-34,
-31,
-40
] |
On order of the Court, the motion to supplement application for leave to appeal is granted. On order of the Court, the application for leave to appeal the February 12, 2015 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals, and we remand this case to the Kalamazoo 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. | [
30,
1,
-56,
-5,
-37,
41,
-29,
-1,
-46,
49,
-18,
-40,
10,
-57,
16,
-3,
7,
8,
3,
41,
-25,
34,
-17,
24,
-35,
-13,
12,
14,
42,
-22,
-10,
28,
15,
-54,
36,
-62,
50,
-22,
-13,
-2,
-12,
-12,
9,
-1,
-47,
-42,
6,
42,
8,
13,
-14,
37,
-47,
6,
14,
66,
-11,
-14,
-27,
45,
-94,
66,
-46,
54,
32,
26,
30,
4,
-41,
-62,
-9,
-11,
15,
8,
-19,
15,
-12,
-4,
23,
42,
47,
-7,
-23,
-41,
-4,
10,
30,
6,
-7,
4,
-36,
4,
-64,
-68,
-40,
1,
2,
-35,
51,
-29,
-9,
18,
26,
39,
12,
-43,
1,
33,
1,
12,
3,
36,
5,
-48,
-40,
-17,
-26,
1,
-8,
0,
4,
21,
38,
48,
56,
-44,
8,
-28,
-8,
-6,
-28,
50,
15,
-19,
9,
16,
29,
-9,
-7,
-10,
18,
38,
39,
-34,
47,
23,
33,
-9,
-4,
-2,
43,
1,
-14,
73,
47,
22,
27,
-2,
-4,
48,
13,
48,
-16,
42,
19,
20,
-12,
12,
2,
-18,
11,
12,
42,
4,
-14,
58,
-26,
-5,
-5,
-12,
-34,
59,
6,
-45,
-27,
-7,
-42,
-12,
-12,
-49,
-61,
9,
-4,
26,
57,
8,
0,
20,
9,
-15,
-47,
18,
2,
52,
4,
-33,
32,
-21,
12,
-18,
-62,
24,
-23,
1,
-16,
-3,
21,
2,
-51,
36,
-7,
10,
23,
17,
-9,
15,
-6,
51,
-6,
14,
36,
50,
44,
33,
-4,
55,
-44,
-20,
76,
-66,
-18,
-5,
51,
-14,
29,
43,
32,
-4,
21,
-26,
53,
25,
12,
-1,
7,
-46,
-5,
7,
-50,
-20,
11,
26,
9,
-2,
-36,
56,
20,
6,
-7,
-28,
-4,
6,
12,
-61,
10,
12,
9,
25,
28,
2,
-31,
22,
0,
15,
-24,
-6,
-11,
22,
28,
38,
-15,
-25,
0,
10,
16,
-26,
-23,
9,
-26,
-7,
29,
46,
-17,
38,
15,
19,
5,
5,
-14,
-23,
0,
32,
-4,
11,
23,
-14,
4,
42,
30,
-22,
-68,
24,
32,
-28,
51,
13,
17,
-31,
-9,
-1,
-37,
-21,
17,
27,
43,
41,
30,
34,
-25,
31,
-1,
0,
20,
-17,
-6,
15,
12,
-24,
5,
0,
-1,
21,
12,
29,
-21,
-34,
-34,
-28,
-28,
27,
15,
-19,
-15,
3,
6,
39,
19,
14,
-25,
18,
-9,
-16,
16,
-19,
-42,
16,
3,
-8,
-11,
-4,
-56,
-20,
2,
0,
21,
-44,
-5,
31,
35,
35,
7,
-63,
-7,
-57,
-35,
41,
-3,
-17,
39,
-43,
-16,
-7,
5,
42,
-12,
-21,
-9,
33,
-15,
36,
-7,
59,
1,
51,
0,
-12,
-3,
22,
7,
-38,
28,
-50,
-1,
-4,
-14,
31,
10,
-45,
-5,
-26,
0,
-49,
5,
-69,
-47,
58,
-7,
-30,
8,
3,
-77,
16,
-56,
4,
-29,
-60,
-6,
-21,
-23,
-13,
6,
-40,
-8,
-59,
-3,
-17,
-23,
22,
23,
-29,
0,
-22,
-21,
-9,
4,
10,
-71,
6,
29,
-1,
-1,
20,
3,
52,
-32,
-1,
1,
36,
11,
-5,
17,
-20,
-67,
-39,
-3,
4,
-3,
24,
9,
-13,
-36,
35,
-2,
9,
18,
15,
-10,
-28,
-24,
65,
-19,
-14,
4,
-22,
21,
0,
40,
-63,
60,
-11,
-6,
11,
9,
2,
17,
7,
20,
-28,
43,
-23,
-15,
-8,
31,
-13,
-41,
18,
-68,
-19,
19,
61,
43,
-29,
29,
-21,
-32,
-33,
-25,
-48,
-3,
21,
17,
-18,
-3,
19,
6,
-5,
-33,
12,
33,
0,
-18,
4,
-46,
29,
-12,
-35,
-38,
50,
51,
-50,
15,
-16,
21,
28,
-62,
-4,
-22,
-6,
4,
60,
71,
39,
-22,
31,
8,
43,
44,
32,
-21,
1,
19,
43,
25,
-46,
23,
-39,
0,
9,
11,
-25,
-59,
-12,
27,
-46,
-45,
4,
0,
-14,
28,
49,
-47,
67,
-24,
26,
13,
22,
28,
11,
24,
2,
20,
10,
-13,
-17,
-8,
-12,
9,
-4,
-17,
30,
-36,
-8,
-6,
-20,
-14,
-51,
-10,
0,
-32,
-43,
22,
43,
34,
-56,
-39,
22,
-13,
14,
-14,
-8,
10,
27,
7,
-33,
-6,
-21,
-6,
-11,
-27,
31,
-19,
79,
0,
-41,
61,
-36,
-13,
35,
30,
-12,
11,
0,
-58,
19,
-19,
8,
-39,
3,
74,
0,
8,
36,
-16,
8,
-4,
-12,
16,
-27,
-23,
20,
-65,
-35,
-18,
-13,
12,
14,
-49,
23,
1,
-20,
22,
34,
32,
-11,
16,
-27,
13,
79,
46,
-30,
23,
15,
64,
-20,
8,
-29,
-11,
6,
24,
11,
3,
50,
10,
17,
19,
-17,
1,
-32,
35,
-36,
30,
-14,
-11,
17,
24,
42,
-56,
-18,
45,
2,
-10,
-6,
43,
-32,
-36,
-2,
-21,
10,
16,
42,
1,
-13,
-44,
3,
-23,
53,
23,
12,
-18,
-8,
23,
5,
18,
-4,
-59,
54,
27,
-41,
-43,
-6,
-5,
8,
-24,
34,
-4,
-34,
42,
-9,
8,
23,
-8,
-10,
41,
-10,
-14,
3,
32,
15,
-3,
-28,
17,
8,
-26,
-7,
18,
-37,
-36,
-50,
-52,
-41,
6,
-50,
-27,
38,
61,
12,
59,
-43,
-6,
19,
30,
18,
-4,
54,
-40,
51,
-7,
4,
-6,
-16,
72,
16,
-40,
46,
31,
-29,
29,
32,
-33,
-48,
59,
17,
-26,
-34,
16,
-14,
61,
-3,
26,
26,
-15,
9,
22,
27,
-21,
-31,
-15,
15,
19,
20,
3,
-48,
-1,
-22,
-25,
40,
-23,
25,
-39,
18,
-32,
19,
-42,
-4,
-22,
0,
-10,
-33,
-15,
4,
36,
53,
-10,
16,
-5,
22,
-20,
-16,
8,
-22,
-5,
-86,
-23,
44,
-4,
52,
13,
-39,
-42,
38,
-28,
-70,
64,
-21,
10,
-48,
-50,
-6,
-34,
13,
49,
32,
-16,
10,
-10,
18,
1,
-17,
-22,
-31,
14,
-32,
4,
-14,
66,
-13,
1,
6,
10,
45,
-39,
47,
-5,
-48,
30,
-16,
-68,
-29,
22,
-58,
-19,
46,
8,
-19,
-53,
-23,
-5,
-53,
-12,
-2,
37,
-13,
-21,
-64,
12,
-40,
8,
-50,
-13,
23,
-8,
0,
-55,
-25,
-33,
-4,
-27,
17,
9,
-40,
-38,
-41,
34,
-3,
20,
-16,
2,
-9,
-32,
-43,
-54,
-1,
29,
13,
0,
10,
-62,
-23,
-9,
21,
3,
-28,
42,
-35,
-5,
11,
15,
-32,
19,
35,
-7,
-58,
-8,
-37,
-60,
2,
-40,
-34,
-27,
-56,
60,
-4,
22,
-30,
-36,
43,
-69,
-13,
11,
34,
27,
20,
24,
-43,
-6,
-21,
23,
9,
-46,
82,
22,
7,
38,
17,
-22,
-16,
-27,
-21,
-48,
62,
-21,
12,
-34,
9
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals, and we remand this case to the Wayne Circuit Court to determine whether it 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. | [
35,
-4,
-58,
-24,
-32,
26,
-26,
7,
-64,
23,
-4,
-31,
15,
-56,
15,
-12,
7,
23,
-2,
42,
-23,
44,
-9,
32,
-39,
-27,
12,
10,
21,
-11,
-14,
6,
14,
-40,
24,
-51,
43,
-11,
-7,
5,
-32,
-26,
-14,
3,
-43,
-38,
7,
47,
9,
-14,
-16,
42,
-38,
5,
19,
45,
-22,
1,
-65,
61,
-72,
54,
-41,
46,
37,
-7,
16,
17,
-40,
-35,
2,
-19,
9,
16,
-13,
-4,
9,
10,
31,
24,
33,
-9,
-15,
-91,
-19,
-4,
25,
-17,
-20,
-10,
-1,
-16,
-63,
-56,
-7,
0,
-5,
-65,
30,
-36,
-10,
25,
27,
50,
14,
-32,
4,
27,
-14,
44,
15,
31,
7,
-48,
-18,
5,
-32,
-8,
9,
-18,
24,
-3,
9,
31,
62,
-47,
32,
-30,
-36,
-9,
8,
34,
30,
-34,
16,
37,
16,
11,
6,
-2,
14,
30,
53,
-32,
67,
21,
29,
1,
-21,
4,
28,
1,
5,
46,
36,
1,
51,
-32,
-19,
50,
22,
46,
-51,
27,
-4,
9,
-13,
9,
-7,
-6,
14,
15,
35,
-1,
-8,
19,
-39,
6,
-14,
3,
-43,
49,
-8,
-50,
-17,
-23,
-6,
-26,
-39,
-12,
-35,
15,
16,
18,
63,
23,
-4,
26,
4,
6,
-51,
38,
-26,
60,
18,
-44,
38,
2,
10,
-9,
-66,
14,
-13,
-12,
13,
-3,
30,
-5,
-24,
48,
-9,
1,
9,
15,
-8,
4,
-38,
49,
47,
5,
39,
44,
16,
47,
-39,
37,
-13,
-3,
65,
-45,
-37,
-31,
52,
-7,
21,
36,
18,
1,
9,
-21,
43,
-12,
22,
14,
-8,
-39,
-8,
-13,
-38,
-2,
33,
42,
9,
-14,
-10,
60,
17,
17,
20,
-32,
3,
-6,
10,
-49,
2,
14,
6,
16,
37,
18,
-30,
12,
12,
38,
-3,
1,
-15,
25,
38,
53,
26,
-18,
-17,
9,
8,
-12,
-11,
-13,
-37,
-8,
43,
44,
12,
11,
7,
4,
-1,
23,
-36,
-26,
0,
20,
1,
34,
2,
-7,
0,
28,
24,
-46,
-74,
18,
20,
-38,
46,
-11,
41,
-35,
-35,
-37,
-39,
12,
6,
30,
33,
30,
13,
21,
-20,
25,
0,
0,
10,
-12,
3,
6,
2,
-14,
23,
10,
11,
0,
34,
6,
-21,
-31,
-47,
-32,
-8,
-1,
-4,
-23,
-36,
1,
0,
14,
22,
5,
6,
30,
4,
-16,
15,
-15,
-10,
17,
0,
-25,
-1,
-13,
-43,
-28,
11,
0,
32,
-30,
-28,
12,
43,
37,
-16,
-52,
5,
-24,
-28,
23,
21,
6,
40,
-33,
-17,
-31,
1,
53,
-11,
-7,
-8,
29,
-24,
30,
-24,
55,
-10,
55,
-14,
-9,
12,
20,
0,
-54,
-4,
-40,
21,
-14,
-15,
27,
12,
-37,
-3,
-2,
15,
-55,
10,
-66,
-48,
39,
-36,
-33,
16,
5,
-61,
1,
-24,
1,
6,
-50,
-5,
-28,
-20,
-1,
0,
-28,
13,
-65,
-22,
-8,
-22,
14,
29,
-34,
-2,
-27,
-41,
0,
6,
-26,
-39,
-5,
7,
-9,
-9,
16,
-7,
29,
-9,
-11,
-15,
9,
0,
14,
31,
-16,
-47,
-35,
8,
7,
-9,
1,
36,
-27,
-38,
31,
7,
1,
28,
28,
19,
-25,
-9,
47,
7,
-22,
3,
-18,
36,
-11,
15,
-84,
62,
13,
1,
22,
-10,
42,
-10,
11,
18,
1,
56,
-15,
-8,
-24,
41,
-36,
-39,
26,
-94,
-8,
8,
43,
41,
-19,
32,
-42,
0,
-32,
-25,
-51,
2,
30,
7,
-11,
-19,
26,
-2,
-12,
-14,
27,
13,
-11,
-19,
-14,
-30,
21,
-5,
-36,
-38,
22,
31,
-34,
19,
-21,
31,
26,
-19,
1,
-1,
-11,
36,
53,
58,
35,
-33,
27,
-3,
24,
43,
23,
-32,
3,
20,
35,
15,
-44,
23,
-11,
-6,
6,
7,
-23,
-60,
-15,
33,
-55,
-16,
-25,
2,
-24,
40,
70,
-37,
63,
5,
9,
50,
15,
18,
1,
-9,
16,
40,
-1,
-55,
-49,
35,
0,
6,
-17,
-40,
52,
-24,
-7,
-12,
-46,
-13,
-44,
-23,
-12,
-57,
-21,
18,
37,
19,
-24,
-25,
7,
-6,
20,
-28,
12,
-2,
25,
20,
-23,
19,
13,
-9,
-28,
-7,
6,
-20,
64,
0,
-22,
59,
-50,
0,
-19,
29,
-11,
12,
16,
-38,
24,
7,
1,
-46,
8,
52,
-11,
13,
33,
5,
2,
17,
-20,
19,
0,
-33,
26,
-60,
-13,
-18,
-20,
3,
13,
-63,
17,
8,
12,
29,
35,
25,
-9,
8,
-15,
22,
81,
7,
3,
5,
11,
61,
-22,
0,
-22,
0,
5,
-5,
-18,
13,
29,
-8,
0,
-2,
-11,
0,
-35,
13,
-8,
32,
-59,
-12,
17,
15,
46,
-48,
-14,
26,
-15,
21,
-17,
47,
-21,
5,
-6,
-33,
27,
5,
25,
9,
0,
-55,
19,
-28,
17,
33,
13,
-21,
-6,
9,
46,
8,
19,
-65,
62,
44,
-42,
-45,
-4,
-6,
9,
-8,
33,
-9,
-25,
46,
-20,
14,
23,
-25,
4,
28,
-4,
-18,
14,
15,
29,
-27,
-29,
-1,
26,
-35,
4,
-8,
-58,
-30,
-72,
-33,
-32,
9,
-54,
-32,
32,
68,
31,
55,
-27,
12,
19,
26,
45,
16,
31,
-11,
4,
-12,
-12,
17,
-16,
76,
18,
-19,
34,
14,
-39,
13,
35,
-29,
-20,
46,
22,
-15,
-51,
18,
-14,
32,
-17,
19,
11,
-27,
20,
31,
36,
-19,
-30,
-3,
26,
25,
-11,
14,
-21,
-5,
-4,
-24,
42,
-26,
-10,
-19,
29,
-27,
-4,
-61,
11,
-24,
9,
-12,
0,
-13,
-17,
7,
50,
-15,
2,
1,
19,
-37,
-30,
0,
12,
-4,
-42,
-8,
74,
-12,
34,
15,
-26,
-41,
23,
15,
-38,
41,
-7,
5,
-29,
-39,
-4,
-30,
14,
38,
10,
-39,
-8,
-4,
19,
-35,
7,
-11,
-52,
16,
-47,
5,
5,
63,
0,
-2,
3,
7,
33,
-38,
27,
-18,
-13,
27,
-15,
-60,
-35,
14,
-63,
1,
67,
4,
-11,
-63,
-40,
28,
-43,
-2,
0,
5,
-25,
0,
-56,
2,
-39,
15,
-30,
-2,
-42,
-27,
12,
-66,
1,
-28,
20,
-47,
13,
1,
-47,
-18,
-27,
26,
9,
0,
-4,
1,
-16,
-20,
-51,
-42,
10,
9,
14,
3,
37,
-40,
-11,
-21,
0,
9,
-35,
41,
-31,
3,
34,
12,
-29,
31,
36,
-34,
-48,
1,
5,
-39,
-23,
-21,
-26,
-53,
-49,
51,
-2,
1,
-27,
-26,
34,
-44,
-11,
-13,
25,
25,
40,
43,
-34,
17,
-26,
15,
17,
0,
66,
14,
14,
29,
22,
-13,
-23,
-23,
-21,
-52,
59,
-15,
6,
-51,
2
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Macomb 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. | [
38,
-3,
-66,
-9,
-33,
18,
-24,
0,
-41,
18,
-2,
-30,
12,
-53,
23,
-7,
7,
16,
0,
26,
-35,
20,
1,
19,
-54,
-25,
25,
6,
18,
-2,
0,
21,
23,
-40,
33,
-48,
53,
-30,
0,
6,
-13,
-42,
-12,
0,
-40,
-45,
13,
40,
7,
-18,
-11,
39,
-49,
10,
24,
56,
-31,
-3,
-61,
67,
-68,
46,
-48,
34,
39,
2,
29,
7,
-28,
-32,
14,
-10,
3,
9,
-9,
0,
-1,
20,
28,
36,
27,
-16,
-10,
-80,
-1,
-13,
15,
-11,
-27,
-14,
-1,
-12,
-48,
-58,
-2,
6,
-4,
-62,
38,
-26,
-15,
34,
27,
43,
20,
-24,
6,
18,
-36,
32,
-22,
36,
11,
-48,
-21,
-7,
-42,
7,
-2,
-4,
23,
2,
25,
28,
61,
-34,
26,
-8,
-37,
-7,
7,
43,
30,
-14,
15,
39,
31,
26,
12,
9,
-3,
34,
44,
-40,
57,
22,
24,
-17,
-24,
0,
28,
-6,
-14,
47,
32,
16,
42,
-32,
-24,
65,
5,
49,
-34,
38,
3,
9,
-14,
13,
7,
4,
12,
20,
32,
10,
-3,
12,
-49,
13,
-2,
-6,
-29,
60,
0,
-49,
-25,
-16,
-34,
-25,
-22,
-11,
-34,
18,
-5,
15,
61,
22,
-10,
11,
-1,
8,
-63,
22,
-12,
65,
6,
-42,
40,
-20,
2,
-13,
-55,
1,
-28,
-12,
0,
-7,
28,
0,
-30,
35,
-11,
-1,
18,
15,
-4,
9,
-29,
54,
10,
-14,
51,
44,
22,
48,
-33,
37,
-13,
0,
74,
-42,
-41,
-27,
54,
-12,
5,
38,
9,
8,
17,
-11,
41,
-6,
28,
7,
-2,
-37,
0,
0,
-41,
-8,
17,
36,
4,
7,
-33,
65,
23,
31,
16,
-16,
4,
4,
17,
-40,
5,
15,
9,
23,
56,
32,
-21,
32,
15,
33,
-14,
-4,
-19,
27,
24,
43,
18,
-18,
-10,
-8,
12,
-20,
-11,
-15,
-39,
5,
49,
32,
17,
9,
10,
21,
17,
40,
-24,
-31,
14,
27,
5,
43,
0,
-10,
-6,
24,
30,
-38,
-77,
11,
17,
-32,
39,
0,
34,
-28,
-19,
-29,
-32,
7,
-1,
30,
52,
33,
3,
11,
-13,
18,
-12,
13,
17,
-31,
-8,
10,
-4,
-23,
9,
6,
10,
15,
30,
11,
-18,
-22,
-34,
-25,
-6,
13,
1,
-22,
-34,
17,
0,
0,
21,
-19,
-12,
26,
0,
-28,
-2,
-18,
-29,
6,
0,
-16,
-8,
6,
-32,
-28,
4,
9,
35,
-22,
-29,
17,
69,
23,
-2,
-47,
14,
-43,
-38,
35,
16,
15,
29,
-45,
-14,
-29,
-5,
44,
-17,
0,
2,
34,
-18,
30,
-23,
57,
6,
59,
-8,
-29,
-4,
11,
-7,
-42,
-3,
-53,
32,
0,
-14,
30,
-13,
-32,
1,
0,
14,
-57,
9,
-69,
-62,
43,
-28,
-32,
18,
0,
-74,
8,
-17,
3,
9,
-21,
-2,
-37,
-17,
-10,
5,
-39,
4,
-55,
-51,
-5,
-22,
29,
36,
-20,
-9,
-30,
-34,
0,
26,
-16,
-48,
-9,
9,
-12,
-9,
22,
-11,
42,
-4,
0,
-13,
20,
-12,
22,
11,
-32,
-54,
-18,
4,
4,
-15,
21,
43,
-28,
-33,
29,
-1,
34,
13,
34,
22,
-33,
-7,
39,
5,
-24,
-6,
-5,
42,
-33,
22,
-88,
62,
-10,
3,
29,
-2,
18,
-10,
10,
20,
-11,
46,
6,
-14,
-32,
44,
-39,
-37,
16,
-96,
-8,
-1,
48,
44,
-22,
49,
-28,
2,
-35,
-6,
-49,
5,
29,
19,
1,
-15,
29,
-3,
1,
-8,
18,
10,
-3,
-27,
-1,
-29,
5,
-12,
-36,
-48,
11,
36,
-43,
20,
-12,
42,
28,
-26,
-4,
-2,
-9,
51,
33,
77,
27,
-26,
35,
-14,
30,
63,
27,
-36,
16,
21,
44,
8,
-29,
18,
-14,
-1,
0,
1,
-22,
-63,
-3,
30,
-58,
-16,
-5,
-1,
-31,
48,
65,
-39,
60,
-13,
15,
33,
4,
17,
5,
-7,
14,
30,
3,
-29,
-49,
9,
0,
5,
-14,
-50,
44,
-21,
-1,
-21,
-28,
-34,
-46,
3,
-13,
-50,
-14,
6,
33,
24,
-21,
-42,
10,
-27,
10,
-19,
-23,
-5,
21,
6,
-35,
4,
0,
2,
-31,
-31,
2,
-19,
58,
3,
-18,
63,
-56,
-19,
-11,
35,
5,
16,
17,
-30,
35,
2,
1,
-40,
-2,
61,
-7,
16,
42,
-5,
3,
3,
-24,
21,
-8,
-22,
23,
-51,
-25,
-13,
-22,
17,
34,
-59,
21,
8,
13,
28,
27,
33,
-6,
24,
-24,
23,
73,
7,
9,
4,
24,
66,
-16,
-12,
-6,
-6,
-10,
-10,
10,
-1,
53,
0,
1,
9,
-14,
-11,
-24,
16,
-7,
27,
-57,
1,
20,
23,
50,
-39,
-12,
34,
-17,
12,
-19,
52,
-22,
-4,
-16,
-16,
19,
10,
38,
0,
-5,
-53,
-5,
-24,
24,
22,
1,
-13,
5,
5,
34,
16,
13,
-64,
64,
33,
-35,
-43,
-9,
-7,
6,
-1,
28,
-13,
-33,
56,
-17,
22,
26,
-26,
-14,
25,
-5,
-29,
11,
9,
25,
-23,
-33,
-2,
21,
-41,
2,
-1,
-58,
-38,
-70,
-32,
-34,
1,
-30,
-45,
56,
59,
33,
45,
-23,
13,
15,
32,
48,
4,
38,
-28,
-1,
-18,
-21,
19,
-18,
73,
6,
-34,
24,
26,
-39,
3,
25,
-13,
-23,
47,
22,
-20,
-48,
5,
-17,
49,
-15,
20,
-5,
-11,
35,
32,
39,
-39,
-22,
-6,
27,
21,
8,
19,
-32,
6,
2,
-25,
43,
-22,
-8,
-17,
22,
-25,
8,
-59,
2,
-31,
-4,
-8,
-8,
-11,
-24,
0,
62,
-12,
2,
-3,
42,
-40,
-32,
1,
13,
-3,
-42,
-11,
54,
-22,
26,
4,
-21,
-56,
38,
8,
-60,
44,
-15,
8,
-29,
-47,
-5,
-18,
15,
35,
10,
-32,
-18,
-16,
12,
-28,
4,
-21,
-29,
21,
-39,
8,
-7,
60,
-11,
-2,
0,
12,
55,
-31,
29,
0,
-18,
27,
-14,
-75,
-24,
3,
-70,
-14,
65,
20,
-4,
-56,
-27,
16,
-53,
-16,
-2,
10,
-31,
5,
-44,
6,
-22,
21,
-44,
0,
-28,
-27,
13,
-67,
7,
-19,
15,
-48,
-4,
18,
-53,
-25,
-21,
36,
11,
-4,
-21,
1,
-8,
-26,
-41,
-45,
15,
14,
18,
20,
49,
-42,
-12,
-2,
-6,
10,
-27,
34,
-40,
20,
9,
18,
-38,
20,
33,
-26,
-51,
-8,
-16,
-53,
-33,
-30,
-36,
-62,
-35,
48,
-18,
23,
-29,
-31,
16,
-31,
-18,
1,
3,
34,
50,
28,
-32,
13,
-45,
24,
39,
-4,
50,
16,
21,
40,
13,
-20,
-23,
-37,
-24,
-56,
71,
-27,
0,
-44,
-6
] |
Leave to appeal denied at 497 Mich 952. | [
26,
1,
-31,
-14,
0,
51,
21,
56,
-39,
27,
-31,
6,
2,
-50,
33,
53,
87,
36,
-16,
4,
-52,
6,
-2,
44,
-42,
-72,
41,
31,
-39,
-63,
-4,
-49,
-45,
-53,
-32,
-26,
-31,
-17,
-5,
-5,
-36,
-30,
-4,
10,
-15,
-66,
18,
6,
-41,
9,
-54,
20,
-74,
10,
15,
27,
44,
-40,
5,
46,
-45,
54,
43,
38,
23,
-10,
-29,
-5,
18,
-19,
-13,
25,
10,
31,
-2,
23,
25,
66,
34,
80,
25,
3,
11,
-2,
23,
32,
12,
51,
-4,
10,
9,
-51,
-47,
51,
-39,
65,
-1,
-41,
44,
-40,
-12,
37,
16,
-56,
-6,
-44,
20,
58,
-42,
0,
25,
-18,
-7,
-34,
4,
-11,
-22,
9,
44,
-19,
-22,
43,
7,
47,
47,
-1,
43,
-15,
2,
-65,
21,
50,
71,
44,
-6,
-11,
54,
-96,
-33,
-56,
-29,
112,
32,
-29,
-28,
-75,
33,
-34,
16,
-41,
4,
10,
-6,
21,
-25,
41,
25,
-29,
45,
11,
33,
42,
-58,
29,
70,
-26,
26,
43,
32,
27,
12,
8,
13,
-53,
-54,
16,
0,
40,
-19,
11,
-38,
2,
-6,
46,
-20,
-65,
9,
-32,
31,
-70,
-35,
-48,
84,
35,
21,
33,
26,
23,
-20,
15,
-22,
50,
-43,
26,
38,
-75,
5,
-42,
19,
32,
-38,
-21,
-14,
-3,
43,
-33,
-54,
37,
35,
-19,
40,
7,
-10,
-2,
-4,
34,
-18,
44,
34,
-14,
10,
53,
-13,
-1,
31,
-58,
19,
18,
45,
-71,
-98,
-6,
-7,
72,
0,
-40,
-88,
-32,
69,
-44,
43,
6,
31,
-87,
-52,
-43,
-40,
21,
-11,
-20,
24,
14,
13,
2,
-24,
26,
-37,
26,
28,
-73,
27,
32,
-8,
-96,
33,
3,
16,
38,
61,
16,
-26,
11,
2,
-13,
-64,
53,
24,
-10,
-32,
5,
0,
2,
22,
64,
1,
-49,
-14,
30,
-7,
33,
18,
44,
-44,
28,
35,
-27,
-56,
-62,
93,
22,
17,
-20,
-8,
28,
7,
-42,
-4,
-84,
-28,
3,
8,
-2,
-12,
65,
-22,
67,
-18,
70,
20,
21,
-6,
33,
-46,
89,
-25,
52,
1,
-66,
-51,
36,
0,
53,
5,
23,
-22,
-19,
-106,
-1,
85,
45,
18,
62,
-14,
-49,
13,
86,
-29,
-34,
-40,
47,
6,
-48,
-5,
54,
-7,
-28,
-6,
33,
-11,
29,
-71,
-1,
52,
1,
19,
41,
-35,
-40,
-26,
-20,
-21,
-30,
-13,
17,
33,
15,
15,
22,
18,
54,
-16,
-76,
-23,
-28,
59,
-2,
22,
59,
15,
23,
-60,
-42,
-95,
83,
-26,
-8,
22,
12,
-27,
68,
-2,
32,
31,
24,
-63,
-2,
78,
-29,
-14,
1,
-19,
-63,
-46,
21,
-38,
-14,
-40,
9,
-8,
60,
4,
-42,
11,
-39,
-23,
32,
9,
-9,
-20,
21,
-59,
-26,
18,
-81,
-1,
-62,
-41,
-28,
-102,
-50,
0,
10,
-3,
-32,
-51,
-58,
-59,
59,
21,
-8,
-40,
-45,
-55,
46,
-6,
5,
-56,
39,
14,
-50,
-15,
6,
-48,
-34,
42,
-13,
-14,
-36,
-16,
0,
21,
-22,
-4,
4,
23,
14,
4,
-3,
-38,
0,
-26,
78,
37,
24,
-25,
62,
20,
-15,
18,
1,
-36,
10,
7,
13,
2,
-36,
7,
-21,
-9,
2,
1,
-8,
-16,
35,
-45,
59,
-43,
4,
10,
-29,
-11,
-4,
16,
-11,
24,
13,
-53,
-30,
4,
107,
-29,
-25,
35,
32,
0,
-67,
45,
21,
-91,
56,
41,
-32,
-28,
-7,
28,
42,
-46,
-51,
-8,
11,
32,
-20,
-83,
-5,
5,
-45,
22,
-16,
26,
-18,
-14,
-24,
31,
28,
-36,
-32,
-22,
27,
21,
75,
76,
32,
-2,
0,
54,
15,
40,
0,
-14,
16,
-12,
-3,
36,
-43,
-16,
-57,
-53,
-26,
-5,
-8,
-36,
-13,
-10,
-78,
8,
24,
-16,
0,
-4,
84,
-53,
0,
-9,
14,
-21,
40,
-12,
-3,
26,
7,
-34,
53,
17,
-4,
-30,
7,
-6,
14,
11,
4,
71,
34,
-7,
-35,
-56,
-6,
16,
0,
36,
7,
13,
54,
26,
-31,
20,
23,
4,
0,
-8,
52,
17,
5,
-23,
12,
-10,
-20,
7,
-63,
-8,
-21,
-35,
35,
-21,
-27,
16,
25,
-2,
-54,
28,
-4,
-16,
50,
-31,
60,
-56,
-49,
-3,
29,
94,
57,
-43,
42,
2,
1,
-1,
-52,
27,
-3,
-1,
43,
-41,
-16,
-18,
11,
9,
-29,
16,
21,
22,
27,
43,
53,
45,
-1,
-37,
7,
-22,
58,
-32,
6,
10,
23,
-3,
-9,
-3,
61,
5,
-47,
-25,
-7,
-32,
4,
42,
8,
91,
35,
-19,
-38,
11,
-7,
13,
-20,
-78,
-21,
24,
44,
-1,
-13,
57,
37,
-17,
6,
19,
-30,
-32,
10,
21,
22,
25,
11,
-25,
-28,
1,
-55,
-7,
-4,
58,
-34,
8,
-46,
12,
-31,
-9,
76,
-37,
-22,
-24,
24,
22,
26,
17,
-51,
-55,
28,
15,
-4,
14,
10,
76,
39,
16,
-43,
1,
-20,
3,
3,
-11,
20,
33,
-25,
17,
-30,
-56,
21,
51,
12,
-70,
-42,
-17,
-57,
15,
-77,
-13,
-13,
39,
28,
22,
-39,
34,
9,
8,
10,
2,
30,
11,
-19,
-50,
31,
-7,
-34,
50,
-9,
-63,
2,
39,
-28,
65,
73,
-8,
2,
43,
11,
-37,
12,
12,
-26,
6,
61,
33,
24,
-11,
38,
65,
0,
-52,
-77,
-5,
-50,
72,
21,
-14,
-34,
-24,
-49,
-20,
-12,
12,
-25,
2,
-38,
-41,
-38,
1,
2,
-7,
26,
-12,
30,
33,
16,
57,
42,
-8,
45,
-34,
0,
40,
-52,
24,
35,
3,
-91,
11,
21,
-31,
39,
12,
-54,
-3,
34,
-8,
-50,
48,
-53,
73,
-7,
-7,
23,
-5,
28,
49,
-4,
-51,
18,
30,
20,
2,
35,
-41,
-26,
16,
-49,
-31,
-32,
43,
-16,
21,
-13,
-2,
27,
-58,
17,
-14,
-51,
32,
-68,
-96,
28,
-38,
-16,
11,
5,
-26,
-7,
9,
-11,
-21,
-4,
1,
-77,
42,
-21,
-20,
-27,
-12,
-23,
9,
-93,
4,
-11,
16,
57,
-60,
-30,
-15,
8,
-58,
30,
13,
19,
18,
-59,
41,
-21,
-14,
12,
-31,
-9,
-58,
0,
19,
7,
26,
54,
-26,
-3,
-5,
22,
8,
43,
-22,
24,
22,
-7,
-56,
24,
-73,
-14,
50,
-35,
-5,
-51,
55,
-41,
-6,
-50,
-18,
29,
-33,
-25,
-3,
11,
15,
-27,
30,
2,
-45,
12,
5,
95,
94,
51,
16,
-37,
3,
27,
17,
-44,
44,
21,
24,
34,
37,
39,
16,
-35,
-4,
14,
-39,
85,
17,
-19,
-28,
-41
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate that part of the judgment of the Court of Appeals that vacated the defendant’s sentences and remanded for resentencing, and we remand this case to the Court of Appeals for reconsideration in light of Lockridge. 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. | [
11,
-35,
-103,
-5,
-18,
13,
-17,
29,
-67,
20,
9,
-16,
38,
-69,
-60,
-15,
25,
25,
-8,
34,
-8,
18,
18,
4,
-19,
-66,
16,
-9,
4,
-4,
30,
-8,
-6,
-38,
11,
-16,
36,
19,
0,
-14,
-22,
-20,
-2,
1,
-32,
-40,
-14,
28,
2,
14,
23,
39,
-30,
10,
38,
49,
10,
-12,
-48,
21,
-6,
67,
-55,
59,
38,
24,
-11,
-11,
-20,
-42,
-15,
-37,
-1,
6,
-9,
-4,
6,
23,
54,
33,
49,
2,
17,
-61,
32,
4,
37,
19,
-37,
7,
-5,
-11,
-19,
-22,
-36,
26,
-26,
-58,
72,
-35,
-17,
7,
-27,
6,
26,
-68,
-14,
10,
17,
14,
2,
45,
-6,
-32,
-43,
-1,
-47,
-38,
32,
-33,
-1,
26,
-5,
18,
82,
-59,
24,
-10,
-37,
10,
-22,
10,
6,
-26,
25,
-4,
39,
6,
-8,
-47,
-3,
36,
85,
-23,
50,
39,
26,
-27,
-31,
4,
41,
-24,
-24,
73,
3,
24,
59,
-16,
-12,
10,
-9,
61,
-26,
14,
35,
-2,
13,
16,
9,
21,
58,
39,
27,
21,
-57,
-10,
-67,
44,
-27,
11,
-49,
29,
13,
-31,
11,
-18,
-28,
21,
-56,
-19,
-44,
7,
23,
-3,
61,
25,
-4,
6,
22,
27,
-93,
51,
-25,
39,
24,
-31,
33,
13,
4,
5,
-38,
28,
-30,
-54,
19,
-9,
43,
-3,
-17,
15,
21,
28,
-23,
-12,
-46,
13,
-32,
54,
0,
-16,
-9,
70,
17,
57,
-29,
39,
11,
36,
57,
-40,
-44,
8,
26,
-17,
10,
0,
3,
22,
0,
-34,
42,
13,
15,
14,
-10,
-14,
-7,
7,
-55,
-19,
45,
23,
1,
-24,
-39,
44,
-12,
26,
33,
-18,
43,
-6,
11,
-59,
10,
11,
14,
4,
48,
26,
-3,
7,
-3,
43,
-29,
-20,
14,
10,
52,
4,
-17,
-6,
21,
10,
39,
-25,
-36,
11,
-27,
-38,
51,
-7,
4,
-15,
41,
-18,
2,
29,
-9,
-47,
12,
10,
1,
28,
12,
3,
-3,
16,
-6,
-70,
-65,
8,
15,
-76,
31,
-18,
38,
-41,
3,
-1,
-21,
12,
-37,
22,
21,
44,
-4,
18,
-11,
40,
-10,
2,
-38,
-13,
-19,
-16,
-38,
0,
35,
43,
1,
21,
18,
8,
9,
-4,
-26,
-43,
-4,
4,
-8,
-44,
-37,
-18,
38,
8,
21,
14,
-2,
-2,
10,
-32,
13,
-24,
-4,
40,
-3,
-12,
-18,
-14,
-42,
-33,
3,
-4,
26,
-30,
-45,
40,
47,
34,
0,
-25,
17,
-36,
6,
23,
44,
16,
46,
0,
-23,
-7,
-22,
56,
-47,
-11,
1,
-11,
-30,
27,
-7,
67,
54,
78,
-7,
-35,
-16,
15,
3,
-25,
-27,
-36,
18,
24,
-17,
32,
15,
-50,
12,
7,
-10,
-45,
-14,
-75,
-63,
30,
-8,
-18,
24,
33,
-65,
-28,
31,
-2,
-11,
-42,
-10,
-12,
-24,
16,
-12,
0,
19,
-41,
-29,
-54,
-5,
-8,
39,
-25,
11,
-25,
-25,
53,
24,
-35,
-40,
-8,
-3,
1,
-11,
32,
1,
20,
-11,
0,
10,
36,
7,
30,
26,
-20,
-26,
29,
13,
43,
-1,
26,
51,
-14,
-42,
47,
16,
8,
-11,
37,
47,
-26,
1,
41,
-4,
-33,
-31,
-12,
62,
-38,
-11,
-74,
61,
23,
-10,
33,
1,
-3,
-28,
9,
17,
1,
7,
-9,
-15,
-37,
26,
-61,
-31,
23,
-103,
1,
29,
30,
12,
-34,
32,
-3,
0,
-59,
-11,
-41,
9,
31,
-11,
-13,
-3,
46,
2,
0,
10,
30,
-5,
11,
0,
0,
-16,
26,
-25,
-58,
-38,
-10,
22,
-21,
17,
-31,
-1,
13,
-20,
11,
12,
-20,
-3,
58,
111,
20,
-13,
21,
31,
7,
30,
26,
-2,
-10,
9,
28,
8,
-44,
11,
-4,
-20,
-36,
-22,
-16,
-69,
-3,
-9,
-52,
4,
10,
0,
-25,
-2,
86,
-63,
40,
-1,
9,
23,
30,
23,
24,
-5,
11,
26,
-20,
-26,
-58,
-26,
-1,
33,
3,
-42,
29,
-12,
-35,
-23,
-52,
-39,
-40,
18,
-10,
-2,
-12,
13,
54,
36,
-6,
-13,
18,
-20,
11,
-17,
-18,
44,
6,
-13,
-18,
12,
34,
40,
-54,
-29,
-8,
-1,
60,
3,
4,
55,
-28,
-22,
-18,
40,
-16,
11,
7,
-15,
25,
-12,
1,
-77,
28,
27,
-3,
14,
35,
-8,
21,
17,
-19,
29,
6,
-47,
32,
-35,
-56,
-17,
-33,
15,
25,
-45,
15,
-1,
26,
37,
65,
51,
10,
19,
-38,
16,
41,
13,
-6,
-13,
15,
63,
27,
4,
-20,
-29,
-19,
-16,
7,
-20,
54,
-15,
4,
3,
-41,
-11,
-31,
-8,
10,
46,
-77,
0,
-6,
18,
67,
-11,
6,
52,
-77,
8,
-16,
42,
-33,
-22,
-32,
-12,
-2,
38,
4,
0,
-5,
-24,
18,
-1,
60,
40,
-10,
-14,
-35,
14,
13,
-38,
25,
-45,
10,
18,
-36,
-55,
2,
26,
5,
12,
0,
-9,
-15,
50,
-39,
18,
40,
-4,
-17,
46,
-24,
-28,
19,
0,
39,
-26,
-26,
-34,
-11,
-43,
29,
-5,
-52,
-54,
-69,
-41,
-27,
50,
-18,
-37,
24,
67,
8,
16,
-21,
-14,
0,
10,
39,
0,
50,
4,
-4,
8,
20,
20,
-17,
47,
-9,
-5,
34,
14,
-29,
9,
21,
-14,
-41,
41,
14,
-33,
-6,
-12,
-6,
22,
-6,
26,
1,
-31,
-14,
41,
56,
-10,
-44,
-1,
23,
41,
-22,
5,
-26,
27,
-28,
-17,
19,
-43,
-6,
3,
35,
0,
-23,
-46,
24,
-37,
-9,
-16,
-8,
26,
16,
5,
66,
15,
-29,
7,
25,
2,
-16,
17,
5,
11,
-53,
43,
93,
-14,
-11,
23,
-31,
-28,
10,
-1,
-44,
21,
-28,
30,
-12,
-42,
4,
-26,
22,
30,
-3,
-30,
11,
22,
46,
-20,
31,
-54,
17,
9,
-56,
15,
-14,
54,
-42,
-16,
0,
37,
31,
-23,
25,
-31,
-18,
91,
-5,
-64,
-17,
21,
-68,
4,
28,
-8,
-19,
-21,
-30,
24,
-40,
11,
-16,
39,
-19,
9,
-56,
31,
-16,
-1,
3,
-45,
-21,
-17,
-1,
-49,
-1,
-21,
38,
-46,
14,
2,
-46,
-17,
-48,
13,
10,
-2,
36,
-12,
-32,
-16,
-43,
-53,
-28,
-13,
11,
-2,
72,
-59,
33,
-52,
-14,
36,
-18,
39,
-19,
20,
33,
-17,
-38,
12,
30,
-20,
-40,
-51,
-22,
-47,
18,
-36,
-20,
-59,
-48,
51,
-30,
23,
-24,
-38,
33,
-55,
-10,
16,
0,
19,
21,
3,
-58,
30,
-3,
-6,
35,
27,
33,
18,
5,
46,
34,
-10,
-21,
-28,
4,
-53,
79,
-20,
-32,
-42,
-30
] |
PER CURIAM.
We granted leave to appeal in this case to consider the scope of the immunity provision of the firefighter’s rule for governmental entities and employees, MCL 600.2966. During an attempted apprehension of an armed-robbery suspect, the defendant, Jake Liss, a police officer, shot the plaintiff Michael Lego, also a police officer. Lego and his spouse, Pamela Lego, filed suit against the defendant, asserting gross negligence. The trial court denied the defendant’s motion for summary disposition based on MCL 600.2966 and the Court of Appeals affirmed in a divided opinion. We granted leave to appeal. 497 Mich 926 (2014). We reverse in part the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for entry of an order granting summary disposition to the defendant.
Specifically, we disagree with the Court of Appeals majority that the applicability of MCL 600.2966 could not be decided at this time as a matter of law under the facts presented in this case. MCL 600.2966 provides in part as follows:
The state, a political subdivision of this state, or a governmental agency, governmental officer or employee, volunteer acting on behalf of a government, and member of a governmentally created board, council, commission, or task force are immune from tort liability for an injury to a firefighter or police officer that arises from the normal, inherent, and foreseeable risks of the firefighter’s or police officer’s profession. [Emphasis added.]
The majority erred by affirming the denial of summary disposition to the defendant on the basis that the plaintiffs’ allegations, if true, would demonstrate that the defendant acted in disregard of his police training and violated numerous safety procedures. The majority essentially determined that the defendant might not be entitled to immunity if his actions were especially egregious; in other words, if the defendant were grossly negligent, he would not be entitled to immunity because the injury resulting from his actions would not “arise]] from the normal, inherent, and foreseeable risks of [Michael Lego’s] profession” as required under MCL 600.2966. This interpretation of the language “normal, inherent, and foreseeable risks,” however, contravenes MCL 600.2966, especially when it is read in conjunction with the general firefighter’s rule, MCL 600.2967. That rule provides that a firefighter or police officer may sue for damages for injuries arising out of a normal, inherent, and foreseeable risk of his or her profession if the injuring party acted with (among other mental states) gross negligence. MCL 600.2967(l)(a)(i). But MCL 600.2966 exempts governmental entities and employees from that general rule by immunizing them from all tort liability “for an injury to a firefighter or police officer that arises from the normal, inherent, and foreseeable risks of the firefighter’s or police officer’s profession.” To hinge the applicability of this immunity provision on the degree of recklessness with which the defendant acted would undermine the statutory language by potentially denying immunity to a governmental defendant on the very basis for which the statute is intended to provide such immunity. Rather, when determining the applicability of the immunity provision of MCL 600.2966, the inquiry must be whether the injury arose from the normal, inherent, and foreseeable risks of the police officer’s or firefighter’s profession.
The undisputed facts here are that Michael Lego was shot by the defendant as both were attempting to apprehend an armed robbery suspect. As the Court of Appeals partial dissent correctly concluded, “being shot by a fellow police officer while engaging an active shooter is one of ‘the normal, inherent, and foreseeable risks of... [a] police officer’s profession’ within the meaning of MCL 600.2966.” This is true irrespective of whether the defendant was acting consistently with his training and departmental safety procedures or whether the defendant was grossly negligent while attempting to apprehend the suspect in this case. Thus, no question of material fact remains unresolved.
Accordingly, the defendant is entitled to immunity as a matter of law. We reverse in part the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for entry of an order granting summary disposition to the defendant.
Young, C.J., and Markman, Zahra, McCormack, Viviano, Bernstein, and Larsen, JJ., concurred.
Lego v Liss, unpublished opinion per curiam of the Court of Appeals, issued March 27, 2014 (Docket Nos. 312392 and 312406). The Court of Appeals also affirmed the trial court’s denial of summary disposition to defendant based on the worker’s compensation exclusive remedy provision, MCL 418.131(1), and defendant has not appealed that ruling.
MCL 600.2967(1) provides in pertinent part:
Except as provided in [MCL 600.2966], a firefighter or police officer who seeks to recover damages for injury or death arising from the normal, inherent, and foreseeable risks of his or her profession while acting in his or her official capacity must prove that 1 or more of the following circumstances are present:
(a) An injury or resulting death that is a basis for the cause of action was caused by a person’s conduct and that conduct is 1 or more of the following:
(¿) Grossly negligent.
(if) Wanton.
Mi) Willful.
(iv) Intentional.
(v) Conduct that results in a conviction, guilty plea, or plea of no contest to a crime under state or federal law, or a local criminal ordinance that substantially corresponds to a crime under state law.
This conclusion does not mean, as the Court of Appeals majority suggested, that being shot by another officer is “always, as a matter of law, a normal, inherent, and foreseeable risk of being a police officer.” Lego, unpub op at 2. It simply means that the fact that there is a question whether the defendant acted with gross negligence cannot alone transform a normal, inherent, and foreseeable risk of a police officer’s profession into one that is not normal, inherent, and foreseeable.
To the extent that the Court of Appeals majority opinion relied on the federal district court decision in Rought v Porter, 965 F Supp 989, 994 (WD Mich, 1996), we agree with Court of Appeals Judge JANSEN in her partial dissent that it is not binding. Lego, unpub op at 2 (Jansen, P.J., concurring in part and dissenting in part). See siso Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004) (stating that lower federal court decisions are not binding on state courts). Further, while the phrase “normal, inherent, and foreseeable risks” can be traced to our interpretations of the common-law firefighter’s rule, see e.g., Kreski v Modern Wholesale Electric Supply Co, 429 Mich 347, 351, 372; 415 NW2d 178 (1987), we are not bound by those interpretations because the common-law rule has been abolished, MCL 600.2965, and the phrase has not clearly acquired a “peculiar and appropriate meaning in the law,” MCL 8.3a. | [
0,
-24,
-66,
35,
-1,
18,
-43,
-16,
2,
50,
-15,
24,
37,
-23,
6,
-29,
1,
74,
15,
-20,
47,
-15,
-23,
3,
-56,
-27,
28,
23,
26,
46,
14,
-39,
15,
-76,
-10,
7,
45,
50,
-21,
18,
23,
-7,
8,
-33,
-19,
-36,
6,
17,
-1,
0,
1,
36,
13,
21,
-20,
39,
22,
-16,
-41,
4,
-24,
6,
-47,
5,
38,
25,
-35,
30,
-34,
-37,
-9,
66,
-56,
-35,
-26,
2,
-34,
-2,
-3,
-16,
-45,
41,
16,
-49,
61,
8,
-19,
-10,
-56,
-23,
-23,
1,
-20,
-7,
-17,
4,
38,
-15,
5,
-2,
-7,
5,
-6,
21,
0,
-20,
-16,
13,
33,
1,
8,
18,
-7,
-21,
35,
-47,
10,
29,
33,
96,
13,
-5,
70,
-28,
56,
-23,
65,
4,
12,
41,
26,
60,
84,
12,
-4,
-21,
60,
26,
47,
20,
-48,
-24,
1,
-28,
-8,
1,
-17,
-12,
21,
-37,
-4,
-24,
2,
8,
-47,
16,
31,
-8,
-14,
13,
-11,
-45,
-2,
6,
14,
-51,
-69,
-8,
-46,
7,
63,
-3,
5,
2,
28,
8,
-25,
0,
-26,
-2,
13,
11,
25,
15,
-42,
-29,
-25,
-31,
-34,
5,
-8,
-59,
-7,
-24,
14,
44,
28,
40,
-28,
-56,
44,
-43,
15,
-54,
9,
-36,
61,
-13,
45,
-15,
-28,
-18,
42,
-14,
22,
-30,
7,
-19,
-51,
-69,
-34,
-15,
-4,
0,
2,
-63,
-47,
3,
12,
11,
41,
-20,
-21,
-1,
-22,
-24,
21,
-23,
95,
-41,
32,
3,
-2,
-14,
30,
-15,
-5,
-33,
6,
4,
-20,
-63,
34,
-16,
-42,
-12,
-32,
-12,
5,
60,
-9,
21,
-17,
28,
-5,
88,
-36,
39,
-36,
28,
-55,
-4,
18,
11,
7,
-41,
-13,
74,
27,
-13,
0,
29,
-52,
-3,
-51,
-19,
-14,
-49,
31,
-30,
42,
-13,
-32,
21,
37,
9,
10,
-23,
7,
16,
39,
44,
43,
-35,
1,
-6,
40,
-17,
9,
-6,
26,
22,
18,
10,
8,
-14,
-35,
-7,
-19,
-67,
-5,
5,
-51,
-52,
-60,
-35,
-14,
20,
-39,
18,
0,
37,
-10,
46,
-40,
44,
28,
3,
48,
-14,
-46,
-5,
57,
20,
14,
48,
2,
39,
7,
-23,
18,
-4,
9,
-36,
-3,
6,
6,
-4,
14,
26,
27,
-22,
-45,
64,
-3,
6,
12,
11,
-38,
-3,
-30,
-62,
24,
17,
-4,
39,
-25,
31,
-49,
27,
-11,
16,
64,
-27,
28,
-29,
15,
21,
-9,
21,
-58,
-74,
-11,
-18,
-28,
-9,
-24,
-1,
55,
14,
18,
-18,
16,
19,
-28,
-21,
-58,
-22,
-64,
11,
-19,
67,
72,
30,
-14,
-24,
27,
16,
17,
-4,
43,
-83,
18,
-62,
-1,
-19,
-77,
25,
-7,
-45,
31,
-16,
18,
-95,
-31,
-38,
-47,
-62,
-20,
1,
-29,
-45,
-24,
-11,
-3,
-23,
-14,
-13,
-27,
22,
8,
-1,
-1,
19,
-32,
-6,
-12,
-9,
22,
-6,
-13,
-51,
-43,
13,
14,
-3,
-73,
14,
44,
-50,
35,
-59,
-58,
-25,
-20,
-31,
22,
10,
-38,
0,
-41,
16,
17,
0,
-88,
-10,
8,
51,
45,
25,
24,
22,
21,
7,
18,
14,
23,
13,
15,
-70,
12,
-5,
-35,
16,
15,
-8,
13,
-48,
4,
27,
-23,
29,
-26,
12,
-15,
11,
-12,
0,
50,
0,
-25,
-42,
-17,
33,
0,
-22,
-86,
-4,
-43,
-19,
46,
-48,
25,
-13,
36,
41,
0,
3,
-3,
-24,
5,
-19,
11,
10,
-13,
-22,
-8,
4,
25,
38,
-15,
10,
-12,
-5,
29,
-28,
4,
19,
6,
40,
6,
3,
46,
39,
-40,
6,
-40,
14,
57,
-19,
37,
36,
2,
-27,
30,
7,
22,
57,
-45,
9,
-1,
0,
-18,
-7,
-2,
-70,
33,
-10,
-32,
-42,
-28,
18,
8,
25,
-11,
31,
-24,
-7,
-43,
39,
-12,
4,
-67,
16,
67,
-5,
36,
-47,
41,
-1,
11,
40,
4,
-32,
-48,
-9,
-33,
22,
35,
15,
-32,
-53,
-27,
32,
-21,
-31,
35,
27,
35,
-9,
15,
15,
-11,
-39,
33,
23,
19,
7,
-24,
-16,
-11,
82,
19,
-15,
19,
-23,
-1,
40,
-12,
-47,
-9,
30,
-19,
15,
29,
-21,
-30,
12,
20,
-50,
-52,
3,
-39,
22,
-3,
0,
43,
-5,
-16,
31,
25,
34,
26,
34,
16,
2,
-17,
7,
4,
25,
-12,
-68,
-21,
19,
25,
7,
-13,
0,
11,
-25,
1,
46,
41,
7,
8,
-10,
5,
58,
-32,
-28,
-15,
6,
-65,
-34,
-37,
33,
-7,
-45,
13,
-17,
-17,
49,
0,
21,
38,
-16,
-26,
-36,
-19,
-11,
-32,
-26,
-22,
7,
56,
40,
-1,
43,
-25,
-35,
-11,
15,
10,
-7,
32,
-13,
3,
48,
-26,
-30,
-20,
16,
89,
4,
-10,
3,
45,
-29,
39,
30,
-22,
5,
17,
-29,
-24,
6,
17,
12,
-65,
-2,
47,
-21,
6,
-10,
-9,
-31,
-1,
11,
33,
-43,
40,
15,
19,
-2,
18,
-2,
1,
-24,
-9,
8,
42,
-2,
-20,
-8,
25,
-28,
-49,
-42,
-38,
-17,
7,
-18,
-16,
32,
24,
-5,
57,
-6,
-1,
-3,
-19,
2,
-15,
0,
3,
-15,
7,
45,
45,
-36,
17,
-34,
-28,
54,
10,
44,
3,
-28,
-2,
-27,
7,
43,
-6,
-43,
-2,
39,
39,
-35,
19,
-7,
-54,
9,
37,
-2,
-5,
-28,
-3,
5,
32,
34,
46,
4,
2,
24,
39,
9,
-51,
-37,
-1,
49,
-20,
-26,
2,
12,
28,
0,
17,
18,
15,
-12,
22,
33,
-26,
-23,
-37,
24,
4,
-19,
31,
56,
-16,
-5,
-8,
18,
-1,
65,
-36,
1,
5,
-2,
72,
-11,
12,
-22,
17,
-24,
-59,
-28,
-14,
13,
28,
31,
-30,
45,
-38,
22,
-46,
31,
44,
-67,
25,
-19,
3,
19,
38,
18,
36,
12,
-19,
1,
-35,
-4,
20,
26,
35,
48,
-86,
-5,
63,
-3,
-98,
53,
10,
-38,
-40,
-24,
4,
0,
0,
22,
-22,
-1,
-4,
29,
31,
-19,
39,
-27,
-36,
10,
-34,
50,
-45,
27,
-4,
13,
-6,
-36,
-32,
16,
54,
-19,
54,
33,
-45,
14,
-13,
29,
-9,
17,
-16,
-30,
-13,
35,
4,
2,
30,
-58,
19,
-26,
52,
-57,
16,
-48,
22,
-25,
-36,
-11,
-44,
14,
-36,
-4,
-29,
-34,
20,
-42,
2,
-7,
-37,
-23,
17,
-32,
-8,
26,
-13,
19,
-18,
61,
-9,
1,
61,
33,
9,
7,
3,
33,
4,
1,
40,
34,
37,
24,
43,
-79,
-13,
31,
-9,
48,
-48,
12,
38,
30,
-9,
49
] |
Leave to appeal denied at 497 Mich 1035. | [
19,
-12,
-30,
9,
17,
55,
28,
61,
-38,
21,
-22,
7,
8,
-42,
41,
40,
87,
14,
-11,
10,
-39,
-3,
-4,
67,
-26,
-88,
49,
27,
-30,
-63,
-1,
-58,
-54,
-61,
-29,
-33,
-41,
3,
-3,
16,
-45,
-45,
0,
27,
-24,
-84,
8,
16,
-42,
28,
-46,
17,
-80,
28,
11,
28,
46,
-31,
3,
67,
-36,
41,
35,
43,
2,
0,
-43,
-2,
31,
-12,
-23,
15,
-10,
38,
16,
-3,
31,
78,
24,
82,
36,
-2,
4,
12,
34,
33,
10,
42,
-7,
12,
4,
-52,
-44,
40,
-43,
58,
4,
-48,
40,
-66,
1,
35,
10,
-51,
-19,
-43,
23,
68,
-23,
6,
24,
-29,
-17,
-53,
5,
-15,
-23,
8,
46,
-1,
-27,
44,
12,
30,
39,
-9,
32,
-20,
3,
-60,
2,
64,
67,
38,
-2,
-24,
58,
-97,
-41,
-57,
-24,
108,
28,
-26,
-44,
-73,
35,
-21,
43,
-54,
-10,
19,
0,
14,
-17,
54,
18,
-10,
38,
15,
11,
36,
-58,
15,
63,
-40,
26,
50,
37,
11,
22,
24,
5,
-64,
-42,
6,
-17,
53,
-38,
12,
-30,
14,
-8,
39,
1,
-70,
27,
-51,
12,
-82,
-28,
-41,
84,
35,
12,
31,
23,
33,
-17,
7,
-35,
60,
-45,
11,
46,
-61,
4,
-46,
18,
16,
-54,
-5,
-1,
-21,
41,
-29,
-36,
39,
46,
-3,
38,
10,
-8,
13,
-8,
27,
-7,
33,
14,
-9,
14,
41,
-4,
-18,
41,
-40,
8,
18,
42,
-55,
-89,
-27,
-18,
78,
-6,
-21,
-74,
-16,
65,
-49,
52,
-2,
27,
-83,
-58,
-54,
-34,
23,
-5,
-13,
11,
12,
17,
23,
-17,
29,
-27,
19,
19,
-75,
33,
27,
-8,
-79,
35,
-4,
-3,
33,
62,
9,
-31,
3,
3,
-13,
-85,
44,
34,
-9,
-22,
11,
0,
3,
27,
62,
9,
-37,
-30,
23,
-20,
22,
12,
51,
-25,
-7,
37,
-48,
-57,
-52,
84,
32,
35,
-14,
-2,
51,
18,
-40,
0,
-100,
-26,
-4,
-16,
-9,
-5,
76,
-2,
54,
-8,
57,
19,
15,
3,
27,
-51,
71,
-24,
43,
0,
-49,
-28,
38,
8,
45,
14,
29,
-28,
-24,
-81,
-13,
78,
37,
34,
48,
-21,
-32,
18,
58,
-32,
-38,
-51,
51,
7,
-49,
-12,
51,
-3,
-39,
1,
57,
16,
53,
-55,
-9,
53,
-2,
27,
45,
-57,
-51,
-5,
-16,
-8,
-41,
-15,
22,
22,
18,
15,
21,
27,
50,
-8,
-62,
-15,
-27,
41,
-20,
19,
57,
20,
28,
-63,
-48,
-90,
82,
-14,
-7,
26,
3,
-41,
72,
-4,
39,
26,
16,
-58,
19,
74,
-13,
13,
-4,
-17,
-56,
-50,
10,
-45,
8,
-48,
30,
7,
51,
7,
-41,
10,
-53,
-34,
25,
28,
-22,
-4,
10,
-48,
-35,
20,
-80,
-4,
-63,
-42,
-34,
-99,
-49,
-21,
12,
3,
-40,
-58,
-43,
-54,
74,
10,
0,
-31,
-36,
-71,
30,
-7,
-6,
-63,
28,
28,
-39,
-13,
2,
-47,
-36,
20,
-34,
-25,
-32,
-16,
-8,
12,
-5,
1,
0,
39,
-8,
9,
3,
-33,
5,
-25,
77,
46,
30,
-19,
58,
13,
-6,
2,
9,
-42,
11,
12,
22,
-6,
-31,
6,
-32,
-3,
0,
14,
-29,
0,
33,
-46,
64,
-34,
14,
-1,
-23,
-3,
1,
9,
3,
29,
-9,
-66,
-26,
13,
103,
-4,
-16,
32,
40,
11,
-65,
28,
32,
-74,
52,
25,
-36,
-46,
3,
15,
44,
-63,
-40,
-10,
8,
10,
-8,
-68,
13,
-6,
-52,
12,
-6,
14,
-8,
-8,
-26,
21,
15,
-40,
-37,
-24,
30,
14,
71,
47,
39,
-18,
13,
48,
12,
29,
17,
-23,
-8,
-18,
23,
43,
-29,
-24,
-55,
-55,
-16,
-21,
-14,
-47,
-15,
8,
-75,
21,
26,
-9,
-9,
4,
94,
-67,
-8,
-16,
10,
-17,
33,
-25,
-1,
56,
5,
-31,
52,
-7,
-2,
-48,
-2,
-8,
12,
23,
9,
60,
35,
-5,
-31,
-50,
-16,
25,
0,
33,
15,
1,
74,
31,
-48,
4,
22,
-3,
14,
-5,
72,
1,
2,
-1,
19,
15,
-35,
7,
-68,
-5,
-26,
-48,
37,
-33,
-19,
10,
31,
1,
-58,
26,
-16,
-8,
64,
-13,
58,
-61,
-58,
-5,
59,
91,
53,
-36,
43,
12,
5,
1,
-48,
4,
-15,
-11,
44,
-31,
-19,
-11,
15,
28,
-18,
9,
15,
5,
24,
48,
40,
49,
-10,
-47,
-5,
-9,
61,
-28,
13,
1,
18,
3,
-20,
-10,
40,
-2,
-48,
-30,
-7,
-58,
5,
48,
16,
107,
24,
-19,
-43,
19,
-4,
19,
-19,
-92,
-27,
6,
65,
2,
-4,
32,
36,
-17,
-2,
29,
-15,
-61,
20,
30,
28,
31,
11,
-21,
-45,
-1,
-43,
-22,
-2,
64,
-36,
-4,
-53,
14,
-24,
-8,
88,
-59,
-27,
-28,
26,
10,
23,
11,
-53,
-46,
19,
7,
-2,
5,
13,
61,
29,
20,
-24,
8,
-20,
-11,
0,
7,
3,
21,
-14,
34,
-32,
-66,
15,
33,
21,
-64,
-49,
-13,
-40,
14,
-69,
5,
-14,
35,
34,
26,
-34,
30,
6,
0,
12,
22,
36,
27,
-15,
-62,
20,
-14,
-28,
56,
21,
-68,
-7,
29,
-33,
71,
75,
-37,
-2,
51,
-6,
-29,
0,
2,
-14,
2,
49,
19,
25,
6,
35,
70,
6,
-50,
-77,
-15,
-64,
63,
2,
-1,
-36,
-18,
-48,
-35,
-6,
0,
-32,
1,
-43,
-55,
-42,
-10,
-5,
-12,
38,
-13,
9,
47,
7,
57,
28,
0,
43,
-36,
-13,
19,
-52,
23,
34,
1,
-72,
8,
17,
-11,
33,
-7,
-48,
10,
42,
16,
-44,
32,
-54,
79,
-27,
7,
32,
-13,
26,
53,
0,
-56,
16,
34,
12,
12,
37,
-34,
-7,
8,
-46,
-23,
-23,
38,
-20,
31,
-9,
2,
-4,
-71,
8,
-34,
-47,
36,
-63,
-104,
46,
-35,
27,
3,
3,
-23,
-20,
4,
-20,
-24,
-4,
0,
-69,
55,
-31,
-23,
-26,
-7,
-37,
8,
-100,
0,
-18,
9,
60,
-47,
-32,
-14,
21,
-46,
44,
13,
13,
23,
-47,
78,
-30,
-9,
16,
-40,
-6,
-42,
-26,
3,
9,
27,
55,
-17,
2,
-11,
8,
-1,
51,
-3,
27,
11,
-3,
-62,
-1,
-70,
-6,
74,
-9,
-6,
-55,
69,
-30,
-23,
-34,
10,
27,
-20,
-11,
-6,
18,
15,
-35,
28,
-9,
-34,
22,
11,
79,
100,
35,
32,
-24,
2,
42,
17,
-34,
56,
36,
35,
40,
45,
43,
8,
-30,
-2,
24,
-32,
88,
8,
-30,
-29,
-28
] |
Maekman, J.
(dissenting). I respectfully dissent from this Court’s order denying leave to appeal and would instead grant leave to address a growing lack of consistency in our law concerning the application of the “open and obvious” doctrine to winter snow and ice accumulations, as well as the applicability of Allison v AEW Capital Mgt, LLP, 481 Mich 419, 429 (2008) (stating that the lessor has a duty to the lessee under MCL 554.139(1)(a) to keep a parking lot “fit for the use intended by the parties”), as it pertains to winter snow and ice accumulations.
On an early January morning, plaintiff was injured when she stepped in a snow-covered pothole in her apartment’s parking lot while walking to a trash dumpster to deposit a bag of trash. Because it had snowed that night, defendants had plowed and salted the parking lot several hours earlier. Plaintiff, who for several months had lived in the apartment and regularly used the lot to park her vehicle and access the dumpster, was aware that the parking lot contained several potholes and had been newly covered by snow. The trial court granted summary disposition in favor of defendants because the danger presented by the pothole was “open and obvious.” The Court of Appeals, however, reversed, holding that there were questions of fact concerning whether the danger was not “open and obvious” and whether the parking lot—a common area—was “fit for the use intended by the parties.” Dotson v Garfield Court Assoc, LLC, unpublished opinion per curiam of the Court of Appeals, issued August 7, 2014 (Docket No. 315411), pp 3-5.
In Michigan, we are familiar with the accumulation of snow and ice during winter months, as well as the constant efforts to minimize the disruption to our daily lives caused by these accumulations. We are also familiar with the reality that these accumulations sometimes cause injuries, in particular of a “slip and fall” character. The instant case presents one typical injury of that nature. In my judgment, this case affords this Court the opportunity to provide clearer guidance to the bench and bar, and the people of this state, concerning winter accumulations and a lessor’s related duties under MCL 554.139(l)(a). As the following sampling of cases suggest, further guidance from this Court would seemingly be helpful.
In Patterson v Knollwood Village Assoc Ltd Partnership, unpublished opinion per curiam of the Court of Appeals, issued July 1, 2014 (Docket No. 314806), p 3, the Court of Appeals affirmed the trial court’s grant of summary disposition in favor of the defendant apartment lessor in a case in which the plaintiff “ ‘stepped on the slant of the [snow-covered] curb’ ” and suffered injury. The Court of Appeals held that the danger was “open and obvious” because the “plaintiff knew of the existence of the curb and, more importantly, testified that she believed there was ice on it also[.]” Id. On the other hand, in Robbins v Village Crest Condo Ass’n (On Remand), unpublished opinion per curiam of the Court of Appeals, issued July 30, 2013 (Docket No. 300842), p 1, the Court of Appeals reversed the trial court’s grant of summary disposition in favor of the defendant condominium association in a case in which the plaintiff “slipped and fell on black ice” on the parking lot. The Court of Appeals held that although “the temperature was below freezing” and “it had snowed two days before,” there nevertheless existed a “question of fact regarding whether there were indicia of a potentially hazardous condition . . . .” Id. at pp 3-5. That is, the Court of Appeals held that the black ice was not “open and obvious” despite winter conditions suggesting otherwise. How can these two decisions be reconciled? In Patterson, the plaintiff was not able to recover for injuries suffered as a result of a snow-covered obstacle because she was on notice of its presence, yet in Robbins, the plaintiff was able to recover for injuries suffered as a result of black ice notwithstanding that she should have had at least constructive notice of its presence.
Such inconsistencies are not limited to premises liability decisions; the Court of Appeals has inconsistently applied the lessor’s duty under MCL 554.139(1)(a) as well. In Young v Michigan Tree Apartments LLC, unpublished opinion per curiam of the Court of Appeals, issued May 19, 2015 (Docket No. 320439), the Court of Appeals affirmed the trial court’s grant of summary disposition in favor of the defendant apartment in a case in which the plaintiff slipped and fell on ice on an unlit parking lot. The Court of Appeals held that the “plaintiff could not show that apartment tenants were unable to ‘enter and exit the parking lot, to park their vehicles therein, and to access those vehicles.’ ” Id. at 5, quoting Allison, 481 Mich at 430. But in Dougherty v Nykel-Somerset Mgt, LLC, unpublished opinion of the Court of Appeals, issued September 4, 2012 (Docket No. 303910), the Court of Appeals reversed the trial court’s grant of summary disposition in favor of the defendant apartment complex and the defendant management company in a case in which the plaintiff slipped and fell on black ice on the sidewalk. The Court of Appeals held that the plaintiff had established a genuine issue of material fact concerning his MCL 554.139(1)(a) claim because “the lighting was so inadequate that it made it difficult for an ordinary user to discover dangerous conditions on the sidewalk when it is dark.” Id. at 7 (opinion by M. J. Kelly, J.). The Court of Appeals did not explain how the presence of better lighting might have facilitated the plaintiffs identification of the black ice, which by its very nature is transparent. Nor did it explain how ice obscured by inadequate lighting is different from ice obscured by snow or how the presence of ice somehow made the sidewalk here “unfit for use.” Again, how can these decisions be reconciled? In both decisions, the respective plaintiffs were unable to visually identify the ice, yet only one plaintiff was able to recover for an alleged breach of the lessor’s duty under MCL 554.139(1)(a).
Turning to the instant case, I discern little difference between the snow-covered pothole and the snow-covered curb in Patterson, and it is incongruous that only the defendants here may be subject to liability notwithstanding the ‘open and obvious’ doctrine. Furthermore, as defendants had plowed and salted the parking lot the very night before, as well as the morning of the accident, to allow tenants to traverse the lot, I fail to understand why defendants here may have breached their MCL 554.139(1)(a) duty to keep the parking lot “fit for the use intended by the parties,” while the Young defendant did not breach its MCL 554.139(1)(a) duty notwithstanding that it could have provided better lighting. In the absence of additional guidance from this Court concerning winter snow and ice accumulations, I can only expect further such inconsistent results, of which the cases mentioned herein constitute only the tip of the iceberg (and snowberg).
It is essential that landowners in a cold-weather state such as Michigan—one in which snow and ice tend to appear on a predictable basis during certain times of the year—be clearly apprised of their legal obligations in responding to the obstacles, risks, and inconveniences posed by winter’s conditions. What are the landowner’s obligations to facilitate safe passage, and what are the non-landowner’s obligations to facilitate safe passage by the exercise of personal responsibility? What are the realistic legal expectations of the landowner, and what are the realistic legal expectations of non-landowners? While there are decisions of this Court that have set forth rules of law for understanding the legal obligations of winter, see, e.g., Hoffner v Lanctoe, 492 Mich 450, 481 (2012) (“[T]he law compels individuals to accept personal responsibility for their well-being by avoiding apparent hazards, including those precipitated by Michigan winters.”); Allison, 481 Mich at 430 (“Mere inconvenience of access, or the need to remove snow and ice from parked cars, will not defeat the characterization of a lot as being fit for its intended purpose.”), continued and close attention must be given to this widely litigated area of the law. Already, I believe, we are seeing the reappearance of a legal environment in this state in which, as a function of the lesser review given by this Court to unpublished Court of Appeals decisions, there are a growing number of contradictory cases from which lawyers for injured persons can focus on decisions from Column A and lawyers for landowners can focus on decisions from Column B. Such an environment is incompatible with the rule of law, and this Court should respond by the creation of clear governing rules. The Court of Appeals’ decision in this case now becomes just one more of a mounting number of incompatible decisions by our state courts concerning winter accumulations. | [
-45,
46,
-2,
-26,
-7,
23,
15,
42,
-22,
102,
29,
17,
78,
-71,
-24,
-36,
10,
24,
-57,
22,
-86,
11,
-15,
-3,
-38,
-45,
27,
-40,
30,
50,
12,
-46,
-7,
-38,
8,
0,
68,
51,
10,
31,
44,
-2,
13,
-24,
12,
-24,
-2,
35,
26,
-16,
26,
50,
-21,
-28,
65,
27,
-36,
51,
-18,
5,
-16,
8,
24,
25,
31,
47,
21,
-12,
5,
-24,
-47,
111,
-35,
3,
26,
46,
-1,
49,
-27,
18,
4,
-20,
7,
32,
48,
17,
-46,
16,
-11,
-11,
-33,
-23,
-2,
21,
-17,
48,
8,
-71,
16,
-40,
-31,
16,
37,
22,
-4,
-44,
-12,
-9,
-8,
-6,
0,
8,
-25,
1,
-19,
-16,
42,
23,
7,
-37,
3,
-16,
-18,
2,
-22,
-24,
31,
-9,
-26,
-24,
2,
27,
23,
33,
9,
0,
18,
-9,
27,
13,
-2,
20,
24,
-12,
-3,
5,
19,
-47,
6,
-13,
6,
14,
17,
-34,
-12,
-1,
24,
-1,
29,
-9,
38,
34,
-48,
-4,
11,
-13,
-44,
72,
16,
2,
91,
-13,
-4,
-51,
17,
19,
-8,
29,
0,
12,
3,
8,
79,
6,
-70,
-16,
-54,
-25,
2,
-67,
4,
-37,
37,
-29,
7,
21,
22,
74,
6,
-56,
-22,
-17,
-44,
-48,
-33,
-42,
4,
-9,
-15,
0,
-5,
15,
-45,
-41,
24,
-8,
-6,
-20,
-22,
-2,
27,
14,
-31,
-41,
-9,
23,
-12,
-16,
-28,
-31,
16,
-4,
11,
-14,
41,
18,
36,
13,
23,
-25,
50,
52,
-60,
6,
-11,
1,
-48,
16,
22,
2,
0,
-48,
10,
-23,
-26,
2,
19,
-30,
-38,
21,
-7,
-6,
20,
9,
-19,
55,
2,
20,
-40,
-22,
-9,
53,
-28,
-18,
-49,
-35,
-13,
-4,
13,
5,
4,
24,
1,
-28,
-23,
47,
-32,
14,
-11,
7,
8,
-25,
-10,
94,
-4,
-13,
26,
-60,
-42,
13,
15,
-24,
30,
27,
50,
6,
-32,
11,
40,
0,
21,
-10,
-9,
-16,
26,
33,
0,
-27,
102,
0,
36,
-15,
-18,
-11,
-27,
38,
-1,
-66,
-31,
-18,
3,
16,
0,
46,
24,
20,
20,
-25,
-23,
13,
0,
14,
14,
-63,
3,
44,
-14,
4,
-9,
-21,
-9,
21,
26,
4,
-12,
-11,
-1,
-32,
-3,
17,
5,
-48,
14,
-2,
-19,
-44,
5,
-32,
-17,
5,
-63,
-33,
-6,
12,
-20,
-33,
10,
-42,
-6,
-9,
35,
-44,
23,
12,
41,
17,
-35,
-20,
-12,
3,
-25,
-38,
28,
19,
-66,
-26,
3,
-27,
-23,
-23,
4,
-2,
6,
-8,
-9,
-50,
27,
-59,
-8,
9,
-10,
-3,
-18,
14,
-16,
27,
42,
-10,
0,
9,
18,
-14,
40,
-47,
-16,
-49,
-5,
7,
-15,
27,
-6,
-4,
1,
13,
-21,
-9,
0,
-107,
-27,
-9,
-25,
-8,
15,
-40,
-1,
-6,
-8,
-3,
5,
-3,
33,
20,
6,
-26,
-15,
10,
41,
-40,
56,
-32,
44,
-18,
-59,
-6,
3,
-27,
-79,
-13,
22,
-18,
7,
12,
10,
64,
17,
-7,
0,
31,
-44,
13,
-11,
-3,
7,
21,
-22,
-2,
54,
9,
-2,
29,
29,
21,
-45,
-38,
-18,
-32,
-20,
-14,
-16,
1,
-19,
-3,
-75,
0,
53,
-39,
19,
-8,
23,
4,
-26,
-14,
6,
43,
0,
71,
45,
-34,
38,
-34,
-38,
-30,
-3,
-22,
0,
22,
17,
-4,
-17,
17,
46,
-35,
-3,
-30,
77,
8,
23,
-5,
-15,
34,
20,
28,
4,
-12,
48,
-3,
22,
46,
14,
35,
13,
1,
-79,
0,
33,
-40,
0,
-3,
31,
19,
-36,
67,
5,
-12,
44,
23,
-12,
-45,
31,
-2,
-22,
-22,
48,
-49,
-37,
7,
-32,
-8,
-42,
0,
-24,
22,
-58,
-24,
6,
7,
-19,
9,
41,
-22,
-15,
-28,
5,
7,
23,
2,
10,
12,
5,
-22,
-21,
32,
-25,
-27,
16,
2,
18,
-36,
19,
-5,
5,
-9,
-20,
-8,
-32,
3,
31,
2,
46,
12,
-36,
-42,
28,
12,
5,
-8,
-12,
81,
-76,
0,
-53,
31,
16,
-24,
38,
-2,
65,
26,
-22,
9,
-27,
10,
6,
-8,
27,
24,
15,
16,
-11,
-26,
0,
71,
-5,
-34,
49,
30,
32,
8,
-27,
-31,
-15,
-9,
-30,
-13,
-23,
-18,
-25,
29,
22,
-43,
-19,
64,
8,
56,
16,
26,
-14,
15,
12,
33,
-13,
-51,
-11,
-14,
-7,
-19,
27,
56,
41,
-47,
-5,
9,
30,
-18,
-38,
1,
37,
-4,
20,
30,
-26,
3,
27,
-7,
-11,
22,
-5,
-27,
7,
90,
-25,
62,
38,
-2,
38,
41,
-40,
-3,
-42,
-11,
25,
-44,
-35,
-29,
28,
-17,
11,
-4,
-16,
48,
-41,
33,
-7,
-25,
17,
23,
8,
-23,
22,
-27,
44,
38,
32,
-13,
-52,
16,
30,
-9,
-19,
4,
-2,
1,
19,
34,
0,
-44,
3,
-11,
-24,
5,
24,
-34,
14,
19,
16,
-52,
27,
2,
8,
-33,
-20,
31,
6,
-3,
-8,
8,
-1,
-17,
22,
-2,
-36,
-50,
-27,
-11,
-14,
-27,
6,
-14,
4,
2,
-23,
7,
3,
-49,
8,
-10,
-18,
-23,
-2,
-12,
6,
-5,
-10,
31,
-4,
-7,
-25,
62,
72,
-27,
28,
-37,
-7,
-16,
-3,
33,
44,
84,
5,
0,
33,
-20,
-68,
-33,
20,
-3,
24,
-35,
45,
-7,
59,
-36,
1,
39,
-21,
2,
12,
53,
68,
-35,
19,
11,
-3,
43,
-44,
11,
-21,
33,
11,
1,
-17,
-14,
-22,
27,
50,
-31,
-50,
1,
30,
13,
6,
-12,
-34,
22,
16,
10,
-18,
-21,
-4,
47,
-13,
56,
12,
0,
-34,
6,
-49,
-59,
-29,
1,
9,
21,
19,
18,
12,
-13,
-20,
6,
-5,
15,
25,
9,
-36,
-15,
-56,
-1,
-10,
-14,
-3,
-26,
-60,
9,
20,
21,
-1,
0,
-6,
7,
-20,
2,
-17,
-23,
-27,
14,
13,
26,
-65,
38,
7,
-11,
-11,
55,
28,
-11,
-35,
0,
-55,
-1,
9,
45,
-21,
-9,
20,
11,
-22,
3,
1,
-76,
-12,
-34,
7,
18,
-13,
32,
-28,
-40,
24,
-37,
-27,
11,
18,
68,
-26,
-4,
-17,
-12,
-58,
-8,
-17,
15,
-72,
-28,
31,
0,
55,
38,
26,
-39,
-30,
36,
-19,
-56,
28,
0,
1,
5,
-19,
5,
-24,
-16,
11,
-24,
9,
-6,
-18,
-20,
-33,
11,
-62,
-14,
0,
-1,
89,
-3,
-50,
-7,
-43,
47,
-16,
-21,
30,
14,
-16,
11,
-11,
15,
54,
51,
-5,
20,
-5,
-37,
19,
15,
-39,
3,
-28,
7,
-10,
12,
0,
-26,
-23,
1
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the Saginaw Circuit Court’s order denying the defendant’s motion for plea withdrawal and we remand this case to the Saginaw Circuit Court for reconsideration of the defendant’s motion to withdraw his plea. The defendant filed his motion before he was sentenced. MCR 6.310(B) permits the defendant to withdraw his plea before sentencing if withdrawal is in the interest of justice, unless withdrawal of the plea would substantially prejudice the prosecutor because of reliance on the plea. MCR 6.310(B)(1); see also People v Jackson, 203 Mich App 607, 611-612 (1994). The trial court applied an erroneous legal standard when it concluded that there was no legal basis for the court to allow the defendant to withdraw his plea unless there was a defect in the plea-taking process. See People v Spencer, 192 Mich App 146, 160-151 (1991) (‘TJnder MCR 6.310(B), the use of the term ‘may" denotes that the trial court has discretion to allow the withdrawal of the plea before sentencing if withdrawal is in the interest of justice and the withdrawal does not substantially prejudice the prosecutor because of reliance on the plea”). Cf MCR 6.310(C); People v Brown, 492 Mich 684, 693 (2012) (“A defendant seeking to withdraw his or her plea after sentencing must demonstrate a defect in the plea-taking process.”). We do not retain jurisdiction. | [
8,
-1,
-51,
-18,
-45,
-13,
-14,
0,
-83,
54,
23,
-10,
-61,
-69,
1,
-13,
1,
-7,
-9,
5,
18,
-10,
44,
-16,
-1,
-24,
36,
-22,
50,
-39,
-14,
2,
-23,
-9,
38,
-28,
4,
-27,
3,
20,
-11,
-65,
30,
-13,
-34,
-20,
12,
9,
45,
25,
24,
11,
-62,
24,
-17,
36,
-11,
20,
-40,
70,
-3,
54,
-48,
13,
-2,
5,
-12,
-10,
-23,
-41,
12,
-17,
9,
65,
-26,
22,
-6,
9,
49,
60,
49,
47,
20,
-12,
54,
21,
16,
-17,
-30,
-36,
39,
56,
-44,
-55,
16,
-8,
4,
-20,
44,
-23,
-42,
23,
-7,
-38,
6,
-29,
38,
1,
-19,
57,
26,
-6,
-18,
-32,
-32,
-10,
-13,
-28,
-37,
-15,
15,
-32,
-11,
54,
49,
10,
30,
-27,
4,
1,
-7,
26,
1,
-59,
74,
24,
38,
34,
-32,
12,
-9,
6,
60,
-34,
-11,
-25,
32,
-35,
0,
-4,
-9,
36,
-40,
42,
-19,
-19,
-28,
12,
-45,
38,
10,
57,
-26,
21,
5,
-18,
-28,
-18,
29,
-33,
7,
-35,
84,
-23,
-6,
36,
-28,
11,
-27,
-33,
-49,
39,
24,
-18,
12,
-2,
-3,
0,
-71,
-48,
4,
12,
25,
-64,
46,
-2,
8,
37,
22,
43,
-60,
-64,
-1,
8,
7,
-27,
-1,
-41,
35,
17,
-38,
-23,
3,
-46,
-2,
-30,
37,
-49,
10,
41,
-19,
-17,
18,
5,
-11,
-15,
1,
70,
33,
44,
21,
7,
37,
66,
6,
3,
9,
23,
51,
-10,
-4,
-6,
9,
18,
15,
4,
-17,
-20,
-8,
-31,
21,
-5,
-10,
10,
-17,
11,
24,
-47,
-103,
10,
16,
39,
-50,
-11,
-36,
58,
-3,
-29,
-24,
-35,
47,
-31,
9,
-12,
-5,
-11,
-24,
-4,
35,
10,
37,
-2,
22,
9,
-66,
33,
-39,
-23,
45,
32,
-26,
-30,
-16,
43,
20,
7,
42,
36,
-52,
1,
32,
-8,
5,
-17,
27,
-63,
12,
57,
-29,
-4,
9,
-10,
-28,
51,
28,
-33,
-9,
-5,
68,
-10,
-62,
-24,
-18,
-29,
-29,
9,
55,
-37,
-4,
11,
30,
15,
-17,
18,
-16,
34,
-28,
20,
21,
14,
-1,
-31,
10,
-7,
18,
-11,
7,
-7,
-23,
-45,
24,
-20,
12,
13,
29,
-27,
-23,
-61,
-9,
-39,
11,
-34,
-25,
-30,
43,
-47,
15,
8,
15,
48,
-18,
-71,
-11,
-10,
-4,
17,
23,
-9,
-12,
-5,
-45,
0,
21,
0,
41,
-58,
-55,
-11,
12,
-1,
5,
-49,
1,
-31,
14,
-4,
-3,
20,
15,
-11,
-9,
18,
5,
70,
-6,
-11,
-9,
13,
-21,
64,
-12,
35,
63,
77,
-19,
-29,
-20,
24,
65,
-26,
-33,
-33,
0,
-20,
11,
32,
24,
-50,
53,
-1,
37,
19,
-5,
-17,
34,
112,
-47,
-42,
-19,
19,
-1,
-56,
24,
-17,
22,
-28,
-16,
-14,
-67,
2,
36,
51,
9,
-53,
-34,
-22,
-2,
14,
-42,
-3,
41,
-53,
-63,
25,
1,
-59,
-71,
7,
47,
29,
12,
10,
3,
31,
-26,
-12,
0,
-7,
-1,
-18,
5,
-3,
4,
-42,
13,
23,
-28,
-26,
75,
31,
-7,
2,
-15,
32,
-5,
16,
-32,
-12,
9,
38,
0,
-37,
13,
-17,
45,
-22,
7,
-68,
34,
29,
17,
12,
-10,
7,
-11,
-42,
-26,
6,
0,
32,
-18,
-31,
33,
-57,
0,
14,
-91,
-32,
-7,
30,
64,
-38,
59,
-20,
2,
-29,
-26,
-25,
1,
1,
11,
17,
-4,
18,
6,
44,
7,
-19,
12,
14,
-1,
25,
-19,
-22,
-8,
-38,
-55,
-12,
61,
-46,
-8,
8,
59,
23,
-17,
35,
-24,
-40,
3,
24,
64,
58,
42,
-19,
-8,
12,
58,
-3,
7,
-21,
23,
50,
37,
-44,
21,
-28,
-16,
-30,
34,
-1,
-22,
44,
15,
6,
-12,
21,
-1,
-28,
26,
40,
31,
37,
-20,
2,
44,
-13,
8,
-19,
29,
6,
26,
-8,
-27,
22,
-43,
-6,
27,
-3,
-27,
47,
8,
-43,
2,
-42,
-27,
-75,
7,
22,
-58,
-23,
-11,
78,
-19,
-2,
-23,
33,
-30,
10,
-18,
16,
-46,
60,
-15,
-13,
60,
5,
-2,
-24,
14,
33,
17,
18,
-11,
4,
64,
19,
-16,
31,
62,
-22,
18,
6,
-39,
-22,
-19,
22,
-10,
9,
29,
-17,
17,
28,
-2,
19,
-19,
9,
-17,
29,
-16,
-4,
-29,
-6,
-28,
-40,
12,
-47,
-39,
52,
0,
37,
-16,
57,
-5,
14,
59,
-24,
14,
53,
46,
-23,
2,
29,
76,
-4,
-23,
-17,
-35,
-22,
51,
-1,
-54,
112,
-19,
10,
-15,
19,
-47,
-10,
-54,
15,
5,
-25,
-29,
40,
70,
37,
-13,
-2,
5,
-49,
-4,
-13,
40,
10,
-20,
-32,
-9,
35,
-35,
66,
-12,
9,
-61,
-15,
-46,
99,
5,
10,
20,
-27,
54,
-27,
12,
59,
-16,
-12,
39,
18,
-41,
2,
1,
46,
0,
1,
-25,
-7,
14,
3,
23,
-4,
-47,
-44,
33,
13,
-22,
52,
-52,
-23,
8,
-5,
30,
-17,
-36,
-7,
-31,
-10,
-37,
22,
-38,
-40,
27,
-2,
-44,
30,
32,
-8,
12,
-52,
0,
37,
-34,
-6,
13,
-21,
-12,
14,
28,
46,
40,
-50,
-7,
32,
19,
12,
3,
-15,
-23,
15,
-22,
-54,
15,
59,
-32,
-5,
-7,
5,
4,
-46,
0,
3,
7,
-6,
73,
37,
-47,
-48,
33,
36,
-25,
-36,
2,
-38,
-18,
20,
-2,
38,
-15,
-42,
44,
6,
25,
-12,
-45,
-2,
-21,
-1,
-35,
28,
13,
3,
33,
54,
-16,
-35,
23,
38,
-13,
10,
30,
-64,
-12,
-36,
13,
60,
-30,
-2,
-29,
-19,
-27,
-5,
15,
-11,
25,
-29,
20,
-27,
-25,
-28,
-57,
17,
-5,
7,
5,
50,
-12,
-3,
-44,
-39,
16,
-5,
57,
-42,
0,
-29,
48,
-40,
-29,
2,
-2,
76,
-33,
36,
8,
-13,
39,
-36,
-56,
-21,
48,
-43,
4,
70,
-1,
3,
-12,
2,
-8,
-10,
1,
-4,
1,
-32,
-48,
-59,
66,
-28,
19,
-28,
-24,
15,
-72,
-42,
-10,
7,
-25,
23,
-15,
-22,
-28,
34,
6,
-66,
1,
-13,
3,
2,
29,
-6,
4,
-5,
3,
-40,
5,
4,
44,
52,
-71,
-21,
-31,
43,
-22,
-25,
19,
-30,
29,
16,
3,
-26,
0,
15,
10,
-51,
8,
-57,
13,
-9,
7,
10,
-15,
-36,
25,
-53,
54,
-22,
-10,
10,
14,
-30,
-7,
-31,
16,
37,
-6,
-57,
5,
-32,
-17,
23,
-6,
57,
19,
59,
48,
31,
-16,
29,
-31,
9,
-63,
25,
-1,
9,
-93,
33
] |
Leave to appeal denied at 497 Mich 983. | [
26,
4,
-21,
-21,
1,
55,
19,
56,
-50,
7,
-24,
5,
8,
-44,
24,
46,
86,
44,
-19,
0,
-38,
-9,
-7,
30,
-37,
-70,
24,
17,
-44,
-61,
-22,
-54,
-42,
-51,
-40,
-34,
-51,
-11,
11,
13,
-51,
-20,
-11,
6,
-6,
-58,
17,
3,
-19,
5,
-64,
33,
-74,
19,
38,
34,
35,
-41,
4,
51,
-38,
42,
29,
46,
12,
9,
-51,
-1,
27,
-8,
-24,
18,
11,
39,
-6,
39,
34,
84,
34,
63,
36,
31,
13,
25,
25,
18,
10,
58,
-3,
4,
5,
-65,
-44,
54,
-42,
42,
-19,
-56,
28,
-68,
0,
47,
3,
-48,
-1,
-46,
20,
55,
-15,
3,
-8,
-18,
-4,
-37,
0,
-21,
-37,
3,
44,
-10,
-11,
32,
29,
55,
46,
-10,
13,
0,
-1,
-52,
19,
39,
74,
54,
-15,
3,
40,
-101,
-20,
-63,
-36,
102,
36,
-34,
-29,
-78,
56,
-35,
17,
-40,
0,
13,
-4,
11,
-9,
36,
10,
-19,
53,
13,
26,
49,
-56,
6,
54,
-12,
7,
43,
16,
25,
26,
31,
8,
-65,
-41,
19,
-2,
36,
-22,
1,
-45,
-2,
-22,
33,
-14,
-78,
12,
-36,
35,
-74,
-41,
-41,
67,
22,
18,
41,
21,
22,
-24,
31,
-18,
36,
-50,
8,
48,
-49,
10,
-35,
11,
21,
-42,
-18,
-25,
-15,
27,
-33,
-58,
39,
29,
-21,
45,
19,
-21,
2,
-17,
40,
-14,
39,
-4,
-10,
25,
20,
9,
10,
31,
-79,
11,
15,
55,
-61,
-88,
-21,
-27,
71,
8,
-9,
-78,
-8,
76,
-48,
64,
-1,
25,
-86,
-53,
-71,
-61,
19,
3,
-13,
0,
23,
19,
6,
-18,
35,
-34,
28,
12,
-74,
33,
35,
5,
-84,
11,
8,
5,
21,
47,
11,
-47,
0,
7,
1,
-59,
46,
11,
-12,
-7,
9,
-17,
21,
19,
73,
16,
-35,
-26,
31,
7,
24,
21,
33,
-53,
33,
41,
-28,
-68,
-64,
93,
44,
25,
4,
-6,
41,
0,
-51,
-5,
-101,
-29,
2,
8,
-7,
-31,
87,
-16,
68,
0,
66,
22,
13,
-2,
23,
-61,
73,
-39,
46,
-4,
-63,
-37,
30,
0,
57,
2,
34,
-2,
-36,
-103,
-10,
91,
29,
21,
82,
-20,
-49,
-14,
68,
-30,
-31,
-43,
40,
14,
-62,
12,
64,
-6,
-44,
6,
37,
-5,
32,
-65,
-11,
42,
10,
25,
49,
-45,
-36,
0,
-11,
13,
-13,
-15,
22,
28,
29,
13,
19,
42,
72,
-19,
-62,
-36,
-21,
30,
-15,
27,
72,
15,
52,
-47,
-39,
-85,
67,
1,
12,
9,
8,
-16,
75,
4,
21,
39,
28,
-74,
3,
71,
-34,
-31,
18,
-18,
-54,
-51,
0,
-46,
5,
-53,
29,
1,
86,
4,
-38,
9,
-44,
-30,
25,
7,
-14,
-6,
2,
-49,
-49,
16,
-73,
2,
-56,
-47,
-18,
-96,
-53,
16,
22,
3,
-33,
-56,
-64,
-61,
59,
4,
-7,
-55,
-45,
-46,
43,
0,
4,
-52,
42,
21,
-40,
-24,
40,
-53,
-22,
35,
-18,
-43,
-41,
-14,
12,
14,
-20,
-28,
-2,
29,
5,
-2,
-5,
-31,
5,
-13,
90,
37,
29,
-24,
50,
15,
-18,
7,
-8,
-42,
-13,
-7,
14,
17,
-50,
8,
-14,
-14,
2,
18,
-8,
8,
39,
-26,
61,
-38,
-2,
-20,
-22,
-15,
15,
15,
3,
40,
-9,
-69,
-27,
27,
86,
-19,
-20,
18,
58,
10,
-57,
47,
34,
-90,
52,
24,
-39,
-25,
1,
14,
52,
-46,
-57,
-26,
-4,
11,
-20,
-77,
-12,
-6,
-46,
19,
-22,
7,
-8,
-12,
-37,
29,
16,
-32,
-39,
-21,
24,
21,
54,
78,
35,
9,
-2,
39,
10,
32,
12,
-19,
0,
-32,
3,
45,
-26,
-15,
-53,
-69,
-21,
-20,
-5,
-34,
-15,
-10,
-76,
6,
14,
-7,
8,
-3,
77,
-61,
21,
3,
16,
-13,
46,
-13,
23,
29,
6,
-28,
46,
13,
-21,
-28,
0,
4,
5,
20,
-8,
83,
35,
-4,
-55,
-50,
-22,
17,
6,
46,
6,
-2,
72,
14,
-36,
29,
25,
6,
6,
-18,
57,
17,
0,
-11,
17,
8,
-33,
11,
-68,
-26,
-32,
-57,
24,
-29,
-21,
15,
10,
0,
-49,
26,
-5,
-16,
45,
-13,
42,
-53,
-55,
-6,
36,
85,
68,
-40,
44,
27,
-22,
2,
-17,
3,
-6,
0,
35,
-27,
-17,
-13,
26,
2,
-41,
8,
14,
25,
49,
37,
51,
52,
-21,
-19,
-3,
-8,
54,
-19,
17,
13,
41,
-10,
-36,
-13,
48,
0,
-31,
-8,
-3,
-39,
6,
36,
-6,
102,
11,
-32,
-43,
23,
-4,
7,
-20,
-76,
-34,
34,
65,
-2,
-13,
59,
32,
-14,
-3,
18,
-25,
-64,
1,
12,
9,
30,
0,
-25,
-35,
0,
-55,
-9,
-7,
68,
-42,
6,
-56,
17,
-21,
-6,
87,
-37,
-31,
-26,
30,
29,
35,
6,
-56,
-69,
24,
10,
-6,
8,
20,
65,
29,
17,
-25,
5,
-16,
-6,
4,
0,
34,
15,
-18,
28,
-23,
-52,
18,
42,
0,
-72,
-66,
-8,
-47,
22,
-44,
-4,
-17,
40,
12,
21,
-43,
17,
-2,
-5,
18,
13,
31,
11,
-19,
-42,
27,
1,
-13,
53,
9,
-47,
-7,
39,
-55,
58,
69,
-9,
10,
31,
17,
-29,
1,
27,
-37,
21,
58,
14,
15,
0,
37,
89,
-3,
-62,
-70,
-12,
-55,
73,
20,
-10,
-45,
-27,
-33,
-29,
9,
5,
-33,
-22,
-59,
-36,
-46,
-1,
21,
-4,
31,
-29,
17,
30,
7,
60,
35,
0,
48,
-35,
-11,
48,
-50,
25,
24,
11,
-63,
-8,
16,
-19,
47,
6,
-20,
12,
22,
19,
-45,
43,
-53,
78,
-11,
-8,
8,
8,
12,
52,
-12,
-70,
22,
47,
24,
30,
36,
-45,
-9,
9,
-55,
-8,
-20,
33,
-21,
45,
12,
5,
4,
-66,
8,
-29,
-56,
40,
-73,
-105,
27,
-26,
25,
6,
-3,
-9,
-10,
2,
-28,
-24,
17,
24,
-73,
40,
-24,
-18,
-30,
-21,
-26,
21,
-115,
0,
3,
12,
68,
-52,
-19,
-11,
13,
-46,
26,
5,
21,
31,
-63,
48,
-14,
-18,
10,
-25,
-17,
-56,
-8,
22,
17,
0,
45,
-26,
-7,
-17,
30,
3,
45,
-7,
25,
17,
-11,
-65,
-24,
-71,
-15,
52,
-34,
-1,
-56,
61,
-49,
-17,
-44,
-6,
21,
0,
-30,
-13,
14,
19,
-26,
43,
-1,
-44,
22,
17,
81,
117,
33,
17,
-18,
-17,
26,
23,
-30,
41,
33,
27,
36,
47,
43,
12,
-29,
29,
35,
-22,
72,
26,
-7,
-33,
-42
] |
Leave to appeal denied at 497 Mich 973. | [
32,
-10,
-29,
-20,
11,
51,
29,
66,
-46,
19,
-28,
4,
11,
-54,
38,
36,
70,
23,
-11,
0,
-28,
-2,
-5,
46,
-41,
-75,
31,
31,
-38,
-65,
-18,
-58,
-41,
-54,
-24,
-20,
-41,
-3,
3,
11,
-38,
-34,
-6,
16,
-13,
-57,
0,
3,
-34,
14,
-67,
24,
-78,
10,
28,
39,
38,
-40,
0,
54,
-41,
49,
39,
54,
17,
0,
-57,
4,
23,
-12,
-18,
28,
-3,
36,
0,
18,
37,
71,
27,
76,
31,
21,
17,
17,
45,
26,
8,
53,
0,
11,
17,
-60,
-48,
47,
-38,
60,
-9,
-47,
27,
-58,
-5,
52,
8,
-51,
-20,
-43,
29,
51,
-32,
4,
12,
-27,
-5,
-28,
1,
-23,
-34,
15,
51,
-14,
-25,
37,
25,
58,
52,
-7,
29,
-17,
-12,
-54,
19,
33,
78,
59,
-23,
-6,
58,
-100,
-23,
-65,
-18,
108,
34,
-27,
-40,
-84,
55,
-30,
13,
-36,
-7,
11,
-7,
9,
-14,
39,
23,
-12,
51,
10,
36,
43,
-49,
10,
50,
-26,
26,
40,
26,
26,
18,
40,
7,
-67,
-34,
13,
-7,
51,
-30,
2,
-31,
4,
-8,
43,
-15,
-68,
27,
-43,
24,
-69,
-41,
-41,
78,
16,
17,
32,
19,
27,
-15,
24,
-24,
48,
-51,
7,
47,
-50,
12,
-54,
9,
19,
-35,
-17,
-15,
-16,
39,
-37,
-51,
45,
33,
-19,
46,
27,
-16,
6,
-17,
37,
-28,
43,
7,
-14,
19,
20,
4,
-13,
27,
-63,
11,
19,
59,
-64,
-83,
-23,
-17,
73,
10,
-13,
-73,
-22,
72,
-49,
66,
-5,
24,
-93,
-55,
-63,
-63,
21,
4,
-9,
6,
13,
18,
17,
-26,
34,
-29,
36,
19,
-75,
35,
40,
6,
-73,
19,
2,
5,
18,
59,
10,
-42,
3,
7,
-1,
-68,
50,
15,
-21,
-13,
16,
-11,
10,
14,
75,
9,
-42,
-21,
30,
-11,
26,
7,
32,
-50,
16,
42,
-34,
-70,
-66,
89,
40,
20,
-7,
-9,
50,
7,
-42,
-3,
-109,
-17,
0,
9,
-8,
-35,
72,
-22,
76,
-4,
52,
12,
17,
6,
26,
-54,
76,
-38,
46,
-3,
-73,
-33,
33,
-3,
51,
-3,
40,
-6,
-21,
-102,
-13,
83,
25,
23,
60,
-21,
-44,
-1,
72,
-32,
-38,
-46,
32,
9,
-65,
3,
68,
-16,
-37,
11,
29,
5,
45,
-61,
-12,
49,
0,
16,
52,
-49,
-30,
0,
-18,
10,
-21,
-17,
28,
41,
32,
14,
26,
41,
75,
-14,
-72,
-40,
-27,
26,
-19,
28,
60,
20,
41,
-40,
-38,
-82,
78,
-7,
-4,
16,
0,
-22,
68,
-5,
34,
28,
27,
-68,
4,
71,
-39,
-34,
1,
-27,
-56,
-50,
1,
-40,
12,
-42,
25,
-2,
82,
0,
-32,
20,
-39,
-21,
15,
8,
-8,
-2,
0,
-57,
-32,
16,
-79,
6,
-52,
-57,
-19,
-100,
-54,
1,
14,
-3,
-29,
-56,
-58,
-69,
70,
10,
-7,
-53,
-44,
-53,
39,
-4,
7,
-60,
46,
19,
-52,
-21,
17,
-54,
-18,
24,
-16,
-33,
-45,
-12,
3,
8,
-18,
-20,
-1,
30,
0,
1,
2,
-41,
8,
-24,
89,
42,
27,
-24,
48,
18,
-10,
11,
-4,
-40,
-15,
0,
11,
8,
-34,
6,
-23,
-18,
-1,
17,
-22,
11,
40,
-29,
52,
-40,
1,
-11,
-26,
-9,
17,
16,
-6,
40,
-12,
-81,
-24,
30,
93,
-11,
-8,
30,
59,
9,
-69,
38,
25,
-80,
57,
28,
-28,
-22,
9,
7,
45,
-41,
-54,
-11,
4,
21,
-29,
-77,
-7,
-6,
-42,
21,
-9,
9,
-16,
-17,
-22,
22,
23,
-33,
-38,
-19,
33,
9,
62,
65,
31,
-7,
-2,
36,
18,
37,
5,
-10,
-15,
-32,
5,
38,
-34,
-13,
-51,
-69,
-18,
-15,
-14,
-31,
-16,
-14,
-71,
1,
27,
-7,
2,
0,
73,
-49,
10,
0,
15,
-1,
40,
-17,
14,
42,
3,
-14,
41,
0,
-17,
-38,
9,
-1,
10,
15,
0,
65,
32,
4,
-51,
-52,
-17,
7,
9,
45,
12,
-10,
75,
15,
-45,
15,
25,
8,
2,
-11,
53,
14,
6,
-12,
15,
16,
-34,
9,
-70,
-10,
-31,
-50,
38,
-26,
-15,
13,
28,
0,
-52,
24,
-5,
-29,
52,
-22,
38,
-56,
-56,
-3,
38,
81,
62,
-41,
44,
18,
-8,
-2,
-24,
-1,
-3,
-1,
45,
-39,
-15,
-12,
21,
6,
-36,
10,
16,
21,
39,
41,
40,
50,
-12,
-28,
-7,
-5,
54,
-26,
15,
9,
25,
0,
-25,
-11,
39,
1,
-43,
-19,
-7,
-37,
12,
31,
-9,
112,
17,
-24,
-45,
19,
0,
10,
-23,
-82,
-39,
22,
64,
-5,
-2,
51,
30,
-17,
0,
17,
-19,
-57,
9,
16,
14,
20,
4,
-32,
-35,
0,
-53,
-10,
-8,
53,
-35,
8,
-51,
15,
-28,
-8,
95,
-38,
-32,
-21,
18,
22,
37,
15,
-58,
-62,
5,
21,
-1,
1,
16,
70,
27,
19,
-27,
12,
-8,
-8,
-21,
-10,
31,
31,
-15,
20,
-31,
-59,
10,
51,
9,
-73,
-51,
-18,
-54,
22,
-51,
5,
-28,
46,
23,
34,
-32,
16,
3,
-9,
11,
12,
28,
4,
-19,
-56,
29,
-1,
-22,
63,
0,
-59,
-4,
37,
-38,
66,
77,
-23,
2,
40,
-5,
-22,
2,
10,
-24,
8,
55,
15,
19,
6,
34,
97,
-6,
-60,
-71,
-1,
-59,
50,
15,
-1,
-33,
-20,
-34,
-35,
-5,
1,
-24,
3,
-52,
-45,
-40,
-13,
10,
5,
26,
-28,
24,
39,
11,
56,
38,
-14,
55,
-30,
-16,
47,
-52,
20,
26,
5,
-72,
11,
15,
-23,
49,
12,
-20,
3,
46,
17,
-33,
46,
-45,
91,
-15,
-15,
21,
5,
26,
54,
-17,
-63,
22,
26,
21,
21,
30,
-54,
-17,
10,
-72,
-16,
-31,
44,
-21,
38,
-7,
-9,
8,
-60,
8,
-16,
-48,
44,
-77,
-102,
35,
-25,
19,
1,
-4,
-28,
-8,
-5,
-27,
-15,
0,
22,
-68,
41,
-23,
-10,
-20,
-3,
-20,
20,
-105,
4,
4,
14,
81,
-57,
-35,
-10,
4,
-50,
32,
6,
12,
24,
-53,
61,
-20,
-11,
20,
-44,
-19,
-48,
-12,
13,
20,
19,
56,
-31,
-3,
-10,
23,
-8,
50,
-4,
26,
16,
-12,
-61,
-7,
-64,
-16,
54,
-34,
5,
-62,
60,
-39,
-17,
-53,
1,
26,
-2,
-32,
-1,
33,
23,
-41,
42,
4,
-36,
23,
7,
83,
100,
28,
21,
-29,
-7,
35,
17,
-26,
62,
31,
33,
30,
43,
56,
10,
-27,
5,
37,
-33,
86,
25,
-18,
-34,
-32
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the St. Clair 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. We do not retain jurisdiction. | [
23,
20,
-49,
-2,
-67,
23,
-37,
2,
-43,
14,
0,
-33,
0,
-56,
14,
-22,
3,
18,
0,
30,
-27,
34,
-19,
29,
-59,
-1,
27,
-17,
38,
-22,
4,
15,
36,
-30,
38,
-43,
47,
-12,
12,
12,
-10,
-32,
-13,
1,
-34,
-65,
0,
42,
19,
-40,
-28,
31,
-45,
2,
31,
51,
-49,
0,
-56,
64,
-79,
40,
-33,
44,
55,
-12,
44,
21,
-29,
-25,
21,
-15,
0,
20,
-14,
15,
6,
4,
20,
14,
12,
-21,
-29,
-75,
-39,
-1,
8,
-38,
-42,
-41,
0,
-10,
-49,
-62,
0,
-3,
4,
-63,
30,
-37,
-7,
0,
25,
61,
3,
-8,
9,
-4,
-45,
50,
-6,
50,
28,
-43,
-16,
2,
-31,
2,
9,
0,
32,
-1,
21,
16,
49,
-56,
18,
-19,
-31,
-11,
3,
32,
14,
-25,
21,
51,
16,
26,
16,
31,
3,
11,
39,
-16,
55,
21,
30,
-24,
-43,
0,
-2,
0,
5,
51,
36,
-4,
35,
-48,
-22,
52,
28,
39,
-29,
42,
-8,
11,
2,
16,
-3,
-13,
1,
11,
32,
18,
21,
18,
-45,
1,
-4,
-19,
-31,
48,
3,
-56,
-4,
-20,
-24,
-18,
-30,
-10,
-37,
29,
-5,
20,
42,
28,
0,
28,
5,
10,
-35,
24,
-19,
69,
9,
-36,
45,
6,
11,
13,
-44,
-4,
-48,
5,
10,
-5,
35,
-6,
-46,
11,
-22,
-7,
39,
29,
3,
1,
-29,
35,
35,
6,
54,
39,
20,
45,
-42,
28,
-11,
7,
72,
-57,
-4,
-36,
35,
-27,
19,
45,
25,
-2,
-10,
-21,
33,
-43,
32,
35,
11,
-36,
2,
-18,
-27,
14,
39,
33,
-6,
7,
-41,
60,
4,
16,
15,
-6,
24,
-12,
14,
-40,
4,
19,
-7,
20,
48,
33,
-13,
20,
23,
29,
2,
-4,
-19,
36,
23,
42,
34,
-18,
-30,
-26,
14,
-12,
-5,
-20,
-11,
6,
47,
34,
9,
29,
9,
2,
20,
44,
-56,
-16,
3,
40,
-25,
54,
-11,
-17,
-1,
27,
40,
-25,
-68,
8,
7,
-14,
39,
-10,
49,
-17,
-37,
-45,
-21,
5,
7,
0,
36,
24,
16,
14,
-8,
24,
-3,
-3,
11,
-20,
-12,
29,
12,
-23,
-1,
-7,
-3,
22,
29,
19,
-20,
-44,
-35,
-9,
3,
-1,
0,
-10,
-17,
3,
-16,
13,
18,
-14,
-9,
61,
12,
-36,
-10,
-11,
-12,
-5,
10,
-11,
-13,
12,
-30,
-20,
-12,
-7,
30,
-22,
-40,
15,
32,
36,
-6,
-35,
3,
-40,
-15,
25,
7,
0,
7,
-63,
-3,
-11,
24,
17,
-21,
11,
-8,
24,
3,
31,
-28,
41,
9,
54,
0,
-24,
-7,
13,
4,
-51,
2,
-35,
24,
-26,
-17,
23,
-16,
-33,
4,
-16,
29,
-43,
27,
-45,
-47,
39,
-38,
-13,
16,
-19,
-65,
19,
-29,
8,
17,
-9,
15,
-32,
-4,
-2,
6,
-26,
12,
-76,
-27,
8,
-22,
-1,
36,
-31,
-6,
-18,
-45,
-1,
14,
-24,
-43,
-12,
24,
-21,
-34,
34,
17,
45,
19,
-9,
0,
22,
-17,
31,
13,
-18,
-50,
-39,
14,
8,
-3,
3,
35,
-26,
-27,
36,
-17,
23,
33,
29,
6,
-4,
-16,
45,
12,
-30,
-14,
-12,
30,
-10,
22,
-73,
54,
3,
17,
27,
15,
12,
-28,
-7,
9,
-11,
62,
3,
-23,
-27,
41,
-46,
-35,
19,
-73,
-4,
-1,
48,
37,
-20,
40,
-43,
5,
-38,
-32,
-39,
-2,
21,
4,
7,
-7,
0,
6,
-14,
-10,
22,
-6,
-21,
-52,
3,
-20,
11,
-24,
-37,
-52,
22,
40,
-52,
13,
-9,
33,
24,
-16,
11,
0,
-22,
55,
19,
57,
27,
-30,
18,
-3,
32,
42,
16,
-21,
16,
45,
39,
3,
-27,
12,
-7,
10,
-5,
30,
-13,
-41,
14,
47,
-47,
-47,
-8,
-14,
-12,
45,
57,
-33,
57,
7,
14,
59,
13,
29,
4,
-4,
26,
46,
5,
-33,
-39,
48,
14,
28,
-42,
-59,
28,
-51,
-8,
8,
-34,
-4,
-44,
-20,
-30,
-63,
-16,
-5,
21,
12,
-9,
-49,
34,
-27,
20,
-12,
6,
-15,
12,
14,
-26,
41,
23,
-14,
-11,
-9,
15,
-35,
43,
-3,
-14,
66,
-64,
-16,
-32,
31,
0,
25,
21,
-38,
22,
-3,
13,
-30,
-7,
48,
-1,
42,
13,
-12,
-15,
20,
-29,
-3,
-4,
-21,
-6,
-49,
-2,
0,
-25,
7,
18,
-78,
19,
21,
20,
20,
34,
3,
-3,
28,
-16,
30,
59,
7,
-1,
9,
44,
76,
-35,
-33,
-20,
-6,
8,
2,
-1,
6,
24,
-8,
12,
-8,
-5,
8,
-21,
-8,
-24,
16,
-43,
20,
30,
25,
27,
-55,
-3,
36,
-4,
10,
-6,
48,
-8,
11,
1,
-21,
28,
-9,
50,
-11,
-9,
-64,
4,
-39,
15,
23,
12,
-29,
0,
10,
42,
41,
0,
-80,
64,
29,
-3,
-50,
-12,
-11,
14,
-8,
37,
-3,
-51,
66,
-2,
1,
13,
-17,
-14,
6,
8,
-44,
12,
20,
9,
-20,
-33,
5,
54,
-23,
-1,
-15,
-52,
-8,
-79,
-29,
-34,
3,
-25,
-13,
40,
40,
48,
50,
-26,
16,
24,
32,
49,
0,
7,
-29,
27,
-21,
-27,
5,
-10,
73,
12,
-33,
36,
37,
-22,
-11,
25,
-38,
1,
35,
8,
-19,
-59,
6,
-16,
42,
-22,
5,
3,
-8,
33,
14,
35,
-45,
-29,
-1,
36,
3,
16,
0,
-37,
9,
2,
-35,
42,
11,
-24,
-13,
23,
-31,
9,
-46,
-24,
-25,
22,
-18,
-5,
-20,
-2,
4,
46,
-32,
0,
12,
44,
-28,
-25,
5,
6,
1,
-29,
-9,
64,
-3,
20,
0,
-21,
-49,
18,
22,
-48,
34,
-4,
3,
-28,
-44,
-4,
-42,
23,
25,
30,
-24,
-20,
-19,
13,
-38,
-10,
4,
-41,
29,
-21,
3,
4,
54,
-1,
-38,
-4,
-13,
17,
-34,
14,
-5,
5,
6,
-14,
-72,
-31,
25,
-50,
-11,
83,
24,
15,
-59,
-15,
10,
-49,
-19,
5,
-21,
-26,
-15,
-44,
8,
-28,
23,
-34,
5,
-43,
-34,
-9,
-69,
20,
-21,
23,
-27,
0,
11,
-37,
-35,
16,
23,
-5,
-6,
-14,
14,
-17,
-16,
-46,
-24,
16,
14,
-16,
31,
41,
-29,
-40,
2,
-4,
-15,
-32,
23,
-21,
10,
19,
25,
-35,
21,
35,
-43,
-41,
14,
0,
-46,
-24,
-39,
-32,
-49,
-50,
48,
-10,
15,
-32,
-35,
5,
-38,
-17,
-9,
8,
11,
41,
39,
-45,
1,
-53,
37,
32,
2,
55,
6,
32,
35,
0,
-14,
-11,
-44,
-22,
-43,
39,
-18,
19,
-35,
9
] |
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. | [
-10,
-18,
-86,
1,
-9,
68,
-15,
-35,
-12,
-22,
-6,
18,
4,
-72,
-1,
14,
-30,
-21,
6,
-11,
-33,
48,
55,
18,
6,
-24,
2,
-26,
55,
-43,
-4,
26,
-16,
-43,
34,
-68,
72,
-17,
12,
-26,
20,
20,
-6,
-8,
-68,
-57,
32,
39,
87,
51,
3,
58,
-74,
8,
-4,
50,
-9,
-27,
-17,
36,
-19,
54,
-25,
15,
63,
26,
-11,
-49,
-14,
-46,
21,
6,
-36,
76,
0,
22,
21,
29,
59,
70,
57,
3,
-26,
-28,
4,
51,
30,
34,
-44,
35,
-23,
0,
-26,
-57,
-47,
29,
9,
-24,
20,
37,
-28,
-10,
-4,
-32,
32,
-4,
-41,
23,
-42,
27,
34,
24,
19,
-49,
-10,
26,
-57,
18,
6,
20,
-8,
69,
0,
-5,
41,
4,
-10,
5,
-27,
-19,
-21,
10,
-7,
-11,
-2,
27,
45,
-5,
-39,
-37,
-28,
82,
41,
-6,
33,
30,
0,
-9,
-26,
0,
75,
-12,
-75,
53,
-42,
-7,
19,
-18,
-1,
48,
-29,
51,
9,
-25,
43,
-55,
-54,
18,
-7,
3,
68,
23,
41,
2,
-58,
24,
-20,
24,
-16,
28,
-73,
24,
-11,
-39,
-21,
9,
-95,
15,
-25,
-25,
-22,
-41,
28,
40,
24,
2,
-6,
18,
-24,
-3,
-92,
12,
-1,
-5,
3,
-81,
23,
0,
-14,
-57,
-33,
71,
-13,
-27,
39,
21,
48,
56,
0,
77,
-10,
4,
52,
-24,
4,
37,
0,
58,
49,
-14,
19,
6,
26,
31,
19,
29,
-1,
4,
76,
-58,
7,
-63,
18,
-42,
21,
-12,
-26,
72,
1,
-61,
66,
-14,
53,
-17,
19,
-9,
-40,
41,
-4,
-10,
23,
41,
61,
10,
-52,
30,
-9,
-19,
1,
-10,
14,
65,
22,
-45,
10,
23,
35,
20,
46,
-27,
-28,
2,
-84,
63,
-6,
-12,
-38,
-33,
38,
-35,
-25,
28,
55,
-14,
-14,
-21,
-89,
43,
3,
-15,
7,
6,
5,
-31,
28,
22,
-27,
0,
21,
-43,
32,
21,
0,
-4,
26,
-18,
-38,
15,
15,
-39,
-25,
0,
2,
-47,
-14,
7,
15,
-48,
-5,
34,
-2,
-64,
-18,
2,
-39,
80,
-8,
47,
5,
60,
-16,
34,
16,
-9,
14,
18,
-21,
-51,
20,
14,
-8,
6,
-12,
45,
0,
-6,
-52,
-29,
-43,
17,
33,
-12,
-6,
-36,
36,
20,
10,
6,
-5,
-45,
-41,
-58,
-6,
-15,
-64,
19,
25,
7,
-36,
-26,
-68,
-35,
12,
12,
-20,
-48,
-4,
49,
20,
11,
54,
-6,
-18,
-10,
-32,
-5,
27,
10,
20,
-28,
-27,
-6,
17,
25,
-26,
-54,
9,
-21,
-9,
56,
-31,
71,
-51,
50,
34,
-15,
7,
47,
32,
-18,
34,
-53,
-23,
4,
-16,
42,
46,
-29,
15,
-11,
-30,
-48,
-36,
-30,
-49,
26,
-38,
-42,
15,
24,
-49,
-51,
-28,
-2,
-68,
-72,
-50,
-34,
-26,
-39,
-2,
-33,
30,
-31,
-27,
-36,
-24,
28,
-9,
-25,
1,
-36,
31,
-3,
23,
-13,
-74,
35,
-4,
45,
-26,
0,
42,
51,
-38,
-24,
-22,
35,
18,
-34,
1,
-76,
-61,
14,
11,
53,
39,
72,
52,
20,
-20,
28,
4,
44,
-35,
14,
10,
-44,
-38,
60,
-18,
-64,
20,
-4,
72,
-32,
-21,
-37,
29,
-18,
-3,
-38,
-7,
64,
30,
24,
18,
-8,
-6,
-32,
-51,
-15,
35,
-47,
-39,
4,
-77,
-3,
23,
3,
-24,
-7,
-23,
-29,
-16,
-5,
-49,
-27,
-32,
-29,
-11,
-16,
-12,
-14,
16,
36,
3,
41,
34,
32,
-13,
32,
8,
67,
-26,
-27,
-62,
-9,
13,
7,
13,
-29,
11,
8,
-38,
-38,
-32,
0,
-23,
50,
92,
-45,
61,
78,
24,
7,
19,
7,
8,
-7,
21,
37,
-4,
-27,
16,
-19,
-54,
-25,
-4,
-16,
-50,
10,
17,
20,
-5,
29,
70,
17,
-42,
31,
-10,
9,
-57,
3,
-24,
37,
28,
4,
10,
28,
-29,
-38,
5,
3,
-50,
-49,
33,
37,
-20,
57,
-15,
-12,
-67,
-22,
-43,
-70,
32,
0,
7,
-11,
6,
96,
25,
-30,
-40,
-19,
-3,
22,
-21,
15,
-28,
46,
23,
3,
-19,
-47,
41,
-53,
-31,
25,
42,
98,
22,
14,
51,
-20,
-2,
6,
62,
-29,
-26,
-9,
8,
10,
-25,
-31,
-43,
12,
14,
18,
23,
77,
-11,
58,
17,
-35,
31,
-2,
-23,
-9,
-65,
-17,
-45,
32,
-3,
21,
21,
8,
-36,
47,
-1,
6,
15,
33,
-32,
-27,
-21,
27,
61,
0,
2,
-15,
39,
-11,
-17,
-8,
-37,
0,
23,
-13,
12,
59,
-40,
0,
26,
-11,
-24,
-53,
20,
-19,
42,
-6,
-28,
18,
-29,
89,
-57,
45,
44,
-26,
-7,
-23,
22,
-13,
-39,
-71,
-11,
56,
29,
85,
-22,
-50,
-44,
11,
15,
119,
47,
23,
-28,
12,
-4,
-12,
7,
-10,
-43,
15,
14,
-29,
-47,
13,
29,
-29,
-1,
55,
-7,
-48,
11,
24,
-16,
-4,
-1,
22,
88,
5,
-11,
38,
-12,
37,
1,
-25,
-34,
-58,
-28,
27,
9,
-58,
-67,
-67,
-54,
-16,
50,
-23,
27,
21,
47,
14,
18,
-46,
-31,
-2,
-14,
22,
-50,
40,
22,
24,
11,
26,
16,
-12,
52,
-4,
-14,
62,
-26,
8,
14,
22,
10,
-36,
50,
36,
-38,
-24,
-13,
-4,
13,
23,
44,
-41,
-30,
7,
13,
1,
-30,
-22,
43,
0,
36,
-28,
-41,
-34,
30,
-22,
-4,
50,
-51,
49,
27,
3,
-4,
7,
-14,
24,
-25,
1,
-9,
11,
54,
9,
-21,
17,
76,
30,
20,
56,
7,
26,
41,
-14,
28,
-86,
25,
75,
1,
15,
-3,
-4,
14,
54,
22,
-59,
49,
-53,
46,
-11,
0,
11,
-43,
5,
35,
88,
8,
50,
-4,
29,
-21,
1,
-62,
26,
-60,
-12,
20,
8,
56,
-46,
-50,
0,
11,
65,
0,
58,
-51,
11,
45,
-12,
-51,
-36,
1,
9,
34,
17,
-5,
8,
-2,
-26,
14,
-62,
44,
-31,
15,
-31,
-52,
-43,
92,
-32,
-20,
-23,
-62,
-20,
-27,
10,
-22,
-12,
-15,
-7,
2,
6,
48,
-52,
-18,
-8,
-5,
5,
-12,
1,
2,
8,
17,
-11,
-63,
-53,
8,
-20,
-12,
31,
-110,
5,
-30,
-33,
-4,
8,
23,
-9,
32,
16,
-14,
-53,
48,
58,
-10,
-36,
-18,
-67,
-53,
6,
-40,
-70,
-26,
-58,
25,
-36,
25,
-1,
-34,
1,
-60,
-3,
31,
9,
26,
39,
37,
-75,
-18,
-10,
-14,
-8,
-18,
48,
32,
28,
41,
-6,
11,
3,
7,
9,
-55,
43,
14,
-45,
-23,
-38
] |
McGrath, J.
This case was before this Court in October, 1890. 83 Mich. 11. After the determination of
that suit, complainant, on November 14, 1890, filed a .second bill. The testimony now shows that, immediately .after the commencement of the former suit, the Michigan Marble Company removed from the premises in question all its machinery and tools, and abandoned the work, leaving complainant in possession, and this was the situation when the present bill was filed.
The bill is. filed to quiet complainant’s title to the ■marble and serpentine contained in the W. -J of the S. W. of section 29, township 48 N., of range 27 W., in Marquette county. In 1867 the Marquette & Ontonagon Railroad Company conveyed the land in question, with others, by a warranty deed (containing a mineral reservation) to John B. Ward and Gardner Green. The complainant claims title from that source through successive conveyances, and by peaceable adverse possession under color and claim of title for the statutory period.
On September 2, 1872, the Marquette & Ontonagon Railroad Company was consolidated with the Houghton & Ontonagon Railroad Company, forming the Marquette, Houghton So Ontonagon Railroad Company. The land in question, with others, was certified in 1871 to the State of Michigan, for the construction of the Houghton So Ontonagon Railroad Company. On June 13, 1873, it was patented by the State of Michigan to the copsolidated company, the Marquette, Houghton & Ontonagon Railroad Company. Subsequently the Marquette, Houghton So Ontonagon Railroad Company, by two conveyances, dated, respectively, August 30, 1881, and April 12, 1884, conveyed to the defendant, and its successors and assigns, all mineral rights in thesq lands and others, which had been previously reserved, reciting, among other things, the right to quarry and take any valuable stone or marble found thereon. Shortly before the commencement of' this suit some explorers found deposits of marble and serpentine upon the land, and were proceeding to develop the same under an option for a lease given them by defendant. Those proceedings were the occasion of filing the bill herein. The lands having been certified to theHoughton & Ontonagon Railroad. Company, and patented -to the Marquette, Houghton So Ontonagon Railroad Company, the defendant denies that complainant received any title through the deed from the Marquette So Ontonagon Railroad Company.
Two important questions are presented by the pleadings, and proofs:
1. Has the complainant shown title, either by peaceable adverse possession, or by operation of the warranty deed given it by the Marquette & Ontonagon Railroad Company, inuring to its benefit, so as to bind the Marquette, Houghton & Ontonagon Railroad Company?
2. If so, does the mineral reservation contained in the deed given by the Marquette & Ontonagon Railroad Company in 1867 include marble and serpentine?
Upon the question of possession, I agree with the learned circuit judge, where he says:
“I think that the testimony fairly shows that during the past eighteen years the complainant and its grantors have openly and peaceably exercised such acts of possession and ownership from time to time as presumptively were and naturally must have been known to the agents of the defendant and its grantors. They' have paid the taxes from year to year, and publicly, and without their rights being questioned, cut valuable timber from the land at different times as they saw fit, have erected shanties thereon for the;r workmen, cut off hard wood and burned charcoal upon the land for several years, cleared and cultivated a portion of it, and at one time raised some crops. They have pastured it, run lines around it, and made roads over it, and looked it over from year to year to prevent trespass. They have occupied and used it to the exclusion of all others, doing'all. such things as were consistent with the nature of the land, publicly and without interference, under a color of title based upon a warranty deed, properly recorded, from one of the very companies which by consolidation formed the defendant's grantor. This I infer is sufficient to establish title by limitation.
“If the position of the defendants as to the warranty deed given by the Marquette & Ontonagon Railroad Company is correct, and they are not, through the Marquette, Houghton & Ontonagon Railroad Company, affected or bound by it, but derive what title they claim from an entirely different source, it seems to follow that, they can claim nothing by virtue of the mineral reservations in said deed, and the view taken upon the statute of limitations disposes of the entire-case in favor of the complainant.
“ It seems to me, however1, that by the consolidation of those companies the Marquette, Houghton & Ontonagon Railroad Company did become interested in and bound by the terms of said warranty deed to the same extent that the Marquette & Ontonagon Railroad Company was before it disappeared in the consolidation. The statute upon that subject provides that call the debts, liabilities, and duties of either company shall thenceforth attach to such new corpoi'ation, and be enforced against the same, to the same extent as if such debts, liabilities, and duties had been originally incurred by it.' Had the Marquette, Houghton, & Ontonagon Railroad Company originally given the warranty deed in 1867, and then incurred the liabilities thereunder, there would certainly be no question now raised by defendant as to complainant's title," If the Marquette & Ontonagon Railroad Company had given a contract for a deed instead of a warranty deed, there could be no question but that the Marquette, Houghton & Ontonagon Railroad Company could have been compelled to specifically perform. “No question of an innocent purchaser is involved here, and the defendant is in exactly the same position as the Marquette, Houghton & Ontonagon Railroad Company would be if a defendant in this suit."
The deed from the Marquette, Houghton & Ontonagon ■ Railroad Company to defendant, dated April 12, 1884, recites that:
“Whereas, the Marquette, Houghton and Ontonagon Railroad Company, a corporation existing under the laws of the State of Michigan, has heretofore conveyed certain lands to various persons or corporations, and has in said 'conveyances saved and reserved to it, the said company, and to. its successors and assigns forever, the ores, minerals, slate, sandstone, limestone, granite, marble, and other stone or rock valuable for building or other purposes, on or beneath the surface of said lands, or any part or portion thereof, or has made, in similar conveyianees, similar reservation of mineral rights, the same being made for the purpose of reserving to said company, its ¡successors and assigns, the right of property in the mineral products beneath the surface of the said lands, together with the right of entry on said lands to explore therefor, and to mine, smelt, and refine such ores and minerals, and to quarry and dress such stone or rock, and to remove the same, and for that purpose to erect or construct and maintain all such buildings, machinery, roads, or railroads, sink such shafts, remove such soil, occupy as much of said land, and use and divert such streams or ponds of water thereon, as might be necessary or convenient for the successful prosecution of said business, or however else said reservations or mineral rights may be expressed in said conveyances from said company to said persons or corporations, reference to which, for greater certainty, is hereby made; and—
“Whereas, the said Marquette, Houghton & Ontonagon Eailroad Company has in a certain deed of release bearing date August 30, A. D. 1881, released the said reservations and rights retained by and existing in said company as aforesaid to the Michigan Land & Iron Company, Limited, a partnership association existing by and under the laws of the State of Michigan, and has executed to said copartnership association a deed therefor, designating the same by general terms; and—
“ Whereas, the said Michigan Land & Iron Company, Limited, has deemed it desirable that the said reservations and rights should be conveyed by a more specific and definite description thereof, and has requested said Marquette, Houghton . & Ontonagon Eailroad Company to execute a release thereof:
“ Now, therefore, * * * the'said Marquette, Houghton & Ontonagon Eailroad Company, * *' * for the purpose of more specifically defining the rights and conveyances already made, but not for the purpose of increasing,or enlarging in anyway said conveyances, doth hereby remise, release, and forever q^^itclaim, unto the said Michigan Land & Iron Company, Limited, all its right, title, and interest, as now existing, in all the lands conveyed by it by conveyances executed prior to said 80th day of August, A. D. 1881, containing the savings and reservations of mineral rights aforesaid, and all its right to the said ores, minerals, slate, sandstone, limestone, granite, marble, and other stone or rock, and its right to enter upon said lands, and to use the same in manner provided in such reservation and reservations aforesaid, and such right, title, and interest as it possesses in the lands covered by said several conveyances, and to the ores, minerals, and other substances, and all rights of entry and use of and over said lands.”
Following this is the statement that “the conveyance hereby made is executed to be subject to the various conditions, stipulations, agreements, and obligations contained or to be contained in said several conveyances;” after which comes a general description of the lands intended to be embraced, among which are the lands in controversy. This deed expressly recognizes the conveyance made to complainant’s grantors, for it conveys nothing but reserved rights in any lands, and it recognizes this land as though “conveyed by it.”
As to the second question, the language of the reservation is as follows:
“Saving and reserving to the grantor herein, its successors and assigns, forever, all mines and ores of metals that are now or may be hereafter found on the said lands, with the right to enter upon the same, and use and occupy all lands necessary for mining purposes, to lay down railroad tracks, and build roads and railroads, over and across the same, and to mine and carry away the mineral thereon.”
Upon this point I adopt the language of the circuit judge:
“It seems proper, in a case like the present, to give the language its natural and common meaning, such as the contracting parties must have contemplated and understood under the circumstances surrounding the transaction. At that time, no marble or serpentine was known to exist in the country. The only valuable mineral found in that portion of the country was iron. In a subsequent portion of the same deed are elaborate provisions as to delivery of iron ore. Manifestly the principal consideration in the minds of the parties was iron ore. At most, it seems to me they could have only meant, and a natural construction would only cover, mines and ores of metals and minerals in common use, and commonly known as such, and would not include quarries or deposits of marble, serpentine, or other building material, although they .do belong to the mineral kingdom. The construction contended for would reserve everything but the timber, and render the deed nothing-more than a license to enter and cut the same, with, per haps, a lease of the land during the pleasure of the grantor. Such, clearly, was not the intention of the parties.”
The decree of the court below is affirmed, with costs to complainant.
The .other Justices concurred. | [
-13,
52,
33,
-8,
-3,
59,
52,
19,
28,
6,
7,
10,
21,
-21,
2,
13,
-51,
-22,
-5,
29,
3,
-20,
34,
-42,
1,
-3,
7,
7,
-36,
-47,
-1,
17,
-23,
8,
20,
-16,
56,
18,
-20,
25,
10,
28,
16,
5,
12,
25,
21,
-17,
-14,
-19,
43,
0,
-46,
-2,
-30,
-9,
-29,
-11,
7,
23,
-19,
-5,
19,
0,
57,
18,
44,
5,
-7,
-21,
-27,
68,
11,
-36,
26,
27,
-32,
5,
-47,
41,
-11,
6,
15,
-34,
-30,
21,
-36,
-3,
-15,
0,
-6,
-31,
-47,
22,
51,
39,
-23,
14,
11,
-20,
9,
52,
-32,
-21,
37,
-39,
-23,
-23,
-20,
10,
-12,
-22,
13,
-16,
-14,
18,
-30,
-21,
14,
5,
-19,
-32,
-3,
39,
-21,
-25,
-24,
11,
-1,
20,
8,
-31,
6,
2,
8,
8,
5,
-83,
1,
-6,
-18,
13,
6,
-16,
3,
-13,
-15,
-15,
19,
-30,
-37,
-13,
5,
7,
-17,
16,
42,
10,
91,
-2,
64,
6,
38,
-10,
-63,
3,
14,
-64,
11,
33,
24,
-30,
4,
-51,
25,
-4,
64,
34,
-59,
-17,
48,
-7,
41,
-46,
-32,
-31,
3,
-21,
-9,
-14,
21,
-5,
27,
-37,
-51,
64,
-7,
-30,
-18,
-40,
26,
-51,
2,
7,
-13,
-7,
54,
27,
23,
42,
-6,
15,
-68,
-36,
-18,
3,
14,
-26,
31,
-25,
82,
32,
30,
27,
-2,
2,
10,
-10,
-15,
-11,
13,
-24,
33,
1,
-64,
40,
20,
-12,
28,
0,
0,
-30,
-38,
-35,
8,
0,
-43,
-42,
-46,
52,
23,
-34,
-49,
-25,
-21,
10,
27,
4,
-20,
-62,
-7,
10,
-32,
28,
-20,
-7,
-69,
30,
-35,
-5,
-2,
23,
86,
38,
-16,
-16,
51,
-19,
-9,
30,
47,
-21,
13,
1,
12,
37,
-32,
-2,
-19,
16,
-16,
-11,
8,
-26,
0,
10,
-22,
-12,
9,
21,
-10,
22,
-9,
-1,
-11,
52,
-1,
-5,
66,
10,
15,
-2,
-8,
-38,
12,
14,
15,
41,
27,
-45,
21,
0,
-24,
6,
30,
24,
39,
9,
-6,
7,
30,
-3,
22,
23,
-21,
-26,
24,
-55,
-10,
-3,
44,
8,
16,
16,
-31,
14,
0,
-51,
48,
-19,
21,
-10,
-13,
25,
22,
7,
-9,
-42,
-8,
16,
39,
9,
24,
-14,
-14,
-22,
-93,
-32,
39,
34,
-34,
10,
1,
81,
28,
-34,
38,
27,
-36,
47,
-23,
26,
8,
9,
28,
6,
12,
24,
-77,
-13,
6,
-31,
28,
38,
18,
42,
-18,
-14,
-47,
-21,
-9,
39,
3,
22,
14,
-24,
7,
38,
4,
2,
10,
-38,
19,
-31,
17,
-4,
30,
-2,
34,
19,
-12,
39,
-32,
-8,
14,
-8,
14,
3,
-75,
26,
-17,
33,
55,
61,
-25,
-9,
-36,
-22,
-49,
-14,
-12,
70,
5,
-16,
-17,
7,
-58,
50,
46,
-13,
-9,
28,
-59,
11,
-45,
21,
0,
-40,
67,
35,
-12,
25,
23,
-4,
-40,
-44,
9,
-34,
17,
16,
13,
42,
16,
-2,
0,
-9,
46,
31,
-1,
26,
3,
0,
11,
7,
-31,
-96,
0,
13,
18,
26,
40,
8,
17,
-14,
46,
-38,
-66,
-49,
58,
46,
-44,
7,
48,
-15,
-17,
40,
21,
11,
2,
51,
2,
-24,
22,
-30,
-3,
8,
-13,
-8,
-16,
31,
-55,
-4,
-35,
4,
7,
8,
17,
-58,
46,
-19,
-13,
-23,
-5,
31,
-7,
-1,
0,
-1,
-19,
20,
-3,
-28,
26,
-4,
-2,
13,
-56,
-39,
37,
-33,
-62,
23,
-49,
13,
-11,
4,
-34,
19,
20,
-34,
-42,
-63,
3,
-81,
-15,
25,
-13,
-19,
13,
-1,
-63,
43,
47,
-21,
13,
43,
36,
0,
-19,
23,
-1,
-54,
-52,
-56,
15,
-8,
-34,
-31,
-34,
4,
-57,
-4,
2,
8,
-13,
51,
13,
64,
63,
-14,
-4,
-52,
-49,
-27,
-24,
-17,
-55,
6,
64,
27,
11,
-19,
-2,
22,
26,
39,
6,
-27,
55,
-12,
-7,
-20,
15,
-18,
15,
17,
6,
32,
-57,
-18,
-23,
9,
-62,
29,
24,
15,
62,
10,
0,
-33,
12,
-22,
-54,
2,
-16,
0,
-36,
60,
-26,
27,
-14,
21,
68,
-4,
-2,
14,
3,
28,
28,
-28,
32,
-14,
8,
-3,
-36,
-24,
-10,
-48,
54,
17,
38,
10,
-25,
-27,
-16,
-75,
2,
45,
19,
8,
12,
-3,
9,
-10,
40,
4,
-34,
48,
-15,
-24,
-14,
47,
-4,
-35,
3,
3,
8,
-18,
59,
-16,
-47,
86,
65,
0,
4,
-18,
2,
-49,
-6,
-4,
43,
-28,
29,
19,
-11,
43,
2,
-15,
-16,
-42,
20,
-35,
8,
-29,
2,
18,
-43,
-27,
-20,
12,
-29,
43,
22,
10,
-27,
-10,
-10,
-10,
-48,
0,
18,
-45,
-56,
2,
-6,
4,
54,
8,
-44,
-5,
-34,
9,
2,
56,
39,
-58,
-45,
35,
-41,
7,
24,
8,
-23,
-22,
-25,
-8,
-16,
-56,
5,
-25,
-13,
4,
-44,
-7,
-9,
-14,
12,
43,
47,
-29,
21,
14,
-5,
-6,
-20,
-36,
1,
9,
53,
-10,
-38,
-9,
22,
-6,
-51,
-14,
-9,
-27,
6,
24,
-8,
-8,
1,
-6,
-30,
14,
-54,
0,
-47,
37,
-41,
-18,
-35,
-37,
5,
19,
-50,
18,
-4,
-18,
-30,
23,
6,
-10,
2,
3,
17,
8,
16,
-29,
37,
0,
-54,
-14,
30,
-7,
1,
-7,
-34,
50,
4,
-16,
-24,
-53,
-20,
5,
-11,
3,
-2,
9,
-59,
-13,
-18,
-26,
-18,
-1,
-6,
-18,
-1,
70,
51,
12,
-62,
0,
11,
6,
-18,
-27,
0,
-4,
-17,
-3,
-23,
-11,
10,
15,
36,
-61,
10,
-27,
-2,
2,
48,
-32,
1,
-9,
42,
-6,
46,
21,
-15,
-31,
-16,
2,
-24,
-33,
1,
-1,
-29,
34,
-27,
23,
16,
4,
-12,
2,
38,
15,
64,
22,
-12,
1,
-30,
-10,
-46,
-16,
-16,
0,
-24,
36,
57,
5,
1,
-15,
-60,
62,
-24,
43,
-27,
29,
-45,
-41,
5,
-61,
33,
28,
-22,
-46,
24,
42,
-29,
-1,
17,
1,
0,
-11,
3,
18,
25,
67,
33,
7,
10,
75,
-4,
39,
-36,
-20,
0,
-94,
46,
-6,
7,
35,
9,
-40,
-4,
-25,
52,
-39,
-35,
3,
-28,
-28,
4,
6,
31,
17,
36,
-28,
33,
-39,
11,
17,
29,
24,
-16,
-35,
-23,
29,
6,
25,
-18,
-26,
36,
-5,
25,
-9,
-22,
-55,
8,
-20,
-12,
34,
37,
34,
38,
5,
20,
-3,
-40,
5,
15,
30,
40,
49,
3,
6,
42,
-17,
26,
4,
-24,
45
] |
Morse, J.
These cases all depend upon the same state of facts.
On the 1st day of December, 1890, the following persons composed the board of auditors of Wayne county, to wit: Charles P. Collins, George C. Lawrence, and James Holihan. On that day the relators were appointed to places or offices by said board, as follows: John E. Clark, city physician; John B. Willcoxson, special officer in justices3 courts; George C. Burgess, chief janitor of county buildings; James A. Trainor, file clerk of county records. They each entered, January 1, 1891, upon their respective duties, and continued to fill such positions until May 1, 1891, at which time they were discharged. The notice of appointment informed each of them that he was appointed for a term commencing. January 1, 1891, and ending December 31, 1891. They were each after-wards notified that, at a meeting of the board held April 57, 1891, a resolution was unanimously adopted, in accordance with which his services would not be required after April 30, 1891. At this time the board was composed of Henry J. A. Leteker, David Trombly, and James Holihan.
Each of the relators except Clark entered into a contract or agreement with the board of auditors. The agreements, in all the cases, were dated April 13, 1891, and were signed by Collins and Lawrence for the board, and were made after the result of the spring election was known, but before Trombly and Leteker had assumed office by virtue of the election. The contracts were evidently made to keep the relators in their places, in fear that an attempt would be. made to remove them, as the election had changed the political complexion of the board. The agreements are the same, except as to name, position or office, and amount of salary. The agreement with Burgess is as follows:
“It is hereby agreed by and between the board of auditors for Wayne county, State of Michigan, and George 0, Burgess, as follows: The said board hereby agrees to hire the said George 0. Burgess as chief janitor of county offices until the 1st day of January, A. D. 1892; and the said George 0. Burgess agrees to render service to said board as such chief janitor during such time; and the said board hereby agrees to pay him for the same the sum of one thousand dollars per year, payable in weekly installments of nineteen 23-100 dollars each.
“ George 0. Lawrence,
“Chas. P. Collins,
“ County Auditors.
“ George C. Burgess.
“Dated Detroit, April 13, 1881.”
No charges of incompetency, official misconduct, habitual. or willful neglect of duty, nor any other charges, whatever, were presented against the relators by any one to the board, nor was either of them given an opportunity to be heard or to defend himself against any charges. The action had in discharging them was without notice, except the notice that their services would not be required after,April 30, 1891, in accordance with a resolution passed on the 27th of the same month.
The present board of auditors return that they find no agreements, or copies of the same, on file in their offices, but there is a resolution of record, passed April 13, 1891, by the votes of the two outgoing members, that such agreements be entered into. They further return that ■on the 27th day- of April, 1891, believing the relators to be incompetent to exercise properly the duties of their .respective positions, they unanimously adopted the following resolution:
.“Whereas, In our opinion, the following named persons are incompetent to execute properly the -duties of their offices, namely, George C. Burgess as chief janitor, John B. Willcoxson as special officer in the justices’ ■courts, James A. Trainor as file clerk of the county records, and Dr. John E. Clark as county physician: Therefore, be it—
“Resolved, That the above-named persons be, and are hereby, removed, and the said offices declared vacant, .and that the services of the said persons be, and the same are hereby, dispensed with, from and after the first day ■of May, 1891.”
They assert in the return that the said relators respectively are incompetent to execute properly the duties of the several positions to which they had been respectively .appointed; that they immediately appointed other persons to the places so made vacant, who accepted such appointments, and entered upon the duties thereof on May 1, 1891, and have since filled said places. They claim the Tight to make these removals under the provisions of .section 8, subd. 4, Act No. 63, Laws of 1889. They .admit that the relators protested against removal; that they held themselves in readiness and offered to discharge the duties of their offices, and demanded pay, after the ■30th of April, 1891.
The relators severally ask the writ of mandamus to -compel the said board to vacate and set aside their action in removing them, to restore them to and put them in the possession of their respective places, and to pay them the compensation due them under and by virtue of their respective appointments.
This controversy is the outcome of a scramble for jfiaces, in which it is charged that members of each political party have manifestly sought to gain partisan advantage by conferring or undertaking to confer without right the positions within the gift of the board upon its own members, to the exclusion of members of the opposite party. There is much in the record that bears out the claim of both parties in this respect. Before the election, in the fall of 1890, the board of auditors was composed of Charles P. Collins and George C. Lawrence, Republicans, and James Holihan, Democrat. November 4, 1890, Joseph Nagel, a Democrat, was duly elected to succeed Collins. Collins’ term would expire December 31, 1890, and Nagel’s term as his successor would have commenced January 1, 1891, had Nagel not died on the 9th day of December. Had Nagel lived, the Democrats would have had a majority of the board at the beginning of the year. Therefore, it is claimed, we find the old board meeting before Nagel’s death, and on December 1, and undertaking to anticipate the appointments for the new year. The persons then in the places were not removed, but the relators and others were appointed -to take the places on January 1, and to hold them for one year. If Nagel had lived, the validity of these appointments would have been, to say the least, questionable. See City Savings Bank v. Huebner, 84 Mich. 392. As Collins held over until the April election', the relators, who ,are all Republicans, received their places. In the April election, Leteker was elected to succeed Collins, and the Democrats voted also for Trombly to succeed Lawrence, claiming a vacancy. The Republicans refrained from voting for more than one candidate, claiming that there was no vacancy, and that Lawrence held over. By some means Trombly, who was declared elected by the county canvassers, ousted Lawrence, and is now acting, as relators claim, as a de facto member of the board. This makes the present board solidly Democratic, and there would have been two Democrats and one Republican on the board had Lawrence remained in office. It is claimed that, in view of this approaching political status, the Republican members of the board, on the 13th' of April, passed the resolution to enter into contract, and made agreements with all the relators and other appointees to hire them for one year from January 1, 1891. As soon as possible after the Democrats obtained control of the board, the resolution declaring the relators and other appointees incompetent was passed, and all of them removed, and other persons appointed in their stead. By a singular coincidence all the persons removed were Republicans, and all the persons' appointed to fill their places were Democrats. The relators charge in their petitions that their removals were made solely and purely on account of political partisanship. The board return that they “deny that the cause of the removal of said relators is solely and purely political partisanship.’*
It is evident that, if the positions of janitor and like> •places in public offices were filled with more regard for the good of the public service,, and not entirely as rewards for political services, the courts would have more time to devote t’o other important interests of suitors. But the right of these relators must be tested by the law as it stands, and without regard to the unworthy motives either of their appointment or removal.
It is claimed by them that their removal was illegal; that the term of their offices, by law, is ope year; and that they could not be removed therefrom without charges being preferred against them, and opportunity given for a hearing thereon. The statute authorizing these appointments by the auditors provides that the persons so^ appointed—
■ “Shall hold office for one year from the first day of January, unless otherwise specially mentioned in the resolution of the board making such appointments; * * *. and the board shall have the same power of removal of any such officer or appointee as boards of supervisors possess under the statutes of this State, provided such removals be made with the concurrence of all the members of said board.” 3 Howr. Stat. § 518i, subd. 4; Act No. „63, Laws of 1889, § 8.
The statute authorizing boards of supervisors to make' removals reads as follows:
“The board of supervisors shall have authority to remove any officer or agent heretofore or hereafter to be appointed • by said board when, in their opinion, he is incompetent to execute properly the duties of his office, or when, on charges and evidence, they shall be satisfied that he has. been guilty of official misconduct or habitual or willful neglect of duty, if, in their opinion, such misconduct or neglect shall be a sufficient cause for such removal; but no such officer or agent shall be removed :for such misconduct or neglect, unless charges thereof ,shall have been preferred to said board of supervisors or the chairman thereof, and notice of the hearing, with a copy of the charges, delivered to such officer or agent, and a full opportunity given him to be heard in his-defense, either in person or by counsel.” How. Stat. § 483, subd. 17.
The respondents base their right, of removal upon the peculiar wording of this statute. It will be seen that they are authorized to remove an officer when, in their opinion, he is incompetent to execute properly the duties <of his office, or when, on charges and evidence, they shall Ibe satisfied that he has been guilty of official misconduct ■or habitual or willful neglect of duty, etc.; and the officer ■or appointee cannot be removed for such misconduct or ■neglect without charges preferred to the board, and ■notice of the hearing and copy of the charges delivered to him, and a full opportunity given him to be heard. It is contended, and I think justly, that the Legislature did not intend that charges should be preferred or notice given to a person sought to be removed for incompetency; that, if all the members of the board were of the opinion that he was incompetent to execute properly the duties of his office, such opinion would be sufficient ground for removal under the statute, and that notice and hearing would not be necessary. There can be no other interpretation of the statute, consistent with its wording, and the clear distinction made between the procedure in removals for the different causes assigned. The statute states first how the appointee may be removed for incompetency, and 'then states that he may also be removed for other causes, if certain proceedings be had, which proceedings are not required by. the letter of the statute in the first place. By every canon of construction this must be considered the meaning and intent of the statute, —that the removal for incompetency is not governed by the exception in the statute, which expressly mentions the other causes and omits that; and this exception, connected with the fact that the removals 'for other causes are also qualified in the statute, in that they must be on •charges and evidence, which qualification is' lacking in removals for incompetency, leads irresistibly to the conclusion that the Legislature intended that no charges, notice, or hearing were necessary in such case.
Cases are cited by relators’ counsel to show that the policy of our State system of government favors appointments to office for fixed periods, and almost entirely rejects the policy of removals at will. See Mead v. Treasurer of Ingham Co., 36 Mich. 416; People v. Lord, 9 Id. 227; Clay v. Stuart, 74 Id. 411; Hallgren v. Campbell, 82 Id. 255; Dullam v. Willson, 53 Id. 392; Metevier v. Therrien, 80 Id. 187. In three of these cases — People v. Lord, Clay v. Stuart, and Metevier v. Therrien — the offices were elective, and the terms fixed by the Constitution, and in the last two the law expressly stated the method of procedure to be taken in removals. In Gager v. Supervisors, 47 Mich. 167, and Mead v. Treasurer of Ingham Co., 36 Id. 416, the removals were not attempted under the incompetency clause of the statute, and such clause was not interpreted or passed upon by the Court. In Hallgren v. Campbell the power to remove certain officers at the pleasure of the council was expressly given in the same section of the charter that mentioned the street commissioner as an officer. He was not included among those that might be so removed. But.this last case recognizes, as do others in this State, the authority of the Legislature to authorize the removal of appointed officers, such as the relators, at the will of the appointing power. See Stadler v. City of Detroit, 13 Mich. 346, where the city marshal was so removed; Attorney General v. Cain, 84 Id. 223; Portman v. Fish Commissioners, 50 Id. 258. See, also, opinion of Campbell, J., Dullam v. Willson, 53 Mich, at page 410. And, although it is the undoubted policy of our' State, and , best in accord with our system of government, that officers should hold for fixed terms, and not be subject to removal at the will or caprice of the appointing power, yet there is no constitutional objection to the conferring of such power of removal in offices not elective, and the Legislature has undoubted authority to do so. 1 Dill. M’un. Corp. § 250; Mechem, Pub. Off. § 454.
It is argued, and it is undoubtedly true, if it be held that these relators, and other appointees of the board of auditors, can be removed upon a finding by resolution that, in their opinion, such person is incompetent to execute the duties of his office, without any charges jureferred or notice to him or hearing granted, and their opinion cannot be questioned or the fact of incompetency rebutted, that the power of removal in such case is the power of removal at will. But, as before said, this is not prohibited by the Constitution, and in the cases before us these positions cannot be said to attain to the dignity of an office. It is not shown that either of the relators was required by law to take an oath of office or to file an official bond, or that they did either. They are not officers, but employés. Throop v. Langdon, 40 Mich. 673. Qtio warranto would not lie for any of them. If it would, these relators could have no -relief by mandamus. File clerks and janitors are not officers; they are employés; and a special officer for justices’ courts, or even a county physician, is not the holder of such an office as the courts would concern themselves about in quo warranto proceedings. See People v. DeMill, 15 Mich. 182; Portman v. Fish Commissioners, 50 Id. 258; Attorney General v. Cain, 84 Id. 223; Throop v. Langdon, 40 Id. 686. By these cases it is settled that a chief clerk in the assessor’s office in the city of Detroit and a janitor in the city offices are not officers; neither is a superintendent of fisheries for the State of Michigan, nor a policeman in the city of Adrian.
Nor is it at all singular that the Legislature made a distinction in the method of procedure between removals for incompetency and removals for official misconduct and willful neglect of duty.- One charge is hard to specify and to establish, while the others are not. Official misconduct and willful neglect of duty would appear about the same to all,'while incompeteney would involve at once a difference of opinion, as it would be generally a mere matter of opinion. If a removal, in cases of janitors and the like employés in and about public offices, for incompetency, is to be made, it would seem wiser to leave it to the judgment or opinion of the appointing officer, rather than, every time a hall sweeper or a door closer is to be removed from public office for failure to do his work properly, to require that charges should be preferred, and a hearing ¡had upon them. The relators in this case may have a remedy if they have been removed solely for political .reasons, and unjustly branded as incompetent when they are not; but it is not by this proceeding, as they cannot here traverse the statement that 'in the opinion of the board they were incompetent. It is the opinion that controls, and we must be bound by the return of the respondent that this opinion was the cause of the removal.
The writs are denied, but without costs.
The other Justices concurred.
See Lawrence v. Hanley, 84 Mich. 399.
See Attorney General v. Trombly, ante, 50. | [
21,
-49,
46,
-7,
-7,
-9,
-34,
-41,
19,
-2,
20,
-71,
7,
7,
21,
1,
-1,
15,
-17,
-32,
47,
2,
-47,
1,
-3,
0,
25,
-19,
-22,
-48,
-28,
26,
-38,
-12,
39,
-26,
-7,
0,
2,
-71,
-22,
2,
0,
-14,
0,
44,
40,
4,
4,
-67,
9,
15,
27,
60,
32,
24,
-5,
42,
11,
-55,
14,
34,
3,
-12,
0,
17,
8,
39,
63,
20,
10,
-35,
2,
-45,
27,
-8,
-9,
-73,
-14,
10,
2,
9,
-31,
-7,
-22,
-15,
-23,
-3,
34,
22,
0,
8,
-17,
46,
47,
-16,
-52,
11,
15,
25,
0,
-8,
-35,
33,
32,
-35,
26,
1,
-37,
23,
-11,
28,
75,
24,
18,
32,
27,
-49,
41,
30,
-37,
-3,
-14,
-22,
1,
-9,
1,
-34,
-35,
-5,
6,
3,
13,
-57,
23,
18,
14,
7,
5,
30,
-29,
33,
-30,
-19,
-4,
11,
-35,
-8,
24,
13,
-22,
55,
74,
1,
-30,
0,
51,
-33,
38,
-9,
19,
7,
7,
-37,
-98,
15,
-40,
0,
-11,
22,
12,
41,
12,
-24,
-20,
-36,
-11,
27,
-9,
69,
8,
-42,
-2,
-48,
4,
-106,
47,
-35,
19,
-12,
29,
-29,
-14,
-16,
28,
2,
11,
8,
-15,
3,
-5,
0,
-54,
24,
-19,
2,
0,
-10,
-14,
14,
-2,
-31,
16,
-20,
29,
-17,
-18,
-17,
28,
-4,
39,
25,
3,
34,
-32,
-14,
-9,
1,
13,
15,
20,
-18,
-4,
-34,
-12,
-5,
-39,
68,
10,
25,
-28,
-32,
37,
41,
24,
-45,
-39,
-47,
7,
50,
-11,
54,
6,
18,
-48,
13,
11,
-17,
16,
6,
-31,
-25,
1,
-36,
16,
3,
11,
46,
35,
6,
2,
18,
43,
-21,
-51,
2,
1,
-20,
-71,
-12,
-11,
-39,
-46,
-28,
13,
-11,
-16,
-28,
-53,
-14,
4,
36,
-42,
24,
16,
30,
59,
22,
22,
-36,
-46,
22,
-10,
-19,
24,
9,
-50,
-21,
17,
-7,
45,
-17,
-6,
33,
23,
-60,
-23,
26,
1,
30,
-27,
-18,
-47,
9,
-45,
-10,
26,
52,
-34,
-42,
-34,
-27,
-10,
4,
7,
30,
28,
64,
41,
-44,
33,
-40,
38,
-2,
9,
-9,
-4,
-52,
24,
-19,
47,
-29,
0,
27,
-44,
2,
-10,
20,
45,
5,
-4,
-8,
-10,
12,
-27,
1,
-57,
-37,
39,
15,
36,
-6,
-17,
-1,
30,
19,
-5,
21,
20,
51,
-16,
12,
0,
-28,
-13,
-49,
32,
-25,
-26,
-13,
-14,
5,
-17,
18,
-5,
58,
45,
-13,
-49,
3,
-4,
31,
32,
37,
13,
37,
-40,
-51,
7,
47,
28,
-5,
-33,
-49,
71,
4,
-5,
-26,
53,
1,
58,
26,
-2,
15,
29,
-26,
52,
57,
19,
0,
1,
-31,
66,
26,
8,
-18,
-82,
-20,
-44,
-11,
6,
-25,
23,
6,
-6,
13,
7,
74,
28,
72,
-2,
24,
-5,
-23,
26,
37,
-19,
-32,
21,
-6,
2,
-28,
0,
11,
-25,
-9,
19,
11,
-38,
16,
-30,
-43,
-46,
-28,
-67,
-32,
2,
-47,
18,
-9,
-11,
-38,
-8,
31,
-59,
-38,
-16,
-51,
-12,
10,
38,
-29,
-38,
-15,
56,
43,
17,
-26,
1,
20,
-2,
45,
11,
-47,
-45,
-30,
-20,
-16,
6,
7,
-2,
-45,
12,
125,
3,
18,
-4,
32,
-9,
-43,
12,
39,
-35,
-2,
14,
63,
-5,
3,
16,
-54,
-38,
6,
6,
47,
31,
73,
18,
53,
-5,
-57,
38,
-28,
55,
34,
4,
-11,
2,
44,
40,
-33,
16,
1,
-26,
-38,
-63,
9,
15,
-3,
16,
3,
-42,
-83,
26,
-60,
-25,
5,
-32,
-10,
18,
-40,
-4,
-31,
34,
44,
25,
-4,
-47,
-31,
62,
16,
58,
-8,
-31,
-19,
57,
-20,
-4,
-17,
-33,
47,
-50,
11,
-107,
70,
51,
3,
2,
59,
46,
-13,
47,
1,
39,
18,
17,
8,
6,
11,
13,
-7,
-48,
-21,
-4,
14,
-47,
16,
-26,
55,
31,
-4,
-46,
7,
25,
0,
-1,
-20,
53,
-8,
-36,
1,
11,
11,
-63,
28,
3,
-8,
72,
-17,
21,
35,
-14,
-83,
-59,
-2,
-10,
31,
-27,
3,
11,
5,
-18,
-52,
9,
20,
-41,
15,
51,
-38,
0,
-22,
30,
31,
-10,
34,
5,
-15,
32,
0,
16,
-36,
43,
-11,
33,
-29,
-9,
-65,
-2,
8,
32,
39,
35,
15,
-10,
49,
14,
-44,
-40,
23,
-72,
-2,
5,
22,
-37,
31,
-11,
-6,
38,
-31,
27,
-8,
-35,
-16,
5,
33,
17,
-17,
27,
-58,
-4,
-18,
10,
-93,
4,
32,
-7,
14,
-30,
22,
14,
39,
-7,
-1,
20,
-20,
-4,
-19,
-27,
-18,
-17,
-24,
2,
-5,
-28,
-85,
31,
11,
-6,
42,
-38,
8,
34,
-7,
22,
15,
2,
25,
74,
45,
-88,
-7,
33,
22,
-14,
21,
31,
28,
-33,
32,
-3,
61,
29,
26,
-31,
-9,
-27,
0,
16,
22,
-31,
-33,
-15,
27,
-10,
13,
40,
-32,
23,
10,
-9,
-33,
19,
28,
19,
22,
-20,
-41,
41,
-14,
-14,
-30,
13,
-60,
3,
-28,
-42,
-29,
36,
-28,
-23,
14,
-3,
0,
-31,
16,
20,
5,
-17,
-11,
12,
31,
-4,
50,
-36,
-67,
-13,
-10,
-26,
-14,
-3,
-29,
-11,
-74,
47,
-5,
-30,
-14,
-10,
0,
-14,
39,
9,
55,
-71,
7,
19,
-36,
-36,
-36,
-23,
45,
-2,
22,
-25,
-21,
-52,
-25,
-39,
26,
-22,
-31,
-29,
4,
-34,
49,
23,
23,
90,
-41,
-26,
-19,
24,
-14,
4,
-18,
-32,
30,
41,
-25,
6,
9,
0,
-44,
-9,
-32,
-38,
35,
38,
-13,
-21,
3,
-27,
40,
9,
-13,
-4,
52,
61,
-44,
42,
64,
-29,
-6,
-14,
41,
35,
-61,
58,
-53,
-33,
-4,
-19,
-35,
32,
13,
-54,
-32,
-32,
-29,
21,
52,
7,
2,
-59,
-30,
-93,
-55,
6,
1,
7,
7,
36,
-14,
18,
-19,
-10,
-22,
45,
29,
10,
57,
34,
12,
7,
5,
32,
11,
21,
-13,
21,
-27,
36,
-27,
11,
-27,
30,
42,
6,
-18,
-1,
45,
-10,
40,
31,
51,
8,
-19,
16,
-31,
-35,
-4,
-2,
-22,
-6,
46,
-64,
-21,
-52,
-42,
26,
15,
20,
-4,
8,
16,
-24,
-16,
-22,
-22,
29,
-15,
-15,
-11,
20,
91,
-17,
6,
8,
-29,
-10,
20,
0,
-51,
36,
-51,
3,
-16,
-56,
-48,
24,
-45,
49,
-2,
0,
40,
11,
-3,
6,
41,
-4,
18,
10,
-38,
54,
-9,
-24,
18,
54,
14,
41,
-51,
-35,
-32,
-49,
-9
] |
Morse, J.
Grand river is one of the largest and most important inland streams of the State. It is a navigable river. It has been a water highway, upon which for many years logs and lumber have been floated from the pineries to the lake at Grand Haven, or to mills at various points upon the river bank. It has never been navigable for boats, except canoes and bateaux, above Lyons, and no steam-boats have been above the rapids at Grand Eapids for many years. Small steam-boats have run between the mouth and the city of Grand Eapids, and, with the aid of government appropriations, the river below the rapids at that city may be a water-way of great commercial utility; but above the rapids it has nearly served its usefulness a's a navigable stream, except for small pleasure boats. The running of logs, lumber, and timber upon it ■ is no longer of consequence, on account of the exhaustion of the forest supply of easy access to it and its tributaries. But it will ever be an I important public stream, and its navigability for pleas-; ure is as sacred in the eye of the law as its navigability! for any other purpose. Its waters empty into Lake^ Michigan, and from thence flow into the St. Lawrence and to the sea; and under the ordinance of 1787, as well as the laws of our State, it must be regarded in the main as a public river and a common highway. It passes through the city of Grand Rapids, dividing the place into two parts, known as the “East” and “West” sides. “ The Rapids ” take up within the city limits about two miles of the river. The fall of the river bed is such that the water, in the natural state of the river, flowed with such velocity at a shallow depth, among numerous rocks and boulders, over these rapids, as entirely to prevent any navigation, except with canoes; and it was always with great difficulty that one of these could be poled up the stream. The character of the underlying soil of the river here is rocky, — -ledge rock between the dam and Bridge street, and below that it is composed of clay, boulders, and gravel, with 'ledges of rock occasionally cropping out. There never has been a steamboat up or down these rapids but once, and then it had to ’ be drawn up by oxen, horses, and Indians. Logs could never well be floated down without, improvements of the channel. The rapids, in a state of nature, served no useful end in any kind or method of navigation. Upon the east bank of the river, and below the dam, extensive encroachments have been made by property-owners, the first beginning of such encroachments dating back many years, and almost from the first settlement of the country; and made lands, and buildings upon them, of the value of millions of dollars, are now located in the old river bed upon that side.
The defendant, William T. Powers, in 1886, was the owner of the west bank of the river from a point above the present dam down to. the point below the Grand Rapids & Indiana Railroad bridge. The river near by and within the city limits is spanned by eight bridges, in the following order, from the north to the south: The Detroit, Grand Haven & Milwaukee Railway bridge, Leonard-street bridge, Sixth-street bridge, Bridge-street bridge, Pearl-street bridge, ■ Grand Rapids & Indiana Railroad bridge, Fulton-street bridge, and Chicago & "West Michigan Railway bridge. Five of these are maintained by the city. None of these, except the last, have any draw or openings for the passage of boats, and they are comparatively low bridges, with their supporting pmrs resting upon the bed of the river. In 1866 and 1867, Powers, in connection with other riparian owners, and with municipal and legislative consent, built a dam across the river. This dam is about 650 feet in length, and -about 7 feet in height. A chute was put in to accommodate and facilitate the running of logs over the dam. Powers, at the same time, and in connection with this dam, built a canal along the line of his lands, upon the west side, which is about two-thirds of a mile in length. Part of it- was built in the natural ground and part encroached upon the shallow waters of the original stream. The water of this canal is about nine feet deep, and varies in width from 50 to 100 feet. This improvement is worth many thousands of dollars.
In 1885 the Legislature, by Act No. 292 of the Local Laws of that year, amended the charter of Grand Rapids, conferred power and authority on the board of public works of the said city of Grand Rapids to establish dock and building lines on the shores and margin of Grand river within the corporate limits of said city, and in the waters and on the bed of said river along the said shores and margin, beyond which said lines, when so established, no dock, wharf, building, or structure of any kind, except public bridges, should be constructed in said river, or on or over the bed thereof, nor should the water be in any manner obstructed beyond said established lines; and authorized the common council of said city to enforce the power thus granted, relating to the establishment of such lines, by ordinances duly enacted in that regard, and authorized said common council to impose appropriate penalties for that purpose within the limits prescribed by said charter of said city; and also provided that the ordinances or regulations of said common council, in relation to said dock-lines, might be enforced at the suit, of said city by bill in equity. Afterwards, acting under this authority, the board of public works of said city, on the Bd day of May, 1886, established a dock and building line on the shores and margin of said Grand river within the corporate limits. On the 26th day of July, 1886, the common council of said city passed an ordinance entitled “An ordinance to prohibit and prevent the erection of buildings, docks, and .other structures, and to prohibit and prevent the filling in of earth or other material, on the shores of Grand river, or obstructing the waters of Grand river, beyond the dock and building lines established by the board of public works, which was afterwards amended on the 30th day of January, 1888. This ordinance prohibited any encroachment upon the river shore or bed of any kind outside of the established dock-lines. These dock-lines were established by the board of public works without notice to. Mr. Powers or any of the riparian owners along such lines; nor does it appear that they were consulted in regard to the location of such lines.
After the establishment of these dock-lines, Mr. Powers commenced the building of a wall in the stream. The wall was built of stone, and about four feet wide; and the defendant admits that he has constructed said wall to about the following dimensions:
“ Commencing at or near the southerly end of the waste-weir of the West-side Canal, so-called, in said city, near the dam across said Grand river; thence extending south-easterly 66 feet, more or less, to a point just about 45 feet east of the said pretended dock and building line ®o pretended to be established by the board of public works; thence extending southerly on a line which, if ■extended, would meet the public bridge over said Grand river at East Bridge street, in said city, at a point about thirty feet east of said pretended dock and building line.”
He also admits that he intends to build said wall from the dam to Bridge street, and for his own purposes, and ■that the same is and will be outside the said dock-lines.
The city of Grand Rapids files its bill of complaint in ■the superior, court of Grand Rapids, in chancery, basing its right for relief upon the legislative act aforesaid, and the action of the board of public works and the common council, under the authority given these bodies by .such act, and claiming—
1. That the structure is unlawful by reason of such act ;and the proceedings under it.
2. That such wall is of great damage and detriment to ■the public use of the stream, as it would greatly narrow the natural channel, and impede the flow of the waters therein, and in times of high water would cause the waters of the river to be held back, and overflow and flood various portions of the city and its public streets, thereby causing great public and private damage, and occasion sickness to the inhabitants of the city by causing the ground thus overflowed to be damp and foul.
3. That it will interfere with the public use of the river, and its value for the purposes of commerce, for the floating of vessels, boats, rafts, and logs.
The bill prays that the defendant may be temporarily, ■•and also permanently, enjoined from building the wall, ■or any other wall, outside of the said dock-lines, and that he be decreed to remove said stone wall by him -constructed.
The defendant, answering, avers that,-by virtue of his .riparian rights, he owns the soil and bed of Grand river to the center' thereof; that he; has a right to make such use of the bed of said stream' within his own ownership as lie sees fit, provided only that he does not interfere with the public use of said stream for the purposes of navigation, or with the rights of other riparian owners, upon its banks; and denies that this wall so built, or as it is intended to be constructed, interferes at all with the public use of said river, or with the rights of other riparian owners; and further avers that the same, when completed, will be a benefit rather than a damage to the public and all concerned.
It is admitted that, under the settled law of this State,, the defendant is the owner, by virtue of his riparian rights, of the soil of the river bed to the middle of the stream. It must also be conceded that he would have a right to build this wall, and to reclaim for his own use the land between it and the old west shore of the river, if such building of the wall and reclamation of the land did not interfere with the public right of navigation, or the private right of other owners of the river bank, had it not been for the act of the Legislature in question, and the subsequent proceedings of the-authorities of the city of Grand Eapids under and by virtue of such act. The ordinance of 1787 cuts no particular figure in this case, because, under the decisions of the federal courts, as far as the general government is-concerned, the rights of riparian owners on the streams mentioned or embraced by said ordinance must be determined according to the law of the state within which they are situated. St. Louis v. Myers, 113 U. S. 566 (5 Sup. Ct. Rep. 640); Barney v. Keokuk, 94 Id. 324; Bridge Co. v. Hatch, 125 Id. 1 (8 Sup. Ct. Rep. 811). Grand river must be treated the same as any other-navigable stream under the laws of our State in the-solution of this question, having regard, however, to its character as a stream considered at the point towards which this legislation is directed, and where the rights involved are located. In the court below, the city seems to have rested its case entirely upon the validity of this dock-line legislation, and proceedings taken under it, and no particular' effort was made to show that the wall was or would be injurious to either public or private rights.
The dock-line, as established, cannot be sustained for two reasons:
1. The. persons owning the banks of the river in fee-simple, and having absolute property in the river bed, subject only to the public right of navigation, were not notified of the proposed action of the board of public works, and had no hearing upon the establishment of these dock-lines. The fixing of these lines was an ex parte and arbitrary proceeding, involving the rights of property-owners, upon which they have never had a day in court. Whatever may be held to be the authority of the Legislature in respect to establishing such lines, it cannot certainly be done without notice to property-owners, and opportunity of a hearing accorded to them. This would be despotism, and without due process of law. No man’s rights can be submitted, under a constitutional government, to the discretion of- any one without notice or hearing. Robison v. Miner, 68 Mich. 549; In re Frazee, 63 Id. 396.
2. The dock-line as established encroached upon the shore-line of defendant, and the ordinance of the common council, therefore, prohibits him from building upon and occupying his own land, which has never been covered with water. The testimony of the city engineer, Mr. Collar, a witness for the complainant, shows, on cross-examination, that the dock-line on the west side of the river in many places runs upon and along the east edge of the top surface of Mr. Powers’ canal bank for some distance. At some points it is nine feet, and at others more, west from the water-line of the river at ordinary stages, and at the south end of the canal the dock-line outs off a strip of main-land of some feet in width, and a part of the main-land shore of the river. This dock-line as fixed runs through buildings, and cuts off a part of the Crescent Mills, which have been built more than 20 years, and passes through other buildings. It must be held that the Legislature has no power to extend dock-lines upon the natural shore or bank of the river, or to authorize the municipality to forbid the owners from building upon such shore or bank. This would be taking private property for public use without compensation, which is forbidden by our Constitution.
For these reasons alone the bill in this case must be dismissed, as there is nowhere in the evidence any showing that the building of the wall will be of any damage to the public use of the river for the purposes of navigation, or any injury in any way to the rights of the public or of private persons.
But the question of grave concern remains, to wit, what are the rights of the defendant as a riparian owner in this river, and what control can the municipality, under authority of the Legislature, lawfully exercise over such rights? And it seems to me desirable, that this question be settled, as it is conceded to be an open one, so far as the courts of this State are concerned, and one of great moment to the public as well as to private interests. In examining this question we must remember that the riparian proprietor in this State holds a different and more extended title to the soil under the water of a navigable stream than he does in many of the states of the Union. In this State he owns the soil to the middle of the stream, and has the right to use his land which is covered by water in any way he chooses, provided that he does not seriously injure the public use of the stream, or obstruct or impede navigation, or damage other riparian owners along the stream above or below him.
“Any erection which can lawfully be made in the water within those lines belongs to the riparian estate. And the complete control of the use of such land covered with water is in the riparian owner, except as it is limited and qualified by such rights as belong to the public at large to the navigation, and such other use, if any, as appertains to the public over the water. * * *
“ In those waters whose beds are public, and not private, property, erections by riparian owners are unlawful, not because they are nuisances, in the proper sense of the term, but because they are encroachments upon the public domain, and they are as unauthorized as would be the erection of houses or barns, upon public land away from the water, by an adjoining land-holder. But where the ownership is private, and the public rights are simply easements or privileges upon it, the owner may do what he pleases, so long as he does not injuriously affect the public enjoyment. On land, where roads are laid out of a prescribed width, the law or the authorities having determined that width to be desirable, the right to encroach upon the way cannot be very extensive. But where the way exists in a water-course, whose boundaries are variable and laid down without human intervention, the extent to which private improvements are compatible with the public use must depend upon circumstances, and must always be a question of fact. The owner’s use is lawful until shown to be unlawful. It is plain enough that there are streams which cannot safely be encroached upon at all, while there are others so considerable that they could not be appreciably injured by a very extensive system of dockage or other erections in their beds.” Ryan v. Brown, 18 Mich. 196, 207.
See, further, as to the ownership and rights of the riparian owner in the bed of streams, Lorman v. Benson, 8 Mich. 18; Rice v. Ruddiman, 10 Id. 125; Watson v. Peters, 26 Id. 508; Richardson v. Prentiss, 48 Id. 88; Bay City Gas Light Co. v. Industrial Works, 28 Id. 182; Maxwell v. Bridge Co., 41 Id. 466; Pere Marquette Boom Co. v. Adams, 44 Id. 403; Backus v. Detroit, 49 Id. 110; Fletcher v. Boom Co., 51 Id. 277; Webber v. Boom Co., 62 Id. 626; Turner v. Holland, 65 Id. 453; Attorney General v. Booming Co., 34 Id. 463.
It is contended by the counsel for the complainant that the Legislature of this State has the constitutional right to confer upon the proper authorities of the city of Grand Rapids the authority to establish dock and building lines on the shores and margin of Grand river, and that the defendant had no right to build a wall in the waters of the river beyond the dock and building line established by the board of public works; and to sustain this contention he cites- the following: Cooley, Const. Lim. (5th ed.) p. § 740 (marg. p. 595); 1 Dill. Mun. Corp. (3d ed.) p. 136, 107; Hart v. Mayor, 3 Paige, 213, 9 Wend. 571; Com. v. Alger, 7 Cush. 53; People v. Vanderbilt, 26 N. Y. 287, 28 Id. 396, 398; Attorney General v. Woods, 108 Mass. 436; Bay City Gas Light Co. v. Industrial Works, 28 Mich. 182; Attorney General v. Railroad Co., 118 Mass. 345; State v. Sargent, 45 Conn. 358.
Cooley says:
“ Wharf-lines may also be established for the general good, even though they prevent the owners of waterfronts from building out on soil which constitutes private property.” And in the same connection adds: “And the Legislature may prevent the removal of stones, gravel, or sand from the beach for the protection of harbors. This is said to be a just restraint of an injurious use of property which the Legislature have authority to impose.” Cooley, Const. Lim. (6th ed.) p. 739.
This language is plainly used in reference to wharves and harbors upon navigable water, and for the purposes of navigation by boats and vessels.
Dillon says:
“The rights of riparian proprietors in respect to the erection of wharves are subject to. such reasonable limitations and restraints as the legislature may think it necessary and expedient to impose. Therefore it is competent for the legislature to pass acts establishing harbor and dock-lines, and to take away the rights of the proprietors to build wharves on their own land beyond the lines, even when such wharves would be no actual injury to navigation.” 1 Dill. Mun. Corp. (3d ed.) § 107.
This language has also evidently the same application.
In State v. Sargent, 45 Conn. 358, the owner of the land took title only to high-water mark. . The fee between high and low water mark was in the state in trust for the public. It was held thfet the owner of the shore might construct wharves upon the soil below high-water mark, but in so doing must conform to the regulations of the State; and it is said that the duty of protecting the paramount right of navigation rests upon the legislature, and they are to determine for themselves by what methods and instruments they will discharge it. It is further said that the enactment of laws restraining proprietors of the shore from extending wharves or other structures into navigable waters is not the exercise of eminent domain. The public do not appropriate or use any right of the land-owner in the soil of the shore. This is no doubt good law where the land-owner’s possessions stop at high-water mark, but it does not apply to the case before us.
The New York cases cited also refer to cases where the land-owner had no fee in the land under. water; Hart v. Mayor involving rights upon the banks of the Albany Basin, which was a work of the state, and created by it. In People v. Vanderbilt the matter in controversy was the construction of a pier in New York harbor.
The case of Com. v. Alger, 7 Cush. 53, deals with the establishment of harbor lines in Boston harbor, and where, under the colonial ordinance of 1647, the proprietors of uplands bounded on the sea have an estate in fee in the adjoining flats above low-water mark, and within 100 rods of the upland, with full power to erect wharves and other buildings thereon, subject, however, to the reasonable use of other individual proprietors and of t'he public for the purposes of navigation, and subject, also, to such restraints and limitations of the proprietors’ use of them as the legislature may see fit to impose for the preservation of public and private rights. It was held that—
“The legislature of this commonwealth has power to establish lines in the harbor of Boston, beyond which no wharf shall be extended or maintained, and to declare any wharf extended or maintained beyond- such lines a public nuisance; and statutes establishing such lines take away the right of the proprietors of flats in the harbor beyond the lines to build wharves thereon, even when they would be no actual injury to navigation; and such statutes, although they provide for no compensation to such proprietors, are not unconstitutional, as taking private property and appropriating it to public uses without compensation, within the meaning of the declaration of rights, art. 10, nor as impairing the operation of the grant made by the colonial ordinance, and thus transgressing the prohibition of the Constitution of the United States, art. 1, § 10, against passing laws impairing the obligation of contracts. But such statutes do not affect the right to maintain wharves erected before their passage.”
By examining the opinion in this case, it will be seen that the grants of land since the adoption of this ordinance, which vested, by virtue of it, an estate in fee in the land lying between high and low water mark, were also subject to the proviso that such estate should be used so as not to stop or hinder the passage of boats and vessels, etc., and subject to all such restraints and limitations of absolute dominion over it in its use and appropriation as other real estate is subject to for the security and benefit of other proprietors, and of the public, in the enjoyment of their rights. The court justifies its opinion under the police power of the legislature, — the authority vested in that body to establish all manner of wholesome and reasonable laws, rules, and penalties, not repugnant to the constitution, as they shall judge to be for the good of the commonwealth and the subjects of the same, — and holds that the legislation in question is not an appropriation of property to a public use,—
“But the restraint of an injurious private use by the owner, and is therefore not within the principle of property taken under the right of eminent domain.”
This case is followed in the other Massachusetts cases cited.
The learned counsel also contends that language has been used in several of the opinions of our own Court recognizing the right of the Legislature to establish wharf and dock-lines, but admits that the question in this case is still an open one, so far as this Court is concerned. The cases in which this matter have been touched upon are:
1. Lorman v. Benson, 8 Mich. 18. In the course of the opinion Mr. Justice Campbell (p. 32) said:
“It is urged that this ruling will interfere with the improvement of rivers, and disturb the title of islands. But these objections are not well taken. The public authorities can regulate water highways, as well as land highways, although the soil of neither belongs to the State.”
2. Rice v. Ruddiman, 10 Mich. 126. Mr. Justice Christiancy in his opinion says, at page 141:
“ These principles, when applied to Muskegon lake, can no more interfere with the public right of navigation than when applied to rivers. In both cases the ownership is equally qualified by, and subordinate to, the rights of the public. In fact, navigation is much more likely to be benefited than injured by the application of these principles. Wharves and other similar erections are essential to the interests of navigation; and if the bed of the lake to high or low water mark were vested in the State, no private owner could extend a wharf one foot from the 'water-line without becoming a trespasser, and incurring the risk of losing his improvements, though navigation might be aided, rather than injured, by it; while, by admitting the riparian ownership as above explained, individual enterprise is stimulated to improvement, and the public interest is subserved. The public, through their proper authorities, have always the right to restrain any encroachments which may be injurious to the public right, and -to compel the removal of any obstruction or impediment, as well as to punish the offender, to the same extent as if the bed of the lake were vested in the State.”
3. Bay City Gas Light Co. v. Industrial Works, 28 Mich. 182. In this case Mr. Justice Campbell says, at page 181:
“The right of docking out, so as to secure the full benefit of the water-front, is limited by the rule that it must not seriously impair the right of navigation. In order to prevent any dispute as to what wharfing will be such an encroachment, it has been provided in some of our city charters that the city may fix a dock-line, beyond which such erections shall not extend. In doing this the authorities are supposed to consult the public convenience, and to draw the line in such manner as to subserve this. It is usual, and practically almost necessary, to make the frontage thus defined follow straight lines of considerable length, avoiding angles as much as possible, and paying no attention to the sinuosities of the shore. Such lines will not necessarily or usually be exactly parallel with the shore or with the thread of the stream. They can have no bearing whatever upon the determination of boundaries, and are meant to determine at what line the depth of water will be found sufficient to meet all the necessities of navigation. So far as they are valid, it is as limits reasonably and impartially fixed, beyond which all are forbidden to wharf out, and within which every person may lawfully improve his own property. But with the ownership of property the city authorities have no concern.”
4. Lincoln v. Davis, 53 Mich. 375. On page 390, Mr. •Justice Campbell says:
“There can be no doubt of the right of the State to forbid any erections within such parts of the water as are strictly navigable, and to regulate the distance beyond which no private erections can be maintained.”
Whatever may be the power of the Legislature in waters “strictly navigable” to fix an arbitrary line beyond which riparian owners cannot go, or to delegate to a municipality that power, I am satisfied that no such •right exists in the waters of Grand river at the rapids, ■or certainly in that part of the waters which are not now navigable for any purpose. The rights of the riparian owner, under our laws, are subject only to the public use for the purposes of navigation; and there is a manifest difference between public streams that can be used successfully for the running of boats and vessels for the purpose of commerce, and those which are only capable of being used for the floatage of lumber and logs in rafts or single pieces. The riparian owners are entir tied to the beneficial and ' sole use of the latter streams* •except for floatage; and when such streams have become unfitted for valuable public use, and have actually ceased to be used for public highways, there is no more reason for holding them to be public than in the case of a land highway which has been abandoned and is useless. See opinion of Campbell, J., Sterling v. Jackson, 69 Mich. 510; Grand Rapids Booming Co. v. Jarvis, 30 Id. 308; Middleton v. Booming Co., 21 Id. 533.
There is no pretense in the proofs in this case that this river in front of the land of the defendant has ever been, ever will be, or can be, used for the navigation of commercial boats and vessels, nor that the water between the existing or proposed wall of the defendant and his shore-line has been, will be, or can be used even for the floating of logs or rafts. It has never been “strictly navigable” water. In order to get the logs and lumber that have gone over the chute in the dam down these rapids, it has been necessary for many years to clear out a channel in the center of the stream, and inclose such channel on each side, with cribs and timbers, thus making an artificial canal, as it were, in the center of the stream for the purpose of floatage. This wall will have no appreciable effect upon this artificial channel, unless it be to deepen its waters, and thus aid navigation rather than to hinder it. This is the whole tendency of the' proofs.
It is claimed by the counsel for complainant that the-proposed occupation of the river bed by the defendant will be a purpresture, and therefore a public nuisance, and that, as such, the Legislature, or the city under authority from the Legislature, may abate it whether it interferes with navigation or not. A “purpresture” is defined by Chief Justice Cooley in Attorney General v. Booming Co., 34 Mich., at page 472, as “ an inclosure by a private party of a part of that which belongs to, and ought to be open and free to the enjoyment of, the public at large;” and he also holds that an unauthorized inclosure of a part of a water highway is as much a public wrong as that of a land highway. But he also, in the same case, defines the character of the Muskegon river as a navigable stream at the point in controversy in that case, and says:
“Neither is it a navigable stream, * * * in the more popular sense of that term, for it is only a small stream, whose value to the public consists in the use which can be made of it for the purpose of floating logs and lumber.”
Such is the navigability of the Grand river at the place in controversy here. He further says:
“The right of floatage is unquestionably a right which the State should guard and protect; but it is a serious mistake to assume that the private appropriation of a part of the bed of the river would necessarily be either a purpresture or a nuisance. The property taken in such a case is not public, but private, property, and the owner of the bank, who also presumably owns to the center of the stream, may maintain trespass or ejectment against the taker. If the owner make no complaint, the public can have neither right nor occasion for any, provided the navigable rights are not abridged. If they are, it is not very manifest how this can be a purpresture. The difference between the highway by laud, with its definite limits to which the public right extends, -whether the whole is used or not, and the highway for floatage in our small streams, where the public rights have no definite limitations of space except as practicability for use and the occasion for use may give variable limits, as the seasons and the needs of business and traffic may change, is so plain that the difference between an appropriation in the two cases needs only to be mentioned. It requires neither argument nor illustration. The one is a public grievance-of some sort; but the other is no public grievance of any sort, unless the public use is unreasonably abridged or inconvenienced.-”
The police power of the Legislature in this State is-not omnipotent. It cannot, under the guise of regulation, destroy property rights arbitrarily and without reason. The Legislature can, without doubt, in public-harbors, and perhaps in navigable streams, where boats- and vessels can be and are used, limit the construction of wharves to the line of navigability; but it .is doubtful if such erections could be stopped short of such lines, unless some good reason could be shown for such a regulation. Attorney General v. Booming Co., 34 Mich. 472, 473. And “ the extent to which private improvements, are compatible with the public use must depend upon j circumstances, and must always he a question of fact.”' Ryan v. Brown, 18 Mich. 209. The Legislature of Michigan cannot authorize a municipality to make that a purpresture or nuisance which is not so in fact, if, by so doing, the .constitutional rights of any citizen in his person or property are destroyed or infringed. Wreford v. People, 14 Mich. 41; Everett v. Marquette, 53 Id. 450; In re Frazee, 63 Id. 396; Robison v. Miner, 68 Id. 556; People v. Armstrong, 73 Id. 288.
The power of the Legislature in the matter of harbor and dock-lines upon streams where the bank-owner's title in fee reaches to the bed of the river, subject to the public use for purposes of navigation, came before the Supreme Court of the United States in Yates v. Milwaukee, 10 Wall. 497. Yates built a wharf over the low water in the Milwaukee river the width of his lot, and 190 feet in length, to reach navigable water. The Legislature of Wisconsin had authorized the common council of Milwaukee to establish, by ordinance, dock and wharf lines on this river, and to restrain and prevent encroachments and obstructions therein, and to cause it to be dredged. The city by ordinance declared this wharf to be an obstruction to navigation and a nuisance, and ordered it abated. Yates refused to abate it. Thereupon the city contracted with a person to remove it, and Yates filed his bill to restrain such removal. There was no evidence to show that the wharf was an actual obstruction to navigation, or was in any other sense a nuisance. The Court, speaking through Mr. Justice Miller, said:
“We are of the opinion that the city of Milwaukee cannot, by creating a mere artificial and imaginary dock-line, hundreds of feet away from the navigated part of the river, and without making the river navigable up to that line, deprive riparian owners of the right to avail themselves of the advantage of the navigable channel by building wharves and docks to it for that purpose.”
It is also further said that the riparian right in the bed of the stream—
“Is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right of which, when once vested, the owner can only be deprived in accordance with established law, and, if necessary that, it be taken for the public good, upon due compensation.”
See, also, Norfolk City v. Cooke, 27 Grat. 430, where jt is held that the soil under water of the riparian proprietor is not a mere license or privilege, but is property, —property in the soil up to the line of navigability, though covered with water.
An interesting case, and one in point, is City of Janesville v. Carpenter, 77 Wis. 288 (46 N. W. Rep. 128). The legislature of Wisconsin in 1887 passed an act “that it shall be unlawful and presumptively injurious * * * to persons and property to drive piles * * * in Eock river within the limits of the county of Eock, and the doing of any such act shall be enjoined at the suit of any resident tax-payer, without proof that any injury * * * has been or will be caused by reason of such act;” and further provided that' such acts might be enjoined at the suit of any one having the use of the water-power of the river in said county, without other proof than that the act would cause the river to rise or set back to some extent at the place where the water used to operate his mill or factory is discharged into the river. This would seem to have been the exercise of the police power of the legislature declaring certain specific things nuisances per se. But the Wisconsin supreme court holds that such legislation is void, and in violation of the constitution, in that it deprives the riparian owner of his property in the river without compensation and without due process of law. The court says:
“This is the first time that any legislature of any enlightened country ever attempted to create an action without any cause of action; to authorize a complaint to be made to a court when there is nothing to complain of; to compel the courts to enjoin the lawful use and enjoyment of one’s own property, 'without proof that any injury or danger has been or will be caused by reason of such act.’”
The court holds as follows in regard to the right of the person sought to be enjoined by the city under this act:
. “ That Thomas Lappin, the owner in fee of this ground, has the right to use and enjoy it to the center of the river in any manner not injurious to others, and subject to the public right of navigation, has been too often decided by this court and other courts to be questioned. A3 a riparian owner of the land adjacent to the water, he owns the bed of the river úsque ad Jilum aguce, subject to the public easement, if it be navigable in fact, and with due regard to the rights of other riparian proprietors. He may construct docks, landing places, piers, and wharves out to navigable waters if the river is navigable in fact; and, if it is not so navigable, he may construct anything he pleases to the thread of the stream, unless it injures some other riparian proprietor, or those having the superior right to use the waters for hydraulic purposes. Jones v. Pettibone, 2 Wis. 308; Arnold v. Elmore, 16 Id. 509; Yates v. Judd, 18 Id. 118; Walker v. Shepardson, 4 Id. 486; Improvement Co. v. Lyons, 30 Id. 61; Delaplaine v. Railway Co., 42 Id. 214; Cohn v. Boom Co., 47 Id. 314; Boom Co. v. Reilly, 46 Id. 237; Hazeltine v. Case, Id. 391. Subject to these restrictions, he has the right to use his land under water the same as above water. It is his private property under the protection of the constitution, and it cannot be taken, or its value lessened or impaired, even for public use, without compensation, or without due process of law, and it cannot be taken at all for any one’s private use.”
This, in my opinion, is the title also that the defend ant Powers holds in the bed of Grand river, opposite his shore-line, and his rights are co-extensive with those given by the Wisconsin supreme court to Lappin;' and that the law of this State is in complete accord and harmony with that of our sister state of Wisconsin in respect to riparian rights. See especially Ryan v. Brown, 18 Mich. 196; Attorney General v. Booming Co., 34 Id. 462; Sterling v. Jackson, 69 Id. 510-512, opinion of Campbell, J.; Middleton v. Booming Co., 27 Id. 533 (ann. ed.), and notes; Watson v. Peters, 26 Id. 508 (ann. ed.), and cases cited in note 1; Grand Rapids Booming Co. v. Jarvis, 30 Id. 308; Maxwell v. Bridge Co., 41 Id. 466.
I do not pass upon the right of the Legislature to empower the city of Grand Bapids to establish dock-lines within the limits of the navigable part of the river, if there is such navigable water, and to prevent any encroachments upon or obstructions within the water so outlined as navigable. It is not necessary to the determination of this case. But outside of the navigable water no dock-line can be drawn, and the property thereby taken for public use, without compensation to or consent of the riparian owners. Nor do I decide that the city may not make and enforce all needful and reasonable rules and regulations as to the public and private use of this river necessary to the public health of said city, or to prohibit any encroachment upon the river bed which will tend seriously to increase the danger of floods and the destruction of property thereby. The city saw fit in its proofs to x-est upon the validity of the dock-lines. There is no showing that the building of this wall will be of the least detriment to the public health, or that it will have any tendency to increase the dangers arising from floods. The river is narrower below this wall, and made so by bridges of the city’s own construction and maintenance, than it will be at any place where the wall will be situated after it has been constructed as proposed by the defendant. The city engineer can see no reason, in his testimony, why the building of this wall will tend either to the creation of overflows, or to increase the floods that sometimes have existed from various causes in high water. I have not space to discuss the testimony, but it is wholly barren of any showing that this wall, which the defendant is building, and proposes to build, upon his own land, will interfere in the least with the public use of the river, the rights of any other riparian owner in the stream, or damage any public or private interest to any perceptible extent.. It may be that such a showing can be made as would entitle the complainant to the relief asked, but it has not seriously been attempted by the proofs, presumably for the reason that the complainant supposed its case was completely made out by the law, by virtue of the legislative act, and the municipal proceedings under it.
The decree of the churt below must be reversed, the bill dismissed, with costs of both courts, but without prejudice to any further action or proceeding, if cause can be shown for it as heretofore pointed out.
McGrath, Long, and Grant, JJ., concurred. Champlin, C. J., did not sit.
See Whitney v. Township Board, 71 Mich. 237. | [
1,
32,
52,
-23,
35,
47,
51,
43,
8,
-14,
-12,
-49,
-51,
-52,
72,
-3,
-93,
-45,
-70,
-18,
-31,
-10,
25,
-79,
-39,
18,
58,
56,
-66,
16,
9,
48,
-53,
78,
57,
-2,
-1,
-20,
-14,
-26,
6,
-21,
31,
5,
98,
44,
57,
-25,
-22,
-26,
-7,
-18,
-48,
55,
-51,
10,
-22,
10,
-33,
33,
2,
2,
28,
-47,
-92,
-23,
-16,
66,
39,
-1,
-14,
0,
52,
47,
-27,
73,
59,
-17,
-68,
32,
-47,
46,
-20,
28,
9,
-23,
-89,
-12,
2,
1,
7,
-45,
-5,
-11,
18,
-44,
-16,
2,
-60,
19,
44,
56,
62,
-24,
12,
-34,
21,
6,
26,
-60,
-22,
15,
8,
-69,
-16,
-57,
42,
-51,
-4,
7,
-76,
-17,
-30,
26,
-35,
-15,
-52,
-45,
-29,
17,
-17,
-20,
10,
0,
58,
23,
-68,
32,
6,
19,
37,
11,
17,
-2,
-55,
-9,
30,
58,
39,
-4,
-44,
49,
1,
-18,
-43,
93,
-2,
-9,
35,
57,
5,
-54,
43,
-22,
-92,
31,
-28,
-2,
1,
68,
-10,
1,
0,
-39,
-47,
-4,
-53,
0,
1,
59,
100,
-23,
17,
7,
-12,
-25,
-5,
30,
-24,
26,
32,
-16,
3,
-2,
-89,
104,
-16,
10,
-62,
2,
45,
-37,
-73,
20,
-8,
9,
-35,
21,
-51,
54,
31,
9,
-5,
-2,
7,
9,
-41,
-30,
33,
-63,
56,
50,
92,
14,
55,
-19,
-15,
37,
-14,
-26,
45,
9,
4,
-63,
-36,
41,
-24,
7,
14,
-12,
-32,
-17,
9,
-43,
23,
-49,
-46,
-28,
37,
70,
-37,
-63,
-12,
-44,
-15,
34,
83,
-47,
19,
-27,
26,
-5,
27,
-36,
-56,
33,
-71,
42,
-31,
-30,
13,
21,
28,
8,
-44,
39,
37,
47,
-77,
69,
-34,
-48,
-30,
30,
48,
-41,
22,
-4,
16,
33,
14,
39,
-16,
-24,
-14,
16,
44,
-14,
66,
6,
-35,
9,
-7,
28,
-8,
0,
-59,
40,
-32,
-71,
-5,
-7,
-54,
40,
29,
-19,
1,
32,
-29,
64,
22,
2,
-19,
35,
13,
44,
0,
42,
9,
73,
21,
2,
-12,
42,
11,
-31,
31,
6,
25,
7,
-27,
-16,
-31,
10,
-83,
-62,
-23,
-9,
71,
-36,
1,
46,
26,
-5,
-28,
-43,
-29,
95,
16,
-21,
5,
34,
47,
-6,
40,
-21,
-58,
14,
97,
18,
-41,
-11,
-14,
24,
-9,
5,
2,
3,
-128,
-31,
19,
16,
33,
16,
9,
31,
7,
-18,
-22,
-34,
-13,
-2,
-33,
22,
-5,
70,
30,
-22,
-70,
-85,
-13,
32,
18,
12,
22,
65,
23,
-65,
65,
-27,
44,
-76,
5,
-37,
27,
-12,
18,
55,
11,
-33,
18,
100,
-42,
78,
48,
-40,
19,
3,
25,
29,
12,
15,
73,
16,
-10,
14,
-13,
-3,
2,
10,
-40,
-9,
31,
-22,
-2,
-80,
-39,
-2,
-18,
-96,
2,
53,
-100,
-3,
-25,
70,
-96,
-61,
9,
12,
-86,
-22,
-10,
49,
-30,
14,
-21,
-50,
12,
34,
2,
33,
-21,
-70,
-31,
-56,
8,
31,
4,
-27,
57,
-20,
42,
18,
3,
-68,
29,
34,
-13,
-35,
45,
-16,
28,
-45,
78,
-19,
2,
27,
67,
43,
61,
-24,
-81,
-10,
-52,
58,
1,
126,
43,
40,
65,
-36,
17,
-45,
-30,
-12,
-49,
-50,
15,
-49,
-24,
17,
39,
42,
0,
58,
-24,
-50,
5,
29,
20,
-39,
-34,
28,
-15,
-43,
-13,
63,
0,
31,
30,
-26,
46,
-14,
-3,
10,
-82,
-36,
-24,
-15,
-31,
34,
18,
-49,
-18,
32,
-91,
-43,
27,
-20,
-15,
-31,
-13,
-104,
8,
70,
11,
15,
12,
-71,
-11,
90,
-18,
-5,
-71,
-38,
0,
6,
0,
52,
-24,
-64,
-73,
-53,
-2,
39,
-40,
-20,
-40,
38,
-33,
12,
-52,
20,
-3,
34,
16,
59,
38,
-9,
90,
-23,
13,
97,
2,
55,
-7,
5,
20,
53,
-16,
-53,
70,
82,
0,
17,
16,
15,
-15,
-20,
13,
-15,
-29,
-7,
-35,
32,
30,
31,
3,
-13,
-48,
84,
-65,
52,
-1,
-46,
39,
17,
9,
60,
13,
-44,
-33,
-18,
-31,
31,
-5,
15,
-61,
23,
-81,
12,
-33,
4,
60,
-14,
-36,
50,
31,
32,
31,
-2,
60,
22,
9,
67,
-18,
23,
-6,
9,
13,
-37,
-62,
4,
-5,
-61,
20,
45,
85,
25,
69,
93,
25,
-21,
89,
-49,
0,
54,
-6,
23,
52,
54,
4,
10,
-13,
-24,
33,
35,
-13,
-40,
9,
-5,
-34,
-19,
-44,
-58,
-26,
-63,
15,
21,
-3,
-7,
122,
9,
0,
-26,
-31,
-14,
14,
-2,
-27,
26,
-15,
-13,
-17,
-45,
-87,
-8,
-48,
62,
-63,
15,
-38,
-48,
25,
-19,
-11,
35,
-23,
-29,
-18,
-35,
-63,
-15,
-49,
-2,
31,
19,
3,
-26,
21,
22,
9,
18,
-22,
-13,
15,
31,
-41,
-4,
39,
-25,
-15,
-40,
-58,
-45,
-45,
51,
-20,
13,
-24,
-3,
-78,
-6,
-3,
-66,
-73,
17,
47,
-4,
-18,
-48,
-39,
2,
57,
37,
18,
61,
11,
-75,
-17,
-37,
-46,
12,
0,
-5,
35,
-6,
-35,
-14,
-51,
-32,
19,
-11,
36,
-34,
-3,
13,
-42,
5,
-27,
-11,
31,
-49,
90,
3,
-18,
12,
46,
14,
-5,
18,
13,
-6,
35,
-4,
-7,
-28,
0,
-51,
38,
76,
38,
-68,
22,
-19,
-29,
-43,
55,
12,
-63,
22,
11,
-62,
-67,
-58,
18,
-24,
-24,
-12,
-36,
31,
-30,
-9,
35,
58,
-39,
25,
10,
26,
17,
-8,
3,
0,
-18,
26,
20,
-46,
-34,
-48,
-24,
41,
-36,
-37,
15,
24,
-9,
-9,
-21,
-2,
16,
2,
27,
-32,
10,
58,
7,
-33,
121,
60,
4,
-22,
45,
-14,
-32,
-22,
-27,
-8,
-39,
-39,
-24,
-54,
1,
37,
-15,
-20,
-39,
-39,
70,
53,
-48,
-14,
-26,
-25,
-36,
-57,
-20,
-2,
-11,
30,
13,
-16,
63,
4,
-40,
39,
-48,
50,
-6,
42,
-8,
22,
-27,
-5,
-15,
19,
54,
20,
5,
64,
19,
-1,
-14,
25,
13,
18,
12,
15,
40,
40,
25,
4,
-13,
65,
-6,
9,
53,
-18,
46,
-96,
61,
-1,
37,
40,
-50,
-17,
-9,
-40,
29,
2,
-93,
-4,
-34,
2,
9,
-6,
-31,
-25,
34,
-87,
23,
-66,
5,
62,
31,
-20,
-62,
0,
-4,
50,
-105,
15,
1,
-31,
33,
-28,
-55,
-21,
-112,
21,
-4,
-33,
-35,
86,
63,
37,
-44,
-39,
-6,
19,
-61,
33,
36,
53,
22,
39,
36,
53,
69,
-34,
79,
29,
-65,
52
] |
Long, J.
Plaintiff was indebted to defendant in the sum of $108.86, and overpaid him by draft given by the superintendent upon the plaintiff company for the sum of $198.86, Defendant negotiated the .draft, and plaintiff paid it, and did not discover the mistake till afterwards. Plaintiff made a demand for the amount overpaid, and brings trover for its conversion, declaring orally in trover, for the conversion of $90 in money, and claiming damages $100 or under. On appeal to the Clare circuit, the court directed a verdict for the defendant. '
The ruling was correct. If there was any conversion, it was of the draft, or of plaintiff’s inseparable interest; and it is doubtful if trover would lie in any event, especially after the company had obtained possession of the draft itself. If defendant had drawn from the company the money upon the draft, trover might lie, because money is a readily divisible commodity; but plaintiff had no title to any part of the money actually received by the defendant.
The judgment must be affirmed.
The other Justices concurred. | [
-26,
-23,
17,
-2,
-2,
1,
72,
-67,
-16,
44,
11,
34,
28,
28,
25,
-37,
6,
-21,
9,
9,
-12,
-49,
9,
-7,
1,
-19,
21,
-4,
-8,
44,
-17,
24,
-10,
51,
-44,
33,
-23,
16,
31,
-17,
38,
1,
-1,
-30,
-24,
0,
-29,
-35,
36,
-3,
57,
1,
-12,
-35,
-10,
10,
-29,
-6,
-5,
15,
-12,
-27,
-12,
-35,
-19,
34,
8,
26,
34,
-1,
-41,
-2,
2,
-2,
13,
-11,
-28,
17,
-19,
-6,
-17,
-8,
6,
-3,
18,
46,
39,
-5,
5,
-23,
-26,
20,
3,
-40,
-10,
35,
17,
5,
-25,
-3,
11,
-28,
6,
24,
8,
13,
-15,
-31,
4,
15,
1,
0,
51,
-56,
1,
15,
-45,
-26,
-28,
-48,
15,
35,
27,
27,
-24,
-39,
7,
-26,
-13,
29,
13,
-52,
-82,
18,
22,
-18,
6,
-3,
-63,
-16,
46,
-5,
22,
-28,
-50,
24,
24,
10,
-44,
-45,
-21,
-17,
45,
30,
9,
-8,
-28,
-39,
36,
-78,
64,
-16,
9,
20,
-7,
6,
-11,
-35,
-21,
2,
13,
-7,
-32,
0,
4,
85,
-4,
-73,
-29,
-7,
-16,
34,
-28,
0,
-6,
-12,
4,
19,
23,
-7,
-8,
9,
-21,
22,
2,
-13,
-34,
19,
10,
27,
-18,
-45,
1,
13,
-18,
13,
24,
-20,
-46,
-25,
5,
21,
-5,
-36,
-60,
16,
-9,
-44,
-15,
-12,
-20,
31,
-8,
10,
-46,
-42,
-11,
32,
41,
17,
-32,
35,
20,
40,
-1,
-35,
-8,
-17,
11,
-33,
14,
9,
-48,
-47,
5,
17,
-27,
-57,
0,
63,
9,
-14,
-10,
21,
-25,
-13,
-3,
21,
39,
-29,
-12,
46,
-35,
14,
22,
-26,
-1,
30,
-12,
-10,
19,
-42,
12,
28,
-7,
-16,
-38,
-25,
-45,
38,
0,
8,
-1,
-16,
-27,
36,
-48,
22,
17,
21,
54,
-23,
7,
21,
56,
20,
-21,
14,
-6,
13,
10,
-26,
9,
20,
18,
29,
-19,
19,
-64,
-23,
-24,
-4,
0,
-34,
70,
-31,
-17,
-34,
3,
-22,
-21,
44,
14,
8,
11,
50,
45,
-13,
-67,
-2,
-14,
2,
0,
39,
23,
-20,
-19,
-11,
16,
-19,
20,
10,
0,
-44,
19,
28,
-25,
-52,
6,
-17,
18,
38,
-16,
44,
8,
1,
2,
-4,
-27,
9,
64,
-19,
4,
-62,
14,
0,
-16,
25,
46,
48,
6,
23,
-10,
-19,
14,
7,
-3,
-3,
-42,
45,
7,
-1,
-44,
-4,
22,
1,
-20,
-63,
-25,
25,
-64,
4,
1,
6,
10,
-12,
22,
-6,
8,
3,
35,
3,
40,
-29,
-60,
-3,
-50,
-4,
-44,
-5,
7,
5,
-15,
-9,
-41,
-8,
23,
21,
27,
33,
45,
10,
18,
-41,
58,
-12,
31,
26,
-43,
-20,
-8,
-20,
4,
-70,
-15,
24,
-15,
1,
-9,
15,
-40,
7,
-24,
-8,
24,
-24,
-27,
18,
46,
1,
5,
0,
50,
40,
12,
-2,
-3,
-53,
29,
14,
29,
-8,
22,
41,
-20,
-33,
-10,
7,
36,
-22,
-9,
34,
16,
37,
-10,
0,
4,
-44,
-21,
12,
57,
-6,
-18,
-21,
-34,
-9,
-47,
-31,
2,
42,
17,
1,
-15,
-33,
38,
23,
-17,
14,
-67,
-6,
-60,
15,
63,
-55,
-13,
12,
-75,
-43,
12,
31,
-18,
14,
19,
-35,
-20,
3,
-26,
-3,
18,
27,
37,
-7,
-19,
0,
-10,
-3,
-15,
44,
16,
-11,
3,
-1,
25,
-62,
-36,
29,
-10,
-45,
-4,
-17,
-53,
33,
14,
17,
-33,
10,
20,
-31,
-17,
34,
-14,
-22,
68,
46,
-12,
15,
24,
-11,
14,
-11,
-4,
40,
-7,
-13,
51,
-50,
-11,
12,
7,
-62,
53,
-8,
-19,
29,
10,
-20,
15,
6,
21,
-32,
-56,
23,
25,
-15,
12,
13,
34,
32,
13,
-12,
-28,
55,
-15,
-21,
2,
-61,
28,
26,
34,
60,
-35,
3,
-76,
-8,
19,
0,
1,
10,
-19,
28,
26,
10,
60,
28,
18,
-21,
3,
-39,
26,
-9,
25,
16,
-2,
-12,
-29,
-47,
-15,
22,
-16,
-1,
-14,
-32,
-16,
52,
-20,
23,
28,
49,
-3,
-8,
0,
-24,
19,
-58,
-19,
-15,
-35,
58,
-19,
20,
-9,
36,
39,
-32,
-36,
-26,
6,
-9,
-26,
-4,
24,
3,
-13,
43,
-31,
6,
64,
-36,
60,
22,
12,
-51,
14,
-40,
49,
-14,
-2,
9,
-35,
-27,
7,
-14,
55,
12,
-39,
13,
-4,
-11,
24,
23,
10,
-9,
-46,
28,
31,
54,
49,
-3,
15,
-30,
-5,
0,
37,
22,
6,
-3,
-18,
49,
9,
10,
42,
-14,
-24,
-1,
5,
-20,
1,
16,
-6,
8,
51,
24,
18,
-14,
19,
32,
2,
-42,
-1,
16,
-1,
28,
-34,
-12,
-38,
-27,
0,
-25,
-47,
-6,
-27,
-9,
0,
-12,
-39,
26,
24,
12,
-11,
24,
26,
9,
11,
-8,
-1,
15,
-49,
2,
-16,
-34,
-20,
-9,
-4,
16,
-7,
-7,
-2,
9,
-9,
-19,
28,
-5,
15,
-17,
44,
15,
44,
55,
-2,
-15,
62,
12,
18,
65,
-42,
-45,
0,
-43,
3,
47,
-40,
13,
-11,
-13,
-24,
15,
-23,
81,
-13,
-48,
-82,
25,
-9,
-37,
-36,
25,
57,
6,
-2,
-31,
-40,
27,
-9,
-9,
-18,
0,
-25,
31,
-33,
11,
-28,
63,
15,
4,
15,
-4,
-10,
-4,
-16,
13,
16,
-19,
15,
2,
-5,
3,
7,
-54,
-32,
-38,
15,
-12,
-15,
12,
47,
7,
-34,
40,
-14,
-37,
-2,
-39,
4,
-41,
-28,
-30,
56,
-2,
16,
2,
17,
0,
-22,
42,
15,
-62,
-1,
20,
2,
-48,
22,
0,
-50,
-7,
-18,
29,
-8,
-42,
27,
7,
5,
-5,
-22,
0,
0,
20,
-10,
-45,
16,
45,
8,
21,
44,
32,
50,
-31,
-23,
-12,
1,
22,
49,
24,
-15,
0,
19,
-3,
0,
-49,
-34,
76,
0,
-30,
34,
-10,
-9,
57,
43,
-21,
-9,
0,
13,
4,
-40,
12,
-18,
16,
98,
19,
-4,
8,
-41,
-41,
11,
28,
34,
-16,
1,
-44,
3,
15,
3,
11,
-36,
21,
3,
-50,
-17,
-6,
35,
33,
-42,
7,
-10,
31,
-14,
-45,
-49,
1,
-65,
-38,
0,
-6,
7,
-33,
1,
23,
8,
39,
-17,
-74,
-3,
-1,
15,
-20,
43,
-30,
32,
-10,
-15,
0,
72,
-5,
-60,
10,
-12,
-47,
-39,
-3,
10,
3,
-3,
-14,
48,
-17,
38,
-32,
8,
-15,
-7,
5,
-4,
-48,
-6,
-25,
-5,
-52,
46,
40,
6,
5,
17,
72,
34,
33,
-25,
28,
13,
-7,
8,
19,
72,
39,
44,
-11
] |
Long, J.
The board of supervisors of Monroe county met in special session on July 6, 1891, for the purpose of considering the petition of the township board of the township of Eaisinville to construct a bridge across the river Eaisin, on a highway between that township and the township of Monroe in that county. In the petition asking the meeting of the board of supervisors it waB alleged that the township of Frenehtown, the relator in this case, had a particular and local interest in the construction of said bridge; and the supervisors were asked to determine the kind of bridge to be constructed, and to fix the respective proportions which each township should contribute for its construction, and for keeping the bridge in repair.
The board of supervisors at their meeting resolved that the bridge was a public necessity, and ordered it to be constructed at the point designated in the petition. They also determined that the .relator had a particular local interest in the construction of the proposed bridge; that the bridge should consist of three spans of truss pattern, to be built of wrought-iron, at a cost, when completed ready for travel, not to exceed $7,000. A committee of five members of the board was appointed to compute and ascertain the amount to be apportioned to each township for the construction of the bridge, which committee reported that the township of Eaisinville should contribute five hundred one-thousandths, the township of Frenchtown three hundred and twenty-five one-thousandths, and the township of Monroe one hundred and seventy-five one-thousandths, and that the same quota should be assigned and designated by the board as the quota or proportion of the several townships towards keeping the bridge in repair. The funds for the construction of the bridge were ordered to be raised by the townships in that proportion by a tax to be levied in 1891. The bridge was named the “Paper-Mill Bridge,” and a committee of three members of the board was appointed as agents to contract for the building and construction thereof, in accordance with section 5, Act No. 62, Laws of 1889. The county treasurer was directed to open an account with each of the several townships named, and to charge the respective amounts before named to each of such townships.
A proper certificate of the action of the board of supervisors was served upon the townships, when, on the 11th day of July, 1891, the township of Frenchtown protested against the action of the board of supervisors in directing that township to- pay any portion of the cost of construction of the bridge, or keeping and maintaining in repair any portion of the bridge thereafter. This protest was served upon the committee and the township boards- of the other townships, with notice that an application would be made to this Court to review the action of the board of supervisors in the premises. No further proceedings have been taken since the allowance of the writ of certiorari in this case.
It appears from the record before us that no part of this bridge lies within the township of Frenchtown.
It is submitted by counsel for the respondent that the board has substantially carried out the provisions of Act No. 62, Laws of 1889; that it met within the time limited by the act, considered the petition, determined that the bridge at the point named was a public necessity, and granted the prayer of the petitioner; that it declared that the township of Frenchtown had a particular local interest in the construction of the bridge; that it designated the kind of bridge, and fixed the limit of its cost, and the proportionate amount which each township should pay for its construction and keeping it in repair, and ordered the several amounts to be raised in one year; that it designated the title of the bridge, and ordered the county treasurer to open an account with the several townships, and appointed a committee of three to act as its agents to contract for the building of the bridge.
On the part of the relator it is said that there is no authority under said act to apportion to the relator any part of the cost of the construction of the bridge, for the reason that no part of the bridge is situated within that township; that the mere fact that the petitioning township asserted in its petition that the relator had a particular local interest in its construction, and the board of supervisors so found, would not confer, under this act, any power upon the board of supervisors to apportion to the relator any sum for its construction; and that there is no authority conferred upon the board of supervisors by any statute in this State to charge the relator with any portion of the moneys needed to construct this bridge or to maintain it. It is also claimed that the petitioning township board had no power to make such a petition, for the reason that the electors of that township at the general election held April 6, 1891, by nearly a two-thirds vote, declined to vote to raise money for this identical bridge. It is further contended that the board of supervisors did not adopt the plans and specifications for the bridge, nor fix the cost of construction, but ordered the whole $7,000 to be assessed and collected before it was ascertained in any manner bow much would be needed. It is also contended that, the act under which the board acted is unconstitutional.
The title of the act is as follows:
,f An act to provide for building bridges situated partly in more than one township, or in one township, or more than one, and partly in a city or incorporated village, when any such township, city, or village shall be unwilling to join in or contribute to the building thereof.”
Section 1 of the act is as follows :
o “ The People of the State of Michigan enact, That whenever any township, city, or such incorporated village as mentioned hereafter in this section shall be desirous of having a bridge constructed which would, when constructed, be partly in more than one township, or partly in one township, or more than one, and partly within a. city, or in an incorporated village which may be bound to keep in repair a street leading to and across such bridge when built, and any such township, city, or village shall be unwilling, or upon request neglect or refuse, to join in building such bridge, or to contribute its just share to the building thereof, any such township, city, or village desiring the building of such bridge may by its-township board, its common council, or its village council, as the case may be, by petition, in the form of a resolution or otherwise, apply to the board of supervisors-of the county for an order for the construction of such bridge, and for fixing the respective proportions which each township, city, and village shall contribute for the construction of such bridge and for keeping the same in repair, as well as for deciding the kind of bridge to be constructed.”
We need not in the present case enter upon a discussion of or determine the constitutional questions raised. One fact appears in the record of the proceedings of the board of supervisors which shows that it has exceeded its powers. The petition upon which the board of supervisors acted sets forth that no portion of the bridge is situated in the township of Frenchtown. The power of the board of supervisors to apportion and assess any part of the moneys necessary to the construction and. maintenance of the bridge is limited by the title of the act and its first section to such township or townships or city or incorporated village in which the bridge is partly situated. It seems to have been the intent of the Legislature to facilitate the erection of bridges thus situated, and to apportion the cost of construction between the townships and city or village when a portion of the bridge was located therein, and to no other township or city or village. As stated in Township Board of Ecorse v. Board of Supervisors, 75 Mich. 270:
CfThe statute makes the two townships the assessing districts, but leaves it to the board of supervisors to apportion the cost and expense between the townships, without any fixed standard of apportionment."
Many imperfections could be pointed out in the law which would render it practically incapable of enforcement. We need not discuss them here, as the board had no power to apportion any part of the costs to the relator.
The proceedings must be quashed. The parties seem to have acted in good faith, and no costs will be allowed.
The other Justices concurred. | [
-11,
36,
10,
-5,
37,
21,
-22,
-34,
0,
-5,
-45,
-55,
-30,
2,
-9,
-22,
-35,
24,
-28,
26,
-6,
-23,
20,
-6,
-39,
28,
43,
28,
-62,
44,
-12,
-7,
-89,
78,
-14,
-51,
-17,
-45,
37,
-12,
-4,
13,
-51,
-29,
17,
3,
30,
15,
28,
23,
1,
60,
19,
6,
10,
39,
22,
-38,
-7,
-14,
-21,
-19,
2,
18,
-17,
47,
-52,
15,
49,
-9,
-10,
-73,
18,
2,
50,
58,
-46,
-9,
7,
-4,
-51,
43,
-52,
-55,
-38,
-5,
-54,
-39,
-3,
42,
-25,
-62,
-17,
7,
39,
-41,
-38,
29,
-20,
-7,
50,
14,
33,
-48,
8,
15,
-4,
55,
-19,
-11,
36,
6,
12,
0,
15,
-25,
-10,
27,
27,
42,
0,
21,
28,
-28,
-52,
5,
34,
1,
-45,
14,
20,
-42,
-9,
22,
-17,
0,
-44,
30,
9,
0,
-38,
25,
-4,
-27,
-30,
-11,
-41,
-24,
-5,
-8,
5,
11,
46,
-30,
-45,
24,
28,
-55,
46,
-27,
12,
72,
32,
-24,
-89,
-29,
-31,
8,
-3,
46,
46,
41,
79,
-7,
-60,
20,
-5,
-2,
48,
55,
39,
-37,
33,
24,
-25,
-39,
-25,
15,
35,
-6,
15,
-14,
-22,
-29,
-16,
82,
-16,
-19,
1,
47,
-10,
-34,
7,
-2,
-26,
0,
-59,
-20,
-50,
-1,
9,
27,
-62,
-6,
21,
55,
2,
21,
29,
-46,
36,
43,
42,
-77,
-59,
-60,
5,
28,
42,
-31,
66,
61,
27,
9,
20,
-21,
-45,
14,
-2,
44,
-43,
-5,
1,
-3,
-22,
-33,
-9,
-45,
-49,
60,
16,
8,
-54,
-27,
-33,
44,
30,
-12,
41,
4,
8,
18,
5,
-25,
13,
37,
-25,
22,
-65,
19,
25,
11,
-9,
-41,
-92,
18,
57,
-12,
-10,
48,
-50,
-87,
-72,
6,
82,
43,
-36,
-33,
-40,
44,
17,
-1,
18,
33,
-31,
32,
46,
-11,
42,
-13,
-51,
47,
-47,
-24,
4,
0,
-98,
8,
29,
22,
19,
22,
-16,
38,
-14,
-32,
-27,
62,
-8,
29,
23,
29,
-36,
20,
33,
24,
6,
20,
-21,
43,
7,
-19,
11,
17,
53,
22,
-27,
6,
-24,
-15,
39,
53,
54,
28,
-10,
-10,
-40,
-36,
58,
17,
-2,
-18,
37,
28,
-29,
0,
-20,
78,
32,
-29,
78,
54,
4,
-41,
0,
-50,
-17,
7,
19,
26,
48,
14,
6,
-10,
31,
0,
-5,
12,
0,
40,
35,
64,
15,
-11,
4,
21,
-8,
-59,
-47,
-30,
11,
-35,
-53,
24,
59,
-16,
62,
-43,
-25,
-62,
8,
6,
51,
71,
-10,
54,
-34,
36,
12,
22,
20,
-22,
-26,
-30,
7,
5,
38,
-3,
0,
-50,
7,
45,
21,
-35,
36,
-14,
4,
34,
-15,
57,
-29,
18,
15,
25,
39,
1,
-39,
-23,
-7,
-60,
-52,
-29,
23,
38,
-17,
-30,
10,
7,
11,
-15,
2,
85,
-27,
-13,
54,
50,
-63,
-16,
7,
-6,
-24,
18,
-27,
20,
2,
41,
-57,
4,
21,
36,
-57,
4,
28,
-67,
-33,
-51,
36,
-24,
48,
19,
49,
-76,
-78,
-17,
-19,
-79,
40,
4,
11,
-71,
127,
-110,
-16,
9,
66,
-26,
42,
53,
20,
44,
7,
36,
14,
-23,
-43,
58,
-44,
33,
14,
28,
9,
-67,
7,
12,
16,
-8,
-40,
18,
41,
1,
-10,
1,
-17,
-19,
4,
38,
11,
44,
-28,
-25,
-3,
-11,
-38,
43,
-8,
12,
-14,
-6,
-52,
-6,
38,
-45,
17,
-6,
-20,
26,
-32,
17,
0,
-26,
3,
0,
28,
7,
-34,
-15,
-1,
-98,
0,
-23,
-68,
-47,
19,
-55,
15,
13,
4,
32,
-3,
-72,
36,
17,
-42,
55,
24,
4,
-50,
-58,
28,
62,
54,
-52,
2,
-46,
27,
-6,
28,
-30,
-27,
51,
-52,
3,
-94,
50,
68,
2,
15,
85,
41,
-36,
27,
-13,
42,
33,
40,
3,
-25,
25,
39,
17,
-48,
-21,
3,
38,
-12,
4,
-11,
14,
11,
-28,
67,
-24,
-5,
-43,
-21,
6,
59,
15,
-54,
17,
-43,
32,
-61,
5,
-14,
10,
15,
-22,
38,
31,
-22,
-106,
-51,
-21,
-30,
-55,
-38,
5,
-33,
39,
-32,
-28,
28,
-30,
-31,
37,
2,
10,
-20,
-11,
54,
-18,
69,
24,
-3,
-18,
16,
38,
20,
-1,
0,
-32,
1,
-41,
-77,
-48,
56,
24,
16,
19,
103,
-13,
-23,
12,
-49,
-28,
-17,
35,
-85,
-21,
-25,
-40,
-15,
45,
-2,
4,
-43,
28,
-44,
-4,
43,
-9,
-21,
-5,
-55,
18,
1,
-48,
-16,
-13,
-41,
-22,
-46,
31,
7,
41,
12,
-11,
-14,
34,
30,
-50,
7,
17,
-20,
9,
-37,
-92,
-14,
55,
-24,
42,
-68,
-26,
22,
-5,
-21,
39,
-17,
-34,
-21,
-66,
-43,
-39,
-2,
-19,
-19,
21,
-48,
7,
24,
-3,
-19,
12,
29,
-7,
-10,
23,
-48,
-3,
1,
-12,
-2,
0,
8,
-7,
-16,
75,
-33,
2,
-44,
41,
-9,
-33,
33,
-30,
-27,
-37,
-16,
-8,
9,
-1,
35,
-26,
3,
-30,
11,
-62,
13,
-16,
-37,
18,
0,
-16,
-50,
-26,
28,
39,
50,
0,
-56,
41,
-40,
19,
14,
25,
12,
58,
-17,
47,
24,
3,
-11,
-43,
20,
-28,
-48,
36,
-29,
2,
4,
54,
5,
-28,
78,
-25,
-10,
45,
-11,
-6,
42,
38,
-63,
-74,
56,
-33,
0,
11,
-10,
-54,
10,
-26,
23,
-94,
-7,
-42,
30,
6,
-42,
33,
-13,
-6,
-46,
-31,
4,
54,
26,
-8,
-3,
30,
21,
-8,
33,
-19,
-36,
-39,
45,
-25,
-45,
-8,
16,
-48,
-14,
15,
0,
9,
-17,
-22,
-22,
-17,
20,
-10,
31,
-18,
-35,
-28,
30,
28,
85,
71,
-21,
16,
55,
27,
1,
-45,
-4,
52,
-6,
10,
3,
15,
11,
24,
-8,
-45,
33,
29,
80,
35,
-57,
-19,
-35,
-16,
-35,
-24,
-55,
-57,
-3,
38,
45,
-2,
3,
-11,
-58,
11,
2,
7,
39,
10,
-10,
-65,
-1,
20,
43,
24,
42,
-70,
22,
-43,
72,
-29,
-25,
22,
22,
8,
52,
35,
0,
0,
2,
-64,
-9,
50,
20,
-54,
12,
-14,
59,
46,
61,
-8,
58,
10,
-64,
-13,
19,
-28,
26,
25,
-64,
68,
40,
60,
43,
93,
33,
-73,
21,
-46,
7,
-28,
9,
43,
-9,
-53,
26,
40,
36,
1,
-52,
-62,
-18,
-61,
28,
24,
-62,
-60,
-42,
34,
40,
3,
12,
24,
34,
-65,
13,
-25,
-31,
33,
-29,
37,
32,
25,
68,
18,
77,
2,
7,
-32,
57,
-49,
-26,
22
] |
Ohamplin, C. J.
The record in this case shows that the suit was brought before a justice of the peace; that the declaration was in assumpsit on all the common counts, and specially on a certain judgment rendered by Felix A. Lempke, a justice of the peace for Wayne county, May 21', 1885, for the sum of $121.69 damages and $1.50 costs, which said judgment was removed by transcript to the circuit court, June M, 1887, the same being file No. 1,596 in said circuit court. The plea was the general issue, and the result a judgment for defendant.
The plaintiffs appealed to the circuit court, and, to maintain the issue on their part, offered in evidence the original docket entry of the judgment, as follows:
“ Justice’s Docket. F. A. Lempke, Justice of the Peace, “ Liber 2, page 184.
' “No. 930.
“■William H. Talbot,
Henry D. Wilmarth,
Charles N. Wilkins,
George W. Wheaton,
Newell Sturtevant, Copartners doing business as Talbot, Wilmarth & Co., Non-residents, v. Franz Kuhn.
Assumpsit.
J. G. Dickinson, Attorney for Plaintiffs.
John Pbomsteller, Constable.
“ 1885.
“ May 18. Summons issued, returnable before me May 21, at 9 A. M.
“ May 18. Summons returned personally served by Constable Promsteller.
“May 21, 9 A. M. Case called, plaintiffs in the court. Plaintiffs declare in an action of assumpsit upon all the common counts, and claim damages in three hundred dollars ($300) or under.
“ Defendant does not appear. Julian G. Dickinson sworn in behalf of the plaintiffs, and proves his authority to appear. I thereupon render judgment in favor of the plaintiffs, and against the defendant, for the sum of one ¡hundred and twenty-one dollars, and sixty-nine cents (§121.69) damages, and $1.50 costs.
“ Felix A. Lempke,
“ Justice of the Peace.”
The defendant objected to the introduction of the docket in evidence, for the reason that it does not show that the justicé waited one hour after the return hour in. the writ within which to allow the defendant to appear. The court sustained the objection, and- excluded the-docket. Plaintiffs offering no further proofs, the court, directed a verdict for defendant.
The only error assigned m this Court is the exclusion of the docket introduced to prove the judgment, on the ground that such docket entries do not show that the justicewa:ted one hour after the return hour in the writ within which to allow the defendant to appear.
There is no statute requiring the justice to wait one-hour for the defendant to appear. Section 6915 of HowelPs Statutes provides that—
“Whenever a defendant who has been personally served with a summons, attachment, or writ pf replevin, or who-shall have procured an adjournment without having joined issue, shall neglect to appear and join issue, the justice shall proceed to hear the proofs and allegations of the plaintiff, and determine the same as above prescribed.”
Sections 6869 and 6870 provide that the party may appear in person or by attorney, and, if by attorney, his authority so to appear shall be proved in all cases where: the opposite party shall not appear.
Section 6938 provides that judgment of nonsuit shall' be entered against the plaintiff for failure to appear on the return of process within one hour after the same was returnable. This provision, by judicial construction of the statute, has -extended the same privilege to the defendant. Bossence v. Jones, 46 Mich. 492. But it is a-privilege, and not a jurisdictional requirement, as to the-defendant, and must be taken advantage of by seeking a correction of the irregularity in the same suit by special appeal or certiorari. Smith v. Brown, 34 Mich. 455; Grand Rapids Chair Co. v. Runnels, 77 Id. 104. On the other hand, the statute expressly requiring the justice to render a judgment of nonsuit against the plaintiff who fails to appear within the hour, he loses jurisdiction at the expiration of that time if the plaintiff fails to appear. The docket must show that the plaintiff appeared within the time in order to show that the justice retained jurisdiction. Redman v. White, 25 Mich. 526; Brady v. Taber, 29 Id. 199; Mudge v. Yaples, 58 Id. 309; Post v. Harper, 61 Id. 434; Wedel v. Green, 70 Id. 642. Having acquired jurisdiction of the defendant by due service of process, the justice did not lose jurisdiction by not waiting one hour after the time stated in the process for his appearance. If he proceeded within that time, and took a “ snap judgment,” the defendant could, by timely application to the proper court, have had it reversed for this irregularity.
As no other objection was raised either in the court below or by the assignment of errors, none will be-noticed.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
1,
-6,
70,
19,
18,
29,
5,
-22,
6,
-2,
2,
-69,
-21,
40,
5,
-16,
9,
-40,
39,
-30,
55,
-73,
7,
-26,
-12,
-50,
9,
-51,
-34,
-20,
-47,
-38,
-24,
33,
-41,
-24,
40,
-29,
17,
42,
18,
-36,
60,
-61,
-7,
25,
-17,
1,
25,
-47,
20,
3,
-50,
16,
-33,
-21,
-10,
40,
31,
-36,
-75,
2,
14,
-2,
-32,
25,
-27,
-15,
18,
-32,
-35,
1,
9,
-31,
-25,
-26,
-49,
-34,
16,
-3,
-18,
-5,
59,
30,
-25,
-6,
-13,
-54,
86,
15,
-1,
74,
-57,
5,
35,
-7,
12,
2,
-5,
28,
27,
-23,
-23,
9,
-8,
40,
-20,
-12,
-25,
25,
-53,
26,
87,
-28,
0,
-4,
-19,
-54,
58,
12,
35,
-13,
3,
28,
-7,
-21,
-40,
-17,
-27,
83,
11,
37,
0,
-19,
42,
37,
8,
-11,
13,
-10,
34,
-14,
-56,
-41,
-32,
-18,
46,
-20,
-39,
-15,
-46,
-1,
5,
20,
-39,
-3,
27,
-44,
24,
3,
37,
-36,
-12,
-52,
-5,
-18,
6,
-4,
0,
3,
-20,
15,
-7,
12,
-10,
7,
6,
-45,
9,
18,
-2,
9,
-57,
-26,
-7,
5,
41,
5,
-10,
28,
56,
-18,
-54,
-19,
-18,
6,
-7,
13,
9,
-45,
23,
-2,
-6,
0,
-26,
0,
64,
-68,
-16,
5,
12,
-34,
-26,
-13,
-5,
35,
45,
-28,
-16,
1,
-25,
16,
-26,
-4,
-33,
-40,
18,
7,
-7,
6,
-40,
-30,
7,
20,
0,
-26,
35,
-2,
21,
-41,
-56,
7,
22,
0,
-13,
-17,
-30,
-16,
-30,
81,
-38,
-10,
-21,
-4,
25,
-29,
34,
-8,
-36,
2,
18,
24,
-45,
-5,
5,
-27,
51,
-20,
0,
-23,
-7,
33,
38,
49,
10,
-10,
-50,
0,
29,
49,
7,
-21,
-2,
-44,
34,
7,
-30,
-13,
-1,
32,
-13,
10,
-11,
5,
-4,
46,
12,
24,
43,
9,
-3,
20,
-7,
-12,
27,
-36,
-18,
15,
-10,
-10,
-4,
10,
-32,
-25,
13,
15,
-14,
34,
-19,
-47,
-68,
-7,
-47,
51,
3,
-1,
22,
23,
4,
-2,
55,
13,
7,
-34,
-38,
-7,
22,
8,
39,
-7,
28,
-10,
-35,
-16,
15,
31,
3,
20,
6,
-13,
-3,
-40,
8,
38,
14,
-21,
-11,
-32,
29,
36,
56,
-22,
-21,
-9,
17,
41,
-44,
-23,
-3,
53,
-29,
4,
-6,
1,
-17,
-15,
12,
-32,
-36,
109,
15,
-45,
-44,
-3,
17,
-24,
-22,
29,
-33,
-41,
-17,
31,
31,
-15,
-33,
17,
-2,
-40,
6,
26,
15,
-6,
23,
71,
-21,
-11,
-38,
-25,
2,
-30,
24,
-9,
-13,
11,
21,
-14,
27,
37,
1,
-2,
1,
-24,
17,
-29,
21,
10,
78,
0,
-11,
-4,
26,
4,
25,
16,
6,
44,
-50,
9,
-35,
6,
24,
24,
-23,
12,
29,
-18,
3,
45,
22,
-3,
23,
17,
52,
-15,
9,
38,
56,
-5,
19,
0,
29,
-19,
-13,
33,
-31,
9,
-13,
19,
0,
2,
-22,
6,
1,
4,
-22,
19,
10,
5,
43,
31,
-19,
-26,
-13,
-44,
-23,
-10,
-11,
-18,
-4,
36,
25,
2,
-15,
-32,
41,
-16,
-10,
14,
-17,
0,
-12,
32,
51,
-13,
7,
29,
3,
-1,
3,
26,
44,
7,
5,
26,
0,
-17,
1,
53,
4,
-2,
7,
-57,
-3,
47,
-10,
49,
43,
23,
-6,
-41,
10,
-17,
-11,
-45,
11,
-37,
33,
-11,
31,
-1,
-9,
17,
54,
-25,
-45,
18,
-31,
-3,
16,
-18,
17,
-17,
15,
-47,
-34,
-14,
-10,
-16,
62,
-38,
52,
12,
-4,
-11,
26,
12,
40,
6,
-45,
17,
-12,
23,
30,
-10,
0,
2,
-53,
-3,
37,
-31,
3,
-13,
9,
-28,
-19,
11,
-23,
-34,
-3,
-5,
-43,
31,
-48,
-22,
26,
-26,
-11,
23,
56,
-7,
24,
-20,
9,
27,
8,
-11,
-39,
60,
-24,
16,
31,
39,
-11,
0,
-2,
15,
27,
-22,
29,
-18,
-10,
-4,
-16,
62,
19,
-20,
-31,
-61,
-49,
-12,
29,
-22,
-43,
23,
-8,
48,
15,
66,
-25,
15,
-43,
-3,
17,
-1,
-26,
-27,
-59,
-22,
-4,
8,
27,
18,
3,
-1,
10,
-28,
35,
-16,
2,
-66,
2,
31,
-4,
12,
-18,
7,
53,
-19,
7,
-11,
10,
-73,
23,
0,
13,
-17,
-18,
47,
-23,
31,
37,
21,
46,
-14,
0,
15,
-52,
50,
-3,
-2,
0,
9,
-31,
-17,
-2,
-18,
37,
31,
9,
-20,
-27,
-2,
41,
-1,
21,
-18,
34,
6,
54,
0,
2,
-56,
-18,
2,
-9,
-11,
-25,
0,
-30,
32,
23,
22,
22,
-21,
-2,
-20,
17,
-14,
-14,
-17,
33,
43,
-5,
4,
-12,
25,
-53,
-29,
-72,
43,
-14,
-17,
-34,
-1,
21,
26,
36,
-4,
-13,
19,
-7,
19,
24,
11,
73,
-8,
-14,
27,
-17,
19,
-3,
26,
-2,
-31,
-53,
29,
26,
-47,
-76,
-14,
10,
8,
-8,
-40,
16,
10,
0,
-51,
-17,
-2,
1,
-6,
-57,
-14,
-37,
-17,
56,
7,
-15,
18,
3,
-75,
-40,
-32,
-22,
-29,
14,
-57,
-8,
-12,
-18,
7,
50,
77,
-38,
48,
-51,
31,
-2,
14,
-11,
24,
-7,
-45,
-10,
-26,
-26,
-4,
-33,
-8,
-7,
4,
10,
32,
-3,
33,
3,
-17,
0,
27,
23,
-40,
-4,
15,
-20,
13,
35,
32,
-29,
4,
7,
-49,
-13,
26,
8,
42,
-22,
27,
5,
-50,
-3,
33,
-49,
-26,
-34,
-38,
-6,
-27,
-67,
-37,
27,
20,
-17,
-5,
9,
-12,
-5,
-43,
4,
-6,
10,
56,
-36,
10,
-3,
25,
-20,
-32,
13,
17,
-44,
-67,
1,
-37,
-1,
-3,
-9,
30,
25,
-1,
10,
34,
57,
60,
-28,
5,
-20,
-60,
68,
3,
8,
-8,
81,
2,
30,
-22,
-14,
51,
-39,
10,
37,
-16,
13,
-36,
6,
-5,
-11,
26,
34,
50,
27,
31,
47,
7,
-25,
24,
30,
11,
0,
44,
-55,
-4,
-9,
-4,
39,
7,
3,
-40,
-11,
26,
5,
-6,
-22,
6,
5,
10,
44,
-5,
-9,
25,
24,
-28,
23,
-8,
-35,
7,
-14,
-19,
-16,
-6,
5,
23,
-14,
-23,
-24,
-57,
-15,
-2,
2,
12,
6,
3,
2,
3,
-1,
0,
3,
13,
20,
-4,
17,
-1,
-5,
51,
-46,
37,
-74,
37,
-34,
-30,
12,
60,
-12,
-38,
-2,
6,
-13,
-13,
-4,
-10,
-20,
23,
21,
0,
-9,
-58,
15,
3,
-19,
-21,
1,
60,
52,
17,
0,
0,
18,
-6,
0,
-3,
26,
-7,
-47,
50
] |
Butzel, J.
West Michigan Conference of Seventh Day Adventists, as employer, and Employers’ Liability Assurance Company, as insurer, appeal from an award of the department of labor and industry in favor of Emma Wearner, widow, and Bernadine Wearner, minor child, of A. G. Wearner, deceased. Appellant West Michigan Conference of Seventh Day Adventists is a religious organization with headquarters at Grand Rapids, Michigan. The government of the Seventh Day Adventists Church is divided into areas, which are called “conferences.” The West Michigan conference is composed of certain counties in the western portion of the lower peninsula in this State and five counties in the State of Indiana. The salary and expenses of the minister of each church within the conference are paid by the conference organization. In the spring of 1928, the conference requested a minister of the church, who lived at Lincoln, Nebraska, to negotiate with ,Rev. Mr. Wearner of that city to take a pastorship under the West Michigan conference at Grand Rapids, Michigan, and also obtain his release from the Nebraska conference. Shortly thereafter, Rev. Mr. Wearner came to Grand Rapids, where a church was assigned to him, and he became an employee of the conference. Two years later the conference convened at Hastings, Michigan, and hired him for another two-year term and issued credentials to him accordingly. He remained pastor of the Adventists Church of Grand Rapids until July, 1931, when the executive committee assigned him to the territory at South Bend, Indiana, where it became his duty to look after the affairs of the. church both at South Bend and also the neighboring city of Niles, Mich igan, both within the territory of the employer. It continued to pay his salary as well as other expenses, including the installation and service of a telephone, a subsidy on his rent and a certain amount for mileage, while traveling in the course of his duties.
One of his duties was to visit Niles, Michigan, very frequently. He went there almost daily during the month preceding his death. Oh the evening of December 7, 1931, while in pursuit of his regular duties, he left his home to attend an evening meeting at the home of one of his parishioners in South Bend, Ind. Almost immediately after alighting from a street car on his way to the meeting, and while between the street car and curb, he was struck by an automobile. He was severely injured and died as a result.
Even were there any merit to appellant’s claim that the services of Rev. Mr. Wearner were to be rendered wholly outside of the State, and that he was no longer a resident of Michigan, the question would be governed by the recent case of Roberts v. I. X. L. Glass Corp., 259 Mich. 644. The work was being done for a Michigan employer under a Michigan contract. The employee received his fatal injuries while performing duties arising out of and in the course of his employment. There is not only some, but an overwhelming preponderance, of evidence supporting the commission’s award, which we herewith affirm, with costs to appellees.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
46,
-23,
-16,
-34,
-31,
41,
12,
31,
-36,
-68,
-80,
-44,
35,
-31,
-24,
-9,
27,
-46,
-36,
-5,
8,
-28,
-31,
-46,
-31,
-19,
0,
-27,
-32,
-22,
-22,
19,
23,
-15,
-11,
-25,
0,
-64,
24,
-36,
-7,
-94,
50,
7,
-15,
-16,
25,
4,
22,
-16,
5,
11,
-62,
-2,
23,
-25,
58,
-5,
-22,
-26,
0,
-9,
46,
-26,
10,
-30,
5,
50,
52,
-50,
28,
-4,
-18,
26,
-4,
-19,
27,
6,
-42,
-5,
-29,
-46,
17,
-5,
-34,
12,
-4,
2,
-20,
27,
17,
17,
27,
5,
75,
0,
-28,
-12,
-24,
-14,
-14,
-79,
-40,
44,
-61,
-16,
26,
33,
-8,
-20,
41,
42,
58,
14,
117,
-22,
19,
-23,
15,
44,
-2,
-48,
-41,
50,
41,
47,
17,
20,
-37,
-30,
12,
-29,
-3,
17,
10,
17,
37,
-72,
-40,
18,
-5,
48,
30,
-8,
-9,
10,
-37,
10,
-31,
-68,
17,
-13,
9,
76,
-20,
-56,
-13,
-47,
39,
-31,
-21,
-41,
-11,
-41,
-64,
-20,
45,
46,
26,
-2,
39,
-31,
-20,
-11,
25,
63,
-22,
2,
-36,
17,
-60,
-10,
19,
-95,
6,
-100,
32,
18,
-39,
-37,
6,
-57,
3,
12,
-2,
4,
-8,
39,
-23,
-2,
53,
-30,
18,
19,
-18,
-6,
28,
-3,
16,
19,
64,
-33,
41,
-14,
12,
43,
5,
-35,
-13,
-85,
0,
24,
31,
44,
-27,
-60,
-7,
-12,
-28,
-62,
-26,
-29,
57,
15,
14,
15,
-5,
-9,
13,
-18,
33,
-107,
-18,
28,
12,
31,
-35,
-10,
26,
0,
9,
31,
-14,
-8,
-47,
0,
-29,
-2,
-55,
-4,
-58,
-10,
0,
31,
-9,
-16,
30,
-12,
92,
-72,
67,
17,
53,
-23,
-4,
-10,
48,
-9,
7,
23,
-13,
-4,
-8,
17,
21,
17,
44,
-29,
13,
-36,
20,
-15,
44,
-31,
57,
27,
-45,
6,
-18,
-13,
-30,
40,
-42,
-20,
4,
29,
-109,
-21,
49,
-52,
-19,
-32,
17,
-34,
19,
2,
18,
-39,
32,
6,
-14,
19,
-42,
15,
-70,
33,
-12,
18,
-30,
4,
-71,
-27,
32,
51,
-20,
-37,
-18,
38,
16,
-30,
-4,
13,
25,
38,
-60,
-19,
10,
23,
58,
-20,
-3,
-30,
-17,
-5,
-5,
20,
52,
46,
-3,
-16,
-3,
85,
-2,
15,
8,
-5,
-29,
25,
58,
9,
-15,
2,
-31,
13,
11,
3,
18,
-13,
-39,
33,
-10,
38,
2,
10,
-27,
-28,
-38,
38,
-97,
13,
-40,
24,
-8,
20,
-1,
2,
21,
23,
-26,
21,
-24,
76,
-27,
-19,
30,
46,
9,
12,
-19,
-28,
31,
45,
-11,
1,
76,
-7,
17,
28,
-7,
0,
24,
51,
-32,
-25,
44,
-2,
-63,
47,
7,
-32,
13,
20,
-9,
46,
8,
-40,
-60,
35,
2,
-27,
26,
7,
2,
-4,
6,
19,
3,
73,
-1,
-64,
38,
-35,
-2,
42,
3,
66,
-55,
30,
15,
-19,
-37,
-47,
52,
12,
22,
51,
0,
35,
32,
65,
39,
2,
-43,
-1,
-16,
-102,
-45,
-60,
41,
61,
3,
-23,
-19,
-34,
-7,
27,
-48,
13,
31,
30,
1,
32,
17,
29,
0,
10,
3,
40,
-13,
13,
-44,
-36,
14,
-56,
13,
-15,
23,
-39,
-27,
-43,
13,
-48,
40,
44,
-15,
48,
13,
-30,
1,
1,
52,
23,
-4,
-45,
47,
40,
12,
0,
27,
0,
-30,
-31,
6,
1,
-1,
-17,
10,
62,
-27,
7,
45,
-26,
9,
-36,
40,
-40,
-28,
6,
41,
-70,
28,
0,
-3,
-83,
-17,
0,
0,
11,
-16,
-14,
-9,
0,
3,
-48,
-23,
33,
-42,
26,
-10,
-59,
9,
44,
75,
-32,
-44,
-9,
1,
-22,
18,
-27,
45,
18,
0,
-20,
-24,
53,
-20,
13,
-13,
19,
-2,
37,
-58,
44,
36,
33,
70,
43,
92,
-32,
32,
-9,
-19,
54,
-33,
48,
-27,
29,
57,
-6,
-64,
-55,
-5,
-32,
-65,
37,
-13,
15,
7,
-10,
-16,
6,
106,
5,
-20,
68,
78,
50,
60,
-29,
-37,
-19,
-33,
-20,
-1,
-16,
-14,
3,
-29,
57,
3,
26,
8,
55,
-68,
-38,
-23,
-23,
60,
51,
24,
29,
-11,
5,
-45,
-19,
36,
-5,
-2,
24,
8,
51,
-72,
-13,
27,
3,
19,
5,
56,
9,
36,
-22,
-40,
-30,
-16,
-31,
-35,
47,
-16,
34,
13,
63,
49,
30,
-8,
30,
28,
-5,
0,
-66,
28,
24,
-24,
-7,
10,
-45,
6,
0,
-5,
-31,
-1,
37,
-21,
1,
-17,
29,
-49,
-48,
-38,
-43,
-25,
0,
65,
-70,
-35,
27,
11,
20,
2,
72,
-27,
70,
-23,
3,
62,
19,
15,
-35,
27,
-50,
15,
-33,
0,
-39,
4,
12,
15,
15,
9,
37,
8,
10,
-78,
-2,
-12,
45,
24,
17,
44,
-50,
-84,
-13,
2,
-12,
0,
-14,
7,
21,
23,
34,
-3,
43,
17,
-35,
13,
-36,
21,
34,
-20,
4,
46,
48,
-92,
4,
-60,
-51,
-8,
-82,
-19,
17,
68,
-8,
24,
24,
4,
31,
50,
44,
-14,
-34,
-5,
9,
74,
-23,
-6,
8,
5,
-16,
28,
8,
-45,
34,
-12,
50,
-59,
-13,
14,
5,
-17,
57,
12,
49,
8,
-7,
30,
5,
37,
-19,
-56,
-22,
-11,
-2,
-2,
-12,
6,
-42,
-15,
-47,
-82,
13,
1,
16,
13,
0,
-8,
14,
11,
-32,
-65,
-62,
45,
35,
-17,
42,
-43,
-71,
79,
17,
21,
17,
-33,
-26,
-51,
16,
-7,
-13,
-47,
-19,
-5,
-52,
-23,
-35,
11,
-13,
1,
41,
19,
-13,
-21,
30,
27,
0,
0,
-6,
-7,
-9,
-14,
-53,
-11,
5,
-24,
40,
47,
-34,
20,
24,
45,
89,
0,
25,
-10,
-41,
16,
38,
-38,
16,
-81,
33,
19,
4,
31,
2,
-24,
-19,
43,
45,
2,
-5,
-38,
59,
-62,
-23,
-56,
11,
13,
-49,
-30,
41,
-14,
9,
-32,
-50,
-15,
-56,
-48,
-2,
11,
0,
7,
51,
-16,
17,
-34,
-38,
64,
-21,
15,
32,
16,
-48,
42,
36,
-89,
-13,
63,
0,
36,
-17,
-73,
48,
-21,
28,
38,
17,
-36,
58,
38,
-37,
34,
-13,
23,
33,
46,
-20,
60,
-70,
-47,
30,
-10,
16,
-56,
-17,
-70,
33,
57,
-3,
-64,
-16,
54,
-3,
-28,
55,
-7,
12,
-21,
34,
18,
-2,
-68,
21,
-7,
48,
-18,
-40,
30,
-11,
4,
-12,
-21,
-45,
1,
-39,
5,
30,
-43,
39,
-38,
-71,
27,
77,
61,
32,
-17,
-5,
-6,
49,
-67,
-44,
-5,
-43,
1,
-40,
-69,
4
] |
Wiest, J.
In tort actions plkintiffs, upon trial by jury, had verdicts, but the court entered judgments non obstante veredicto for defendants. Upon review we reversed the judgments (Motyka v. Railway Co., 253 Mich. 647, 256 Mich. 417) and ordered judgments in the circuit court to be entered on the verdicts.
Reconsideration of the allowance of interest upon the verdicts is moved.
“At common law interest was as a rule not allowed on judgments.” 15 R. O. L. p. 15.
Interest upon verdicts and judgments is purely statutory, and, being in derogation of the common law, cannot be extended beyond stated statutory regulation. Straus v. Elless Co., 245 Mich. 558. The statute, 3 Comp. Laws 1929, § 14555, awards interest upon judgments in tort actions “from the time of entry of the same.” In actions founded on contracts, in certain specified instances, interest upon verdicts may be included in judgments. 2 Comp. Laws 1929, § 9238.
Entry of judgment means the ministerial act of the clerk in recording it in the permanent records of the court.
The circuit court is now directed to enter judgments on the verdicts, and, from the time of such entry, the interest will commence to run and not before.
No costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred.
to clerical or ministerial nature of entry of judgment, see annotation in 10 A. L. R. 588. | [
-45,
-2,
-6,
-69,
-16,
51,
40,
-53,
-4,
59,
-76,
24,
20,
-10,
-5,
-38,
17,
-45,
-24,
35,
-44,
30,
26,
49,
-26,
5,
67,
47,
40,
14,
13,
0,
-19,
30,
-78,
-43,
-20,
0,
37,
-14,
81,
-4,
1,
5,
-28,
-17,
25,
-92,
70,
-58,
48,
-16,
-41,
-12,
32,
-5,
8,
-37,
-26,
-24,
-12,
15,
-33,
23,
28,
3,
-31,
-42,
7,
-49,
-58,
-45,
-2,
4,
0,
-39,
-44,
9,
-15,
-60,
-4,
-48,
16,
20,
-22,
10,
-1,
-72,
-58,
-60,
-32,
11,
-4,
-22,
-21,
27,
72,
7,
5,
35,
-34,
-30,
-17,
10,
-54,
44,
-20,
-29,
34,
-34,
29,
38,
29,
-60,
-34,
28,
-26,
-25,
8,
-24,
-8,
3,
18,
-28,
-14,
36,
-9,
1,
0,
-32,
-25,
24,
7,
27,
-4,
3,
1,
-24,
3,
-27,
46,
-37,
2,
-16,
-9,
20,
12,
-30,
-20,
-10,
-5,
20,
46,
14,
9,
-8,
-20,
-45,
2,
-41,
50,
6,
-37,
0,
34,
1,
-19,
20,
-6,
-21,
-14,
14,
25,
0,
-4,
43,
51,
-84,
-5,
-23,
-68,
53,
0,
45,
30,
-11,
-10,
0,
11,
-39,
38,
5,
-17,
-12,
40,
-9,
23,
36,
9,
35,
-26,
-41,
22,
22,
-40,
29,
19,
25,
27,
13,
-57,
13,
-32,
-34,
-2,
-10,
19,
-11,
-2,
-17,
-54,
38,
3,
-4,
-39,
-24,
-22,
48,
27,
20,
10,
-18,
-4,
16,
25,
-10,
-33,
-2,
9,
46,
30,
15,
15,
-8,
-34,
9,
5,
8,
37,
16,
-5,
6,
-27,
-9,
-14,
-47,
21,
3,
-54,
-38,
-47,
65,
-36,
16,
14,
24,
23,
66,
-23,
-9,
1,
-27,
10,
61,
-11,
-5,
-22,
-74,
-51,
-35,
-18,
6,
50,
36,
-116,
30,
-49,
41,
-17,
-27,
40,
-15,
22,
22,
64,
77,
-3,
31,
17,
-26,
-24,
-31,
20,
83,
70,
-43,
-37,
7,
-55,
-63,
-40,
5,
69,
-27,
32,
6,
-33,
-15,
44,
-1,
-1,
-13,
1,
-6,
16,
-15,
63,
-50,
-22,
41,
11,
-6,
68,
81,
19,
-12,
7,
56,
11,
13,
57,
9,
10,
-44,
4,
-38,
-4,
-8,
-16,
41,
25,
21,
-7,
21,
-2,
-29,
13,
-5,
-18,
-16,
54,
7,
14,
-12,
45,
5,
-1,
-6,
12,
16,
33,
20,
-8,
-23,
-15,
-4,
57,
-9,
-6,
42,
-26,
26,
-19,
-7,
9,
22,
-45,
-1,
-16,
11,
-31,
29,
-1,
27,
-17,
46,
-22,
-10,
-30,
-17,
-46,
15,
56,
-6,
-8,
33,
15,
-10,
-29,
65,
-43,
1,
-12,
-25,
-18,
28,
-3,
20,
16,
-9,
71,
-18,
53,
-33,
-43,
3,
17,
19,
-39,
-67,
0,
-45,
-4,
-55,
-6,
1,
-33,
23,
-12,
47,
0,
-7,
-34,
-8,
0,
-17,
-4,
-11,
15,
4,
42,
6,
56,
6,
32,
63,
-13,
-2,
-32,
31,
31,
-27,
12,
35,
14,
-13,
-3,
-26,
29,
5,
-17,
-16,
-43,
68,
-42,
-3,
-32,
18,
39,
7,
41,
-7,
-34,
-12,
-9,
3,
-26,
-18,
-8,
-32,
-4,
-14,
-8,
-29,
-31,
-20,
-33,
18,
-93,
7,
-47,
-13,
55,
-62,
22,
6,
-12,
-80,
-17,
20,
9,
16,
58,
64,
7,
30,
6,
24,
-14,
32,
11,
-13,
-2,
36,
-69,
24,
-25,
61,
14,
-70,
34,
32,
8,
-42,
-14,
9,
-15,
-29,
-22,
-40,
-9,
22,
29,
7,
8,
-22,
1,
-46,
8,
54,
-25,
-10,
-15,
39,
-18,
-11,
43,
2,
46,
-16,
11,
30,
-10,
0,
32,
-20,
0,
8,
17,
21,
-33,
5,
-11,
-5,
-62,
-5,
19,
53,
28,
-56,
2,
51,
-15,
-24,
19,
-22,
-6,
-5,
22,
7,
39,
31,
12,
37,
-8,
-64,
22,
4,
52,
15,
-38,
35,
-34,
-29,
-44,
31,
15,
36,
16,
-21,
62,
18,
-11,
21,
11,
5,
21,
30,
-35,
32,
8,
7,
-11,
-3,
18,
22,
11,
-20,
0,
5,
30,
39,
-59,
2,
-60,
61,
-14,
-3,
15,
53,
-37,
11,
51,
-6,
29,
-14,
-48,
-4,
12,
8,
9,
47,
-28,
-91,
9,
16,
37,
-22,
-24,
-44,
30,
36,
-44,
30,
-6,
28,
-30,
-42,
27,
-3,
48,
-17,
42,
10,
25,
19,
-45,
-4,
5,
-9,
-58,
1,
13,
11,
-13,
-60,
-14,
53,
31,
-23,
-12,
47,
-44,
-15,
0,
-17,
91,
72,
3,
-23,
20,
-61,
26,
44,
11,
-6,
0,
34,
-12,
-44,
-68,
-18,
-29,
-22,
-6,
8,
-36,
-21,
27,
-26,
12,
-45,
14,
-68,
52,
16,
32,
45,
-20,
16,
11,
-17,
-25,
22,
19,
-2,
-4,
4,
32,
-4,
28,
-1,
14,
-10,
-56,
14,
-15,
36,
-13,
27,
4,
28,
60,
-12,
-56,
-4,
26,
2,
-1,
-12,
1,
23,
-32,
20,
14,
5,
-3,
-23,
4,
-42,
-20,
0,
-30,
10,
-7,
35,
-24,
-41,
0,
24,
-16,
3,
31,
38,
24,
-28,
-20,
-76,
11,
71,
18,
-3,
26,
0,
12,
-7,
0,
0,
62,
14,
42,
-15,
-28,
24,
-30,
50,
43,
0,
16,
11,
-3,
-15,
-48,
13,
23,
38,
13,
-7,
1,
-51,
-30,
67,
5,
0,
3,
54,
4,
-44,
10,
26,
-30,
-15,
-47,
61,
12,
-29,
33,
-2,
3,
-19,
11,
-12,
0,
17,
-9,
0,
-26,
-5,
-40,
-9,
-1,
16,
-10,
1,
-53,
26,
-11,
-65,
27,
17,
-31,
11,
-18,
41,
72,
-32,
-74,
26,
-11,
-6,
-42,
75,
-63,
-16,
-52,
28,
9,
-33,
-21,
0,
-30,
26,
-28,
0,
-31,
13,
-21,
-14,
-60,
39,
30,
44,
4,
-6,
25,
-62,
-59,
-21,
2,
-8,
-8,
0,
68,
67,
-17,
32,
-13,
-11,
-30,
12,
32,
-23,
27,
44,
45,
39,
-19,
-21,
-13,
-2,
6,
11,
15,
-46,
-4,
-22,
30,
-28,
-20,
-21,
-51,
26,
36,
-32,
-15,
-26,
-22,
-33,
-13,
-56,
25,
-14,
16,
52,
26,
-26,
-32,
40,
21,
-17,
-23,
-3,
-26,
-3,
-13,
-20,
43,
15,
-21,
27,
0,
9,
14,
-29,
5,
-33,
-56,
-2,
-28,
-22,
-17,
-6,
10,
22,
2,
-45,
25,
-15,
-73,
2,
0,
-60,
7,
43,
-77,
-42,
-82,
-29,
18,
-35,
-6,
-14,
15,
13,
-43,
-3,
-22,
-16,
1,
-15,
17,
21,
25,
-51,
-4,
24,
24,
78,
-11,
-46,
15,
47,
96,
28,
-25,
12,
-13,
-91,
-47,
15,
0,
44,
-10,
21
] |
Clark, C. J.
A daughter was born to John Cudney and Berneda Cudney, his wife, on April 14,1926. On December 7, 1926, proceedings for adoption and change of name of the child were had in the probate court of the county, pursuant to 3 Comp. Laws 1929, § 15951. A guardian ad litem was appointed for Mrs. Cudney, who was not then of full age. The parents and the guardian ad litem duly consented to the adoption, and the proper statutory instrument was executed by defendants, the adoptive parents. Due investigation and report being made, the probate court made due order of adoption, 3 Comp. Laws 1929, § 15955, containing a finding of genuine ness of consent of the natural parents, and the other usual findings of good moral character of the adoptive parents, the suitableness of the home, and respecting the welfare of the child. The defendants took, kept, and cared for the child. Mrs. Cudney, divorced from Cudney, married again, and she, as Berneda Shepherd, on May 13, 1931, filed this bill to set aside the adoption proceeding, the only allegation of the bill, meriting mention and supported by proof, being that her consent was due to threats, coercion, and duress of her former husband.
The bill was dismissed. Plaintiff has appealed. If plaintiff’s complaint is not in fact established, then there is, on this record, no infirmity in the proceeding, and the decree is right. So other questions may be passed. Plaintiff’s testimony as against her former husband has some support, but the circumstances of her going to the probate court room with Mrs. Jensen, one of the defendants, and not in company of her husband, of absence of complaint by plaintiff until long after the fact and when her circumstances had changed, together with the testimony of other witnesses, including the judge of probate, lead to accord with the trial judge in deciding the issue of fact against plaintiff.
No other question need be discussed.
Affirmed, with costs.
McDonald, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
-19,
-41,
-6,
33,
-27,
11,
14,
15,
34,
-24,
-7,
-28,
18,
68,
-55,
7,
3,
8,
20,
-58,
-21,
49,
-50,
14,
18,
1,
57,
-18,
-10,
12,
-8,
-6,
10,
-15,
-23,
37,
54,
32,
43,
-37,
27,
-22,
-23,
-24,
-27,
13,
-6,
13,
-23,
2,
8,
-13,
7,
3,
12,
0,
26,
-45,
-39,
-48,
-14,
21,
9,
-12,
7,
13,
-56,
33,
-18,
-8,
38,
14,
-33,
-38,
44,
2,
-19,
-15,
-7,
24,
3,
15,
32,
13,
-10,
2,
-12,
11,
-24,
8,
-4,
0,
-29,
-28,
-55,
86,
9,
-6,
39,
25,
16,
-51,
9,
0,
12,
41,
-45,
-11,
13,
2,
34,
-2,
44,
15,
9,
3,
-18,
25,
-5,
-34,
24,
72,
-3,
-77,
21,
-5,
-51,
-12,
48,
5,
-28,
-40,
-15,
-9,
0,
-61,
-19,
-33,
8,
-104,
-11,
42,
14,
-62,
5,
51,
-36,
32,
-11,
-41,
-6,
37,
60,
83,
71,
65,
11,
-11,
16,
-54,
-55,
2,
-7,
-52,
-37,
-48,
0,
-7,
6,
0,
-1,
60,
-25,
29,
-3,
-11,
-10,
25,
-14,
-10,
-2,
29,
27,
-11,
23,
-6,
-22,
-37,
7,
17,
-51,
-24,
42,
30,
4,
34,
18,
-28,
6,
-40,
10,
20,
5,
0,
-8,
6,
12,
-63,
2,
-31,
51,
-17,
-19,
-48,
-53,
-7,
19,
16,
-52,
44,
30,
4,
31,
-5,
-63,
-36,
0,
-15,
-28,
-34,
44,
21,
-18,
5,
33,
-4,
-18,
17,
-22,
-1,
11,
27,
40,
-7,
-29,
-3,
-15,
52,
35,
46,
15,
-1,
-41,
66,
-6,
16,
-11,
16,
38,
8,
19,
15,
0,
21,
51,
10,
74,
51,
42,
-6,
13,
-38,
43,
18,
-13,
-70,
-13,
-53,
-2,
53,
27,
27,
24,
-8,
-32,
-45,
-17,
24,
12,
30,
14,
20,
41,
-64,
76,
13,
6,
-3,
-57,
-53,
20,
-19,
5,
2,
-20,
-32,
-40,
23,
-41,
13,
-3,
56,
51,
-19,
20,
-7,
-49,
-29,
-6,
-25,
-16,
9,
-4,
13,
-77,
-19,
34,
17,
6,
87,
-51,
-15,
-18,
-70,
16,
-6,
0,
4,
0,
-20,
-11,
6,
-15,
30,
22,
-60,
6,
-11,
58,
-13,
-42,
-20,
-25,
-19,
-25,
-42,
12,
-58,
14,
-4,
30,
4,
-37,
-40,
16,
-4,
51,
-20,
12,
9,
23,
-8,
-44,
12,
-8,
44,
-10,
-3,
43,
36,
-41,
-34,
-36,
56,
23,
-12,
-4,
46,
42,
-15,
-4,
3,
-46,
-35,
-22,
17,
1,
42,
-34,
-42,
6,
56,
-74,
-61,
-3,
61,
-2,
24,
8,
-12,
37,
-12,
10,
2,
25,
-18,
-17,
-110,
-17,
39,
-57,
63,
-54,
8,
-40,
3,
11,
-8,
-3,
-58,
-20,
14,
-5,
9,
74,
-37,
-15,
19,
64,
6,
5,
35,
-2,
42,
-19,
26,
-58,
-21,
28,
-37,
28,
0,
35,
11,
25,
-4,
2,
38,
-41,
-48,
26,
0,
58,
-11,
-10,
-12,
-17,
1,
-10,
20,
17,
1,
-13,
22,
1,
16,
5,
3,
1,
-24,
-40,
-44,
-48,
-15,
4,
-15,
-39,
15,
23,
-56,
58,
-64,
6,
60,
-42,
2,
-13,
-18,
-67,
-18,
32,
4,
7,
58,
81,
0,
-17,
23,
-27,
29,
21,
0,
17,
-18,
-45,
9,
34,
21,
-27,
6,
12,
11,
-7,
-16,
16,
-18,
54,
8,
24,
0,
13,
-5,
-31,
-22,
13,
22,
-23,
-9,
-5,
-2,
-21,
63,
-15,
43,
1,
19,
50,
-19,
-25,
-24,
31,
-1,
2,
-40,
-23,
-16,
35,
-2,
-91,
0,
-17,
-10,
17,
-27,
17,
-58,
29,
-11,
-9,
-29,
30,
12,
24,
15,
-4,
25,
-5,
-23,
-19,
-21,
-9,
-11,
0,
14,
-64,
23,
-26,
29,
4,
39,
-46,
-59,
-11,
-33,
-4,
-42,
-10,
-41,
-27,
-25,
-45,
33,
0,
-20,
-3,
-10,
3,
2,
-19,
-50,
-12,
8,
-1,
-4,
33,
19,
13,
-35,
-35,
-23,
-53,
7,
14,
15,
-1,
-14,
9,
17,
60,
25,
22,
-11,
-43,
9,
-30,
-31,
9,
-1,
13,
-19,
20,
40,
-26,
-5,
-2,
0,
42,
-24,
3,
16,
-20,
20,
-55,
47,
-13,
4,
43,
-38,
11,
29,
-2,
-13,
8,
14,
44,
33,
28,
30,
-27,
25,
-51,
18,
26,
15,
51,
-23,
16,
55,
5,
2,
-9,
13,
12,
-35,
3,
10,
-40,
7,
-46,
27,
0,
-66,
-18,
0,
4,
-46,
-23,
27,
26,
61,
19,
2,
2,
14,
-5,
10,
19,
23,
-43,
-21,
-16,
27,
26,
-70,
-22,
24,
46,
-9,
-13,
-38,
-15,
33,
37,
0,
-15,
72,
-13,
17,
26,
-48,
32,
-28,
24,
40,
-37,
8,
29,
-54,
25,
-28,
-8,
-53,
-12,
3,
-40,
25,
18,
25,
0,
80,
-1,
-15,
-58,
-18,
-10,
-2,
27,
0,
-19,
-38,
-36,
28,
0,
-11,
-19,
17,
-28,
-7,
-20,
5,
7,
13,
79,
-28,
-3,
0,
53,
19,
1,
-27,
-4,
24,
22,
26,
39,
-31,
52,
-50,
8,
37,
1,
21,
-4,
38,
54,
31,
-19,
-71,
-14,
-11,
39,
34,
-41,
-1,
-6,
18,
-51,
33,
-71,
-16,
13,
35,
-9,
-40,
-47,
-21,
67,
11,
0,
-28,
47,
35,
16,
-11,
-13,
-25,
-26,
29,
-16,
-63,
-12,
9,
-7,
-19,
-18,
3,
24,
36,
5,
14,
-29,
31,
29,
2,
44,
19,
15,
3,
24,
-49,
-1,
-29,
19,
71,
7,
-43,
-45,
32,
-56,
-32,
-32,
8,
13,
-76,
34,
35,
37,
21,
34,
14,
-87,
-47,
-28,
-1,
-34,
-20,
40,
-19,
-22,
13,
58,
28,
-67,
60,
19,
9,
37,
4,
3,
-17,
14,
8,
58,
6,
1,
44,
3,
57,
0,
12,
-36,
31,
-75,
-12,
-15,
9,
-26,
11,
-2,
-62,
54,
-5,
-27,
5,
36,
-5,
68,
9,
-17,
-14,
46,
-44,
-21,
-12,
-16,
-36,
12,
7,
-46,
14,
44,
5,
-75,
-13,
48,
-26,
2,
15,
15,
22,
-17,
-2,
-30,
2,
-16,
-10,
-66,
-43,
-22,
-22,
-6,
48,
-7,
7,
-40,
-2,
7,
0,
-71,
22,
-44,
47,
10,
-10,
-21,
-56,
48,
6,
0,
46,
53,
-22,
-32,
-31,
7,
-88,
36,
45,
8,
0,
-58,
49,
-11,
52,
-15,
-34,
10,
-80,
-36,
-56,
25,
-11,
-26,
-7,
44,
-52,
-20,
-8,
-11,
-32,
-13,
0,
-2,
35,
-43,
-31,
14,
14,
-51,
-29,
-46,
18,
-23,
67,
-19,
13,
-27,
52,
41,
22,
45,
-11,
5,
2
] |
Wiest, J.
This is certiorari to review mandamus. Relators in the circuit, and here termed plaintiffs, filed nominating petitions with the secretary of the board of education of school district No. 11, Ecorse township, Wayne county, to have their names placed on the ballot for members of the school board at the election on June 13, 1932. Eligibility for candidacy required that their names appear on the assessment roll as owners of property subject to taxes in the township and school district. The names of plaintiffs were upon the assessment roll submitted by the assessor to the board of review on June 7, 1932. The school district election officers held that plaintiffs were not eligible because their names did not appear on the assessment roll for 1931, and the fact that their names appeared on the assessment roll for 1932 did not render them eligible previous to approval of such assessment roll by the board of review, and refused to place their names upon the ballot. Plaintiffs applied to the circuit court for writs of mandamus directing the school election officers to place their names upon the ballot. Such applications for writs were denied on June 9,1932, and the ballot was printed without plaintiffs’ names thereon.
Plaintiffs Brady and Seaton ran as sticker candidates and received the highest number of votes. The board of canvassers held that plaintiffs were not legally eligible for election, and, therefore, declared two others, with lesser votes, elected. Thereupon plaintiffs filed a petition in the circuit for a writ of mandamus requiring the board of canvassers to reconvene, declare plaintiffs elected, and issue certificates to such effect. The application was denied, the circuit judge ruling that the former denial was res judicata,, and plaintiffs review by certiorari.
The question of res judicata is of no moment. As stated by counsel for defendants:
“A discussion of this question by us would only be academic, in view of the fact that appeals were taken by the relators from the orders made by both Judge Reid and Judge Doty.”
Tbe question involved is well stated in defendants ’ brief:
“Do the words ‘assessment roll’ in 2 Comp. Laws, 1929, § 7420, providing that a ‘qualified voter in a school district whose name appears on the assessment roll,’ etc., shall be eligible to office in such school district, refer to: (1) the roll or list prepared by the assessors before its submission to the board of review; or (2) to the roll or list after its correction and revision by the board of review, as provided for by 1 Comp.'Laws 1929, § 3417?”
The question is not when the assessed tax becomes a lien, as decided in Harrington v. Hilliard, 27 Mich. 271, but whether the assessment roll is such within the meaning of 2 Comp. Laws 1929, § 7420, after it is made and completed by the assessing officer and before submission to and action thereon by the board of review:
2 Comp. Laws 1929, § 7420, provides:
“Any qualified voter in a school district whose name appears on the assessment roll and who is the owner in his own right of the property so assessed, shall be eligible to election or appointment to office in such school district.”
The general tax law, 1 Comp. Laws 1929, § 3412, provides that:
“On or before the first Monday in June in each year, the supervisor or assessor shall make and complete an assessment roll, upon which he shall set down the name of every person liable to be taxed in his township or assessment district, with a full description of all the real property therein liable to be taxed. # * * The supervisor shall estimate, according to his best information and judgment, the true cash value of every parcel of real property and set the same down opposite such parcel.”
The statute (1 Comp. Laws 1929, § 3417) provides that such assessment roll, prepared by the assessing officer, shall be submitted to the board of review for the correction of errors and to pass upon each valuation and each interest, and also provides that:
“The roll as prepared by the .supervisor shall stand as approved and adopted as the act. of the board of review, except as changed by a vote as herein provided. ’ ’
The legislature, having termed the list of taxable persons and the property and its valuation in the assessment district “an assessment roll,” did the same body, in fixing qualification for school district officers, and in employing the same term, intend the same thing or something different? The term “assessment roll” is equivocal, but, construed with reference to its employment by the legislature in 1 Comp. Laws 1929, § 3412, it means a listing of persons and property to be taxed, and a valuation of the property of each person as a basis of apportionment, and cannot be extended to subsequent approval by the board of review.
Plaintiffs were entitled to have their names upon the ballot, and, as sticker candidates, having received the highest number of votes, were entitled to certificates of election.
The holdings in the circuit court are reversed, with costs to plaintiffs, and it is ordered that writs of mandamus issue out of the circuit court, directing the school district board of canvassers to reconvene, canvass the returns, declare plaintiffs elected, and issue certificates to such effect.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
-12,
0,
3,
12,
22,
71,
1,
16,
-36,
2,
-59,
-30,
52,
28,
0,
-3,
40,
-9,
28,
-39,
-27,
26,
-13,
73,
6,
-29,
60,
14,
-39,
12,
-10,
-53,
-20,
2,
-42,
-26,
16,
-1,
23,
0,
-16,
-17,
-53,
-10,
-49,
9,
-2,
25,
-20,
9,
4,
33,
-32,
31,
9,
16,
-10,
0,
-21,
-56,
-12,
66,
5,
-3,
-1,
1,
2,
-7,
39,
-5,
-8,
-16,
-22,
-61,
25,
1,
-31,
-6,
12,
28,
0,
-21,
26,
-1,
-8,
43,
-16,
10,
30,
21,
20,
8,
-76,
0,
24,
0,
-9,
-21,
35,
13,
4,
27,
-14,
-23,
-10,
-10,
-26,
-2,
37,
-45,
39,
34,
22,
-38,
20,
-33,
-13,
5,
25,
0,
41,
-27,
-19,
-2,
-5,
15,
-82,
32,
-23,
35,
-33,
32,
19,
-3,
-4,
9,
-19,
-12,
21,
-52,
1,
0,
2,
-19,
59,
-25,
7,
-29,
1,
-39,
-2,
21,
58,
0,
-13,
8,
86,
-16,
35,
-8,
2,
58,
-54,
-32,
-2,
-10,
-14,
-19,
1,
-3,
-8,
14,
31,
-16,
19,
-15,
27,
8,
11,
23,
-23,
-25,
34,
32,
-58,
-33,
-31,
-25,
-46,
-47,
37,
-45,
39,
-61,
26,
19,
-26,
79,
-36,
26,
5,
-11,
0,
-18,
-1,
-7,
10,
-53,
-63,
-35,
-38,
-19,
17,
-35,
25,
-30,
45,
-3,
29,
9,
13,
6,
48,
-9,
3,
23,
-29,
54,
11,
0,
13,
29,
22,
27,
-30,
-46,
-13,
17,
47,
6,
-7,
10,
33,
10,
-38,
-18,
-25,
5,
15,
21,
25,
22,
-8,
-56,
-59,
-32,
-1,
-5,
-26,
4,
6,
36,
-7,
-15,
-27,
9,
34,
61,
-15,
2,
-48,
41,
1,
-11,
-7,
-12,
-46,
-43,
-17,
-2,
9,
25,
-7,
11,
-58,
48,
-14,
-29,
-52,
-19,
-17,
-15,
-8,
37,
-18,
-32,
24,
-18,
29,
-9,
-32,
35,
-1,
-22,
-2,
-24,
-43,
-64,
39,
2,
20,
21,
44,
-40,
21,
-17,
-16,
16,
-62,
-11,
-19,
-5,
19,
-47,
6,
8,
24,
-21,
7,
-21,
-18,
-46,
17,
-7,
73,
-7,
18,
-32,
39,
12,
71,
28,
8,
34,
-9,
-40,
-82,
-44,
37,
25,
31,
-21,
11,
14,
-13,
-15,
12,
8,
5,
15,
13,
46,
12,
-21,
9,
-19,
11,
16,
28,
-31,
58,
5,
79,
26,
32,
-48,
-19,
43,
7,
53,
-38,
-35,
18,
20,
-1,
-5,
33,
8,
4,
-35,
6,
-2,
-25,
21,
-29,
4,
50,
-3,
1,
17,
-17,
33,
-26,
11,
-30,
4,
-29,
15,
-19,
52,
3,
-10,
-2,
-65,
47,
-38,
21,
-3,
2,
-17,
-9,
-9,
-2,
-7,
7,
0,
37,
28,
39,
29,
-40,
-61,
-35,
12,
7,
12,
0,
-21,
-18,
0,
-3,
-18,
-32,
-5,
-56,
1,
17,
16,
10,
46,
-29,
37,
-13,
-60,
21,
0,
-11,
-24,
23,
-45,
11,
-32,
21,
71,
18,
11,
-21,
16,
-7,
-45,
-46,
11,
-42,
58,
-12,
4,
8,
-4,
12,
-11,
28,
11,
-56,
-81,
7,
26,
-20,
-40,
-63,
-4,
-16,
-44,
4,
16,
48,
51,
11,
-48,
-14,
-16,
29,
51,
4,
-7,
-13,
25,
-89,
-11,
-39,
15,
1,
-18,
-15,
42,
-1,
-20,
-5,
14,
20,
-38,
51,
7,
-21,
-29,
9,
29,
21,
-26,
-13,
40,
47,
24,
57,
1,
4,
12,
-52,
10,
3,
-3,
51,
34,
26,
19,
10,
-6,
-16,
6,
39,
-6,
39,
-27,
-34,
-13,
-20,
-16,
-28,
-64,
-18,
-6,
22,
-15,
32,
6,
12,
-12,
-18,
-8,
14,
14,
-18,
-13,
5,
8,
-7,
5,
14,
11,
21,
18,
6,
65,
-23,
-49,
29,
-24,
18,
-5,
7,
-9,
10,
-52,
-16,
-14,
20,
-21,
-9,
57,
51,
-38,
7,
33,
12,
-8,
-8,
28,
-6,
34,
-33,
-84,
1,
40,
-30,
22,
7,
21,
15,
33,
1,
-65,
8,
67,
-11,
-8,
16,
-5,
2,
-10,
-13,
20,
35,
-19,
-48,
6,
-16,
-23,
-63,
-6,
45,
34,
-6,
-48,
3,
-16,
9,
-30,
-39,
-3,
3,
-14,
-20,
13,
4,
-40,
-68,
-23,
2,
-71,
-13,
-46,
38,
-60,
-4,
41,
-33,
50,
-4,
-25,
31,
21,
5,
17,
24,
-57,
3,
-21,
-1,
37,
0,
27,
-11,
24,
-29,
20,
32,
-34,
15,
34,
-17,
-49,
20,
46,
-5,
-16,
0,
-14,
1,
-10,
-48,
21,
-20,
0,
-11,
59,
-19,
16,
37,
7,
17,
-32,
-21,
-44,
-53,
6,
1,
-36,
-22,
-31,
22,
24,
26,
-1,
-3,
-16,
30,
40,
20,
-15,
6,
5,
5,
0,
7,
-32,
22,
43,
40,
-18,
3,
9,
49,
-43,
-10,
22,
-26,
25,
38,
-24,
13,
50,
-39,
11,
4,
9,
-23,
28,
-35,
-30,
30,
11,
22,
-17,
-64,
36,
-25,
-22,
1,
11,
21,
25,
7,
-18,
0,
-70,
66,
6,
-33,
-44,
16,
-5,
4,
24,
16,
-5,
-23,
-35,
-11,
-49,
-10,
5,
6,
-18,
-36,
-40,
0,
50,
28,
-24,
1,
16,
0,
36,
24,
10,
4,
34,
-14,
25,
-1,
67,
1,
8,
-72,
-33,
9,
-1,
12,
38,
-20,
-28,
-18,
22,
0,
2,
21,
47,
40,
10,
17,
41,
8,
-19,
9,
22,
33,
-64,
-22,
13,
-14,
16,
-6,
-11,
-38,
-43,
-20,
30,
-23,
25,
46,
3,
2,
31,
-14,
24,
1,
-25,
23,
-50,
-24,
1,
77,
38,
-22,
-17,
-1,
17,
-7,
-65,
49,
68,
11,
-13,
-15,
-3,
-13,
-14,
9,
-10,
-43,
7,
-23,
-4,
31,
-33,
-13,
49,
6,
26,
40,
29,
41,
28,
-4,
44,
44,
3,
8,
-12,
-26,
-24,
-25,
-5,
16,
23,
-47,
-14,
41,
2,
-14,
11,
30,
-18,
12,
-28,
-5,
-59,
-12,
-43,
11,
39,
37,
8,
-36,
-59,
-25,
-50,
31,
12,
-33,
37,
-21,
-43,
-37,
-23,
0,
12,
44,
-3,
24,
-19,
38,
-34,
-34,
-40,
-31,
-22,
-43,
26,
-49,
16,
-24,
-56,
-3,
5,
-35,
14,
-30,
-3,
-15,
32,
-10,
33,
-39,
43,
8,
-29,
-48,
-11,
30,
24,
-7,
56,
0,
23,
-14,
-33,
-39,
2,
18,
42,
-34,
-39,
35,
20,
15,
-27,
27,
-7,
-41,
-48,
17,
20,
-5,
-54,
28,
47,
-49,
10,
6,
9,
52,
8,
37,
6,
7,
-15,
27,
1,
-1,
0,
12,
-15,
26,
9,
22,
-5,
-1,
-36,
-25,
1,
15,
24,
-6,
-3
] |
Wiest, J.
This is an appeal, in the nature of mandamus, to vacate an order in the circuit court denying an application for a delayed appeal from the probate court and direction to the circuit judge to allow the appeal.
Plaintiffs, by motion, ask that defendant’s brief be stricken from the files for failure to serve notice of appearance under Court Rule No. 62. We decline to deprive ourselves of help furnished by defendant’s brief. The motion is denied, but without costs.
In the circuit court plaintiffs, on November 12, 1931, petitioned for leave to appeal from an order of the probate court, entered December 10, 1930, admitting to probate the will of George W. Howard, deceased. Petitioners are residents of- Canada, and heirs-at-law of the testator, and were not given notice of the proceeding in the probate court and did not learn of testator’s death and probate of the will until May, 1931, at which time they employed an attorney to look after their interests. The attorney was taken sick, was ill eight weeks, and engaged an associate to help make an investigation. The petition for leave to appeal was denied, and such denial must stand unless there was an abuse of discretion.
The heirs-at-law complain of want of notice. The statute (3 Comp. Laws 1929, § 15603) in force at the time the will was filed for probate, provided:
“Whenever it shall appear upon application to any probate court * * * to prove the will of any deceased person, that the heirs-at-law of said deceased, or any of them, are residents of a foreign country, it shall be the duty of the judge of such probate court to notify the consul of such foreign nation in the city of New York, or the consul, vice-consul, or consular agent, resident in this State, if there be one of such foreign nation, of the pending of, and the day appointed for hearing such application.” .
The record does not show, but we assume from statements in the briefs, that the petition for probate of the will was filed by Hannah Elizabeth June, former housekeeper for testator and principal beneficiary under the will. This petition did not inform the court of the heirs-at-law in Canada. Notice, in due form, was given to all persons mentioned in the petition, and jurisdiction of the probate court was exercised in accord with the statutory provisions applicable to the petition filed, and it is not enough now to show that, had the petition been different, then the invoked provision of the statute would have been applicable. "Want of notice furnished plaintiffs with a good excuse for not appealing within the time allowed by statute, but required prompt use thereof to be of avail.
• Plaintiffs also invoke 3 Comp. Laws 1929, § 15969, which provides:-
“If any person aggrieved by any act of the. judge of probate * * * shall from any cause, without default on his part, have omitted to claim or prosecute his appeal according to law, the circuit court, if it shall appear that justice requires a revision of the case, may, on the petition of the party aggrieved, and upon such terms as it shall deem reasonable, allow an appeal to be taken and prosecuted with the same effect as if it had been done seasonably.”
Defendant claims that plaintiffs have not made a showing that justice requires a revision of the case, citing McKay v. Macomb Circuit Judge, 222 Mich. 244, and, besides, claims that the debts of the de ceased were paid before the application for appeal was filed, and, therefore, under 3 Comp. Laws 1929, § 15970, and our holding in Re Quinlan’s Estate, 250 Mich. 684, application for the delayed appeal could not be entertained.
To this plaintiffs call attention to 3 Comp. Laws 1929, § 15971, which provides:
“If the petitioner shall be without the United States at the time of passing the decree or order, or making the determination, he may file his petition within three months after his return, provided it be done within two years after the act complained of; but no such petition shall be allowed after the payment of the debts of the estate and the distribution thereof to the parties entitled thereto by due course of law,”—
and aver there has been no distribution of the estate.
The contention of defendant that the last-mentioned statute
“has no application whatsoever, to the case at bar, as it clearly refers to a petitioner who, at the time of the entry of the order complained of, had previously left the United States and subsequently returned and who, after his return, and within three months thereafter, filed his petition,”- — •
and inasmuch as the petitioners here are residents of Canada and there is no showing that they had ever been in the United States previous to 1931. This contention overlooks the holding of this court in Re Alston’s Estate, 229 Mich. 478, that aliens are not deprived of the benefit of this statute. This statute does not help plaintiffs, for they did not apply for leave to appeal within three months after full knowledge of the action had in the probate court,
Illness of one of the attorneys for a period of eight weeks is no excuse for the delay of six months. In re Bright’s Estate, 157 Mich. 220. Neither is want of diligence excused by time taken in a search for evidence tending to show a meritorious cause for contest.
Upon the face of the record the probate court had jurisdiction and the appeal, if any, can only be allowed in case it is established that justice requires a revision of the case.
This brings us to consideration of the showing made by plaintiffs in support of a contest. An affiant stated that, for a number of years prior to 1918, testator indulged in the drinking of, intoxicating liquors to a considerable degree, and after 1918 his indulgence greatly increased, and he noticed that testator was forgetful, subject to lapses of memory, and at times was irrational and would forget at times that deponent, who was a tenant, had paid his rent, and sometimes failed to recognize deponent when they met on the street or elsewhere, and would tell deponent not to bother him because he did not want to talk, and, on numerous occasions, testator was abusive to Hannah Elizabeth June, and after the year 1920 he attempted to attack Mrs. Ernest Collough, and had to be restrained by deponent, and afterwards stated he had no recollection whatsoever of the attempted attack, and there was something wrong with his head because he suffered unbearable pains therein at times.
The will was executed February 25, 1920, and the codicil on October 30, 1930. The showing falls far short of providing an issue for a jury.
It is not shown that testator was laboring under any mental incompetency or undue influence at the time he executed the will and codicil,
We cannot say that justice requires a revision of the case, and, for this reason, and because of inexcusable delay, the order denying leave to appeal is affirmed, with costs against plaintiffs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
-16,
-5,
-5,
14,
-8,
5,
26,
56,
15,
22,
-30,
-14,
30,
0,
-56,
12,
37,
47,
9,
14,
-26,
22,
-10,
-33,
29,
-40,
-27,
-14,
-6,
-11,
7,
-20,
-55,
15,
-6,
-15,
53,
-33,
29,
-14,
7,
6,
39,
29,
-16,
-25,
-3,
-16,
-14,
2,
-24,
14,
5,
26,
-10,
14,
11,
-23,
-7,
38,
6,
0,
-9,
15,
-62,
79,
-13,
23,
-53,
-30,
-24,
-49,
26,
7,
1,
-41,
-26,
19,
8,
34,
57,
-49,
-5,
-13,
5,
-3,
-9,
5,
18,
51,
-28,
10,
-67,
-35,
-91,
4,
53,
0,
25,
1,
6,
8,
9,
18,
12,
14,
18,
4,
-37,
-52,
20,
8,
25,
-6,
0,
-18,
-19,
-42,
-4,
-17,
-2,
-6,
34,
-10,
59,
-8,
19,
31,
7,
16,
-5,
31,
17,
-33,
38,
63,
-19,
-87,
8,
-32,
29,
36,
0,
-55,
18,
-4,
70,
-21,
3,
-14,
16,
35,
-24,
-26,
8,
24,
54,
-16,
20,
6,
9,
51,
-22,
-25,
15,
-42,
3,
31,
9,
41,
3,
37,
-11,
20,
-38,
20,
26,
20,
-52,
29,
-2,
67,
39,
-29,
25,
-34,
-24,
0,
23,
2,
0,
-74,
48,
-6,
19,
21,
-12,
14,
32,
-5,
-6,
28,
0,
-40,
-1,
0,
12,
-10,
-6,
-19,
-7,
-13,
-51,
-29,
9,
4,
-54,
-30,
0,
13,
21,
57,
-44,
-24,
-12,
13,
1,
12,
38,
39,
-33,
0,
-44,
77,
27,
30,
18,
-20,
-5,
-2,
-11,
19,
30,
-6,
-35,
39,
-11,
65,
-7,
-31,
0,
42,
4,
-7,
14,
-3,
16,
-2,
-38,
-17,
7,
23,
-41,
-19,
39,
-13,
32,
-58,
7,
-15,
-32,
2,
22,
-54,
26,
-48,
-10,
-22,
-10,
1,
-12,
-12,
-25,
49,
5,
29,
0,
-24,
-2,
51,
-31,
17,
-5,
23,
13,
33,
-30,
-27,
-20,
-16,
4,
9,
31,
31,
-5,
-5,
0,
-7,
19,
-14,
-7,
-38,
-10,
53,
54,
23,
-23,
-13,
-27,
-21,
4,
7,
9,
21,
4,
4,
1,
-3,
51,
49,
-5,
-18,
-24,
-39,
-9,
19,
8,
30,
-20,
19,
11,
12,
-51,
24,
0,
-23,
36,
10,
37,
30,
-8,
42,
11,
6,
-45,
6,
-34,
-14,
-5,
67,
44,
4,
30,
24,
35,
-8,
6,
52,
23,
-14,
-4,
5,
-1,
-67,
32,
-15,
-29,
29,
-28,
24,
-36,
-68,
2,
70,
10,
-21,
-23,
25,
15,
16,
9,
28,
14,
2,
-82,
34,
23,
44,
-12,
20,
-22,
13,
-23,
-15,
-13,
-8,
-41,
-2,
-12,
53,
56,
50,
53,
2,
62,
-22,
-8,
10,
71,
31,
9,
30,
-25,
47,
-27,
11,
2,
-2,
3,
-30,
-7,
-19,
-9,
24,
-25,
44,
24,
-3,
21,
33,
-34,
-43,
60,
15,
-41,
-30,
-19,
-96,
-38,
-9,
-3,
60,
54,
28,
28,
-64,
33,
50,
2,
29,
51,
-9,
39,
41,
10,
-1,
-8,
15,
18,
-9,
-24,
38,
-7,
-19,
-46,
-13,
-1,
11,
17,
-43,
24,
12,
-44,
-11,
37,
46,
-29,
-48,
-23,
15,
-38,
-43,
5,
-11,
-25,
-39,
-65,
-89,
-19,
-30,
-3,
-23,
-7,
36,
19,
-31,
0,
-7,
64,
-11,
-16,
-35,
-4,
16,
16,
61,
41,
-22,
-9,
3,
2,
-44,
20,
17,
-24,
14,
23,
-11,
-14,
-16,
6,
14,
52,
-40,
-14,
-52,
-37,
-30,
-17,
37,
-43,
-7,
-26,
16,
19,
20,
6,
14,
-19,
-18,
-34,
-22,
-38,
19,
-6,
1,
16,
8,
0,
-32,
42,
7,
9,
-21,
6,
-38,
-4,
-40,
-41,
30,
-21,
20,
-23,
10,
-26,
55,
14,
2,
-11,
-21,
0,
25,
-10,
-53,
0,
17,
-43,
17,
-25,
3,
-41,
28,
12,
-36,
33,
-16,
29,
-34,
7,
8,
-33,
20,
11,
11,
-81,
23,
4,
21,
24,
-53,
30,
11,
-71,
12,
-75,
17,
-2,
0,
42,
-22,
10,
0,
4,
24,
-25,
-47,
24,
13,
11,
41,
0,
20,
35,
-7,
40,
39,
-38,
-11,
11,
-15,
-38,
1,
22,
-3,
-31,
11,
40,
-57,
18,
-15,
9,
46,
15,
21,
-11,
-20,
70,
-5,
10,
15,
22,
-48,
-37,
-2,
19,
26,
-39,
62,
51,
-4,
23,
24,
2,
21,
-50,
-36,
2,
38,
-16,
19,
8,
41,
-15,
5,
8,
-22,
-35,
11,
8,
3,
11,
-41,
16,
1,
-38,
-8,
-35,
-12,
55,
12,
-24,
-11,
24,
46,
-35,
-3,
-18,
-10,
-15,
-17,
-37,
17,
-12,
-38,
32,
-17,
27,
1,
56,
-47,
22,
-21,
-31,
-4,
31,
91,
-7,
-30,
0,
-31,
31,
-31,
13,
-31,
-60,
3,
7,
-27,
32,
14,
23,
-26,
14,
18,
3,
10,
30,
-27,
-7,
-3,
-10,
22,
14,
-9,
39,
-27,
-10,
-21,
29,
0,
9,
-20,
23,
-19,
-39,
23,
-19,
0,
-23,
11,
-4,
-11,
35,
-76,
-59,
32,
-16,
-16,
35,
32,
-67,
-33,
-48,
48,
60,
-35,
-5,
0,
3,
19,
-3,
-69,
-81,
-43,
4,
29,
-43,
-71,
43,
-1,
38,
-31,
40,
69,
-7,
-5,
-15,
66,
-53,
-26,
0,
3,
-15,
-31,
-14,
-71,
37,
20,
3,
-11,
-20,
15,
-4,
32,
38,
-32,
34,
42,
-42,
11,
6,
-75,
38,
-4,
-30,
-41,
30,
49,
28,
-36,
-35,
-6,
-15,
46,
7,
-28,
46,
0,
10,
8,
10,
-6,
1,
20,
-13,
-41,
0,
-61,
0,
-7,
28,
12,
41,
-67,
-46,
-25,
-53,
-11,
24,
-23,
-44,
-46,
-44,
-9,
-46,
-15,
27,
11,
-18,
56,
-38,
44,
-9,
2,
-26,
50,
11,
36,
-17,
25,
47,
-12,
-18,
19,
6,
22,
-20,
-46,
0,
49,
-55,
-47,
50,
-14,
-18,
-25,
2,
39,
50,
-8,
14,
-2,
-19,
-68,
49,
-17,
17,
37,
-44,
13,
13,
0,
-43,
-4,
0,
-44,
24,
-11,
-16,
12,
28,
-8,
-5,
-39,
-5,
-50,
3,
-23,
28,
-23,
20,
-18,
-32,
-38,
5,
30,
-7,
6,
-37,
16,
-14,
-63,
-1,
27,
12,
79,
0,
-24,
-48,
26,
-58,
6,
37,
18,
53,
-33,
-44,
19,
-4,
-9,
-59,
-24,
37,
-32,
-33,
-33,
25,
5,
4,
21,
32,
-9,
4,
-16,
-41,
20,
22,
-21,
-44,
-69,
37,
34,
-52,
-3,
20,
39,
-15,
8,
-67,
49,
21,
23,
18,
21,
54,
13,
3,
0,
-54,
-21,
-50,
-37,
-11,
46,
-24,
-30,
-3,
-51,
8,
9,
18,
-23,
1,
22
] |
Btitzel, J.
St. John’s Greek Catholic Church of Detroit, Michigan, an ecclesiastical corporation consecrated to religious purposes, defendant herein, has been engaged in litigation during a continuous period of 10 years. A brief reference to some of the litigation is necessary. The chief causes of the factionalism and schism within the church are fully set forth in the cases of Komarynski v. Popovich, 218 Mich. 481, and 232 Mich. 88, to which reference is made for the facts leading up to the instant case. In the case of St. John’s Greek Catholic Church of Detroit v. Commonwealth Federal Savings Bank of Detroit (No. 147,826, Wayne circuit court in chancery), the liability of defendant to the banking corporation under a mortgage was redetermined and thereafter in case No. 160,099 in the Wayne circuit court in chancery, it was adjudged and decreed that Walter M. Nelson be subrogated to the rights of the bank under the mortgage, constituting a lien on five lots on Cicotte avenue, Detroit, and the church building thereon. Nelson duly assigned his rights in the mortgage claim and lien to Max Chuchman and Michael Baran. The decree in case No. 160,099, supra, was entered on the 12th day of November, 1928, has not been appealed from, and is valid and binding upon the church. The sum of $2,065 with interest from November 12, 1928, remains due, in accordance with the decree, as a first lien on the church property. A number of smaller judgments rendered in the court of common pleas and one in circuit court are also involved in the instant case. The trial court in the instant case held that these judgments were improperly rendered. Since they have been set aside, they need not be further considered. Any other litigation in which the church was interested is not pertinent to the present issues.
Much money was advanced by members of the church to defray its regular expenses as well as to protect its interest in the litigation. The church owed sundry amounts to these members. A special meeting of the parishioners was held at the church house on October 21, 1927, in accordance with the following notice printed on postal cards in Ukrainian:
“Respected parishioner:
“You are notified that on Friday, 21st day of October, a special meeting will be held in the Parish Hall at 3464 Cicotte avenue. Kindly come to the meeting because the matter is very important. At 7 o’clock in the evening. Please bring this card along with you which will certify that you are a member of the parish.
“Respectfully,
(Signed) “Anthony Horbal,
‘ ‘ Secretary. ’ ’
In a stipulation filed in the instant case, it is agreed that the meeting was a friendly one, and that harmony prevailed. It appears now, however, that it may have been only a temporary armistice. A resolution was passed at the meeting authorizing defendant’s officers to execute a mortgage on the church property to secure the payment of a note in the sum of $9,664.82, representing the sums due to various members of the church who had advanced moneys to it. In order to facilitate liquidation, the creditors entered into a trust instrument whereby they appointed Anthony Horbal, John Komarynski, and Alex Zdanlcewich to act as trustees for them and to take the mortgage security from the church corporation, with authority to collect and apportion the proceeds among them. The latter was a second mortgage subject to the first lien hereinbefore mentioned. Default having been made, Anthony Horbal and John Komarynski, individually and as trustees, filed the bill in the instant case to foreclose the mortgages, and asked that the property be sold to satisfy the two liens and the judgments to which we have referred. The defendant in its answer claims that the first mortgage was improperly authorized by a vote of the parties who were not regular members of the church, that the mortgage to the trustees was an ultra vires act of the corporation and represents an amount far in excess of the actual sum due the creditors secured thereby, and that the judgments were likewise irregular. . The circuit judge in the instant case properly found that the first mortgage under the Nelson decree was duly assigned to Chuchman and Baran. Even were there any merit to defendant’s contention, the decree in case No. 160,099, supra, has become res judicata. It is also unnecessary to consider the validity of the judgments which the trial judge found were improp erly taken and which have since been set aside. We do not believe, however, that the trial judge was correct in finding that the mortgage given to the trustees was a valid lien. He also found that the amounts claimed were due and owing to the various creditors for whom plaintiffs are acting as trustees. The testimony offered by defendant to show that such amounts were incorrect is so meager that, were it not that the mortgage must be set aside, defendant would be foreclosed from questioning the correctness of these amounts. The only question we believe it is necessary to determine at the present time is whether the execution of the mortgage was properly authorized.
Section 10112, 2 Comp. Laws 1929, provides that the by-laws of ecclesiastical corporations may prescribe :
“The manner and condition under which property, both real and personal, may be acquired, held and disposed of. ’ ’
Section 10115, 2 Comp. Laws 1929, provides that an ecclesiastical corporation may mortgage and incumber its real estate,
“Provided, That the right to sell, convey or mortgage such real property shall be subject to such restrictions and conditions as may be prescribed by the rules of discipline, articles or by-laws pertaining to each such corporation. ’ ’
The by-laws of defendant are, unfortunately, silent in regard to any provision regarding the authority to execute mortgages. We quote the only provisions in any way relating to the subject.
Article 5, § 2. “The board of trustees shall meet monthly or as often as necessary and shall conduct the business of the church by a majority vote of those present.”
Article 7, §2. “All deeds of conveyance, mortgages, bills of sale and all other contracts shall be signed by the president, secretary and treasurer.”
Article 8, § 1. “ The regular monthly meetings and special meetings shall be called by the president or by any three members of the board of trustees upon giving at least seven days’ notice thereof to the trustees.”
Article 8, § 2. “Annual meetings shall be held in the city of Detroit, Michigan, in the month of April, on such a day and in such place as shall be designated by the board of trustees and announced by the pastor of the church. ’ ’
Article 8, § 3. “One-third of all the male members of the church, of legal age, shall constitute the quorum for the transaction of business and election of officers.”
Except for the annual meeting of the parishioners, provided for in section 2 of article 8, there seems to be no other provision for holding parish meetings. Clearly, the language of section 1 of this article refers only to meetings of trustees and precludes the possibility that it could refer to parish meetings, inasmuch as it only provides for notice to the trustees and impliedly refers to the trustees’ meetings provided for in article 5, § 2. The by-laws do not confer on the parishioners any power with respect to mortgaging the property of the corporation, nor is there any provision for such a special meeting as was held on October 21, 1927. At most, the meeting was a meeting of the parish and not of the trustees. The mortgage, although signed by the proper officers, was not authorized by the board of trustees, and appears to be a nullity for that reason.
It is apparent from the notice of the meeting hereinbefore set forth that no reference of any kind was made to the fact that it was to he held for the purpose of mortgaging the church property. While it asked the members to come to the meeting, as “the matter is very important,” yet, because of the continuous difficulties in which the church was involved, we can readily see that there were so many “important matters” constantly demanding the attention of the parishioners that the notice itself gave no indication of the object of the meeting. A statement of the purpose of a special meeting in the notice thereof is • usually required by the by-laws, but an express provision to that effect is not necessary. Notice of such meetings must generally contain a statement of the purpose, especially when business of an unusual nature is to be transacted. The failure of the by-laws to require specifically that the purpose of a special meeting must be stated in the notice does not obviate the necessity of such .statement. 5 Fletcher, Cyclopedia of Corporations (Perm. Ed.), p. 49. The modern trend of authority is that the purpose of such a meeting must be stated. Des Moines Life & Annuity Co. v. Midland Ins. Co., 6 Fed. (2d) 228; Bagley v. Reno Oil Co., 201 Pa. 78 (50 Atl. 760, 56 L. R. A. 184); Johnson v. Tribune-Herald Co., 155 Ga. 204 (116 S. E. 810).
At common law it was required that notice of meetings for any special and exceptional purpose state the object of the call. Tuttle v. Railroad Co., 35 Mich. 247. Some decisions hold that there is less formality required in calling meetings of ecclesiastical corporations than of those formed for business purposes. See Hubbard v. German Catholic Congregation, 34 Iowa, 31; Applequist v. Swedish Evangelical Lutheran G. Church, 154 Wash. 351 (282 Pac. 224). However, even had the notice been regular, the query arises whether, under the statutes and by-laws quoted, the power to give the mortgage was not vested solely in the trustees acting in such capacity.
A somewhat similar question arose in People’s Bank v. St. Anthony’s R. C. Church, 109 N. Y. 512 (17 N. E. 408), defendant claiming that notes supposedly made by the church were not signed by the authority of the trustees. In sustaining this contention, the court said:
“It is elementary that the powers vested in a corporation aggregate, having a board of trustees, reside, for all purposes of practical administration, in the board as the governing body. The corporation being a legal entity merely, can only act through instrumentalities and by delegation. The statutes creating it may describe its mode of action, and when the methods and agencies by which it may act are designated, that designation operates as a limitation and excludes other modes of action. The general powers of religious corporations are enumerated in the fourth section of the act of 1813. They are in form conferred upon the trustees. The section authorizes and empowers the ‘trustees’ to exercise the powers specified, and by the closing paragraph empowers them to regulate and order ‘all other matters and things relating to the temporal concerns and revenues of such church.’ The trustees of the defendant were, therefore, the only legal representatives of the corporation in exercising its corporate franchises and powers. Whatever powers were conferred on the corporation may be exercised in its behalf by the trustees. They, acting as a board, can make or authorize acts binding on the corporation, and they alone. Their sanction or authority is essential to a valid corporate act. The qualification that the collective authority of the trustees acting as a board is essential in order to bind the corporation by the action of its trustees, is a recognized doctrine of the law of corporations. The trustees of a corporation have no separate or individual authority to bind the corporation, and this although the majority or the whole number, acting singly and not collectively as a board, should assent to the particular transaction.”
In accord: Columbia Bank v. Gospel Tabernacle Church, 127 N. Y. 361 (28 N. E. 29). In Cammeyer v. United German Lutheran Churches, 2 Sandf. Ch. (N. Y.) 186, 228, the opinion states:
“I am perfectly satisfied that there was no corporate act of the defendants in relation to the building of St. Matthew’s. The resolutions * * * were the acts of a conference of the United Churches, * * * which, by their ordinances then in force, consisted of the minister, three elders and six deacons, convened in a mass meeting with the nine trustees. The trustees did not act as such in a conference meeting. * * *
“The fact that a majority of the trustees were present, acting as a council, does not make the resolutions of the council the act of the board of trustees.”
The claim is made that, if all parishioners and trustees were present at the meeting, the defendant should be estopped from denying the validity of the authorization of the mortgage. The testimony shows that many of the parishioners were absent from the meeting of October 21, 1927. It was claimed that 115 notices were mailed. One witness testified that 20 parishioners were present, while another places the number at 100. There is no claim that all of them were present. Under the particular circumstances, estoppel should not be raised against defendant when the action did not meet with the consent of all of its parishioners.
It is further claimed, however, that all the trustees were present at the parish meeting, and, therefore, defendant is estopped on this account from denying the validity of the mortgage, since it was authorized by the trustees. It has been held repeatedly that where an act may be performed only in pursuance of a resolution or authority of the board of directors, it can only bind the corporation when the board has acted thereon at a legal meeting as a board. Cammeyer v. United German Lutheran Churches, supra; Conro v. Port Henry Iron Co., 12 Barb. (N. T.) 27, 63. In Landers v. Frank Street M. E. Church, 114 N. T. 626 (21 N. E. 420), in a suit on a salary claim by a minister, it was shown that the salary had not been fixed by the majority of the members and a majority of the trustees of the church as required by law. It was held that:
“The action of those who were trustees was not official, but personal in its character. Where the exercise of corporate acts is vested in a select body, an act done by the persons composing that body, in a meeting of all the corporators, is not a valid corporate act.”
Inasmuch as there was no separate meeting of the board of trustees, in which authority was given to execute the mortgage, we must hold it invalid. It must be borne in mind that the mortgage was taken for antecedent debts by parties who were or should have been familiar with all of the transactions preceding the giving of the mortgage, and they cannot, therefore, claim the status of an innocent purchaser.
The further claim is made that Alex Zdankewich, one of the trustees, who was made a codefendant in the instant case, refused to act with the trustees in protecting the interests of his cestuis. It was proper for plaintiffs to make him party defendant. Caylor v. Cooper, 165 Fed. 757, 762; Dahl v. Levenberg, 172 App. Div. 919 (157 N. Y. Supp. 14).
Under the circumstances, we must hold that the mortgage was not properly authorized, and, for that reasop, null and void. It is set aside in accordance with the prayer of defendant’s cross-hill, and a decree may be entered accordingly. Defendant will recover costs.
Clark, C. J., 'and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
-4,
16,
25,
-2,
-11,
32,
-10,
-29,
2,
-38,
-32,
-47,
18,
35,
-41,
-51,
-20,
-11,
10,
23,
-22,
-2,
-8,
-25,
1,
32,
19,
-56,
14,
23,
-24,
-28,
-19,
-5,
-21,
1,
-33,
-60,
31,
-38,
12,
-54,
-58,
41,
-4,
30,
63,
-6,
14,
-17,
33,
7,
-54,
42,
-23,
8,
-15,
-15,
15,
-65,
-1,
6,
68,
-29,
-2,
-33,
20,
71,
-30,
-30,
20,
-11,
-17,
-54,
-21,
15,
-10,
-21,
-13,
-22,
-28,
-35,
17,
24,
-75,
24,
0,
-15,
-43,
-9,
-27,
-6,
-29,
36,
44,
4,
-1,
50,
0,
0,
-40,
15,
-47,
71,
-18,
53,
16,
-23,
-15,
-42,
33,
17,
70,
22,
14,
18,
-36,
-23,
35,
-21,
7,
-31,
-12,
-52,
25,
102,
-10,
21,
-31,
9,
-4,
-20,
-19,
25,
-7,
-5,
21,
-20,
7,
62,
13,
15,
-45,
25,
-29,
-9,
1,
4,
49,
-48,
11,
34,
50,
85,
0,
-20,
-68,
-23,
-12,
-16,
19,
-34,
1,
0,
-21,
27,
-27,
6,
-20,
23,
31,
-18,
-3,
-26,
-9,
-1,
-32,
-28,
-15,
30,
-9,
56,
39,
-53,
34,
-49,
-1,
1,
6,
1,
-7,
-30,
11,
48,
-16,
-5,
-22,
12,
-68,
-2,
0,
-7,
-14,
6,
-41,
-6,
66,
27,
22,
38,
31,
-3,
6,
18,
-46,
1,
-1,
-45,
1,
-89,
15,
-7,
-49,
46,
-23,
-22,
0,
5,
24,
-30,
-75,
-14,
28,
0,
16,
26,
-4,
-4,
-48,
54,
16,
19,
-11,
-16,
-55,
12,
-31,
42,
-42,
32,
11,
-12,
-27,
-13,
0,
-5,
-36,
-6,
26,
61,
-27,
22,
-42,
18,
2,
-20,
-2,
2,
56,
6,
7,
-3,
2,
-21,
7,
-17,
-5,
1,
5,
26,
-1,
0,
40,
24,
-5,
46,
-7,
8,
-61,
24,
-14,
40,
0,
5,
23,
5,
-18,
-71,
39,
-16,
-41,
57,
-14,
15,
4,
12,
-81,
20,
24,
-44,
-5,
-1,
-16,
-41,
50,
3,
-32,
30,
60,
2,
69,
34,
-47,
-32,
-23,
43,
17,
7,
-35,
7,
-38,
20,
37,
12,
-22,
-18,
3,
24,
6,
3,
39,
34,
17,
-21,
8,
-15,
3,
-39,
-22,
-3,
-13,
-13,
-37,
24,
-44,
41,
8,
24,
-22,
21,
31,
36,
0,
-3,
21,
8,
-18,
0,
-5,
84,
29,
42,
-67,
15,
-31,
46,
-2,
-1,
-22,
85,
-11,
-42,
32,
-16,
49,
32,
-28,
22,
-65,
12,
-35,
24,
20,
45,
-3,
-25,
-11,
33,
-17,
-44,
-50,
39,
-39,
13,
-46,
3,
30,
23,
0,
42,
43,
56,
-16,
-21,
-8,
9,
-3,
-18,
32,
1,
2,
3,
4,
-14,
-17,
0,
-25,
51,
-1,
-27,
-10,
45,
-26,
18,
32,
28,
-21,
3,
-30,
-54,
5,
43,
2,
-16,
9,
-2,
-21,
6,
35,
57,
4,
12,
27,
2,
4,
15,
5,
-37,
13,
35,
-6,
-61,
18,
17,
-12,
1,
-23,
18,
-2,
43,
13,
21,
14,
27,
-6,
-7,
-53,
0,
-9,
-30,
16,
-2,
-7,
48,
-51,
10,
-28,
-15,
-16,
32,
-10,
22,
19,
-5,
-8,
0,
-35,
4,
-42,
-18,
-2,
12,
-18,
-7,
-7,
0,
19,
-74,
22,
2,
-34,
-45,
66,
53,
29,
-5,
37,
28,
14,
-17,
13,
4,
31,
12,
-9,
22,
68,
0,
14,
-32,
-10,
-16,
0,
17,
-38,
17,
-4,
-18,
-7,
-27,
-15,
-22,
-43,
0,
8,
-51,
-76,
-44,
15,
3,
-15,
-31,
-18,
-11,
0,
7,
-63,
-5,
8,
11,
-47,
27,
46,
-24,
-16,
28,
-41,
-40,
-36,
-16,
-23,
52,
18,
-8,
-56,
1,
-8,
-8,
-7,
-26,
19,
-33,
-1,
-28,
-19,
29,
23,
21,
-21,
37,
23,
25,
-2,
-18,
75,
5,
22,
46,
81,
-22,
-8,
-64,
-22,
-34,
-67,
-1,
-10,
30,
4,
35,
-18,
15,
-51,
10,
-43,
70,
12,
15,
-20,
10,
-37,
12,
19,
-25,
17,
16,
31,
8,
33,
-39,
30,
-28,
12,
-36,
9,
18,
35,
-24,
-14,
31,
-75,
-2,
20,
17,
-14,
-15,
-35,
24,
4,
36,
16,
3,
50,
-18,
-40,
-31,
-1,
-21,
46,
-49,
37,
-4,
-41,
26,
19,
-7,
49,
56,
56,
-7,
-8,
-4,
15,
23,
-23,
-30,
-57,
-14,
-20,
-24,
32,
2,
-33,
7,
-8,
-38,
37,
-64,
-14,
1,
19,
19,
-26,
-28,
1,
-18,
-4,
42,
36,
-13,
11,
-12,
-22,
0,
3,
49,
-52,
9,
-35,
-38,
26,
-27,
-27,
-4,
-45,
73,
20,
0,
-29,
63,
14,
12,
-27,
-55,
6,
22,
6,
-33,
13,
-9,
37,
-24,
-16,
-1,
-10,
41,
-4,
-57,
3,
10,
-16,
-3,
-37,
-35,
-5,
-12,
-1,
2,
-20,
3,
-13,
15,
-12,
-11,
7,
-9,
-47,
-4,
-15,
24,
-15,
24,
2,
-19,
-14,
-7,
47,
-15,
-1,
-25,
-2,
-29,
-65,
1,
-44,
37,
26,
-12,
11,
-31,
0,
3,
15,
-33,
36,
-15,
66,
29,
35,
-23,
23,
-45,
49,
-46,
-23,
28,
3,
13,
69,
-5,
-10,
61,
-25,
-39,
-29,
25,
-18,
12,
36,
48,
-49,
15,
5,
-8,
-25,
42,
-36,
10,
-17,
-45,
-34,
-5,
21,
-8,
24,
23,
7,
-12,
34,
67,
8,
-25,
23,
20,
-43,
34,
32,
-26,
5,
-49,
3,
-27,
-15,
43,
-11,
16,
63,
-2,
-39,
-54,
10,
-18,
-15,
-14,
-11,
0,
-18,
5,
-18,
-17,
19,
-12,
18,
-46,
-7,
1,
13,
25,
-10,
44,
23,
48,
-38,
27,
-23,
-15,
51,
-11,
59,
-31,
-25,
49,
-10,
-23,
-34,
41,
55,
42,
-55,
-9,
56,
20,
-12,
8,
0,
21,
-12,
-41,
46,
19,
-8,
-10,
26,
-1,
-22,
30,
11,
28,
-55,
35,
-35,
-36,
-9,
19,
-63,
39,
27,
8,
-17,
19,
15,
-92,
-19,
-19,
-52,
-22,
41,
10,
0,
42,
-8,
23,
-59,
1,
22,
-37,
-25,
-20,
33,
-71,
22,
-21,
9,
-8,
-28,
48,
36,
-17,
-6,
-12,
-42,
-28,
0,
23,
31,
43,
-38,
2,
-11,
-22,
15,
15,
-1,
-48,
24,
-93,
-13,
24,
42,
7,
-44,
15,
-31,
-2,
6,
-1,
6,
-15,
26,
-16,
-13,
-46,
-10,
25,
-36,
-23,
53,
17,
-50,
13,
59,
27,
-58,
-43,
-11,
-20,
48,
-18,
36,
-24,
12,
19,
53,
-4,
0,
7,
-13,
-21,
-17,
-17,
58,
43,
21,
45,
67,
30,
5,
8,
-9,
43,
46,
13,
-66,
67
] |
Clark, C. J.
The facts are stated by tbe trial judge:
“Defendants built a dam across a small creek for tbe purpose of creating an artificial lake on property they were developing in Hadley township, Lapeer county. The fill for this dam was started in January, 1927, and completed in March the same year.
“Dirt, part sand and part clay, was obtained for the fill from a nearby hill. It is undisputed that the ground was frozen when the work commenced and continued up to the time of the completion of the dam.
“There seems to be no dispute as to the necessity or fact that dynamite was required to blast out the frozen top dirt so that loose dirt could be had. This dirt was taken up by a drag line, loaded in trucks and conveyed to the fill. Whether or not frozen chunks of dirt were dumped with the loose dirt in the fill is in dispute.
“The plaintiff claims and offers proof to show that large frozen chunks of dirt were dumped with the loose dirt in the fill, while the defendants claim that these frozen chunks were segregated and rolled over the lower side. One of the defendants testified that at one time he discovered some frozen chunks within the limits of the fill and ordered them removed to the outside.
“The dam so constructed measured approximately 200 feet from bank to bank and was approxi mately 30 feet in height, about 24 feet in width across the top with a base width of about 125 feet. The spillway was boarded up to hold back water to the estimated depth of 30 feet.
“The artificial lake so created covered an area of around 50 acres.
“A short distance below the dam runs a public highway under the control of the plaintiff as road commissioners for Lapeer county. In the construction of this road a fill of about 11 feet in height, a 24-foot top and 55-foot bottom was made necessary. A cement culvert was maintained where the creek crossed the highway. The highway had been there for a great number of years.
“Early in the morning of May 24, 1927, the dam went out, precipitating down upon the embankment in the highway the contents of the artificial lake. The force of the rushing water is apparent from the undisputed testimony, which shows that pieces of the cement culvert in the roadway weighing several tons were carried downstream and deposited on adjacent lands 200 feet away. The roadway was completely washed out, leaving holes 15 feet deep below the surface.
. “The damage to the roadway was repaired that summer at a cost to the county road fund of $7,855.68.
“Through the board of road commissioners this suit is brought to collect from defendants, owners of the dam, this sum so expended in repairing the roadway and culvert so destroyed. That the injury to the roadway and culvert was caused directly by the giving way of the dam and that the sum of $7,855.68 was expended by the commissioners in repairs is not disputed.”
Plaintiff had judgment in a trial without a jury. Defendants have appealed.
The first defense is want of jurisdiction, the defendants not being residents of the county and process having been served without the county.
The statute, 3 Comp. Laws 1929, § 13997, provides in part:
“Actions shall be .commenced and tried in the proper county as follows:
“Beal actions; replevin. • 1. Actions for the recovery of any real estate, or the possession thereof; for trespass on lands; and for injuries to real estate and actions of replevin shall be commenced and tried in the county where the subject of the action shall be situated.” . .
1 Comp. Laws 1929, § 76, construes “real estate” to include “lands, tenements, and real estate, and all rights thereto, and interests therein.”
A highway is an easement of a perpetual character, a freehold estate (29 C. J. p. 367; United States Gypsum Co. v. Christenson, 226 Mich. 347), an interest in lands (Morrill v. Mackman, 24 Mich. 279 [9 Am. Rep. 124]).
Section 13997, above, is a part of the judicature act. The same act, 3 Comp. Laws 1929, § 14007, abolishes all forms of actions at law except the following, which are retained: “Assumpsit, trespass on the case, replevin, ejectment, certiorari, mandamus, and quo warranto.”
In determining whether the action here is local, it is of no moment that it is case, as no other form could be employed. Because of the statute former distinctions between case and trespass are unimportant. See cases cited in Olshove v. Huron Circuit Judge, 240 Mich. 46. The action at bar, therefore, being for injuries to real estate in Lapeer county, was, under the plain language of the statute, properly commenced and tried in that county. Another section of this statute was held to mean what it plainly says. Graham v. Smith, 62 Mich. 147. And there should be like holding here.
The majority opinion in the Olshove Case, it seems, was urged to the trial judge as requiring a contrary conclusion. He declined to follow it, rightly, as it appears to the writer. In a later case, Dunnebacke v. Railway Co., 248 Mich. 450, it was said:
“Actions for trespass on lands and for injuries to real estate must be tried in the county where the land is situated (citing the statute).”
And see minority opinion in Olshove Case. The majority opinion in the Olshove Case manifests apprehension of hardship in obtaining service of process, but it is observed that in actions commenced under the quoted part of section 13997 process may be served anywhere in the State. 3 Comp. Laws 1929, § 14090.
We approve finding actionable negligence in construction of the dam. The earth, largely sand, frozen to a depth of 30 inches, was blasted by dynamite, and, according to accepted evidence, this frozen earth, in chunks, many large chunks, was put into the dam. That the dam, so constructed, lacked, in the spring of 1927 following, requisite consistency, solidity, and firmness to hold a head of water of an estimated depth of nearly 30 feet must be apparent. This, as held by the trial judge, was negligent construction, and the proximate cause of plaintiff’s damage, for which defendants are liable. 3 Farnham on Waters and Water Rights, p. 2547; Wiedekind v. Tuolumne County Water Co., 83 Cal. 198 (23 Pac. 311); Bryant v. Bigelow Carpet Co., 131 Mass. 491; Anderson v. Bucher Bros., 107 Wash. 595 (183 Pac. 70, 186 Pac. 293, 8 A. L. R. 544); Waidelich v. Andros, 182 Mich. 374; note 3 N. C. C. A. 2.
The presence of unprotected springs in the base of the dam and a lack of core in the dam are stressed also as negligent construction (as to which, see Supervisor and Commissioners of Pickens County v. Jennings, 181 N. C. 393 [107 S. E. 312]) but, in our view, these questions are unnecessary to decision.
As evidence- of damages, plaintiff showed the cost or expense of restoring the highway. Chandler v. Allison, 10 Mich. 460. Plaintiff proved by unquestionably competent evidence payment of a certain sum as expense; it was not in its own behalf called upon to do more in respect of proof of expense. It was not suing on an account. The measure of recovery for the tort is not the amount actually paid, but it is a reasonable sum (17 C. J. p. 914; Alt v. Konkle, 237 Mich. 264), of which the amount actually paid is evidence. Plaintiff offered its books and records in evidence and they were received. Defendants say this was error because certain original entries, timekeeper’s slips, were not produced. Defendants do not say they were prejudiced in their defense because the slips were not produced, they merely invoke a rule of evidence. Assuming, not stating, that the slips ought to have been produced or accounted for, we find no prejudicial error, for the payment of the expénse is unquestioned as to amount.
In Hyde v. Shank, 93 Mich. 535, an illustrative case, plaintiffs, chattel mortgagees, brought replevin for mortgaged chattels which had been taken from the mortgagor by defendant on attachment. A question was whether or not the mortgage was paid. The plaintiffs, not offering in evidence their books to show the true state of the mortgagor’s account, testified of the amount due. Held, the testimony was competent, and that defendant, if he believed the books would aid him, might examine them and use them if he desired.
Defendants sought to challenge the reasonableness of the amount of expense, this by opinion evidence of cost of restoration. Plaintiff had testimony that going or prevailing prices were paid, and the very fact that this expense has been paid is evidence of reasonableness. Alt v. Konkle, supra.
On the whole record the finding of damages must be sustained. No other question calls for discussion. Affirmed.
McDonald, Potter, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred.
cost of restoration as measure of damages for injury to real property, see annotation in 17 L. R. A. 426. | [
-20,
74,
36,
-26,
-29,
19,
-5,
46,
13,
19,
4,
-24,
47,
-46,
3,
-43,
-56,
-49,
-27,
-9,
-82,
9,
31,
-27,
-37,
18,
18,
-9,
-2,
34,
-22,
34,
-41,
-27,
13,
5,
30,
3,
-4,
18,
-34,
-27,
-4,
-61,
14,
12,
30,
4,
-5,
-2,
16,
27,
11,
-25,
9,
-40,
-21,
-45,
-42,
10,
-17,
-6,
59,
28,
30,
42,
-31,
12,
27,
15,
-46,
40,
-15,
-6,
55,
-14,
-14,
18,
-42,
12,
0,
51,
36,
83,
6,
-58,
-59,
14,
40,
21,
-27,
-36,
-31,
42,
7,
-36,
-15,
-32,
-20,
7,
8,
63,
38,
-7,
-14,
-20,
-51,
6,
-8,
10,
25,
-8,
42,
-3,
-36,
-30,
31,
-61,
8,
-17,
-3,
-37,
-30,
-30,
-44,
-19,
-7,
-26,
-25,
-16,
-48,
-36,
0,
32,
6,
22,
-30,
-13,
12,
9,
-20,
20,
-8,
-29,
6,
50,
4,
-21,
44,
24,
-77,
-25,
81,
-24,
11,
65,
24,
-30,
16,
-33,
19,
-9,
-29,
-18,
-54,
-13,
11,
-7,
3,
-8,
29,
-27,
-7,
-1,
15,
17,
4,
-2,
45,
42,
25,
-27,
73,
26,
1,
-34,
-50,
19,
7,
-3,
51,
-3,
19,
-9,
-9,
47,
-18,
8,
-12,
-28,
24,
-17,
-12,
-42,
-47,
1,
17,
39,
2,
32,
40,
27,
51,
-23,
-4,
19,
6,
-7,
66,
-34,
53,
5,
39,
48,
-4,
4,
-31,
13,
-31,
-44,
41,
-17,
-5,
-3,
2,
16,
33,
-4,
-17,
6,
-14,
6,
-49,
0,
56,
19,
-48,
-33,
-34,
35,
-51,
-21,
-26,
-14,
-26,
30,
17,
-1,
-10,
-12,
27,
12,
30,
2,
4,
-11,
-37,
17,
-19,
-20,
22,
-13,
-22,
-38,
-39,
-44,
7,
0,
-31,
58,
20,
-7,
-3,
-48,
35,
-15,
-66,
13,
-16,
-32,
33,
20,
34,
-10,
2,
64,
73,
-25,
33,
0,
-3,
3,
-21,
24,
22,
44,
-34,
24,
-3,
16,
28,
11,
-24,
63,
20,
44,
22,
-29,
53,
8,
41,
48,
-36,
-24,
-34,
27,
-15,
18,
-20,
36,
-35,
44,
19,
29,
36,
-28,
-6,
-2,
-22,
14,
10,
20,
21,
11,
-31,
4,
9,
2,
2,
-40,
24,
5,
27,
22,
1,
-29,
-14,
-9,
3,
2,
44,
-41,
14,
18,
-14,
-16,
-2,
-29,
19,
44,
-28,
32,
-8,
66,
37,
4,
-2,
21,
-15,
-38,
-13,
18,
49,
38,
8,
28,
40,
-34,
-19,
67,
23,
-43,
-46,
5,
-12,
-10,
12,
37,
-8,
-32,
-18,
19,
14,
51,
-1,
18,
15,
14,
26,
-20,
17,
-23,
-6,
-38,
-49,
1,
71,
40,
-43,
43,
0,
41,
-8,
-67,
-10,
-19,
50,
0,
1,
7,
35,
47,
-8,
8,
10,
21,
-32,
-23,
-34,
-20,
-35,
1,
42,
-37,
-32,
-9,
-7,
36,
2,
-6,
-37,
54,
-52,
-24,
13,
77,
-30,
-34,
49,
24,
-79,
-6,
4,
-60,
3,
-12,
-43,
-19,
-15,
54,
16,
48,
-6,
4,
22,
-6,
41,
14,
33,
-29,
68,
-5,
-47,
-34,
-31,
-56,
41,
74,
40,
9,
35,
0,
-49,
-10,
-14,
-22,
13,
-7,
16,
-10,
-27,
21,
-15,
-20,
5,
60,
39,
21,
-34,
40,
3,
-29,
-5,
-3,
0,
20,
48,
-21,
8,
0,
-38,
58,
-15,
-1,
-17,
-6,
-10,
-43,
-8,
-18,
30,
-50,
-52,
23,
6,
7,
-35,
12,
-44,
-19,
39,
-11,
21,
-28,
-5,
-51,
-15,
-24,
-1,
-25,
10,
13,
-18,
-22,
-50,
-17,
-16,
-68,
-25,
3,
-47,
-7,
28,
-15,
25,
-2,
12,
-47,
62,
-67,
11,
13,
34,
-30,
7,
60,
-68,
-10,
-10,
66,
-38,
-31,
-67,
32,
-50,
30,
35,
3,
-9,
25,
-20,
-34,
-61,
-10,
14,
0,
0,
-6,
8,
-16,
73,
-10,
-20,
-1,
36,
21,
-26,
-7,
-9,
11,
14,
-51,
15,
19,
8,
24,
8,
-30,
-27,
24,
10,
-23,
17,
-13,
-30,
-22,
-23,
5,
-63,
-15,
-72,
45,
-3,
52,
33,
-60,
32,
13,
4,
36,
-29,
-15,
-53,
-20,
-24,
-28,
-6,
-2,
-44,
-11,
-25,
10,
23,
-10,
15,
-22,
7,
-39,
4,
-14,
30,
4,
-26,
-25,
-39,
7,
35,
31,
-9,
-47,
-7,
-44,
-16,
-3,
-23,
-12,
-14,
-1,
33,
36,
99,
36,
7,
-3,
37,
19,
12,
52,
-19,
-9,
-15,
17,
9,
2,
-7,
-27,
0,
6,
-24,
-38,
15,
-13,
-13,
-6,
-10,
18,
55,
-62,
-21,
82,
-21,
46,
14,
30,
-5,
58,
-18,
20,
-49,
-6,
20,
-66,
-39,
28,
-39,
0,
-32,
8,
-63,
50,
16,
47,
-16,
13,
38,
56,
18,
18,
-19,
-27,
39,
-77,
-25,
-20,
-28,
-1,
46,
18,
-14,
-19,
-40,
30,
42,
21,
-7,
-9,
18,
-9,
-34,
7,
-3,
-21,
-63,
-30,
-6,
-68,
9,
21,
-48,
-14,
-64,
26,
-15,
0,
30,
-36,
-75,
-2,
46,
-21,
-22,
25,
-25,
-7,
41,
-42,
25,
-15,
38,
14,
-31,
-1,
34,
5,
-19,
13,
45,
1,
-17,
-6,
-1,
16,
28,
49,
-17,
-20,
-75,
-13,
1,
6,
67,
49,
-1,
-42,
38,
-13,
16,
59,
22,
-8,
8,
26,
40,
-101,
37,
27,
15,
-62,
-41,
-39,
57,
25,
31,
28,
45,
0,
38,
-16,
5,
37,
-27,
27,
10,
-43,
-72,
-28,
32,
20,
-17,
40,
-12,
6,
6,
13,
44,
37,
-15,
17,
-22,
-7,
17,
-11,
-60,
12,
2,
-27,
30,
-12,
-50,
23,
11,
0,
-40,
10,
-39,
29,
-72,
-58,
-36,
0,
22,
-11,
68,
-1,
1,
-35,
-5,
9,
22,
65,
-8,
7,
-10,
-49,
-25,
0,
22,
-1,
-24,
3,
13,
24,
-21,
52,
-6,
-16,
-41,
-11,
20,
27,
-48,
-51,
-28,
-44,
-38,
-19,
-19,
40,
3,
25,
39,
-18,
29,
14,
-20,
2,
-34,
9,
-20,
68,
-49,
-48,
-18,
-33,
1,
72,
0,
-83,
11,
-20,
39,
-30,
-11,
41,
-8,
5,
1,
-49,
9,
11,
17,
11,
-10,
5,
-22,
-54,
-32,
41,
32,
-53,
-14,
-15,
2,
-38,
24,
25,
8,
24,
-13,
19,
-24,
-2,
-16,
-17,
30,
-34,
44,
32,
-11,
-50,
-10,
-36,
39,
-1,
5,
-25,
21,
-66,
-19,
49,
-23,
27,
67,
4,
-13,
-44,
-4,
-62,
-52,
2,
19,
35,
16,
72,
32,
-3,
26,
1,
40,
19,
-60,
-4,
-2,
-20,
-19,
67,
-10,
3,
34,
-43,
-4,
-11,
-20,
59
] |
Sharpe, J.
Plaintiff began suit by filing declaration in assumpsit against the defendants Strehlke and Habermas on February 27, 1932, claiming damages in the sum of $1,000. On the same day plaintiff’s attorney filed an affidavit for a writ of garnishment against the Standard Fire Insurance Company, a foreign corporation. The writ of garnishment was issued on the same day and duly served on the insurance company by serving the deputy insurance commissioner pursuant to the statute (3 Comp. Laws 1929, § 12315, as amended by Act No. 163, Pub. Acts 1931).
On April 13th the insurance company filed a disclosure, stating that it had no property or money in its hands belonging to the principal defendants, jointly or severally, and was not indebted to them in any amount. It was further stated therein that on October 14, 1926, it issued a policy of fire insurance to Irwin L. Strehlke and Marion H. Strehlke in the sum of $5,000; that the property insured was destroyed by fire; that an action was brought upon the policy and a judgment secured in favor of Marion H. Strehlke in the sum of $2,100; that it appeared on the trial that Irwin L. Strehlke had no interest in the property, and the action was dismissed as to him.
On April 20, 1932, plaintiff’s attorney filed a demand for the trial of the statutory issue by a jury. On June 13th Marion H. Strehlke petitioned the court for leave to intervene in the garnishment proceedings. In it she set forth the recovery of her judgment and that she was a necessary party inasmuch as the insurance company.has refused and neglected to pay the money to her. On the same day the trial court entered an order permitting such intervention. On June 18th she filed a motion to quash the writ of garnishment. She set up therein that, because of the judgment recovered by her, Irwin L. Strehlke, her husband, had no interest in the property insured; that plaintiff has not diligently prosecuted its suit, no service having been made upon the principal defendants therein, although more than three months had elapsed since its institution, and prayed for an order discharging the garnishee defendant. An order quashing the garnishment proceedings was entered, from which the plaintiff has taken this appeal.
Counsel for the plaintiff relies on the provision in 3 Comp. Laws 1929, § 14019, which reads as follows :
“In an action either at law, or in equity, anyone claiming an interest in the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding: Provided, That in attachment actions any party, other than the original defendant, claiming to own any of the property attached may assert his rights by motion to release the attachment so far as it affects his property, which motion shall be heard and determined by the court under the same terms and conditions as motions in other cases.”
The provision that the intervention “shall be in subordination to, and in recognition of, the propriety of the main proceeding” must be construed in connection with that in section 14884, which provides for the intervention of a claimant in garnishee proceedings when the disclosure states that other persons make claim to the funds in the hands of the garnishee. Shank v. Lippman, 249 Mich. 22. The order permitting intervention was properly made.
The declaration by which this action was begun was filed on February 27, 1932. The order quashing the garnishee proceedings was entered on June 18, 1932, nearly four months thereafter. No showing was made as to why service on the principal defendants had not been made. In Noble v. Bourke, 44 Mich. 193, in which a writ of summons and one of garnishment were issued on January 7, 1880, and the order dismissing the writ of garnishment entered on March 25, 1880, this court said:
“The court in which the proceedings are carried on must certainly be empowered to conduct an in quiry in cases where extraordinary delay in bringing in the principal defendant is shown, and thereupon to discharge the garnishee with lawful costs if it is made to appear that the retention of the proceeding against him is unjust and in substance and effect an abuse of the process of the court.”
In Blake v. Hubbard, 45 Mich. 1, it was said:
“The garnishee statute contemplates speedy proceedings. Its necessary operation is to tie up the hands of the garnishee and subject him to expense and annoyance. It cannot be regarded as a proceeding in the ordinary course, for it involves many consequences which could not otherwise arise either in law or in equity. If such proceedings could be delayed indefinitely it might not only injure the garnishee, but it might also affect other persons who have claims on the property in his hands.”
See, also, Kiely v. Bertrand, 67 Mich. 332; Hiles v. Selas Co., 219 Mich. 88; Stevens’ Michigan Practice, § 124.
Under the facts here presented, the order quashing the writ of garnishment was properly made, and is affirmed.
Clark, C. J., and McDonald, Potter, North, Fead, Wiest, and Butzel, JJ., concurred. | [
-39,
-15,
41,
-3,
48,
35,
-15,
-32,
-5,
-20,
-2,
-6,
12,
68,
-12,
2,
0,
-17,
36,
-13,
10,
-66,
23,
2,
3,
19,
24,
-29,
27,
8,
15,
-3,
-50,
9,
-51,
-38,
-13,
1,
-47,
-3,
8,
15,
66,
-16,
11,
14,
-14,
24,
23,
-1,
59,
39,
39,
-22,
-48,
-18,
7,
39,
-26,
0,
-36,
-11,
26,
-6,
-16,
48,
12,
55,
-5,
-1,
9,
21,
-15,
-13,
0,
-38,
23,
2,
3,
-20,
-15,
-36,
22,
-11,
-1,
53,
-24,
-9,
-2,
16,
-39,
28,
-37,
-7,
-15,
1,
-16,
8,
16,
81,
70,
0,
-20,
26,
-17,
28,
-4,
-62,
-12,
16,
-40,
34,
26,
-8,
27,
-44,
-19,
-24,
3,
-5,
35,
34,
39,
31,
25,
27,
-10,
-19,
-3,
83,
-11,
-35,
-15,
9,
22,
15,
-15,
-46,
-17,
-40,
21,
-9,
-26,
-37,
-16,
53,
-21,
-19,
-31,
-37,
-41,
-33,
1,
28,
26,
-10,
-13,
-14,
36,
-54,
1,
-17,
16,
10,
-20,
-3,
34,
-7,
-11,
16,
-1,
-1,
-24,
-2,
26,
-10,
43,
-36,
-21,
20,
11,
36,
-11,
-4,
8,
-52,
13,
-7,
18,
-4,
34,
-39,
-15,
42,
-21,
-7,
27,
41,
66,
-42,
43,
-30,
32,
7,
8,
40,
23,
29,
9,
37,
-3,
3,
-15,
-23,
-42,
54,
-20,
-42,
-50,
-1,
-20,
31,
-31,
9,
-53,
6,
7,
-22,
1,
-33,
-13,
-50,
-31,
31,
-58,
30,
9,
35,
76,
10,
-40,
4,
4,
-9,
24,
4,
-29,
-34,
-41,
17,
-28,
17,
-15,
57,
-8,
-50,
-18,
-35,
8,
40,
-13,
6,
-17,
-11,
-21,
-11,
-10,
10,
14,
13,
18,
-5,
22,
-20,
-6,
-60,
6,
-1,
4,
7,
46,
-5,
-32,
-38,
-1,
-13,
56,
-37,
-19,
18,
33,
5,
13,
13,
46,
10,
-34,
-26,
34,
-21,
-29,
-17,
12,
-11,
17,
-19,
-47,
-80,
-28,
-45,
-36,
-3,
-28,
-56,
22,
-8,
6,
8,
-36,
-36,
15,
42,
-17,
15,
-1,
-34,
21,
-17,
27,
-11,
-31,
23,
10,
0,
-18,
-36,
-10,
14,
-4,
-19,
-8,
22,
-16,
-17,
-34,
50,
45,
70,
-18,
13,
-38,
-10,
-27,
33,
7,
-38,
61,
1,
-20,
68,
25,
22,
-8,
-7,
34,
23,
12,
-5,
-20,
30,
2,
1,
-30,
-38,
-46,
-17,
-54,
44,
-3,
41,
-3,
-28,
43,
24,
-18,
13,
18,
31,
-54,
-9,
-23,
7,
42,
10,
0,
-6,
-21,
-35,
6,
14,
12,
10,
3,
0,
-68,
-43,
-6,
-30,
-9,
-10,
17,
-16,
32,
24,
-1,
-6,
19,
-11,
46,
-16,
24,
0,
11,
-34,
9,
-37,
43,
12,
-40,
-66,
-24,
57,
-23,
-66,
5,
-10,
-65,
10,
-22,
33,
-4,
21,
22,
51,
11,
-50,
-7,
8,
43,
-10,
-15,
-23,
75,
37,
-7,
-39,
26,
-15,
53,
23,
8,
-1,
-16,
44,
-47,
4,
0,
-2,
28,
1,
9,
-13,
-17,
3,
-42,
-13,
-22,
0,
-23,
7,
-26,
15,
31,
-55,
-21,
12,
21,
-8,
4,
-16,
39,
-26,
-32,
-16,
-29,
17,
-34,
-5,
-26,
-41,
-30,
-5,
-4,
-1,
33,
-6,
-7,
-29,
5,
40,
13,
-45,
52,
42,
48,
55,
-5,
-9,
0,
14,
-33,
2,
-48,
28,
-68,
-18,
54,
58,
34,
-12,
28,
-47,
-34,
-81,
-28,
0,
10,
-55,
-24,
14,
-34,
15,
31,
-24,
-41,
7,
23,
3,
4,
3,
-6,
-32,
40,
-9,
16,
-2,
-2,
-29,
0,
24,
20,
26,
-6,
-24,
18,
-8,
10,
15,
-39,
-68,
-11,
11,
10,
3,
-5,
53,
-39,
1,
0,
4,
-25,
6,
-28,
-43,
-47,
-10,
-6,
32,
-58,
-2,
30,
33,
-1,
-48,
-23,
-23,
-8,
19,
22,
0,
-48,
13,
-26,
-7,
5,
-1,
16,
31,
20,
-15,
21,
4,
-29,
12,
37,
-11,
41,
17,
46,
-27,
36,
11,
19,
-29,
37,
5,
0,
36,
-15,
10,
34,
-52,
33,
7,
-7,
-10,
34,
60,
0,
19,
-39,
-7,
24,
20,
-10,
13,
-3,
-18,
2,
-46,
-27,
1,
3,
0,
-18,
-36,
8,
17,
-52,
-57,
-33,
0,
-9,
18,
23,
15,
63,
12,
-16,
60,
21,
-37,
10,
24,
-2,
15,
-7,
29,
-26,
3,
60,
-29,
39,
5,
-29,
35,
14,
-9,
53,
-28,
20,
-2,
-55,
-4,
26,
33,
-7,
5,
21,
-52,
24,
-19,
-32,
26,
-42,
-14,
-13,
-16,
24,
3,
14,
-13,
11,
-42,
-18,
5,
-5,
7,
-15,
8,
-26,
-10,
33,
-18,
-16,
-9,
68,
-9,
-9,
-56,
20,
19,
-28,
0,
-69,
-4,
-40,
-29,
-54,
1,
11,
33,
66,
39,
-44,
19,
23,
51,
29,
3,
-25,
24,
-4,
-24,
56,
4,
-13,
-1,
-1,
-31,
1,
16,
-6,
-17,
-6,
33,
5,
-18,
-28,
-36,
-10,
51,
-22,
-28,
18,
-22,
65,
-41,
-1,
17,
-9,
-1,
0,
18,
-57,
-23,
53,
24,
36,
9,
12,
-29,
5,
-73,
-20,
52,
13,
-8,
-19,
-2,
24,
5,
-8,
14,
-35,
31,
-19,
27,
41,
-11,
-26,
3,
4,
-23,
19,
23,
-28,
22,
-19,
24,
-51,
2,
-9,
56,
50,
-21,
-6,
-9,
-8,
13,
-14,
-63,
-4,
58,
-6,
0,
34,
27,
-30,
-25,
10,
-56,
13,
39,
27,
-1,
-9,
-2,
2,
-30,
14,
-43,
1,
13,
-27,
-34,
-27,
-43,
-8,
-3,
20,
-27,
-38,
-33,
40,
0,
-16,
-3,
27,
-58,
3,
66,
-51,
-1,
-16,
19,
-2,
-43,
61,
-3,
-30,
-18,
-50,
52,
-28,
30,
-36,
-1,
-24,
58,
11,
4,
52,
20,
-1,
1,
-16,
-27,
21,
1,
-34,
-16,
37,
-14,
2,
6,
-12,
8,
-30,
17,
19,
-38,
-5,
-29,
-27,
44,
43,
13,
-14,
57,
22,
-32,
14,
-8,
6,
27,
61,
41,
36,
41,
18,
-19,
-6,
53,
73,
-20,
-27,
-38,
-43,
27,
19,
-25,
-1,
-5,
-14,
-39,
50,
-44,
-43,
35,
29,
17,
-23,
37,
-24,
13,
-17,
-21,
-19,
-31,
-16,
-15,
-55,
-6,
0,
-19,
36,
11,
-4,
-53,
48,
-38,
-50,
-7,
-19,
-34,
29,
-32,
-18,
6,
16,
-27,
2,
52,
-18,
11,
-44,
52,
-24,
-2,
42,
48,
16,
11,
52,
14,
3,
25,
-14,
-1,
-49,
-6,
39,
-41,
1,
-11,
-7,
26,
41,
11,
-8,
15,
8,
0,
-20,
-2,
-39,
22,
-51,
-54,
59,
24,
-3,
39
] |
North, J.
In the circuit court plaintiff was given a decree foreclosing a mechanic’s lien. Three of the defendants have appealed. The questions for determination are whether, under the facts presented, plaintiff possessed a valid lien, and, if so, whether such lien as against the interest of the vendee in a land contract was terminated by a subsequent proceeding whereby the contract vendors forfeited the vendee’s rights and repossessed themselves of the premises, but without notice to the lienholder.
Omitting details, the material facts, as we view the record, are as follows: Mr. and Mrs. Dostie were the fee owners as tenants by the entireties of the land involved. They entered into a contract to sell the property to Niles F. Gorwell. Gorwell was a builder, and, on or about the 8th of March, 1926, purchased materials of plaintiff which were used in erecting a new building upon the land he had purchased under the Dostie contract. There is" evidence that Gorwell in turn sold the property on a contract to E. M. "Walton. Within the statutory period plaintiff filed a claim of lien against the property. In this claim of lien a party other than Mr. and Mrs. Dostie was erroneously named as owner of the record title. Niles F. Gorwell was named as the contractor to whom the materials were sold, and E. M. Walton was named as a person having some interest in the. property. Prior to filing the bill of complaint herein, but subsequent to the claim of lien, Mr. and Mrs. Dostie gave notice of forfeiture, and by summary proceeding instituted against Gorwell and another recovered possession of the property. Also prior to filing the bill of complaint Mr. and Mrs. Dostie conveyed their interest in the property by warranty deed to the defendant George B. Ellesin. In order to relieve the property of plaintiff’s claim of lien, Ellesin as principal and the American Employers Insurance. Co. as surety executed and filed a bond in accordance with the statute. 3 Comp. Laws 1929, § 13107. Ellesin mortgaged the property to the Union Trust Company, and this mortgage was subsequently assigned to the defendant and appellant the Metropolitan Life Insurance Company. Later the defendant Ellesin conveyed his interest in the property by warranty deed to the defendant Petrinovic.
If plaintiff’s claim of lien is valid, it is superior to the rights of the appellant the Metropolitan Life Insurance Company, and the other appellants, George B. Ellesin and the American Employers Insurance Company, will be liable -to plaintiff on the bond which they filed to release the property from its lien. These appellants contend that the lien is invalid because the claim of lien as filed did not name Mr. and Mrs. Dostie as record owners, or Mr. Ellesin as a contract purchaser, nor were either of them served with a copy of the claim of lien. Plaintiff is asserting a lien against the new building only, not against the land. This being true, such •claim of lien is not invalidated by reason of failure to name Mr. and Mrs. Dostie as owners of the land or to serve them with copies thereof. The statute (3 Comp. Laws 1929, § 13103) expressly gives the right of lien under such circumstances against the building in which the materials were used.. Whatever right Mr. and Mrs. Dostie had in' the land is in no way affected by plaintiff’s lien. We have recently held:
“The statute does not require naming in the claim of lien one whose interest in the property is not affected thereby.” Sarar v. Andrews, 251 Mich. 376.
There is no merit to the claim of invalidity of the lien on the ground that Mr. Ellesin was neither named therein nor served, because this record does not show that he had any interest in the property at that time. The “owner” whom the statute (section 13106) requires to be named and served with a’ copy of the statement or claim of lien is the owner at the time the claim of lien is made. Waters v. Johnson, 134 Mich. 436.
Invalidity of the lien is asserted by appellants upon the further ground that there was no contract for the purchase of the materials signed by Mr. and Mrs. Dostie. (See 3 Comp. Laws 1929, § 13102.) This contention is without force because, as noted above, plaintiff’s lien is against the building on the premises only, and not against the land of which Mr. and Mrs. Dostie were the owners; and the right to claim the lien against the building is provided by the statute. 3 Comp. Laws 1929, § 13103.
The remaining question is whether the termination of the contract vendee’s rights by summary proceedings without notice to the lienholder extinguished the right of lien. Determination of this issue is controlled by the statute:
“Any person furnishing services or materials for the erection of a new building or structure upon land to which the person contracting for such erection has no legal title, shall have a lien therefor upon such buildings [building] or structure; and the forfeiture or surrender of any title or claim of title held by such contracting person to such land shall not defeat the lien upon such building or structure of such person furnishing services or materials as aforesaid.” 3 Comp. Laws 1929, § 13103.
In view of the above statutory provision, it is evident that the Dosties could not by summary proceedings have terminated plaintiff’s lien even if it had been made a party to such proceeding. Much less could the right of lien be terminated by a summary proceeding to which the lienholder was not a party.
At the time the appellant George B. Ellesin received conveyance of the property from Mr. and Mrs. Dostie, plaintiff’s claim of lien was a matter of record in the office of the register of deeds. He, therefore, took title- with constructive notice. Further, it is evident that he accepted conveyance of title with actual knowledge of plaintiff’s claim of lien, and for the purpose of relieving the property of the lien he and his surety gave a bond. This bond, after reciting plaintiff’s claim of lien upon the premises, is conditioned:
“Now, therefore, the condition of this obligation is such, that if the above bounden principal shall pay or cause to be paid to the above-named obligee (Strand Lumber Company) any sum of (for) which said obligee may obtain judgment or decree upon the demand for which such statement of account (for the lien) was filed, then this obligation to be void, otherwise to remain in full force and virtue.”
The circuit judge decreed Ellesin and his surety liable to plaintiff on their bond for the amount of its lien, the accrued interest, and costs of suit. The decree is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred.
-who is "owner” within meaning of mechanics’ lien statute requiring name of owner of property to be given in statement of lien, see annotation in 2 A. L. R. 796. | [
23,
12,
-13,
-1,
-10,
-3,
0,
-17,
30,
24,
-17,
-10,
-4,
53,
-12,
4,
24,
17,
11,
6,
-15,
-5,
6,
23,
-11,
-54,
1,
-43,
-12,
60,
7,
8,
-49,
27,
-19,
27,
0,
-22,
14,
-20,
18,
10,
35,
-48,
34,
10,
-30,
-19,
20,
4,
5,
-9,
25,
-31,
-16,
-30,
-24,
16,
1,
15,
22,
-10,
40,
38,
-63,
-15,
-35,
35,
12,
-36,
-15,
-4,
26,
-21,
-7,
-27,
-17,
2,
-23,
-57,
8,
-22,
44,
-13,
17,
4,
-27,
0,
-13,
29,
-38,
33,
4,
8,
-8,
6,
27,
8,
10,
30,
-44,
7,
-41,
17,
-33,
16,
-23,
-48,
-33,
26,
-25,
7,
56,
10,
-43,
-18,
-8,
-39,
55,
-9,
-22,
7,
-11,
-63,
10,
86,
-50,
-29,
-53,
9,
-13,
-20,
-49,
18,
-23,
2,
-17,
28,
-16,
-13,
56,
-9,
8,
-70,
-26,
57,
24,
2,
-38,
27,
-23,
2,
-17,
32,
21,
-18,
26,
-46,
-3,
-64,
57,
-18,
20,
-26,
-17,
5,
-8,
20,
0,
34,
0,
54,
-7,
-6,
20,
-35,
21,
-44,
-32,
18,
8,
-7,
16,
-40,
8,
-41,
-2,
-6,
-10,
-19,
26,
7,
-52,
12,
-58,
-2,
-24,
24,
10,
-36,
-37,
-31,
21,
-36,
3,
-12,
16,
0,
3,
18,
-14,
0,
-4,
-37,
-31,
39,
12,
18,
-11,
-12,
23,
43,
-59,
-17,
-45,
-39,
1,
-36,
58,
4,
-11,
7,
5,
5,
-9,
-6,
45,
-8,
2,
52,
-1,
19,
-37,
10,
5,
8,
0,
14,
-34,
-4,
-48,
28,
-14,
16,
14,
-7,
-23,
-17,
-16,
-22,
26,
15,
-11,
22,
41,
-49,
26,
9,
8,
39,
0,
8,
-6,
31,
33,
-38,
-47,
16,
-37,
31,
-12,
-8,
-50,
35,
-9,
-9,
26,
47,
-21,
-3,
-8,
-32,
-25,
-35,
17,
3,
-1,
-35,
-1,
-19,
-60,
-60,
17,
4,
10,
2,
-24,
-25,
-61,
36,
22,
46,
21,
-1,
27,
30,
0,
-39,
-12,
-26,
54,
-17,
11,
-10,
17,
8,
64,
-18,
-1,
1,
-6,
-4,
0,
-9,
-24,
17,
-2,
0,
-36,
-4,
-43,
68,
12,
23,
10,
24,
5,
-14,
-29,
22,
-6,
20,
-32,
14,
-38,
11,
27,
9,
-38,
48,
40,
22,
4,
0,
-7,
9,
-28,
-18,
50,
41,
63,
1,
29,
0,
19,
3,
-28,
17,
-17,
4,
4,
-28,
4,
22,
47,
35,
-1,
-45,
-15,
19,
-42,
5,
-18,
6,
5,
-18,
26,
-31,
-28,
-40,
14,
17,
-39,
4,
-76,
-1,
0,
-25,
-35,
3,
43,
9,
-11,
15,
-23,
-11,
28,
11,
13,
-2,
-8,
-4,
5,
-16,
-17,
-5,
44,
14,
-35,
10,
-17,
-15,
-15,
-6,
10,
-12,
-7,
-13,
-35,
21,
-46,
3,
0,
-5,
22,
-43,
-16,
-43,
42,
-17,
-24,
50,
20,
-16,
7,
3,
8,
-47,
32,
-40,
21,
-7,
34,
10,
0,
26,
1,
-25,
-21,
27,
-36,
29,
18,
-1,
-37,
-8,
22,
-39,
-42,
13,
-12,
28,
10,
-14,
-39,
-35,
-52,
1,
22,
-3,
-5,
-16,
14,
-54,
-1,
-5,
-26,
21,
4,
45,
-8,
-1,
-7,
9,
32,
-2,
-21,
-1,
25,
60,
0,
5,
23,
25,
31,
43,
61,
-12,
21,
-14,
40,
-13,
-9,
21,
-23,
9,
7,
50,
27,
12,
22,
-16,
-31,
-9,
-49,
6,
23,
38,
-18,
-24,
-56,
85,
-8,
45,
-56,
-5,
-28,
8,
-29,
1,
-17,
16,
25,
22,
-13,
17,
18,
-40,
-14,
32,
-23,
-24,
1,
-13,
62,
-29,
64,
-53,
-23,
-11,
-72,
-36,
30,
-7,
-50,
-18,
-51,
10,
15,
8,
-29,
-27,
29,
-57,
0,
53,
22,
1,
29,
-2,
-6,
-16,
12,
-33,
-11,
-18,
-43,
46,
16,
18,
-26,
-3,
-6,
2,
-10,
-8,
1,
33,
41,
-10,
9,
-30,
-10,
21,
37,
59,
28,
-32,
18,
36,
17,
-7,
-3,
29,
13,
22,
-16,
9,
-37,
44,
-3,
24,
18,
33,
-19,
-11,
0,
-8,
-35,
16,
-3,
7,
-5,
-12,
-41,
22,
-47,
-11,
27,
-27,
-47,
51,
32,
29,
29,
-8,
52,
-29,
-14,
-55,
24,
-47,
-19,
29,
66,
9,
72,
0,
5,
19,
19,
-14,
11,
12,
7,
-31,
-39,
24,
36,
56,
33,
-61,
32,
19,
-4,
9,
45,
-7,
7,
0,
-3,
-26,
7,
-37,
26,
2,
25,
22,
13,
-19,
57,
-22,
8,
13,
-24,
20,
-19,
-33,
17,
25,
16,
-21,
7,
-34,
5,
36,
27,
1,
-27,
-57,
0,
-42,
19,
-6,
-3,
10,
18,
-6,
14,
-8,
18,
46,
-39,
-5,
-11,
19,
30,
-28,
-8,
-15,
-31,
-13,
-21,
16,
-32,
-43,
-1,
25,
18,
-18,
15,
32,
0,
-9,
43,
-14,
-15,
-62,
-35,
-25,
-21,
10,
9,
-72,
-2,
-16,
-27,
-60,
-3,
-27,
-22,
9,
-36,
-50,
28,
14,
18,
-3,
30,
3,
20,
-49,
33,
-5,
10,
-22,
37,
2,
45,
49,
41,
20,
-18,
-15,
-56,
4,
13,
20,
8,
6,
6,
30,
13,
20,
1,
6,
9,
6,
39,
-20,
33,
-26,
-5,
-35,
-27,
-7,
-17,
33,
14,
9,
-34,
28,
-36,
0,
-31,
16,
0,
9,
-46,
36,
91,
-95,
19,
16,
66,
-19,
6,
43,
16,
-68,
-10,
-13,
-3,
35,
-2,
-32,
-4,
25,
-33,
20,
-7,
48,
13,
23,
-17,
10,
18,
-1,
17,
-5,
51,
-15,
2,
15,
30,
-8,
-20,
19,
-17,
4,
35,
27,
0,
-15,
25,
-30,
22,
-24,
49,
21,
-58,
9,
-23,
79,
-56,
-9,
40,
-5,
-17,
35,
-17,
-18,
-23,
-15,
-22,
-14,
5,
-51,
-10,
-14,
-37,
2,
-1,
11,
-29,
25,
9,
3,
-8,
-20,
28,
-13,
-43,
-18,
-27,
49,
28,
8,
-2,
26,
-26,
-11,
-19,
4,
8,
-44,
23,
-9,
21,
9,
-18,
-9,
28,
32,
-7,
-65,
22,
-25,
-32,
11,
36,
-7,
11,
20,
-18,
-33,
41,
-32,
9,
22,
-46,
24,
28,
0,
0,
5,
-33,
-3,
-18,
-43,
-68,
11,
22,
-26,
8,
38,
28,
21,
-2,
-51,
18,
-10,
28,
-50,
-17,
-64,
29,
-1,
-15,
17,
39,
20,
-53,
33,
14,
-27,
21,
-21,
-32,
-31,
20,
-24,
40,
45,
-8,
11,
-9,
36,
0,
37,
27,
-29,
43,
-23,
4,
-1,
55,
22,
42,
-3,
-76,
1,
21,
56,
-26,
24,
-43,
1,
10,
-45,
38,
-5,
-4,
21
] |
Wiest, J.
The Henry Smith Floral Company, a corporation, gave a trust mortgage to secure an issue of bonds. Default in payment was made and foreclosure proceedings in equity commenced. Directors of the corporation filed dissolution proceed ings and a receiver , was appointed, with power to operate' the business as a going concern. The receiver petitioned the court for leave to issue certificates in order to carry on such operation pending sale. The court, by order, granted leave and constituted such certificates a “first lien upon all of the property and assets of said Henry Smith Floral Company, in the hands of the court and its said receiver, prior to the present existing lien of bondholders and prior to any and all claims of unsecured creditors and stockholders,” and authorized the receiver to execute an indenture securing the certificates and covering all the assets and to constitute a first lien. The receiver executed the indenture and issued certificates, some at face value and others at an authorized discount.
The court made an order for sale of the property. Sale was reported and refused confirmation. This rendered another sale necessary, and the court fixed the receiver’s compensation and that of, the receiver’s counsel, and gave the same priority over the lien accorded the receiver’s certificates.
Appellants, other than Henry Smith, claim that the receiver’s certificates, issued under order and indenture, constitute “a first lien on all of said assets prior to existing liens or incumbrances, and prior to any and all claims of creditors, whether secured or unsecured,” with priority over compensation to the receiver, the attorneys, and any unpaid obligations of the receiver, except taxes. This construction is too narrow. The receiver acts as the arm of the court and the court retained power to compensate its officer and his legal advisors.
Counsel state:
“There may be a general impression that the necessary and proper compensation of a receiver and Ms attorneys is a part of the cost of receivership and entitled to priority over receiver’s certificates. That may be a general rule, but when the orders and decrees of the court, the mortgage given under them, the certificates themselves, and the decree in the case, establish the certificates as a first lien, the general rule does not apply, and this is especially true where, as in the instant case, the receiver’s attorneys draw the mortgage and certificates * * * and represent that the certificates are absolutely a first lien on all the property, * # * and that the payment of them is sure. ’ ’
The compensation of a receiver and his attorneys is out of funds or property in custodia legis, and no lien, authorized by the court, on the funds or property has priority of such court administrative costs. The lien, granted holders of the receiver’s certificates, was not superior to such administrative costs. Administrative costs are not at all of the nature of a lien, and a first lien on assets has no priority of such court costs and expenses. Bauer v. Wilkes-Barre Light Co., 274 Pa. 165 (117 Atl. 920, 24 A. L. R. 1171). The order, authorizing certificates to be a first lien, did not prevent the court from first paying the costs of the receivership. Pusey & Jones v. Pennsylvania Paper Mills, 173 Fed. 634; Central Trust Co. v. H. B. Mehring Co., 154 Md. 477 (141 Atl. 111). The fees of the receiver and the attorney for him are court expenses of the receivership and have priority of first lien receiver’s certificates. 2 Tardy’s Smith on Receivers (2d Ed.), § 577.
Cases cited and others have been examined, and, in relation to receiver’s certificates (when permissible, in instances of private corporations), we find the general rule to be that the compensation of the receiver and his counsel are part of court administrative costs and entitled to priority over receiver’s certificates constituted a first lien on assets.
Fraudulent representations to the contrary by the receiver or his counsel, in order to induce a purchase of such certificates, might, of course, occasion subordination. But such is not this case.
It is urged that the receiver’s certificates should be given priority over fees of attorneys, not previously authorized by court order to be employed. A law firm acted as counsel for the law firm appointed attorneys for the receiver, and the court awarded such counsel compensation for services rendered. It must be an exceptional instance to warrant such a practice. Attorneys appointed for a receiver are supposed to render all needed legal services and possess no power to employ counsel at additional expense. The instant case is exceptional. The counsel aiding the attorneys appointed for the receiver were attorneys for the trustee in the mortgage securing bondholders, and had filed a bill to foreclose such mortgage before the court took over the whole matter under the proceeding to dissolve the corporation. Aid and assistance between such counsel and the attorney for the receiver in conserving the assets was proper, and the services rendered the receiver, in the handling of the many questions presented, all came to the knowledge of the court, were helpful and the court could, and did accept the services and of right awarded compensation therefor as an administrative cost.
Complaint is made of the compensation awarded the receiver. During the period of his activities the receiver drew $75 per week. Such weekly sum was not fixed by the court, but this did not bar the receiver from having adequate compensation or pre vent the court from awarding its officer pay for services rendered.
Losses arising out of the operation of the business by the receiver are now observable, but the receiver acted under court orders and an expected, but unrealized pla,n of reorganization, rendered futile, however, by some nonconsenting creditors, and the endeavor to maintain the business as a going concern was justified. The court did not visit the receiver with the severity of afterthought, but treated him with due consideration, having in mind the forethought which all parties, including the court, exercised, but which has proved unfortunate. We discover no reason for disturbing the compensation awarded the receiver.
In operating the business, under order of the court, the receiver employed laborers, the court cut their pay 40 per cent., and accorded the remainder priority over the receiver’s certificates and other operating expenses, but inferior to the receiver’s compensation and that of his counsel. The laborers have not appealed, but the landlord of the store, occupied by the receiver, and a coal dealer furnishing fuel to the receiver, and others furnishing supplies to the receiver, contend that the rent, fuel, and supplies should be given at least equal preference.
The coal dealer furnished supplies to the receiver, and advanced money to enable the receiver to carry on operations, and received certificates. Some certificates, so given for fuel, were canceled by the court because given with the understanding that the holder would join in a reorganization and of subsequent refusal to do so. A preference insisted upon, under such circumstances, was unfair to other like creditors, and the court very properly canceled such certificates and relegated such, part of the claim to the class where it of right belonged.
After the unconfirmed sale, it was deemed necessary to maintain the business as a going concern until another sale could be had, and it was essential, in order to do so, to accord some protection to persons extending credit to the receiver in the interim. To this end the court decreed that rent of the store building, occupied by the receiver, after November 1, 1931, and down to the time of the future sale, so far as unpaid, “ together with other necessary operating expenses of said business accruing subsequent to November 1, 1931, shall be a first lien upon the proceeds of any such sale and shall be paid to the respective parties entitled thereto before any other distribution should be made of such proceeds.”
The court, exercising- discretion, ordered the receiver to operate the business as a going concern, pending the sale, and this was for the benefit of certificate holders as well as other creditors. The power of the receiver to issue obligations for supplies and other essentials, in order to comply with the order, followed of necessity as well as by court order, and the certificate holders, in such case, may not insist that the obligations of the receiver essential to such operation shall not be at least on a parity with their lien. Without such parity in this case there could have been no operation by the receiver.
Appellant Henry Smith, claiming rent, except for the order of November 18, 1931, giving him preference after the first of that month, would have to stand as a general creditor. What we have said with reference to that order of the court applies to the claim for rent, and for that reason the order is approved.
The circuit judge stated:
“The testimony further reveals that $900 of the receivership certificates were issued to Grand Rapids By-Products in exchange for a purchase by the receiver of certain steam boilers. That Chester W. Rankin, one of the members of the unsecured creditors’ protective committee brought the parties together and recommended the purchase of the boilers to the receiver. That he later, and after the issuance of the receivership certificates and without the knowledge of the receiver and while he was acting in a fiduciary capacity, representing as one of the committee, unsecured creditors, he accepted $200, par value of the receivership certificates as a commission or favor in effecting* sale of these boilers. This clearly he could not do while acting in such capacity, and the court finds that as to such $200 receivership certificates, the same shall be ordered returned to the receiver and canceled in the hands of the trustee.”
We approve of the finding.
The court decreed that obligations of the receiver, in carrying on the business pending the second sale, should constitute a first lien. We modify this lien for material, supplies, and rent, and place the lien in the class of, and on a parity with, the first certificates.
So modified, the orders and decrees are affirmed, with costs, against appellants.
McDonald, Potter, Sharpe, North, Pead, and Butzel, JJ., concurred. Clark, C. J., did not sit.
to priority of receivers’ certificates of indebtedness, see annotation in 9 L. R. A. 143; 2 L. R. A. (N. S.) 1052; 24 A. L. R. 1177. | [
-19,
13,
21,
11,
-15,
8,
18,
-24,
41,
0,
-30,
1,
16,
57,
-29,
-15,
20,
-23,
-68,
-15,
-28,
-28,
-16,
-20,
15,
20,
31,
-4,
78,
34,
-1,
-20,
-24,
7,
-28,
-8,
-22,
21,
7,
-53,
8,
64,
1,
42,
-24,
-32,
3,
-66,
17,
-26,
-7,
-35,
12,
-5,
36,
4,
29,
-51,
42,
-1,
9,
-38,
6,
9,
-41,
15,
1,
29,
30,
-82,
-32,
-3,
4,
22,
-1,
-34,
-3,
6,
-28,
-57,
-12,
-48,
45,
-44,
-29,
-7,
-17,
1,
-31,
23,
-21,
27,
-47,
-9,
-22,
12,
48,
40,
-18,
69,
8,
2,
-49,
19,
-27,
-7,
4,
-60,
-16,
43,
46,
-38,
17,
24,
-105,
-10,
-21,
-7,
44,
4,
10,
15,
12,
-56,
18,
26,
4,
16,
-54,
-20,
17,
-44,
-33,
29,
-20,
-1,
3,
-55,
-11,
-19,
-12,
-17,
23,
-24,
-21,
17,
20,
-24,
-40,
-19,
10,
32,
-26,
71,
-10,
-37,
12,
-50,
-50,
-75,
28,
-19,
25,
-38,
-48,
-20,
-2,
20,
-28,
28,
39,
24,
-10,
-24,
-37,
-24,
35,
-6,
-20,
-25,
-4,
-4,
14,
15,
20,
-27,
-4,
10,
34,
15,
-16,
-24,
13,
63,
-33,
10,
13,
25,
-8,
21,
-32,
-28,
-7,
7,
-10,
1,
31,
-9,
-16,
-5,
-19,
5,
-16,
22,
16,
14,
-23,
15,
13,
-15,
42,
55,
20,
-10,
-43,
-39,
-36,
-30,
52,
38,
13,
-11,
-23,
2,
-26,
4,
22,
7,
12,
31,
20,
-9,
-50,
-11,
2,
-44,
-16,
58,
-13,
-18,
-22,
-7,
26,
58,
-29,
0,
-43,
21,
-10,
-15,
16,
38,
-35,
49,
5,
-21,
-26,
28,
-23,
39,
-49,
-1,
46,
7,
23,
0,
-44,
14,
-3,
-22,
-20,
35,
-36,
22,
-50,
22,
21,
-7,
-30,
6,
44,
19,
-5,
-2,
6,
25,
-63,
-20,
46,
19,
14,
-42,
29,
-4,
-29,
8,
-37,
-32,
30,
-27,
-8,
-24,
21,
-21,
64,
27,
-52,
-29,
-5,
-37,
49,
56,
-26,
-10,
25,
32,
11,
-20,
-17,
-12,
-44,
7,
-10,
-32,
3,
11,
5,
-12,
-19,
-25,
-20,
-31,
30,
22,
9,
-33,
16,
-4,
-30,
42,
-74,
93,
-57,
-1,
-13,
6,
21,
24,
-25,
22,
3,
-47,
-13,
-44,
3,
42,
-36,
-17,
22,
24,
-21,
31,
-27,
2,
-10,
31,
-51,
11,
-42,
8,
-21,
-7,
34,
18,
-6,
22,
-27,
-1,
-13,
-20,
8,
1,
-6,
47,
-17,
15,
-37,
-18,
-70,
20,
-17,
32,
-42,
3,
-39,
37,
41,
-70,
-20,
42,
7,
-13,
31,
-17,
-12,
-4,
45,
-27,
52,
34,
38,
-51,
-34,
-4,
-17,
-39,
-26,
46,
-32,
15,
-49,
21,
11,
-14,
16,
-38,
20,
-17,
-7,
90,
-14,
-14,
-21,
1,
7,
0,
-5,
-38,
78,
18,
-42,
1,
-13,
5,
48,
27,
25,
-19,
-19,
11,
63,
-53,
49,
12,
3,
-14,
23,
8,
2,
-8,
4,
35,
25,
66,
-3,
-9,
27,
4,
-37,
1,
-14,
56,
-29,
-59,
-38,
7,
-55,
0,
-10,
-28,
-21,
18,
39,
11,
-21,
-19,
-51,
-18,
-37,
1,
55,
-25,
10,
2,
28,
5,
-42,
-6,
-13,
16,
-40,
-21,
28,
39,
13,
87,
-33,
-13,
25,
27,
-4,
-9,
-58,
-4,
-43,
51,
-7,
80,
57,
-25,
-16,
45,
11,
-12,
-15,
86,
-13,
23,
-1,
-31,
-77,
55,
-28,
58,
52,
51,
19,
1,
-1,
18,
-23,
-10,
30,
52,
-17,
6,
13,
-25,
33,
7,
-27,
33,
-7,
-17,
26,
-52,
0,
27,
-28,
61,
-13,
-74,
-2,
3,
19,
-56,
-14,
7,
10,
-51,
27,
-35,
13,
-63,
4,
-3,
-31,
-16,
-6,
27,
-6,
25,
-22,
7,
-5,
-3,
45,
16,
-6,
-20,
-40,
12,
-51,
-29,
-29,
-52,
37,
60,
39,
32,
-52,
-39,
18,
29,
7,
-41,
54,
-14,
6,
58,
17,
3,
-8,
-8,
12,
22,
39,
-12,
-2,
40,
33,
-9,
34,
6,
5,
-17,
-6,
16,
21,
-37,
18,
-28,
-32,
11,
-6,
17,
-4,
6,
64,
3,
-40,
26,
-22,
-30,
38,
12,
29,
-50,
33,
0,
15,
-34,
-10,
10,
7,
-17,
-18,
17,
4,
-7,
32,
-27,
-6,
41,
41,
-1,
17,
38,
23,
38,
-41,
-21,
-19,
63,
-59,
-9,
38,
-11,
42,
0,
-61,
-1,
-30,
7,
-9,
4,
1,
23,
-2,
13,
61,
0,
-41,
42,
1,
24,
-61,
-1,
-21,
4,
25,
-3,
-7,
-20,
24,
48,
33,
23,
-2,
-40,
-76,
-76,
44,
-9,
21,
9,
1,
-10,
17,
-61,
0,
2,
-54,
44,
-20,
12,
3,
0,
-13,
-20,
19,
-20,
10,
26,
19,
44,
-36,
29,
-9,
-9,
27,
-64,
-33,
-1,
-52,
-22,
-46,
-20,
14,
0,
-25,
67,
4,
-4,
46,
33,
-73,
-1,
45,
-49,
-18,
21,
-32,
20,
26,
2,
50,
-2,
28,
1,
-12,
-27,
33,
56,
59,
-38,
44,
31,
13,
37,
-20,
-12,
12,
20,
-26,
1,
31,
-15,
-27,
-34,
6,
21,
-58,
-20,
45,
-6,
6,
-1,
-11,
-42,
-13,
-37,
23,
2,
8,
-22,
-15,
28,
32,
-1,
-30,
36,
9,
-36,
-21,
-14,
-12,
28,
-36,
18,
11,
-32,
-27,
6,
68,
-25,
51,
-40,
102,
-53,
0,
4,
3,
3,
11,
-36,
12,
-20,
4,
0,
-51,
-36,
28,
-15,
-22,
2,
-6,
-3,
-25,
-16,
0,
-30,
10,
-32,
19,
-47,
-39,
43,
42,
2,
-8,
44,
1,
9,
-9,
3,
55,
6,
5,
-11,
-8,
0,
24,
41,
-30,
-43,
44,
44,
-53,
43,
-36,
-24,
-37,
12,
1,
3,
8,
-30,
-11,
1,
-42,
16,
-11,
13,
-20,
34,
0,
73,
6,
0,
23,
-32,
-9,
8,
-23,
51,
81,
-33,
-6,
7,
17,
-29,
-58,
-18,
7,
-19,
80,
15,
-2,
33,
-22,
-4,
-11,
64,
7,
-81,
-35,
-13,
-40,
1,
-15,
-17,
9,
-43,
-16,
7,
51,
44,
0,
-37,
-56,
0,
38,
4,
-12,
27,
-41,
-15,
-6,
-25,
-10,
29,
14,
-40,
39,
22,
65,
-16,
-39,
-45,
13,
11,
-22,
-43,
-24,
-24,
26,
-2,
-4,
30,
18,
32,
-4,
5,
-26,
-6,
72,
-26,
-22,
-63,
14,
0,
27,
50,
-27,
-19,
18,
28,
-17,
61,
-4,
29,
-30,
3,
19,
-8,
28,
47,
-18,
-8,
-43,
-77,
47,
52,
6,
34,
-44,
17,
10,
-9,
48,
17,
38,
55
] |
North, J.
Plaintiff, a New Jersey corporation, is. engaged in Grand Rapids and other cities in selling its merchandise through employees who solicit orders by a house to house canvass. The sales agents are each provided with a so-called certificate of identification, which among other things recites:
“The Passaic Home & Orphanage receives 10 per cent, of the net profits made by Hoyt Brothers, Inc., on the merchandise as shown on their regular price list. * * * Hoyt’s representatives are not authorized to solicit or receive contributions. ’ ’
Plaintiff alleges in its bill of complaint that it and its employees are threatened by the city of Grand Rapids with prosecution under a city ordinance which prohibits solicitation for charitable purposes without first obtaining- from the city manager a permit so to do. An injunction is sought to restrain the city from enforcing the ordinance against plaintiff and its employees for the reason that it is not applicable to its business of selling merchandise and also because the ordinance is unconstitutional and void. On defendant’s motion the bill of complaint was dismissed in the superior court, it being there held that the ordinance was valid and that plaintiff’s bill of complaint did not state a cause of action. Plaintiff has appealed, and the primary question for review is the validity of the ordinance. We quote it in part:
“An ordinance to license and regulate within the city of Grand Rapids, the soliciting of funds, the securing of subscriptions, or the selling of goods, wares and merchandise, the proceeds from which or any part thereof, are to be used for charitable purposes, and to prohibit false representations in connection therewith.
“Section 1. No person^ firm, corporation, or society of any kind, nature, or description, including charitable, fraternal, or eleemosynary, his, its, or their agents, representatives, or employees, within the limits of the city of Grand Rapids shall sell or solicit funds the proceeds from which, or any part thereof, are to be used for any so-called charitable purposes, without first having secured from the city manager a written permit so to do.”
Sections 3, 4, and 5 provide for a written application giving information concerning the solicitor, the articles sold, the charitable purpose, the portion of sales proceeds used for charity, indorsement of at least six reputable citizens, investigation by a police officer; and report to the city manager, and that no fee shall be charged.
“Sec. 6. Whenever it shall appear to the city manager from such investigation and report that the charity is a worthy one and that the person or persons making the application are fit and responsible parties, he shall issue a permit to such person, firm, corporation or society.”
The ordinance further provides for subsequent applications and renewals, and a penalty for violation.
Appellant urges invalidity of the ordinance in that it violates sections 1 and 16 of article 2 of the Michigan Constitution. These sections provide:
“Section 1. All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.
“Sec. 16. No person shall be * * * deprived of life, liberty or property, without due process of law. ’ ’
If, as claimed by appellant, the ordinance attempts to vest the city manager with arbitrary power in the exercise of which he may either grant or withhold the permit, the quoted constitutional provisions are violated and the ordinance is wholly void. Numerous cases of this character have been before this court, and the law is well settled.
“Reasonable regulations and a uniform rule of action in its determination are essential to the validity of a municipal ordinance and it may not be left to the arbitrary decision of an administrative officer or board.” Harrigan & Reid Co. v. Burton (syllabus), 224 Mich. 564 (33 A. L. R. 142).
‘ ‘ Section of village ordinance prohibiting removal of wooden building within fire limits without permit from chairman- of building committee is void where authority to grant permit attempted to be conferred on said chairman is unlimited and arbitrary.” Village of Durand v. Love (syllabus), 254 Mich. 538.
See, also, Melconian v. City of Grand Rapids, 218 Mich. 397; Postal v. Village of Grosse Pointe, 239 Mich. 286.
“Where an ordinance states a standard for the guidance of the mayor in granting licenses thereunder, and his official discretion to grant or refuse a license upon investigating the facts is limited to determining whether the requirements prescribed by the ordinance have been met, and an abuse of discretion would be subject to review, it cannot be said that the ordinance is invalid because it delegates uncontrolled licensing power to him, with authority to arbitrarily grant or refuse.” Hughes v. City of Detroit (syllabus), 217 Mich. 567.
In the instant case the power to issue a permit is vested in the city manager who grants such permit “whenever it shall appear # * * from such investigation and report (made by a police officer) that the charity is a worthy one, and that the person or persons making the application are fit and responsible.” The ordinance contains no rule or provision by which the city manager is to- .determine whether the charity is “worthy” or the applicant is “fit and responsible.” In making his determination he may apply one or more of a great variety of qualifications which to the city manager may seem proper, or he may grant or refuse the permit solely on captious grounds. And he may apply one test to one applicant and another to another. The ordinance does not contain the slightest indication of the kind or character of charity that is a “worthy one;” and likewise it is wholly silent as to what type of qualification would constitute an applicant for a permit “fit and responsible.” We see no escape from the conclusion that the ordinance attempts to vest the city manager with an arbitrary power in the exercise of which he will say to one applicant “yes,” and to another “no.”
It is urged in appellee’s brief: “It is to be presumed that the city manager will act reasonably;” and, “In order to hold this particular ordinance invalid, therefore, it is necessary to assume that the city manager will act arbitrarily and capriciously. ’ ’ We think it is not necessary, in passing upon the validity of this ordinance, to indulge in presumptions or assumptions- one way or the other. Instead, decision is controlled by the legal proposition that it is requisite to the validity of the ordinance that it should state “a standard for the guidance” of the official who passes upon the application for the permit. Hughes v. City of Detroit, supra. The general and indefinite terms used in this ordinance wholly fail to comply with this requisite. ■ For the reasons indicated the ordinance must be held invalid. A decree will be entered in this court granting injunctive relief in accordance herewith. Costs to appellant.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred.
to validity of statute or ordinance vesting discretion in public officials without prescribing a rule of action, see annotation in 12 A. L. R. 1435; 54 A. L. R. 1104. | [
2,
41,
-19,
36,
12,
29,
-11,
25,
-13,
4,
-16,
20,
-13,
60,
1,
-33,
5,
-30,
31,
-25,
-1,
-8,
-23,
-42,
-16,
-7,
19,
1,
6,
-3,
-21,
-30,
17,
-21,
-44,
25,
10,
1,
6,
-1,
-20,
19,
42,
-4,
21,
-13,
5,
-10,
32,
-16,
35,
38,
-15,
12,
-46,
-22,
0,
-15,
16,
25,
-12,
-5,
60,
-37,
0,
-21,
-40,
32,
-18,
-35,
-1,
53,
-43,
-15,
53,
-47,
-20,
-26,
-17,
36,
-14,
-15,
46,
-4,
-54,
71,
-19,
-21,
12,
-72,
-20,
10,
-13,
2,
28,
71,
11,
41,
0,
0,
9,
-21,
-7,
42,
3,
11,
38,
-52,
8,
-19,
-52,
-24,
5,
-33,
-23,
-18,
-26,
-38,
-10,
-4,
15,
-43,
47,
33,
5,
23,
59,
-19,
-57,
-23,
45,
19,
4,
-25,
-37,
48,
-17,
-1,
46,
10,
3,
35,
-5,
18,
-51,
-6,
-16,
44,
-22,
-41,
-25,
31,
-12,
48,
-27,
-10,
-12,
-56,
16,
-25,
-10,
10,
0,
25,
0,
-23,
-57,
47,
-9,
9,
-11,
-2,
-44,
-16,
-50,
-9,
1,
6,
-7,
-20,
23,
-1,
-3,
54,
2,
-17,
28,
-25,
2,
-42,
51,
-4,
6,
24,
-26,
51,
-7,
13,
-6,
-73,
-8,
-10,
-2,
-7,
-8,
0,
-36,
-59,
-96,
-20,
-2,
2,
14,
-26,
-17,
-16,
-55,
-4,
14,
-22,
-4,
-17,
24,
76,
-3,
-43,
22,
-31,
-32,
-32,
-1,
9,
-4,
-26,
12,
-16,
-29,
32,
17,
60,
-19,
5,
12,
-44,
4,
-25,
11,
18,
9,
24,
27,
-17,
21,
40,
-28,
-55,
-21,
-8,
34,
53,
15,
26,
-38,
52,
-8,
-22,
36,
54,
-71,
17,
-51,
-20,
40,
-3,
-12,
-8,
0,
-2,
9,
-11,
-40,
-9,
-8,
-4,
36,
0,
-47,
-22,
-11,
0,
-5,
78,
25,
22,
15,
39,
-5,
16,
0,
23,
-18,
0,
32,
36,
-41,
-10,
-23,
-17,
45,
-15,
18,
0,
-18,
-28,
32,
1,
-21,
0,
8,
-16,
41,
33,
19,
67,
-2,
-27,
62,
-23,
45,
-17,
30,
-18,
18,
-45,
9,
4,
60,
-59,
-44,
-23,
26,
16,
44,
-19,
1,
12,
-38,
27,
-49,
-20,
32,
18,
3,
18,
51,
33,
-15,
7,
-36,
62,
20,
22,
-4,
-60,
7,
6,
-2,
14,
-11,
55,
-42,
-29,
-52,
20,
-75,
-41,
-102,
-19,
-42,
34,
-6,
-76,
24,
5,
42,
24,
-48,
6,
20,
3,
25,
5,
12,
49,
-26,
-1,
-61,
-15,
41,
20,
2,
50,
-16,
39,
-32,
-6,
55,
15,
17,
14,
-37,
5,
-23,
-30,
-51,
-15,
31,
-36,
21,
35,
80,
-1,
-64,
-14,
63,
-19,
-12,
41,
1,
39,
-49,
-41,
25,
-27,
14,
0,
-9,
0,
9,
-41,
-10,
-17,
-16,
1,
39,
-85,
-24,
-3,
22,
-31,
30,
51,
-6,
20,
-8,
32,
31,
15,
35,
-2,
0,
-18,
-42,
1,
-1,
27,
-6,
-12,
14,
16,
-65,
2,
-41,
15,
-38,
19,
2,
23,
27,
54,
-46,
26,
26,
-25,
-8,
-3,
21,
1,
-17,
5,
13,
11,
19,
60,
62,
32,
-39,
34,
42,
25,
28,
-30,
-19,
32,
-3,
-8,
-23,
17,
-13,
0,
-6,
31,
15,
-23,
-9,
52,
17,
9,
-9,
-17,
9,
-27,
-51,
-2,
31,
36,
36,
24,
31,
1,
22,
0,
-7,
9,
24,
13,
41,
13,
44,
-4,
-19,
50,
-2,
11,
45,
-5,
7,
8,
23,
-51,
-11,
4,
27,
8,
37,
9,
-7,
-30,
37,
33,
-40,
48,
28,
-2,
45,
-24,
52,
0,
14,
31,
-17,
-13,
-29,
-9,
-31,
10,
-6,
-4,
10,
-23,
22,
-39,
35,
-41,
-11,
28,
29,
25,
-12,
1,
-9,
-17,
-38,
-17,
52,
-12,
-33,
-8,
26,
19,
-11,
5,
-21,
-42,
-72,
-64,
-30,
-23,
-13,
-36,
-27,
-39,
-12,
-17,
-5,
14,
-12,
-23,
49,
14,
-23,
-47,
22,
10,
0,
6,
40,
26,
22,
29,
11,
-32,
37,
-57,
8,
32,
7,
61,
-45,
0,
-1,
18,
7,
-1,
-29,
-4,
8,
45,
2,
25,
-14,
25,
49,
43,
-12,
24,
21,
-42,
12,
-29,
-24,
-53,
-38,
52,
43,
-9,
74,
-7,
24,
36,
-17,
-21,
-30,
33,
-3,
-14,
-6,
18,
-21,
15,
-56,
-8,
4,
-8,
-30,
21,
17,
-33,
11,
-38,
18,
0,
-43,
-63,
31,
2,
-24,
3,
38,
-14,
-48,
6,
-13,
30,
-5,
11,
-28,
-26,
-14,
-8,
14,
-30,
11,
0,
-23,
3,
-50,
36,
-9,
-7,
-47,
-22,
-2,
-34,
41,
-21,
9,
33,
9,
22,
-10,
6,
-6,
2,
-15,
57,
14,
-13,
-20,
-30,
2,
-10,
3,
33,
68,
34,
-11,
-21,
-41,
34,
22,
33,
-30,
-19,
-4,
-22,
-37,
-26,
-39,
0,
23,
3,
32,
-9,
20,
-2,
-47,
20,
28,
-20,
-35,
40,
-3,
-38,
-15,
-8,
31,
-28,
19,
-22,
40,
8,
45,
-10,
3,
28,
17,
7,
8,
-3,
7,
-3,
-15,
-12,
-17,
24,
29,
12,
39,
-36,
-5,
11,
6,
59,
11,
-18,
-31,
3,
23,
-33,
-15,
-15,
-18,
-62,
-9,
3,
-41,
15,
27,
-11,
1,
-28,
6,
-29,
5,
13,
-8,
3,
-9,
-14,
62,
2,
-13,
-25,
-45,
22,
17,
-19,
25,
-31,
0,
32,
-29,
15,
1,
41,
-14,
-15,
-25,
-58,
-67,
12,
-23,
-1,
40,
17,
-2,
-15,
3,
9,
39,
-18,
1,
-18,
-2,
-37,
-35,
-91,
33,
-19,
-27,
48,
-25,
-6,
21,
-28,
-29,
36,
-21,
-39,
-34,
2,
23,
-8,
18,
29,
7,
-21,
-9,
19,
16,
-30,
-68,
29,
-2,
-28,
-41,
6,
36,
-23,
11,
-5,
-21,
31,
-56,
8,
15,
-37,
-61,
-10,
-4,
-58,
61,
21,
-46,
26,
30,
44,
-23,
-9,
-6,
-36,
1,
-1,
-27,
-14,
24,
19,
15,
35,
-18,
-58,
52,
42,
65,
-25,
15,
-27,
17,
14,
25,
39,
-36,
-26,
-3,
38,
-30,
2,
-6,
-27,
-24,
2,
25,
56,
-19,
-12,
-19,
-32,
-18,
-16,
12,
38,
-17,
16,
10,
18,
-1,
-9,
23,
16,
-25,
10,
-30,
-14,
-12,
-43,
-13,
0,
-8,
28,
16,
1,
19,
48,
-47,
-18,
-31,
48,
-51,
-9,
43,
3,
-26,
-34,
-13,
-19,
-31,
0,
22,
-73,
39,
6,
-42,
-6,
17,
7,
26,
22,
25,
-33,
3,
-49,
57,
75,
-6,
-9,
13,
48,
-69,
-29,
-2,
-19,
-27,
-6
] |
McDonald, J.
The defendants review by certiorari to the department of labor and industry an award for compensation to Luella M. Beck and Margaret Loraine Calder for accidental injuries resulting in the deaths of their husbands, Ronald L. Beck and Loy B. Calder.
The record presents the two cases involving the same facts. They have been consolidated by stipulation and will be disposed of in one opinion.
The plaintiffs’ decedents were drivers for the C. & J. Commercial Driveaway, Inc., a corporation engaged in the business of transporting automobiles to and from various cities in the United States. At the time in question the decedents, Beck and Calder, were employed with other men to drive a fleet of 25 used Yellow Taxi Cabs from Chicago, Illinois, to Washington, D. C. The drivers were allowed to park where night overtook them and to sleep in the rear of their cabs. On this trip to Washington, they stopped for the night at a barbecue settlement near Romney, West Virginia. They parked their cars beside the highway. The decedents, Beck and Cal der, went to sleep in the same cab. In the morning they were found dead; and their death is claimed to have been caused by carbon monoxide from the exhaust of the motor. The night was cold, and it is thought the men kept the motor running in order to keep warm.
In adjusting claims for compensation, the defendants denied liability on the ground, first, that the injury was not accidental; second, that it did not arise out of and in the course of the employment; and, third, that it was due to intentional and wilful misconduct. The commission found against the defendants on all three defenses, and awarded compensation. As cause for appeal defendants claim:
That there was no evidence of an accidental injury.
When the men were found in the morning, Dr. Easton of Romney, West Virginia, was called. He examined the bodies, and on the hearing before the commissioner testified:
“Q. In your opinion, doctor, as a physician, from all the circumstances you have above described, what caused the death of these two men?
“A. They were overcome by monoxide gas coming into the rear of the compartment of the taxicab in which these men were sleeping, through a defective heater, and both, in my opinion, were dead when discovered. * * *
“Q. Doctor, you have stated that these men came to their deaths by inhaling carbon monoxide gas. Now, will you state why you are of that opinion?
“A. Well, we examined the particular taxicab, No. 13, in the line where both men were found dead, and we found the heater in the rear compartment of this cab was defective, and it leaked fumes from the exhaust to the rear compartment where these men were. # * *
“Q. "Was or was not there any physical conditions that would show that Calder died from carbon monoxide1? # * *
“A. There was a pinkish tinge to the skin that is peculiar to monoxide poisoning. In my opinion, this condition is peculiar to death from monoxide poisoning alone, that is, the condition of the skin.”
This testimony was a sufficient basis for the conclusion of the commission that the decedents died as a result of breathing carbon, monoxide gas generated from a running motor and carried through a defective exhaust into the rear of the cab. It is the only reasonable inference to be drawn from the established facts and circumstances. It sufficiently shows an accidental injury.
That the injury did not arise out of and in the course of their employment.
This fleet of cars was in charge of a foreman, Mr. Lane, but he was not present on the night of the accident. He had motor trouble with the cab he was driving and had fallen behind the others. When night came on he was 50 miles in the rear. At about 10 o’clock he sent word to them to remain at the barbecue station until he arrived ■ in the morning. Mr. McKinly, president of the defendant company, testified that the drivers were responsible for the cars they were driving until delivered at Washington; and that It was their duty to remain in charge of them when not being driven unless excused by the foreman. On the night in question, the men received no instructions from the foreman except to stay where they were until morning. They remained in charge of their cars and slept in them, a custom known to and acquiesced in by their employer. These facts- show that when this accident "occurred the decedents were not off duty. 'They were mot actually driving but were in possession of their employer’s property charged with the duty of protecting it until the arrival of the foreman in the morning. They did not leave the field of their employment but remained on duty performing a service for their employer. While thus enga'ged they were injured. The injury arose out of and in the course of their employment. See Haller v. City of Lansing, 195 Mich. 753 (L. R. A. 1917 E, 324).
Was their injury and death due to intentional and wilful misconduct?
It was contended by’ the defendant that the drivers were instructed not to sleep in their cabs with the motors running unless the windows were left open. There vas no rule to that effect posted in the cabs or in the employer’s office vhere the men were accustomed to assemble. The «instructions were verbal and were announced to the drivers when the weather became cold. The record does not show that Beck and Calder were present on any occasion when such instructions were given. But, assuming that they knew about the rule, they knew that it was generally disregarded by all of the drivers, which fact was also known to the employer. To be effective as a means for defeating compensation, the rule must be enforced with diligence. In reference to this rule the commission said:
“There is no evidence that such a ruling was promulgated in the regular way, and there is plenty of evidence if such a rule were promulgated, it was not enforced. Officers of the company did the same thing, and supervising employees on this trip did likewise. Several of the employees were ill in the morning on this trip when these two men were found dead. If the employer insists upon this defense as a means of defeating á compensation claim, he must show that such a rule was made, enforced, and intentionally violated. He cannot wink at his own rule. Rayner v. Sligh Furniture Co., 180 Mich. 168 (L. R. A. 1916 A, 22, 4 N. C. C. A. 851, Ann. Cas. 1916 A, 386); Detwiler v. Consumers Power Co., 252 Mich. 79.”
We agree with the finding of the commission that the decedents ’ injury was not due to intentional and wilful misconduct.
The award in both cases is affirmed, with costs to the plaintiffs.
Clark, C. J., and Potter, Sharpe, North, Pead, and Wiest, JJ., concurred. Butzel, J., did not sit.
injury from fumes or gases as accident or occupational disease within the meaning of the compensation statutes, see annotation in 6 A. L. R. 1466; 23 A. L. R. 335.
As to what constitutes serious and wilful misconduct of employee, see annotation in L. R. A. 1916A, 75, 243, 355; L. R. A. 1917D, 133; 4 A. L. R. 116. | [
15,
57,
-24,
-4,
52,
7,
-13,
1,
24,
13,
1,
-29,
64,
1,
-24,
-17,
34,
51,
37,
-42,
-20,
-11,
8,
25,
-49,
-45,
3,
-49,
-45,
36,
19,
-45,
15,
-40,
16,
29,
45,
14,
16,
19,
33,
27,
19,
-57,
23,
0,
-4,
6,
7,
19,
25,
5,
45,
-17,
5,
-10,
-12,
30,
-14,
-21,
39,
-21,
45,
-38,
2,
-14,
17,
24,
-36,
100,
-2,
10,
-17,
-15,
-40,
-21,
-8,
-21,
25,
0,
-18,
-20,
62,
27,
-14,
29,
-5,
19,
12,
24,
7,
-31,
12,
-45,
-12,
0,
-26,
0,
-32,
0,
-14,
-16,
33,
17,
-22,
37,
1,
-24,
9,
18,
-17,
37,
-10,
-22,
7,
-43,
36,
33,
12,
19,
-32,
-43,
5,
-35,
-15,
-26,
13,
17,
-11,
47,
46,
-6,
-31,
-3,
1,
15,
6,
22,
-22,
43,
-33,
81,
-32,
8,
-42,
29,
-1,
-1,
-1,
-25,
-33,
10,
14,
-13,
-14,
-35,
32,
19,
59,
-2,
9,
-5,
52,
31,
-12,
-17,
-44,
43,
-5,
-53,
32,
10,
-12,
-31,
61,
12,
21,
-7,
-26,
-4,
-39,
9,
42,
26,
43,
-39,
-11,
29,
-2,
2,
24,
-21,
-3,
-3,
-24,
17,
-7,
-18,
63,
43,
40,
-31,
-12,
-66,
7,
51,
-10,
16,
17,
-11,
27,
6,
14,
-47,
-47,
-14,
-16,
-87,
-10,
-74,
-12,
-3,
-7,
-39,
-43,
-16,
-67,
-26,
-25,
-38,
-26,
-25,
8,
13,
-29,
-110,
24,
-46,
55,
1,
50,
12,
9,
-29,
-12,
49,
-31,
-18,
-19,
35,
37,
0,
0,
34,
-21,
-17,
0,
61,
-21,
-25,
-10,
38,
-25,
48,
22,
-16,
-21,
-26,
-18,
13,
-29,
-54,
20,
5,
-17,
-77,
-15,
37,
33,
48,
6,
23,
-50,
-53,
4,
31,
-72,
-15,
-46,
-68,
23,
-30,
-5,
20,
23,
-37,
62,
54,
-4,
-1,
43,
16,
-10,
-30,
5,
12,
-33,
-7,
-22,
33,
9,
-69,
-3,
27,
64,
25,
17,
-16,
80,
-2,
-16,
33,
4,
-34,
0,
10,
-24,
16,
-5,
-1,
19,
-5,
2,
0,
49,
-45,
1,
41,
-7,
62,
-27,
10,
-20,
11,
6,
19,
67,
10,
14,
-8,
-15,
-21,
48,
-38,
4,
40,
48,
-38,
-10,
18,
34,
-40,
-51,
81,
-32,
-23,
33,
-41,
-34,
15,
50,
-12,
-20,
21,
-43,
13,
-22,
17,
-15,
49,
27,
-13,
17,
-76,
-48,
5,
21,
-5,
-8,
21,
-23,
-6,
1,
19,
11,
4,
-9,
26,
30,
-3,
-54,
39,
13,
-71,
27,
19,
9,
-6,
-26,
-49,
-34,
25,
36,
9,
15,
9,
24,
-14,
-69,
-39,
44,
-5,
2,
-75,
0,
-43,
0,
34,
-1,
15,
-6,
-38,
-9,
-21,
-4,
-15,
-12,
-40,
46,
28,
-41,
-48,
7,
13,
-16,
-1,
23,
4,
35,
-33,
6,
63,
41,
51,
-24,
-19,
42,
32,
-31,
-41,
0,
-21,
34,
9,
68,
-2,
-24,
-5,
-9,
-19,
7,
19,
4,
21,
29,
-57,
43,
51,
-37,
-2,
-63,
3,
-36,
5,
-36,
-15,
-2,
37,
15,
15,
41,
10,
-52,
24,
-35,
15,
-23,
15,
-38,
-86,
-14,
-20,
-45,
15,
65,
-35,
-13,
-51,
-18,
-39,
-36,
23,
12,
-9,
-52,
17,
37,
13,
19,
7,
37,
-1,
-14,
14,
-23,
-22,
-11,
-31,
-6,
2,
-6,
-43,
54,
26,
0,
-45,
-21,
-10,
-25,
-69,
7,
13,
-3,
-26,
24,
0,
-8,
51,
13,
-1,
24,
-34,
3,
-61,
-13,
-2,
58,
0,
-15,
-5,
-44,
12,
-14,
30,
12,
17,
-1,
15,
109,
-21,
-64,
41,
41,
-6,
-20,
9,
4,
-10,
-50,
49,
15,
32,
-9,
16,
-68,
-20,
5,
44,
-15,
-58,
-6,
0,
28,
8,
107,
38,
24,
-31,
1,
-25,
7,
-2,
-45,
-15,
0,
-1,
-9,
-18,
31,
-61,
-8,
9,
-40,
-47,
-34,
-18,
-26,
-38,
14,
10,
12,
-3,
-4,
28,
0,
27,
4,
9,
-20,
-27,
-75,
27,
-95,
-14,
-23,
30,
7,
31,
1,
-15,
29,
10,
65,
3,
-17,
-17,
15,
30,
-41,
-58,
-33,
0,
-24,
13,
-25,
10,
-4,
-29,
-61,
7,
23,
13,
-4,
1,
-43,
-23,
21,
4,
-12,
23,
-1,
14,
4,
53,
58,
49,
-14,
45,
-47,
-11,
-2,
-14,
65,
-21,
33,
51,
-11,
-60,
10,
-9,
-81,
24,
-3,
10,
-38,
36,
11,
-9,
-14,
-5,
-28,
-3,
-81,
71,
6,
2,
12,
-26,
-12,
24,
-45,
38,
30,
-33,
-2,
9,
19,
32,
-26,
-43,
-2,
-47,
-22,
-24,
-10,
0,
10,
0,
-36,
-43,
13,
-34,
-30,
17,
4,
-50,
52,
-26,
-14,
3,
-1,
-20,
61,
10,
5,
-58,
-51,
-12,
60,
16,
-43,
40,
22,
-27,
45,
-31,
25,
5,
-20,
-14,
53,
-56,
92,
-5,
-56,
2,
17,
57,
20,
-62,
-46,
34,
29,
-37,
-29,
18,
-9,
-6,
10,
38,
-25,
-33,
13,
25,
-32,
4,
-54,
-10,
-3,
22,
44,
23,
12,
1,
-12,
-9,
11,
-7,
-44,
-9,
10,
33,
-46,
50,
21,
-25,
33,
-17,
66,
28,
56,
-67,
36,
18,
-17,
30,
24,
-24,
-34,
-11,
72,
-5,
-5,
-38,
25,
-28,
15,
-42,
22,
-49,
-1,
-38,
-44,
25,
-18,
22,
51,
7,
18,
-24,
3,
43,
-21,
50,
15,
6,
-12,
56,
44,
0,
-7,
-26,
27,
36,
-12,
-4,
-9,
-33,
-10,
8,
-9,
-32,
-35,
-39,
-44,
-12,
-10,
33,
14,
-12,
-19,
7,
18,
24,
-33,
17,
23,
-27,
3,
30,
9,
-30,
23,
34,
-1,
27,
-14,
-14,
-4,
22,
-3,
-9,
-22,
-15,
-58,
-8,
10,
42,
71,
9,
-43,
28,
-7,
-5,
-8,
19,
43,
-2,
-45,
-5,
-15,
10,
-1,
4,
38,
27,
23,
45,
25,
-30,
-6,
9,
0,
32,
18,
-6,
-44,
-1,
-31,
34,
8,
15,
2,
1,
-30,
-21,
-29,
-4,
-20,
-74,
20,
6,
20,
49,
-21,
-4,
5,
-29,
-66,
47,
27,
7,
-7,
36,
-25,
25,
3,
-1,
-23,
-3,
-27,
2,
5,
6,
34,
-66,
-19,
-19,
-5,
7,
50,
33,
-26,
-51,
38,
-27,
3,
0,
-31,
-42,
29,
0,
26,
-7,
-4,
-10,
-12,
-81,
-24,
36,
-2,
4,
-25,
29,
-8,
21,
-26,
9,
58,
-17,
35,
-4,
30,
21,
30,
37,
-21,
34,
64,
51,
-52,
11,
3,
-22,
10,
38,
-12,
-36,
33,
-7,
-28,
-17,
13,
-12
] |
North, J.
Plaintiff, by his bill in chancery, seeks to have certain shares of stock in the Banquet Barbecue, Inc., a Michigan corporation, canceled, to have an accounting for certain moneys received by Bredshall and Smith, herein called defendants, and for injunctive relief. Upon hearing in the circuit court plaintiff had decree, and defendants have appealed.
It is plaintiff’s claim that in May, 1927, the defendant Bredshall approached him in regard to becoming interested with Bredshall in a restaurant business. These gentlemen had been interested in previous business ventures, always on the basis of investing equally and sharing equally. Bredshall secured a lease of a desirable site for the res taurant for a term of four years with the privilege of extending the term by two periods of like duration. This lease in the first instance ran to Bred-shall, but it was subsequently assigned to the Banquet Barbecue, Inc., upon its incorporation for the purpose of carrying* on the contemplated enterprise. Early in the activities a small building was erected on the site, and subsequently a lease of additional ground. was obtained from the lessor, and the building occupied by the restaurant business enlarged. This second lease also named Bred-shall as the lessee, but it was later assigned to the corporation. "When first organized (July 8, 1927), the authorized capital stock of the Banquet Barbecue was $10,000; but subsequently (March 28, 1928) was increased to $25,000, composed of common ■ stock of the par value of $10 per share. When first incorporated, the stock, which ultimately went to plaintiff and Bredshall, was held by a trustee. Two other men joined in organizing the corporation. One of them, Mr. Frank Ferrell, was president of the company and held 10 shares of stock; the other, C. T. Smith, vice-president and secretary, held 250 shares.
It is plaintiff’s claim that in the first instance Bredshall represented to him that the requirements of the enterprise would -necessitate an investment of $2,000 by each of them; and that later, as the business was expanded and the building enlarged, that a further investment of $5,000 by each was required. Plaintiff advanced these respective amounts and received therefor $7,000 par value of the common stock of the company. Plaintiff, who was a physician actively engaged in the practice of his profession, asserts that by reason of his previous associations with Bredshall he had great confidence in Mm, relied implicitly upon the representations made by him, and that it was mutually understood between them that Bredshall would look after plaintiff’s interest. On this phase of the record plaintiff testified:
“He (Bredshall) asked me if I could go on the board. I replied I could not give it the time nor did I know anytMng about the restaurant. We have always worked on equal terms, you look after it for me, your interests and my interests are identical.”
It seems as a result of the relationship above indicated between these men plaintiff paid little attention to the details of the restaurant business, notwithstanding his holdings in the corporation. He neither served as an official in connection with the corporation nor attended any of its stockholders’ meetings. Plaintiff’s contention is that it was understood between him and Bredshall that in this, as in previous ventures, they were to make the necessary investment in equal proportions and were to share equally in the ownership and profits of the enterprise. In the spring of 1929, because of certain facts which came to his knowledge, plaintiff employed an accountant to examine the books of the corporation and then for the first time, according to plaintiff’s claim, he learned of the facts wMch gave rise to tMs litigation and which briefly outlined are as follows: The defendant Bredshall, in consideration of transferring to the corporation the first lease, had issued to him 250 shares of the company’s stock. When the second lease was assigned, Bred-shall was given $1,500 in stock and $1,000 in cash; and this latter sum he used to pay for $1,000 more stock at the par value. Thus for the two leases Bredshall obtained $5,000 in stock. Each of these transactions was authorized by action taken by the board of directors composed of Bredshall, Ferrell, and Smith. Bnt plaintiff alleges that the board of directors was under the control and domination of defendant Bredshall, and that plaintiff had no knowledge prior to the checking of the company’s records by the accountant that Bredshall had profited by assigning the leases t,o the company. Plaintiff asserts that this was a fraud because the plan for becoming jointly interested in this enterprise contemplated that Bredshall would secure a lease of a suitable site and in this and other matters having to do with the corporation’s welfare would act jointly in behalf of himself and plaintiff. On the other hand, Bredshall asserts that he obtained the first lease before plaintiff became interested in the enterprise, and that as to each of the leases it was fully understood by plaintiff at the time that in consideration of transferring them to the corporation he (Bredshall) should be compensated in the manner above noted. And in this connection he claims that the lessor insisted upon the leases being taken by Bredshall personally and that by entering into them he assumed the liability for payment of rentals aggregating approximately $30,000.
The circuit judge decreed cancellation of this $5,000 par value of stock. A careful review of the record satisfies us that he reached the right conclusion. The testimony does not sustain Bredshall’s theory that there was any substantial value in either of these leases over and above the rents which the corporation is required to pay. This being so, as a result of these two transactions Bredshall secured $5,000 of stock in the corporation without giving any substantial value therefor. The trial judge' was not impressed, nor are we, with Bredshall’s claim that his credit or financial standing was indispensable to the securing of these leases. The first of the two leases was obtained incident to the contemplated undertaking of plaintiff and Bredshall, and we are satisfied that the understanding and agreement between these men was that, incident to the investment and the necessary effort in developing the enterprise, they were to advance equal sums of money and share equally in the ownership and profits. The first lease was obtained incident to, and as a part of, the promotion of this undertaking; and this is true, notwithstanding the organization of a corporation to take over the enterprise was a subsequent development. From the outset there was a fiduciary relation between plaintiff and Bredshall.
“The promoter of the company, like its directors, is deemed to sustain towards the members of the company, and toward the corporation, the relation of trustee toward his cestui que trust.” American Forging & Socket Co. v. Wiley, 206 Mich. 664, 673.
As to the second lease, there can be no question of its having been secured expressly for the use of the corporation. Bredshall at that time was a director of the corporation, and a fair inference from the record is that he controlled the action of the board of directors. Under the circumstances of this case, notwithstanding Bredshall took the lease in his own name, he held the same for-the use and benefit of his corporation; and he was not entitled to derive a profit incident thereto at the expense of the corporation or its other stockholders.
“The directors of a corporation are its agents. The entire management of corporate affairs is committed to their charge, upon the trust and confidence that they shall be cared for and managed # * * for the common benefit of the stockholders. They are required to act in the utmost good faith, and in accepting the office they impliedly undertake to give to the enterprise the benefit of their best care and judgment, and exercise the powers conferred solely in the interest of the corporation.” Ten Eyck v. Railroad Co., 74 Mich. 226, 232 (3 L. R. A. 378, 16 Am. St. Rep. 633).
See, also, Old Mortgage & Finance Co. v. Pasadena Land Co., 241 Mich. 426.
The decree entered in the circuit court requiring cancellation of the $5,000 par value of stock in the corporation obtained by Bredshall incident to the leases is fully justified and sustained by the record in this case.
The remaining question presented on this appeal is whether cancellation should be decreed of the stock of the par value of $3,500 held by Bredshall for which he gave his note to the corporation; and also of $1,000 par value of the stock held by the defendant Smith for which he gave his note to the corporation. It is conceded that if cancellation of this stock is to be decreed defendants are entitled to an accounting for certain dividends applied in payment upon their notes and also to have the notes canceled and returned to the makers.
On this phase of the case, the testimony discloses that, at the time the stock of the corporation was increased to $25,000, dividends were being paid at the rate of two per cent, per month. Plaintiff paid $5,000 in cash, for which he received a like amount par value of this. additional stock. Bredshall and Smith were two of the three members of the board of directors, and we think it is a fair inference they were assured of the co-operation, of the third member of the board in any corporate action they saw fit to take. While thus dominating the affairs of the corporation, Bredshall gave his unsecured note at six per cent, per annum for $3,500 for a like amount of the company’s stock then paying dividends at the rate of 24 per cent, per annum; and Smith gave his unsecured $1,000 note at six per cent, per annum for a like amount of the stock. The company received no benefit from these notes, since neither of them was negotiated or discounted. They are still in the hands of the corporation, and no payments have been received thereon except dividends earned and paid by the company on stock standing in the name of Bredshall or Smith. In other words, the corporation has in no way profited by this transaction with its directors. Instead, its outstanding stock was increased substantially 20 per cent, and in this same proportion the benefits which other stockholders enjoyed by way of dividends or accumulated surplus were diminished. Transactions between a corporation and its directors personally should be carefully scrutinized, and the burden is always on directors in control of a company to show that all their transactions with it are fair and not .in violation of the trust relation which they sustain to the company and its other stockholders.
“An officer of a corporation may deal with the corporation if his acts are open and fair and known to the directors and stockholders.
“The burden of showing the validity of a contract between a corporation and its officer or director, and the fairness and honesty of his dealings with the corporation, is on said officer or director.” Patrons’ Mutual Fire Ins. Co. v. Holden (syllabus), 245 Mich. 493.
Under this record we are not satisfied that these transactions were good-faith purchases of stock by Bredshall and Smith. Instead, we think the arrangement entered into was prompted by a desire to have a substantial control of the company’s affairs, and to unduly participate in its earnings to the disadvantage of other stockholders. This being true, we must affirm the decree of the circuit court canceling the stock so purchased by these defendants.
In making disposition of this case, perhaps it should be noted the record discloses that much, and perhaps all, of the stock of which cancellation is sought has been hypothecated and is now in the hands of persons who are not parties to this suit. Obviously, the bona fides of such hypothecations and the rights of parties concerned cannot be adjudicated in this case. Provision was made in the decree entered in the circuit court for cancellation of the notes- given to the corporation by defendants Bredshall and Smith, and also for an accounting by the corporation to these two defendants for such dividends as accrued on stock lawfully held by them and applied in payment upon the canceled notes. This provision accomplishes an equitable result between the parties. The decree of the circuit court is affirmed, with costs to appellee.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred.
to liability of promoter for secret profits, see annotation in 25 L. R. A. 92; 18 L. R. A. (N. S.) 1110.. | [
9,
7,
39,
-18,
-10,
12,
9,
26,
-14,
34,
-4,
22,
35,
73,
45,
47,
17,
-62,
7,
-41,
15,
-44,
-34,
-9,
-7,
-14,
-16,
-39,
32,
-52,
14,
-36,
-1,
-25,
-62,
81,
-39,
37,
-32,
-5,
-5,
15,
37,
-45,
36,
19,
8,
-48,
29,
2,
26,
9,
13,
-26,
-6,
-41,
7,
10,
-5,
25,
29,
11,
76,
55,
56,
-8,
-16,
11,
26,
-42,
1,
-2,
-34,
33,
15,
-76,
14,
-28,
-12,
-53,
7,
14,
36,
-22,
-63,
23,
-22,
2,
-17,
9,
-21,
-40,
-41,
3,
-20,
21,
3,
41,
-35,
4,
21,
-7,
-62,
-16,
-16,
54,
3,
26,
25,
-14,
-18,
-47,
52,
-13,
8,
-42,
-65,
-14,
-26,
-13,
11,
42,
-15,
0,
37,
40,
3,
-6,
-30,
17,
-18,
-52,
-49,
73,
-4,
15,
-18,
24,
-16,
-10,
54,
34,
-37,
9,
-11,
46,
-45,
-7,
-15,
-28,
-8,
-20,
19,
24,
1,
17,
28,
6,
25,
-13,
0,
-55,
-3,
-19,
4,
1,
45,
-7,
-26,
2,
-2,
46,
-18,
-66,
-31,
59,
-2,
-49,
-36,
-36,
-14,
21,
34,
17,
47,
-25,
34,
-6,
28,
9,
30,
12,
-27,
22,
-36,
-16,
18,
29,
15,
21,
15,
-19,
25,
-32,
-8,
-29,
50,
-12,
-20,
43,
-19,
24,
0,
-16,
0,
38,
-25,
-45,
41,
-37,
29,
-36,
-12,
40,
-51,
-6,
37,
3,
13,
-50,
-56,
-11,
0,
27,
-27,
-30,
27,
0,
46,
15,
-34,
5,
-22,
8,
22,
5,
-11,
6,
13,
38,
-10,
1,
-40,
6,
-4,
6,
-43,
42,
10,
13,
0,
21,
-76,
34,
-4,
-3,
24,
2,
-31,
85,
3,
-22,
31,
-22,
-16,
-9,
-5,
-7,
33,
60,
24,
-21,
-36,
21,
9,
27,
7,
-16,
-51,
-5,
-8,
67,
48,
-24,
68,
-31,
-65,
-27,
59,
36,
-39,
24,
-11,
2,
-33,
-54,
-54,
-12,
-2,
-48,
25,
-6,
-34,
-32,
47,
-77,
-10,
54,
0,
-32,
37,
5,
-16,
11,
-9,
-42,
60,
-33,
15,
-44,
33,
-27,
21,
4,
-82,
21,
23,
-26,
27,
-1,
15,
14,
32,
24,
24,
35,
13,
3,
-3,
-72,
-71,
-12,
60,
12,
28,
35,
28,
14,
-20,
20,
31,
-49,
7,
-7,
-51,
1,
-9,
-33,
3,
53,
-3,
46,
-10,
12,
1,
-11,
-42,
-7,
-46,
59,
-14,
-47,
22,
36,
4,
28,
-19,
-55,
-12,
30,
-35,
34,
0,
44,
1,
-33,
-30,
11,
-10,
29,
53,
8,
-41,
-25,
-31,
-10,
18,
-17,
26,
52,
-8,
34,
28,
-32,
-38,
-7,
-25,
-15,
-2,
27,
53,
-16,
2,
-41,
26,
-65,
20,
0,
-11,
-7,
-64,
13,
21,
27,
36,
-31,
-8,
-7,
12,
14,
-13,
-17,
-29,
17,
35,
29,
-60,
-16,
54,
16,
26,
59,
36,
5,
-61,
18,
14,
3,
-10,
-29,
13,
-38,
2,
1,
8,
4,
-17,
13,
17,
43,
13,
32,
34,
14,
-68,
-5,
67,
-11,
10,
6,
-3,
51,
-29,
4,
-48,
-34,
-26,
22,
-13,
51,
34,
-4,
18,
29,
-28,
24,
12,
8,
3,
37,
-23,
-4,
-25,
-17,
7,
39,
0,
-86,
-26,
16,
-11,
-28,
32,
-8,
-33,
44,
-6,
38,
10,
15,
33,
27,
-31,
61,
-84,
-13,
29,
16,
27,
-38,
-21,
-36,
-8,
31,
7,
-25,
30,
18,
-2,
-48,
-43,
10,
22,
-24,
9,
25,
32,
-40,
-23,
27,
22,
-22,
6,
-7,
19,
40,
29,
10,
-23,
25,
8,
41,
-4,
-1,
66,
-2,
12,
-10,
3,
42,
-13,
3,
27,
29,
-5,
-8,
28,
5,
-46,
-11,
4,
-20,
80,
-8,
-42,
19,
28,
21,
37,
5,
-31,
-39,
0,
-62,
23,
-8,
39,
31,
29,
-2,
-6,
7,
-50,
-51,
-51,
-31,
-33,
22,
49,
11,
-7,
-18,
-15,
-21,
0,
8,
10,
-32,
1,
0,
18,
-49,
-28,
-21,
63,
11,
-49,
26,
32,
-23,
21,
-46,
27,
36,
-10,
-6,
8,
-13,
-64,
-9,
25,
-24,
-7,
26,
13,
-8,
-41,
-6,
-25,
43,
-17,
5,
18,
45,
-8,
0,
5,
-43,
31,
-43,
-13,
3,
-22,
62,
5,
-58,
31,
-14,
66,
-5,
-3,
29,
21,
17,
22,
65,
-38,
-34,
23,
52,
-19,
19,
-20,
-6,
76,
-25,
19,
-3,
22,
-12,
-12,
-16,
-36,
-32,
14,
7,
-14,
25,
28,
-11,
-40,
-35,
-14,
7,
27,
12,
-29,
-14,
-5,
23,
28,
-35,
14,
-3,
-24,
21,
25,
24,
-3,
-3,
11,
-31,
0,
47,
56,
64,
1,
-26,
1,
-40,
33,
-24,
47,
-21,
10,
61,
34,
-97,
-22,
-47,
-16,
-21,
-25,
-7,
-54,
17,
6,
68,
-4,
28,
-4,
32,
-46,
28,
6,
-32,
-24,
-34,
-69,
-13,
-35,
35,
-5,
-31,
-31,
12,
-15,
12,
1,
-46,
-43,
-9,
-39,
-34,
0,
-14,
21,
39,
3,
12,
26,
-53,
-3,
-11,
-20,
-27,
11,
83,
72,
65,
-31,
-46,
63,
-25,
-20,
13,
79,
-5,
40,
-33,
-75,
-19,
8,
0,
25,
-6,
18,
-22,
12,
-39,
-50,
-1,
3,
11,
14,
5,
-40,
-59,
-24,
-17,
18,
7,
15,
8,
6,
-7,
-37,
15,
-56,
-9,
13,
-43,
43,
19,
39,
-48,
42,
9,
12,
-57,
8,
19,
-39,
11,
4,
-63,
-18,
-7,
-42,
-20,
-39,
-6,
-18,
-15,
-46,
-14,
-13,
-18,
22,
37,
-6,
-32,
-15,
-13,
16,
-5,
-23,
-21,
-17,
0,
-44,
32,
-15,
24,
-23,
18,
40,
-43,
1,
-36,
11,
2,
2,
14,
25,
28,
26,
-9,
3,
37,
-26,
-48,
-4,
15,
79,
-2,
-39,
-24,
-11,
-13,
-53,
15,
-20,
37,
1,
-2,
58,
-33,
-11,
44,
-20,
-29,
16,
16,
-58,
13,
23,
54,
-19,
-19,
49,
-9,
-77,
27,
-18,
-7,
26,
35,
25,
11,
2,
10,
-11,
4,
-52,
-17,
6,
-45,
-15,
43,
-5,
14,
17,
12,
-21,
-61,
-12,
-2,
-28,
-31,
-29,
-1,
-29,
24,
-15,
14,
-54,
31,
-25,
-21,
-12,
69,
2,
27,
0,
-19,
3,
-24,
-38,
-5,
-4,
-28,
-10,
-5,
-34,
42,
-31,
13,
34,
-16,
14,
-10,
-5,
18,
0,
-18,
-4,
-5,
29,
-20,
31,
30,
7,
36,
22,
-11,
29,
32,
-1,
-10,
2,
12,
-6,
-10,
-5,
10,
7,
47,
-18,
11,
-37,
-50,
-3,
48,
-45,
24,
-75,
1,
-16,
16,
2,
-5,
0,
2
] |
Butzel, J.
Louis Williams of Evart, Michigan, plaintiff, was engaged to work about the cabins and to act as a fisherman’s guide by his fellow townsman, Spencer Postal, at the latter’s fishing and hunting camp located in the vicinity of a number of small lakes in northern Ontario, not far from the Canadian Soo. Plaintiff was 21 years of age, six feet four inches in height. Fishermen who went to Postal’s camp employed and paid the guides furnished them. On June 11,1930, defendant, Prank P. Wood, and a companion, both experienced fisher men, employed plaintiff to guide and row a boat near the shore of Devil’s lake. While fishing, defendant sat in the bow, his companion in the stern and plaintiff in the middle of the boat, about five or six feet away from defendant. Plaintiff, with his back towards defendant, rowed the boat parallel with and not far from the shore, towards which the two fishermen cast at right angles to the boat.
Instead of using his own rod, defendant borrowed from Postal a steel one, about 5 feet-in length. It was equipped with a reel, around which 25 to 30 yards of line were wound, and at the end of the line, in the order named, were a sinker, a one-inch copper leader, a spinner, consisting of a metal rod on which two spoons were attached, and a trout hook baited with an angleworm. The length of the tackle from the end of the hook to the farthest end of the sinker, when pulled taut to the end of the pole, according to defendant’s testimony, is 10 to 15 inches. The reel is operated with the thumb used as a brake. When the cast is made, the thumb is loosened, the line runs speedily out, and when the line reaches the spot aimed at by the fisherman, he pushes his thumb against the reel and the lure drops into the water. When casting, a good fisherman keeps his eye on the spot at which he is aiming.
After the party had been fishing for less than an hour, during which defendant had no success, while his companion caught two speckled trout, defendant attempted another cast. In so doing, the tip of his rod first struck plaintiff on the side of the head and instantly thereafter the hook penetrated his eye, causing such severe injuries that the eye had to be removed from its socket. After the hook struck plaintiff, the rod was dropped down to the side of the boat. Only about four feet of line had been unwound and the east did not leave the confines of the boat. It is conceded that there was no back lash, no sndden movement of the boat, nor is it claimed that the line had become tangled or snarled.
Plaintiff attributes the accident wholly to defendant’s negligence. The latter admits? that it would have been dangerous to make a side cast with defendant in the middle of the boat. He claims that the very fact that plaintiff was hooked in the eye indicates that he made an overhand cast, and that the injury was due to an accident for which he should not be held liable in damages. It appears to be conceded that if the accident had been caused by a sudden movement of the boat or a back lash, and the cast had been overhand, plaintiff would not be entitled to recover. Plaintiff claimed that the accident was due to a side cast, but admitted that he was unable to see how the cast was made, as his back was turned toward defendant. He claims, however, that even if it had been an overhand cast, it was so negligently made by defendant, an experienced fisherman, as to render him liable for the untoward results. Plaintiff claimed, and defendant, called as an adverse witness under the statute (3 Comp. Laws 1929, § 14220), denied, that, immediately after the accident, defendant said: “It was my fault I hooked you,” and that it would not have happened had he used his own pole. An Ontario lawyer testified that under the laws of the province, defendant cannot raise a defense under any theory of assumption of risk by the plaintiff.
At the close of plaintiff’s proofs, the trial judge directed a verdict for defendant, holding that, in any event, the cause of the accident could only be determined by pure conjecture, and that the circumstances made it extremely improbable that the cast was a side one.
A number of questions are raised on appeal. The case presents an unusual state of facts. The testimony is very meager, and neither from the briefs nor a diligent search on our part have we been able to find any case involving similar factual set-up. Analogous ones are referred to. The golf cases are not helpful, for both players, caddies, and spectators, knowing that balls are apt to go wayward on the wide expanse of a golf links, can and should be on guard so as to avoid being struck by a ball or a club. The facts in the cases differ and in some of them golfers have been held liable. In Cleghorn v. Oldham, 43 Times L. R. 465, and Castle v. St. Augustine’s Links, Ltd., 38 Times L. R. 615, the duty is imposed upon players to use care with regard to the safety of others about them. Also see Schlenger v. Weinberg, 107 N. J. Law, 130 (150 Atl. 434, 69 A. L. R. 738); Biskup v. Hoffman, 220 Mo. App. 542 (287 S. W. 865). These cases impose a duty upon the golfer to call out a warning to those on the links in the direction of his intended shot, or in the actual course of the ball. In the instant case, such a warning would have been useless, for plaintiff, with his back towards defendant, could not watch him cast. The liability of a golfer for poor shots is discussed in “Legal Questions Relating to Golfing and Golf Courses,” 31 Scottish Law Review, 194. It has been held repeatedly that a golfer is not liable for making a poor shot, and that persons playing the game take all the usual risks that attend it. See Stober v. Embry, 243 Ky. 117 (47 S. W. [2d] 921); Benjamin v. Nernberg, 102 Pa. Sup. Ct. 471 (157 Atl. 10). In Everett v. Goodwin, 201 N. C. 734 (161 S. E. 316), it was held that where the evidence was conflicting and there was testimony that the player had failed to shout “fore,” negligence was a jury question.
The baseball cases hold, as a rule, that a player cannot be held liable to a spectator struck by a foul ball. Brisson v. Minneapolis B. & A. Ass’n, 185 Minn. 507 (240 N. W. 903). In Ingerson v. Shattuck School, 185 Minn. 16 (239 N. W. 667), defendant was absolved from liability for injuries suffered from a collision with two football players who rolled off the field while engaged in a hard tackle.
The hunting cases also, while claimed to be analogous, are not pertinent to the facts in the case, for the law exacts a much greater degree of care from persons using firearms. See Chaddock v. Tabor, 115 Mich. 27; Bahel v. Manning, 112 Mich. 24 (36 L. R. A. 523, 67 Am. St. Rep. 381), and also the cases collected and annotated in 53 A. L. R. 1205.
The nearest approach to the instant case is that of Toca v. Rojas, 152 La. 317 (93 South. 108). The court was divided as to whether there was a showing of negligence. The prevailing opinion held that there was grave doubt whether it was the hook of defendant’s son that caused the injury, and there was no proof of negligence on his part. The facts in the case are so dissimilar from those in the instant case that it is not helpful to us.
The general rule that may be deduced from the cases hereinbefore cited is that certain risks of accident attend all outdoor sports and recovery may be had only if an injury is the result of negligence that could and should have been avoided by the use of ordinary care. It seems to be conceded by both parties in the instant case that, if defendant made a side cast within the small confines of a rowboat, resulting in an injury to plaintiff, the latter should recover. We believe that there was at least a sufficient showing upon which reasonable minds might differ as to whether defendant was negligent in making the cast. The case, therefore, should have been submitted to the jury for determination. The trial judge, in directing a verdict, stated that the rule of law is:
“That where an inference can be drawn that would make an act an innocent one, and that inference is as reasonable as an inference drawn from the same facts which would create a liability, that no liability exists. In other words, cases are tried upon reasonable certainties and not upon pure speculation and inferences drawn.”
The foregoing statement appears in a dictum in Knapp v. Railway Co., 114 Mich. 199, where intestate received injuries when coupling a freight train at a street crossing. Plaintiff claimed that deceased caught his foot in the planking between the plank and the rail, and defendant contended that deceased stumbled against the ends of the planking and was carried forward by the cars and then hurled under the train, and that, in any event, the cause of the accident was conjectural. The court, however, refused to direct a verdict. The dictum quoted does not support the contention that, when there are two probable causes, the case must be taken from the jury when there is a much stronger probability supported by competent testimony that the cause relied upon by the plaintiff was responsible for the accident.
In Manning v. Railway Co., 105 Mich. 260, where the mutilated body of plaintiff’s intestate, a brakeman, was found near the right of way, it was claimed that, while leaning from the side of a car, he was struck by a tree close to the tracks. There was also a possibility that he had fallen from the car. However, there was no direct evidence whatsoever as to how the accident occurred. Inasmuch as the cause of death was purely conjectural, the direction of a verdict for defendant in the lower court was upheld by this court, notwithstanding a very vigorous dissenting opinion by Mr. Justice Montgomery.
In Alexander v. City of Big Rapids, 70 Mich. 224, we held:
“If it was left ‘very doubtful’ what caused the injury upon the proofs, certainly, then the case was one for the jury upon its facts, and should not have been taken from them upon that point. No one witnessed the accident, and the testimony was somewhat circumstantial upon that •question. ’ ’'
In McDonnell v. Central Drug Co., 160 Mich. 455, where the cause of the accident was far more* uncertain than in the present case, we held it improper to direct a verdict on the ground that the cause was conjectural. To like effect are: Adams v. Iron Cliffs Co., 78 Mich. 271 (18 Am. St. Rep. 441); Wendt v. Village of Richmond, 164 Mich. 173. A presumption of negligence may arise from competent evidence. See McLean v. Railroad. Co., 137 Mich. 482 (17 Am. Neg. Rep. 76); O’Neill v. James, 138 Mich. 567 (68 L. R. A. 342, 110 Am. St. Rep. 321, 5 Ann. Cas. 177, 17 Am. Neg. Rep. 561); Fuller v. Magatti, 231 Mich. 213; Bacon v. Snashall, 238 Mich. 457; Eaton v. Consumers Power Co., 256 Mich. 549; Peterson v. Cleary, 257 Mich. 640; Oleksza v. Nolan, 258 Mich. 240.
In the present case, plaintiff’s claim is strengthened by the fact that he apparently was hit on the side of the head by the tip of the pole. We do not agree with the trial court that it was improbable under the circumstances that plaintiff was hit by the tip of the rod in the course of an improper side cast, for when we take into consideration the fact that it was a five-foot pole with 10 to 15 inches of tackle hanging from it, that defendant very likely extended Ms arm to make the cast, and that some of the line may have been unreeled, it would be possible for the tip of the pole to strike plaintiff. Moreover, the undisputed testimony, as distinguished from the inferences the trial court drew, shows that plaintiff was hit on the side of the head by the tip of the pole before the hook entered his eye. The question as to whether the cast was negligently made raises a question of fact that should have been submitted to the jury. As the case is being remanded for a new trial, we might add that the claimed admission on the part of defendant was not improperly received for whatever it was. worth. Simonson v. Huff, 124 Wash. 549 (215 Pac. 49); Kentucky Distilleries & W. Co. v. Wells’ Guardian, 149 Ky. 275 (148 S. W. 375). Notwithstanding the fact that, under the Ontario law, plaintiff did not assume the risks of a dangerous occupation, he well knew that accidents frequently occur to fishermen, and did not need to be especially warned of the dangers. He can recover only if defendant was negligent in making the cast. Rudd v. Bell, 13 Ont. Rep. 47; Shendra v. Railway Co., 21 Man. L. R. 622.
Under the circumstances, we believe that the question should have been submitted to the jury.
The judgment of the lower court is reversed, with costs to plaintiff, and the case remanded for a new trial.
Clark, C. J., and McDonald, Potter, Sharpe, North, Read, and Wiest, JJ., concurred. | [
27,
11,
-5,
-20,
-24,
-25,
-11,
54,
28,
25,
-31,
-17,
18,
0,
27,
-14,
11,
-40,
-41,
12,
44,
-24,
40,
-54,
-44,
-19,
-22,
-8,
-41,
-15,
3,
35,
27,
-30,
-21,
9,
-12,
5,
-18,
27,
-31,
-8,
54,
25,
45,
-9,
35,
-19,
5,
-13,
9,
-16,
66,
-26,
-28,
-44,
2,
16,
-4,
31,
-16,
-82,
11,
17,
-22,
-32,
34,
36,
27,
-8,
-28,
50,
-10,
53,
-14,
12,
-29,
-9,
-3,
25,
-53,
-8,
17,
-12,
-66,
-34,
-27,
-4,
18,
34,
-17,
-4,
-71,
12,
27,
-28,
-7,
-43,
-35,
28,
18,
41,
52,
7,
-21,
-4,
-38,
39,
-48,
4,
44,
39,
21,
12,
24,
-64,
58,
5,
32,
-4,
10,
35,
46,
-3,
15,
12,
-19,
-14,
-13,
6,
35,
14,
38,
-11,
4,
79,
-71,
-14,
0,
-37,
35,
62,
-54,
9,
-17,
-38,
15,
2,
-10,
34,
-44,
-25,
-13,
16,
0,
31,
-22,
0,
67,
-35,
-1,
-28,
-15,
-36,
-39,
8,
12,
10,
1,
14,
27,
15,
42,
29,
27,
59,
12,
-40,
15,
-5,
13,
46,
-19,
-10,
-23,
-57,
17,
-29,
-102,
69,
9,
-38,
-15,
0,
-15,
26,
3,
18,
-39,
1,
48,
-20,
-12,
16,
-21,
-5,
54,
-6,
-14,
18,
11,
5,
0,
-17,
-18,
61,
-17,
9,
35,
2,
-26,
29,
53,
32,
-24,
-52,
-48,
24,
72,
-39,
-61,
-36,
32,
28,
-1,
-16,
11,
16,
18,
-38,
-37,
-4,
-55,
-17,
13,
-38,
-42,
0,
-12,
18,
-46,
0,
6,
-6,
-10,
21,
27,
-43,
-20,
14,
-59,
-15,
16,
12,
38,
-9,
18,
34,
-25,
-30,
19,
-11,
44,
-6,
-72,
-32,
3,
2,
23,
-52,
8,
3,
-28,
-29,
-26,
-34,
10,
-47,
-31,
-34,
-20,
82,
27,
-27,
2,
21,
27,
-35,
-16,
13,
24,
6,
-25,
-18,
-7,
47,
-11,
10,
-12,
-10,
-109,
5,
-30,
-36,
19,
3,
32,
12,
-4,
-6,
-19,
37,
-10,
25,
-97,
42,
-34,
45,
-10,
36,
-7,
4,
10,
6,
-14,
2,
53,
-40,
19,
12,
-41,
-3,
-9,
28,
-10,
-12,
19,
56,
46,
-31,
-27,
-7,
-28,
-11,
20,
52,
-17,
3,
-9,
41,
50,
-11,
-28,
14,
-5,
-36,
9,
37,
-2,
30,
15,
49,
11,
7,
57,
-9,
-7,
27,
-27,
33,
46,
73,
56,
-16,
17,
10,
10,
-78,
-3,
-15,
-24,
8,
5,
28,
-32,
0,
-60,
-20,
22,
-36,
2,
7,
30,
13,
-47,
55,
-10,
-35,
35,
-33,
-43,
16,
50,
18,
8,
-41,
-8,
43,
-12,
-7,
55,
30,
12,
-26,
60,
-40,
1,
-29,
62,
-40,
36,
41,
13,
-21,
-10,
-35,
-41,
79,
-10,
-9,
3,
-58,
37,
-35,
12,
24,
17,
38,
-17,
-78,
-36,
-24,
-54,
26,
29,
15,
35,
13,
1,
26,
-88,
-3,
1,
12,
-8,
-32,
8,
-46,
24,
-35,
33,
9,
34,
-16,
-35,
-3,
-11,
42,
21,
25,
-15,
29,
16,
-8,
-37,
-25,
-3,
0,
54,
-21,
23,
-26,
4,
-9,
-53,
29,
4,
43,
19,
28,
-38,
-4,
31,
-31,
36,
14,
15,
57,
27,
40,
4,
-45,
-30,
-22,
-46,
36,
-46,
14,
-39,
-37,
-6,
40,
16,
37,
-46,
-3,
10,
-101,
-24,
-41,
33,
-11,
-13,
-25,
18,
-34,
-1,
-19,
-21,
2,
-9,
-43,
48,
-5,
3,
-2,
-8,
16,
56,
-12,
-33,
17,
55,
-27,
-36,
24,
-29,
-25,
-20,
-38,
-14,
1,
-17,
22,
59,
-4,
7,
34,
41,
-6,
3,
22,
3,
-14,
-27,
37,
-11,
15,
-20,
14,
-8,
-79,
-39,
7,
-53,
18,
16,
-39,
-42,
-4,
42,
6,
-38,
10,
-19,
4,
42,
19,
1,
-14,
17,
29,
9,
0,
36,
14,
-43,
37,
-2,
86,
31,
-25,
50,
-16,
-12,
-8,
-4,
-39,
19,
41,
57,
16,
-10,
45,
25,
47,
-3,
-10,
-10,
-41,
-81,
17,
-23,
3,
-14,
12,
-44,
74,
-30,
-14,
-6,
-49,
-5,
0,
-13,
-29,
-33,
31,
-64,
-11,
-7,
-11,
38,
46,
-16,
-11,
-42,
12,
-15,
4,
-1,
19,
-32,
-74,
-14,
17,
-20,
-10,
-31,
-22,
20,
-39,
-14,
-8,
-11,
-36,
-22,
43,
5,
11,
48,
10,
30,
-14,
41,
49,
35,
5,
6,
-25,
7,
52,
22,
25,
-7,
41,
38,
-24,
-14,
-29,
4,
35,
-31,
48,
-5,
2,
41,
-32,
-13,
25,
-1,
-11,
35,
-8,
18,
21,
-40,
-54,
-43,
54,
-39,
-30,
13,
-29,
12,
-42,
-28,
8,
0,
48,
12,
26,
38,
-18,
40,
5,
-24,
26,
-69,
4,
-3,
-74,
-39,
-63,
2,
6,
19,
-18,
43,
-24,
-26,
-5,
16,
20,
25,
-11,
28,
22,
-64,
-14,
-8,
54,
-11,
-47,
-19,
-19,
-49,
-48,
24,
-27,
9,
-16,
-2,
2,
-24,
-52,
-54,
-22,
19,
52,
-42,
-3,
-45,
-9,
2,
-11,
-3,
-27,
10,
-11,
22,
-52,
-8,
24,
22,
-16,
43,
-11,
-2,
2,
-65,
-1,
-21,
49,
-10,
-17,
31,
-29,
5,
28,
-9,
76,
9,
5,
-31,
-36,
0,
5,
-5,
66,
-22,
26,
11,
-18,
57,
-23,
4,
-50,
-60,
-23,
28,
55,
-21,
35,
13,
-39,
-8,
3,
-33,
-3,
-23,
-16,
31,
8,
31,
-26,
18,
37,
-40,
-16,
-18,
29,
-16,
10,
-21,
41,
-13,
-33,
-8,
-41,
-19,
-67,
-32,
-19,
28,
15,
41,
-8,
-24,
-8,
102,
-30,
1,
1,
44,
39,
-68,
-6,
-1,
51,
16,
-46,
3,
4,
-89,
-11,
-9,
-45,
-7,
0,
39,
0,
63,
-31,
-10,
20,
-10,
-32,
8,
2,
16,
13,
2,
-8,
-17,
-37,
6,
-6,
-72,
15,
17,
3,
4,
32,
-28,
-32,
-41,
58,
33,
-35,
1,
-37,
20,
16,
-19,
13,
-16,
1,
-14,
67,
-49,
-3,
5,
-69,
-21,
36,
58,
-75,
35,
14,
64,
14,
-18,
48,
22,
-1,
7,
13,
3,
57,
-13,
60,
42,
53,
-55,
-57,
-16,
71,
-2,
-15,
-14,
26,
8,
57,
31,
16,
0,
-39,
-22,
-2,
-35,
-11,
-1,
-40,
-9,
-45,
-6,
4,
2,
-22,
2,
3,
11,
5,
30,
-5,
-9,
-31,
-18,
74,
-77,
26,
36,
40,
-8,
-72,
0,
-9,
-44,
-42,
-7,
28,
13,
70,
-37,
74,
77,
38,
-30,
-19,
-7,
20,
-9,
10,
10,
19,
-14,
-36,
-20,
4,
-27,
22,
30,
77
] |
Clark, C. J.
Plaintiff, a customer in one of defendant’s stores in Bay City, slipped on the floor, fell, and was injured. Her averment of negligence against defendant is that the floor was oily, greasy, and unsafe. The jury found the fall occasioned by the oily condition of the floor. Plaintiff testified that an employee of defendant was oiling the floor while she was in the store, and, as indicating an accumulation of oil where she fell, testified that her dress, underclothing, and stockings were ruined by the oil. She had verdict and judgment. Defendant has appealed.
The verdict is not against the great weight of the evidence. Defendant’s employees denied that the floor ever had been oiled, and denied that it was oily, as stated by plaintiff. Plaintiff had corroborating testimony of the floor being oily. The question was for the jury and its verdict must stand.
Whether it is proper to oil a floor during business hours and while the store is open to customers, we need express no opinion. Conceding that it is not negligence per se to have an oiled floor in a store (Narregang v. Great Atlantic & Pacific Tea Co., 224 Mich. 179) or to apply oil to a floor if it is done in a proper manner so it is not in different condition from that usual with oiled floors, there is evidence here of an unusual condition, such an accumulation of oil where plaintiff fell as to ruin not only her outer garments but her underclothing as well. This is evidence of negligence, and sustains the verdict.
Authorities on the question are reviewed in note 58 A. L. R. 142. See, also, Bowden v. S. H. Kress & Co., 198 N. C. 559 (152 S. E. 625); Benesch & Sons v. Ferkler, 153 Md. 680 (139 Atl. 557); Parker v. Great Atlantic & Pacific Tea Co., 201 N. C. 691 (161 S. E. 209).
There is no reversible error. Afflrmed.
McDonald, Potter, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred.
duty of store or shopkeeper toward customer as to condition of premises, see annotation in 21 L. R. A. (N. S.) 456; L. R. A. 1915F, 572; 33 A. L. R. 181; 43 A. L. R. 866; 46 A. L. R. 1111; 58 A. L. R. 136. | [
-32,
24,
9,
-9,
0,
-9,
28,
-9,
4,
38,
33,
4,
30,
-10,
35,
-14,
0,
35,
1,
-30,
31,
-60,
-26,
-1,
-25,
-14,
-6,
-68,
-17,
81,
-42,
25,
23,
-51,
21,
69,
23,
43,
-5,
-40,
8,
32,
52,
-7,
9,
22,
8,
-2,
48,
1,
18,
4,
-29,
4,
22,
5,
-25,
32,
-2,
9,
6,
4,
32,
-57,
67,
-23,
-32,
16,
-4,
47,
-11,
54,
13,
-40,
-16,
-9,
-64,
25,
-42,
24,
17,
-4,
36,
9,
-3,
16,
-30,
28,
-37,
-45,
-8,
0,
-18,
-13,
-30,
40,
-10,
13,
21,
3,
-21,
21,
-13,
6,
-37,
39,
11,
-32,
-63,
28,
-11,
39,
-19,
25,
-18,
19,
77,
1,
-71,
-18,
61,
26,
6,
-6,
-15,
-14,
13,
-23,
-1,
-11,
-4,
21,
-7,
-12,
-2,
-10,
9,
17,
-27,
6,
34,
59,
-6,
-10,
-15,
15,
-35,
30,
-50,
-16,
-20,
63,
8,
-10,
20,
-21,
-24,
8,
6,
-12,
5,
-4,
-6,
-22,
-16,
-36,
-21,
30,
-20,
-8,
64,
-43,
-24,
-52,
37,
19,
36,
-27,
-54,
-28,
-12,
-27,
-2,
-1,
-6,
12,
-59,
-47,
-5,
2,
-12,
0,
-34,
-32,
-24,
-17,
10,
77,
51,
-58,
-34,
-41,
-22,
-54,
38,
34,
-54,
-29,
2,
-25,
2,
27,
-31,
-58,
-22,
-60,
0,
-74,
5,
-29,
-44,
-5,
24,
18,
8,
-15,
19,
2,
9,
5,
-47,
15,
16,
-77,
44,
47,
9,
-54,
59,
18,
43,
20,
-27,
16,
-81,
1,
-25,
52,
-9,
33,
44,
12,
13,
28,
-26,
7,
19,
0,
-26,
0,
13,
42,
-40,
-17,
29,
1,
31,
23,
-41,
-13,
-20,
-1,
32,
12,
-27,
-42,
-22,
10,
48,
26,
-22,
-1,
5,
-5,
-42,
61,
-36,
14,
6,
5,
17,
-4,
-27,
-5,
62,
-11,
53,
11,
-68,
-36,
-7,
18,
1,
6,
12,
49,
13,
-3,
11,
-82,
33,
-32,
-21,
24,
4,
-2,
34,
23,
58,
-22,
-40,
-23,
-12,
-20,
-29,
-58,
44,
-113,
25,
-34,
5,
-40,
12,
11,
-9,
4,
13,
36,
-42,
14,
36,
2,
0,
-10,
-14,
43,
11,
-40,
-32,
-19,
-1,
-78,
71,
0,
40,
0,
28,
12,
-29,
12,
20,
-72,
28,
-20,
-22,
18,
12,
-33,
0,
59,
-8,
-51,
7,
2,
-66,
-67,
12,
-35,
20,
21,
-3,
-80,
35,
-67,
-39,
-14,
1,
-22,
-22,
7,
-17,
0,
39,
28,
2,
-5,
-56,
-1,
-21,
26,
-12,
43,
41,
-27,
-48,
-61,
49,
-65,
42,
0,
10,
-8,
-37,
-11,
-36,
-14,
48,
-22,
26,
-7,
33,
-23,
0,
-31,
46,
-34,
1,
14,
5,
-12,
-25,
22,
-19,
19,
-20,
-1,
-18,
12,
-6,
5,
-54,
-9,
-40,
-2,
27,
43,
26,
45,
18,
-19,
31,
-51,
59,
16,
40,
0,
28,
14,
63,
-7,
52,
5,
-35,
-8,
65,
-15,
-4,
-55,
15,
6,
-10,
-11,
44,
35,
16,
22,
-11,
11,
4,
-5,
12,
56,
11,
5,
-32,
-15,
18,
-34,
-17,
9,
21,
6,
-32,
-29,
-9,
13,
-41,
25,
-49,
-41,
-28,
-79,
-9,
-18,
32,
-81,
-60,
8,
-5,
-10,
-47,
-11,
29,
-13,
35,
-24,
-7,
32,
-50,
11,
27,
-25,
-38,
28,
1,
-28,
-23,
-1,
0,
-32,
49,
26,
-10,
-5,
48,
19,
44,
-25,
33,
-20,
-6,
31,
11,
26,
17,
13,
-14,
6,
2,
79,
39,
38,
-12,
-18,
35,
-16,
32,
13,
8,
19,
-54,
40,
-1,
23,
42,
8,
22,
24,
85,
12,
-65,
5,
51,
16,
-21,
-4,
-20,
48,
-50,
2,
20,
36,
21,
-16,
-74,
22,
26,
41,
6,
19,
-20,
-56,
34,
-39,
30,
-4,
-2,
-47,
42,
-43,
8,
-12,
-25,
-8,
23,
10,
-9,
-53,
-8,
-32,
18,
-27,
-4,
-32,
-6,
18,
3,
34,
-4,
42,
-28,
9,
-8,
-3,
-43,
19,
-21,
-6,
-1,
-47,
-33,
40,
30,
-20,
-35,
6,
41,
-17,
-52,
-75,
58,
4,
24,
43,
25,
-17,
37,
3,
36,
-15,
39,
9,
17,
-13,
37,
-13,
32,
16,
-43,
-19,
-27,
1,
-27,
25,
24,
13,
1,
-7,
7,
-28,
-38,
86,
14,
39,
32,
26,
-14,
-1,
-51,
18,
-1,
19,
110,
-72,
-4,
-21,
30,
7,
6,
-81,
-44,
-7,
14,
0,
26,
28,
30,
-39,
23,
-28,
1,
1,
49,
28,
23,
6,
-43,
7,
14,
-4,
-32,
48,
-32,
46,
33,
31,
-71,
0,
-18,
-17,
-14,
-47,
45,
-16,
2,
7,
26,
37,
33,
17,
9,
-7,
0,
32,
-24,
15,
-25,
4,
25,
-23,
35,
69,
-37,
-31,
-45,
9,
37,
10,
12,
31,
16,
29,
4,
-18,
-4,
-45,
9,
-10,
-38,
-42,
-3,
0,
22,
-49,
-4,
23,
-9,
-31,
11,
-13,
16,
30,
9,
-6,
-63,
47,
4,
-62,
39,
-11,
15,
-22,
70,
17,
-35,
4,
13,
-19,
3,
14,
-8,
28,
-32,
-35,
-20,
-12,
-18,
38,
-32,
-48,
3,
5,
8,
-17,
11,
25,
-22,
0,
-11,
-15,
16,
-72,
16,
-11,
15,
24,
26,
-9,
-35,
18,
47,
-3,
-20,
-58,
-5,
-35,
-31,
-31,
-29,
-2,
-15,
-11,
13,
31,
-21,
43,
14,
-34,
17,
-24,
-23,
27,
0,
46,
24,
-11,
-11,
21,
-13,
-10,
45,
-38,
16,
-4,
14,
-35,
-23,
-19,
19,
73,
-24,
16,
-61,
-29,
-15,
11,
4,
47,
30,
32,
18,
44,
-10,
-5,
-13,
25,
-16,
-37,
6,
24,
14,
-24,
21,
18,
13,
0,
-14,
-40,
-38,
33,
-14,
-16,
27,
-31,
-54,
-25,
32,
-13,
-4,
-52,
-9,
36,
-9,
19,
-15,
2,
-13,
-25,
-4,
0,
-14,
24,
24,
7,
51,
91,
-8,
27,
-4,
21,
3,
7,
14,
25,
-19,
11,
-16,
-2,
-14,
-3,
-43,
-44,
18,
37,
-20,
-12,
-5,
-66,
-28,
-2,
-9,
8,
29,
7,
-72,
-56,
-7,
3,
8,
28,
3,
33,
-53,
26,
-40,
-30,
-6,
12,
-54,
20,
-24,
13,
-8,
61,
40,
18,
27,
-3,
-55,
-46,
6,
-53,
11,
-17,
-18,
-34,
-16,
-14,
-31,
67,
4,
-26,
-34,
17,
0,
-14,
-34,
5,
-7,
-7,
-15,
-25,
92,
0,
-42,
24,
-25,
40,
3,
-31,
29,
6,
-24,
32,
32,
16,
55,
-18,
31,
3,
-49,
13,
43,
29,
-32,
36,
-28,
-21,
11,
3,
8,
35,
-15,
-5
] |
Wiest, J.
On January 9, 1930, plaintiff, while in the employ of defendant, received an injury to his left hand. He received compensation for a few weeks and then returned to his former employment and wage. May 12, 1930, he met with another accident, which fractured ribs. Report of this accident was filed June 16, 1930. Compensation was agreed upon, approved, paid, and final receipt, signed by plaintiff, was filed July 3, 1930. No approval of the receipt appears. December 15, 1930, plaintiff filed an application for. further compensation for the injury to his hand. January 27, 1931, this petition was denied, and no appeal taken. March 3, 1931, plaintiff filed another petition for further compensation for injury to his hand and stated therein :
“Tour petitioner therefore prays that your honorable commission set this petition for hearing before a commissioner or deputy commissioner so that your petitioner may present proof in support of his claim and that he be granted such relief as he is entitled to under the workmen’s compensation law of Michigan (2 Comp. Laws 1929, § 8407 et seq.).”
Further compensation for the injury to the hand was again denied, but, without any petition therefor or issue joined thereon, compensation was awarded on account of the injuries to his ribs on May 12th. Upon appeal by defendant, this award of compensation was affirmed, and, without appeal by plaintiff, the denial of compensation for the hand declared a nullity. Defendant prosecutes review.
It was found by the deputy commissioner, and affirmed by the board, that the injury to plaintiff’s ribs induced a flare up of dormant tuberculosis.
The deputy commissioner denied an award upon the only issue presented by plaintiff ’s petition. The award made on account of the injury of May 12th was upon an issue raised by the commissioner, without any amendment to the petition, and was supported, if at all, by medical witnesses selected by the commissioner and present, without pay, at his request.
Upon appeal from the award of compensation under such injected issue, the commission not only sustained the award, but held that denial of an award, under the only petition filed by the plaintiff, was a nullity. Such denial of the petition before the deputy commissioner was not a nullity but an adjudication upon the sole issue presented by plaintiff, and the holding of the deputy was not before the commission for review by appeal of plaintiff or defendant. The declaration by the commission that the order denying compensation for injury to the hand was a nullity was itself a nullity.
But it is said that 'defendant did not counter the petition, as filed by plaintiff, by formal denial, and this permitted enlargement of the issue. If the issue was to be enlarged, an amendment to the petition, at least, was required with notice to defendant and opportunity to make denial thereof. There is no merit in such claim, because no award was made upon plaintiff’s petition as filed, and at no time was the petition amended to include the claim upon which the award of compensation was made, and, of course, there could be no formal denial without a formal allegation of liability.
Defendant was entitled to a hearing, after notice of a petition made by plaintiff, and was not required to submit to an issue volunteered by the deputy commissioner, and was in any event entitled to a determination of issues of fact, in the first instance, by an official not engaged in procuring evidence to be submitted to himself.
While strict rules of court procedure may not be applicable to proceedings under the workmen’s compensation law, no deputy commissioner may decide an issue injected on his own motion, and in support of which he takes part in procuring evidence.
A proper petition is jurisdictional, and, under the petition filed by plaintiff, no such award as made can be upheld. The only petition filed was denied, and plaintiff prosecuted no appeal. Such denial ended jurisdiction.
Impertinent statements and unfounded accusations are made in the brief of counsel for plaintiff, and defendant moves that such matters be struck out. The motion is unopposed and is granted, with costs of the motion to defendant. The brief, with such expurgation, may remain on file.
The award is vacated, with costs to defendant.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
-27,
-22,
-13,
28,
1,
20,
-4,
-3,
-17,
47,
-56,
-31,
62,
-41,
-16,
28,
38,
42,
-11,
21,
-1,
-18,
-2,
-25,
-18,
8,
11,
4,
-9,
-10,
4,
-14,
1,
17,
-60,
-53,
38,
11,
12,
-9,
32,
-20,
-20,
3,
1,
-45,
-11,
-5,
9,
-76,
6,
0,
11,
-51,
-20,
-24,
25,
-25,
5,
2,
-12,
1,
-21,
0,
0,
4,
1,
22,
-18,
8,
-45,
1,
-7,
-47,
-31,
-1,
-52,
19,
-34,
-13,
12,
-33,
14,
-2,
-50,
83,
-25,
-3,
-15,
0,
3,
25,
-7,
-19,
-9,
-4,
39,
39,
4,
-11,
-9,
42,
-12,
-16,
18,
0,
2,
-1,
-1,
33,
-10,
1,
12,
7,
13,
-24,
21,
6,
49,
39,
6,
9,
8,
15,
15,
42,
-24,
12,
6,
-10,
30,
20,
-34,
10,
15,
33,
-15,
-51,
0,
25,
7,
37,
-35,
-13,
-31,
-8,
-39,
19,
22,
-35,
-16,
1,
67,
11,
3,
24,
-4,
-7,
44,
-33,
14,
20,
8,
0,
15,
-27,
45,
20,
29,
16,
30,
-9,
49,
-63,
7,
35,
71,
-25,
-63,
42,
-3,
16,
35,
-31,
1,
-28,
-10,
-24,
47,
-38,
-10,
-34,
-20,
-14,
-15,
16,
13,
-34,
13,
1,
32,
-76,
-13,
-1,
-40,
66,
56,
-5,
37,
-10,
-16,
-27,
-6,
-57,
-13,
7,
19,
42,
-48,
-60,
-11,
51,
38,
0,
-42,
-36,
7,
23,
29,
-3,
-20,
10,
57,
28,
12,
-25,
10,
-25,
66,
29,
-39,
-17,
-32,
-14,
-44,
-42,
-52,
-26,
-8,
-26,
32,
19,
-22,
-12,
-63,
-22,
24,
-8,
-47,
-18,
-38,
30,
25,
55,
35,
-12,
2,
45,
-15,
-48,
-27,
-25,
38,
-7,
-31,
-51,
-11,
-5,
56,
30,
-42,
-11,
-10,
23,
5,
-8,
3,
-17,
-54,
0,
48,
-33,
-11,
1,
31,
38,
-15,
-3,
19,
27,
-39,
3,
-25,
4,
-11,
37,
-62,
-12,
34,
-35,
-14,
-29,
50,
-33,
57,
2,
-19,
7,
-2,
-19,
-3,
51,
-30,
-21,
-11,
-1,
-37,
-4,
-27,
-16,
-28,
28,
-20,
32,
-39,
-17,
10,
21,
26,
-11,
57,
47,
30,
11,
-57,
4,
7,
-15,
66,
1,
-28,
-31,
20,
-29,
-54,
50,
30,
-18,
-18,
76,
15,
18,
-7,
40,
-13,
-32,
3,
29,
-15,
43,
-3,
33,
37,
-34,
-26,
0,
-26,
5,
-45,
33,
-15,
42,
18,
8,
-14,
20,
-19,
-3,
3,
-18,
-16,
-3,
41,
40,
-20,
63,
8,
-1,
-13,
23,
-3,
3,
28,
66,
-15,
0,
48,
0,
-37,
12,
38,
1,
3,
-34,
60,
-37,
24,
24,
10,
-47,
45,
26,
-12,
0,
-2,
-47,
26,
-20,
-29,
-53,
16,
0,
5,
-31,
7,
-5,
-15,
4,
0,
-15,
-8,
17,
-8,
-14,
-23,
26,
-37,
-5,
3,
11,
29,
42,
6,
41,
59,
27,
-42,
20,
44,
-10,
-28,
0,
19,
8,
69,
13,
8,
3,
29,
-19,
33,
-3,
-5,
-12,
-1,
-1,
21,
-10,
39,
22,
-8,
41,
-13,
-13,
14,
-7,
-19,
10,
-21,
-33,
24,
-88,
22,
17,
-17,
0,
-81,
7,
-60,
12,
-21,
1,
-30,
-4,
32,
-16,
-10,
-38,
12,
-8,
-68,
28,
-25,
-32,
0,
31,
17,
-5,
-37,
-12,
-46,
-1,
-12,
19,
-39,
-28,
-14,
-19,
-22,
-41,
35,
-29,
25,
0,
41,
-15,
-20,
-39,
-24,
-25,
-2,
-27,
45,
1,
48,
-54,
-60,
-11,
46,
19,
30,
25,
-15,
3,
12,
-18,
48,
34,
15,
-18,
-28,
14,
-21,
22,
3,
10,
8,
25,
4,
44,
-29,
82,
28,
0,
-49,
9,
-25,
-6,
-2,
-8,
31,
-37,
12,
-9,
-31,
-48,
24,
-24,
-44,
0,
14,
7,
-17,
16,
23,
34,
37,
14,
3,
-12,
-33,
19,
-56,
4,
-51,
27,
1,
53,
72,
-68,
-19,
58,
-11,
-13,
-32,
19,
0,
18,
44,
50,
40,
27,
36,
-9,
-24,
37,
3,
-37,
-20,
-21,
1,
-21,
-7,
-74,
7,
50,
-44,
43,
-2,
16,
-10,
14,
31,
2,
-25,
-8,
14,
16,
-49,
-26,
-22,
43,
-13,
-19,
-21,
-8,
28,
-25,
-24,
0,
-20,
-7,
-63,
1,
-29,
8,
50,
2,
24,
38,
68,
25,
55,
-40,
-2,
-64,
-51,
80,
17,
11,
31,
-2,
27,
44,
32,
14,
37,
-15,
19,
-41,
-21,
71,
14,
27,
-3,
3,
-3,
-8,
-43,
-5,
-7,
6,
-35,
8,
-16,
16,
-8,
-31,
1,
-11,
-2,
-42,
-46,
43,
71,
91,
4,
-5,
-15,
-30,
-35,
-33,
0,
-37,
45,
52,
-10,
0,
0,
2,
-12,
-30,
44,
1,
-33,
-28,
-23,
35,
-3,
17,
54,
-24,
14,
-10,
-9,
-30,
48,
-1,
5,
7,
-37,
-20,
-52,
-49,
-5,
0,
-5,
-23,
12,
54,
17,
22,
28,
-6,
-19,
-15,
-50,
3,
2,
-24,
-54,
3,
31,
-78,
-5,
-11,
6,
-36,
-6,
-12,
-8,
-31,
29,
24,
-25,
-41,
-12,
7,
-9,
-21,
-35,
-47,
7,
-36,
45,
-9,
11,
-14,
25,
-18,
25,
22,
-4,
35,
20,
37,
28,
46,
-16,
11,
-14,
-14,
6,
13,
14,
-5,
38,
0,
-6,
-15,
26,
26,
-26,
-61,
54,
-8,
31,
0,
-34,
-13,
-20,
-10,
-39,
5,
16,
20,
-4,
23,
-1,
1,
43,
24,
5,
20,
33,
-79,
10,
16,
-3,
10,
-33,
-61,
18,
20,
-43,
-21,
3,
-69,
30,
-13,
23,
-5,
-31,
-51,
14,
-27,
-48,
-40,
22,
-18,
37,
-18,
4,
-93,
-32,
0,
21,
11,
36,
0,
-9,
-19,
19,
2,
-7,
5,
-14,
13,
-73,
39,
-6,
0,
5,
-15,
12,
-47,
-14,
-5,
29,
32,
-19,
29,
14,
39,
9,
10,
24,
6,
-14,
12,
-11,
-20,
-24,
15,
-26,
-28,
20,
12,
0,
46,
5,
13,
11,
-44,
-9,
-18,
24,
24,
-16,
20,
-2,
-23,
0,
-44,
33,
-13,
13,
-48,
-10,
-54,
48,
7,
-8,
-6,
-17,
-14,
-25,
38,
-21,
73,
23,
5,
6,
4,
9,
24,
-5,
25,
11,
29,
24,
16,
-24,
26,
37,
20,
11,
-11,
5,
7,
35,
33,
-45,
-36,
-11,
-16,
-12,
8,
13,
-27,
7,
-61,
-1,
20,
-42,
-1,
45,
-41,
-48,
-43,
-53,
37,
-42,
8,
15,
-23,
30,
-13,
-3,
3,
9,
1,
-19,
25,
7,
18,
56,
-8,
9,
-5,
16,
42,
-4,
-15,
34,
40,
-60,
-68,
-43,
29,
32,
-6,
30,
34
] |
Wiest, J.
This is an appeal, prosecuted as of right, by plaintiff, from an order setting aside a default and judgment.
The record shows that application .by plaintiff for leave to appeal was denied by this court. Keview, if any, is by mandamus and not by appeal.
Counsel invokes the statute, 3 Comp. Laws 1929, § 15491, and Court Rules Nos. 55 and 60 (1931). The statute relates to final judgments, and plaintiff has no judgment, but* seeks direction, by this court, to have his judgment reinstated. The mentioned rules, while requiring mandamus to be termed an appeal, do not change the law that it is an original writ, and that it does not issue without application and allowance.
Leave to prosecute an appeal in the nature of mandamus was necessary and was not obtained. We, therefore, sua sponte, dismiss the appeal.
Defendant, not having filed a brief at the time this opinion was written, will not recover costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, J J., concurred. | [
-54,
-23,
-8,
17,
-5,
36,
20,
39,
-44,
53,
-3,
-41,
14,
1,
-52,
-19,
23,
24,
-31,
21,
21,
-1,
17,
-3,
20,
-30,
2,
7,
16,
-29,
-3,
-59,
-15,
17,
-48,
-15,
12,
18,
19,
29,
35,
-5,
-8,
7,
-19,
-64,
-16,
-34,
20,
1,
35,
-8,
-49,
-48,
16,
33,
12,
-37,
-9,
5,
-32,
36,
-14,
35,
-18,
47,
-27,
15,
1,
21,
-58,
-29,
8,
-13,
12,
-56,
-3,
14,
11,
-10,
11,
-45,
17,
45,
-4,
58,
-11,
24,
-44,
13,
-7,
35,
-33,
-40,
-48,
36,
43,
-36,
18,
-29,
-14,
29,
-36,
18,
27,
-6,
-32,
-34,
-30,
-28,
30,
3,
5,
0,
-41,
-33,
-46,
-14,
43,
-29,
40,
11,
20,
45,
41,
-2,
-21,
37,
-36,
34,
-9,
19,
8,
61,
7,
1,
-10,
-41,
16,
-40,
46,
-11,
28,
-24,
11,
20,
61,
-14,
-6,
19,
21,
-7,
-10,
28,
15,
33,
22,
-9,
24,
-39,
31,
58,
-46,
-30,
50,
-6,
14,
3,
-9,
15,
12,
10,
-3,
-20,
-9,
45,
14,
-15,
-53,
-26,
-30,
77,
24,
-3,
41,
-7,
-9,
-18,
-26,
-36,
-35,
-17,
31,
37,
21,
17,
23,
18,
54,
0,
-23,
-21,
-7,
-14,
29,
-4,
23,
-16,
-25,
-8,
-69,
36,
-38,
-35,
-22,
-38,
7,
-46,
-30,
28,
-5,
46,
-30,
-11,
-20,
6,
-32,
40,
5,
38,
-24,
-19,
-5,
50,
-28,
17,
39,
16,
45,
-11,
-45,
48,
25,
-40,
-21,
20,
0,
-5,
1,
-16,
21,
7,
-15,
-13,
4,
-74,
-11,
-15,
-46,
-5,
9,
44,
-16,
35,
-32,
12,
11,
3,
-6,
-23,
-23,
13,
30,
-17,
26,
-5,
-52,
9,
-9,
1,
0,
0,
-14,
-42,
-65,
36,
46,
-12,
21,
31,
-28,
-19,
-18,
22,
5,
17,
-9,
25,
3,
-6,
0,
-41,
3,
30,
23,
-57,
-61,
-5,
-18,
-46,
-21,
55,
0,
18,
25,
1,
-58,
10,
-30,
-71,
-19,
-2,
4,
-47,
-8,
-38,
20,
-18,
-21,
3,
-3,
-10,
1,
15,
19,
0,
15,
16,
29,
21,
30,
-16,
-47,
23,
-1,
-35,
-13,
-19,
62,
36,
-21,
23,
-6,
48,
-3,
-45,
-19,
-57,
-36,
49,
36,
3,
-24,
-22,
59,
4,
13,
67,
-25,
6,
-4,
-9,
-17,
-58,
-14,
-14,
-39,
-10,
-51,
23,
-15,
-71,
25,
34,
15,
22,
-11,
29,
4,
8,
-17,
-4,
39,
2,
-28,
7,
-30,
-5,
0,
50,
-26,
-8,
21,
-3,
-28,
1,
13,
28,
1,
63,
22,
53,
43,
38,
-2,
13,
3,
61,
63,
-5,
-4,
-10,
8,
14,
-16,
-20,
1,
-27,
23,
-36,
7,
-11,
-19,
-24,
-20,
45,
-1,
-46,
6,
29,
-40,
-28,
-27,
-4,
-23,
-15,
-22,
-53,
-13,
16,
3,
16,
47,
8,
19,
-13,
0,
-42,
8,
-29,
58,
-24,
-38,
13,
-15,
-21,
-29,
10,
13,
-24,
-2,
20,
-17,
-3,
-1,
7,
-8,
47,
3,
-11,
11,
17,
-10,
-14,
37,
72,
-39,
-30,
-12,
-40,
0,
-4,
17,
-23,
-11,
-36,
-9,
-26,
-91,
2,
-6,
4,
9,
-5,
54,
-35,
-29,
-60,
61,
10,
-36,
35,
51,
-5,
-19,
66,
-12,
6,
-22,
60,
-39,
-32,
-35,
-2,
-61,
27,
-58,
-12,
18,
7,
30,
2,
36,
-60,
-26,
11,
-46,
-59,
-32,
5,
-42,
2,
-5,
24,
3,
20,
-13,
40,
7,
14,
-36,
1,
-5,
31,
-3,
-13,
-32,
-17,
46,
2,
15,
-27,
-7,
24,
33,
-1,
-4,
10,
-33,
36,
37,
38,
0,
44,
-2,
-9,
8,
-13,
-27,
-53,
-35,
42,
-17,
-70,
-6,
-8,
-19,
-16,
-1,
-48,
-41,
-25,
32,
-45,
-8,
-11,
-13,
0,
3,
51,
-72,
44,
-21,
-6,
-36,
3,
51,
36,
28,
13,
60,
48,
-16,
0,
-9,
-22,
53,
-13,
54,
-7,
29,
11,
-41,
-3,
4,
-33,
44,
-29,
-33,
1,
5,
-16,
33,
-21,
11,
24,
-10,
25,
-14,
-10,
8,
19,
30,
-23,
13,
-30,
26,
-5,
43,
21,
-13,
79,
14,
-30,
6,
-20,
9,
-17,
24,
-14,
28,
-53,
-48,
19,
9,
19,
-21,
45,
7,
6,
42,
-3,
15,
4,
20,
9,
-13,
8,
-38,
-10,
-29,
-17,
-8,
-4,
-27,
-10,
-7,
12,
23,
-21,
26,
65,
-15,
-23,
38,
-1,
22,
22,
23,
-8,
13,
-28,
35,
21,
1,
-19,
-32,
11,
20,
7,
-30,
6,
-29,
-17,
43,
3,
42,
3,
-19,
-16,
35,
-41,
-1,
-34,
34,
30,
8,
-45,
5,
9,
-8,
7,
56,
12,
-75,
9,
-1,
-35,
12,
44,
48,
19,
29,
37,
-35,
46,
17,
-14,
20,
42,
0,
-15,
17,
30,
-60,
-5,
15,
17,
-7,
-8,
-6,
-31,
3,
68,
10,
12,
-40,
-17,
1,
-18,
-15,
-19,
51,
-55,
-3,
9,
16,
21,
57,
16,
-70,
-21,
-55,
91,
25,
-48,
-7,
-31,
-49,
15,
23,
-37,
-23,
-4,
41,
-4,
52,
-38,
-3,
-5,
31,
48,
52,
14,
-2,
30,
-23,
73,
-30,
-43,
3,
-49,
1,
-7,
0,
-19,
-14,
-12,
-19,
-25,
0,
37,
10,
14,
-22,
10,
20,
-32,
-21,
43,
0,
-54,
15,
38,
3,
-15,
2,
-2,
20,
-23,
-18,
-37,
9,
37,
34,
-20,
-39,
6,
3,
35,
-13,
-4,
11,
34,
9,
-20,
-6,
-17,
7,
-11,
40,
66,
24,
-25,
9,
-35,
-53,
8,
38,
-16,
24,
-8,
21,
7,
-26,
12,
19,
-25,
5,
-5,
-13,
22,
-18,
0,
-21,
16,
-32,
0,
-25,
53,
71,
22,
-6,
26,
32,
12,
-41,
-43,
3,
12,
-4,
-58,
65,
36,
41,
-7,
21,
35,
-25,
-2,
-10,
26,
17,
-16,
75,
-10,
-28,
-23,
0,
-21,
-7,
27,
-17,
-42,
5,
-2,
1,
-28,
7,
-24,
12,
-28,
-29,
0,
-34,
-36,
-14,
-9,
24,
11,
-6,
-47,
-13,
3,
-45,
4,
-18,
35,
-28,
8,
-8,
-17,
-30,
-3,
-9,
47,
2,
2,
-25,
-25,
-36,
-33,
0,
28,
15,
37,
0,
29,
-18,
-1,
-6,
-3,
34,
-24,
-31,
-30,
-9,
7,
-12,
56,
-3,
-35,
15,
1,
-44,
17,
4,
1,
-65,
-31,
28,
19,
1,
-19,
1,
42,
-9,
25,
25,
3,
0,
33,
37,
-43,
39,
25,
8,
44,
-52,
-50,
-17,
-2,
39,
51,
-36,
-30,
-50,
-33,
-59,
58,
18,
37,
-6,
-4
] |
Butzel, J.
' In 1925, George M. McCray owed the Palmer National Bank of Danville, Illinois, approximately $53,000, which included $2,400 due for interest and $7,400 representing his liability on indorsements of certain notes made by residents of Canada and discounted at the bank. The bank informed McCray that the bank examiner had objected to the Canadian notes, which had been due for over a year. When the bank insisted upon the payments, McCray invoked the aid of his sister, Yerla E. Yan Doren, a married woman, defendant herein. She resided in Michigan, and, in response to her brother’s request, went to Danville, Illinois, for the very purpose of assisting him. After a conference with the bank officials, who told her of the order of the bank examiner, she gave plaintiff her note for $9,800. Thereupon McCray’s liability on the Canadian notes was discharged, and the notes were placed in an envelope, upon which defendant’s name was written, and left with plaintiff for collection, the payments made thereon to be applied on defendant’s note. Defendant claims that, when she signed the note for $9,800, she was assured by plaintiff’s president, who died' prior to the trial, that she would not be called upon to pay the note, that it was simply being substituted for the Canadian notes in order to satisfy the bank examiner. We are not impressed with this claim, for, as the trial judge found, even if this were true and the testimony admissible, it would constitute an attempt to work a fraud upon the bank examiner,
Defendant returned to Michigan and mailed several renewals of her note to the bank. Several payments made on the Canadian notes were applied on defendant’s obligation. The last renewal note for $9,082.75, dated April 1, 1927, at Danville, Illinois, became due October 1, 1927, at plaintiff bank. The renewal notes were prepared by plaintiff bank and mailed to defendant in Michigan. It is conceded that the amount of the note is correct, that defendant is a married woman and a resident of Michigan, and that under the laws of Illinois, a married woman may become a surety. When the $9,800 note was discounted by the bank, $7,337.59 was used to take up the Canadian notes, and the balance of $2,462.41 was credited by the plaintiff to the account of defendant’s brother, George McCray, and used almost entirely to pay up the past-due interest owed by him to plaintiff. On defendant’s refusal to meet the last renewal note, suit was brought by plaintiff in the Wayne circuit court. Defendant claims that plaintiff cannot recover because defendant is a married woman, and under the laws of Michigan cannot be held liable as a surety. She claims that the contract was made in Michigan, and that, therefore, the law of this State is applicable as the lex loci contractus, that in any event the lex fori is applicable in the present case, and that the public policy of Michigan is opposed to holding a woman responsible on a contract of suretyship, no matter where made. She further contends that plaintiff cannot recover because the note is an accommodation paper given for the benefit of the bank without consideration to plaintiff.
The contract is an Illinois contract. The law of the place of making, “or place of performance,” rather than the law of the domicile of a married woman, governs as to her capacity to contract. A renewal note is regarded as a continuation of the original note. Molsons Bank v. Berman, 224 Mich. 606 (35 A. L. R. 1289); New Jersey Title G. & T. Co. v. McGrath, 246 Mich. 553, 562. In John A. Tolman Co. v. Reed, 115 Mich. 71, we held a contract of guaranty dated in Illinois, signed in Michigan, and mailed to the guarantee in Illinois, where payments, if any, were to be made, was an Illinois contract. See Proposed Final Draft No. 2, § 336, and comment B thereunder of the American Law Institute Restatement of the Conflict of Laws. The law of the place of contracting controls on the question of the capacity of the parties to contract. Bissell v. Lewis, 4 Mich. 450; Wheeler v. Constantine, 39 Mich. 62 (33 Am. Rep. 355); State Bank of Eldorado v. Maxson, 123 Mich. 250 (81 Am. St. Rep. 196); Millar v. Hilton, 189 Mich. 635; John A. Tolman Co. v. Reed, supra; Amos v. Walter N. Kelley Co., 240 Mich. 257; Buckeye Commercial Savings Bank v. Prologere, 250 Mich. 652.
The question whether the courts of this State will enforce a contract of suretyship made in a foreign State by a married woman and a resident of Michigan, when such foreign State permits a married woman to become surety, is one of first impression in this State. It has been frequently passed upon, however, by Federal courts and tribunals in many other States. Defendant relies on the case of Union Trust Co. v. Grosman, 245 U. S. 412 (38 Sup. Ct. 147), and decisions in a very few other States. The case of Union Trust Co. v. Grosman, supra, is against the great weight of authority in this country. See 18 Columbia Law Review, p. 482; 27 Yale Law Review, p. 816; Goodrich on Conflict of Laws, p. 217. In Millar v. Hilton, supra, liability was en forced against a married woman domiciled in Michigan on a note executed by her in Ontario as surety for her husband at a time when her domicile was in Ontario. In that case Mr. Justice Steere stated:
“It is also well settled in this State, in harmony with the prevailing, rule elsewhere, that foreign contracts, when the subject of litigation in this jurisdiction, are to be given effect, interpreted, and the contractual rights of the contending parties determined according to appropriate statutes and decisions of the territory where the contract was entered into, unless by some provision of the contract it is manifest the parties have otherwise intended and agreed. Douglass v. Paine, 141 Mich. 485. The promissory note upon which the action is based is clearly a foreign contract without qualification, intended to be performed where made. It was negotiated, dated, signed, indorsed, delivered, and made payable in Toronto, Ontario, where all parties in interest then resided. It was not paid there or elsewhere. Actions upon commercial paper are transitory, and the creditor may pursue and sue the debtor in any State where his person or property can be found; but the contractual rights of the parties are tested by the law of the place of contract, as before stated. ’ ’
The facts in this case differ somewhat from those dn the instant case, in that defendant was domiciled in Ontario when the contract was made.
In Thompson v. Taylor, 66 N. J. Law, 253, 258 (49 Atl. 544, 54 L. R. A. 585, 88 Am. St. Rep. 485), the court said:
“The distinction between regulative legislation and the adoption of a principle of public law is too important to be lost sight of. To declare, as the common law did, that the welfare of society required that wives be incapable of making contracts, is an illustration of the adoption of a principle which, so long as it was adhered to, constituted a rule of public policy. When, however, civilized States became satisfied that the welfare of society was not best served by the maintenance of this principle, it was abandoned, by the recognition of its opposite, viz., that married women possessed capacity- to contract. * * * (Quoting from an earlier New Jersey case.)
“ ‘There can be no question but that the eontraet was valid by the law of Illinois. It is, therefore, the duty of the courts of this State to recognize and enforce it, unless it appears injurious to the interests of the State or of our citizens. But nothing approaching this result can be deduced solely from the fact that the foreign State confers upon a married woman the power to make a contract of suretyship. * * * Whatever may be our opinion of the policy of legislation beyond our State, we are bound by the principles of comity to recognize its validity, unless it clearly contravenes the principles of public morality, or attacks the interests of the body of the citizens of our State.’ ”
The whole question is so ably presented in International Harvester Co. v. McAdam, 142 Wis. 114 (124 N. W. 1042, 26 L. R. A. [N. S.] 774, 20 Ann. Cas. 614), that we have quoted the following excerpt from it:
“A contract under the foregoing is not, necessarily, contrary to the public policy of a State, merely because it could not validly have been made there, nor is it one to which comity will not be extended, merely because the making of such contracts in the place of the forum is prohibited, general statements' to the contrary notwithstanding. In Milliken v. Pratt, 125 Mass. 374 (28 Am. Rep. 241), the court remarked substantially, even a contract expressly prohibited by the statutes of the State in which the suit is brought, if not in itself immoral (the term ‘immoral’ being used in the broadest sense), is not, necessarily, nor usually, deemed so invalid that the comity of the State, as administered by its courts, will refuse to entertain an action under all circumstances to enforce it. There must be something inherently-bad about it, something shocking to one’s sense of what is right as measured by moral standards, in the judgment of the courts, something pernicious and injurious to the public welfare. In Grreenhood on Public Policy, at page 46, cited by counsel, the following rule is deduced from the authorities cited:
“ ‘When a contract is valid under the public policy of the State where made, it will be enforced in another State, although the same would, by the statute laws of the latter State, be void, unless its enforcement would exhibit to the citizens of the State an example pernicious and detestable. ’
“It will occur to one, on a moment’s reflection, that the last foregoing rule could not be otherwise, else the doctrine that a contract valid at the place where made is valid and, generally speaking, enforceable everywhere, would be wholly nullified as to foreign contracts which would not be valid if made in the place enforcement is sought. The rule would be useless since, in every case of such a contract, it would never be enforceable except in the place where made. The correctness of the rule and the absurdity of the idea that every contract which, if made in the jurisdictión of the forum, would not be valid, cannot be enforced there, are so clear. * * * If there is any ground for saying that they are inherently harmful, it is referable, solely, to the ancient common-law rule of disability, the reason whereof reaching to the present, is but little more than a shadow, a rule which, in great part, was changed by legislation long ago. That such contracts are not to be regarded as inherently harmful, is evidenced by the fact that they are permitted by the written law of a large portion of the States and in most others legislation in that direction is progressive. It is further evidenced by the fact that they are recognized as not inherently bad by substantially all the courts of this country. The exceptions are not significant. This court, except as restrained by principle and the great weight of authority, is free to take its own stand, to declare for this State what shall be, in the particular situation, its public policy, till the source for written law shall have acted in the matter. The court cannot say that such contracts are against public policy merely because they have not the sanction of the common law as we have seen. * # * How can the court say that it should be so classed, that it should be located within the broadest possible boundaries of the immoral, the inherently bad? Nearly all the common-law disabilities of women to contract have been removed. They can acquire and enjoy property and make all contracts necessary or convenient in that regard. • They can, in equity, charge their property substantially at will. There is little left of a business nature which men can do that they cannot do. They have nearly all the rights of men, and some besides, and on all sides are making pressing claims with distinguished support for what is yet withheld not very firmly nor perhaps very logically. How can the ordinary business contract in question, so common among men of ordinary perceptions, be said to be contrary to any policy of this State heretofore, or which should now be, adjudged bad in the interest of good'morals?”
To like effect are: Law v. Smith, 68 N. J. Eq. 81 (59 Atl. 327); Bowles v. Field, 83 Fed. 886; Milliken v. Pratt, 125 Mass. 374 (28 Am. Rep. 241); Brigham v. Gilmartin, 58 N. H. 346; R. S. Barbee & Co. v. Bevins, Hopkins & Co., 176 Ky. 113 (195 S. W. 154); Meier & Frank Co. v. Bruce, 30 Idaho, 732 (168 Pac. 5); C. I. T. Corp. v. Sanderson, 43 Fed. (2d) 985.
Defendant could not show by parol testimony a contemporaneous agreement varying the terms of the note. Anderson v. Engard, 236 Mich. 221. The note was an accommodation note as between defendant and her brother, George M. McCray, and was not such as between the bank and defendant under the negotiable instruments law. See 2 Comp. Laws 1929, §§ 9274, 9278.
The court properly found defendant liable for the amount of the note, together with interest, in the amount of $12,051.55. The judgment is affirmed, with costs to plaintiff.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred.
conflict of laws as to capacity of married woman to contract, see annotation in 57 L. R. A. 513; 26 L. R. A. (N. S.) 764; L. R. A. 1916A, 1055; 18 A. L. R. 1516; 71 A. L. R. 744. | [
16,
7,
-28,
-23,
-49,
-21,
51,
-25,
-26,
23,
-6,
-2,
27,
-12,
-30,
-6,
28,
-20,
32,
-21,
-32,
-48,
6,
-15,
-41,
49,
-20,
-24,
-23,
21,
-8,
30,
-33,
46,
17,
6,
28,
8,
27,
-2,
-30,
-52,
35,
39,
-42,
-13,
-6,
-45,
11,
7,
48,
-28,
56,
28,
-39,
-5,
-13,
2,
-42,
-16,
-10,
-85,
54,
-36,
16,
-49,
-7,
-2,
11,
-19,
1,
-14,
-13,
-18,
-54,
4,
-2,
1,
-37,
-46,
-11,
-75,
5,
2,
-16,
-11,
-16,
-17,
-18,
4,
10,
25,
-14,
31,
1,
0,
-33,
16,
47,
-14,
32,
-85,
-34,
31,
-5,
13,
11,
-33,
-6,
17,
-3,
18,
46,
1,
-9,
-37,
1,
14,
-1,
3,
-34,
-4,
0,
-34,
-6,
-4,
-6,
-8,
2,
-7,
4,
19,
-5,
15,
-52,
-43,
-3,
-10,
48,
0,
7,
24,
-4,
15,
-12,
-15,
20,
-47,
0,
-12,
-31,
23,
26,
65,
-10,
-12,
10,
-38,
0,
-44,
-30,
-25,
40,
-26,
-27,
-18,
-8,
15,
12,
-33,
40,
13,
-23,
12,
29,
-2,
0,
-50,
-12,
-27,
-32,
67,
2,
-59,
45,
-1,
-42,
-37,
31,
28,
8,
-23,
-13,
44,
-4,
60,
-19,
-13,
101,
-59,
44,
-8,
25,
-13,
-29,
0,
52,
-25,
-21,
-8,
11,
-8,
-6,
-30,
-70,
36,
22,
-25,
-3,
-6,
-5,
12,
-23,
61,
-2,
-52,
39,
-25,
18,
-10,
-1,
-3,
4,
42,
3,
99,
81,
-28,
-14,
-5,
-16,
-30,
14,
-23,
7,
61,
-41,
-17,
-9,
-2,
-11,
19,
-17,
60,
-33,
45,
40,
-26,
-17,
8,
-55,
16,
-57,
14,
23,
-4,
-6,
22,
-12,
20,
77,
-52,
16,
20,
-9,
-67,
51,
-45,
-16,
-3,
24,
17,
-21,
29,
16,
-35,
-28,
8,
20,
36,
-6,
17,
19,
-5,
55,
8,
51,
-33,
-7,
54,
9,
-24,
-3,
-20,
-2,
0,
9,
26,
-73,
-38,
9,
32,
-4,
-31,
71,
-13,
17,
-34,
50,
36,
-25,
-25,
-4,
3,
-17,
29,
-6,
-20,
-15,
-14,
-13,
-12,
-1,
46,
-29,
-24,
13,
30,
38,
-47,
-19,
-42,
-45,
0,
-12,
-25,
-32,
-11,
-17,
-11,
2,
26,
-38,
52,
-1,
32,
23,
17,
1,
10,
15,
4,
10,
-28,
22,
-7,
-11,
-12,
10,
101,
65,
35,
-64,
-48,
9,
49,
-7,
-15,
-14,
19,
-48,
9,
1,
27,
-14,
-21,
-18,
-55,
-25,
25,
-69,
35,
-7,
20,
-29,
-32,
19,
8,
-15,
-67,
0,
55,
28,
-31,
-46,
-41,
6,
-7,
-7,
-2,
1,
8,
-20,
41,
-2,
5,
1,
-20,
-18,
3,
-4,
58,
-3,
4,
55,
-28,
-38,
20,
34,
-27,
-14,
55,
33,
-16,
19,
-68,
2,
52,
29,
11,
23,
20,
2,
10,
-9,
48,
-10,
-22,
28,
-59,
36,
-28,
-16,
-13,
5,
7,
2,
37,
-42,
-32,
26,
-14,
56,
41,
2,
-22,
16,
-28,
23,
53,
13,
12,
8,
-14,
-18,
-6,
16,
-17,
-10,
90,
-10,
-6,
-9,
-46,
-41,
-60,
-76,
-33,
-75,
34,
46,
-46,
-47,
42,
6,
3,
10,
-24,
-17,
-7,
-34,
-1,
47,
32,
25,
11,
4,
-24,
10,
-4,
-8,
0,
8,
47,
-5,
29,
4,
30,
-8,
82,
-2,
20,
-35,
21,
-6,
4,
9,
-23,
0,
24,
20,
-9,
-35,
-2,
-16,
-10,
36,
38,
-24,
-3,
-33,
23,
15,
49,
-32,
-16,
-20,
3,
-24,
-8,
24,
-30,
48,
-33,
1,
-5,
8,
-10,
-60,
-32,
-46,
51,
-15,
-23,
39,
-19,
-4,
0,
21,
-120,
-7,
-7,
-13,
-7,
26,
-4,
-5,
1,
-3,
0,
26,
-22,
-9,
-36,
-32,
74,
11,
27,
16,
46,
38,
15,
13,
-3,
3,
-9,
-10,
-5,
23,
23,
8,
-29,
-32,
15,
34,
-13,
-30,
43,
34,
-39,
10,
-1,
22,
11,
4,
-71,
-33,
-51,
7,
17,
-4,
8,
57,
27,
-28,
35,
29,
-5,
2,
-4,
32,
-23,
25,
31,
-49,
-19,
6,
35,
-6,
25,
-46,
57,
7,
15,
-22,
-15,
-15,
35,
-1,
-22,
1,
24,
61,
17,
11,
-18,
31,
-31,
-28,
8,
23,
-3,
-19,
-8,
-3,
30,
8,
0,
15,
23,
-30,
-43,
41,
-34,
54,
-19,
-31,
14,
19,
-40,
2,
30,
18,
26,
-8,
-28,
-25,
15,
-2,
-1,
24,
17,
-41,
39,
-3,
-26,
7,
-11,
-31,
-15,
40,
9,
-13,
8,
-59,
23,
-28,
-9,
2,
23,
-5,
0,
-13,
-69,
12,
-9,
12,
7,
-18,
-19,
-24,
-20,
63,
1,
-2,
5,
16,
-10,
14,
42,
24,
15,
-37,
-17,
12,
28,
-36,
0,
2,
-2,
-6,
58,
-32,
-35,
1,
-28,
-10,
0,
9,
3,
-14,
8,
4,
29,
-12,
36,
-15,
-5,
0,
-36,
-34,
47,
23,
-34,
1,
-8,
-28,
-21,
-44,
-13,
-37,
2,
-10,
37,
-18,
9,
-4,
-24,
50,
28,
53,
19,
17,
23,
22,
-53,
17,
22,
14,
33,
0,
11,
-1,
-38,
-19,
23,
12,
-32,
-25,
8,
-22,
-8,
-45,
13,
10,
9,
15,
13,
-15,
6,
9,
-18,
32,
-7,
-29,
22,
23,
-19,
-28,
-6,
-28,
36,
-10,
-20,
-5,
32,
-30,
-7,
-70,
-2,
-7,
16,
5,
-13,
8,
13,
-1,
13,
-23,
-13,
-35,
-36,
-47,
25,
18,
45,
15,
22,
13,
-21,
12,
8,
1,
-7,
-40,
-7,
-16,
44,
-12,
-31,
32,
-15,
-37,
-58,
34,
-23,
-7,
34,
21,
-40,
-11,
34,
-33,
3,
43,
43,
17,
-37,
36,
44,
-33,
18,
-2,
24,
3,
36,
35,
50,
-23,
-15,
-16,
43,
-36,
-70,
-54,
-7,
3,
-39,
47,
-10,
27,
6,
-26,
-54,
47,
63,
-13,
59,
-28,
37,
16,
-8,
-4,
10,
6,
5,
36,
22,
4,
-16,
0,
8,
-25,
22,
-2,
13,
19,
9,
-17,
22,
-8,
44,
7,
32,
11,
5,
-14,
-51,
4,
-3,
2,
0,
-11,
13,
-18,
6,
4,
-53,
-11,
28,
-15,
0,
29,
39,
-47,
-32,
-49,
1,
1,
-24,
-7,
18,
22,
-13,
49,
-10,
-24,
7,
15,
11,
-38,
-25,
-30,
-40,
-19,
-21,
30,
-17,
0,
-53,
36,
21,
-38,
39,
49,
-36,
-33,
2,
-38,
-6,
51,
-52,
-8,
37,
24,
-37,
54,
24,
-6,
1,
6,
-5,
50,
19,
-37,
-64,
0,
-4,
15,
29,
-10,
-20,
41,
14,
6,
9,
48,
-6,
25,
1,
-34,
43,
-5,
62
] |
Fead, J.
This is mandamus to compel the secretary of State to issue plaintiff a certificate of registration as a manufacturer of wort, under Act No. 100, Pub. Acts 1931. Defendant claims tbe act invests him with discretion to grant or refuse licenses and justifies refusal upon grounds thus stated in defendant’s brief:
“The answer to the petition in this case shows that petitioner did manufacture wort from Au gust 24 to September 28, 1932, without the consent of the respondent, and that petitioner did not apply for a certificate of registration to manufacture wort until September 28, 1932, after he was notified to discontinue business. It also shows that petitioner did not purchase enough malt tax stamps to pay the tax on all the wort sold by him during that period. In addition to this it shows that petitioner neglected to inform the respondent’s agents as to the true ownership of said business and that it was necessary to keep inspectors on the premises where petitioner manufactured wort almost continuously to check the amount of wort sold by him. It further shows that petitioner has no property and had to borrow the money with which to start business and that he has not paid his full rent since that time.”
In addition, it is claimed that plaintiff has been convicted in Federal court of possession of smuggled -liquor. While not alleged in the return to the order to show cause, the claim is mentioned because of its relation to the power of the secretary of State.
Act No. 100, Pub. Acts 1931, superseded Act No. 304, Pub. Acts 1929,1 Comp. Laws 1929, §§ 3619-3629, which provided a “privilege tax,” by way of stamp tax per gallon or pound, on the business of selling or manufacturing malt syrup or malt extract or wort for other than medicinal or commercial baking purposes. The title to Act No. 100 begins, “An act to impose a privilege tax,” etc. It provides a stamp tax per gallon or pound on malt syrup, malt extract, liquid malt, or wort, and a “privilege tax” upon automobiles used in the business of selling or transporting such products. In addition, it requires manufacturers and sellers of the products to register with the secretary of State and to pay “registration fees.” The provisions of the act, of interest here, are (italics onrs):
“Section 1. * * * No person shall engage in the business defined herein as that of manufacturer of said articles unless he is the holder of a certificate of registration so to do issued as herein provided which is still in effect. Such certificate of registration shall be issued by the secretary of State upon the filing of a written application, accompanied by a registration fee of two hundred fifty dollars. * * * Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, ’ ’. etc.
“Sec. 3. The secretary of State may revoke any certificate issued as provided herein for any failure to comply with or any violation of the provisions of this act, upon four days’ notice in writing of, and a hearing on the charges upon which such revocation is contemplated. * * * The secretary of State may refuse to issue a new or subsequent certificate to the holder of or former possessor of a certificate hereunder who shall have failed.to comply with or shall have violated any provision of .this act. * * *
“Sec. 12. The secretary of State or his assistants are hereby authorized' and empowered to examine the books, papers and records of any distributor, dealer, or manufacturer in this State for the purpose of determining whether the tax as imposed by this act has been fully paid, and shall have power to investigate and examine according to law any premises where such malt syrup or malt extract or liquid malt or wort is manufactured, possessed, or stored for the purpose of sale, or sold, for the purpose of determining whether the provisions of this act are being obeyed. Any refusal to permit such examination of said books, papers and records or the investigation and examination of snch premises, shall constitute sufficient reason for the revocation of a certificate or the refusal to issue a certificate and shall be deemed a misdemeanor punishable as provided in section thirteen of this act.”
Section 18 distributes the tax, after payment of necessary expenses in the enforcement of the act, for the care of tuberculosis patients and provides for the construction of a tuberculosis sanatorium at a cost not to exceed $400,000.
The affinity between malt products, especially wort, and beer with alcoholic content and effect is so close that there can be no doubt of the general power of the legislature to control the traffic in them by license, taxation, or otherwise. We are not here concerned with limitations on the power because it is conceded that Act No. 100 is valid.
The power to license, however, does not presuppose that a statute affecting the business is a license law; nor, if a license law, that discretion is conferred on an officer to grant or refuse licenses. Also, while it is a familiar rule of construction that “shall” may be read as “may” in a statute, or vice versa, it does not follow that such reading is necessary to carry out the purpose of the law. The statute must be examined to ascertain its character and purport.
The title declares the purpose of the act to be to impose a “privilege tax.” The law conforms to the title. The large sums appropriated by section 18 demonstrate that the raising of money is the primary purpose of the law, not regulation of the business. The regulatory provisions are incidental to the collection of the taxes.
The fact that, in section 3, revocation of certificate of registration is provided, with machinery set up, and the permissive “may” is used in connection with the powers of the secretary of State on issuance of a new certificate to a former holder, is persuasive that the use of the imperative “shall” in section 1 with reference to initial registration was not an oversight. The intent of the legislature is put beyond doubt by section 12, which enumerates the conditions under which the secretary of State may refuse first registration, and by such enumeration impliedly excludes all other conditions. For good measure, it may be noted that section 1 carries its own separate penalty clause, thus indicating the intention of the legislature that for the act of engaging in the business without registration one is subject to a specific penalty. The secretary of State is granted no power to add to it the penalty of refusal of registration.
In our opinion, the act confers no discretion on the secretary of State to refuse initial registration, except as it may be found in section 12, and the writ will issue, but without costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred. | [
13,
-36,
1,
15,
19,
1,
11,
34,
-67,
37,
-22,
-15,
81,
-41,
41,
31,
82,
53,
23,
25,
59,
-29,
24,
12,
35,
-43,
-33,
28,
-35,
37,
23,
9,
-18,
-47,
-39,
-14,
-26,
6,
76,
-5,
9,
-5,
-22,
38,
-29,
-26,
-56,
-24,
78,
-4,
12,
-43,
-5,
-10,
35,
14,
-11,
-45,
-33,
31,
0,
9,
46,
16,
5,
-17,
7,
37,
1,
-7,
7,
-50,
-30,
16,
-3,
-65,
10,
29,
35,
46,
-8,
-25,
2,
-39,
6,
53,
-27,
19,
47,
2,
29,
-33,
-42,
-7,
-19,
24,
-9,
40,
42,
-20,
-33,
-30,
-20,
11,
59,
-8,
-5,
16,
-25,
-7,
-15,
-10,
-5,
-48,
29,
-18,
-38,
-37,
-44,
17,
24,
-22,
11,
-3,
-49,
-57,
-42,
13,
-42,
23,
28,
-21,
0,
-22,
14,
37,
-9,
-28,
3,
2,
4,
-11,
-16,
-9,
16,
-32,
21,
40,
8,
-70,
-39,
51,
-2,
-1,
-23,
16,
69,
-9,
4,
-36,
-16,
57,
22,
-35,
-2,
-6,
6,
7,
-51,
-29,
38,
4,
-34,
33,
61,
-7,
41,
7,
-8,
-22,
-69,
-16,
-12,
42,
16,
-6,
-50,
8,
61,
-47,
24,
-30,
37,
-12,
8,
3,
-5,
39,
-3,
-29,
-5,
6,
17,
12,
50,
6,
5,
-10,
-54,
-27,
-52,
-15,
25,
-59,
-38,
-34,
-18,
4,
3,
-7,
-27,
-36,
23,
29,
-38,
-24,
40,
-1,
-27,
-8,
-31,
0,
13,
63,
-4,
-71,
36,
-27,
20,
69,
-27,
7,
-69,
-44,
-42,
0,
-53,
42,
10,
-8,
31,
-21,
-18,
29,
-28,
-40,
14,
-2,
5,
-21,
16,
27,
23,
0,
-16,
-33,
8,
54,
21,
52,
-5,
21,
15,
44,
-15,
-21,
-39,
-15,
18,
-7,
36,
26,
7,
7,
-30,
9,
0,
19,
-6,
-21,
19,
-8,
-42,
5,
-24,
93,
-35,
5,
11,
70,
-12,
-8,
27,
-1,
-2,
-53,
-2,
13,
0,
-54,
-2,
-24,
-30,
5,
43,
-51,
53,
-12,
9,
-38,
-25,
25,
0,
10,
1,
-52,
49,
-30,
24,
4,
-1,
-28,
31,
-54,
-62,
-69,
59,
-25,
-14,
0,
23,
64,
-13,
62,
-34,
13,
-6,
-24,
-4,
-38,
-4,
33,
-2,
46,
0,
-5,
-26,
-13,
-3,
-5,
-8,
-16,
-18,
18,
38,
-15,
-24,
-11,
-3,
-24,
-40,
19,
-7,
-21,
-12,
-60,
-60,
32,
-63,
18,
21,
-21,
-24,
10,
19,
20,
-34,
-64,
-56,
-30,
25,
44,
-14,
-10,
-17,
-42,
6,
-63,
4,
36,
-13,
43,
0,
-18,
-6,
-35,
39,
80,
-22,
6,
-13,
-4,
-9,
-4,
7,
4,
27,
-17,
1,
16,
1,
8,
-31,
-32,
-12,
-94,
-18,
29,
15,
24,
-17,
-12,
-13,
32,
-12,
-18,
7,
4,
50,
1,
-9,
-63,
-68,
-33,
-6,
5,
-55,
29,
48,
-8,
-17,
9,
-32,
17,
31,
43,
26,
43,
33,
2,
-4,
17,
53,
8,
-8,
0,
-8,
-12,
13,
-37,
-21,
65,
27,
12,
-79,
42,
9,
14,
-29,
40,
-23,
38,
-3,
-41,
-22,
-7,
-33,
10,
-27,
6,
54,
-27,
30,
20,
-49,
9,
-35,
-39,
-18,
12,
-10,
-28,
-35,
-1,
8,
10,
15,
68,
70,
44,
-34,
-18,
8,
21,
-35,
-51,
-20,
-1,
-31,
22,
-8,
-11,
-37,
1,
-27,
29,
64,
-47,
22,
-26,
4,
17,
-19,
-19,
-21,
20,
5,
30,
6,
3,
29,
37,
19,
13,
8,
-30,
-7,
-40,
-37,
-43,
-51,
13,
-9,
6,
-18,
7,
-3,
11,
-20,
22,
-27,
13,
-11,
-32,
0,
-38,
2,
-10,
44,
67,
1,
-8,
5,
-2,
-3,
10,
-13,
-42,
-1,
-60,
19,
-13,
89,
-62,
-36,
19,
-53,
3,
0,
-83,
-41,
40,
-45,
39,
-5,
6,
15,
19,
0,
41,
-4,
25,
0,
-1,
-22,
-1,
19,
39,
-41,
6,
26,
19,
18,
9,
-7,
35,
27,
-73,
0,
12,
-53,
30,
-34,
26,
10,
-2,
-9,
-57,
29,
11,
-17,
-29,
-9,
9,
-19,
14,
-39,
57,
4,
-24,
-21,
-26,
-13,
-8,
0,
-6,
81,
40,
18,
32,
-15,
24,
-19,
42,
-47,
5,
-3,
-38,
7,
-10,
9,
-21,
46,
21,
17,
43,
38,
-7,
-15,
26,
53,
-50,
-13,
0,
44,
-50,
2,
61,
-32,
26,
-34,
-3,
48,
-10,
-40,
49,
5,
22,
25,
-61,
-13,
44,
-6,
-38,
-32,
44,
-42,
10,
1,
13,
0,
13,
-12,
57,
-17,
7,
-15,
-44,
60,
5,
19,
-9,
28,
-5,
42,
-61,
-13,
9,
15,
-60,
9,
-15,
20,
-33,
33,
17,
-46,
-24,
4,
-13,
22,
-6,
-2,
-45,
5,
46,
7,
1,
52,
27,
58,
-4,
2,
30,
18,
29,
-23,
-18,
4,
42,
-38,
15,
1,
41,
-29,
2,
-34,
-14,
-5,
-19,
-21,
22,
-2,
13,
-6,
49,
-20,
7,
58,
23,
0,
3,
-19,
-25,
13,
14,
-53,
-45,
33,
5,
53,
-9,
13,
-15,
-32,
-77,
10,
8,
73,
43,
-5,
-24,
47,
2,
-15,
57,
0,
34,
-31,
-17,
31,
-1,
-5,
45,
-5,
-4,
45,
-10,
-18,
-4,
-21,
7,
-10,
-19,
42,
-27,
-4,
2,
-40,
10,
-22,
16,
-14,
0,
1,
-25,
-24,
12,
-13,
-31,
26,
-10,
24,
-17,
0,
3,
33,
-21,
-4,
-41,
-29,
-10,
16,
18,
1,
-13,
33,
6,
-26,
-6,
26,
-37,
-27,
5,
-4,
51,
-4,
-17,
-5,
62,
62,
14,
13,
-10,
-2,
-108,
-44,
6,
16,
50,
-4,
0,
35,
-2,
-8,
-32,
-53,
19,
8,
-22,
-2,
3,
2,
-1,
32,
85,
1,
-3,
-7,
-10,
-14,
-19,
-9,
17,
16,
-2,
5,
-63,
25,
-11,
-51,
8,
34,
-9,
20,
-9,
47,
-55,
-4,
-34,
26,
-36,
2,
3,
-6,
-50,
2,
29,
-19,
0,
91,
4,
-53,
20,
-54,
32,
17,
24,
12,
33,
7,
-26,
34,
20,
-27,
3,
-26,
-35,
47,
-79,
-39,
-18,
21,
-6,
-19,
1,
-40,
3,
41,
-20,
-44,
10,
11,
34,
-62,
19,
-19,
20,
-9,
59,
16,
50,
-20,
-14,
-12,
1,
29,
39,
4,
-27,
-21,
34,
-3,
39,
0,
30,
-12,
26,
23,
37,
-18,
18,
8,
27,
-10,
-19,
1,
0,
-51,
-9,
-16,
35,
-18,
34,
42,
2,
11,
38,
28,
-16,
31,
-49,
-37,
-15,
35,
-37,
-13,
-12,
-7,
-30,
-52,
-43,
-2,
23,
-27,
44,
18,
21,
-10,
-2,
19,
33,
-13,
30
] |
Wiest, J.
The opinion-filed this day in Re Petition of Auditor General, ante, 578, states the issues here involved and controls every question presented. The instant case involves the taxes assessed for the year 1928.
The decree in the circuit court is affirmed, without costs.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred. | [
-60,
36,
-5,
0,
-33,
52,
56,
21,
20,
33,
1,
-24,
26,
-46,
-49,
-14,
35,
32,
2,
40,
19,
24,
3,
1,
-5,
-32,
14,
19,
-25,
0,
4,
-23,
-19,
6,
9,
-51,
20,
-21,
65,
-37,
-11,
-10,
-18,
-12,
7,
-14,
5,
-85,
30,
-32,
8,
18,
-9,
-35,
36,
4,
-16,
-69,
-25,
-35,
4,
21,
0,
31,
-33,
-36,
-23,
-14,
49,
-14,
-42,
-39,
-71,
-44,
2,
-32,
6,
12,
-55,
12,
-20,
-99,
-30,
-25,
-5,
-21,
-6,
-25,
13,
11,
24,
14,
-34,
-23,
-24,
31,
26,
8,
20,
2,
-40,
-10,
-54,
81,
48,
-18,
-14,
-27,
15,
-82,
-15,
0,
20,
-15,
5,
42,
6,
21,
25,
-56,
-8,
58,
4,
15,
6,
-28,
20,
-1,
-81,
-13,
2,
31,
-8,
0,
7,
22,
7,
-34,
-23,
23,
3,
45,
15,
-28,
-16,
43,
24,
2,
10,
7,
-14,
11,
-28,
-2,
-18,
18,
-27,
-37,
42,
-90,
19,
21,
-32,
-99,
-7,
51,
-7,
4,
-17,
57,
49,
37,
28,
41,
37,
46,
13,
15,
-17,
2,
-30,
-7,
30,
-30,
5,
-4,
0,
2,
23,
-30,
-25,
-6,
-12,
-81,
-16,
-23,
20,
5,
-33,
-33,
-28,
-18,
3,
-32,
-51,
48,
12,
0,
-38,
-8,
9,
7,
-1,
-21,
-1,
3,
-65,
2,
13,
-7,
22,
65,
22,
-10,
-5,
31,
-15,
46,
-27,
29,
-31,
12,
-10,
-2,
9,
-25,
28,
-6,
17,
11,
-33,
1,
-6,
-35,
-19,
60,
-7,
14,
46,
3,
24,
40,
-35,
18,
-36,
-5,
39,
-16,
-2,
18,
10,
34,
-22,
-19,
-40,
-21,
21,
26,
24,
15,
-5,
77,
19,
-6,
0,
-25,
-10,
-22,
-45,
45,
-37,
-24,
-38,
37,
-35,
30,
15,
-33,
52,
3,
51,
-41,
20,
29,
-5,
32,
-47,
22,
15,
-10,
22,
18,
24,
-7,
48,
-14,
16,
10,
52,
5,
24,
6,
-25,
-9,
47,
-16,
18,
-10,
18,
-28,
17,
70,
-17,
-15,
-22,
30,
42,
-25,
-35,
-11,
-30,
-17,
30,
-29,
24,
-1,
14,
18,
21,
-36,
62,
28,
1,
23,
-43,
-25,
-8,
0,
39,
45,
-30,
-5,
11,
57,
-34,
-7,
16,
19,
-24,
6,
34,
38,
41,
26,
-8,
14,
3,
-22,
11,
9,
1,
27,
-3,
0,
-4,
-14,
3,
-23,
-68,
-9,
12,
8,
-27,
54,
-3,
-9,
32,
18,
-14,
-2,
11,
5,
-6,
5,
-69,
-19,
75,
-27,
-33,
13,
-81,
47,
55,
22,
-14,
37,
46,
35,
17,
98,
26,
10,
-33,
-56,
55,
-37,
14,
79,
70,
14,
33,
-9,
-45,
10,
-32,
-61,
14,
49,
-14,
-48,
-23,
-57,
-33,
-2,
-6,
-36,
41,
-15,
-12,
-19,
-5,
-12,
-18,
-3,
-47,
-41,
-52,
33,
47,
28,
2,
2,
46,
29,
30,
26,
-30,
-64,
33,
-22,
-3,
-1,
27,
-15,
33,
36,
-15,
-3,
35,
-42,
-31,
30,
-17,
43,
-39,
-28,
-22,
-28,
38,
39,
-27,
-26,
-24,
-9,
-24,
33,
-1,
-23,
-11,
19,
37,
-32,
-7,
-59,
4,
-14,
-22,
-67,
-12,
-62,
0,
-28,
-55,
-57,
21,
-40,
-64,
9,
11,
8,
-10,
-20,
35,
20,
-61,
9,
17,
-31,
-16,
0,
18,
-10,
-15,
41,
-23,
38,
18,
0,
23,
-22,
55,
40,
40,
-9,
-65,
14,
6,
-35,
30,
22,
8,
-8,
52,
-7,
5,
20,
33,
-1,
-30,
32,
-20,
17,
-50,
66,
-79,
0,
-2,
0,
-21,
-31,
-32,
-7,
16,
-44,
-9,
-39,
-40,
-16,
-44,
-17,
-33,
-59,
37,
16,
-3,
-3,
-32,
-41,
41,
-34,
33,
15,
-32,
-8,
23,
23,
-20,
13,
-29,
-1,
-9,
-21,
-25,
57,
18,
-21,
34,
-2,
-12,
-27,
-28,
39,
23,
-1,
-5,
40,
8,
27,
-13,
-72,
47,
41,
66,
40,
5,
42,
30,
-5,
0,
-42,
-20,
24,
15,
10,
5,
9,
49,
13,
-22,
6,
-19,
-10,
-64,
-6,
-18,
38,
8,
3,
-14,
5,
23,
-37,
-20,
-2,
-1,
10,
15,
26,
-5,
47,
11,
1,
-37,
46,
-55,
23,
48,
-78,
-4,
-47,
48,
0,
50,
43,
20,
32,
-24,
39,
44,
10,
-27,
0,
-11,
-24,
24,
-4,
-41,
62,
-55,
-3,
8,
7,
5,
69,
34,
-17,
39,
-3,
-5,
4,
12,
37,
7,
16,
-85,
-2,
30,
0,
-7,
25,
-17,
-12,
16,
50,
-2,
0,
-13,
14,
-28,
29,
-13,
-46,
-18,
0,
-9,
-16,
0,
-19,
12,
-30,
-16,
-69,
61,
-64,
49,
16,
-15,
-27,
57,
11,
-2,
-29,
32,
-53,
-19,
18,
-17,
0,
79,
25,
35,
26,
-6,
41,
5,
80,
37,
57,
-49,
40,
11,
-15,
-13,
-18,
3,
-1,
-36,
31,
66,
12,
-19,
10,
-18,
39,
19,
-1,
-63,
21,
-4,
1,
-1,
39,
7,
-56,
-14,
15,
-28,
-7,
46,
30,
-46,
-39,
-24,
30,
-6,
-43,
-23,
-26,
3,
16,
-17,
-7,
36,
-63,
22,
63,
-2,
-22,
-17,
9,
19,
61,
-7,
34,
19,
55,
-38,
25,
-18,
-12,
3,
-35,
-23,
-111,
17,
-59,
6,
23,
-22,
-42,
-4,
-9,
45,
13,
41,
26,
37,
21,
-6,
10,
28,
-13,
-73,
12,
-6,
-63,
-15,
-14,
-27,
1,
-17,
22,
28,
-34,
-35,
-40,
-29,
10,
-11,
7,
6,
14,
20,
7,
20,
-11,
20,
-18,
31,
19,
18,
46,
-6,
-40,
-7,
-31,
2,
0,
21,
13,
2,
-18,
8,
-90,
-26,
-11,
-10,
16,
-14,
-21,
13,
40,
-12,
16,
8,
-9,
35,
12,
29,
-4,
-8,
-33,
9,
6,
14,
13,
-5,
-67,
-8,
11,
-44,
-6,
57,
27,
-28,
22,
33,
38,
-10,
46,
3,
-5,
10,
-17,
-5,
12,
-8,
-37,
-24,
32,
62,
6,
-50,
-20,
-39,
-58,
63,
6,
28,
-6,
-10,
18,
-16,
33,
-57,
-27,
-31,
1,
12,
-4,
27,
-54,
-33,
22,
17,
-13,
-47,
33,
-44,
-29,
26,
-30,
-27,
29,
29,
0,
-33,
-18,
-60,
34,
-44,
-31,
-3,
14,
-34,
-35,
-6,
18,
21,
20,
-8,
-5,
-4,
24,
3,
-10,
-11,
12,
-63,
28,
19,
-5,
-1,
-5,
-34,
-24,
29,
-30,
4,
-29,
25,
36,
43,
-75,
-23,
-5,
31,
-13,
13,
-38,
-4,
-26,
-9,
-37,
35,
-3,
53,
57,
-17,
-5,
-37,
-24,
-10,
3,
-15,
17,
-28,
-24,
38,
-12,
40,
14,
-15,
4
] |
Sharpe, J.
On April 28, 1923, defendants entered into separate contracts to sell to Clarence C. Taylor two lots in the city of Detroit for the sum of $1,925 each. One hundred and ninety-two dollars was made as a down payment on each lot, and the balance was to be paid in monthly sums of $17, with interest payable quarterly on all sums unpaid at 6 per cent. Each contract contained the usual provisions for forfeiture and that “notice of such declaration shall be sufficient if mailed to the last known postoffice address” of the vendee.
On February 6, 1924, Taylor assigned his interest in the contracts to the Cardinal-Taylor Corporation, and on June 21st of that year the corporation assigned its interest to the plaintiff, who, in writing, accepted the assignment and the conditions of the contracts and directed that notice be addressed to him “at 1935 Burlingame.” The Union Trust Company, the duly authorized agent of the defendants, consented to both assignments. The address at 1935 Burlingame was changed by notice of the plaintiff to 2014 West Euclid.
In 1926 plaintiff moved to 3273 Kendall avenue, but did not notify the trust company of his change of address. There was default in payment on both contracts. On March 1, 1928, the trust company, as agent for defendants, sent a “warning of cancellation” to plaintiff by registered mail at 2014 West Euclid, and it was returned marked “Unclaimed,” and on March 21, 1928, a “notice of forfeiture” was sent to him at the same address by registered mail and likewise returned marked “Unclaimed.” Summary proceedings were thereafter taken. There was no personal service of the summons on the plaintiff, the officer returning that he “was unable to find the within named defendant in Wayne county after diligent search and inquiry.” An affidavit of publication was then filed and 'an order of publication made and duly published. Plaintiff did not appear at the hearing, and an order was entered in the one case on July 27, 1928, finding the amount due to be $1,053.84, and granting a writ of restitution as provided in the statute, and in the other on September 5, 1928, with amount due $1,070.85, and also with writ of restitution.
In 1927 plaintiff sold his interest in these contracts to the ‘ ‘ Menzies Beal Homes Company, ’ ’ and expected this company to meet the payments and pay the taxes in default. No notice was given to defendants or the trust company of this transfer, but, as plaintiff says, “they went broke” and made no payments. Plaintiff first learned of the fore closure proceeding in September, 1928. He testified that he then called at the office of the trust company for the purpose of paying the balances due, and was informed that he “was'out” and that it could not accept payments from him.
On July 24, 1929, he began an action to recover the moneys paid by him on the contracts. On January 16, 1932, on his motion, the cause was transferred to the chancery side of the court and the bill of complaint herein was filed, in which he prayed that the judgments rendered by the circuit court commissioner be declared null and void, and that he be awarded “the amount of any and all damages which he has suffered by reason of the unlawful and fraudulent acts of the said defendants, their agents, attorneys and employees.”
The record discloses that on June 22, 1929, the defendants deeded the lots in question to Stan H. Swanson.
The trial court, after hearing the proofs, found that the defendants or their agent, the trust company, were not guilty of any fraud in the forfeiture of the contracts or the after-proceedings taken, and entered a decree dismissing the bill, from which the plaintiff has appealed.
Plaintiff’s claim for relief is based upon the fact that on June 7, 1927, he had ordered an abstract of title to these lots from the Union Title & Guaranty Company, a department of the Union Trust Company, in which his address was stated to be 3273 Kendall, and that the company was thus chargeable with notice of his change of address. It also appears that this address and his telephone number appeared in the city and telephone directory for the year 1927.
It seems to be conceded that, if the preliminary and final notices of forfeiture had reached the plain tiff, his interest in the contracts would have been terminated thereby. Waller v. Lieberman, 214 Mich. 428. The parties to these contracts provided therein the manner in which the vendee should be notified in case of default and claim of forfeiture. When assignment was made to the plaintiff, he assumed all the conditions and obligations of the contracts and directed the place to wMch notice should be sent to Mm. He afterwards changed this to 2014 West Euclid.
The provision for notice as it appears in the contracts inured to the benefit of both the vendors and the vendee. In a city like Detroit, a vendor might have much difficulty in ascertaining the street address of his vendee, and a vendee is protected by the knowledge that his rights may not be terminated without receipt by him of such notice. It is a reasonable provision and should be construed as it reads. Plaintiff’s application to the abstract division of the trust company may not be considered notice of the change of address provided for therein. The plaintiff had agreed to notify it of any such change, and, when the notices mailed to him were not delivered, it had a right to assume that he had moved away and abandoned his rights under the contracts.
The record discloses no sufficient grounds for vacating the proceedings taken before the commissioner under which the defendants acquired posses- - sion.
The decree dismissing the bill of complaint is affirmed, with costs to appellees.
Clark, C. J., and McDonald, Potter, North, Head, Wiest, and Butzel, JJ., concurred. | [
-43,
42,
37,
-25,
-67,
0,
-15,
8,
16,
-17,
8,
0,
-5,
58,
-48,
-2,
0,
3,
14,
-17,
-29,
-36,
-28,
-9,
25,
-12,
-1,
-61,
-9,
6,
-20,
3,
-9,
13,
-26,
64,
6,
-30,
1,
-42,
-8,
-34,
-33,
-9,
26,
12,
-2,
-2,
13,
-48,
-6,
14,
67,
-8,
-42,
-21,
-44,
-24,
36,
5,
-11,
-28,
-16,
19,
10,
-26,
19,
-8,
44,
2,
-8,
-4,
-3,
-23,
6,
-4,
0,
-16,
-13,
-53,
7,
-13,
34,
2,
-49,
9,
25,
-18,
5,
-9,
8,
-29,
20,
42,
17,
7,
-9,
0,
-22,
1,
-2,
-1,
-32,
49,
-14,
18,
-5,
-15,
-11,
58,
-24,
0,
38,
28,
-11,
-21,
-39,
-44,
10,
-6,
7,
-12,
-13,
-40,
35,
77,
-22,
-39,
-5,
77,
17,
-17,
-24,
16,
-17,
-18,
-42,
-32,
26,
2,
21,
6,
-30,
20,
-10,
18,
-16,
0,
-20,
17,
-45,
-2,
13,
39,
3,
4,
32,
1,
32,
-32,
17,
-31,
19,
24,
-49,
8,
-56,
37,
-7,
25,
-5,
14,
-4,
-23,
2,
-52,
9,
9,
-29,
4,
-16,
-32,
13,
-46,
-15,
-61,
21,
-14,
-3,
7,
57,
-30,
-13,
52,
-44,
18,
-3,
-42,
11,
13,
13,
-65,
14,
-31,
-24,
-24,
32,
37,
0,
69,
-55,
-29,
18,
-32,
5,
63,
0,
-24,
56,
-4,
41,
-16,
-44,
27,
6,
-18,
5,
-41,
48,
-23,
-26,
14,
48,
20,
3,
34,
7,
4,
15,
39,
-20,
-6,
-57,
10,
-27,
-19,
43,
1,
-29,
29,
-32,
-14,
-43,
37,
-12,
3,
-32,
-11,
6,
39,
-9,
47,
-33,
17,
16,
3,
4,
-3,
-32,
20,
-18,
-32,
-35,
6,
-27,
-35,
-24,
-1,
0,
11,
-1,
-34,
-1,
6,
46,
25,
-27,
51,
-15,
1,
-21,
26,
9,
-35,
27,
-15,
30,
-53,
6,
-29,
-62,
12,
29,
-25,
9,
22,
-9,
-31,
-59,
-18,
17,
1,
28,
-6,
9,
14,
23,
-15,
35,
-55,
13,
24,
3,
36,
22,
16,
74,
1,
-1,
8,
6,
-14,
2,
4,
-38,
0,
33,
-12,
-35,
-24,
-2,
24,
50,
-29,
4,
-4,
-11,
-28,
-17,
-19,
-20,
-68,
-52,
39,
-42,
-5,
34,
29,
-7,
47,
39,
51,
12,
32,
-22,
16,
-17,
-11,
44,
45,
18,
18,
-65,
25,
-14,
19,
0,
-17,
-33,
42,
11,
-40,
11,
54,
60,
-23,
-10,
-9,
-11,
-8,
-31,
60,
-9,
29,
-10,
-15,
0,
18,
-47,
-38,
7,
44,
-39,
3,
-65,
9,
-3,
2,
-5,
-6,
1,
-21,
-5,
8,
-55,
-7,
33,
-5,
12,
-16,
31,
46,
-11,
-9,
13,
-20,
60,
44,
-65,
-8,
-21,
81,
27,
-42,
4,
16,
-52,
5,
-41,
10,
25,
16,
26,
50,
45,
-9,
-15,
12,
21,
25,
-11,
0,
14,
21,
5,
-1,
67,
-43,
44,
-8,
13,
-43,
-2,
-26,
-71,
-1,
23,
-31,
-24,
14,
-18,
22,
5,
-61,
-24,
8,
23,
-27,
-16,
17,
14,
26,
17,
16,
-22,
-33,
-21,
-46,
21,
22,
0,
14,
26,
21,
21,
33,
-28,
-1,
7,
33,
16,
-23,
-7,
35,
1,
29,
-14,
-35,
-33,
43,
1,
1,
-15,
31,
-4,
29,
20,
19,
55,
7,
39,
66,
-11,
7,
-21,
27,
38,
35,
-35,
-35,
-8,
-57,
-7,
-30,
-20,
0,
-13,
21,
8,
6,
-33,
36,
-18,
49,
-60,
-20,
-6,
-20,
3,
-15,
-31,
-26,
39,
-20,
-19,
-28,
25,
-16,
10,
26,
-31,
-7,
46,
-32,
34,
-27,
32,
5,
-21,
0,
-39,
-6,
25,
-7,
-13,
0,
-42,
2,
-4,
0,
-20,
13,
8,
-44,
5,
48,
36,
-1,
-35,
57,
12,
-2,
7,
-44,
0,
-1,
-34,
8,
24,
4,
14,
-29,
-34,
-25,
-20,
-58,
-12,
0,
-35,
-22,
-12,
-34,
-59,
18,
80,
30,
11,
-25,
18,
20,
15,
-21,
19,
13,
30,
17,
-12,
21,
-16,
40,
26,
-29,
16,
34,
-10,
-25,
54,
5,
-27,
1,
-43,
42,
3,
7,
-19,
10,
-70,
-51,
34,
-12,
-28,
-4,
31,
30,
12,
-5,
30,
-23,
38,
-60,
35,
30,
-51,
19,
22,
-38,
58,
-10,
22,
16,
-9,
20,
8,
-38,
8,
-14,
2,
59,
68,
16,
30,
28,
-6,
47,
-14,
-10,
-14,
-10,
-4,
9,
-10,
-4,
-42,
-28,
3,
14,
11,
-2,
46,
-4,
-8,
1,
22,
20,
-49,
48,
-12,
5,
-10,
-44,
30,
-23,
-3,
-22,
-20,
52,
10,
27,
-51,
2,
-34,
-20,
29,
-36,
23,
12,
50,
-13,
-24,
24,
32,
10,
11,
2,
13,
27,
-11,
-7,
-70,
-32,
-18,
-47,
0,
4,
6,
-48,
42,
34,
1,
-6,
14,
35,
40,
11,
18,
-38,
-4,
10,
-16,
7,
-65,
4,
13,
-38,
-18,
18,
-10,
-41,
0,
-42,
-30,
7,
-53,
4,
-3,
-19,
13,
-7,
24,
-34,
-1,
17,
21,
-32,
12,
-26,
-10,
47,
32,
42,
-5,
-36,
-25,
11,
-49,
3,
55,
4,
9,
-14,
46,
30,
-16,
24,
-12,
0,
-36,
-13,
18,
0,
-17,
29,
5,
-19,
28,
-4,
-33,
42,
5,
2,
-69,
19,
-11,
2,
-62,
9,
-38,
15,
-34,
16,
19,
-19,
-22,
-14,
-42,
18,
14,
-5,
-9,
-7,
-24,
-42,
-19,
-6,
-8,
13,
-9,
-21,
-14,
-56,
-40,
-12,
-14,
22,
-29,
33,
0,
-16,
0,
5,
27,
-8,
-49,
-20,
14,
-2,
0,
-13,
9,
44,
-4,
95,
-35,
-19,
17,
-12,
-6,
23,
27,
8,
-16,
6,
-23,
8,
-23,
1,
44,
-12,
-1,
51,
-15,
-47,
-53,
-27,
4,
-25,
-15,
-8,
51,
-21,
51,
-30,
2,
-7,
-32,
31,
-5,
5,
23,
5,
24,
-75,
-35,
-12,
-91,
29,
26,
-9,
32,
30,
26,
0,
-49,
-5,
4,
-41,
19,
54,
25,
34,
-19,
36,
-31,
-13,
17,
-26,
56,
-51,
2,
-19,
-26,
39,
5,
3,
-13,
16,
-2,
-8,
31,
42,
9,
27,
2,
37,
-51,
-38,
-5,
-40,
17,
-72,
15,
23,
-4,
-54,
41,
8,
21,
-21,
10,
-30,
27,
-30,
-8,
-7,
0,
-45,
25,
9,
0,
-33,
38,
-6,
22,
39,
74,
-27,
56,
-4,
-43,
5,
45,
18,
3,
-3,
-9,
8,
49,
9,
-20,
-54,
22,
-2,
31,
4,
18,
21,
26,
-25,
39,
2,
-34,
31,
22,
29,
-43,
8,
18,
29,
-11,
-64,
39,
32,
-20,
60
] |
M. J. Kelly, J.
This appeal arises after retrial of a wrongful death action caused by a trench cave-in. It is familiar to our reports. The sequence began when defendant, an excavation contractor, was hired to excavate a trench on the premises of the Sunset Trailer Park in Sandusky, Michigan. The excavation was part of a planned expansion of the trailer park, which required that a trench be dug from the existing septic system to the expansion sewer line.
The owner of the trailer park, Thomas Boyle, hired the prior owner, O. J. Campbell, to supervise the work involved in the expansion of the trailer park. Plaintiffs decedent, Milo Nichol, a retiree who resided in the trailer park, was also hired by Boyle to help with the expansion project.
On August 9, 1971, the excavation of the trench took place with the defendant Billot, Campbell and Nichol present. The trench was over 9 feet deep, 10 to 12 feet long, and 30 inches wide, and the walls were not sloped, braced or shored in any fashion.
After the excavation was completed, Nichol climbed into the trench for the purpose of making a hole in the septic tank. Shortly after he entered the trench, the west wall collapsed and Nichol, who had no escape, was killed instantly.
Subsequently, decedent’s widow received workers’ compensation benefits from Boyle. Suit was then brought against defendant as a third-party tortfeasor, as permitted by MCL 418.827(1); MSA 17.237(827X1).
The first trial commenced in March, 1976, and ended in a verdict of no cause of action. This Court affirmed that verdict in Nichol v Billot, 80 Mich App 263; 263 NW2d 345 (1977).. However, the Supreme Court reversed and remanded the case for a new trial on a holding that Billot was an independent contractor as a matter of law. Nichol v Billot, 406 Mich 284; 279 NW2d 761 (1979).
Prior to the new trial, the present plaintiff, Phyllis Johnston, decedent’s daughter, replaced Bertha Nichol as administratrix of decedent’s estate.
Retrial commenced on November 6, 1979.- Because trial took place after the Supreme Court’s decision in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), the law of comparative negligence applied. On November 5, 1979, the day before trial commenced, the defendant filed a motion "to add named non-party defendant”. He sought to have Boyle added to the case for the sole purpose of establishing the degree of negligence attributable to Boyle. He was not made a party, nor was contribution sought. The defendant simply argued that, because the law of comparative negligence applied, resolution of the case required that the jury determine the degree of negligence attributable to each of the participants in the events leading up to the decedent’s death. The court ruled, over the plaintiffs objection, that the jury would be instructed to consider the degree of negligence attributable to the defendant, to the deceased and to Boyle. At the close of proofs, the court instructed the jury to consider any negligence of the three individuals and indicated that the percentage of negligence that the jury found to be attributable to Boyle would be used by the court to reduce the amount of damages recoverable by the plaintiff.
Over the defendant’s objection, the court instructed the jury concerning the requirements of Rule 905, promulgated pursuant to the Construction Safety Act of 1963, which requires that excavations over four feet in depth be braced, sloped, or shored.
The jury returned a verdict in favor of plaintiff in the amount of $95,000. The jury found the plaintiff’s decedent to be free from negligence. It found the degree of negligence attributable to the defendant and to Boyle to be 50% each. The court then stated:
"I believe under the Placek decision, the Court has a duty to reduce the amount of the judgment by the amount of the plaintiffs negligence, and in this case the jury has found no negligence on the part of the plaintiff, so there would be no reduction.”
The plaintiff prepared a judgment for $95,000, to which the defendant objected. A hearing was held on December 3, 1979, after which the court reduced the judgment against the defendant to $47,-500 to reflect the jury’s finding that the defendant was only 50% responsible.
The plaintiff appeals as of right. The defendant has filed a timely cross-appeal.
I
Plaintiff’s sole assignment of error on appeal is that the trial court erred when it reduced the amount of the damages awarded to correspond to the proportionate degree of defendant’s fault. According to plaintiff, this interpretation abolishes the principle of joint and several liability. Defendant counters by arguing that the trial court’s order was proper in light of the Supreme Court’s decision in Placek. Defendant alleges that the court’s option to adopt the pure rule of comparative negligence requires that defendant be limited to damages proportionate to the degree of fault attributable to it.
In Weeks v Feltner, 99 Mich App 392; 297 NW2d 678 (1980), this Court addressed the effect of Placek on the common-law rule that joint tortfeasors were jointly and severally liable for the entire amount of damages caused by their common action. In Weeks, the plaintiff was injured as a result of a sexual assault committed by Albert Feltner. The plaintiff alleged that her injuries were caused by the negligence of the owners of the apartment complex where the assault occurred and certain realtors who were agents of the owners. When the jury found defendants jointly and severally liable, defendants claimed that the doctrine of comparative negligence required the abandonment of the concept of joint and several liability. This Court affirmed the trial court’s denial of defendants’ request by writing:
"Defendants contend that comparative negligence requires that a defendant only be liable to the extent of his own wrongdoing, not only in relation to the plaintiff, but in relation to other defendants as well. See Placek v City of Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979).
"This argument ignores the fact that the comparative negligence doctrine also seeks to assure fair and adequate compensation for injured plaintiffs. Unlike the concept of contributory negligence, it avoids unduly penalizing a plaintiff for his own fault. While some unfairness exists when one defendant is held liable for the faults of his codefendants, this is equally true of cases where the plaintiff is not at fault. The acts of Albert Feltner were foreseeable by the other defendants, and there is nothing inherently inequitable in holding them liable for the resulting injury. The doctrine of comparative negligence does not mandate abandonment of joint and several liability. In fact, a majority of other jurisdictions considering the issue have retained joint and several liability. See, Schwartz, Comparative Negligence, Sec 16.4, p 93 (Supp 1978).” Weeks, supra, 395.
This same result was reached by another panel of this Court in Edwards v Joblinski, 108 Mich App 371; 310 NW2d 385 (1981).
Other jurisdictions which have adopted comparative negligence and considered this issue have reached the same result. In Seattle First National Bank v Shoreline Concrete Co, 91 Wash 2d 230; 588 P2d 1308 (1978), the plaintiff, who represented the estate of a deceased worker who was killed while operating a boom mounted to a truck, brought a wrongful death action against a truck owner and the truck manufacturer. The defendants filed a third-party complaint against the decedent’s employer, asserting claims for indemnity, contribution, or apportionment. The employer moved for summary judgment, claiming the workers’ compensation act barred third-party claims, but the court denied the motion. The plaintiff appealed, arguing that the trial court’s order abolished joint and several liability.
After examining the common-law doctrine of joint and several liability, the Washington Su preme Court refused to abolish the doctrine in light of the state legislature’s adoption of comparative negligence. The court wrote:
"Comparative negligence represents an attempt to achieve greater fairness in tort law. Wenatchee Wenoka Growers Ass’n v Krack Corp, 89 Wash 2d 847, 849-850; 576 P2d 388 (1978). It operates in favor of an injured party by allowing, rather than barring, recovery by one who is contributorially [sic] negligent. Wenatchee Wenoka Growers Ass’n v Krack Corp, supra at 850; Godfrey v State, 84 Wash 2d 959, 965; 530 P2d 630 (1975); RCW 4.22.010. While comparative negligence increases the chance of recovery by one who is contributorially [sic] negligent, respondents now suggest that we restrict these rights under the rubric of comparative negligence. But, from the perspective of the recovery rights of the injured party, comparative negligence and the suggested abolition of joint and several liability are completely inconsistent.” Seattle Bank, supra, 236-237. (Emphasis in original.)
The court also found that comparative negligence and joint and several liability were not inconsistent doctrines. The court reasoned that while it might be possible to assign a percentage figure to the relative culpability of multiple tortfeasors, it did not eliminate the fact that each tortfeasor’s conduct was a proximate cause of an entire indivisible injury to plaintiff. Id., 237. Furthermore, the court found that if joint and several liability was abandoned, a completely faultless plaintiff could be forced to bear a portion of the loss if any tortfeasor should prove unable to satisfy his proportionate share of the damages. Id., 238. In conclusion, the court stated:
"Finally, even when a plaintiff is partially at fault for his own injury, his culpability is not of the same nature as defendant’s. A plaintiff’s negligence relates to a failure to use due care for his own protection whereas a defendant’s negligence relates to a failure to use due care for the safety of others. While a plaintiffs self-directed negligence may justify reducing his recovery in proportion to his degree of fault, the fact remains that such conduct, unlike that of a negligent defendant, is not tortious. See American Motorcycle Ass’n v Superior Court [of Los Angeles County, 20 Cal 3d 578, 590-591; 146 Cal Rptr 182; 578 P2d 899 (1978)]; Prosser, Law of Torts § 65, p 418.
"Consequently, we are not persuaded that this state’s recent adoption of comparative negligence compels a change in our recognition of joint and several liability.” Id., 238. (Emphasis in original.)
But the court also reversed the trial court’s order allowing defendants to file a third-party complaint against the employer because the workers’ compensation act barred such actions. Id., 242.
In this case, the jury attributed 50% of the negligence to both defendant and Boyle, while finding decedent free from negligence. Pursuant to the workers’ compensation act, Boyle’s payment of compensation was the sole claim plaintiff had against him. MCL 418.131; MSA 17.237(131). Therefore, plaintiff’s only source of recovery in a wrongful death action was defendant. To reduce the amount of damages to correspond to defendant’s proportionate fault would penalize an innocent plaintiff by requiring the estate to bear 50% of the loss. The unfairness of such a result is a good reason why the doctrine of joint and several liability has not been abolished by the adoption of comparative negligence. The trial court’s decision to reduce defendant’s liability to correspond to his proportionate fault is reversed.
II
Defendant has filed a cross-appeal, arguing that the trial court erred when it instructed the jury concerning Rule 905, Administrative Code, 1964-1965 AACS R 408.1905. According to defendant, the rule was inapplicable because it only applies to employers. Defendant also argues that the court’s instructions on Rule 905 were confusing.
This Court will not find reversible error where a jury charge, considered in its entirety, presents the theories of the parties and the applicable law. Berlin v Snyder, 89 Mich App 38, 41; 279 NW2d 322 (1979). A trial court’s refusal to instruct the jury concerning applicable rules and regulations promulgated by an administrative agency is reversible error. Duckett v North Detroit General Hospital, 84 Mich App 426, 436; 269 NW2d 626 (1978). Furthermore, a trial judge may instruct the jury to look at typical industry practices. Wells v Coulter Sales, Inc, 105 Mich App 107, 117; 306 NW2d 411 (1981). Finally, violation of a duty imposed by administrative rules, regulations, or safety codes is evidence of negligence. Beals v Walker, 98 Mich App 214, 227; 296 NW2d 828 (1980).
At the time of Milo Nichol’s death, MCL 408.712; MSA 17.469(2) provided in part:_
" 'Construction industry’ means construction firms and contractors (but not including firms or companies, whose principal business is other than construction work, and whose construction work consists only of maintenance construction work performed on their own property by their own employees) whose classification as construction industry is in accordance with the standard industrial classification manual prepared by the technical committee on industrial classifications, office of statistical standards, 1957 edition, and who are subject to the workmen’s compensation law other than by voluntary assumption of the law.”
Pursuant to MCL 408.717; MSA 17.469(7), the state construction safety commission promulgated Administrative Code 1964-1965 AACS R 408.1101 et seq., which stated in part:
"This manual establishes the general safety rules and regulations for the construction industry in Michigan. Its purpose is to prevent accidental injuries to construction personnel in the course of their employment.”
When construing an administrative rule, the rules of statutory construction apply. MCL 24.232; MSA 3.560(132). If a statute or rule is unambiguous on its face, we will avoid further interpretation or construction of its terms. Detroit v Redford Twp, 253 Mich 453; 235 NW 217 (1931). However, if ambiguity exists, it is our duty to give effect to the intention of the Legislature, or in this case the administrative agency, in enacting the statute or rule. Melia v Employment Security Comm, 346 Mich 544; 78 NW2d 273 (1956). To resolve a perceived ambiguity, a court will look to the object of the statute or rule, the evil or mischief which it is designed to remedy, and will apply a reasonable construction which best accomplishes the purpose of the statute or rule. Bennetts v State Employees Retirement Board, 95 Mich App 616; 291 NW2d 147 (1980).
In this case, it is not clear whether the rules in Administrative Code 1964-1965 A ACS R 408.1101 et seq. are meant to apply only to employers. Since an ambiguity exists, we must look to the objective of the rules to determine the intent of the commission in promulgating them. It is clear from Administrative Code 1964-1965 A ACS R 408.1101 that the purpose of the rules was to provide construction workers with a safe working environment. To accept defendant’s interpretation that the rule does not apply to him because he was not Nichol’s employer would subvert the intent of the commission in enacting the rules. Defendant was just as responsible as defendant’s employer for insuring that the trench Nichols climbed into was safe. Therefore, Administrative Code 1964-1965 AACS R 408.1905 (Rule 905) was applicable to defendant and was properly read to the jury.
Furthermore, the trial court did not instruct the jury that Rule 905 applied to defendant, rather, the judge’s instruction was a virtual verbatim description of Rule 905 and informed the jury that the rule establshed the recommended standard for the industry. The trial court did not err when it instructed the jury concerning standards for construction industry safety. Wells, supra, 117.
Finally, defendant argues that the instruction concerning Rule 905 was confusing. Since defendant failed to object to the instructions on these grounds, this issue is not properly preserved for review. Gage v Ford Motor Co, 102 Mich App 310, 319; 301 NW2d 517 (1980). Furthermore, reviewing the instruction as a whole, it was not misleading or confusing.
The trial court’s order reducing defendant’s liability for plaintiffs damages to 50% is reversed and this case is remanded for entry of an order reinstating the full damage award. The case is affirmed in all other matters.
Costs to plaintiff.
N. A. Baguley, J., concurs in the result only.
Accord: Tucker v Union Oil Co of California, 100 Idaho 590; 603 P2d 156 (1979), American Motorcyle Ass’n v Superior Court of Los Angeles County, 20 Cal 3d 578; 146 Cal Rptr 182; 578 P2d 899 (1978), Dunham v Kampman, 37 Colo App 233; 547 P2d 263 (1975), Fitzgerald v Badger State Mutual Casualty Co, 67 Wis 2d 321; 227 NW2d 444 (1975). See: Schwartz, Comparative Negligence (1978 Supp), § 16.4, p 93.
The instruction complained of follows:
"Members of the jury, on August 9, 1971, Rule 905 of the Construction Safety Act of 1963 was in effect. Under Rule 905, titled: excavations, general requirements, it reads as follows: All excavation shall conform to the following requirements: Necessity for shoring, sheeting, bracing, sloping. Unless in solid rock, hard shale, hardpan, or cemented sand and gravel, excavations which directly affect the safety of persons shall be either shored, sheeted and braced, or the material sloped to its angle of repose if over 4 feet in depth in the case of unstable materials and over 5 feet in depth in other materials. "The next heading is sides and slopes, which reads:
" 'Sides and slopes of excavations shall be maintained in a safe condition by scaling, benching, shelving or bracing.’
"In considering the application of these rules, you should consider that neither Mr. Billot nor Mr. Boyle were cited as being in violation of these rules, and you should further consider that even had these rules been violated there were no penalty provisions in the law at that time, as compliance was not then enforced by the state, but was the recommended standard in the industry that was to be met.”
MCL 408.711 et seq.; MSA 17.469(1) et seq., was repealed by 1974 PA 154. | [
-41,
70,
-40,
-12,
-12,
3,
-43,
12,
-12,
80,
0,
11,
57,
-15,
-27,
-28,
0,
-31,
-37,
1,
-54,
-17,
24,
-20,
-11,
27,
12,
-45,
-7,
38,
16,
15,
-41,
-55,
29,
0,
43,
-28,
-11,
47,
-58,
-1,
20,
-30,
26,
28,
51,
-16,
52,
-6,
15,
-34,
23,
-16,
0,
-4,
-7,
-24,
0,
20,
-3,
3,
3,
54,
55,
19,
37,
30,
46,
32,
-17,
40,
-45,
-4,
50,
-42,
-31,
20,
-42,
-23,
29,
19,
54,
3,
-45,
21,
-85,
-16,
-8,
18,
-24,
-79,
2,
12,
-32,
-5,
-44,
-35,
-38,
5,
4,
39,
49,
6,
-7,
12,
-46,
-70,
-29,
-13,
-25,
8,
-1,
-6,
3,
-13,
23,
-36,
-17,
-34,
9,
29,
34,
-56,
-9,
-24,
21,
-35,
-11,
32,
-14,
23,
-15,
17,
7,
16,
10,
-22,
-3,
12,
-10,
41,
2,
-10,
-6,
36,
-5,
-62,
-29,
-54,
-4,
2,
-20,
3,
53,
-1,
-16,
3,
32,
24,
23,
-8,
51,
18,
-29,
2,
17,
1,
-20,
-16,
60,
5,
-53,
-28,
74,
32,
38,
-5,
-4,
-23,
5,
-8,
34,
16,
-55,
-19,
-39,
17,
12,
35,
35,
-37,
-39,
-30,
-27,
21,
-9,
13,
23,
12,
-5,
-13,
14,
-68,
31,
10,
-1,
37,
23,
-42,
28,
25,
-49,
-44,
-19,
16,
4,
-20,
-13,
-40,
0,
-43,
20,
8,
-44,
55,
-52,
-54,
22,
-75,
-38,
-62,
21,
16,
-25,
-8,
19,
2,
-41,
0,
54,
9,
-59,
5,
8,
35,
8,
-26,
10,
39,
17,
-25,
-8,
-22,
-6,
-6,
-20,
47,
-28,
27,
-34,
50,
-16,
-10,
38,
50,
-71,
-4,
-46,
16,
-38,
-15,
66,
-1,
-79,
-49,
12,
53,
-12,
29,
5,
17,
7,
-37,
-2,
7,
-61,
49,
-27,
66,
0,
34,
-4,
-30,
9,
-7,
62,
-46,
2,
37,
41,
8,
-19,
-53,
41,
11,
-11,
67,
0,
-12,
19,
39,
9,
18,
25,
40,
-21,
-21,
55,
21,
27,
0,
-7,
30,
2,
-22,
31,
-22,
-30,
21,
10,
50,
42,
49,
-11,
-45,
-21,
-14,
-34,
19,
3,
21,
-5,
-43,
-4,
12,
17,
6,
-14,
-37,
42,
-4,
44,
8,
-39,
1,
24,
-41,
0,
29,
33,
-6,
-16,
20,
-18,
-73,
-26,
-35,
8,
-5,
8,
21,
-29,
-14,
64,
-23,
-5,
25,
-17,
43,
-4,
9,
31,
27,
32,
15,
-30,
-50,
-14,
16,
-51,
-70,
9,
15,
-65,
44,
7,
45,
20,
-20,
6,
16,
-21,
-42,
-3,
24,
-24,
14,
-15,
-3,
26,
15,
9,
-1,
-18,
-13,
24,
-14,
-24,
-22,
21,
-38,
26,
-12,
-38,
-48,
16,
23,
-2,
-72,
-11,
15,
19,
-76,
32,
21,
-62,
29,
7,
0,
-114,
-8,
7,
-38,
1,
62,
-27,
3,
47,
-37,
-16,
62,
0,
27,
-34,
6,
36,
3,
23,
-23,
-25,
13,
20,
-50,
-24,
22,
-8,
-42,
-5,
22,
-10,
32,
-8,
16,
15,
-23,
39,
62,
9,
-14,
45,
4,
-21,
27,
1,
-34,
63,
-48,
54,
-21,
34,
37,
-53,
-22,
9,
25,
-24,
12,
-1,
-2,
-80,
-2,
-21,
-16,
34,
-15,
6,
-17,
19,
44,
-34,
-24,
20,
1,
-44,
35,
29,
-6,
47,
-5,
-36,
-39,
-22,
9,
-9,
4,
-21,
20,
-13,
14,
14,
-54,
8,
8,
-35,
-36,
-10,
-11,
-28,
-26,
4,
10,
47,
-10,
-13,
-9,
15,
11,
-5,
35,
-6,
-11,
-18,
40,
0,
22,
-18,
-46,
13,
-26,
-64,
-27,
38,
24,
39,
-62,
-3,
-16,
57,
6,
-49,
28,
-1,
-11,
-15,
49,
-11,
53,
-43,
65,
-3,
2,
-11,
48,
-25,
7,
10,
27,
3,
34,
-44,
-17,
18,
-21,
-1,
-15,
-8,
-29,
-43,
-57,
-3,
-4,
-18,
4,
3,
18,
-21,
-48,
-26,
14,
7,
-23,
-50,
-26,
30,
40,
13,
-51,
31,
6,
9,
-2,
-20,
44,
-24,
6,
11,
64,
-27,
9,
-24,
31,
36,
34,
53,
16,
39,
4,
-10,
7,
-49,
17,
-16,
8,
-74,
-37,
2,
-49,
-21,
5,
-19,
29,
8,
78,
39,
-11,
21,
-36,
2,
-14,
5,
-10,
-19,
6,
-24,
-19,
-25,
17,
-14,
-36,
36,
57,
-10,
22,
-50,
-36,
33,
2,
-4,
19,
11,
-12,
30,
22,
32,
9,
0,
37,
17,
13,
2,
52,
-1,
-13,
6,
27,
25,
-4,
38,
-11,
-20,
-25,
22,
50,
31,
50,
37,
-37,
8,
30,
-16,
44,
59,
-10,
-42,
43,
-57,
-41,
17,
-14,
18,
-80,
-20,
21,
-2,
-13,
18,
3,
-65,
-7,
-11,
-18,
16,
54,
-10,
-1,
-44,
4,
23,
-41,
-10,
-64,
-45,
-11,
33,
-44,
10,
12,
9,
12,
-6,
28,
-9,
2,
2,
-24,
65,
40,
-61,
-2,
18,
-49,
-3,
-2,
-5,
-19,
89,
-11,
26,
-24,
-42,
36,
-26,
-26,
-42,
22,
-62,
47,
38,
3,
8,
15,
87,
12,
1,
-58,
27,
-59,
23,
38,
13,
-15,
-6,
10,
-15,
22,
-32,
19,
-5,
31,
34,
-3,
-1,
47,
8,
-38,
2,
-15,
2,
-19,
8,
-36,
-10,
5,
-23,
73,
-27,
37,
22,
19,
-9,
30,
-49,
-46,
52,
-47,
12,
-77,
2,
-34,
33,
-12,
-6,
24,
10,
-32,
-5,
6,
-41,
5,
-31,
32,
9,
29,
13,
10,
-42,
34,
-2,
72,
-45,
-26,
11,
-16,
-4,
19,
-66,
-15,
0,
-7,
49,
-16,
-42,
13,
-4,
20,
14,
-16,
-33,
7,
16,
-1,
-5,
-7,
-26,
38,
-47,
-9,
19,
8,
-11,
46,
13,
22,
-49,
2,
33,
-16,
19,
23,
59,
25,
-21,
2,
-45,
-16,
23,
21,
-6,
-17,
-21,
-2,
-25,
27,
11,
-22,
-2,
-18,
-1,
-13,
-61,
-48,
-14,
9,
-17,
3,
-45,
48,
-70,
15,
8,
-3,
50,
-2,
12,
-46,
1,
-40,
0,
70,
3,
36,
0,
-34,
-53,
37,
51,
-35,
-38,
-63,
42,
-5,
-7,
37,
-18,
-20,
57,
-74,
23,
-26,
-2,
13,
0,
24,
33,
30,
-11,
26,
-36,
-30,
-27,
35,
0,
38,
38,
0,
21,
1,
-12,
3,
-13,
7,
6,
-19,
19,
-10,
-26,
22,
1,
-68,
-14,
-73,
-27,
-26,
-36,
17,
-38,
-50,
-21,
-18,
8,
23,
-1,
71,
3,
4,
-12,
-7,
41,
55,
-5,
44,
-37,
57,
17,
72,
-25,
-1,
-13,
-33,
-30,
27,
10,
6,
6,
71,
-64,
17,
-37,
-8,
11,
-51,
-15,
-13
] |
Per Curiam:.
Defendant was charged with receiving and concealing stolen property valued over $100, MCL 750.535; MSA 28.803. He pled guilty to attempt, MCL 750.92; MSA 28.287, and was sentenced to five years probation.
Initially, defendant alleges that there was insufficient evidence presented at the preliminary examination to justify the bind over. We disagree. The testimony at the examination establishes probable cause to believe that defendant knowingly purchased a stolen stereophonic receiver. Testimony of the police officer and the owner of the stolen receiver establishes that the property defendant gave to the police had been stolen from the owner’s store. We find no abuse of discretion in the decision to bind over the defendant for trial. People v Tait, 99 Mich App 19, 23; 297 NW2d 853 (1980).
Defendant also challenges the sentence. The order of probation reads, in part, as follows:
"DURING THE PERIOD OF PROBATION, DEFENDANT, HEREINAFTER DESIGNATED AS 'PROBATIONER’, SHALL OBEY THE FOLLOWING RULES AND COMPLY WITH THE FOLLOWING CONDITIONS:
"This constitutes authorization and direction to the Sheriff of Monroe County to receive and imprison Probationer in accordance with the following: under the authority granted by Public Acts 1957 No. 72 (25 MSA 28.1133), with amendments if any, the said Probationer is forthwith committed to the common jail in and for Monroe County, Michigan, for a period of 180 days. Against this jail term the Probationer is given credit for 1 days [sic] already spent in jail. The balance of 179 days shall be served at such time or times as shall be directed by the Court or by the Probation Officer.”
Both parties cite People v Olson, 98 Mich App 207; 296 NW2d 218 (1980), in support of their respective positions. There, the defendant was ordered to serve 120 days in the county jail as a term of his probation. The judge told defendant at sentencing that the jail sentence might be waived if defendant did not violate any other conditions of probation.
The Court held that the sentence was proper as a term of probation under MCL 771.3; MSA 28.1133. However, the Court stated that a defendant cannot be sentenced to a jail term at the time of the initial probation order as a contemplated sentence in the event of violation of probation. It stated:
"By sentencing a defendant prospectively for a probation violation, before any such probation violation has occurred, a sentencing judge would negate any opportunity he may have to consider the nature of the probation violation and any mitigating circumstances that may tend to lessen the defendant’s sentence. Of course, if during a probationary period a defendant violates any term of his probation, then the sentencing judge may sentence that defendant to any term of imprisonment that would be appropriate.” Id., 212.
Because the defendant’s jail term in Olson was a condition of probation rather than a sentence contingent on violation of probation, the Court held that the sentence was proper.
In the case at bar, the jail sentence was also a condition of probation. Thus, the holding of Olson does not require reversal.
However, we find a significant difference between the order in this case and that under scrutiny in Olson. As pointed out by defendant’s appellate counsel, the jail term in Olson was to be served "as directed by the Probation Department with the approval of the Court”. On the other hand, this order requires that the time be served "at such time or times as shall be directed by the Court or by the Probation Officer”. We hold that placing the decision to incarcerate defendant at the discretion of the probation officer, without benefit of court order, is contrary to the statute which, in part, reads:
“As a condition of probation, the court may require the probationer to be imprisoned in the county jail * * * for not more than 6 months, at such time or intervals, which may be consecutive or nonconsecutive, within the probation period as the court may determine * * MCL 771.3(2); MSA 28.1133(2). (Emphasis added.)
Sentencing is a judicial function which cannot be abrogated by delegation. By allowing the probation officer to determine whether or not defendant will spend time in jail, the court delegated a judicial function contrary to the statute.
In both Olson and the instant matter, the probation form provided that the probationer is “forthwith committed”. The form order then provides that the remaining days of incarceration, after credit for time already spent in jail, shall be served "as directed”. While not previously raised, our review finds this to be an obvious conflict.
We conclude that when the probationary order is entered, the court must specify the specific time that the jail sentence shall be served. The court may order it served forthwith or at any time during the course of the probationary period. This allows the judge to have a greater degree of flexibility in meting out justice. The trial court can always set aside a condition of probation which imposes a jail sentence at its discretion.
The conviction is affirmed. The defendant’s sentence of probation is upheld, but that provision providing for the 179-day jail term is set aside and the case is remanded to the trial court to specify when the jail sentence, if any, shall be served.
We retain no further jurisdiction. | [
30,
1,
-17,
31,
-69,
5,
-3,
-38,
-17,
67,
35,
-19,
-5,
7,
40,
-8,
16,
46,
0,
3,
16,
-9,
5,
30,
-26,
-34,
45,
59,
17,
40,
-21,
25,
29,
-28,
30,
-16,
39,
-1,
41,
7,
-6,
-28,
18,
10,
-26,
-37,
0,
2,
13,
-59,
23,
20,
2,
6,
59,
45,
-13,
-26,
-17,
28,
16,
-22,
-53,
-31,
-7,
13,
-6,
18,
-53,
-53,
40,
34,
-2,
29,
25,
15,
-1,
29,
18,
61,
29,
-1,
8,
-4,
41,
11,
-6,
-51,
-31,
-40,
-8,
29,
-48,
-64,
-14,
-49,
29,
-42,
51,
-40,
-20,
9,
-9,
42,
-3,
29,
-41,
-40,
-65,
20,
9,
-18,
40,
-18,
-4,
-32,
-30,
24,
56,
19,
27,
-8,
25,
-8,
74,
-58,
36,
-36,
7,
-22,
1,
70,
39,
6,
3,
26,
-10,
72,
12,
17,
-21,
6,
46,
-6,
-14,
8,
39,
-26,
21,
14,
-57,
7,
-11,
37,
3,
15,
-21,
4,
-49,
-18,
35,
33,
-11,
-4,
18,
-47,
-10,
-11,
22,
5,
5,
12,
33,
1,
-6,
-7,
13,
7,
34,
-62,
-32,
8,
24,
-5,
-10,
36,
-6,
21,
-27,
-11,
21,
22,
-22,
8,
12,
17,
37,
52,
-1,
-26,
-40,
-27,
-3,
36,
10,
-59,
36,
-57,
8,
-10,
-34,
-11,
10,
-18,
19,
-40,
-9,
-10,
5,
2,
-29,
-10,
7,
-45,
10,
0,
31,
65,
25,
11,
47,
32,
87,
15,
15,
-5,
-5,
-8,
74,
38,
-14,
-3,
-20,
-9,
6,
-23,
15,
-36,
-22,
-7,
-23,
11,
4,
38,
-37,
-15,
9,
-33,
-27,
19,
23,
18,
-33,
43,
16,
21,
12,
21,
-73,
18,
-20,
-11,
-37,
-31,
-14,
23,
-39,
-9,
19,
-25,
26,
15,
32,
23,
-26,
22,
-11,
47,
19,
-11,
36,
3,
-34,
5,
9,
-1,
19,
-5,
-33,
30,
3,
42,
-31,
13,
-6,
-18,
2,
51,
-54,
8,
-9,
-14,
-2,
30,
1,
-13,
1,
-30,
66,
9,
-56,
17,
-12,
-19,
28,
-25,
48,
-24,
6,
-13,
13,
-25,
-33,
0,
1,
26,
-10,
-13,
-1,
27,
-35,
-42,
23,
6,
45,
41,
26,
14,
-31,
1,
32,
30,
-13,
52,
-24,
-17,
-34,
-29,
-1,
-3,
57,
18,
-14,
0,
19,
-27,
-10,
-4,
11,
36,
7,
-56,
-12,
0,
-1,
-11,
50,
-13,
-8,
4,
-16,
-13,
-3,
29,
4,
-58,
-50,
-57,
-3,
-14,
-47,
8,
-34,
-64,
-34,
-35,
-5,
7,
11,
-15,
-38,
31,
47,
16,
-17,
-10,
-32,
50,
-8,
-10,
-60,
18,
9,
7,
-42,
29,
28,
-12,
21,
-20,
3,
12,
-11,
-38,
5,
0,
-3,
18,
-22,
25,
27,
11,
26,
-28,
16,
41,
-38,
-22,
6,
-18,
-3,
-13,
-18,
5,
56,
0,
-35,
-47,
9,
17,
34,
-2,
-6,
-37,
-18,
83,
57,
18,
-4,
0,
35,
-53,
-44,
34,
15,
-33,
-36,
-65,
19,
-16,
8,
10,
25,
23,
-37,
0,
-19,
8,
18,
4,
-28,
-7,
-5,
-30,
-11,
-18,
-62,
-46,
0,
57,
7,
-11,
8,
43,
10,
0,
-31,
4,
35,
71,
-13,
5,
-5,
31,
34,
8,
52,
-35,
28,
-9,
-7,
38,
0,
25,
-3,
-12,
-21,
-45,
10,
34,
9,
-29,
17,
-30,
-22,
53,
-19,
-35,
-77,
11,
22,
-15,
13,
-24,
41,
-1,
-1,
-37,
-15,
0,
11,
38,
-43,
57,
25,
7,
12,
-53,
8,
-6,
1,
5,
23,
-11,
-4,
-3,
15,
33,
13,
-29,
-52,
18,
40,
16,
12,
-3,
-38,
14,
27,
20,
3,
23,
-41,
14,
-4,
14,
13,
5,
9,
22,
6,
39,
-35,
-11,
-2,
-4,
-2,
-12,
26,
-34,
-18,
30,
-20,
4,
-35,
-27,
-20,
-45,
46,
9,
8,
25,
-30,
24,
53,
-39,
20,
-7,
5,
34,
18,
-25,
-3,
-47,
-44,
-17,
-15,
-31,
-21,
57,
4,
-51,
27,
-8,
-39,
-67,
-30,
-27,
-43,
-5,
15,
21,
38,
-6,
-18,
30,
-37,
28,
-65,
-25,
-20,
18,
-16,
-18,
46,
2,
-26,
19,
-9,
-28,
-28,
48,
6,
0,
58,
4,
-44,
-3,
36,
-16,
-6,
29,
-78,
4,
-6,
15,
-32,
-26,
30,
-20,
28,
-3,
-14,
-5,
-9,
3,
-13,
-27,
24,
-2,
-38,
-22,
11,
-16,
4,
9,
-56,
-45,
16,
-1,
-17,
16,
7,
32,
55,
-31,
26,
78,
14,
14,
-6,
40,
-4,
-10,
-19,
21,
0,
-32,
26,
8,
-40,
42,
-21,
28,
-15,
-24,
-30,
10,
-48,
-2,
-16,
-13,
-1,
4,
19,
-13,
-22,
-31,
39,
-36,
28,
-26,
20,
-10,
0,
-6,
-37,
37,
3,
20,
-43,
6,
-10,
-50,
-21,
13,
31,
-30,
-37,
-6,
58,
7,
67,
27,
-36,
42,
33,
1,
-64,
-4,
0,
76,
-19,
35,
12,
-42,
-25,
-49,
-16,
-19,
-12,
-50,
48,
32,
-23,
-14,
-33,
19,
25,
-45,
3,
50,
-34,
9,
-26,
-38,
-9,
-43,
-2,
1,
-21,
11,
-37,
9,
18,
10,
-11,
7,
11,
-26,
46,
5,
27,
-21,
-52,
51,
26,
19,
-2,
31,
0,
48,
-22,
16,
18,
20,
-12,
2,
-17,
-31,
39,
27,
-21,
-53,
-41,
33,
15,
-60,
-6,
20,
12,
2,
23,
2,
-24,
10,
-5,
3,
7,
31,
27,
-35,
-3,
-6,
1,
18,
-6,
-40,
0,
24,
3,
-39,
-49,
-26,
18,
46,
8,
36,
26,
-23,
-22,
26,
-9,
-3,
20,
10,
21,
-15,
-28,
0,
-2,
6,
-3,
66,
-17,
6,
-6,
1,
-39,
-9,
44,
2,
12,
-7,
7,
-31,
-52,
-16,
-32,
-3,
-44,
45,
-31,
6,
-27,
-21,
40,
-26,
-4,
-35,
25,
-10,
-59,
38,
37,
9,
3,
3,
-39,
21,
-7,
4,
0,
-10,
22,
-39,
-53,
-37,
5,
-62,
-19,
37,
22,
36,
0,
-9,
0,
-45,
-56,
14,
-47,
8,
-9,
-20,
7,
-23,
24,
-57,
57,
-7,
-79,
-50,
-38,
24,
-39,
54,
13,
27,
3,
-19,
-24,
11,
-15,
17,
-47,
24,
0,
-14,
31,
-5,
-51,
24,
29,
-25,
34,
83,
-34,
-11,
-21,
37,
14,
-15,
18,
-20,
30,
-8,
33,
22,
-15,
25,
-57,
-50,
-27,
-17,
15,
-14,
18,
35,
-43,
-42,
-5,
-73,
25,
18,
-21,
-32,
-20,
22,
-14,
0,
-11,
-3,
-24,
-14,
4,
-42,
19,
-5,
-33,
20,
15,
10,
23,
-6,
-2,
20,
14,
20,
-57,
90,
-23,
37,
-14,
52
] |
Per Curiam:.
On January 25, 1978, respondent Michigan Department of Commerce, Corporation and Securities Bureau, ordered that funds held in escrow pursuant to an agreement be released to intervening respondents-appellants limited partners of Foote Hills Associates, a Michigan limited partnership. After the circuit court reversed the bureau’s determination, respondent and intervening respondents-appellants appeal as of right.
On April 16, 1973, the Securities Bureau approved the request of Foote Hills Associates and Financial Services Corporation of America to make a limited partnership offering. The purpose of the offering was to secure funds to enable the parties to complete construction of an apartment complex located in Kentwood, Michigan. As a condition of its approval, the Securities Bureau ordered that the proceeds of the issue be held by a depositary pursuant to the terms of an impoundment agreement between the issuer and depositary. The agreement, dated April 12, 1973, provided that the funds would be released from escrow upon the happening of the following events:
"(i) Upon compliance by the Underwriter with the condition in the order requiring this Escrow and upon request of the Underwriter the sum of $417,000.00 shall be released to the Underwriter;
"(ii) Upon request of the Underwriter and delivery to the Escrow Agent of the certificate of the Project Architect, Dimitrios Economedies, AIA, that the Project undertaken by the Issuer is 75% complete, the sum of $125,000 shall be released to the Underwriter.
"(iii) Upon request of the Underwriter made on the date of the initial closing of the permanent Loan, the Escrow Agent shall release the remaining $125,000 then in escrow together with all accrued interest, if any * * * »
The first two conditions were complied with, and the funds subject thereto were released. The final $125,000, with interest, that remains in escrow is the subject of this appeal.
Kelly Mortgage and Investment was the lender under the construction loan. As of June 1, 1974, Kelly had advanced $1,959,200.31 under the loan. At that time, the project was incomplete and the borrower was in default. The promoters desired to complete the project, and Kelly agreed to waive past defaults and to advance further sums on condition that a new general contractor was obtained.
Thereafter, the then-existing general contractor was replaced with petitioner, Fred J. Schwaemmle Construction Company. The orginal limited partnership agreement had provided that the final $125,000 remaining in escrow was to go to the original general contractor. Therefore, in order to accomplish the substitution of general contractors, a letter was sent to the limited partners requesting them to authorize an amendment of the limited partnership agreement. All of the limited partners agreed to the amendment.
The project subsequently failed, and the mortgage on the real property was foreclosed and the property sold. As a result, no permanent loan was ever obtained. In spite of the fact that the third condition in the escrow agreement was never complied with, Schwaemmle petitioned the Securities Bureau for release of the funds. It contended that the amendment of the limited partnership agreement constituted a waiver of the escrow condition. The bureau denied the request, stating that any attempt to obtain a waiver of the condition without prior bureau approval was ineffective. It further found that the amendment was vague and that disclosure to the investors was grossly inadequate. Based on these findings, the bureau ordered that the funds be returned to the original investors.
The petitioners appealed to the Ingham County Circuit Court which reversed the order of the bureau and awarded the funds to the petitioners.
As a preliminary matter, it is necessary to decide whether the circuit court used the proper standard to review the decision of the bureau. Section 28 of article 6 of the 1963 Michigan Constitution provides in relevant part:
"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.”
The standard of review for decisions of the Corporation and Securities Bureau is stated in MCL 451.811(a); MSA 19.776(411)(a):
"Any person aggrieved by a final order of the administrator may obtain a review of the order in the circuit court for the county of Ingham by filing in court, within 60 days after the entry of the order, a written petition praying that the order be modified or set aside in whole or in part. A copy of the petition shall be forthwith served upon the administrator, and thereupon the administrator shall certify and file in court a copy of the filing and evidence upon which the order was entered. When these have been filed, the court has exclusive jurisdiction to affirm, modify, enforce or set aside the order in whole or in part. The findings of the administrator as to the facts, if supported by competent, material and substantial evidence, are conclusive.”
The circuit court in the present case did not apply the above standard in reviewing the bureau’s decision. Rather, in effect, it conducted a de novo proceeding and found that the waivers were valid. Since the circuit court did not use the proper standard in reviewing the bureau’s decision, this Court must review the decision to determine whether it was supported by competent, material, and substantial evidence on the whole record and whether it was authorized by law.
The bureau found that petitioners’ failure to obtain prior bureau approval rendered the "waiver” provision ineffective regardless of whether or not the investors voluntarily waived their rights under the escrow agreement. Petitioners contend that the bureau was without authority to require prior bureau approval before waivers seeking the release of the final $125,000 from escrow could become effective.
MCL 451.705(f)(2); MSA 19.776(305)(f)(2) provides in relevant part:
"(f) The administrator may by rule or order require as a condition of registration by qualification or coordination:
"(2) That the proceeds from the sale of the registered security in this state be impounded until the issuer receives a specified amount from the sale of the security either in this state or elsewhere. The administrator may by rule or order determine the conditions of any escrow or impounding required hereunder, and, after prior notice and opportunity for hearing, may order the cancellation in whole or in part of any such security deposited in escrow where necessary for the protection of security holders. The administrator may not reject a depository solely because of location in another state.”
It is apparent from the express language contained in the statute that the bureau is authorized to impose, either by rule or order, conditions concerning the escrow agreement beyond those relating to the minimum amount required for release. Pursuant to this statutory authority, the bureau promulgated the following rule:
"Rule 705.3. (1) As a condition to registration by qualification or coordination, the administrator may require that the proceeds from the sale of the registered security in this state be impounded until the issuer receives a specified amount from the sale of the security in this state or elsewhere, sufficient to accomplish the purposes of the offering, or until certain stipulated requirements are met.
"(4) A request for the release of impounded funds when requirements are met shall be by petition in writing affirming compliance with the registration and shall be accompanied by a statement from the depositáry setting forth the total amount on deposit.”
The above rule authorizes the administrator to impose conditions on the release of escrow funds other than the requirement that the issuer receive a specified amount from the sale. It further states that the funds may not be released until a petition is filed demonstrating that the issuers complied with the registration. Concerning this particular offering, the bureau administrator issued an order which provided in pertinent part as follows:
"3. The issuer shall deposit or cause selling broker-dealer to deposit and leave with the depositary until further order of the bureau in a special impoundmend [sic] account 100 percent of the gross receipts accepted, being 100 percent of the offering price, derived from the offer of securities pursuant to this registration statement, subject to the rules of the bureau and the terms of an impoundment agreement satisfactory to the bureau between the issuer and the depositary, except that funds on deposit may be invested by the depositary in certificates of deposit or short term United States treasury obligations which securities and interest or gain or return thereon must then be deposited within four (4) full business days after payment and all payments not accepted shall be promptly returned with all copies of the subscription agreement.
"Deposits in the impoundment account are subject to further order of the bureau which as set forth below (a) may direct the release of funds to other than the conditional subscribers or (b) may direct the return of all or any of the funds to the conditional subscribers entitled thereto:
"(a) The bureau may by its order direct the depositary to release all or part of the deposits in the impoundment account to other than the conditional subscribers if petition is submitted to the bureau on or before June 15, 1973 and if at the time of the submittal of the petition a showing is made to the bureau.
"(3) There has been full compliance with the other conditions of this order and the law and regulations.”
The order also stated:
"5. None of the securities shall be offered and sold except in accordance with the terms of this order and the registration statement without first securing amendment of the order or the written permission of the bureau. Before executing any agreements or before finalizing and putting into effect any proposed changes, requirements of the bureau shall be ascertained and compliance effected therewith.”
It is apparent from the above that the bureau incorporated the conditions contained in the escrow agreement into its order. The condition contained in the escrow agreement relating the release of the final $125,000 was the following:
"(iii) Upon request of the Underwriter made on the date of the initial closing of the Permanent Loan, the Escrow Agent shall release the remaining $125,000 then in Escrow together with all accrued interest, if any * * *:”
It is conceded by the parties that closing never occurred on the permanent loan. Petitioners con tend that the amendment signed by the investors was effective to alter the conditions stated above. That contention ignores paragraph five of the bureau’s order, which states that the terms of the order and of the registration statement may not be altered without prior bureau approval. No such prior approval was requested or received, nor was written consent of the bureau sought and obtained.
It also ignores MCL 451.810(g); MSA 19.776(410)(g), which provides in pertinent part:
"(g) Any condition, stipulation, or provision binding any person acquiring any security or commodity contract to waive compliance with any provision of this act or any rule or order hereunder is void.”
It is apparent from the above that the bureau was fully authorized to impose the above condition concerning release of the escrow funds. Without prior bureau approval, the parties could not alter that condition.
Even assuming that the investors could have waived the escrow condition without having received prior bureau approval, it does not appear that this amendment was effective to accomplish this result. In September, 1974, the investors were sent a letter in which they were asked to agree to an amendment of the limited partnership agreement. The provision of the limited partnership agreement which they were asked to amend related to the party who was entitled to received the $125,000 held in escrow once the escrow condition was complied with. In order for a waiver to be effective, it must be shown that the waiving party voluntarily and intentionally relinquished a known right. Neither the letter nor the amend ment contained any reference to the escrow agreement. .
The three investors who testified at the hearing all claimed that it was their understanding that the only purpose of the amendment was to enable the substitution of Schwaemmle for the original contractor. There was no evidence introduced at the hearing which demonstrated that any investors had actual knowledge that this amendment was intended to alter the terms of the escrow agreement.
In view of the fact that the May, 1974, and the September, 1974, communications which were sent to the investors did not refer specifically to waiver of the escrow provisions, and in view of the fact that none of the investors were shown to have had actual knowledge of the proposed change of the escrow agreement, it appears that the bureau’s decision to deny petitioners’ request was supported by competent, material, and substantial evidence. Its decision to return the funds contained in the escrow account to the investors should not have been set aside.
The circuit court is reversed. The decision of the Corporation and Securities Bureau is reinstated.
1979 AC R 451.705.3(1), (4).
Bissell v L W Edison Co, 9 Mich App 276; 156 NW2d 623 (1967). | [
14,
53,
9,
8,
-50,
52,
39,
26,
4,
-23,
4,
2,
17,
39,
-36,
28,
12,
24,
8,
19,
-16,
0,
-22,
13,
-8,
18,
56,
-10,
76,
46,
-7,
-36,
-29,
-4,
-54,
0,
8,
32,
25,
-33,
-28,
-15,
-31,
31,
-46,
-48,
13,
-48,
38,
-21,
55,
45,
47,
-14,
10,
8,
-24,
13,
-4,
32,
-11,
-2,
-3,
53,
20,
7,
-10,
7,
41,
19,
0,
-5,
-21,
16,
-1,
0,
3,
49,
-31,
-65,
18,
-29,
41,
6,
-39,
13,
9,
-22,
20,
25,
-64,
-32,
-7,
9,
-27,
31,
27,
-55,
-15,
25,
7,
23,
6,
23,
16,
17,
32,
-35,
-2,
60,
-7,
-51,
-16,
18,
-70,
22,
-22,
24,
21,
-37,
-42,
-1,
-5,
-1,
32,
-3,
-30,
-31,
-29,
37,
-35,
12,
-38,
30,
-25,
6,
43,
-29,
22,
13,
-18,
16,
-15,
-45,
-33,
-27,
0,
-59,
45,
-28,
-6,
-36,
-17,
49,
-12,
-19,
-36,
8,
15,
-41,
0,
-47,
-9,
0,
-38,
-28,
-20,
60,
-14,
16,
45,
22,
-24,
-34,
-40,
-21,
36,
20,
2,
39,
17,
54,
27,
49,
-7,
17,
-14,
29,
29,
-21,
22,
-17,
-16,
35,
-42,
-1,
6,
13,
0,
20,
-49,
-38,
-4,
-16,
-6,
-33,
34,
21,
0,
23,
-16,
23,
-44,
-36,
-8,
-33,
-4,
13,
24,
4,
21,
12,
9,
35,
-45,
1,
26,
14,
-20,
-25,
-2,
21,
2,
-15,
-5,
26,
14,
60,
16,
48,
9,
-35,
-51,
-22,
-35,
-35,
10,
-40,
4,
7,
-38,
-31,
-17,
11,
-6,
4,
-54,
49,
-28,
10,
2,
11,
-67,
5,
-9,
-14,
-19,
-2,
-52,
0,
-5,
8,
35,
44,
-30,
-56,
-25,
6,
-8,
-59,
28,
-39,
10,
26,
16,
55,
40,
-7,
-35,
26,
33,
1,
8,
-15,
47,
-47,
-35,
-29,
12,
0,
-13,
-9,
-11,
-20,
10,
14,
-8,
12,
-23,
2,
34,
-46,
26,
13,
14,
9,
29,
-20,
41,
-22,
46,
14,
32,
4,
62,
-7,
59,
-3,
-53,
-3,
-9,
-10,
9,
40,
-29,
20,
19,
-72,
-53,
19,
3,
-5,
35,
-14,
1,
-17,
7,
-48,
-15,
0,
6,
-11,
-59,
31,
12,
34,
40,
33,
-37,
61,
19,
7,
17,
-14,
-14,
-7,
-6,
-7,
50,
26,
-11,
16,
-57,
8,
-2,
9,
-48,
-28,
-47,
3,
-10,
3,
55,
64,
45,
-32,
-32,
-3,
-37,
-38,
-60,
-44,
31,
11,
-35,
-78,
3,
16,
-26,
-38,
14,
1,
-6,
1,
0,
14,
3,
2,
23,
3,
-4,
-8,
1,
-12,
-25,
7,
26,
-62,
25,
-7,
-8,
-9,
-47,
-94,
-32,
-4,
-11,
33,
-88,
-22,
-64,
54,
-2,
-32,
26,
40,
-14,
-24,
-66,
-15,
-29,
5,
12,
-17,
17,
31,
-44,
-9,
52,
20,
4,
64,
17,
40,
-21,
26,
25,
-61,
32,
5,
50,
-12,
5,
-52,
-23,
-6,
35,
-3,
2,
16,
-24,
23,
-11,
46,
-8,
-27,
20,
19,
-27,
6,
-9,
38,
-3,
8,
-63,
-16,
-8,
-50,
-51,
30,
36,
27,
30,
0,
-25,
-15,
-18,
-18,
-4,
-23,
16,
-43,
44,
48,
18,
-2,
24,
-49,
-28,
-4,
-44,
-7,
20,
65,
-14,
31,
-27,
4,
51,
58,
-61,
-8,
-30,
-11,
32,
104,
3,
23,
6,
-6,
-16,
-1,
1,
-23,
20,
-8,
-9,
45,
24,
11,
-3,
42,
-50,
9,
8,
36,
29,
61,
-26,
-28,
-56,
-34,
-9,
57,
-11,
-45,
23,
-25,
9,
-3,
-67,
30,
33,
-1,
-34,
-43,
-37,
-21,
-25,
30,
-3,
42,
-17,
14,
11,
-21,
8,
11,
-25,
3,
-22,
-14,
-29,
-37,
-35,
24,
34,
57,
-25,
-15,
1,
-62,
3,
-38,
-4,
39,
-45,
-7,
-28,
-33,
-48,
-23,
-1,
-40,
15,
-48,
-13,
48,
15,
7,
-6,
-23,
2,
4,
-14,
-17,
41,
15,
49,
23,
9,
32,
33,
-30,
18,
46,
0,
53,
8,
82,
29,
0,
41,
7,
56,
-9,
14,
9,
-27,
-12,
-18,
38,
-14,
-11,
30,
-13,
-9,
4,
24,
12,
-10,
4,
27,
1,
41,
-3,
55,
-24,
32,
-33,
19,
0,
-3,
47,
18,
-35,
-25,
13,
61,
7,
-12,
24,
24,
0,
50,
-19,
-5,
-3,
-10,
1,
4,
3,
-58,
-5,
-15,
-24,
-18,
-32,
-19,
23,
-22,
-30,
-75,
-27,
-1,
3,
-7,
11,
47,
-25,
14,
33,
13,
27,
-33,
27,
-40,
-2,
-15,
79,
-8,
14,
27,
6,
-8,
21,
-19,
12,
-21,
-26,
-27,
-42,
-15,
3,
8,
26,
0,
-58,
-48,
44,
-11,
19,
-10,
29,
-15,
5,
6,
18,
-8,
39,
21,
-16,
-20,
-16,
-30,
-15,
2,
28,
-22,
24,
13,
19,
-19,
50,
3,
-26,
-45,
14,
-18,
38,
-72,
-36,
-2,
0,
46,
19,
5,
6,
45,
-63,
-19,
45,
-38,
59,
-44,
-46,
31,
18,
25,
3,
-2,
-15,
-3,
-1,
56,
-50,
28,
-6,
30,
28,
-39,
-7,
46,
6,
6,
59,
4,
22,
18,
-25,
-33,
57,
-8,
22,
0,
9,
-51,
3,
52,
-28,
-26,
-19,
0,
-25,
20,
74,
2,
40,
-3,
15,
-28,
36,
-48,
-33,
-28,
16,
-23,
36,
-12,
1,
7,
-20,
0,
14,
21,
-28,
20,
9,
17,
-6,
7,
-51,
-49,
-1,
25,
-39,
-61,
-4,
-6,
3,
-40,
-39,
38,
10,
8,
41,
-24,
-19,
55,
33,
36,
21,
-33,
9,
14,
-49,
-10,
6,
8,
35,
-11,
28,
-53,
35,
-13,
-8,
6,
22,
-53,
-27,
3,
51,
2,
-36,
4,
-9,
49,
-11,
6,
25,
-32,
45,
-44,
0,
16,
-31,
13,
-27,
7,
-5,
3,
-20,
-5,
10,
-15,
60,
-11,
51,
19,
3,
5,
-18,
19,
-29,
-60,
41,
20,
-37,
-44,
30,
10,
-11,
-82,
-15,
-4,
10,
15,
23,
1,
22,
33,
26,
-28,
1,
-6,
-74,
26,
-62,
-57,
-4,
4,
-5,
-51,
31,
-23,
-16,
6,
-19,
23,
-26,
11,
-6,
-18,
47,
-24,
-3,
-33,
18,
-19,
-45,
-36,
27,
14,
-73,
42,
2,
18,
-44,
8,
-26,
38,
21,
-48,
4,
-15,
16,
-38,
-5,
-14,
-55,
48,
7,
7,
7,
-30,
-21,
43,
77,
30,
-14,
59,
-22,
-7,
0,
17,
0,
34,
37,
-12,
-35,
-2,
7,
-12,
3,
-3,
12,
9,
40,
-10,
-11,
-16,
-7,
-21,
0,
-1,
-4,
-18,
17,
11,
4,
37,
-2,
-43,
36
] |
M. J. Kelly, P.J.
In this action, plaintiffs appeal from a lower court order granting separate motions for summary judgment filed by defendants Emanuel J. Harris and Arthur Young & Company. GCR 1963, 117.2(1). The order of the lower court dismissed derivative claims brought by the plaintiffs on behalf of the Book Building Company, a partnership established in 1958 to "acquire, manage and operate the Book Building” located in Detroit.
Plaintiffs are limited partners in the Book Building Co. Defendant Harris, also a limited partner, is the sole general partner and manages the partnership. Defendant Arthur Young & Company audited the books and records of the partnership from 1967 through 1976 and provided periodic reports of the financial position of the company to the partners. As general partner, Harris contributed $400,000, or 25 percent of the partnership’s initial capitalization of $1,600,000. As limited partners, Harris and his wife contributed an additional $505,000. The contributions of the Krafts totaled $64,000; Lillian Jaffe and Geraldine Schwartz made contributions of $24,000 and $64,000, respectively. The partnership agreement provided that 25 percent of the net profits of the enterprise were to be allocated to Harris as general partner, with the remaining 75 percent divided between the limited partners, including Harris, in proportion to their capital contributions. The agreement also provided that Harris was to be compensated for his managerial services at the rate of three percent of the gross receipts of the partnership derived from the operation of the Book Building.
Plaintiffs alleged that defendant Harris misap propriated partnership funds since 1958 and that defendant Arthur Young committed malpractice by failing to disclose Harris’ alleged misconduct in the financial statements that were prepared. A subsequent complaint added counts alleging fraud, breach of fiduciary duty, and breach of contract against Arthur Young. All of the claims against defendant Arthur Young relate to its failure to inform the limited partners of the actions of defendant Harris. The specific allegations against Harris were: (1) that he withdrew partnership funds for his own use without compensating the partnership, (2) that he charged personal expenditures as expenses of the partnership, (3) that he increased his management fee from three percent without authorization from the other partners, and (4) that he charged administration expenses directly against partnership profits instead of against the set management fee. The complaint and amendments were captioned to indicate that the plaintiffs were suing individually, on behalf of all other limited partners, and derivatively, on behalf of the partnership. The order of summary judgment herein dismissed that aspect of the plaintiffs’ complaints seeking to enforce derivatively the partnership’s cause of action.
I
The first issue presented is a novel one in this jurisdiction. There is no case law on point nor any clear statutory directive. Defendants contend that the absence of an express statutory provision allowing derivative actions on behalf of partnerships mandates the conclusion that the Legislature intended to limit such actions to corporations. Plaintiffs allege that the right to sue derivatively is grounded in the common law and remains viable until specifically removed by the Legislature.
The statute governing intrapartnership actions by or against limited partners is MCL 449.226; MSA 20.76, which provides:
"A contributor, unless he is a general partner, is not a proper party to proceedings by or against a partnership, except where the object is to enforce a limited partner’s right against or liability to the partnership.”
While no Michigan cases have interpreted the scope of this provision, several cases in jurisdictions . with similar statutory language have addressed the specific claim herein. We note that the plaintiffs do not claim this statute as a basis to permit their derivative claim, rather, that the provision does not bar a common-law claim.
The landmark case of Klebanow v New York Produce Exchange, 344 F2d 294 (CA 2, 1965), interpreted a statute, NY Partnership Law (McKinney), § 115, identical to our own. The Klebanow court concluded that § 115 was not a statutory bar to maintenance of the plaintiff’s derivative action:
"The purposes of § 115, like that of its less minatory predecessor, were reasonably plain. General partners need not join limited partners in an action by the partnership; ordinarily limited partners may not sue since this will interfere with the management by the general partners, Lieberman v Atlantic Mutual Ins Co, 62 Wash 2d 922; 385 P2d 53 (1963); a suitor against the partnership need not join a limited partner; indeed, he may not do so if the partnership be solvent. See Fuhrman v Von Pustau, 126 App Div 629; 111 NYS 34 (1908). The words say all this and say it well. But they do not have to be read as saying that a limited partner cannot bring an action on behalf of the partnership when the general partners have disabled themselves or wrongfully refused; and, although they could be so read, we see no sufficient reason for doing so when in quite similar situations the cestui que trust or the preferred stockholder is allowed to do exactly that. The predecessor New York statute would hardly be read as going so far; we see no basis for thinking that, in its effort to achieve uniformity with other states, the legislature thought it would be altering New York law in this respect. Although the state decisions bearing directly on the point are from tribunals not high in the judicial hierarchy and may be susceptible of distinction, they at least reveal that the New York courts do not consider § 115 a clear mandate against limited partners’ capacity to bring an action like this. Cooper Prods Co v Twin-Bowl Co, NYLJ, August 21, 1962, p 8, col 7 (Sup Ct); Executive Hotel Associates v Elm Hotel Corp, 41 Misc 2d 354; 245 NYS2d 929 (Civ Ct), aff’d per curiam, 43 Misc 2d 153; 250 NYS 351 (App T 1964) * * Id., 298. (Emphasis added.)
See also Riviera Congress Associates v Yassky, 18 NY2d 540; 277 NYS2d 386; 223 NE2d 876 (1966), and Strain v Seven Hills Associates, 75 App Div 2d 360; 429 NYS2d 424 (1980), for subsequent New York cases reaching a similar interpretation of the disputed statutory language. Finally, see Smith v Bader, 458 F Supp 1184 (SD NY, 1978), interpreting the identical language in Cal Corporation Code, § 15526 (West).
When addressed with a question of statutory intent, we will look first to the specific language of the statute to determine its meaning. The Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104; 252 NW2d 818 (1977), Pontiac Board of Education v City of Pontiac, 100 Mich App 52; 299 NW2d 37 (1980). Absent legislative intent to the contrary, specific terms within the disputed statute will be accorded their plain and ordinary meaning. Bingham v American Screw Products Co, 398 Mich 546, 563; 248 NW2d 537 (1976). Applying these rules of construction, we hold that MCL 449.226; MSA 20.76 does not bar a derivative action by a limited partner.
Having found the disputed statute not to anticipate or bar a limited partner’s derivative claim, we must necessarily determine whether, under common-law principles, a derivative action is in fact available. The Klebanow court held in favor of a limited partner’s right to sue derivatively by analogy to the similar remedy accorded a cestui que trust, Bonham v Coe, 249 App Div 428; 292 NYS 423 (1937), aff'd 276 NY 540; 12 NE2d 566 (1937), and preferred stockholders of a corporation. Ashwander v Tennessee Valley Authority, 297 US 288; 56 S Ct 466; 80 L Ed 688 (1936).
In Michigan, the right of a cestui que trust to bring suit against the trustee on behalf of the trust has long been recognized. See Roberts v Michigan Trust Co, 273 Mich 91, 105-106; 262 NW 744 (1935), citing Hunt v Hunt, 124 Mich 502; 83 NW 371 (1900). See also 2 Restatement of Trusts, 2d, § 282, p 44 (1959). Similarly the right of a shareholder to prosecute claims of a corporation has been recognized by statute, MCL 450.1491; MSA 21.200(491), and case law. Curtiss v Wilmarth, 254 Mich 242, 252-255; 236 NW 773 (1931). The Klebanow court also summarized several aspects of shareholder status comparable to a limited partner:
"[I]n the main, a limited partner is more like a shareholder often expecting a share of the profits, subordinated to general creditors, having some control over direction of the enterprise by his veto on the admission of new partners, and able to examine books and 'have on demand true and full information of all things affecting the partnership * * See NY Partnership Law §§ 98, 99, 112. That the limited partner is immune to personal liability for partnership debts save for his original investment, is not thought to be an 'owner’ of partnership property, and does not manage the business may distinguish him from general partners but strengthens his resemblance to the stockholder; and even as to his preference in dissolution, he resembles the preferred stockholder.” Id., 297.
For comparable Michigan statutory provisions, see MCL 449.207; MSA 20.57 (limited partner not personally liable for partnership debts), MCL 449.223; MSA 20.73 (limited partner subordinated to right of general partnership creditors upon dissolution), and MCL 449.210(l)(a); MSA 20.60(l)(a) (right of limited partner to demand partnership information and inspect partnership books).
The substantial similarity between the interests of limited partners, corporate shareholders, and cestuis que trust compels the conclusion that a derivative cause of action is available by which limited partners can enforce partnership causes of action. To hold otherwise would, we believe, render unenforceable the rights of limited partners accorded by the statutes listed above. Further, the limited partner would be left with the sole remedy of seeking dissolution of the partnership, MCL 449.210(l)(c); MSA 20.60(l)(c), if the general partner violated his statutory duties to act for the organization. MCL 449.209; MSA 20.59. We find, therefore, that a limited partner may initiate a derivative cause of action, not subject to dismissal under GCR 1963, 117.2(1).
II
Defendants allege that, even if a derivative cause of action is available to aggrieved limited partners generally, the waiver of rights forms signed by those limited partners who represent 76 percent of the total capital of the partnership precludes such an action in this case. We disagree. In the related area of derivative actions by stockholders to enforce claims of a corporation, the initiating shareholder may press the corporate claim individually or on behalf of other investors.
The sole statutory prerequisites to maintenance of a stockholder’s derivative action are embodied in MCL 450.1491; MSA 21.200(491):
"(1) An action may be brought in the right of a domestic or foreign corporation to procure a judgment in its favor, by a record holder or beneficial owner of shares or of voting trust certificates of the corporation.
"(2) In such an action, the complaint shall allege:
"(a) That the plaintiff is such a holder at the time of bringing the action and that he was such a holder at the time of the transaction of which he complains, or that his shares or his interest therein devolved upon him by operation of law from a person who was a shareholder at such time.
"(b) With particularity, the effort of the plaintiff to secure the initiation of the action by the board or the reasons for not making the effort.”
A plain reading of this statute discloses no requirement that a corporate shareholder, to maintain a derivative action, must represent the interests of fellow shareholders. Further, a stockholder’s derivative action by its very nature does not seek to enforce the rights of individual shareholders. Rather, the action seeks enforcement of a corporate claim from which the shareholders derive only an incidental benefit. Dean v Kellogg, 294 Mich 200, 207; 292 NW 704 (1940), citing Talbot v Scripps, 31 Mich 268 (1875), Horning v Louis Peters & Co, 202 Mich 140; 167 NW 874 (1918), Curtiss, supra, and Davenport v Dows, 85 US (18 Wall) 626; 21 L Ed 938 (1874). See also 7 Michigan Law & Practice, Corporations, § 231, p 191, and Strain, supra, 431.
Because of the significant similarities between stockholders and limited partners, we reject the defendants’ contention that a limited partner must represent the interests of other limited partners before initiating a derivative action. We reverse the lower court’s orders granting defendants’ separate motions for summary judgment and remand the case for proceedings consistent with this opinion.
Reversed and- remanded.
T. M. Burns, J., concurred.
The Restatement notes the following situations in which a beneficiary may bring suit to enforce a claim not pursued by the trustee:
"(1) Where the trustee could maintain an action at law or suit in equity or other proceeding against a third person if the trustee held the property free of trust, the beneficiary cannot maintain a suit in equity against the third person, except as stated in Subsections (2) and (3).
"(2) If the trustee improperly refuses or neglects to bring an action against the third person, the beneficiary can maintain a suit in equity against the trustee and the third person.
"(3) If the trustee cannot be subjected to the jurisdiction of the court or if there is no trustee, the beneficiary can maintain a suit in equity against the third person, if such suit is necessary to protect the interest of the beneficiary.”
Shortly after the decision in Klebanow, the New York Court of Appeals, in Lichtyger v Franchard Corp, 18 NY2d 528, 536; 277 NYS2d 377; 223 NE2d 869 (1966), compared the relationship of general and limited partners to corporate directors and shareholders and held:
"There is no basis or warrant for distinguishing the fiduciary relationship of corporate director and shareholder from that of general partner and limited partner. The principle is the same — those in control of a business must deal fairly with the interests of the other investors and this is so regardless of whether the business is in corporate or partnership form.” | [
0,
-8,
19,
16,
33,
14,
8,
-21,
-17,
-50,
-65,
-11,
2,
30,
-2,
-31,
-13,
22,
42,
-52,
53,
-16,
-4,
3,
35,
55,
36,
-24,
58,
-26,
-2,
-19,
-21,
-14,
-37,
34,
-2,
25,
-15,
-64,
-28,
-22,
15,
58,
-16,
2,
27,
-22,
64,
-39,
10,
-3,
48,
13,
29,
-27,
-11,
64,
7,
-20,
12,
27,
23,
44,
7,
5,
0,
-1,
19,
-29,
-28,
-9,
44,
23,
-78,
-59,
-10,
-14,
24,
-13,
7,
0,
33,
4,
-30,
1,
22,
-28,
-6,
40,
-43,
37,
-5,
32,
50,
58,
-54,
3,
6,
24,
29,
-26,
-17,
16,
-3,
9,
60,
-48,
-19,
26,
-58,
11,
11,
19,
-32,
-21,
44,
-21,
-33,
3,
-44,
69,
-16,
1,
18,
28,
18,
38,
-36,
35,
4,
43,
-19,
-27,
-19,
2,
15,
-10,
1,
-18,
6,
28,
-46,
-6,
-43,
48,
-57,
0,
-33,
-37,
-1,
-37,
-1,
68,
-5,
-37,
-34,
10,
30,
-40,
13,
-49,
25,
-42,
11,
-2,
-9,
-27,
-2,
-12,
-17,
3,
-28,
-31,
-41,
15,
-5,
-28,
-19,
-17,
4,
18,
-2,
30,
-37,
15,
67,
55,
-12,
42,
24,
-28,
-57,
32,
-20,
15,
-14,
42,
16,
14,
-19,
-8,
-25,
-61,
18,
-5,
42,
14,
-20,
39,
-19,
25,
28,
-14,
-41,
19,
-33,
-34,
-17,
-28,
-10,
-7,
-35,
-3,
-31,
-46,
14,
26,
5,
-19,
-55,
45,
2,
23,
-34,
-7,
29,
29,
-16,
22,
-20,
-48,
-21,
17,
20,
24,
-33,
-26,
-10,
30,
-8,
-10,
-13,
15,
-27,
-17,
-53,
57,
6,
-16,
0,
43,
-70,
-5,
0,
-39,
16,
17,
-20,
23,
-55,
-29,
27,
41,
-44,
-27,
-47,
23,
-21,
6,
14,
-63,
21,
-33,
4,
26,
48,
18,
0,
-4,
-17,
32,
20,
-47,
68,
-19,
19,
-5,
-57,
-7,
-39,
-11,
33,
-27,
-3,
29,
-27,
-39,
45,
-21,
-42,
-15,
1,
-60,
9,
-22,
-22,
16,
47,
-50,
49,
4,
1,
73,
31,
-53,
88,
-19,
34,
17,
28,
9,
25,
-29,
-48,
-29,
41,
-31,
12,
3,
-2,
33,
34,
-38,
-28,
30,
-6,
9,
-19,
-32,
23,
-27,
34,
45,
52,
45,
64,
0,
-23,
53,
10,
-16,
21,
-3,
-63,
2,
-19,
21,
11,
41,
-50,
13,
-53,
0,
-20,
33,
-28,
-3,
-14,
53,
17,
-17,
21,
-5,
4,
-83,
-2,
-43,
-14,
19,
-82,
23,
40,
-6,
-8,
-4,
-17,
17,
-24,
0,
16,
21,
15,
37,
-23,
41,
18,
-8,
-11,
0,
2,
35,
18,
11,
-51,
-22,
36,
-35,
36,
28,
50,
-4,
-52,
-55,
1,
-41,
-3,
49,
-14,
-27,
-88,
-6,
-29,
-40,
42,
35,
-27,
-9,
5,
-11,
-15,
0,
-34,
21,
47,
15,
21,
13,
44,
56,
-23,
60,
-7,
63,
6,
-4,
14,
-43,
-16,
11,
28,
29,
9,
25,
-2,
27,
31,
-44,
-9,
60,
-42,
-6,
-22,
37,
-46,
-55,
17,
-10,
-5,
-40,
23,
44,
-21,
36,
-39,
-8,
-7,
-14,
-65,
-3,
-8,
35,
1,
32,
12,
-9,
14,
4,
-62,
-17,
-33,
-43,
23,
40,
22,
-38,
26,
-39,
-13,
21,
-19,
-48,
36,
23,
23,
11,
16,
48,
52,
35,
30,
-21,
-17,
30,
-45,
27,
-15,
32,
54,
2,
15,
1,
-8,
20,
-15,
-47,
28,
-3,
52,
28,
37,
46,
-14,
13,
14,
10,
-24,
45,
12,
18,
-19,
-22,
21,
31,
-25,
35,
69,
0,
69,
3,
-19,
59,
-17,
3,
-7,
-19,
-89,
-37,
40,
42,
-11,
18,
-4,
35,
-14,
-30,
9,
15,
-16,
-28,
-64,
-5,
11,
-27,
-59,
46,
57,
31,
-4,
-5,
-38,
-65,
-48,
-46,
69,
-9,
-3,
6,
66,
-21,
-36,
-23,
-16,
-64,
-52,
-27,
-27,
27,
-26,
-38,
3,
-9,
-22,
-18,
4,
-65,
-26,
-51,
25,
24,
-13,
-3,
0,
-20,
78,
62,
8,
19,
-13,
46,
9,
-14,
-16,
-3,
9,
23,
9,
32,
-47,
11,
16,
29,
30,
-6,
-18,
-47,
-7,
-9,
-13,
-2,
10,
15,
20,
42,
-33,
0,
10,
24,
48,
-33,
30,
-21,
-12,
62,
22,
-42,
20,
26,
11,
-7,
-24,
-23,
-10,
26,
26,
-7,
-73,
2,
25,
-24,
18,
25,
-14,
16,
40,
15,
-1,
-46,
-25,
-58,
-45,
9,
-52,
-52,
-65,
46,
9,
-2,
21,
-37,
-23,
8,
8,
54,
-21,
-33,
-33,
5,
-24,
19,
16,
10,
16,
0,
-7,
-15,
-17,
40,
-47,
-12,
18,
-24,
-19,
-8,
-18,
31,
54,
35,
-18,
-20,
-46,
-33,
-31,
46,
-34,
58,
-8,
-70,
-25,
18,
22,
-36,
-44,
-67,
-26,
15,
-18,
65,
-1,
37,
11,
37,
21,
19,
-3,
-66,
20,
6,
-26,
0,
-43,
-17,
14,
-27,
11,
37,
3,
12,
45,
-39,
-21,
9,
-3,
11,
-35,
-11,
57,
61,
7,
-6,
31,
-32,
-5,
44,
5,
-21,
26,
39,
38,
22,
-27,
-10,
-24,
-6,
4,
0,
5,
35,
-27,
-41,
-22,
56,
2,
11,
-29,
-40,
-39,
5,
63,
7,
-50,
-30,
0,
-3,
15,
11,
-66,
-21,
-10,
9,
-30,
36,
5,
0,
-9,
-4,
5,
62,
-28,
29,
12,
-15,
-40,
3,
15,
39,
6,
-3,
-61,
-42,
30,
10,
-60,
36,
-3,
11,
-83,
45,
14,
-48,
13,
-10,
-13,
-6,
0,
33,
8,
-85,
-15,
-12,
-28,
4,
-8,
15,
-14,
28,
-19,
1,
39,
18,
11,
51,
-16,
-3,
61,
28,
24,
-16,
-31,
2,
-44,
31,
-33,
-4,
30,
-32,
-8,
-12,
7,
21,
9,
-40,
19,
-22,
-19,
-53,
-25,
-26,
62,
24,
1,
-34,
8,
8,
7,
26,
-5,
7,
5,
7,
25,
23,
64,
9,
-94,
10,
16,
55,
-4,
44,
0,
-34,
-31,
-5,
28,
6,
3,
67,
22,
31,
65,
-23,
35,
0,
41,
-33,
40,
-66,
-66,
55,
60,
-17,
-3,
9,
-35,
-5,
-53,
0,
-25,
-66,
8,
-22,
-25,
55,
-61,
53,
7,
1,
-26,
-33,
-25,
11,
-2,
-53,
5,
-42,
31,
-51,
8,
-32,
-11,
-23,
2,
-31,
4,
37,
-24,
5,
32,
-41,
75,
-57,
-27,
0,
-12,
-38,
-10,
32,
32,
-1,
39,
-14,
-26,
-29,
4,
42,
20,
-9,
63,
-57,
2,
-8,
24,
-65,
-2,
7,
25,
13,
23,
14,
2,
8,
71,
8,
-4,
3,
2,
10,
-23,
11,
-69,
11,
-22,
40
] |
Bronson, P.J.
Plaintiff appeals by leave granted an order of the Macomb County Circuit Court affirming the decision of the 37th Judicial District Court denying plaintiff any damages for defendant’s breach of a leasing agreement between the parties.
Plaintiff owns and operates Lakeshore Village Shopping Center in St. Clair Shores. On September 1, 1976, plaintiff executed a lease with Heritage Cleaners (hereinafter defendant) as lessee for space in the shopping center. The lease provided for rent in the amount of $450 per month and was to run for a period of five years.
Defendant voluntarily vacated the premises in July, 1977, and made no further rental payments. At this time, defendant informed plaintiff that it could no longer afford to lease the store. Plaintiff retained the security deposit it held, equal to one month’s rent, for the rent due in August, 1977.
Shortly after the premises were abandoned, defendant placed a sign in the window of the vacant store advertising it for rent. Plaintiff removed the sign and claimed to have replaced it with its own. Several witnesses called during trial by defendant testified, however, that when they went by the vacated premises on various occasions during the fall of 1977, they observed no sign. Pictures of the premises allegedly taken on October 27, 1977, revealed no sign in the window.
Plaintiff placed advertisements in The Detroit News from late July, 1977, through March, 1978, advertising "stores to lease”. Despite the wording of the advertisement, Sanford Lane, a co-owner of Jefferson, testified that the ads were only for the store vacated by defendant and claimed advertising costs of $423.
Sanford Lane also testified that several persons contacted Jefferson about the premises. Several prospective tenants had to be rejected because of the nature of their businesses. Many of the rental agreements plaintiff possessed contained clauses forbidding the leasing of space to those engaged in businesses in which current tenants competed.
The premises remained vacant until March 9, 1978, at which time a new lease was executed with Detroit Translation Bureau, Inc., a current tenant in the shopping center, for a three-year period commencing April 15, 1978. This lease provided for a monthly rental rate of $500. Detroit Translation Bureau vacated the premises in May, 1978, and its security deposit was used for the June rent. Mr. Lane testified that Detroit Translation would not be sued because it was renting other space in the shopping center.
A lease with Henrietta’s Dress Shop commenced on August 15, 1978. This lease also provided for a $500 monthly rental rate and has a five-year term.
Both Mr. Lane and another co-owner, Marvin Brooks, admitted that they never attempted to lease the premises for less than $500 a month. Lane further indicated that plaintiff did not intend to credit the additional $50 per month received from the new tenants toward the amount of rents owed by defendant.
• Following a bench trial in the district court, the judge concluded that plaintiffs actions in increasing the monthly rental rate and excluding defendant from participating in the process of reletting the premises constituted an "election of remedies” such that the old contract was rescinded. Consequently, the trial court concluded that defendant was not liable for damages. The trial court also stated in passing that plaintiffs actions in mitigation were unreasonable.
On appeal to the circuit court, the district court was affirmed. The circuit court’s decision was based on its conclusion that plaintiffs conduct in refusing to rent to anybody but a tenant who would pay a higher rental than defendant "decidedly constitutes a lack of diligence in mitigating damages”.
A landlord has two available options upon abandonment of a leased premises by a tenant. He may release the lessee from further liability under the rental agreement. However, a release requires the mutual agreement of the parties, and a tenant’s decision to vacate or abandon the premises does not in and of itself exonerate the tenant. Pyle v Orzell, 350 Mich 298, 303; 86 NW2d 163 (1957), and cases cited therein. Alternatively, a landlord may continue to hold the tenant liable on the lease, in which case the lessee’s liability for rent remains. Huntington v Parkhurst, 87 Mich 38; 49 NW 597 (1891).
In the instant case, it is clear that plaintiff did not accept defendant’s abandonment of the premises and release it from further liability. Instead, plaintiff at all times indicated its intent to hold defendant liable on the lease. Sections 29 and 40(a)(2) of the lease were specifically indicative of plaintiffs policy of holding breaching tenants liable on their contracts. Consequently, the district court’s rationale for denying plaintiff relief was legally erroneous.
Nonetheless, where a tenant wrongfully abandons the premises, the landlord has a duty to use reasonable efforts to mitigate his damages caused by the breach. Froling v Bischoff, 73 Mich App 496, 499-500; 252 NW2d 832 (1977), Klager v Robert Meyer Co, 95 Mich App 319, 325; 290 NW2d 132 (1980). The burden is on the. tenant to establish that the landlord failed to act reasonably to mitigate damages. Froling, supra.
The opinions of the two lower courts reveal that both believed plaintiff had been unreasonable in its efforts to mitigate damages. The trial court emphasized that the landlord had removed the sign defendant had placed in the storefront as showing unreasonableness. The circuit court, sitting in review, was primarily concerned that plaintiff only sought to relet the premises at an increased monthly rental rate. We conclude that neither action by plaintiff, although each is relevant, is dispositive of the issue of the reasonableness of the mitigation efforts.
Considering first the fact that plaintiff removed defendant’s "for rent” sign, we note that the testimony concerning plaintiffs subsequent actions in respect to posting a rental sign on the vacated premises is conflicting. Under the lease, defendant had no right to relet the premises. Consequently, the mere removal of the sign does not adversely reflect on plaintiffs efforts to mitigate. However, if the factfinder believed the defense witnesses’ testimony that plaintiff never posted its own "for rent” sign on the premises and that the failure to post this sign was unreasonable, it could conclude that plaintiff had not made proper attempts to mitigate its damages.
We find few cases dealing with the problem of a landlord’s right to obtain damages where the rent has been increased following the breach. In Benton v Jacobs, 3 La App 274 (1923), the court held that the landlord’s decision to increase rents after the breach relieved the tenant of the obligation on the lease. Plaintiff notes that the Louisiana court also held in Benton that a landlord is not normally bound to secure a new tenant where a breach has occurred. While the Benton court specifically found a duty to mitigate based solely upon a written agreement between the tenant and landlord, this distinction is unimportant to this case since, in Michigan, a lessor is obligated to mitigate damages. In In re Garment Center Capitol, Inc, 93 F2d 667; 115 ALR 202 (CA 2, 1938), the circuit court ruled that a request for higher rentals following the tenant’s breach did not constitute a failure to exercise due diligence in reletting the property where it was well known that the asking price was merely a starting point for negotiations. However, in Mar-Son, Inc v Terwaho Enterprises, Inc, 259 NW2d 289 (ND, 1977), the court ruled that the landlord did not act in good faith by asking for an annual rent of $33,600 where the breached lease provided for minimum annual rents of $21,000. No jurisdiction seems to have adopted a per se rule that seeking higher rentals constitutes improper mitigation of damages.
We believe that an increase in the rental rate can be considered as evidence of unreasonableness in mitigation. However, such factors as the amount of the increase, market rents of similarly situated properties, and the reasons given by the landlord for seeking increased rents must also be evaluated by the court before reaching a decision on the issue of reasonableness. Here, the circuit court’s opinion suggests that it believed the fact of an increase was dispositive. Due to the district court’s reliance on an election of remedies theory, it is impossible for us to ascertain exactly what weight the trial judge gave to the fact of increased rent. Since neither court applied correct legal principles, we reverse and remand this matter for retrial.
The following is applicable if, on retrial, the factfinder determines that plaintiff’s attempts at mitigation were reasonable. Since the purpose of damages in any action is merely to make the injured party whole, defendant is entitled to a reduction in its liability in the amount of the benefits which plaintiff was able to realize as a consequence of the breach (i.e., the higher rent). See, Tel-Ex Plaza, Inc v Hardees Restaurants, Inc, 76 Mich App 131; 255 NW2d 794 (1977), lv den 402 Mich 832 (1977).
Reversed and remanded for retrial. Costs to abide the ultimate outcome of this action. | [
-15,
57,
13,
7,
0,
-1,
34,
28,
-13,
-7,
8,
4,
-21,
27,
7,
9,
34,
1,
-60,
-26,
-21,
-25,
-4,
1,
2,
-22,
10,
-67,
0,
15,
-40,
-1,
-1,
22,
-24,
62,
2,
-52,
-11,
-15,
-6,
-23,
18,
3,
10,
-16,
54,
-23,
46,
-21,
-28,
43,
-24,
7,
-17,
-25,
-32,
-6,
42,
27,
-29,
26,
11,
30,
5,
6,
36,
44,
35,
0,
37,
-27,
42,
20,
-9,
-36,
-28,
11,
8,
-28,
52,
-39,
19,
-1,
-87,
14,
6,
-9,
-30,
-20,
-47,
42,
-3,
5,
33,
31,
-8,
-51,
1,
-32,
-55,
24,
4,
25,
-27,
17,
-1,
-22,
-82,
12,
-24,
-8,
63,
43,
-12,
9,
11,
-52,
70,
-7,
0,
-30,
-2,
-25,
60,
-25,
-27,
2,
-9,
14,
50,
36,
-17,
-2,
4,
1,
43,
6,
-17,
17,
40,
46,
1,
-21,
3,
45,
23,
-27,
-29,
-27,
-57,
15,
1,
83,
19,
14,
35,
9,
-13,
11,
51,
-44,
1,
-25,
-9,
-40,
-7,
11,
40,
-35,
24,
-8,
19,
-52,
0,
14,
17,
34,
-26,
-25,
14,
-39,
-40,
-21,
1,
-35,
58,
-65,
-46,
1,
27,
-36,
-46,
33,
8,
54,
-15,
28,
19,
6,
-38,
-47,
6,
1,
31,
-33,
23,
1,
-20,
-2,
-30,
-28,
-31,
-57,
58,
-16,
11,
14,
23,
29,
7,
-29,
-19,
28,
-42,
-7,
-25,
3,
7,
-24,
-20,
-9,
-7,
50,
-28,
14,
38,
54,
2,
10,
-27,
8,
-32,
10,
-57,
-6,
-53,
17,
3,
41,
10,
-36,
-19,
-14,
-15,
-17,
-18,
1,
24,
11,
-24,
26,
-18,
-23,
18,
-3,
-23,
16,
-44,
28,
-66,
48,
-15,
-22,
-22,
-52,
-47,
-21,
37,
-12,
-8,
-37,
43,
27,
14,
22,
36,
6,
-11,
37,
-80,
57,
-17,
-8,
-8,
-33,
11,
-8,
-6,
27,
-17,
18,
-23,
0,
0,
17,
-2,
14,
20,
46,
-21,
32,
-4,
24,
0,
-3,
-5,
19,
22,
3,
48,
5,
-18,
58,
0,
-13,
35,
-31,
-2,
-59,
15,
-39,
-10,
-46,
3,
19,
9,
-30,
4,
31,
35,
25,
4,
23,
13,
0,
0,
-15,
-6,
-16,
-25,
0,
-41,
40,
4,
-9,
-4,
7,
-57,
58,
48,
4,
1,
-47,
-16,
2,
-16,
32,
48,
41,
8,
35,
-52,
11,
2,
-42,
0,
-51,
-20,
54,
6,
-83,
21,
0,
29,
-10,
-9,
-46,
15,
-3,
-65,
-3,
16,
17,
-4,
-10,
10,
6,
-4,
-60,
34,
45,
-31,
6,
-49,
27,
9,
28,
40,
15,
-48,
-35,
7,
41,
-43,
-13,
26,
-39,
-3,
2,
14,
36,
2,
-26,
18,
18,
52,
29,
-2,
71,
-14,
37,
-3,
-17,
9,
27,
-58,
-49,
-57,
26,
-18,
12,
-32,
-15,
5,
-2,
-62,
11,
6,
-7,
-8,
55,
-20,
-13,
-34,
-48,
4,
4,
19,
12,
51,
-53,
-12,
13,
-22,
-5,
14,
-2,
-58,
3,
-44,
57,
-3,
-2,
-47,
8,
-37,
17,
8,
64,
25,
19,
27,
54,
-4,
21,
18,
-34,
-24,
37,
44,
30,
23,
26,
38,
-36,
-3,
47,
10,
8,
-15,
-39,
24,
39,
18,
-25,
-11,
-32,
23,
5,
-42,
-12,
15,
41,
12,
-21,
-37,
0,
38,
15,
-23,
19,
19,
10,
19,
32,
28,
33,
3,
45,
-22,
4,
45,
-21,
-15,
-35,
50,
18,
-8,
2,
58,
12,
-5,
34,
-19,
22,
-23,
-46,
39,
0,
-28,
-29,
-18,
0,
-36,
37,
-18,
0,
0,
-1,
-16,
24,
28,
1,
13,
-28,
17,
-26,
31,
11,
-67,
5,
75,
-43,
-40,
-2,
-23,
-60,
-4,
-30,
-42,
4,
-5,
-40,
-19,
10,
52,
19,
14,
-10,
-30,
-42,
17,
-19,
9,
-18,
-18,
-18,
32,
-21,
32,
-6,
-5,
-24,
8,
-48,
-7,
7,
18,
6,
35,
0,
-46,
0,
-24,
16,
18,
-11,
63,
28,
12,
24,
-8,
7,
-11,
39,
-12,
-51,
1,
68,
-35,
-4,
38,
-31,
-4,
8,
61,
40,
-46,
-30,
0,
3,
-24,
-6,
-31,
7,
-7,
-55,
-19,
-20,
-50,
29,
105,
19,
31,
-36,
1,
-10,
40,
-32,
10,
-5,
-64,
8,
35,
-36,
-7,
-39,
27,
-2,
-28,
51,
-2,
59,
-1,
-12,
-35,
19,
22,
25,
13,
24,
-6,
-47,
9,
-23,
28,
-38,
17,
-5,
-19,
31,
-28,
20,
8,
5,
-2,
28,
18,
19,
-2,
38,
75,
-1,
-52,
25,
-27,
-48,
-48,
24,
-15,
16,
2,
19,
26,
63,
-51,
12,
-10,
48,
-52,
-11,
16,
-38,
-3,
-39,
9,
-6,
-22,
19,
-9,
13,
34,
-13,
-39,
-5,
8,
-24,
-25,
33,
2,
-19,
-10,
13,
-25,
-17,
34,
7,
-28,
36,
-9,
18,
-40,
57,
-27,
-35,
-8,
-11,
-54,
10,
-39,
10,
-12,
5,
3,
-21,
27,
-10,
56,
-45,
-54,
-8,
1,
-11,
-16,
-22,
22,
13,
16,
-23,
-23,
28,
32,
-1,
-40,
49,
-12,
40,
26,
-8,
-12,
-36,
-7,
-27,
-29,
32,
49,
16,
-6,
-20,
-23,
15,
-7,
37,
-13,
-5,
-75,
-6,
-11,
-9,
-30,
-7,
-11,
-39,
-7,
41,
-14,
55,
-22,
18,
-16,
-22,
-21,
13,
-44,
-18,
-6,
2,
-21,
34,
42,
-1,
14,
8,
-6,
8,
-3,
21,
12,
-7,
-12,
-51,
-8,
24,
-42,
23,
33,
-24,
16,
-29,
-28,
-40,
-22,
-16,
17,
42,
-5,
-26,
-10,
-34,
77,
28,
12,
6,
-15,
35,
-1,
-22,
9,
41,
11,
21,
3,
31,
48,
22,
6,
14,
-12,
-50,
-18,
22,
41,
-28,
20,
21,
18,
2,
-26,
29,
18,
45,
-7,
-29,
-1,
3,
20,
-26,
25,
-60,
23,
-14,
17,
-53,
-1,
-2,
7,
5,
15,
-34,
-57,
-9,
-17,
-26,
-46,
-5,
-81,
47,
27,
-23,
6,
-8,
-19,
-22,
-11,
51,
-15,
17,
-10,
22,
-4,
30,
-11,
-3,
4,
-23,
27,
-8,
-4,
-10,
-30,
-10,
-2,
4,
-45,
2,
43,
-4,
0,
10,
-18,
11,
3,
23,
-26,
4,
-30,
-51,
-37,
23,
-22,
1,
17,
-39,
55,
43,
50,
-14,
0,
0,
-75,
-26,
-13,
-11,
5,
-7,
-13,
50,
36,
22,
-2,
-44,
-8,
28,
-43,
-4,
23,
0,
-15,
-12,
19,
-17,
22,
-36,
11,
-25,
-6,
-4,
8,
-8,
12,
67,
10,
30,
-8,
-12,
25,
-12,
-29,
14,
-7,
45,
35,
-7,
10,
21,
-20,
-6,
-6,
-20,
-2,
-1,
-46,
19
] |
Per Curiam.
Defendant appeals his jury conviction of larceny from a person, MCL 750.356; MSA 28.588.
Initially, defendant contests the trial court’s ruling that a Walker hearing was not necessary. Defendant did not contest the voluntariness of his confession. Rather, he sought an evidentiary hearing in order to prove that law enforcement officials had fabricated a few sentences which he claimed that they inserted into the confession.
We agree with the trial court’s conclusion that no evidentiary hearing was necessary. The purpose of the Walker hearing is to prevent prejudice to the defendant which may occur where a defendant has given inculpatory statements to the police which are considered legally inadmissible due to the coercive circumstances surrounding the confession. Walker represents an exception to the general rule that fact questions are properly for the jury’s consideration. Other factors relating to the confession, such as credibility, truthfulness and whether the statement had been made at all, remain for the determination of the trier of fact. People v Mosley (On Remand), 72 Mich App 289, 294; 249 NW2d 393 (1976), aff'd on other grounds 400 Mich 181; 254 NW2d 29 (1977), People v Gilbert, 55 Mich App 168, 172; 222 NW2d 305 (1974), People v Mathis (On Remand), 75 Mich App 320, 324; 255 NW2d 214 (1977). Thus, we find no error in the trial court’s decision.
Defendant also challenges the trial court’s ruling allowing his impeachment by use of evidence of a prior conviction for assault with intent to rob. Review of the record reveals compliance with MRE 609, as it existed at the time of trial. In addition, we find no abuse of discretion in the trial court’s determination that the probative value of the evidence outweighed its prejudicial effect. People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978).
Affirmed.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). | [
60,
25,
-29,
-8,
9,
18,
-31,
-3,
-60,
2,
13,
-64,
17,
-17,
6,
-13,
1,
4,
70,
-60,
-1,
-32,
26,
35,
-31,
-66,
0,
48,
-2,
28,
12,
13,
-25,
-15,
17,
-18,
31,
70,
11,
49,
-1,
-11,
-17,
-41,
-67,
-29,
-37,
39,
-9,
-8,
47,
-1,
-29,
32,
9,
14,
1,
30,
36,
-5,
-19,
36,
6,
-54,
-46,
-37,
-30,
19,
-38,
-20,
-11,
-5,
-16,
-17,
8,
-7,
-10,
-20,
6,
21,
14,
2,
48,
16,
46,
-2,
16,
-33,
8,
-16,
20,
-1,
11,
5,
-9,
-36,
94,
-27,
73,
-20,
-48,
-24,
30,
-22,
28,
7,
-71,
-42,
13,
-7,
32,
-10,
27,
-5,
-45,
-3,
-6,
-21,
2,
-35,
-9,
-12,
10,
28,
-7,
-13,
1,
-57,
-6,
-18,
-3,
30,
24,
8,
14,
0,
7,
-15,
34,
57,
18,
18,
37,
-22,
14,
26,
-65,
47,
19,
31,
-12,
56,
-4,
-5,
10,
-16,
-32,
-61,
43,
23,
11,
-4,
-85,
-58,
-2,
-12,
-9,
-5,
24,
-27,
26,
-28,
39,
-6,
7,
-20,
-35,
7,
6,
-24,
-21,
23,
-15,
-16,
-12,
5,
-53,
6,
-3,
-29,
-26,
79,
-8,
13,
56,
20,
-14,
62,
12,
-13,
-6,
-25,
-14,
2,
5,
42,
19,
-27,
19,
40,
-1,
5,
-6,
-76,
35,
-24,
53,
-42,
-12,
33,
-11,
-6,
46,
-18,
-11,
-30,
31,
6,
-47,
49,
39,
24,
-11,
-12,
-22,
8,
-19,
-45,
38,
-14,
-20,
-14,
22,
-13,
-17,
-29,
-14,
-5,
13,
-54,
38,
-30,
-4,
-5,
-44,
-30,
45,
-34,
-19,
0,
12,
88,
-23,
58,
-35,
30,
15,
32,
-43,
-12,
5,
-1,
-3,
32,
-8,
8,
-29,
-11,
-22,
-31,
-9,
20,
84,
23,
-78,
-10,
-18,
27,
48,
7,
53,
-66,
-66,
12,
13,
4,
-29,
46,
-6,
2,
39,
19,
-5,
-7,
-50,
-74,
26,
7,
-10,
36,
29,
76,
63,
24,
2,
0,
-3,
-12,
40,
-13,
-46,
-15,
-25,
-62,
19,
-17,
7,
-72,
6,
-62,
-39,
27,
20,
-8,
5,
12,
-3,
-13,
5,
13,
9,
-50,
-2,
-30,
8,
-3,
-34,
-30,
-36,
-2,
0,
3,
-7,
-13,
-41,
-30,
-14,
-33,
12,
-29,
0,
-47,
24,
28,
12,
-19,
-17,
-21,
19,
15,
-7,
-63,
-36,
3,
-45,
-37,
16,
7,
-26,
-8,
-16,
-17,
13,
-20,
-6,
-8,
-9,
12,
17,
8,
-47,
18,
-24,
-49,
-14,
22,
-9,
-43,
14,
4,
-15,
44,
39,
40,
-33,
-16,
11,
4,
12,
29,
6,
12,
-5,
46,
-7,
-16,
-26,
-4,
9,
-31,
26,
-11,
22,
0,
59,
47,
-42,
30,
31,
-46,
7,
-24,
-11,
-36,
-10,
25,
-14,
-36,
31,
-29,
-74,
-9,
-70,
2,
7,
1,
-19,
18,
6,
-16,
11,
20,
-4,
-53,
1,
74,
10,
-34,
9,
8,
4,
-6,
-47,
8,
15,
10,
-39,
-11,
18,
-21,
42,
-22,
11,
-10,
0,
19,
-41,
-1,
9,
36,
0,
-14,
-19,
26,
-35,
-41,
22,
-23,
1,
-17,
-21,
8,
21,
20,
0,
-4,
-3,
-23,
-27,
46,
-16,
39,
-25,
9,
-11,
-18,
41,
7,
71,
36,
21,
55,
-14,
12,
1,
-14,
5,
-77,
-15,
-31,
63,
-49,
22,
-15,
-38,
19,
-27,
-31,
-42,
-1,
57,
-1,
44,
-1,
46,
32,
10,
6,
45,
-9,
-1,
46,
-4,
11,
5,
-4,
-7,
-46,
72,
20,
-8,
10,
41,
-50,
-4,
0,
16,
-1,
4,
-2,
-48,
15,
65,
42,
-3,
-12,
10,
-35,
39,
-37,
-12,
41,
-36,
8,
-32,
9,
28,
16,
-27,
0,
3,
-7,
-13,
-5,
-6,
-5,
5,
0,
-17,
-35,
-73,
-5,
29,
-1,
-50,
-40,
-50,
-4,
-2,
15,
38,
-32,
-56,
-1,
71,
-7,
67,
-3,
-17,
-2,
25,
-14,
-17,
1,
2,
20,
-62,
25,
14,
15,
-57,
1,
-10,
8,
21,
-28,
-34,
-7,
-13,
-11,
7,
19,
-26,
5,
-36,
12,
34,
18,
-50,
-5,
-7,
28,
25,
-11,
38,
2,
2,
27,
15,
-42,
-28,
16,
32,
-11,
23,
-6,
19,
59,
27,
-14,
13,
-13,
-44,
-13,
-1,
24,
-3,
-37,
10,
44,
24,
-6,
-6,
16,
33,
27,
-13,
1,
7,
7,
-6,
-92,
-5,
0,
19,
-32,
-49,
8,
6,
29,
11,
-6,
42,
-14,
-18,
12,
76,
-26,
42,
-5,
13,
17,
14,
-9,
15,
3,
-1,
-28,
-31,
-9,
5,
58,
-24,
9,
-32,
-31,
-54,
-35,
9,
1,
-23,
8,
54,
19,
7,
24,
29,
-2,
43,
-33,
6,
-32,
-2,
-22,
16,
7,
13,
-4,
-35,
21,
-12,
47,
-28,
-15,
10,
-14,
7,
-57,
-8,
32,
45,
39,
54,
39,
-55,
86,
20,
-11,
-38,
-37,
29,
41,
-2,
-32,
-19,
9,
-14,
15,
42,
41,
-34,
-22,
24,
-15,
-35,
40,
11,
38,
26,
-12,
37,
0,
-54,
6,
-1,
-18,
-47,
-11,
-33,
1,
17,
27,
-57,
82,
-14,
-11,
5,
-22,
6,
37,
17,
0,
0,
-9,
12,
21,
0,
30,
23,
7,
56,
-40,
-20,
-3,
0,
14,
28,
12,
19,
-59,
6,
39,
14,
-62,
3,
27,
47,
-20,
14,
3,
27,
-37,
18,
6,
10,
2,
15,
45,
-36,
19,
15,
-4,
-29,
11,
8,
19,
3,
14,
-17,
50,
43,
54,
-10,
-5,
-20,
-24,
-29,
-1,
-7,
-13,
32,
48,
7,
-35,
13,
-4,
-14,
7,
20,
-11,
4,
8,
-19,
7,
-9,
35,
-5,
29,
-15,
3,
-3,
-12,
44,
-23,
67,
14,
8,
-56,
3,
-4,
14,
94,
-27,
-15,
-9,
-4,
33,
-6,
69,
-7,
9,
-6,
-7,
11,
26,
-23,
22,
35,
-32,
-1,
-23,
-31,
24,
-16,
45,
-15,
-27,
23,
25,
-17,
11,
67,
23,
41,
-36,
-4,
2,
-27,
-20,
-2,
-56,
-4,
-21,
-22,
36,
25,
-7,
-39,
-11,
7,
-1,
-17,
-72,
15,
-29,
-26,
-65,
30,
-24,
5,
4,
-43,
-6,
-40,
23,
15,
0,
11,
9,
1,
-43,
15,
4,
-28,
12,
54,
-38,
-16,
8,
97,
3,
-29,
-15,
-61,
17,
15,
2,
-26,
-20,
4,
-17,
21,
-9,
16,
5,
-23,
-6,
41,
-24,
-61,
-31,
-6,
11,
-6,
-52,
44,
-39,
-16,
0,
13,
-39,
21,
-15,
4,
25,
-13,
11,
3,
-59,
-17,
6,
-13,
44,
-16,
-43,
-11,
38,
11,
-14,
25,
-31,
32,
-33,
37
] |
Per Curiam.
On May 20, 1973, plaintiff Earl D. Bill’s decedent, his minor daughter Christie M. Bill, was fatally injured while a guest passenger in a vehicle owned and driven by Edward Charles Fryer, when that vehicle was struck by a vehicle owned and driven by Frank Robert Hutchins, an uninsured motorist. At that time, plaintiff Bill was insured by defendant, Allstate Insurance Company, under one insurance policy which covered five automobiles owned by Bill. Five separate premiums were paid and five separate certificates of insurance were issued to him, each certificate providing for uninsured motorist protection in the amount of $20,000 per claim and $40,000 per accident. The decedent was a member of plaintiff Bill’s household and was, therefore, an insured party under the policy of insurance.
Plaintiff Bill brought a declaratory judgment action to determine whether the uninsured motorist coverage on the five certificates could be "stacked” for a total of $100,000. The Secretary of State intervened in this action as an additional party plaintiff, maintaining the same position as plaintiff Bill.
On April 28, 1980, the trial court issued an opinion ruling that there could be no stacking of benefits. Prior to the entry of an order pursuant to the opinion, a motion for rehearing was filed based on the decision of the Supreme Court in Bradley v Mid-Century Ins Co.
On September 9, 1980, the trial court issued an order holding that the insurance coverage could not be "stacked” and that the maximum coverage available was $20,000. Plaintiffs appeal as of right.
Bradley, supra, held that benefits could be "stacked” where an insured was required to pay separate uninsured motorist premiums on more than one vehicle insured under a single policy. The Court stated:
"We conclude that an insurer may not collect an uninsured motorist premium for statutorily required uninsured motorist coverage for more than one vehicle and yet limit its liability to that which would arise if there were only one vehicle and one premium paid. A different result is not justified where the vehicles are insured and the premiums paid under one policy rather than multiple policies.” (Footnote omitted.)_
Benefits could not be "stacked”, however, where the insured voluntarily purchased uninsured motorist coverage in a no-fault insurance policy effective on or after October 1, 1973, the date of repeal of the uninsured motorist amendment.
The disposition of the present case turns on whether plaintiff Bill was required to pay uninsured motorist premiums on each of his five automobiles on May 20, 1973. Defendant alleges that the Supreme Court was in error when it concluded that the uninsured motorist amendment, which required that each policy of insurance include uninsured motorist coverage, was repealed on October 1, 1973. Defendant contends that this amendment was repealed on January 9, 1973, prior to the accident involved here. It relies on the Michigan Statutes annotated note (1981 Cum Supp), which states:
"§ 24.13010] (Repealed by Pub Acts 1972, No. 345, imd eff January 9, 1973. This section established requirements as to the provisions and contents of automobile liability policies.)”
Reference to the official, bound volume of the Public Acts reveals that defendant’s contention that the uninsured motorist amendment was repealed on January 9, 1973, is incorrect. Public Act No. 345 of 1972 states in relevant part:_
"Repeals.
"Section 2. Sections 3010 and 3011 of Act No. 218 of the Public Acts of 1956, as amended, being sections 500.3010 and 500.3011 of the Compiled Laws of 1948, are repealed effective on October 1, 1973.
"This act is ordered to take immediate effect.
"Approved January 9, 1973.”
While Public Act No. 345 of 1972 took immediate effect on January 9, 1973, it made the repeal of the required uninsured motorist coverage effective October 1, 1973, the same date that the no-fault insurance act became effective.
Accordingly, we find that plaintiff Bill is entitled to "stack” the required uninsured motorist coverage on his five vehicles.
Reversed and remanded.
Plaintiff Bill had recovered the maximum uninsured motorist coverage on behalf of his daughter’s estate from Mr. Fryer’s insurer.
409 Mich 1; 294 NW2d 141 (1980).
Bradley, supra, 45.
Bradley, supra, 48. MCL 500.3010; MSA 24.13010.
Public and Local Acts of the Legislature of the State of Michigan Passed at the Regular Session of 1972. The bound volumes of the Public Acts, compiled by the Legislative Service Bureau and published by the Department of Management and Budget, are published and distributed pursuant to constitutional mandate. Const 1963, art 4, § 35. The form of the printing of these volumes is regulated by MCL 24.1; MSA 4.321. While all laws are free for publication by any person under § 35 of the 1963 Michigan Constitution, where a discrepancy exists between an original law and a printed copy, the former governs. Hulburt v Merriam, 3 Mich 144, 153 (1854).
1972 PA 294. MCL 500.3101; MSA 24.13101. The language in Detroit Automobile Inter-Ins Exchange v McMillan, 97 Mich App 687, 692; 296 NW2d 147 (1980), although unnecessary to decision in that case, is misleading with respect to the date of repeal. | [
-15,
11,
29,
25,
26,
-1,
18,
19,
26,
14,
28,
-1,
24,
14,
-43,
58,
-27,
0,
16,
-26,
-71,
-5,
-51,
9,
-27,
1,
93,
-21,
17,
64,
20,
-11,
0,
-35,
-94,
-13,
-5,
46,
-52,
52,
-19,
-32,
42,
-1,
23,
-24,
32,
-13,
25,
0,
-35,
-17,
-22,
18,
4,
2,
16,
31,
0,
-16,
-21,
-23,
52,
15,
-64,
30,
3,
43,
56,
-5,
-9,
18,
-20,
-19,
-27,
-35,
-7,
5,
-22,
-19,
9,
-64,
7,
0,
-26,
35,
-38,
-51,
-22,
-7,
-96,
-43,
-4,
-73,
-1,
34,
-21,
-9,
18,
56,
17,
-18,
35,
9,
29,
50,
-33,
-28,
-6,
29,
-52,
-28,
18,
-4,
22,
-26,
-33,
5,
-4,
73,
-2,
-12,
25,
-24,
-21,
10,
-90,
-33,
-12,
-18,
-2,
49,
7,
65,
0,
-21,
15,
-46,
12,
-28,
-17,
-28,
-14,
-22,
5,
87,
-34,
-64,
19,
-20,
19,
72,
-5,
-43,
-36,
-28,
-42,
-24,
21,
-30,
-17,
-76,
34,
2,
0,
-42,
-33,
28,
20,
2,
19,
-39,
12,
18,
52,
29,
10,
-19,
-38,
25,
32,
47,
-2,
19,
-5,
-82,
-4,
41,
-60,
3,
43,
-42,
-7,
-3,
10,
16,
54,
35,
-9,
30,
1,
-68,
15,
-16,
6,
-13,
-35,
-38,
-39,
-32,
31,
-41,
30,
-23,
-27,
60,
2,
-61,
-28,
-28,
7,
7,
26,
-26,
-24,
-19,
-86,
-60,
7,
-16,
-2,
-7,
-25,
83,
-42,
26,
-5,
-51,
4,
21,
50,
1,
-30,
-84,
71,
0,
18,
32,
10,
16,
39,
3,
19,
-10,
10,
-19,
35,
44,
29,
-13,
-17,
53,
-6,
21,
33,
16,
41,
-24,
0,
-35,
-2,
-34,
35,
-49,
45,
-45,
10,
44,
33,
-37,
24,
29,
4,
-55,
-28,
-6,
12,
1,
25,
-12,
55,
-67,
46,
-10,
-52,
53,
35,
-3,
-29,
9,
37,
-20,
59,
-31,
7,
-24,
0,
-56,
-11,
22,
-54,
0,
41,
-16,
88,
-44,
-16,
-5,
6,
-18,
12,
45,
4,
52,
-5,
-40,
6,
-13,
36,
19,
-45,
19,
14,
-19,
8,
-105,
19,
37,
4,
43,
-27,
40,
0,
24,
-7,
-20,
41,
20,
2,
-7,
-71,
19,
-25,
1,
9,
18,
46,
1,
-31,
27,
-39,
39,
-34,
59,
-13,
-24,
25,
15,
-24,
58,
18,
12,
-24,
5,
12,
-55,
-26,
83,
-15,
29,
-11,
-31,
13,
-5,
4,
48,
-40,
-24,
5,
45,
-102,
13,
-27,
-6,
33,
16,
-16,
4,
-27,
44,
-1,
32,
-40,
-41,
-15,
23,
9,
-5,
-67,
-34,
-51,
-10,
-22,
8,
0,
48,
50,
-21,
-51,
6,
14,
62,
-2,
-36,
3,
-71,
0,
32,
0,
-8,
-11,
-7,
-11,
-84,
13,
-21,
-4,
-84,
-12,
-43,
-23,
9,
-1,
29,
1,
-22,
-35,
-19,
47,
-23,
62,
-9,
22,
5,
-42,
-5,
12,
-16,
-40,
-62,
-29,
-36,
-5,
-33,
32,
-33,
-45,
11,
43,
-48,
-7,
-9,
11,
-6,
20,
-26,
9,
-33,
-6,
0,
-57,
56,
8,
-28,
-7,
-64,
33,
-1,
-17,
-11,
60,
-24,
24,
-19,
29,
-41,
-35,
10,
-57,
-57,
-4,
44,
67,
50,
23,
-14,
-46,
-34,
-32,
0,
-3,
0,
26,
15,
7,
-7,
25,
17,
22,
10,
8,
40,
-40,
42,
-5,
-37,
-22,
-26,
2,
-3,
29,
36,
24,
-7,
-12,
18,
6,
7,
-37,
-20,
11,
27,
-19,
-56,
10,
-36,
0,
-26,
23,
-22,
1,
15,
20,
-26,
-34,
-13,
16,
8,
-40,
13,
-22,
28,
12,
-5,
-21,
-3,
24,
-45,
65,
-29,
-53,
-37,
23,
-21,
-4,
-9,
6,
5,
-23,
22,
9,
47,
-17,
22,
-93,
-11,
12,
35,
-1,
-18,
31,
-29,
4,
47,
9,
-23,
-20,
-66,
-56,
-34,
-1,
2,
-35,
17,
32,
18,
-24,
34,
3,
-48,
9,
15,
-28,
-28,
-5,
-24,
-21,
12,
22,
-39,
-9,
32,
17,
-27,
13,
52,
-19,
22,
1,
12,
23,
-37,
0,
0,
-11,
-54,
-8,
64,
-22,
15,
-39,
49,
12,
22,
-40,
46,
10,
22,
-14,
-29,
-58,
82,
-29,
-4,
-28,
0,
-7,
-36,
-58,
15,
-9,
-50,
38,
40,
-51,
-8,
32,
-34,
48,
19,
33,
-31,
20,
36,
50,
70,
-22,
74,
-5,
32,
-1,
11,
53,
13,
17,
49,
-27,
35,
45,
4,
-17,
18,
-34,
-14,
-7,
18,
10,
-17,
-41,
16,
15,
12,
-36,
-35,
-55,
13,
-8,
-13,
-39,
53,
-36,
-13,
-8,
-59,
24,
33,
-1,
13,
-40,
-65,
28,
-43,
77,
-22,
-77,
45,
90,
7,
12,
-29,
31,
-16,
-13,
-12,
4,
16,
20,
-9,
44,
-36,
15,
36,
55,
35,
-6,
-3,
-60,
27,
11,
-7,
-7,
9,
13,
-17,
-30,
-3,
17,
20,
13,
-46,
-8,
-17,
37,
9,
-16,
-16,
-40,
29,
7,
-38,
18,
64,
-3,
-62,
-9,
-23,
-23,
-82,
-59,
30,
-5,
35,
36,
-4,
12,
-18,
9,
-14,
-7,
19,
36,
42,
96,
-8,
15,
24,
-23,
44,
16,
-5,
20,
72,
44,
10,
51,
-26,
24,
50,
32,
3,
54,
-61,
-8,
-15,
-4,
-15,
17,
-11,
-58,
-4,
-3,
18,
-52,
-33,
20,
21,
2,
-8,
26,
-9,
-11,
-8,
-37,
-6,
34,
64,
33,
-22,
-39,
-12,
29,
22,
-27,
25,
0,
-6,
17,
2,
38,
25,
0,
-41,
24,
-8,
-30,
-40,
-6,
-26,
-26,
2,
12,
-54,
-30,
24,
20,
4,
40,
56,
26,
44,
-12,
48,
0,
-37,
-15,
17,
17,
-3,
16,
-46,
-55,
4,
-12,
68,
-9,
-13,
40,
-15,
-37,
-12,
38,
-32,
-21,
-13,
-94,
6,
-29,
57,
54,
-43,
-10,
33,
-26,
-14,
7,
65,
34,
-17,
-42,
2,
32,
-24,
94,
2,
-6,
60,
-15,
20,
-56,
35,
41,
-6,
22,
-6,
6,
-15,
58,
-29,
-17,
10,
6,
-3,
-22,
57,
33,
-44,
-1,
36,
-55,
7,
24,
0,
1,
33,
-58,
-2,
49,
-20,
-6,
-5,
51,
9,
25,
12,
-3,
3,
-31,
-2,
5,
21,
-48,
-7,
15,
-19,
60,
-41,
36,
-17,
-59,
5,
19,
32,
-43,
-30,
26,
-18,
22,
-6,
-50,
-24,
-26,
4,
18,
14,
-4,
31,
-84,
10,
-28,
57,
-43,
33,
6,
53,
0,
-13,
5,
69,
38,
-21,
3,
-27,
44,
24,
-36,
3,
-5,
13,
41,
-5,
-15,
49,
-54,
-13,
26,
60,
-53,
-9,
-27,
-66,
8,
54,
27,
-26
] |
M. J. Kelly, P.J.
Plaintiffs, Judith and James Szidik, were awarded $60,000 in a default judgment against defendant Raymond Podsiadlo, Jr., for injuries resulting from his April 6, 1977, assault upon Mrs. Szidik. When Podsiadlo proved uncollectible, plaintiffs obtained a writ of garnishment against Allstate Insurance Company, with whom Podsiadlo’s parents had a homeowner’s insurance policy.
On March 11, 1980, Allstate moved for summary judgment, GCR 1963, 117.2(3). The accompanying affidavits established that defendant moved out of his parents’ home on March 23, 1977. According to Podsiadlo, he moved out of his parents’ home on April 1, 1977. In their motion for summary judgment, Allstate claimed that defendant was not a resident of the insured household at the time of the assault, and thus his parents could not be held liable. The trial court agreed, granting summary judgment to Allstate in an opinion dated May 14, 1980. Plaintiffs appeal as of right, GCR 1963, 806.1.
Plaintiffs contend that summary judgment was inappropriate because a factual dispute existed regarding when Podsiadlo moved out of his parents’ home. GCR 1963, 117.2(3) allows a trial court to grant summary judgment where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. A motion based on GCR 1963, 117.2(3) is designed to test whether there is factual support for a claim. Partrich v Muscat, 84 Mich App 724, 730; 270 NW2d 506 (1978). When passing upon a motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. Id., 730. The court will give the benefit of any reasonable doubt to the opposing party and the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). A material fact is an ultimate fact issue upon which a jury’s verdict must be based. Partrich, supra, 730, fn 3.
Plaintiffs contend that a factual dispute exists between Podsiadlo and his parents concerning the date he moved out of their house. While defendant does not agree with his parents’ affidavits, which stated that he moved out on March 23, 1977, he did state in his answer to plaintiffs’ interrogatories that he moved out of their house prior to his assault on Mrs. Szidik. Since both defendant and his parents agree that he left home prior to the assault, no issue of material fact existed.
Plaintiffs also argue that the trial court erred when it granted summary judgment prior to the completion of discovery. In support of this contention, plaintiffs cite Goldman v Loubella Extendables, 91 Mich App 212; 283 NW2d 695 (1979). In Goldman, the plaintiff brought an antitrust action against the defendant, claiming it conspired to restrict trade by stopping sales of its merchandise to the plaintiff. Prior to the conclusion of discovery, the defendant moved for summary judgment pursuant to GCR 1963, 117.2(3). The plaintiff opposed the motion claiming summary judgment was inappropriate where discovery was not complete. The trial court granted summary judgment but this Court reversed. Id., 222. Plaintiffs argue that this Court reversed the grant of summary judgment in Goldman because discovery had not been completed.
Plaintiffs’ reading of the holding in Goldman, supra, is too broad. A motion for summary judgment limited to a single issue upon which discovery is complete is not viewed as premature, regardless of whether the final date for all discovery has passed. This conclusion finds support in Goldman, supra, 218, where the Court stated:
"Defendant may under the court rule establish disputed fact through deposition testimony. GCR 1963, 117.3, Rizzo v Kretschmer, supra. Summary judgment is premature if made before discovery on the disputed issue is complete. Johnston v American Oil Co, 51 Mich App 646, 650-651; 215 NW2d 719 (1974). The time limit for discovery had not passed. GCR 1963, 301.7. The trial court should have either delayed resolution of the motion until discovery was completed or accepted as a promise to produce evidence that which plaintiff sought to prove through hearsay. Cf. Rizzo v Kretschmer, supra.” (Emphasis added.)
In this case, discovery on the disputed issue was complete when Allstate moved for summary judgment. The deposition testimony of the defendant’s parents established that the defendant was not a resident of his parents’ home at the time of the assault. The defendant’s answer to various interrogatories supports the identical conclusion. Additionally, the plaintiffs failed to supply the trial court with any conflicting evidence in their answer to the motion for summary judgment, choosing instead to make an unsupported denial of this fact. Hence, their chief argument was that discovery was not complete on this issue, since it was possible that the defendant might recant his earlier sworn statement. This possibility is insufficient to prevent the court from granting summary judgment. Mere conjecture does not meet the burden of the opposing party to come forward with affidavits or some other evidentiary proof to establish that there exists a genuine issue of material fact. Bashara, The Elusive Summary Judgment Rule: Sifting Through the Maze, 1976 Det Col L Rev 397, 414-415, citing Dionne v Pierson Contracting Co, 2 Mich App 134, 139; 138 NW2d 555, 557 (1965).
The dissent’s reliance on the possibility of testimony from defendant’s friend "Steve” to establish a genuine issue of material fact is mere conjecture. The dissent makes an argument excusing the plaintiffs’ failure to take a deposition that the plaintiffs did not make for themselves either below or in this Court. We think it is inappropriate. A memorandum of law submitted with the motion for summary judgment disclosed that "Steve” was the person with whom the defendants’ son was living after he left his parents’ home. The record discloses no effort on the plaintiffs’ part to interrogate any of the parties further about "Steve” or to take his deposition.
Most important, plaintiffs failed to raise at the trial level the issue that the period of discovery had not yet expired. It is well established that an issue may not be preserved for appeal if it is not raised at trial, Hayes v Booth Newspapers, Inc, 97 Mich App 758, 773; 295 NW2d 858 (1980), unless the claim is "necessary to a proper determination of the case”, Prudential Ins Co of America v Cusick, 369 Mich 269, 290; 120 NW2d 1 (1963), the claim involves a question of law for which all facts have been presented, Kahn-Reiss, Inc v Detroit & Northern Savings & Loan Ass’n, 59 Mich App 1; 228 NW2d 816 (1975), or a manifest injustice would result, People v Snow, 386 Mich 586, 591; 194 NW2d 314 (1972). Review of the instant proceeding suggests no such special circumstances relieving the plaintiffs of their burden to raise all applicable issues below. Thus, this issue was not properly preserved for our review.
Affirmed.
R. M. Daniels, J., concurred. | [
-25,
11,
1,
42,
49,
-44,
-10,
0,
-13,
31,
-9,
-41,
18,
55,
-65,
12,
-29,
-3,
-1,
-26,
32,
-7,
-17,
39,
0,
27,
22,
35,
10,
-10,
30,
-20,
-48,
-73,
-28,
-31,
6,
61,
-16,
46,
39,
-9,
50,
58,
-7,
-39,
-47,
-28,
4,
-12,
57,
-14,
21,
6,
-6,
21,
6,
65,
3,
-2,
13,
30,
5,
-38,
-40,
-14,
0,
48,
-14,
-26,
-10,
24,
-23,
-19,
-48,
25,
-65,
31,
21,
17,
36,
-62,
53,
48,
-24,
8,
13,
-26,
-2,
40,
-43,
1,
3,
-12,
-17,
21,
23,
0,
34,
8,
-23,
9,
36,
40,
33,
66,
-2,
-90,
-15,
10,
-42,
0,
14,
-26,
-5,
6,
-7,
14,
8,
-29,
17,
-4,
72,
-45,
19,
-14,
18,
-36,
29,
26,
17,
7,
3,
4,
-15,
-2,
58,
-28,
40,
-3,
12,
-8,
20,
-40,
-30,
33,
1,
-40,
9,
10,
-9,
-32,
6,
19,
16,
-12,
-60,
-3,
37,
-33,
-43,
-38,
8,
-13,
13,
-40,
-45,
16,
-36,
23,
12,
-49,
12,
-17,
12,
30,
8,
-26,
-81,
18,
-3,
27,
-6,
7,
0,
-77,
-48,
1,
4,
11,
41,
-28,
26,
72,
7,
11,
13,
-1,
-18,
-32,
0,
-60,
53,
-70,
41,
-6,
13,
31,
-14,
-20,
21,
-14,
-14,
-59,
-5,
-22,
65,
-6,
-34,
2,
-41,
-20,
8,
-28,
-38,
12,
-62,
-32,
15,
-7,
6,
-52,
-9,
5,
-16,
-14,
-27,
-5,
40,
20,
38,
17,
14,
-86,
17,
3,
-26,
-37,
-38,
-39,
19,
-31,
-18,
0,
-13,
-43,
-27,
21,
2,
44,
-16,
70,
5,
-5,
-4,
-2,
-1,
-2,
-27,
-4,
-20,
-40,
25,
-23,
-5,
-29,
-62,
-19,
-4,
2,
28,
31,
70,
-6,
-30,
2,
70,
6,
-6,
-16,
57,
-24,
-22,
-18,
-1,
-58,
18,
-10,
-23,
-6,
-28,
-24,
21,
-8,
-56,
-32,
11,
-30,
-47,
0,
6,
12,
30,
-60,
51,
-13,
-42,
-7,
3,
-25,
-8,
1,
0,
0,
30,
-14,
51,
-33,
-9,
33,
-48,
12,
25,
-20,
-3,
-41,
-23,
-10,
39,
6,
-14,
30,
-34,
-39,
5,
50,
35,
21,
24,
11,
-44,
-18,
-14,
-4,
24,
6,
-6,
8,
-1,
23,
15,
8,
-32,
-38,
15,
5,
0,
17,
-18,
46,
13,
-52,
-42,
-50,
-7,
-13,
-29,
37,
-5,
65,
29,
-20,
3,
-26,
61,
-14,
-7,
3,
3,
-31,
-49,
-30,
35,
-23,
64,
8,
-24,
-2,
-42,
15,
-28,
-5,
12,
26,
-28,
28,
40,
-54,
0,
-13,
-6,
-24,
6,
8,
-12,
7,
39,
-4,
22,
-37,
-20,
-4,
60,
-48,
43,
-43,
-44,
0,
11,
9,
-10,
65,
-40,
-39,
31,
29,
-42,
-33,
-5,
15,
-18,
2,
35,
41,
1,
2,
-19,
-13,
-33,
6,
-17,
26,
20,
18,
27,
-6,
-1,
-46,
1,
-56,
70,
-15,
11,
45,
23,
-27,
8,
-25,
26,
-10,
31,
3,
-43,
4,
25,
25,
-33,
-15,
-8,
2,
-22,
27,
17,
-26,
11,
-30,
31,
12,
-4,
0,
-21,
-30,
27,
50,
-8,
-46,
18,
-10,
-53,
-30,
-41,
6,
47,
50,
57,
-26,
-47,
-13,
-22,
23,
32,
-9,
8,
40,
-4,
5,
46,
-9,
22,
10,
-43,
29,
-42,
36,
-25,
-17,
-12,
-2,
-34,
17,
11,
-15,
27,
12,
9,
27,
-32,
4,
26,
29,
6,
61,
-36,
-11,
-11,
-28,
-40,
-31,
26,
31,
-17,
-14,
12,
4,
2,
-31,
-47,
20,
37,
-38,
6,
59,
-26,
19,
4,
-54,
-3,
-41,
29,
-35,
-25,
40,
-37,
-2,
-31,
24,
45,
55,
-35,
6,
-20,
46,
3,
-52,
-25,
5,
25,
29,
-11,
16,
-37,
-42,
34,
-66,
51,
-44,
-1,
-57,
1,
3,
12,
-7,
-26,
-25,
1,
9,
27,
20,
-31,
-44,
37,
13,
-16,
20,
8,
-19,
17,
30,
13,
-12,
-25,
54,
-2,
39,
11,
2,
13,
28,
-20,
2,
-1,
-59,
-26,
-5,
-7,
18,
-16,
23,
-38,
-4,
-30,
-10,
45,
11,
-21,
-15,
-5,
-35,
-10,
-26,
-54,
60,
-33,
75,
-13,
-8,
-11,
36,
0,
-10,
17,
-30,
15,
8,
4,
9,
65,
-37,
-7,
28,
-4,
-31,
6,
26,
48,
17,
1,
45,
23,
31,
-4,
3,
36,
4,
-49,
8,
-42,
34,
28,
-55,
-7,
-38,
35,
-7,
33,
30,
0,
4,
21,
-2,
-24,
17,
-43,
-53,
-31,
4,
7,
-7,
-2,
-11,
-49,
25,
-12,
-23,
-30,
25,
39,
-17,
-25,
-5,
-23,
30,
9,
-44,
-9,
7,
96,
50,
-5,
-26,
-14,
21,
-41,
41,
-56,
0,
17,
-46,
-42,
-35,
24,
-9,
63,
36,
-36,
60,
-35,
27,
1,
42,
-1,
13,
20,
33,
-33,
16,
15,
29,
20,
-26,
4,
34,
23,
-16,
2,
-23,
7,
11,
16,
-28,
-40,
-9,
-10,
-65,
-54,
18,
52,
-35,
32,
-26,
-4,
46,
35,
-9,
22,
-12,
25,
-36,
0,
14,
27,
0,
-94,
-27,
23,
36,
-25,
15,
-18,
22,
0,
28,
44,
-23,
-3,
22,
-22,
-33,
23,
16,
-7,
-71,
71,
-12,
-16,
19,
-14,
10,
-9,
25,
25,
67,
8,
-3,
9,
28,
44,
-48,
-26,
-16,
-41,
-61,
-14,
36,
-8,
-37,
-13,
3,
22,
9,
12,
-49,
-28,
2,
49,
-6,
-82,
0,
2,
-32,
12,
-25,
41,
19,
-44,
-26,
-3,
-71,
3,
-11,
44,
15,
-46,
3,
2,
-21,
16,
33,
22,
24,
38,
11,
-8,
39,
6,
-10,
-12,
-14,
13,
1,
35,
43,
-60,
53,
-14,
18,
-23,
-10,
-22,
0,
71,
27,
65,
-19,
-6,
-4,
37,
-47,
21,
-43,
-9,
-27,
-4,
10,
-7,
21,
6,
-9,
-57,
0,
32,
-1,
40,
17,
-15,
19,
-5,
2,
13,
43,
1,
21,
25,
-41,
47,
-41,
19,
18,
42,
67,
-17,
-11,
-29,
26,
40,
-58,
-11,
-2,
27,
26,
26,
-23,
0,
47,
-66,
-22,
11,
-5,
-28,
32,
6,
-15,
-35,
16,
7,
-10,
27,
-34,
-8,
-11,
-21,
20,
-60,
-35,
33,
-29,
16,
-22,
-14,
-40,
7,
5,
-14,
-24,
-36,
-57,
47,
-24,
-72,
-8,
27,
11,
-28,
-35,
3,
18,
5,
-3,
-52,
49,
15,
-30,
-14,
22,
24,
45,
-23,
-6,
14,
-25,
1,
-2,
55,
-25,
2,
4,
-33,
49,
37,
-19,
13,
50,
39,
24,
-2,
4,
-10,
44,
0,
18,
23,
-6,
39,
46
] |
Per Curiam.
Defendant was charged with two counts of possession of a controlled substance, to wit: heroin, MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). A jury trial resulted in a verdict of guilty of attempted possesion of heroin, MCL 750.92; MSA 28.287. Defendant appeals, and we affirm.
Testimony during trial indicated that three police officers observed defendant and another male in the early morning hours of August 29, 1978, in the area of Chene and Illinois Streets, in the City of Detroit. There had been frequent complaints in this area concerning breakings and enterings, drug trafficking, and street robbery. Defendant and the other person were observed standing in front of a closed business establishment. Two of the officers approached defendant. One officer was in plain clothes, and the other was in uniform. As the officers approached defendant they saw him drop a yellow coin envelope onto the ground. Police testimony indicated that this type of envelope is used frequently as a depository of controlled substances. The coin envelope was retrieved by the officers and later was found to contain heroin. Defendant raises two challenges to his conviction.
Defendant first contends that an illegal investigatory stop was made. We disagree. Indeed, on the facts of this case there was no stop at all. Defendant’s movement or freedom of action was not impeded at the moment the officers observed him discarding the coin envelope as they approached. This was not a case wherein the police engaged in an "investigatory pursuit” of a suspect who, having observed the police, started to flee. See People v Terrell, 77 Mich App 676; 259 NW2d 187 (1977). Here, defendant abandoned the coin envelope before there was any true stop, "investigatory pursuit”, or other form of intrusion.
Defendant next argues that the retrieval and subsequent search of the coin envelope which he abandoned was illegal because the conduct of the police was not supported by probable cause. On the facts of this case, we conclude that defendant does not have standing so to challenge the officers’ actions. This Court has held previously that abandonment deprives a defendant of standing to claim that the items in question were improperly seized. See People v Kirchoff, 74 Mich App 641; 254 NW2d 793 (1977), People v Grimmett, 97 Mich App 212; 293 NW2d 768 (1980).
Affirmed. | [
-2,
-27,
19,
42,
-51,
-10,
-32,
35,
-39,
48,
27,
5,
1,
80,
-7,
19,
19,
3,
34,
-34,
3,
-20,
15,
21,
17,
-19,
-12,
32,
-15,
76,
3,
-27,
87,
-55,
29,
23,
35,
-40,
47,
4,
14,
-17,
-6,
-10,
-42,
-20,
-18,
-7,
3,
-25,
39,
-3,
-41,
25,
-5,
35,
30,
-41,
61,
9,
-49,
-4,
13,
16,
10,
5,
-47,
11,
-28,
-37,
1,
10,
-37,
-42,
23,
5,
-8,
37,
-24,
22,
-13,
29,
25,
1,
48,
-10,
-24,
-45,
29,
-46,
46,
-36,
-27,
-25,
-34,
26,
25,
-48,
20,
-42,
17,
-4,
-69,
4,
-1,
20,
11,
-28,
-33,
-35,
7,
1,
9,
8,
-33,
2,
-16,
4,
31,
15,
40,
-2,
30,
45,
6,
-28,
18,
-5,
-27,
16,
-14,
20,
30,
0,
-27,
12,
-9,
0,
52,
39,
-24,
36,
30,
-5,
24,
0,
-9,
84,
10,
2,
-27,
-64,
-39,
30,
-31,
15,
6,
-26,
-23,
1,
-41,
-6,
15,
-4,
14,
-17,
-53,
0,
-42,
6,
38,
-10,
7,
38,
41,
3,
-28,
54,
0,
-69,
4,
-14,
-22,
-3,
27,
-13,
22,
-7,
-36,
-10,
16,
3,
-59,
8,
9,
1,
40,
41,
18,
-35,
2,
-4,
-3,
-39,
-28,
-2,
41,
-9,
27,
27,
-17,
-12,
14,
-19,
-3,
-56,
-16,
-23,
19,
-34,
-17,
-20,
-36,
-5,
18,
-19,
-31,
20,
-41,
16,
39,
12,
2,
-9,
-4,
7,
34,
7,
33,
3,
17,
-5,
-55,
-35,
45,
-14,
-7,
-28,
-6,
30,
-2,
14,
-19,
-8,
-42,
-31,
6,
-29,
13,
21,
29,
41,
8,
47,
6,
9,
4,
34,
-57,
35,
-58,
13,
-31,
-19,
-2,
-13,
-24,
50,
-3,
44,
0,
-3,
6,
36,
-34,
9,
5,
32,
11,
5,
15,
0,
-50,
17,
6,
15,
77,
-7,
-22,
22,
3,
41,
-11,
-12,
0,
-12,
22,
8,
-7,
-4,
62,
2,
-10,
60,
-24,
13,
11,
-14,
48,
-11,
-44,
40,
-14,
-45,
3,
-36,
33,
-15,
52,
-35,
16,
56,
11,
-5,
-45,
24,
-7,
-24,
-11,
5,
-89,
-24,
-12,
-25,
42,
13,
-28,
48,
-31,
-29,
63,
16,
41,
-6,
36,
-1,
-32,
-13,
21,
-4,
24,
-28,
-10,
21,
11,
-60,
2,
-23,
-37,
33,
-2,
-74,
9,
-6,
-18,
-10,
54,
-35,
12,
-17,
-23,
-43,
29,
14,
9,
-36,
-7,
-26,
17,
-15,
-30,
20,
12,
5,
-17,
-8,
28,
0,
71,
-9,
-42,
31,
49,
54,
-40,
-29,
15,
44,
-15,
-16,
-62,
31,
9,
33,
-33,
13,
16,
22,
6,
-82,
9,
23,
-16,
-47,
7,
2,
-17,
44,
-14,
-9,
-1,
14,
5,
-90,
-62,
-15,
-25,
-48,
-7,
-6,
-34,
-37,
-26,
23,
21,
-22,
-48,
-29,
7,
19,
1,
-21,
-15,
-3,
-24,
70,
19,
-37,
17,
11,
40,
-36,
-35,
-5,
-5,
-6,
-31,
-23,
40,
-45,
10,
-2,
-17,
-21,
-37,
18,
-51,
43,
-1,
9,
12,
19,
27,
0,
-26,
14,
-26,
-33,
12,
82,
-8,
-9,
36,
18,
-6,
15,
-4,
-7,
-2,
21,
-9,
12,
-37,
37,
64,
-2,
7,
20,
-11,
13,
-31,
78,
-35,
-21,
-16,
33,
-23,
21,
32,
48,
30,
-33,
31,
2,
-27,
58,
-14,
-71,
-46,
-35,
39,
-10,
-1,
-72,
20,
30,
-18,
-21,
-18,
-2,
12,
15,
20,
12,
-3,
-13,
-18,
21,
12,
5,
-8,
62,
-1,
-16,
7,
-30,
23,
20,
-45,
6,
-97,
-3,
50,
19,
34,
8,
14,
27,
93,
-13,
-7,
45,
25,
-14,
14,
25,
7,
31,
-64,
35,
30,
56,
-38,
2,
10,
-25,
10,
-11,
-54,
-42,
7,
-20,
28,
14,
-49,
27,
-83,
-10,
-16,
4,
72,
-18,
-28,
12,
20,
-82,
3,
-13,
-8,
-41,
53,
8,
-9,
-14,
-47,
28,
-21,
0,
20,
1,
-23,
-28,
-53,
47,
-13,
-37,
-50,
-1,
16,
10,
-2,
-24,
41,
28,
-10,
-1,
-10,
7,
-48,
-50,
7,
60,
4,
16,
-4,
51,
-10,
6,
3,
13,
-20,
11,
25,
1,
64,
-4,
-41,
-12,
13,
-37,
-16,
41,
-36,
-10,
0,
5,
-9,
-38,
3,
4,
-45,
-3,
-10,
12,
18,
-47,
-2,
-56,
-10,
-9,
-38,
5,
23,
-21,
0,
5,
-7,
-6,
17,
-22,
-13,
48,
31,
-3,
-16,
1,
3,
-1,
25,
-4,
39,
21,
-30,
-5,
-33,
-30,
25,
16,
-15,
25,
-18,
15,
-1,
-7,
-30,
-10,
-8,
17,
-58,
-28,
6,
-40,
57,
13,
32,
-10,
15,
-17,
12,
-39,
24,
-18,
-10,
21,
4,
-8,
-40,
21,
-22,
-14,
-32,
34,
30,
-13,
-10,
9,
33,
-24,
-14,
31,
14,
24,
17,
31,
-40,
-5,
15,
15,
-52,
-34,
-10,
-4,
-28,
-34,
1,
-8,
-72,
-12,
52,
-12,
-15,
-68,
17,
-10,
-49,
-2,
-60,
-38,
29,
2,
-37,
39,
-26,
37,
2,
-14,
-42,
8,
-20,
47,
1,
-35,
6,
-5,
18,
18,
-20,
8,
36,
20,
19,
-2,
32,
-52,
3,
56,
13,
23,
7,
-38,
5,
3,
-1,
0,
25,
37,
-10,
-37,
-13,
-10,
21,
-1,
-16,
-30,
-67,
45,
29,
-47,
-6,
14,
-13,
37,
12,
3,
-49,
38,
31,
-35,
23,
24,
15,
3,
2,
7,
2,
10,
-16,
14,
12,
15,
-2,
-2,
-31,
-5,
30,
32,
-4,
41,
44,
40,
40,
20,
-25,
-45,
19,
32,
12,
1,
16,
34,
38,
43,
-12,
39,
-21,
32,
9,
-5,
-19,
-29,
-4,
7,
40,
9,
24,
-9,
-34,
-18,
-8,
-13,
-14,
43,
-60,
-24,
-40,
4,
37,
-8,
52,
-9,
10,
-12,
-37,
29,
62,
-8,
29,
4,
-20,
-39,
11,
-17,
63,
1,
-6,
-3,
-44,
11,
47,
-39,
-13,
70,
33,
17,
-1,
-15,
0,
34,
0,
10,
-47,
3,
30,
-14,
-5,
10,
18,
-32,
22,
-12,
-55,
-24,
-76,
105,
-6,
16,
-19,
-11,
5,
-5,
16,
-17,
-34,
3,
-44,
28,
-7,
-32,
-24,
-17,
-9,
22,
18,
-1,
35,
28,
22,
-13,
-21,
-20,
38,
-19,
-30,
-20,
34,
-50,
-32,
-28,
-45,
-4,
-14,
-11,
5,
-21,
61,
15,
22,
54,
-59,
13,
-10,
-7,
-14,
14,
-6,
36,
-11,
-19,
-14,
-13,
-27,
-17,
19,
4,
18,
1,
33,
-30,
-47,
18,
-16,
-40,
29,
3,
-10,
21,
4,
9,
-107,
17,
-10,
15,
-15,
47
] |
Per Curiam.
Plaintiff appeals as of right a May 30, 1980, lower court order that amended the parties’ judgment of divorce and instructed plaintiff to pay defendant $28 per week in child support on behalf of two of the parties’ five children over whom defendant was awarded custody.
The single issue in this appeal is whether the trial judge abused his discretion in ordering plaintiff to pay the child support.
Upon petition of either parent or the friend of the court, a trial judge may modify the child support provisions of a divorce judgment if the petitioning party establishes a change in circumstances that would warrant a modification. Hentz v Hentz, 371 Mich 335; 123 NW2d 757 (1963),
Andris v Andris, 77 Mich App 715; 259 NW2d 203 (1977). Although this Court affords de novo review to the trial judge’s findings, great weight is given to the judge’s decision in the matter. Krachun v Krachun, 355 Mich 167; 93 NW2d 885 (1959), McCarthy v McCarthy, 74 Mich App 105; 253 NW2d 672 (1977). This Court will not reverse unless it is convinced that it would have reached a result different from that of the trial judge. Dunn v Dunn, 105 Mich App 793; 307 NW2d 424 (1981).
Plaintiff argues that the trial judge abused his discretion in ordering her to pay a percentage of her income but not less than a fixed sum. The case relied upon principally by plaintiff is Stanaway v Stanaway, 70 Mich App 294; 245 NW2d 723 (1976).
In Stanaway, the plaintiff was required to pay child support "in an amount equal to six (6%) percent of his adjusted gross income, as defined for federal income tax purposes, but not less than the sum of $165 monthly”. Id., 295. This Court held that the imposition of this escalator clause was an abuse of discretion because it allowed continued alteration of the divorce decree as to the amount of support. Further, the clause focused exclusively on the financial circumstances of the plaintiff-husband while ignoring the complex factors related to the changing needs of the minor child.
In this case the trial judge used a percentage of plaintiff’s current income to calculate an appropriate amount of support. The judge ordered each party to pay a fixed amount of support for the children in the custody of his or her former spouse. The amount of support is not variable and either party can petition for modification if and when circumstances change. Therefore, the holding of this Court in Stanaway does not apply to this case.
Plaintiff next argues that the trial judge abused his discretion in ordering her to pay support even though she has no steady income. We find no error. The record reflects that plaintiff does have a steady income, although the sources of her income and its amount do change from year to year. However, if plaintiff’s income should substantially decrease, she may seek relief by petitioning the trial judge for a modification of her support obligation.
While it is true that plaintiff’s earnings are substantially below those of her former husband, the record indicates that the trial judge took this discrepancy into consideration when he ordered defendant to pay substantially more support for the children in plaintiff’s custody that plaintiff must pay for the children in defendant’s custody. Nor does the fact that defendant’s new wife earns $25,000 per year affect our decision. Defendant’s new wife has no obligation to support the children born to plaintiff and defendant. Inasmuch as we cannot say that the trial judge abused his discretion in this matter, we must affirm.
Affirmed. | [
-29,
-1,
-10,
-37,
-43,
-30,
-24,
20,
-38,
-17,
-29,
-32,
-18,
16,
-8,
-21,
-32,
-55,
74,
-32,
-68,
30,
24,
40,
41,
51,
60,
14,
34,
-1,
10,
21,
-35,
44,
-30,
-11,
32,
34,
30,
21,
34,
-32,
-4,
8,
-38,
-14,
25,
0,
-8,
39,
-24,
4,
26,
13,
6,
39,
13,
-2,
-45,
-23,
-37,
12,
-34,
23,
49,
-17,
6,
3,
1,
-9,
-16,
2,
23,
2,
-20,
-5,
-10,
13,
-29,
57,
-60,
-46,
-14,
11,
-10,
41,
-3,
30,
-16,
51,
-24,
24,
-37,
-18,
-52,
3,
47,
-56,
49,
19,
15,
-40,
66,
33,
32,
48,
49,
-12,
-84,
-1,
33,
0,
32,
7,
0,
55,
-59,
-21,
-9,
-6,
12,
46,
54,
20,
57,
13,
-15,
3,
25,
-43,
-73,
78,
-7,
-20,
3,
10,
12,
-30,
15,
-14,
32,
-47,
43,
-31,
12,
-55,
-27,
-21,
-8,
-25,
1,
33,
28,
63,
64,
-53,
-62,
-16,
2,
-21,
30,
12,
-41,
19,
0,
-16,
4,
36,
-34,
-32,
60,
-31,
12,
-33,
-1,
45,
-1,
-51,
-21,
-22,
-7,
75,
9,
-17,
-27,
-2,
-13,
13,
-92,
27,
0,
-25,
4,
-46,
48,
-11,
42,
61,
29,
21,
-14,
0,
72,
2,
16,
-46,
-21,
-57,
-38,
8,
7,
22,
12,
-22,
-18,
16,
0,
-13,
-51,
10,
24,
-8,
4,
-37,
-36,
-7,
-9,
7,
-28,
37,
12,
30,
24,
-39,
-20,
53,
-27,
-20,
-9,
-10,
12,
-4,
19,
-48,
5,
37,
-8,
41,
4,
44,
17,
36,
-52,
6,
-4,
-18,
2,
-8,
16,
15,
0,
25,
5,
59,
11,
27,
9,
35,
-18,
-4,
17,
-7,
1,
-72,
17,
-41,
-52,
-19,
-2,
5,
-6,
-1,
-9,
-15,
-2,
22,
11,
11,
26,
46,
21,
-24,
-8,
-39,
57,
55,
-23,
-8,
16,
-14,
-64,
-36,
47,
48,
-24,
-73,
-18,
-5,
-12,
-18,
-25,
-17,
-6,
15,
19,
14,
-95,
-12,
-6,
-39,
20,
7,
-38,
36,
5,
-53,
24,
-52,
-11,
2,
-27,
58,
-3,
-23,
63,
-38,
-6,
23,
35,
-10,
5,
24,
-20,
64,
0,
1,
29,
5,
-21,
5,
-17,
11,
15,
37,
2,
-41,
8,
-45,
7,
-29,
49,
-1,
25,
-85,
-19,
42,
50,
18,
-23,
49,
-6,
5,
-3,
-14,
-31,
-29,
-42,
55,
25,
32,
-61,
-25,
-14,
34,
7,
-38,
-34,
15,
-38,
-44,
-18,
30,
28,
10,
9,
58,
-13,
-11,
16,
7,
-1,
-18,
4,
47,
37,
28,
22,
-9,
-8,
21,
10,
-1,
55,
28,
75,
0,
57,
-34,
35,
26,
31,
21,
-11,
20,
-4,
14,
2,
-59,
46,
-18,
-29,
10,
17,
-3,
51,
2,
9,
-13,
4,
1,
-22,
69,
29,
16,
18,
-5,
-16,
-34,
-4,
-40,
2,
-59,
21,
21,
-8,
-86,
6,
-12,
-82,
-27,
25,
-2,
0,
6,
7,
-84,
-75,
68,
61,
26,
11,
2,
-13,
10,
-57,
0,
-11,
-21,
38,
-41,
-11,
-43,
-95,
-15,
5,
23,
-50,
-10,
-45,
-2,
-1,
-23,
24,
1,
60,
-43,
-34,
14,
-5,
65,
-23,
-13,
9,
5,
35,
-31,
4,
-56,
12,
27,
-32,
-51,
68,
42,
9,
-19,
25,
54,
28,
20,
-37,
27,
1,
-6,
28,
19,
-6,
17,
-31,
65,
-15,
55,
-7,
14,
-16,
11,
0,
-44,
-31,
38,
13,
16,
-18,
7,
74,
-38,
8,
11,
-21,
13,
54,
-53,
-1,
-14,
0,
-6,
-18,
42,
-22,
-73,
6,
46,
-33,
21,
10,
39,
4,
-22,
-22,
17,
-2,
0,
-36,
-18,
-19,
33,
-11,
13,
-40,
7,
45,
35,
-58,
-29,
19,
-29,
20,
0,
57,
14,
-58,
-22,
28,
21,
13,
-68,
-21,
-25,
56,
-10,
15,
39,
-31,
-11,
-18,
-30,
-15,
27,
-4,
-34,
60,
17,
-34,
-20,
34,
9,
-33,
-26,
-16,
-11,
9,
-29,
-1,
-34,
19,
0,
-6,
56,
-34,
1,
46,
-10,
48,
-28,
3,
14,
-1,
17,
-2,
45,
-41,
46,
0,
3,
3,
-21,
-19,
-12,
-25,
-39,
24,
29,
29,
-21,
45,
-20,
-7,
-23,
-11,
-51,
-16,
-14,
5,
5,
72,
53,
-64,
44,
-2,
17,
-43,
-11,
4,
67,
2,
31,
-29,
86,
-25,
-23,
-19,
0,
-20,
59,
-25,
2,
-30,
33,
-19,
23,
12,
-11,
5,
3,
0,
-63,
0,
85,
-40,
-10,
26,
10,
25,
-39,
-35,
6,
9,
33,
-25,
-3,
-92,
18,
-33,
-24,
-29,
-10,
7,
9,
-42,
-1,
2,
50,
18,
25,
-15,
26,
54,
-12,
-28,
-29,
-2,
-33,
0,
19,
-58,
36,
-23,
11,
-45,
-37,
28,
-45,
-2,
-6,
-45,
31,
4,
31,
-46,
61,
2,
22,
-17,
27,
-58,
5,
49,
37,
7,
18,
-33,
13,
14,
43,
-27,
-4,
-25,
-51,
3,
-44,
-34,
-31,
26,
3,
16,
-58,
-28,
-26,
-10,
-84,
5,
8,
45,
-8,
20,
2,
101,
-54,
-2,
23,
34,
-37,
-11,
-27,
45,
21,
-51,
-18,
57,
-56,
31,
55,
53,
-9,
-12,
75,
-40,
5,
-17,
18,
0,
7,
-20,
32,
-1,
26,
-26,
12,
-61,
-4,
71,
43,
18,
17,
24,
-57,
16,
26,
-9,
44,
46,
-7,
42,
17,
-37,
7,
48,
-1,
-56,
-38,
42,
-47,
-36,
2,
63,
11,
37,
20,
23,
-7,
37,
-16,
13,
24,
-19,
-31,
-62,
-10,
4,
-3,
-29,
7,
-6,
6,
6,
45,
-8,
31,
-7,
-21,
7,
8,
10,
20,
-29,
-8,
4,
-20,
-46,
-14,
-6,
19,
-44,
-23,
21,
-27,
-21,
5,
-71,
43,
26,
19,
86,
-21,
-36,
-39,
-76,
-31,
-33,
-18,
-14,
5,
-10,
-46,
22,
22,
-24,
10,
4,
-13,
-35,
-9,
49,
-5,
52,
-25,
18,
-8,
-17,
-28,
4,
-7,
-49,
-42,
-1,
-49,
20,
-63,
15,
14,
11,
-32,
-48,
-8,
35,
-70,
-25,
-29,
3,
-21,
-28,
-40,
15,
35,
-40,
-7,
-30,
11,
5,
-15,
-26,
35,
-16,
36,
27,
-26,
-34,
30,
-13,
11,
-21,
71,
81,
4,
24,
-62,
15,
28,
-28,
6,
6,
-69,
-29,
-50,
-23,
-5,
1,
30,
25,
6,
-20,
17,
-29,
2,
-39,
13,
-45,
-2,
17,
-6,
21,
-69,
-1,
7,
14,
-11,
40,
-7,
20,
7,
-48,
8,
28,
-9,
-28,
-25,
-19,
19,
-36,
-7,
48,
13,
24,
-4,
-5,
27,
20,
-51,
-29,
-88,
26,
16,
-7,
-9
] |
Bronson, P.J.
Defendant appeals as of right from an order entered May 20, 1980, in the Wayne County Circuit Court, modifying the child support provision of the parties’ August 30, 1977, divorce decree. By this modification defendant’s support obligation was increased from $40 to $50 per week for a period of one year.
The petition for the modification of child support stated that plaintiff was seeking an increase because she had terminated full-time employment and was a student. Plaintiff was pursuing an educational program which would ultimately qualify her to work as a registered nurse. Following an evidentiary hearing, the trial court increased defendant’s child support obligation.
We do not possess a copy of the transcript of the evidentiary hearing. However, the trial court’s reasons for modifying the support obligation are set forth in the transcript of proceedings relating to defendant’s motion for rehearing. During these proceedings the following statements relevant to this dispute were made:
"The Court: The purpose of it [the modification] is this: If this is the position, then wait, I will change it the other way, if you like. I won’t make — I will make it alimony for the brief time and make it more than the amount than the child support was plus alimony. For, she is putting herself in the position where he won’t have to pay as much for the child, because she will help support the child. Right now she is working as an admitting clerk or—
"Ms. Acevedo [defense attorney]: —[His earnings] [a]re approximately ten percent net more than they were at the time the judgment entered, and yet the Court increased child support by twenty-five percent, not pursuant to any needs of the children, but—
"The Court: —Pursuant to the wife’s desire to go to nursing school. It would be for the best interest of the child for the wife to be in the position to support the child better, and she’s not in a position to pay it. There is a ten percent increase in his earnings — .”
The sole issue on appeal is whether plaintiffs decision to quit her job and return to school constitutes a change of circumstances justifying an increase in defendant’s child support obligation pursuant to MCL 552.17; MSA 25.97. We hold that the trial court erred in increasing the child support obligation of defendant on this basis.
Child support payments are not considered the property of the custodial parent and are solely for the benefit of the child. Support is measured by the needs of the child independent of the needs of the custodial parent. Gallagher v Dep’t of Social Services, 24 Mich App 558, 566-568; 180 NW2d 477 (1970).
In the case sub judice, the trial court’s order granting the support modification was .based fundamentally on the needs of the custodial parent and not the child. The court’s own statements clearly reveal that the child support modification was really a subterfuge to benefit plaintiff. While the trial court is undoubtedly correct in stating that plaintiff’s ability to earn higher wages will ultimately benefit the child, sufficient nexus between the minor’s needs and the modification was not established. Any upward modification of support payments will ultimately benefit the child if only because the minor’s household will enjoy a greater income than it otherwise would have had. However, the mere fact that some tangential benefit will flow to the child is not a sufficient basis for modifying the non-custodial parent’s support obligations.
Due to the fact that plaintiff may again attempt to obtain some form of increased support from defendant, we find it necessary to address certain statements made by the trial court. The court’s remarks at the time of the rehearing on the modification suggested that it could modify the divorce decree in respect to its alimony provision. While an obligation to pay alimony may be modified where alimony was awarded or explicitly reserved as a possibility in the divorce decree, where, as here, the judgment of divorce provided that no alimony shall be paid, the decree cannot be modified to require one party to contribute toward the maintenance of the other. Ballentine v Ballentine, 357 Mich 7; 97 NW2d 620 (1959), Ferrera v Ferrera, 16 Mich App 661; 168 NW2d 475 (1969).
We further note that an increase in the custodial parent’s earnings, in and of itself, is not a change in circumstances justifying diminishment of the non-custodial parent’s duty of support. Renn v Renn, 318 Mich 230, 235; 27 NW2d 618 (1947), Slater v Slater, 327 Mich 569, 571; 42 NW2d 742 (1950), Verbeke v Verbeke, 352 Mich 632, 635; 90 NW2d 489 (1958). The trial court apparently considered that in the long term defendant’s child support obligation would be lessened as a product of plaintiffs improved earnings. Thus, one of the trial court’s reasons for granting the modification was based on an incorrect view of the law.
Reversed.
Thus, we do not foreclose by this opinion a modification of the child support award. If plaintiff’s good faith desire to further her education resulted in a demonstrable increased need on the part of the child then this could be a sufficient basis for modifying the support award. However, if no such demonstrable increased need is occasioned by plaintiff’s decision to go back to school, no modification is appropriate merely because total household income will decline as a result of the parent’s choice to pursue further education. | [
-9,
0,
-65,
8,
0,
10,
-22,
10,
-19,
-37,
38,
-24,
49,
-5,
39,
-17,
4,
-62,
56,
-50,
-67,
27,
41,
64,
24,
18,
37,
-15,
-4,
-6,
-16,
4,
-66,
3,
-3,
-17,
15,
36,
45,
-3,
27,
-79,
-1,
-34,
-65,
-26,
3,
-24,
-7,
24,
-29,
-32,
6,
23,
-2,
80,
19,
-9,
3,
-9,
-44,
25,
-20,
67,
18,
18,
22,
32,
-14,
-19,
-19,
-17,
36,
-11,
-18,
-52,
-9,
-22,
-30,
38,
-19,
-32,
-6,
17,
1,
31,
8,
26,
-28,
51,
-20,
35,
-61,
3,
-29,
24,
14,
-78,
50,
18,
-21,
-23,
50,
26,
23,
83,
-4,
-34,
-62,
-1,
44,
-7,
88,
-26,
-40,
45,
-43,
-19,
49,
-51,
32,
53,
24,
-37,
35,
-29,
-29,
-3,
24,
-47,
-41,
34,
3,
-13,
-45,
-42,
72,
-26,
-20,
-7,
13,
-18,
14,
-6,
28,
-6,
-12,
-48,
-18,
-42,
8,
0,
32,
53,
48,
-21,
-19,
-10,
7,
-42,
43,
26,
-48,
-7,
-24,
-37,
-8,
49,
24,
-7,
55,
24,
-14,
-24,
9,
-11,
-7,
-11,
-66,
-9,
-58,
25,
-13,
-37,
30,
38,
-13,
-18,
-22,
18,
-18,
6,
2,
43,
42,
32,
8,
33,
0,
9,
-23,
0,
56,
12,
-21,
-18,
-39,
-45,
-37,
-15,
27,
61,
-15,
-24,
-39,
-4,
-15,
2,
-8,
49,
-12,
-36,
54,
-23,
-57,
3,
-4,
-19,
-30,
-9,
10,
-3,
19,
-30,
-97,
22,
38,
22,
23,
27,
-36,
19,
29,
-44,
0,
-18,
-33,
11,
32,
-7,
15,
19,
-29,
8,
0,
-11,
5,
22,
-7,
8,
-11,
50,
5,
39,
60,
-46,
-46,
47,
0,
-4,
24,
-31,
34,
-22,
23,
-10,
-45,
-22,
-8,
57,
-35,
53,
1,
46,
-6,
0,
-25,
29,
39,
49,
-17,
-12,
22,
-27,
5,
1,
-26,
5,
-6,
26,
-15,
-25,
31,
8,
-50,
-33,
-13,
-5,
-23,
1,
0,
-6,
10,
-5,
35,
-80,
-70,
-45,
-14,
-41,
35,
10,
-10,
56,
28,
-24,
41,
-39,
0,
-33,
-37,
-20,
22,
-20,
69,
0,
-5,
41,
11,
12,
37,
20,
27,
97,
1,
-16,
1,
5,
-18,
-11,
4,
29,
10,
38,
-40,
-12,
-1,
-66,
9,
-21,
-1,
-26,
22,
-61,
-2,
61,
42,
1,
18,
51,
-17,
-28,
-38,
-6,
42,
-10,
-11,
18,
25,
-11,
-40,
-61,
-36,
12,
13,
-26,
-2,
7,
-17,
-43,
-19,
3,
36,
-8,
12,
-9,
31,
-1,
2,
-3,
-16,
-18,
9,
19,
0,
40,
-21,
-39,
-37,
24,
-43,
-24,
24,
47,
18,
-13,
82,
-32,
-7,
7,
-1,
17,
3,
-17,
0,
13,
23,
-77,
0,
-2,
-58,
-11,
3,
37,
22,
-1,
10,
-34,
1,
22,
-29,
53,
-6,
10,
1,
15,
-32,
-49,
27,
-35,
17,
-41,
42,
-24,
9,
-36,
-43,
34,
-65,
-46,
46,
-2,
49,
14,
19,
-45,
-40,
38,
-11,
27,
-11,
-10,
-14,
22,
29,
20,
-34,
-35,
19,
14,
3,
-24,
-38,
15,
49,
44,
-10,
-33,
-40,
42,
9,
-3,
-10,
30,
66,
10,
0,
-18,
-46,
14,
-55,
-38,
37,
-11,
3,
-66,
5,
-47,
15,
21,
-12,
-1,
21,
21,
-13,
1,
-16,
24,
53,
-28,
40,
69,
19,
-31,
8,
12,
-26,
28,
-42,
41,
27,
48,
68,
0,
7,
37,
-14,
10,
-6,
8,
18,
4,
-35,
-4,
15,
-49,
11,
6,
3,
-4,
16,
-52,
29,
-5,
-2,
45,
7,
9,
-62,
-55,
22,
3,
-33,
-11,
29,
-10,
8,
5,
-7,
2,
6,
-3,
-7,
13,
-26,
15,
-14,
0,
-43,
-18,
26,
42,
-27,
-7,
-5,
-12,
25,
25,
33,
-42,
-35,
-13,
44,
4,
61,
-89,
38,
-82,
63,
3,
28,
6,
-29,
2,
-39,
-15,
26,
78,
31,
-38,
36,
12,
-19,
-23,
65,
-23,
-12,
-11,
-2,
41,
-47,
28,
15,
10,
3,
-33,
12,
0,
-6,
22,
17,
-27,
78,
-27,
-5,
-15,
0,
15,
-9,
21,
-2,
34,
-18,
40,
-21,
-26,
-8,
6,
-38,
-35,
-3,
40,
48,
-15,
23,
-34,
21,
-3,
-9,
-45,
1,
-25,
1,
31,
53,
13,
8,
45,
-11,
2,
-34,
-20,
1,
54,
46,
23,
-37,
51,
42,
-7,
-45,
36,
-62,
56,
-39,
-36,
-1,
16,
-31,
12,
33,
9,
13,
17,
-38,
-20,
-4,
71,
-11,
17,
12,
-1,
17,
-24,
-26,
-5,
38,
18,
-19,
-24,
-49,
-1,
1,
3,
-29,
-18,
37,
14,
-22,
-15,
37,
60,
-7,
0,
8,
48,
46,
-10,
23,
-43,
-5,
11,
-15,
-14,
-17,
0,
17,
11,
-23,
30,
73,
-48,
-22,
-29,
-14,
44,
33,
19,
-58,
20,
1,
-18,
-4,
44,
-76,
73,
34,
-26,
-5,
53,
-5,
16,
16,
24,
-25,
-44,
-32,
11,
28,
-15,
-34,
22,
70,
28,
19,
-30,
-23,
-8,
-41,
-47,
15,
19,
43,
-27,
-22,
-39,
35,
-44,
26,
18,
-4,
-20,
23,
-29,
50,
46,
-31,
14,
55,
-67,
54,
40,
22,
31,
-19,
38,
-40,
-4,
-6,
6,
7,
61,
21,
21,
-39,
-15,
-34,
-22,
-61,
0,
27,
25,
14,
-13,
-7,
-43,
-8,
9,
-10,
33,
49,
9,
70,
-27,
-20,
17,
24,
1,
-26,
17,
29,
-38,
-20,
9,
23,
47,
44,
-6,
33,
-13,
14,
-11,
-28,
1,
-9,
-9,
-45,
22,
-69,
-25,
14,
18,
-17,
19,
30,
30,
-31,
0,
-6,
9,
-24,
-61,
-17,
12,
-1,
26,
19,
-39,
-13,
-10,
11,
34,
3,
-26,
1,
-35,
0,
42,
-5,
36,
41,
84,
61,
-60,
-39,
-47,
-53,
-49,
-28,
-65,
-13,
-9,
-18,
-41,
0,
6,
-18,
-12,
-43,
-19,
-20,
-11,
30,
10,
17,
0,
-25,
-20,
-11,
-17,
12,
-55,
-27,
-30,
21,
-21,
24,
-24,
-4,
-4,
8,
-21,
-61,
-4,
47,
-30,
18,
-11,
46,
-54,
7,
30,
7,
18,
-33,
7,
-67,
-2,
-19,
-37,
-32,
-2,
3,
25,
6,
-28,
-44,
-5,
-1,
50,
-12,
30,
52,
-22,
1,
-22,
-13,
39,
-27,
-8,
10,
-49,
10,
-55,
-8,
10,
44,
3,
-5,
-30,
21,
18,
0,
36,
-21,
-17,
-31,
-27,
-42,
12,
21,
-31,
18,
-32,
-6,
9,
21,
-56,
23,
0,
-12,
0,
51,
64,
-28,
-76,
-24,
5,
-56,
-5,
76,
31,
13,
-35,
-23,
-6,
0,
-48,
-31,
-12,
28,
0,
26,
0
] |
D. F. Walsh, P.J.
Plaintiff instituted a suit based on the breach of an oral contract for the sale of goods under the Uniform Commercial Code. Defendant appeals from a jury verdict in the amount of $81,712.10, rendered in favor of plaintiff.
Plaintiff, a Michigan corporation, purchases apples from growers and then packages and distrib utes them for the fresh fruit market or for processing. Defendant, a subsidiary of the J. M. Smucker Company during its dealings with plaintiff, operates an apple processing plant in Paw Paw, Michigan. Plaintiff had been a major supplier of juice apples to defendant for a number of years.
In mid-1976, defendant agreed to provide sliced apples to the Sweetheart Toasted Pie Company. On September 16, 1976, plaintiff and defendant executed a "broker’s agreement” in which plaintiff agreed to use its best efforts to procure four million plus pounds of "peeler” apples for defendant during the 1976 harvest season. This agreement, drafted by plaintiff’s attorney, contained the following two provisions:
"This contract expressly covers only the so-called 1976 crop of Jonathan apples; however, it is the intent of the parties to create a continuing relationship in accordance with the responsibilities and intent herein expressed; provided, however, that each year the charges, fees and quantities of apples shall be renegotiated between the parties on a yearly basis.
"No change or modification of this contract shall be valid unless the same be in writing and signed by all the parties hereto.”
Defendant purchased all of the fruit provided by plaintiff during the course of the 1976 harvest season even though the Sweetheart Toasted Pie Company failed to fulfill its share of the separate bargain with defendant. Plaintiff was aware of this breach of contract between defendant and its buyer. In attempting to dispose of the surplus fruit acquired from plaintiff, defendant entered into a contract with U. S. Fruit Service Company on May 5, 1977. U. S. Fruit Service Company agreed to purchase a minimum of 1.4 million pounds of finished apple slices at 25 cents per pound. The agreement also provided that beginning in the fall of 1977, defendant would process apples for U. S. Fruit Service company at a fee of $100 per ton, increased later to $107 per ton. Defendant’s general manager testified that the apples to be processed in the fall of 1977 were owned by U. S. Fruit, not A. F. Murch Company.
The exact arrangements between plaintiff and defendant for the supply of additional apples subsequent to the expiration of the 1976 agreement was the subject of major dispute at trial. Eugene Rasch, plaintiffs general manager, claimed that in the fall of 1977 he met with two representatives of defendant and negotiated an extension of the 1976 contract. Rasch stated that defendant’s representatives verbally agreed to continue to buy apples from plaintiff for another year pursuant to the terms of the 1976 "broker’s agreement”. It is undisputed that at this meeting Rasch informed defendant’s representatives that under no circumstances would he deal directly with U. S. Fruit Service Company because of its poor reputation in the industry for paying its bills.
Three witnesses for defendant expressly denied the existence of any verbal agreement to extend the 1976 contract between the parties. Bruce Kulesza, defendant’s general manager, recalled discussions with plaintiff with regard to defendant’s deal to process apples for U. S. Fruit Service Company. Kulesza testified that he told plaintiff that A. F. Murch Company would not be in a position to buy any apples from plaintiff and that it was up to plaintiff to decide whether it would pursue a business relationship with U. S. Fruit.
From December, 1977, through June, 1978, plaintiff delivered apples to defendant for processing. U. S. Fruit Service Company paid for the apples delivered at defendant’s plant. When plaintiff first received payment from U. S. Fruit, Rasch called defendant for an explanation. Paul Sjolin, defendant’s chief accountant, told Rasch that "U. S. Fruit would be paying for the apples”. Plaintiff received only partial payment for the apples delivered in May and no payment for the June deliveries. U. S. Fruit Service Company ceased operations in July, 1978. Approximately 900,000 pounds of apples were not paid for by U. S. Fruit. The amount due for such shipments was $81,712.10.
Reed Wagstaff, district director of the J. M. Smucker Company, testified that after U. S. Fruit Service Company went out of business, Rasch called him to determine whether U. S. Fruit owed defendant any money. When told that U. S. Fruit owed defendant approximately $24,000 for unpaid processing fees, Rasch indicated that U. S. Fruit owed plaintiff about $80,000. Rasch suggested that plaintiff and defendant work together to collect the amounts owed to each of them by U. S. Fruit.
At trial, plaintiff claimed that the sales to defendant were either an extension of the parties’ original written contract of September 16, 1976, or totally separate, individual sales of goods. Plaintiff also claimed that if defendant was acting as an agent of U. S. Fruit Service, such principal/agency relationship was not fully disclosed to plaintiff and, therefore, defendant was still liable as a principal. Defendant raised a statute of frauds defense. The trial court, however, refused to instruct on that defense and denied defendant’s motions for a directed verdict under both counts of the complaint. After a three-day trial, the jury returned a verdict in favor of plaintiff for the full amount of the claim. The trial court subsequently denied defendant’s motions for judgment notwithstanding the verdict and/or a new trial.
Defendant first argues that the trial court erred in failing to instruct the jury on the statute of frauds defense. We agree and reverse.
It is the duty of the trial court to instruct the jury on all material issues raised by the pleadings and the evidence. Winchester v Meads, 372 Mich 593; 127 NW2d 337 (1964). In cases involving the defense of the statute of frauds, questions of fact are to be resolved by the jury. See 12 Michigan Law & Practice, Statute of Frauds, § 113, p 533, and cases cited therein.
The statute of frauds provision of the Uniform Commercial Code (UCC), reads as follows:
"(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500.00 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
"(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable
"(c) with respect to goods for which payment has been made and accepted or which have been received and accepted (section 2606).” MCL 440.2201(1), (3)(c); MSA 19.2201(1), (3)(c).
Acceptance is defined under the UCC in the following manner:
"(1) Acceptance of goods occurs when the buyer
"(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or
"(b) fails to make an effective rejection (subsection (1) of section 2602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
"(c) does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.” MCL 440.2606(1); MSA 19.2606(1). (Emphasis supplied.)
A buyer is a "person who buys or contracts to buy goods”. MCL 440.2103(l)(a); MSA 19.2103(l)(a).
Both parties to this lawsuit recognize that the UCC is applicable because the suit involves a sale of goods. Since the amount of the sale is in excess of $500, the contract must satisfy the statute of frauds provision of the code. That is, there must be a writing or an applicable exception in order to render the oral agreement enforceable. By refusing to instruct the jury on the statute of frauds, the trial court ruled, in effect, that as a matter of law the defense was not supported by the evidence produced at trial. Defendant claimed that the defense was applicable for two reasons: first, because the writing requirement was not satisfied and, second, because there could not have been any "acceptance” by the defendant since defendant was not the buyer.
Under MCL 440.2201(1); MSA 19.2201(1), the writing must evidence a contract for the sale of goods, it must be "signed” and it must specify a quantity. In support of its claim that the writing requirement was satisfied, plaintiff introduced into evidence numerous shipping invoices or delivery tickets for the apples delivered during May and June, 1978. Each of these preprinted forms contained defendant’s written name after the standard, typed phrase "Sold To”. However, plaintiff admitted that this form was used whenever the fruit was delivered to a party, even though the goods were not sold to that party. Plaintiff’s representative also stated that the same form containing "Sold To A. F. Murch” was used when apples owned by plaintiff were delivered to defendant for processing only.
Plaintiff also submitted the "scale ticket” issued by defendant. These tickets indicated the number of boxes of apples and their total weight and were prepared whenever any apples arrived at defendant’s plant. Some of the "scale tickets” were signed by defendant’s employees. Plaintiff’s representative stated, that these tickets would not indicate necessarily that the apples had been sold to defendant.
The testimony of plaintiff’s own witness, therefore, was conflicting as to whether the documents evidenced a contract of sale. The delivery tickets accompanied any delivery of goods, not only deliveries to buyer, and the scale tickets certified the weight of the goods, not the buyer of them. Further, the delivery tickets were not signed by defendant. The scale tickets contained the signature of the employees that were responsible only for recording the weight of shipments.
In light of the conflicting testimony produced at the trial, the issue of the sufficiency of the writing was a question of fact for the jury. The documents themselves did not establish unequivocally a con tract for the sale of goods. The sufficiency of defendant’s signature was also open to question.
Plaintiff argues, however, that even if there were no sufficient writing, the partial performance exception to the writing requirement was satisfied by virtue of defendant’s receipt and acceptance of the goods. MCL 440.2201(3)(c); MSA 19.2201(3)(c). In support of this claim plaintiff presented testimony that all of the apples were delivered to defendant, who then processed them. Defendant also was the party that scheduled some of the deliveries.
While acknowledging that the apples were delivered to defendant’s processing plant, defendant presented evidence that they were never "accepted” because the code requires acceptance by a "buyer”, one who contracts to buy goods. Defendant claimed that it merely took delivery of the items and processed them for the real buyer, U. S. Fruit Service Company.
Jack Franz, president of U. S. Fruit Service Company, was deposed as a witness for plaintiff. Franz stated that his company purchased apples from plaintiff beginning in late 1977 and continuing through June, 1978. It was U. S. Fruit Service Company that paid for the apples delivered at defendant’s processing plant. Franz stated that the payments were accompanied by remittance or grading sheets. The letterhead on the remittance sheets bore the name U. S. Fruit Service and following the caption "Seller”, "West Central” had been written in. The remittance sheet showed the receiving date and the number of the receiving invoice and set forth the number of pounds of juice apples and the number of pounds of peeler apples. The sheet also showed the total payment and what appears to be the check number belonging to U. S. Fruit Service Company.
Franz also stated that he initially placed delivery orders with plaintiff. However, this method of scheduling deliveries did not work well because they were not regulated with other deliveries at the plant. Therefore, Franz agreed with defendant that defendant would contact plaintiff about scheduling deliveries to the processing plant. Mr. Hank Girr, defendant’s employee, testified that when he called plaintiff to order a delivery he mentioned that "it would be to the account of Jack Franz”. On one occasion Franz himself picked up a load of apples at plaintiff’s facility and brought them to defendant’s plant.
In light of the above testimony, it is clear that there was a major dispute as to whether defendant was in fact the "buyer” of the goods. There was abundant testimony on both sides of this issue. The UCC requires that acceptance be made by the "buyer”, not merely by anyone taking delivery of the goods. Where the identity of the buyer is a crucial factor and conflicting testimony was presented by both parties, it was for the jury to decide this question of fact. We conclude that the trial court erred in removing the statute of frauds defense from the jury’s consideration.
In light of our disposition on the above issue, we summarily reject defendant’s claim that the trial court erred in failing to grant a directed verdict based on the statute of frauds defense or that the jury verdict was against the great weight of the evidence.
On remand, the trial court need not instruct the jury on the doctrine of unequivocal referability. We reject defendant’s argument that in order to prevail on the partial performance exception, plaintiff must demonstrate that defendant’s conduct in taking delivery of the apples unequivocally refers to the alleged oral contract. All of the Michigan cases cited in support of this doctrine are based on pre-Uniform Commercial Code law. The UCC makes no mention of this equitable principle, and the code’s official commentary clearly indicates that this doctrine is no longer the law with regard to the sale of goods. The applicable Commentary reads as follows:
"Receipt and acceptance either of goods or of the price constitutes an unambiguous overt admission by both parties that a contract actually exists. * * * The overt actions of the parties make admissible evidence of the other terms of the contract necessary to a just apportionment. This is true even though the actions of the parties are not in themselves inconsistent with a different transaction such as a consignment for resale or a mere loan of money.” MCL 440.2201; MSA 19.2201, Comment 2.
Under the UCC, therefore, partial performance can be shown by the receipt and acceptance of the goods, notwithstanding any other possible explanations for defendant’s actions. The receipt and acceptance of the goods constitute an objective manifestation of the parties’ assent to a contract. Accord, Gerner v Vasby, 75 Wis 2d 660, 669; 250 NW2d 319 (1977).
Defendant also cites as error the following jury instruction:
"A written contract may be modified by a subsequent agreement of the parties. This is so even though the original contract stipulates that it is not to be changed, except by an agreement in writing. The controlling factor is the intention of the parties. You can determine that intention not only from any specific writings, but also from the oral statements, conduct and acts of the parties.”
Defendant argues that this instruction is contrary to the UCC because the modification of a written agreement must still satisfy the statute of frauds provision of the code. We agree.
Even though MCL 440.2204(1); MSA 19.2204(1) states that a contract for the sale of goods may be formed by any manner of expression by the parties, this provision is qualified expressly by the statute of frauds section. See Nelson v Hy-Grade Construction & Materials, Inc, 215 Kan 631; 527 P2d 1059 (1974). The requirements of the statute of frauds section of the UCC must be satisfied if the contract as modified is within its provision. MCL 440.2209(3); MSA 19.2209(3). A signed agreement that excludes modification except by a signed writing cannot be otherwise modified. MCL 440.2209(2); MSA 19.2209(2). See U S Fibres, Inc v Proctor & Schwartz, Inc, 358 F Supp 449 (ED Mich, 1972), aff'd 509 F2d 1043 (CA 6, 1975).
The parties’ original agreement required that any modification be in writing. Any extension of the 1976 agreement, therefore, must satisfy the statute of frauds provisions in order to be enforceable. Alternatively, if the deliveries in 1978 were to be regarded as separate agreements (unrelated to the extension of the 1976 broker’s agreement), they must also conform to the statute of frauds section of the code. The court’s instruction that an oral extension was enforceable was erroneous and should not be given on retrial.
Defendant next argues that the court erred in failing to grant defendant’s motion for a directed verdict on plaintiffs second theory of recovery— liability of an undisclosed agent. Defendant claims that since plaintiff was fully aware of. U. S. Fruit Service Company’s involvement in the transactions, defendant could not be held liable as its "undisclosed” agent. Defendant also argues that the court’s instruction on this count of the complaint was in error. The court instructed the jury as follows:
"An agent is a substitute or deputy appointed by another person, called the principal, to act for or in the place of the principal and who undertakes to transact some business or manages some affairs for the principal. The legal rule is that an agent who deals with third persons but fails to disclose the fact of his agency may become personally liable for his acts on behalf of the undisclosed principal. The duty rests upon the agent to disclose his agency.”
Defendant relies on U. S. Fruit’s payment as the dispositive fact which, allegedly, fully informed plaintiff that it was the principal party in the business relationship with plaintiff. Mere fact of payment for the deliveries, however, does not establish unquestionably that U. S. Fruit was the real contracting party. An alternative arrangement between defendant and U. S. Fruit (wholly separate from any principal/agent relationship), which could have required that payments be made by U. S. Fruit, was possible particularly since testimony at the trial indicated that plaintiff was aware of other business dealings between those two parties. Also, the undisputed evidence that plaintiff did not want to deal with U. S. Fruit and communicated this fact to defendant bolsters its claim that it believed that defendant was the actual purchaser of the goods. Moreover, defendant’s conduct in scheduling deliveries and receiving the goods is consistent with the actions of an agent. We conclude that the trial court properly left it for the jury to decide whether defendant was an undisclosed agent of U. S. Fruit.
We point out, however, that even if defendant were subject to liability as an agent of U. S. Fruit, the transaction is still subject to the UCC statute of frauds requirements. The principle of undisclosed agency itself does not create a valid claim against either agent or principal where none otherwise exists. Therefore, on retrial the court should instruct the jury that the code provision with regard to the statute of frauds also must be met under this alternative theory of liability.
Defendant finally contends that the court erred in admitting into evidence a list containing a summary of the transactions between plaintiff and defendant, prepared by plaintiff’s bookkeeper specifically for litigation. We find no error here. The exhibit, a summary of the deliveries of goods from December, 1977, through June, 1978, was based on the invoices and scale tickets already admitted into evidence. It was used to determine a proper measure of damages. As a summary of voluminous writings, the exhibit was admissible under MRE 1006.
Reversed and remanded for a new trial. | [
-26,
-15,
-20,
3,
11,
-11,
22,
-15,
27,
35,
-25,
20,
43,
43,
-13,
-19,
24,
-55,
27,
-17,
33,
-37,
19,
-4,
-23,
-7,
4,
-51,
26,
-9,
-29,
26,
-3,
-38,
-27,
6,
9,
5,
3,
-13,
16,
-27,
34,
13,
17,
-1,
19,
-34,
49,
29,
-6,
13,
-27,
-9,
-50,
-17,
-3,
36,
-47,
41,
20,
13,
7,
8,
-3,
-24,
-26,
23,
10,
0,
-3,
7,
9,
-34,
-24,
-67,
-12,
5,
-29,
8,
-5,
-3,
18,
-5,
-9,
16,
12,
-12,
-28,
-5,
-61,
0,
-34,
20,
7,
4,
-74,
35,
-11,
36,
26,
-15,
-56,
3,
71,
16,
19,
-53,
-83,
35,
13,
-8,
25,
-37,
3,
-24,
0,
15,
-22,
-3,
25,
28,
19,
-5,
43,
1,
6,
-18,
-16,
8,
74,
-6,
-55,
13,
-29,
12,
3,
45,
10,
28,
31,
0,
-64,
12,
41,
-2,
-59,
-28,
-50,
-61,
-20,
-18,
-29,
5,
10,
23,
21,
-6,
6,
-49,
44,
-54,
12,
28,
-47,
-12,
-36,
-36,
-11,
49,
-14,
-13,
-7,
-37,
-8,
-20,
72,
-32,
-31,
-41,
-8,
4,
-55,
-18,
-3,
-9,
15,
0,
-45,
-1,
33,
-64,
-33,
-13,
-33,
39,
18,
35,
6,
53,
-35,
-71,
23,
-29,
28,
-4,
38,
-16,
-39,
38,
-25,
-42,
-2,
-28,
-67,
-15,
41,
0,
33,
-3,
27,
-29,
-7,
-5,
-5,
-28,
-6,
-32,
-2,
-26,
-36,
9,
17,
52,
-17,
5,
8,
-26,
77,
30,
1,
4,
-38,
-40,
28,
-14,
-42,
20,
27,
38,
-7,
8,
-10,
27,
5,
-50,
-37,
25,
3,
21,
-15,
27,
-34,
53,
-33,
-37,
1,
25,
-2,
33,
-39,
-18,
18,
18,
-10,
-16,
-43,
-5,
10,
-5,
24,
-23,
-9,
-39,
-3,
-8,
49,
62,
-38,
25,
31,
16,
-9,
-56,
30,
56,
-25,
-10,
4,
53,
-46,
-15,
16,
-34,
-53,
41,
-25,
-4,
36,
-32,
-32,
-70,
38,
-56,
16,
-32,
27,
36,
1,
-13,
27,
56,
7,
73,
15,
-41,
17,
-17,
-6,
7,
39,
1,
-5,
12,
12,
-42,
29,
-15,
15,
31,
54,
63,
-12,
26,
-8,
23,
11,
-22,
6,
-45,
29,
-3,
12,
4,
53,
34,
-1,
63,
-17,
49,
-6,
-30,
-39,
1,
-10,
16,
-7,
-17,
-4,
41,
-65,
69,
-21,
74,
-40,
-54,
0,
-44,
-14,
75,
40,
-45,
-7,
-18,
22,
-11,
-37,
-21,
-27,
0,
-58,
5,
15,
39,
13,
4,
9,
-28,
-39,
0,
30,
15,
-17,
-83,
-2,
0,
-1,
-30,
3,
-16,
-3,
-22,
-16,
22,
-51,
-23,
46,
25,
11,
37,
55,
70,
-32,
-20,
62,
-72,
1,
35,
-69,
17,
-12,
6,
25,
-15,
-16,
27,
-36,
-2,
26,
19,
-31,
43,
-50,
-45,
35,
11,
-38,
40,
39,
-28,
42,
-29,
-3,
37,
-58,
31,
1,
-9,
14,
4,
-3,
-48,
-8,
-49,
-32,
-19,
21,
-37,
-26,
10,
-64,
26,
112,
10,
-34,
-4,
10,
-22,
-7,
11,
-33,
42,
27,
-8,
-32,
-11,
13,
53,
0,
65,
25,
-4,
10,
33,
-26,
31,
70,
-23,
63,
15,
-19,
-51,
-34,
20,
3,
-5,
49,
3,
22,
27,
-16,
9,
54,
30,
1,
17,
20,
77,
14,
44,
33,
-9,
-63,
51,
-22,
36,
19,
-1,
18,
-5,
28,
4,
37,
-66,
25,
-14,
20,
-20,
4,
-38,
18,
-9,
-20,
32,
-24,
9,
-4,
-31,
-7,
-18,
25,
-43,
11,
-11,
-37,
93,
-2,
17,
-4,
-8,
-33,
43,
-10,
-31,
47,
-9,
-14,
12,
61,
32,
-35,
-39,
63,
32,
47,
-37,
12,
-1,
-21,
-8,
-20,
39,
-10,
-29,
-49,
19,
35,
5,
53,
-8,
-59,
21,
10,
-57,
52,
20,
20,
8,
42,
1,
5,
-25,
-67,
-8,
-20,
-54,
-37,
74,
-15,
7,
-21,
-19,
-10,
-42,
12,
-2,
6,
-33,
-6,
36,
2,
-5,
-17,
-28,
42,
78,
35,
-25,
6,
-10,
33,
-43,
-3,
28,
-2,
1,
1,
36,
-21,
-56,
-4,
-48,
-55,
13,
10,
1,
-19,
17,
0,
1,
15,
-4,
24,
20,
-9,
-20,
2,
0,
-11,
-24,
22,
14,
-14,
16,
-10,
-7,
13,
-18,
18,
-13,
26,
10,
7,
-12,
67,
9,
20,
46,
30,
-9,
-5,
-39,
-1,
0,
-21,
8,
-18,
-40,
1,
-39,
-53,
-13,
-11,
-51,
15,
-25,
41,
0,
30,
-8,
-8,
-10,
-5,
46,
-19,
45,
-41,
-6,
1,
28,
63,
-47,
0,
0,
38,
9,
24,
54,
-11,
-41,
-20,
-17,
56,
-26,
-59,
-23,
-13,
-14,
-33,
43,
-9,
-9,
24,
16,
20,
23,
5,
-51,
-35,
23,
-4,
-28,
-37,
-20,
3,
-4,
31,
65,
-26,
1,
-29,
-17,
21,
52,
-16,
-54,
-26,
2,
-69,
9,
-27,
18,
-29,
-38,
15,
-2,
31,
-31,
76,
6,
-73,
-5,
5,
28,
12,
-10,
36,
29,
-66,
-32,
17,
11,
-7,
-38,
-28,
-47,
70,
-30,
69,
28,
-19,
-25,
27,
0,
-37,
38,
13,
72,
32,
-65,
13,
-43,
25,
2,
-27,
-48,
20,
-58,
36,
3,
-14,
-3,
21,
-28,
30,
27,
-41,
-32,
-2,
19,
0,
-6,
-43,
-13,
-30,
-12,
-27,
5,
8,
-28,
30,
-14,
19,
3,
-19,
87,
5,
-40,
-2,
25,
-20,
23,
-3,
1,
0,
-8,
12,
0,
-29,
-71,
-11,
-6,
-31,
6,
26,
30,
-24,
13,
-37,
-28,
11,
-9,
-68,
7,
-14,
21,
-19,
-38,
-11,
-16,
13,
39,
-11,
-16,
2,
-4,
-70,
-84,
27,
6,
11,
53,
1,
16,
25,
30,
-4,
1,
28,
24,
18,
-7,
6,
20,
3,
-38,
9,
-3,
11,
24,
-16,
4,
23,
-52,
-35,
28,
31,
2,
0,
13,
15,
-67,
60,
5,
-79,
43,
-11,
24,
7,
-21,
17,
-29,
6,
-57,
-12,
-26,
34,
10,
-12,
5,
24,
-30,
67,
-6,
-37,
-20,
-37,
-45,
12,
4,
5,
66,
68,
-22,
-63,
-60,
-24,
-4,
44,
-29,
27,
43,
-32,
39,
-18,
-4,
-21,
11,
-11,
28,
22,
73,
-5,
12,
55,
16,
13,
1,
1,
-33,
24,
31,
-38,
-15,
17,
-6,
-26,
47,
-13,
24,
-13,
-33,
-48,
31,
27,
-26,
-20,
-21,
-38,
-23,
-3,
55,
36,
-17,
-3,
-21,
30,
26,
-8,
-43,
-8,
-25,
-18,
18,
-22,
-16,
30,
33,
-28,
62,
-33,
-1,
14,
54,
-1,
60,
-22,
17,
-28,
15,
8,
6,
13,
41
] |
VIVIANO, J.
At issue before us is whether defendant’s convictions of operating while intoxicated (OWI) and operating while intoxicated causing serious impairment of the body function of another person (OWI-injury) arising from a single intoxicated driving incident violated the double jeopardy clauses of the United States and Michigan Constitutions. Although we agree with the Court of Appeals’ conclusion that convicting defendant of both offenses violated his double jeopardy protections, we disagree with the reasoning employed by the Court of Appeals. In particular, the Court of Appeals erred by not recognizing the clear legislative intent reflected in the plain language of the statute precluding multiple punishments for OWI and OWI-injury. Accordingly, for the reasons stated below, we affirm the Court of Appeals’ decision to vacate defendant’s OWI conviction under MCL 257.625(1) on alternate grounds and remand to the trial court for resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2012, while returning from a concert at which they had both been drinking alcohol, defendant and his girlfriend got into an argument. Defendant grabbed the wheel from his girlfriend, who was driving, causing the car to go off the road and strike a tree. Defendant’s girlfriend suffered a broken collar bone and a concussion as a result of the accident. Defendant had a blood alcohol level of 0.17 grams per 100 milliliters.
Defendant was charged with OWI and OWI-injury. A jury convicted defendant as charged. The trial court sentenced defendant to two concurrent terms of five years’ probation, with the first nine months to be served in the county jail.
Defendant appealed to the Court of Appeals, arguing that the trial court violated the multiple punishments strand of the double jeopardy clauses by convicting him of both OWI and OWI-injury. The Court of Appeals agreed, vacated defendant’s OWI conviction under MCL 257.625(1), and remanded the case for resentenc-ing. The prosecution moved for reconsideration, arguing that the Court of Appeals’ analysis was contrary to People v Ream, but the Court of Appeals denied the motion in a summary order.
The prosecution sought leave to appeal in this Court. We granted leave to consider whether defendant’s convictions for both OWI and OWI-injury arising from the same incident constitutes a violation of the multiple punishments strand of double jeopardy under the United States and Michigan Constitutions.
II. STANDARD OF REVIEW
This case presents questions of law regarding statutory interpretation and the application of our state and federal Constitutions, which we review de novo.
III. MULTIPLE PUNISHMENTS STRAND OF DOUBLE JEOPARDY
The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb . . . .” The Michigan Constitution similarly provides that “[n]o person shall be subject for the same offense to be twice put in jeopardy.” The prohibition against double jeopardy protects individuals in three ways: “(1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.” The first two protections comprise the “successive prosecutions” strand of double jeopardy, while the third protection is known as the “multiple punishments” strand. Because defendant was convicted of and sentenced for both OWI and OWI-injury arising from the same conduct at the same trial, this case involves the multiple punishments strand of double jeopardy.
The multiple punishments strand of double jeopardy “is designed to ensure that courts confine their sen tences to the limits established by the Legislature” and therefore acts as a “restraint on the prosecutor and the Courts.” The multiple punishments strand is not violated “[w]here ‘a legislature specifically authorizes cumulative punishment under two statutes . . . ” Conversely, where the Legislature expresses a clear intention in the plain language of a statute to prohibit multiple punishments, it will be a violation of the multiple punishments strand for a trial court to cumulatively punish a defendant for both offenses in a single trial. “Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.”
The Legislature, however, does not always clearly indicate its intent with regard to the permissibility of multiple punishments. When legislative intent is not clear, Michigan courts apply the “abstract legal elements” test articulated in Ream to ascertain whether the Legislature intended to classify two offenses as the “same offense” for double jeopardy purposes. This test focuses on the statutory elements of the offense to determine whether the Legislature intended for multiple punishments. Under the abstract legal elements test, it is not a violation of double jeopardy to convict a defendant of multiple offenses if “each of the offenses for which defendant was convicted has an element that the other does not. . . .” This means that, under the Ream test, two offenses will only be considered the “same offense” where it is impossible to commit the greater offense without also committing the lesser offense.
In sum, when considering whether two offenses are the “same offense” in the context of the multiple punishments strand of double jeopardy, we must first determine whether the statutory language evinces a legislative intent with regard to the permissibility of multiple punishments. If the legislative intent is clear, courts are required to abide by this intent. If, however, the legislative intent is not clear, courts must then apply the abstract legal elements test articulated in Ream to discern legislative intent.
IV. ANALYSIS AND APPLICATION
Subsections (1) through (8) of MCL 257.625 establish different categories of operating while intoxicated offenses. In this case, we must determine whether double jeopardy precludes defendant’s convictions of OWI under MCL 257.625(1) and OWI-injury under MCL 257.625(5) arising from a single intoxicated driving incident.
MCL 257.625(1) provides:
A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person is operating while intoxicated. As used in this section, “operating while intoxicated” means any of the following:
(a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.
(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, beginning October 1,2018, the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
(c) The person has an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
MCL 257.625(5) provides:
A person, whether licensed or not, who operates a motor vehicle in violation of subsection (1), (3), or (8) and by the operation of that motor vehicle causes a serious impairment of a body function of another person is guilty of a crime as follows:
(a) Except as provided in subdivision (b), the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not less than $1,000.00 or more than $5,000.00, or both. The judgment of sentence may impose the sanction permitted under section 625n. If the vehicle is not ordered forfeited under section 625n, the court shall order vehicle immobilization under section 904d in the judgment of sentence.
(b) If the violation occurs while the person has an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, and within 7 years of a prior conviction, the person is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not less than $1,000.00 or more than $5,000.00, or both. The judgment of sentence may impose the sanction permitted under section 625n. If the vehicle is not ordered forfeited under section 625n, the court shall order vehicle immobilization under section 904d in the judgment of sentence.
As stated above, to determine whether defendant’s convictions of both OWI and OWI-injury violated his double jeopardy rights, we must first determine whether the Legislature expressed a clear intent regarding the permissibility of multiple operating while intoxicated convictions arising from the same incident.
The Court of Appeals concluded, based on an examination of the plain language of MCL 257.625, that the Legislature did not “evince a clear expression of any intent to allow multiple punishments for the same offense.” In doing so, the Court focused on MCL 257.625(25) and (27). MCL 257.625(25)(b) defines “prior convictions” and includes as part of that definition a violation of “[t]his section” or a “substantially corresponding” local ordinance, federal law, or law of another state. MCL 257.625(27) provides that “[i]f 2 or more convictions described in subsection (25) are convictions for violations arising out of the same transaction, only 1 conviction shall be used to determine whether the person has a prior conviction.” The Court of Appeals concluded that the Legislature did not clearly state its intent with regard to multiple punishments under these subsections because Subsection (25) includes “as part of its definition of ‘prior conviction’ a conviction from a foreign jurisdiction of a law that ‘substantially correspond^] to a law of this state,” which may allow multiple punishments for a single transaction and thus Subsection (27) merely “limit [s] how those multiple convictions are to be handled with respect to calculating a defendant’s number of ‘prior convictions.’ ”
We agree with the Court of Appeals that MCL 257.625(25) and (27) do not indicate a clear legislative intent with regard to the permissibility of multiple punishments. While MCL 257.625(27) considers the possibility that a defendant could be convicted of multiple offenses arising out of the same transaction, it is not clear whether the Legislature contemplated these multiple offenses as arising solely under Michigan law, the laws of another jurisdiction that “substantially correspondí] to a law of this state,” or a combination thereof.
Despite the Court of Appeals’ proper analysis of these subsections, our review of MCL 257.625 as a whole leads us to conclude that the Legislature did express a clear intent with regard to multiple punishments arising under MCL 257.625(1) and (5). As with any statutory interpretation, we must give effect to the Legislature’s intent by focusing first on the statute’s plain language. When statutory language is clear and unambiguous, we assume that the Legislature intended its plain meaning and we enforce the statute as written. Here, MCL 257.625(1) and (5) are silent on the issue of multiple punishments and thus do not, when read in isolation, clearly evidence the Legislature’s intent on whether multiple punishments are allowed.
However, we do not quarantine the text when interpreting statutes. Instead, we must examine the statutory language as a whole to determine the Legislature’s intent. In this respect, we find it significant that the Legislature specifically authorized multiple punishments for some operating while intoxicated offenses in another subsection of the statute. MCL 257.625(7) creates a separate operating while intoxicated offense for individuals who drive while intoxicated with a minor in the car (OWI-minor). Subsection (7)(d) provides in relevant part:
This subsection does not prohibit a person from being charged with, convicted of, or punished for a violation of subsection (4) or (5) that is committed by the person while violating this subsection. However, points shall not be assessed under section 320a for both a violation of subsection (4) or (5) and a violation of this subsection for conduct arising out of the same transaction.[ ]
Thus, under MCL 257.625(7)(d), the Legislature specifically authorized multiple convictions and punishments for a person who commits OWI-minor and by that same conduct also commits OWI-injury or causes “the death of another person” under MCL 257.625(4) (OWI-death).
The specific authorization for multiple punishments contained in MCL 257.625(7)(d) leads us to conclude that the Legislature did not intend to permit multiple punishments for OWI and OWI-injury offenses arising from the same incident. While Subsection (7) expressly authorizes multiple punishments for certain operating while intoxicated offenses, this authorization is limited to the circumstances described in MCL 257.625(7)(d). And interpreting this subsection in the context of the statute as a whole leads us to conclude that the Legislature intended to exclude all other multiple punishments under MCL 257.625. This implication is particularly probative of legislative intent in this case because the express authorization of multiple punishments in Subsection (7)(d) involves one of the subsections under examination in this case, MCL 257.625(5). The fact that the Legislature expressly authorized multiple punishments for Subsection (5) and a subsection other than Subsection (1) demonstrates that the Legislature did not intend to permit multiple punishments for violations of Subsections (1) and (5). In other words, if the Legislature had intended to allow multiple punishments for Subsections (1) and (5), it clearly knew how to do so, as evidenced by the specific authorization in MCL 257.625(7)(d). But neither MCL 257.625(1) nor (5) contains similar language specifically authorizing the conviction of and punishment for multiple offenses. Thus, in light of MCL 257.625(7)(d), the omission of a similar clause providing explicit authority to convict a defendant of multiple operating while intoxicated offenses arising out of the same incident in either MCL 257.625(1) or (5) is a clear indication that the Legislature did not intend for defendants to be convicted of and punished for OWI and OWI-injury arising out of the same incident.
Further, to reach the opposite conclusion would violate our well-recognized rule that we “must give effect to every word, phrase, and clause and avoid an interpretation that would render any part of the statute surplusage or nugatory.” That is, had the Legislature generally intended to allow multiple punishments for every category of operating while intoxicated offense arising from the same conduct, there would have been no need for the Legislature to specifically authorize multiple punishments for OWI-minor and OWI-death or OWI-injury. To interpret MCL 257.625 as permitting multiple punishments for other operating while intoxicated offenses would improperly render the specific authorization under MCL 257.625(7)(d) surplusage.
Therefore, the Court of Appeals erred by concluding that the Legislature did not “evince a clear expression of any intent to allow . . . multiple punishments for the same offense.” In light of the express statutory language permitting multiple punishments in MCL 257.625(7)(d), the fact that MCL 257.625(1) and (5) do not contain any express authorization for multiple punishments indicates that the Legislature did not intend to permit a defendant to be convicted of both of these offenses for the same criminal conduct. Accordingly, we hold that the trial court violated the double jeopardy prohibition by convicting defendant of both OWI under MCL 257.625(1) and OWI-injury under MCL 257.625(5).
V. CONCLUSION
We conclude that defendant’s convictions of both OWI and OWI-injury for the same intoxicated driving incident violates the multiple punishments prong of the double jeopardy clauses. Based on the plain language of MCL 257.625, the Legislature expressed a clear intent not to allow conviction of and punishment for multiple offenses arising from the same conduct, except where explicitly authorized by the statute. Therefore, the Court of Appeals reached the right result when it vacated defendant’s OWI conviction. However, the Court of Appeals did so for the wrong reasons. Accordingly, we affirm the Court of Appeals’ decision to vacate defendant’s OWI conviction under MCL 257.625(1) on alternate grounds and remand to the trial court for resentencing.
Young, C.J., and Markman, Kelly, Zahra, McCormack, and Bernstein, JJ., concurred with Viviano, J.
MCL 257.625(1).
MCL 257.625(5).
US Const, Am V; Const 1963, art 1, § 15.
People v Miller, unpublished opinion per curiam of the Court of Appeals, issued March 11, 2014 (Docket No. 314375).
People v Ream, 481 Mich 223; 750 NW2d 536 (2008).
People v Miller, 497 Mich 881 (2014).
People v Gardner, 482 Mich 41, 46; 753 NW2d 78 (2008); People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004).
US Const, Am V.
Const 1963, art 1, § 15. Although we are not bound to interpret the Michigan Constitution consistently with similar provisions of the United States Constitution, “we have been persuaded in the past that interpretations of the Double Jeopardy Clause of the Fifth Amendment have accurately conveyed the meaning of Const 1963, art 1, § 15 ..." People v Smith, 478 Mich 292, 302 n 7; 733 NW2d 351 (2007).
Nutt, 469 Mich at 574.
Smith, 478 Mich at 299.
People v Mitchell, 456 Mich. 693, 695; 575 NW2d 283 (1998); see also Brown v Ohio, 432 US 161, 165; 97 S Ct 2221; 53 L Ed 2d 187 (1977) (“Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional [double jeopardy] guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.”).
Mitchell, 456 Mich at 695, quoting Missouri v Hunter, 459 US 359, 368-369; 103 S Ct 673; 74 L Ed 2d 535 (1983).
See Garrett v United States, 471 US 773, 779; 105 S Ct 2407; 85 L Ed 2d 764 (1985) (explaining “that the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history”); Hunter, 459 US at 366 (“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.”); Smith, 478 Mich at 316 (“In interpreting ‘same offense’ in the context of multiple punishments, federal courts first look to determine whether the legislature expressed a clear intention that multiple punishments be imposed.”); Mitchell, 456 Mich at 695-696 (“Where the issue is one of multiple punishment rather than successive trials, the double jeopardy analysis is whether there is a clear indication of legislative intent to impose multiple punishment for the same offense.”).
Albernaz v United States, 450 US 333, 344; 101 S Ct 1137; 67 L Ed 2d 275 (1981).
Ream., 481 Mich at 238 (explaining that “[bjecause the statutory-elements, not the particular facts of the case, are indicative of legislative intent, the focus must be on these statutory elements”).
Id. at 225-226.
Id. at 241.
See Mitchell, 456 Mich at 695-696 (explaining that where the legislative intent is clear, “ ⅛ court’s task of statutory construction is at an end’ ”), quoting Hunter, 459 US at 368.
Miller, unpub op at 4.
Id.
Madugula v Taub, 496 Mich 685, 696; 853 NW2d 75 (2014).
Id.
Id. at 698.
Although this argument was not made in the parties’ briefs filed in this Court or the Court of Appeals, it was raised by defense counsel during oral arguments in this Court.
MCL 257.625(7) proscribes “operat[ing] a vehicle in violation of subsection (1), (3), (4), (5), or (8) while another person who is less than 16 years of age is occupying the vehicle.”
Emphasis added.
Johnson v Recca, 492 Mich 169, 177; 821 NW2d 520 (2012) (“ ‘We interpret th[e] words in [the statute in] light of their ordinary meaning and their context within the statute and read them harmoniously to give effect to the statute as a whole.’ ”), quoting People v Peltola, 489 Mich 174, 181; 803 NW2d 140 (2011).
See, e.g., Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993) (“Courts cannot assume that the Legislature inadver tently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there.”).
See People v Houston, 473 Mich 399, 410; 702 NW2d 530 (2005).
State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002).
Miller, unpub op at 4.
Because the Legislature evinced a clear intent with regard to the permissibility of multiple punishments based on the plain language of the statute, the Court of Appeals did not need to employ Beam’s abstract legal elements test. However, even assuming that resort to Ream was necessary, the Court of Appeals did not apply Beam correctly because it compared the elements of each offense as charged rather than focusing on the abstract statutory elements of the two offenses, as required by Ream.
While plaintiff argues that there is no double jeopardy violation because defendant was sentenced to concurrent, rather than consecutive, sentences and thus does not face multiple sentences, we find this argument unpersuasive. A concurrent sentence does not eliminate the potential collateral consequences of two convictions for the same offense. See Ball v United States, 470 US 856, 864-865; 105 S Ct 1668; 84 L Ed 2d 740 (1985) (including as examples of the collateral consequences of a second conviction as potentially “delay[ing] the defendant’s eligibility for parole or result[ing] in an increased sentence under a recidivist statute for a future offense”).
People v Herron, 464 Mich 593, 609; 628 NW2d 528 (2001) (explaining that “it is an appropriate remedy in a multiple punishment double jeopardy violation to affirm the conviction of the higher charge and to vacate the lower conviction”). | [
-34,
50,
-25,
-12,
-76,
-12,
-39,
11,
-13,
60,
-11,
-58,
25,
-61,
56,
-14,
-19,
27,
-32,
13,
1,
-6,
-45,
49,
-46,
-10,
16,
29,
14,
-12,
-3,
-31,
24,
-22,
-6,
-20,
20,
17,
2,
8,
41,
24,
-10,
-1,
-36,
-26,
4,
-21,
24,
-35,
-15,
-16,
-28,
-3,
31,
32,
22,
5,
25,
39,
0,
25,
-17,
-19,
5,
-18,
-2,
7,
-34,
1,
18,
6,
-44,
11,
-46,
10,
23,
62,
12,
30,
-3,
34,
9,
-6,
20,
3,
-17,
-40,
25,
-70,
-18,
-53,
-54,
-29,
-34,
-13,
-38,
-52,
33,
-36,
1,
-1,
40,
19,
-36,
0,
20,
32,
-16,
-11,
17,
27,
-1,
30,
-15,
-85,
-28,
56,
-11,
35,
12,
-10,
45,
46,
17,
-57,
-15,
-9,
-7,
-3,
14,
-4,
-1,
-46,
-32,
34,
-21,
64,
15,
23,
26,
9,
35,
8,
27,
47,
-5,
5,
45,
7,
8,
16,
-2,
7,
-30,
4,
14,
-2,
5,
3,
-28,
8,
0,
34,
-9,
-5,
-27,
56,
1,
14,
60,
-4,
10,
9,
45,
17,
8,
-6,
-31,
15,
-43,
-1,
11,
-29,
-13,
-28,
-41,
-37,
-31,
1,
-4,
-4,
-48,
-32,
23,
30,
60,
68,
22,
-7,
-11,
-46,
8,
26,
-4,
-38,
-4,
-21,
-5,
8,
-12,
-31,
-15,
-46,
-7,
-31,
43,
-15,
-28,
4,
21,
-27,
68,
-4,
-20,
-24,
-30,
15,
17,
-3,
40,
-11,
41,
18,
-10,
-71,
9,
11,
72,
-46,
10,
33,
-4,
-15,
27,
-19,
0,
-6,
-11,
-23,
54,
-33,
11,
-43,
-54,
-26,
5,
-40,
-30,
26,
-20,
64,
-12,
20,
-72,
32,
31,
18,
-5,
-17,
-24,
12,
24,
-43,
-15,
3,
-38,
80,
33,
55,
34,
7,
21,
43,
3,
31,
-82,
73,
28,
-16,
42,
-59,
-58,
2,
5,
-54,
26,
0,
-28,
13,
32,
-13,
25,
31,
-4,
50,
15,
14,
-23,
-25,
31,
1,
10,
45,
25,
-18,
16,
-19,
36,
-43,
-57,
7,
4,
-36,
-25,
-70,
8,
-37,
18,
-32,
-49,
6,
14,
20,
-24,
-21,
19,
-12,
-2,
31,
46,
-33,
21,
-33,
-1,
30,
24,
5,
21,
-23,
-14,
4,
51,
-34,
-26,
-32,
-8,
-36,
43,
-8,
0,
-31,
-14,
51,
-4,
22,
34,
41,
-7,
33,
-1,
-19,
-3,
38,
14,
-35,
23,
41,
-43,
24,
4,
-7,
46,
-13,
8,
-15,
-68,
-37,
-40,
6,
-32,
17,
-15,
-45,
35,
21,
-10,
-35,
13,
-51,
7,
-2,
46,
-3,
-35,
-50,
26,
22,
-10,
-43,
-21,
3,
21,
28,
35,
36,
-14,
1,
-54,
-62,
15,
-17,
-26,
-43,
53,
-37,
-43,
-3,
17,
37,
7,
9,
20,
5,
-25,
-17,
-32,
-5,
20,
-9,
-27,
2,
-45,
-1,
14,
13,
-5,
-45,
16,
33,
32,
-10,
-26,
-36,
-21,
14,
35,
46,
-7,
-15,
3,
-24,
9,
-64,
52,
-18,
-61,
-33,
52,
-51,
31,
10,
-28,
44,
-24,
-6,
-2,
50,
-29,
12,
-3,
-14,
-12,
-35,
-10,
-42,
-13,
24,
3,
-46,
4,
21,
18,
13,
-41,
1,
-29,
8,
-41,
9,
-38,
-7,
-76,
12,
31,
-42,
17,
-12,
-1,
8,
-27,
46,
14,
20,
-46,
-37,
-11,
-58,
3,
1,
34,
1,
-2,
-30,
-34,
-20,
-46,
-63,
-25,
-19,
50,
-42,
54,
-45,
38,
40,
25,
-21,
-46,
38,
37,
12,
6,
16,
55,
4,
17,
-20,
65,
51,
-29,
28,
-24,
-22,
12,
24,
17,
13,
14,
-53,
-7,
-41,
18,
11,
-3,
20,
15,
15,
61,
-3,
33,
22,
2,
-29,
29,
25,
40,
12,
-78,
13,
50,
62,
-8,
53,
-62,
-14,
-5,
-17,
-6,
-80,
30,
13,
5,
24,
24,
8,
4,
-9,
-7,
18,
38,
-3,
-19,
19,
55,
36,
15,
19,
16,
-18,
25,
25,
-27,
-30,
-4,
22,
-9,
-3,
-28,
32,
37,
7,
11,
28,
-3,
-1,
-22,
3,
-41,
-35,
-1,
-10,
-32,
-15,
-2,
51,
-24,
30,
-41,
-26,
-21,
66,
12,
21,
62,
0,
-5,
25,
-34,
-53,
-27,
0,
-55,
-67,
34,
-71,
-16,
10,
-17,
-1,
-25,
40,
-5,
43,
-39,
23,
-29,
-28,
9,
-57,
36,
18,
40,
14,
40,
48,
-14,
31,
-17,
15,
-44,
-33,
48,
-52,
1,
30,
-29,
16,
53,
-2,
-8,
48,
-7,
-12,
-2,
-3,
12,
4,
-53,
0,
-11,
5,
9,
21,
-30,
31,
10,
-40,
-11,
32,
-87,
66,
25,
10,
46,
25,
14,
-37,
-62,
-45,
-21,
-28,
45,
-26,
25,
37,
-20,
1,
45,
-47,
36,
-26,
25,
8,
53,
13,
-41,
17,
-34,
77,
25,
-8,
6,
-31,
11,
-38,
-37,
33,
35,
0,
-53,
40,
39,
19,
-36,
10,
53,
-26,
-10,
-20,
-11,
-19,
18,
31,
-58,
-34,
-5,
29,
46,
9,
-48,
-13,
36,
10,
-45,
18,
-34,
-53,
-6,
-38,
27,
-25,
-37,
-20,
-22,
-32,
-40,
-43,
-20,
-1,
-59,
-6,
40,
39,
25,
6,
31,
-22,
-8,
12,
13,
-1,
-2,
26,
8,
-5,
20,
-23,
35,
17,
70,
35,
20,
26,
53,
-11,
14,
-36,
-65,
-16,
44,
0,
-49,
-8,
-19,
0,
30,
2,
-14,
-18,
-6,
-28,
-2,
-7,
11,
13,
52,
23,
26,
-21,
40,
23,
-40,
5,
-3,
28,
31,
-4,
-2,
31,
3,
-28,
-31,
2,
-1,
13,
-25,
60,
-26,
23,
0,
20,
-21,
12,
-31,
31,
-12,
28,
-66,
44,
-22,
0,
-16,
30,
-51,
5,
16,
-37,
-70,
30,
56,
-54,
0,
2,
23,
-16,
-20,
2,
-59,
3,
57,
15,
-6,
1,
-76,
19,
-7,
51,
18,
-36,
-7,
6,
-16,
0,
40,
-20,
32,
16,
-13,
6,
-10,
9,
-4,
42,
29,
-29,
-36,
-13,
36,
-5,
23,
68,
32,
44,
-64,
12,
0,
-17,
-55,
-21,
-4,
-30,
-42,
-38,
8,
-27,
35,
-44,
45,
-42,
-18,
6,
-11,
66,
-9,
-1,
-21,
-12,
-23,
-7,
-56,
28,
-5,
31,
-27,
-4,
9,
44,
-45,
7,
6,
36,
-3,
27,
23,
19,
-5,
-30,
13,
57,
-49,
-41,
-8,
-5,
31,
1,
43,
25,
-34,
-17,
-30,
19,
15,
7,
40,
-36,
-4,
21,
-67,
10,
-45,
-42,
28,
51,
-59,
35,
3,
11,
-23,
0,
24,
-8,
-11,
4,
25,
8,
11,
8,
-15,
13,
9,
31,
-9,
-48,
-14,
50,
-8,
-16,
-40,
22,
-46,
48,
28,
22
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals and we reinstate the February 19, 2014 order of the Iosco Circuit Court that granted the defendants’ motion for summary disposition. The plaintiffs’ injuries arose when plaintiff Michele Compau tripped over a railroad tie on the defendants’ property. When a plaintiff’s injury arises from an allegedly dangerous condition on the land, the action sounds in premises liability rather than ordinary negligence, even when the plaintiff alleges that the premises possessor created the condition giving rise to the plaintiff’s injury. Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 692 (2012). The railroad tie was an allegedly dangerous condition on the land, but it was open and obvious. Thus, the plaintiffs’ recovery is barred by the open and obvious danger doctrine. Lugo v Ameritech Corp, Inc, 464 Mich 512, 516-519, 522 (2001). Because plaintiff Michele Compau testified that she had seen the railroad tie when she arrived to watch the lawn mower races, the plaintiffs have failed to present evidence to support that the lawn mower races were so distracting as to preclude application of the open and obvious danger doctrine. See Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 717-718 (2007).
Bernstein, J., would deny leave to appeal. | [
-42,
25,
-31,
-4,
35,
46,
6,
29,
19,
34,
25,
9,
19,
-1,
3,
-20,
-17,
-26,
-32,
65,
7,
4,
22,
-8,
-26,
-34,
1,
-29,
12,
41,
22,
-14,
-31,
24,
-5,
26,
36,
6,
7,
-27,
13,
48,
23,
-66,
14,
19,
58,
40,
8,
2,
48,
39,
-24,
0,
-30,
34,
-4,
21,
-11,
2,
-4,
-13,
7,
-28,
35,
59,
23,
-20,
-36,
-55,
-21,
100,
-4,
27,
-9,
-4,
-2,
50,
0,
11,
7,
14,
38,
-77,
-3,
55,
-22,
26,
-6,
5,
-23,
-57,
-33,
19,
-29,
44,
-35,
-49,
-15,
2,
-7,
47,
29,
0,
-27,
-13,
49,
-30,
-1,
-35,
-2,
14,
-56,
-34,
-50,
-19,
0,
-63,
-3,
35,
-13,
-50,
63,
-40,
9,
33,
29,
-13,
-35,
38,
-14,
-11,
17,
3,
-18,
18,
-41,
-1,
33,
-19,
-20,
17,
34,
-66,
-9,
45,
41,
-16,
24,
-11,
35,
34,
-28,
-1,
0,
35,
32,
-3,
-2,
24,
28,
60,
12,
-36,
-5,
-14,
-34,
3,
9,
0,
68,
-12,
32,
-45,
34,
-9,
26,
53,
-67,
53,
-27,
-1,
39,
24,
-43,
-27,
-21,
-16,
-45,
7,
44,
-41,
-7,
34,
-2,
20,
24,
46,
23,
10,
-48,
-22,
-24,
-7,
5,
-16,
13,
4,
31,
-54,
-8,
45,
-24,
-51,
5,
-44,
13,
-13,
13,
-18,
-17,
40,
-6,
20,
-12,
-37,
-54,
-35,
59,
4,
25,
19,
14,
-46,
-8,
-16,
-37,
-36,
59,
-20,
36,
30,
-4,
-61,
-10,
-14,
35,
-7,
-22,
-2,
7,
-25,
-22,
-27,
-25,
16,
7,
-22,
-57,
-8,
-14,
38,
-18,
70,
7,
28,
-6,
59,
-43,
-11,
-19,
6,
13,
-22,
-27,
-18,
-17,
49,
65,
-22,
1,
17,
14,
42,
-94,
27,
-26,
34,
-12,
-8,
-4,
-39,
-14,
29,
-13,
20,
-13,
-6,
-36,
-14,
-3,
-24,
3,
-24,
25,
42,
-34,
18,
34,
-19,
-4,
33,
35,
-24,
30,
45,
10,
-1,
45,
-20,
-48,
-17,
3,
-43,
-33,
-11,
47,
-47,
-5,
46,
-25,
36,
20,
-2,
31,
19,
-1,
-26,
-35,
14,
-11,
38,
60,
-53,
43,
16,
-7,
22,
51,
4,
-23,
19,
-8,
-80,
0,
-29,
4,
-13,
-23,
47,
22,
-2,
39,
-31,
21,
-38,
-13,
-13,
-29,
26,
-49,
-22,
31,
-4,
-43,
-65,
-20,
-1,
-1,
-17,
10,
-21,
61,
34,
18,
-9,
-14,
-7,
-13,
51,
-11,
-65,
44,
47,
-19,
31,
-17,
20,
-7,
4,
17,
-15,
1,
31,
-21,
-64,
3,
-22,
2,
-35,
-17,
43,
42,
34,
-1,
-2,
67,
-6,
26,
13,
59,
-45,
4,
-48,
-36,
-6,
14,
-12,
-29,
3,
-4,
-4,
22,
-21,
-30,
25,
-2,
-29,
-54,
-1,
-42,
-21,
18,
-1,
-27,
-16,
-18,
1,
15,
-30,
-3,
-4,
32,
0,
-29,
-27,
31,
7,
26,
-15,
42,
-44,
9,
61,
23,
-39,
-38,
-31,
44,
6,
7,
-5,
5,
21,
-9,
-9,
-53,
46,
-90,
1,
-25,
14,
9,
15,
-3,
12,
8,
5,
53,
8,
-19,
18,
39,
-13,
-31,
48,
-46,
-20,
0,
24,
-36,
-46,
-1,
14,
87,
-8,
10,
-24,
20,
28,
-51,
2,
20,
46,
3,
55,
2,
0,
39,
-66,
-24,
-41,
-19,
5,
0,
-7,
-54,
6,
54,
-9,
62,
-63,
27,
-25,
22,
56,
-13,
-16,
-48,
-8,
-33,
20,
-40,
0,
12,
-35,
8,
26,
48,
41,
-15,
22,
9,
2,
55,
-25,
-47,
-50,
8,
8,
14,
-37,
-11,
-15,
14,
-6,
37,
6,
15,
-9,
-25,
13,
22,
-46,
-40,
19,
6,
62,
-46,
-11,
-40,
-20,
-17,
-77,
-25,
-15,
-50,
26,
-6,
-14,
-32,
2,
12,
5,
21,
-1,
-7,
15,
51,
44,
-11,
-11,
-44,
-16,
41,
54,
56,
-59,
4,
8,
8,
-10,
-58,
-39,
-42,
1,
26,
47,
53,
15,
-37,
-35,
-5,
17,
-15,
-22,
-21,
50,
-25,
-2,
16,
63,
-45,
-2,
-31,
39,
2,
30,
4,
-15,
-34,
49,
-22,
-37,
-25,
-27,
-14,
-1,
-40,
-3,
-46,
48,
-46,
-37,
37,
46,
19,
81,
-44,
-62,
-18,
-17,
20,
-7,
-1,
5,
-24,
-33,
-13,
-35,
-4,
57,
0,
62,
17,
-15,
-3,
6,
-50,
43,
-13,
-68,
18,
-41,
8,
56,
7,
47,
24,
-27,
0,
17,
66,
13,
-7,
-12,
19,
-19,
36,
-10,
-34,
15,
7,
36,
24,
30,
-4,
-43,
3,
15,
17,
58,
-30,
-11,
25,
31,
-38,
-53,
-21,
-36,
-13,
-45,
-9,
-51,
-4,
40,
-29,
26,
6,
5,
-13,
15,
6,
-20,
-31,
12,
15,
-28,
-1,
-20,
-18,
-16,
62,
18,
6,
43,
28,
-21,
42,
-10,
-15,
9,
-1,
12,
36,
-49,
14,
-16,
-27,
-36,
42,
-10,
-25,
-30,
-16,
-12,
31,
-42,
40,
9,
-13,
59,
9,
-48,
3,
11,
60,
-30,
53,
16,
3,
-34,
22,
14,
-27,
-25,
-29,
-50,
11,
-32,
-1,
9,
-42,
-6,
27,
-47,
-34,
4,
17,
-9,
-11,
-15,
-66,
5,
-3,
-15,
17,
39,
28,
-19,
41,
-29,
-14,
2,
-11,
19,
5,
47,
5,
-21,
-12,
28,
11,
-42,
-5,
20,
63,
-44,
36,
-2,
21,
-44,
-5,
-4,
39,
-11,
50,
9,
23,
-5,
9,
15,
-16,
4,
25,
-22,
-45,
-36,
10,
29,
-34,
-34,
-28,
28,
27,
-48,
-5,
-8,
18,
-17,
15,
15,
-35,
29,
0,
2,
-34,
20,
2,
55,
-5,
14,
-41,
17,
-30,
-2,
-51,
-40,
-9,
69,
-16,
-58,
-18,
45,
-34,
-30,
-8,
18,
-55,
35,
42,
6,
2,
19,
-40,
-3,
-6,
8,
57,
-27,
-36,
28,
28,
32,
49,
-17,
-8,
-23,
-45,
-9,
-31,
-52,
0,
-8,
-4,
16,
-62,
42,
-4,
22,
-10,
13,
16,
-24,
-77,
-16,
-19,
-24,
-1,
46,
-64,
-22,
49,
0,
28,
-29,
25,
-62,
42,
-50,
14,
47,
-11,
58,
-49,
-48,
8,
28,
15,
28,
-16,
36,
6,
28,
-8,
-15,
-3,
14,
-39,
-29,
-11,
3,
-16,
29,
3,
38,
-7,
13,
-27,
-15,
-11,
-36,
26,
-5,
12,
23,
16,
-17,
-33,
12,
5,
-30,
29,
8,
18,
-58,
-34,
20,
-45,
-48,
-4,
-15,
12,
20,
-30,
4,
-73,
51,
1,
-39,
8,
-5,
-10,
35,
24,
-9,
52,
50,
20,
-17,
-12,
7,
98,
16,
-20,
17,
-34,
-22,
-37,
-1,
22,
46,
10,
-2
] |
Leave to appeal denied at 498 Mich 875. | [
13,
-18,
-54,
-9,
11,
59,
18,
41,
-49,
48,
-40,
-8,
8,
-54,
37,
63,
72,
40,
-25,
15,
-18,
-9,
-11,
50,
-21,
-65,
54,
9,
-41,
-71,
-4,
-50,
-37,
-59,
-18,
-26,
-43,
0,
-8,
16,
-14,
-34,
-18,
17,
-35,
-65,
10,
24,
-32,
11,
-42,
15,
-66,
22,
-2,
57,
63,
-38,
-13,
42,
-47,
60,
44,
38,
38,
8,
-42,
-5,
23,
-24,
-24,
15,
5,
18,
-23,
11,
4,
69,
21,
61,
6,
3,
0,
21,
27,
36,
5,
56,
12,
0,
-10,
-45,
-47,
47,
-45,
56,
-11,
-46,
51,
-50,
-12,
25,
6,
-52,
-19,
-23,
26,
61,
-43,
0,
27,
-26,
-15,
-33,
14,
-25,
-14,
2,
46,
-10,
-24,
35,
10,
46,
46,
-13,
56,
-21,
-21,
-48,
4,
67,
75,
43,
4,
-3,
53,
-72,
-43,
-66,
-13,
104,
50,
-32,
-12,
-61,
39,
-21,
32,
-21,
-8,
7,
0,
11,
-9,
62,
16,
-19,
76,
-4,
39,
33,
-64,
25,
61,
-14,
25,
30,
54,
18,
13,
-4,
29,
-67,
-35,
16,
34,
33,
-19,
-9,
-51,
9,
-28,
21,
-9,
-69,
42,
-20,
-3,
-63,
-59,
-47,
85,
18,
17,
28,
22,
10,
-20,
23,
-27,
33,
-28,
36,
29,
-87,
3,
-33,
34,
31,
-37,
0,
-30,
-23,
31,
-26,
-37,
53,
28,
10,
41,
28,
-19,
-12,
-11,
44,
-13,
15,
8,
-7,
1,
54,
8,
-2,
38,
-58,
18,
19,
57,
-67,
-90,
-9,
-12,
47,
-18,
-31,
-74,
-21,
72,
-31,
49,
33,
35,
-71,
-50,
-50,
-33,
7,
-9,
3,
25,
9,
24,
20,
-28,
29,
-35,
11,
36,
-58,
36,
47,
11,
-57,
22,
15,
-4,
29,
74,
19,
-27,
6,
15,
-2,
-63,
45,
20,
-9,
-15,
8,
9,
-19,
24,
52,
30,
-50,
-31,
22,
-4,
26,
28,
48,
-29,
36,
46,
-32,
-50,
-62,
92,
22,
36,
-27,
-8,
48,
20,
-67,
0,
-95,
-44,
-3,
7,
-5,
-17,
65,
-16,
73,
-5,
61,
22,
25,
0,
20,
-47,
98,
-3,
59,
0,
-66,
-27,
24,
-11,
37,
3,
24,
-25,
-9,
-111,
-19,
102,
31,
14,
72,
-7,
-43,
-3,
83,
-13,
-41,
-43,
49,
23,
-72,
-5,
57,
23,
-15,
-1,
43,
4,
26,
-66,
2,
60,
-7,
29,
35,
-27,
-51,
1,
-36,
-35,
-37,
-31,
26,
48,
11,
21,
20,
11,
63,
-11,
-51,
-20,
-35,
20,
7,
28,
68,
16,
39,
-68,
-44,
-77,
68,
-19,
-5,
26,
21,
-33,
51,
12,
16,
29,
30,
-50,
11,
72,
-9,
-13,
-6,
-33,
-42,
-44,
20,
-32,
-15,
-49,
20,
-7,
44,
4,
-44,
21,
-25,
-30,
11,
14,
-16,
-13,
32,
-63,
-8,
15,
-87,
-3,
-63,
-41,
-11,
-85,
-56,
0,
28,
0,
-44,
-38,
-38,
-62,
62,
4,
-4,
-56,
-45,
-53,
83,
-14,
-1,
-51,
33,
18,
-22,
-4,
27,
-26,
-34,
39,
-32,
-26,
-57,
-27,
-13,
7,
-46,
-1,
20,
21,
8,
6,
3,
-43,
-2,
-34,
79,
44,
23,
-24,
64,
29,
-3,
33,
11,
-55,
0,
-16,
-8,
18,
-33,
15,
-28,
-6,
-20,
-12,
-8,
16,
19,
-39,
71,
-33,
8,
-10,
-35,
-21,
14,
23,
-9,
29,
9,
-67,
-22,
9,
109,
-20,
9,
31,
31,
-9,
-73,
34,
37,
-79,
47,
28,
-34,
-25,
4,
23,
44,
-61,
-47,
-17,
-14,
20,
-19,
-63,
16,
7,
-42,
18,
-12,
13,
-36,
-20,
-16,
7,
14,
-39,
-31,
-24,
30,
17,
54,
54,
43,
-2,
12,
42,
11,
46,
-5,
-18,
0,
-5,
0,
35,
-45,
-2,
-62,
-46,
0,
-14,
9,
-44,
-28,
-10,
-66,
3,
-1,
-7,
-3,
-26,
89,
-59,
33,
-15,
17,
-1,
19,
-10,
5,
25,
3,
-23,
53,
2,
-19,
-44,
2,
8,
18,
24,
-20,
91,
30,
-6,
-50,
-55,
1,
6,
-7,
47,
18,
11,
54,
6,
-6,
27,
25,
-3,
33,
-7,
73,
40,
1,
-7,
13,
10,
-31,
26,
-76,
-26,
-22,
-15,
40,
-25,
-31,
7,
31,
0,
-54,
22,
5,
-15,
67,
-32,
50,
-62,
-47,
9,
15,
85,
47,
-32,
42,
5,
-33,
-2,
-7,
10,
0,
-13,
38,
-40,
-36,
-11,
25,
-5,
-40,
17,
33,
23,
33,
54,
53,
45,
-8,
-41,
2,
10,
64,
-33,
3,
-9,
23,
-5,
-13,
5,
45,
-8,
-48,
-18,
11,
-44,
-11,
37,
6,
107,
29,
-27,
-44,
21,
-4,
6,
-24,
-71,
-35,
22,
42,
10,
-18,
57,
40,
-8,
-7,
6,
-33,
-56,
12,
2,
1,
36,
9,
-24,
-33,
0,
-53,
-2,
-2,
49,
-42,
9,
-51,
2,
-24,
-27,
83,
-56,
-22,
-14,
30,
44,
38,
27,
-45,
-47,
18,
21,
-3,
19,
3,
60,
36,
31,
-46,
33,
-16,
-13,
-9,
-13,
20,
24,
-15,
28,
-12,
-66,
32,
46,
20,
-76,
-34,
-13,
-46,
25,
-70,
-16,
-8,
39,
18,
17,
-53,
52,
7,
9,
-9,
-1,
27,
24,
-17,
-54,
6,
-32,
-43,
47,
-18,
-60,
-11,
48,
-29,
61,
53,
-11,
-8,
36,
55,
-36,
13,
4,
-47,
15,
51,
37,
12,
-3,
38,
69,
-12,
-66,
-74,
-1,
-39,
66,
36,
-17,
-37,
-14,
-50,
-30,
-15,
-8,
-16,
-11,
-49,
-40,
-43,
7,
37,
0,
3,
-27,
27,
42,
24,
42,
36,
4,
49,
-36,
6,
50,
-43,
34,
19,
-8,
-93,
0,
6,
-42,
61,
-18,
-54,
-9,
22,
7,
-45,
15,
-43,
63,
-1,
0,
25,
9,
33,
45,
4,
-54,
18,
35,
8,
25,
30,
-26,
-28,
32,
-59,
-38,
-23,
42,
-20,
13,
-11,
-2,
-11,
-59,
15,
-21,
-47,
37,
-72,
-94,
34,
-37,
-10,
10,
3,
-32,
-28,
1,
-14,
-20,
1,
-10,
-98,
46,
-38,
-16,
-30,
-26,
-28,
-19,
-98,
-16,
-7,
17,
73,
-43,
-16,
-4,
12,
-71,
29,
10,
5,
18,
-62,
53,
-34,
-3,
17,
-27,
-17,
-78,
8,
-2,
16,
22,
50,
-17,
-14,
6,
26,
-7,
27,
-3,
25,
25,
-11,
-60,
3,
-53,
-12,
42,
-13,
-13,
-59,
44,
-44,
-21,
-27,
-24,
36,
-41,
1,
-11,
0,
20,
-34,
24,
11,
-44,
22,
-8,
80,
100,
43,
17,
-24,
12,
41,
28,
-37,
37,
18,
21,
37,
31,
27,
19,
-58,
21,
13,
-37,
81,
9,
-25,
-22,
-52
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the Court of Appeals order granting leave to appeal in part and we remand this case to the Genesee Circuit Court to state whether the court accepted the sentencing agreement that the parties reached for a minimum sentence of eight years for the plea-based armed robbery conviction, pursuant to People v Killebrew, 416 Mich 189 (1982), because the present record is insufficient to make this determination. If the agreement was accepted by the trial court, it shall impose the agreed-upon sentence. If the trial court did not accept the agreement, the defendant shall be given the opportunity to withdraw his plea. Id. at 194-195. | [
19,
16,
-40,
10,
-55,
-6,
-48,
0,
-47,
27,
-22,
-8,
-15,
-28,
14,
40,
-4,
-4,
-10,
-10,
-42,
-17,
61,
32,
-12,
-32,
14,
17,
0,
17,
-21,
31,
11,
-30,
27,
-5,
39,
-11,
-3,
32,
-23,
9,
14,
8,
-34,
-31,
11,
18,
74,
-1,
0,
19,
-16,
3,
-8,
46,
4,
7,
-44,
45,
-1,
7,
-20,
2,
24,
12,
27,
-13,
-10,
-36,
30,
11,
9,
44,
12,
34,
23,
33,
36,
36,
19,
-17,
23,
-26,
3,
22,
35,
15,
-19,
31,
-31,
29,
-22,
-18,
0,
12,
-14,
-42,
0,
-18,
-79,
0,
-18,
-5,
43,
-12,
23,
-37,
-56,
41,
41,
-21,
56,
-40,
-13,
8,
-52,
-21,
16,
22,
-18,
26,
16,
70,
61,
-28,
23,
-48,
6,
-10,
-37,
65,
41,
50,
36,
28,
40,
45,
59,
16,
6,
41,
43,
4,
49,
9,
-26,
-48,
29,
-3,
-30,
46,
-31,
27,
6,
33,
2,
-14,
-29,
-3,
30,
11,
-31,
-12,
21,
-77,
-48,
35,
10,
-13,
-6,
0,
63,
5,
28,
38,
-1,
45,
17,
31,
-32,
45,
3,
-38,
-11,
-3,
31,
5,
-83,
-66,
-26,
-15,
-3,
-27,
40,
1,
14,
19,
-4,
62,
-45,
-37,
34,
59,
20,
-75,
49,
-26,
-16,
31,
-32,
4,
12,
-34,
20,
17,
42,
23,
-21,
33,
-41,
2,
-29,
-21,
10,
-40,
7,
10,
9,
-19,
21,
19,
69,
49,
-12,
29,
28,
-36,
50,
-16,
-36,
-57,
12,
-31,
42,
10,
3,
-17,
15,
-42,
1,
40,
-6,
11,
-3,
30,
41,
-29,
-51,
37,
-37,
-5,
5,
29,
-42,
60,
-36,
-37,
-47,
18,
48,
18,
28,
-17,
11,
-23,
-14,
16,
-3,
-11,
34,
-1,
-7,
-7,
-22,
4,
-42,
12,
-5,
6,
1,
6,
0,
-2,
29,
-39,
-45,
-4,
-28,
25,
-5,
-4,
9,
-40,
17,
-7,
8,
-2,
-23,
-38,
8,
-19,
28,
21,
6,
-51,
-18,
-4,
-5,
-23,
-34,
-9,
8,
-21,
-7,
-2,
0,
-22,
-20,
-13,
-9,
2,
0,
15,
1,
65,
-1,
37,
26,
-1,
20,
-21,
3,
1,
-6,
39,
-6,
27,
22,
17,
-6,
-29,
16,
36,
9,
-13,
-20,
-14,
4,
5,
51,
-39,
-42,
-45,
43,
-34,
20,
21,
16,
-5,
7,
-6,
-16,
-31,
-3,
14,
52,
-8,
-24,
-15,
-22,
-3,
10,
-15,
39,
-29,
-18,
-9,
33,
15,
-41,
-16,
1,
-86,
14,
-49,
-9,
1,
50,
-55,
2,
-50,
11,
10,
-31,
-1,
-36,
5,
-17,
12,
-22,
20,
31,
49,
0,
-24,
-5,
-3,
-30,
-21,
-14,
-19,
3,
11,
-8,
15,
25,
-14,
-31,
3,
49,
21,
-2,
-48,
9,
41,
-19,
-46,
-20,
20,
-27,
-38,
3,
-19,
-2,
-42,
-69,
-35,
-20,
-39,
27,
-15,
31,
-30,
-49,
35,
-28,
0,
13,
-45,
47,
-46,
-61,
17,
19,
-27,
-69,
-6,
56,
-30,
-28,
28,
3,
20,
-19,
-37,
3,
0,
20,
37,
34,
2,
-43,
16,
4,
-14,
-46,
0,
1,
-8,
0,
-16,
19,
20,
1,
68,
5,
19,
16,
15,
-28,
-28,
24,
8,
27,
33,
-24,
-46,
63,
7,
-4,
30,
-15,
2,
18,
-31,
-14,
22,
7,
4,
-9,
-22,
39,
-22,
11,
-3,
-45,
-5,
-51,
41,
-7,
17,
20,
-100,
18,
-20,
-45,
-24,
-32,
-16,
25,
-12,
-47,
35,
0,
19,
-2,
13,
60,
-16,
27,
1,
-13,
-48,
0,
-19,
3,
0,
6,
-18,
7,
-8,
33,
19,
8,
-7,
-35,
-23,
13,
23,
38,
45,
-5,
22,
16,
31,
13,
-12,
0,
28,
46,
38,
-49,
-7,
22,
7,
21,
7,
-6,
6,
-24,
38,
14,
3,
1,
-23,
1,
-20,
-11,
42,
38,
39,
-34,
35,
45,
-36,
-29,
-23,
55,
12,
22,
-30,
-27,
19,
-49,
16,
39,
-30,
-32,
56,
32,
5,
9,
-51,
-34,
-9,
9,
-49,
-31,
36,
-16,
58,
55,
-35,
-9,
14,
-13,
52,
-33,
-41,
-46,
56,
-7,
-8,
23,
5,
-22,
3,
16,
17,
3,
19,
35,
-48,
51,
19,
7,
0,
21,
0,
-7,
45,
-64,
7,
-13,
16,
7,
-23,
83,
3,
21,
29,
22,
6,
-6,
26,
-25,
-13,
20,
18,
-15,
-32,
-55,
-29,
-38,
-1,
7,
30,
0,
46,
3,
61,
-42,
-14,
-12,
-45,
36,
57,
-57,
17,
34,
8,
15,
-20,
-2,
2,
-16,
-15,
5,
7,
-50,
45,
-25,
27,
6,
-5,
-65,
-43,
1,
-15,
-21,
-50,
-25,
-15,
14,
43,
-26,
-20,
21,
28,
20,
-27,
51,
-10,
18,
-34,
-69,
68,
-34,
27,
4,
-1,
-37,
2,
-48,
36,
5,
-32,
2,
-15,
43,
58,
-23,
37,
-11,
45,
61,
1,
-42,
5,
-12,
3,
-26,
14,
-14,
-50,
9,
-19,
31,
13,
-11,
6,
4,
4,
-16,
-78,
-58,
38,
12,
-22,
15,
15,
-57,
-8,
0,
-28,
-38,
-52,
-46,
-13,
-12,
-25,
-6,
21,
19,
5,
15,
12,
42,
-15,
30,
12,
26,
15,
0,
10,
2,
31,
10,
-19,
19,
22,
-21,
20,
30,
-1,
-18,
-36,
-3,
-40,
19,
20,
-61,
-15,
-23,
-37,
23,
6,
-4,
1,
18,
11,
48,
5,
-22,
-38,
7,
22,
-38,
0,
15,
-41,
-7,
-16,
3,
-6,
-16,
-15,
6,
4,
1,
-33,
-4,
-15,
-9,
42,
9,
-5,
16,
-65,
11,
34,
-21,
31,
-38,
50,
-3,
-13,
2,
-3,
-41,
-32,
3,
34,
-68,
44,
-63,
-13,
-7,
-27,
-34,
-28,
66,
-9,
13,
-28,
-29,
13,
-32,
10,
-30,
34,
-70,
23,
-16,
-12,
-26,
3,
-2,
-10,
65,
-11,
2,
-3,
46,
-7,
-20,
33,
4,
38,
-17,
49,
18,
-11,
12,
-18,
-49,
-8,
58,
-45,
-15,
14,
16,
-7,
40,
-42,
1,
-37,
-50,
10,
4,
-21,
6,
-73,
-12,
-5,
31,
-39,
36,
-44,
-23,
21,
-30,
-26,
-22,
0,
15,
-31,
-14,
-25,
24,
-11,
-28,
0,
-15,
0,
13,
53,
-53,
40,
-39,
34,
5,
-23,
22,
37,
-7,
11,
-22,
-11,
8,
-8,
22,
11,
19,
-23,
34,
-8,
8,
22,
-17,
-61,
-27,
-33,
-8,
41,
-14,
28,
-50,
-12,
0,
-32,
19,
0,
26,
-6,
5,
-10,
-24,
-35,
19,
28,
1,
-13,
-17,
-5,
-21,
35,
2,
21,
6,
44,
33,
-18,
-8,
-24,
-7,
2,
-48,
39,
-30,
-8,
-36,
1
] |
On order of the Court, the motion to intervene and the complaint for superintending control are considered. The complaint for superintending control is dismissed, because the plaintiff has appealed the Court of Claims order at issue in this case to the Court of Appeals and, in the event that the plaintiff is aggrieved by the decision of the Court of Appeals, an application for leave to appeal may be filed in this Court. Under these circumstances, superintending control is not an available remedy. MCR 3.302(D)(2); MCR 7.304(A); Public Health Dep’t v Rivergate Manor, 452 Mich 495, 500 (1996). The motion to intervene is denied as moot. | [
-46,
-23,
-70,
-46,
40,
-8,
-2,
44,
-21,
35,
-4,
13,
11,
-7,
-2,
-23,
-21,
-51,
-18,
-13,
24,
42,
11,
6,
-6,
-44,
-12,
-73,
-35,
-23,
-43,
-75,
-21,
38,
-49,
-17,
10,
-9,
-11,
20,
44,
-32,
40,
-34,
-42,
-3,
-13,
20,
0,
30,
-2,
44,
-58,
21,
-10,
40,
20,
1,
18,
16,
-19,
26,
3,
10,
18,
118,
-45,
-58,
-33,
-6,
-42,
-5,
51,
18,
-1,
53,
-14,
-20,
87,
43,
5,
25,
13,
-31,
11,
68,
16,
32,
-33,
-37,
2,
26,
-25,
-44,
-2,
55,
-23,
17,
49,
-6,
4,
31,
1,
-74,
-30,
41,
70,
-15,
-33,
-24,
-1,
34,
-34,
-55,
-6,
25,
42,
7,
-53,
16,
7,
19,
62,
0,
-13,
66,
3,
17,
-8,
33,
-35,
-31,
23,
47,
-20,
-13,
28,
-27,
-2,
11,
-43,
34,
1,
-27,
-24,
24,
-18,
-37,
-43,
-42,
45,
29,
-55,
37,
28,
35,
-7,
-32,
8,
0,
46,
69,
-24,
39,
21,
-90,
7,
59,
37,
9,
66,
16,
36,
-51,
-49,
-4,
-31,
-37,
-36,
-43,
-9,
44,
42,
-38,
16,
-27,
5,
-15,
9,
1,
-3,
-9,
-8,
52,
48,
8,
56,
22,
26,
36,
-33,
30,
-25,
-16,
42,
-34,
-5,
-78,
-20,
9,
-11,
45,
-50,
-42,
-9,
-27,
7,
0,
-48,
20,
63,
41,
25,
8,
-34,
-58,
-35,
8,
4,
24,
31,
28,
-9,
58,
-10,
-4,
8,
-16,
36,
-25,
17,
78,
13,
-25,
-15,
6,
-41,
31,
32,
-14,
46,
15,
5,
23,
2,
-17,
-3,
22,
-18,
-69,
-8,
5,
-28,
-10,
-23,
52,
-15,
36,
12,
-83,
-41,
55,
36,
-82,
-22,
-43,
-11,
34,
26,
46,
-27,
7,
23,
23,
-48,
26,
65,
-47,
15,
-16,
9,
-41,
28,
-15,
27,
19,
3,
-23,
24,
-24,
-65,
3,
18,
62,
20,
-10,
-16,
-16,
-15,
2,
41,
15,
-32,
-15,
37,
-44,
-57,
-12,
0,
-21,
8,
2,
-74,
-28,
-41,
-12,
41,
-42,
30,
-9,
8,
8,
-8,
14,
59,
18,
3,
-45,
-14,
41,
10,
3,
22,
-24,
-21,
1,
-4,
-14,
5,
47,
-37,
26,
-3,
-8,
55,
36,
-2,
-46,
-73,
24,
7,
-31,
-63,
10,
21,
24,
60,
6,
-5,
45,
29,
-59,
51,
-63,
-37,
-43,
-33,
50,
8,
-14,
37,
-89,
19,
5,
-4,
14,
-63,
21,
10,
43,
22,
-14,
58,
1,
-11,
30,
-16,
-2,
34,
15,
25,
-16,
-38,
28,
-62,
-30,
32,
-29,
9,
20,
-63,
27,
12,
16,
-29,
-3,
17,
34,
32,
-35,
0,
7,
24,
-36,
36,
-2,
33,
-93,
73,
-14,
-16,
46,
-19,
1,
16,
-28,
20,
-6,
-20,
25,
-41,
-46,
17,
20,
-35,
-28,
-44,
20,
-18,
-28,
9,
12,
16,
-2,
3,
-3,
-27,
25,
-11,
-3,
-26,
-42,
13,
27,
-31,
8,
-51,
47,
52,
-1,
-27,
-20,
16,
-8,
5,
16,
-88,
63,
0,
37,
-5,
33,
5,
-3,
20,
76,
41,
23,
31,
3,
-13,
9,
-19,
12,
-31,
-51,
16,
47,
-39,
27,
19,
7,
9,
-2,
77,
-40,
-61,
19,
7,
-4,
-41,
-13,
27,
48,
7,
29,
62,
12,
60,
-6,
-25,
-56,
-35,
-35,
-36,
-29,
-36,
-57,
33,
-52,
40,
-12,
33,
25,
-39,
34,
-9,
-35,
5,
23,
-23,
9,
-10,
24,
32,
-43,
-28,
5,
25,
21,
16,
-65,
5,
-20,
42,
-9,
-7,
-4,
-28,
-37,
20,
9,
0,
31,
-29,
-26,
12,
-8,
-17,
49,
32,
-22,
14,
6,
-3,
-44,
63,
-14,
32,
-35,
9,
-39,
-14,
-45,
-11,
-8,
15,
-60,
22,
-45,
-8,
4,
6,
1,
27,
5,
8,
-8,
-1,
34,
-9,
3,
-32,
-40,
-23,
-2,
71,
46,
18,
-69,
29,
14,
-1,
8,
-15,
29,
0,
31,
23,
36,
4,
-31,
23,
-22,
-56,
-37,
14,
5,
23,
25,
23,
69,
21,
-8,
-31,
67,
-36,
34,
-40,
47,
1,
29,
-11,
0,
-33,
-6,
43,
-84,
-31,
10,
-21,
56,
-20,
-44,
44,
6,
-61,
13,
22,
-46,
22,
-49,
36,
10,
11,
16,
5,
37,
-24,
8,
-25,
17,
28,
71,
-61,
-7,
13,
-4,
-68,
-6,
-16,
-10,
-3,
-17,
22,
17,
8,
27,
-10,
-14,
-7,
-12,
42,
-31,
25,
-26,
-28,
39,
13,
-14,
1,
35,
31,
3,
-2,
-26,
-20,
21,
-15,
-11,
-38,
54,
-19,
0,
31,
0,
19,
-40,
-10,
12,
-38,
-61,
76,
-31,
56,
-11,
32,
-16,
57,
-46,
-26,
-41,
27,
8,
-101,
7,
11,
8,
0,
45,
6,
-9,
22,
-8,
34,
10,
-13,
16,
27,
20,
11,
-54,
-49,
-20,
-21,
-41,
44,
7,
24,
-14,
39,
-31,
32,
-19,
-8,
-6,
-4,
-33,
11,
-13,
33,
0,
31,
-59,
0,
13,
-20,
-46,
-11,
-3,
-35,
-49,
37,
20,
-51,
4,
-30,
-51,
-48,
-35,
63,
-4,
-20,
-18,
25,
7,
19,
-38,
12,
-16,
36,
5,
-21,
45,
-25,
30,
10,
14,
14,
-55,
0,
-35,
-23,
10,
18,
-17,
-46,
29,
-23,
-38,
30,
36,
-26,
6,
-19,
-30,
65,
34,
23,
14,
-53,
28,
-8,
-4,
-42,
-38,
36,
-3,
-12,
-12,
-28,
-25,
-11,
-12,
50,
16,
-33,
-3,
-5,
58,
12,
-38,
-54,
28,
32,
-16,
-25,
-12,
77,
-19,
41,
54,
-24,
8,
3,
43,
-39,
-6,
-13,
-31,
22,
-37,
-16,
6,
33,
-2,
-42,
-29,
-10,
7,
-19,
-67,
4,
20,
-21,
18,
35,
0,
-50,
38,
42,
-8,
29,
51,
-5,
19,
-21,
3,
24,
13,
-46,
4,
22,
-5,
-21,
-43,
7,
8,
7,
-18,
-14,
16,
27,
-62,
-24,
-3,
10,
1,
-52,
-15,
1,
-46,
-24,
-69,
-35,
-20,
11,
8,
28,
-4,
17,
-32,
-26,
21,
36,
-37,
3,
-15,
-78,
1,
18,
-2,
-9,
32,
8,
21,
21,
5,
-34,
-27,
-35,
-22,
22,
-36,
32,
-4,
27,
-33,
-39,
-8,
-24,
6,
-13,
2,
38,
34,
39,
5,
-13,
-10,
-15,
-7,
-22,
-45,
-39,
10,
-33,
-43,
51,
-7,
4,
25,
-32,
-37,
-25,
18,
-38,
-5,
-52,
-4,
27,
25,
-26,
-12,
3,
42,
-10,
-3,
66,
27,
-2,
34,
32,
-12,
57,
13,
28,
17,
20,
-3,
53,
45,
42,
12,
-11,
-10,
13,
-28,
-53,
-20,
-7,
13,
30,
-16
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate in part the St. Joseph Circuit Court order of July 24, 2014 denying the defendant’s motion for relief from judgment. The issue of entrapment by estoppel was not addressed in the circuit court or by the Court of Appeals in the defendant’s appeal of right. Therefore, MCR 6.508(D)(2) does not apply. We remand this case to the trial court to hold a hearing on the defendant’s ineffective assistance of counsel arguments pertaining to the issue of entrapment by estoppel. We further order the St. Joseph Circuit Court, in accord with Administrative Order 2003-03, to determine whether the defendant is indigent and, if so, to appoint counsel to represent the defendant at the hearing. In all other respects, leave to appeal is denied, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
-22,
0,
-68,
14,
-17,
6,
-13,
34,
-51,
11,
14,
-9,
13,
-24,
-8,
-19,
2,
27,
8,
-8,
9,
-16,
40,
35,
-28,
-42,
63,
-29,
28,
25,
4,
5,
-8,
-48,
-3,
-7,
38,
2,
38,
-2,
-10,
39,
7,
6,
-34,
-11,
1,
27,
-3,
27,
-6,
-61,
-36,
41,
24,
1,
-4,
-30,
-2,
0,
-6,
17,
-6,
19,
35,
60,
-35,
-20,
-29,
-57,
-29,
44,
-14,
8,
-52,
-1,
-49,
-15,
72,
37,
16,
13,
40,
-25,
-11,
33,
-3,
-11,
-48,
13,
-44,
11,
-57,
-9,
-49,
64,
5,
-16,
68,
-36,
-29,
19,
-47,
-5,
9,
-1,
0,
11,
-2,
49,
10,
-18,
11,
-51,
-67,
-22,
-55,
-81,
16,
-14,
39,
-47,
50,
10,
35,
-9,
34,
-14,
-4,
21,
-38,
21,
27,
7,
-7,
1,
22,
-28,
0,
13,
-2,
40,
20,
-19,
-7,
10,
-11,
-9,
12,
13,
36,
16,
5,
61,
41,
17,
7,
-30,
6,
29,
29,
33,
-78,
4,
6,
-36,
-12,
-16,
-17,
-25,
24,
0,
-7,
51,
-58,
39,
6,
39,
-37,
-29,
-9,
27,
-43,
18,
6,
-1,
19,
21,
-63,
21,
-2,
-9,
38,
22,
10,
78,
-19,
29,
-42,
-7,
-52,
24,
-52,
48,
49,
-22,
39,
-19,
21,
-34,
-2,
49,
-43,
-38,
-4,
-36,
31,
-5,
-10,
-4,
-16,
18,
-28,
7,
-67,
-21,
-9,
32,
19,
38,
37,
17,
31,
30,
-17,
17,
36,
-2,
78,
-24,
0,
27,
17,
-61,
-70,
-14,
-8,
24,
-33,
-41,
19,
-28,
-15,
-3,
-36,
-14,
3,
42,
-54,
-6,
-5,
20,
-14,
5,
7,
18,
-21,
14,
-16,
-19,
10,
7,
44,
-22,
12,
-6,
-56,
66,
34,
-21,
-21,
5,
-22,
11,
-54,
18,
14,
-29,
53,
5,
-53,
0,
-19,
11,
21,
-30,
-23,
14,
29,
39,
-14,
-11,
-19,
-14,
16,
-35,
8,
33,
57,
-35,
-4,
46,
25,
-17,
3,
-44,
-31,
-10,
-24,
-29,
-10,
1,
-17,
47,
17,
17,
50,
-29,
-28,
28,
6,
-30,
-36,
-38,
-6,
75,
-21,
51,
-32,
-35,
1,
-34,
8,
-27,
-18,
-12,
6,
18,
27,
13,
-29,
-31,
1,
-15,
25,
28,
-13,
-61,
-10,
46,
30,
-54,
20,
-34,
49,
-20,
12,
57,
4,
-7,
-21,
-21,
-7,
-18,
-32,
-46,
-33,
23,
-36,
-8,
-30,
-54,
14,
31,
-5,
5,
-47,
16,
23,
69,
-36,
-29,
76,
4,
28,
47,
-6,
21,
29,
-5,
1,
-1,
10,
47,
-66,
-16,
-15,
-30,
1,
64,
17,
50,
82,
68,
-30,
-7,
40,
12,
-7,
8,
-11,
-47,
13,
-1,
-9,
30,
1,
-62,
20,
6,
4,
9,
21,
-49,
14,
36,
-17,
-49,
-22,
27,
10,
-5,
5,
2,
28,
-50,
-31,
-7,
-47,
32,
-30,
33,
9,
-6,
-13,
-30,
3,
23,
-33,
-38,
30,
-10,
-30,
51,
-49,
-50,
-47,
9,
18,
7,
23,
12,
28,
6,
-40,
11,
-32,
42,
-19,
33,
-17,
26,
83,
-5,
18,
19,
15,
27,
-1,
10,
-27,
3,
23,
28,
28,
-25,
-33,
-2,
3,
21,
24,
19,
32,
1,
30,
-15,
-20,
0,
2,
8,
-15,
43,
10,
7,
-34,
17,
7,
-13,
0,
-48,
-12,
-11,
26,
21,
1,
2,
-64,
8,
22,
21,
33,
-22,
13,
0,
-58,
-12,
25,
-18,
-6,
22,
-26,
-7,
-64,
12,
26,
4,
9,
-9,
22,
16,
-24,
-16,
25,
16,
11,
-44,
-17,
1,
11,
-27,
19,
16,
5,
-9,
-52,
15,
-24,
-20,
2,
34,
23,
31,
37,
25,
-6,
21,
46,
-13,
19,
-15,
21,
-39,
69,
-70,
-5,
-43,
-12,
-15,
1,
-34,
-11,
-31,
30,
-18,
26,
-6,
4,
-14,
-4,
70,
-41,
5,
-11,
15,
38,
-6,
-1,
7,
22,
9,
54,
10,
1,
-16,
-35,
-1,
8,
15,
-20,
34,
0,
26,
3,
-25,
-17,
-54,
9,
-14,
20,
-35,
84,
49,
51,
-19,
-22,
47,
3,
30,
40,
6,
-10,
51,
10,
11,
-22,
2,
34,
-56,
15,
-5,
-11,
72,
3,
-19,
51,
-23,
-31,
-1,
43,
-32,
14,
-6,
-38,
20,
22,
-29,
-35,
23,
14,
16,
33,
10,
0,
18,
1,
-24,
-31,
-36,
-25,
-16,
-33,
-35,
10,
-8,
-38,
16,
10,
-7,
-22,
17,
14,
18,
33,
-2,
20,
-19,
23,
31,
23,
-28,
-7,
11,
49,
-29,
-4,
-6,
-12,
-15,
-53,
21,
-24,
69,
-31,
21,
30,
24,
-55,
-18,
-5,
-14,
19,
-16,
-42,
-32,
79,
45,
40,
-1,
7,
-43,
-10,
26,
33,
-43,
-29,
8,
-20,
-9,
-13,
4,
-5,
-9,
-10,
-29,
34,
27,
0,
-20,
18,
-7,
-9,
-5,
-6,
30,
-18,
6,
9,
-15,
7,
7,
-6,
-3,
0,
-26,
-15,
2,
-7,
10,
27,
32,
-13,
13,
42,
-53,
32,
1,
13,
31,
-31,
15,
26,
18,
20,
-1,
12,
-33,
-43,
-72,
-14,
-11,
59,
-19,
-45,
11,
25,
-5,
-19,
-39,
-6,
-8,
23,
39,
-43,
62,
-17,
33,
-25,
64,
19,
10,
-32,
-20,
-18,
32,
1,
-19,
-16,
27,
0,
-52,
24,
50,
-39,
-11,
-13,
7,
55,
15,
12,
3,
-13,
-41,
-6,
30,
21,
-25,
-28,
7,
19,
-43,
6,
-48,
0,
-26,
23,
-15,
-11,
-53,
20,
-32,
44,
-17,
-27,
13,
-46,
7,
-9,
1,
49,
-14,
13,
68,
9,
-10,
2,
11,
-16,
-2,
39,
-2,
32,
-32,
-30,
-1,
18,
4,
34,
-2,
69,
4,
-50,
-27,
-12,
-23,
-41,
-45,
-44,
-4,
-11,
2,
17,
47,
-18,
35,
13,
21,
-20,
-19,
-8,
-67,
34,
-11,
29,
6,
18,
-23,
5,
-10,
16,
5,
-16,
26,
10,
-7,
63,
18,
-73,
24,
11,
-46,
-5,
-6,
-20,
-48,
-16,
-36,
-1,
0,
-12,
-8,
16,
-5,
-46,
-27,
37,
-5,
-31,
-9,
0,
14,
-25,
4,
-41,
-15,
-9,
51,
-5,
-24,
18,
-4,
-22,
-72,
23,
-9,
3,
24,
-13,
-42,
-76,
22,
-27,
-2,
-24,
28,
10,
-6,
23,
-25,
3,
-48,
9,
13,
-4,
-37,
5,
-11,
5,
-15,
13,
10,
5,
-75,
-30,
-24,
4,
-8,
-56,
19,
-44,
-56,
49,
-27,
26,
-17,
1,
33,
-21,
-13,
25,
7,
31,
0,
13,
0,
43,
25,
39,
1,
-26,
-27,
61,
-3,
62,
0,
18,
-14,
-10,
-16,
5,
16,
15,
-45,
-55,
26
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Ingham 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 question presented should be reviewed by this Court. We do not retain jurisdiction. | [
47,
0,
-81,
-12,
-45,
11,
-7,
-6,
-55,
15,
-7,
-14,
24,
-57,
11,
-8,
10,
40,
9,
30,
-31,
46,
1,
17,
-45,
-33,
25,
2,
3,
-17,
7,
21,
34,
-28,
27,
-39,
61,
-3,
6,
8,
-14,
-26,
-16,
-1,
-51,
-47,
-3,
44,
-3,
-9,
2,
42,
-34,
3,
22,
62,
-27,
-1,
-74,
52,
-71,
51,
-38,
37,
37,
-1,
35,
1,
-25,
-39,
6,
-19,
0,
14,
0,
-23,
1,
31,
42,
15,
16,
-4,
-16,
-95,
0,
-2,
17,
-18,
-13,
2,
-1,
-12,
-51,
-69,
-12,
6,
-17,
-56,
41,
-20,
-18,
35,
21,
49,
9,
-20,
6,
24,
-22,
41,
-1,
25,
6,
-53,
-30,
-2,
-20,
4,
-12,
-1,
14,
-4,
19,
48,
43,
-49,
27,
-23,
-38,
-15,
-13,
38,
13,
-19,
11,
32,
34,
26,
-1,
-3,
-23,
37,
45,
-45,
47,
24,
21,
1,
-33,
8,
27,
8,
-4,
43,
36,
0,
41,
-27,
-24,
61,
-6,
53,
-31,
25,
21,
15,
-14,
12,
14,
-10,
12,
35,
44,
14,
-5,
37,
-42,
-7,
-5,
-11,
-34,
45,
9,
-42,
-29,
-11,
-11,
-11,
-43,
-1,
-47,
19,
-10,
28,
67,
7,
2,
4,
3,
-2,
-41,
30,
-12,
61,
19,
-39,
26,
1,
22,
-15,
-58,
9,
-22,
0,
-13,
0,
21,
9,
-39,
67,
-15,
4,
28,
5,
-21,
-3,
-20,
49,
21,
-15,
42,
39,
25,
51,
-36,
21,
-20,
6,
77,
-53,
-48,
-30,
54,
-23,
21,
39,
24,
-3,
5,
-16,
45,
4,
32,
27,
-3,
-49,
20,
-9,
-45,
-12,
37,
43,
0,
-5,
-22,
54,
17,
19,
16,
-10,
2,
10,
23,
-52,
3,
24,
10,
27,
50,
24,
-13,
29,
11,
0,
-20,
-11,
-10,
28,
43,
25,
25,
-30,
-20,
-11,
30,
-20,
-19,
-13,
-37,
3,
62,
10,
6,
-2,
12,
14,
15,
26,
-38,
-36,
12,
20,
7,
21,
-12,
-6,
-3,
14,
27,
-47,
-77,
12,
19,
-23,
52,
-1,
30,
-39,
-27,
-30,
-25,
-4,
-7,
32,
41,
29,
6,
15,
1,
13,
-3,
3,
-9,
-19,
-14,
11,
-6,
-20,
15,
17,
-4,
17,
33,
10,
-6,
-18,
-38,
-16,
-14,
-2,
-3,
-26,
-21,
16,
-2,
-5,
41,
4,
2,
23,
23,
-37,
15,
-23,
-8,
0,
2,
-7,
17,
-13,
-26,
-19,
-5,
-9,
29,
-32,
-19,
3,
59,
31,
-20,
-37,
6,
-40,
-50,
24,
21,
5,
46,
-37,
-16,
-23,
-1,
15,
-16,
-3,
-6,
34,
-26,
21,
-23,
57,
-11,
68,
-5,
-29,
-4,
-11,
-1,
-37,
2,
-39,
22,
3,
-16,
24,
-20,
-27,
1,
-23,
23,
-55,
23,
-71,
-51,
28,
-24,
-20,
18,
-1,
-86,
5,
-20,
0,
-8,
-24,
9,
-26,
-5,
-5,
-12,
-42,
-1,
-60,
-50,
3,
-18,
26,
37,
-28,
-11,
-31,
-14,
10,
37,
-5,
-56,
3,
10,
-2,
-5,
32,
24,
30,
12,
0,
-9,
26,
-7,
8,
14,
-22,
-56,
-34,
5,
19,
-3,
6,
38,
-38,
-22,
43,
9,
6,
7,
47,
43,
-38,
-4,
35,
9,
-16,
-5,
-21,
39,
-29,
2,
-86,
61,
-9,
7,
27,
13,
18,
-14,
12,
26,
-6,
36,
-6,
9,
-19,
33,
-38,
-23,
33,
-82,
-3,
1,
25,
64,
-23,
49,
-37,
3,
-48,
-13,
-61,
16,
23,
13,
1,
-3,
32,
-15,
-6,
-9,
8,
10,
-6,
-31,
-2,
-19,
6,
7,
-37,
-39,
16,
34,
-38,
11,
-8,
41,
25,
-5,
0,
-7,
-22,
42,
46,
88,
44,
-42,
47,
-12,
18,
54,
19,
-36,
13,
13,
35,
-2,
-24,
12,
-9,
-9,
25,
1,
-32,
-56,
-6,
32,
-59,
-14,
-13,
11,
-32,
31,
54,
-32,
64,
8,
18,
36,
0,
17,
18,
-21,
2,
26,
8,
-14,
-41,
22,
-2,
19,
-22,
-46,
27,
-47,
3,
-17,
-36,
-24,
-42,
1,
-9,
-46,
-48,
7,
21,
1,
-17,
-34,
2,
-34,
12,
-23,
-15,
-5,
20,
14,
-44,
14,
19,
0,
-36,
-31,
15,
-29,
46,
-8,
-13,
56,
-54,
-21,
-16,
24,
-7,
16,
13,
-27,
34,
-25,
12,
-49,
4,
61,
-1,
23,
20,
-3,
-2,
3,
-10,
24,
-4,
-25,
15,
-50,
-37,
-1,
-37,
16,
36,
-42,
12,
10,
25,
30,
17,
23,
-4,
12,
-15,
31,
73,
4,
14,
-3,
13,
78,
-15,
-3,
-22,
-16,
-3,
-1,
12,
0,
54,
10,
-6,
-1,
-23,
-13,
-37,
11,
-19,
16,
-47,
2,
29,
24,
49,
-23,
-17,
30,
-25,
14,
-16,
52,
-20,
12,
-24,
-12,
18,
19,
30,
-16,
-18,
-47,
1,
-36,
33,
29,
3,
-28,
11,
6,
25,
2,
10,
-74,
64,
34,
-40,
-47,
-12,
0,
14,
19,
27,
-16,
-51,
31,
-13,
31,
38,
-15,
-8,
17,
-1,
-27,
15,
14,
33,
-36,
-17,
4,
20,
-30,
11,
-1,
-66,
-35,
-79,
-9,
-23,
2,
-22,
-29,
56,
52,
43,
33,
-27,
-10,
12,
7,
38,
21,
30,
-19,
7,
-6,
-12,
10,
-38,
72,
-12,
-38,
31,
25,
-63,
-1,
27,
-42,
-14,
46,
20,
-35,
-55,
20,
-27,
44,
-4,
28,
-10,
-27,
11,
31,
43,
-23,
-24,
-6,
39,
16,
8,
26,
-12,
13,
-14,
-12,
35,
-11,
-11,
-10,
27,
-18,
2,
-47,
0,
-41,
-17,
-15,
0,
-5,
-11,
-2,
48,
2,
11,
-13,
23,
-30,
-11,
11,
0,
0,
-55,
0,
57,
-20,
26,
0,
-24,
-50,
41,
16,
-61,
40,
1,
4,
-16,
-51,
-12,
-18,
6,
25,
1,
-24,
8,
-24,
21,
-30,
0,
-36,
-44,
7,
-32,
-5,
5,
65,
-25,
-11,
-3,
6,
48,
-27,
43,
-23,
-20,
37,
-7,
-88,
-37,
9,
-48,
-3,
58,
17,
23,
-52,
-32,
46,
-57,
-18,
9,
10,
-14,
-2,
-46,
-9,
-23,
23,
-35,
-21,
-24,
-22,
14,
-66,
7,
-33,
12,
-32,
25,
3,
-48,
-24,
-32,
30,
1,
-6,
-10,
7,
-6,
-21,
-35,
-46,
15,
16,
19,
12,
44,
-35,
-9,
-29,
-13,
19,
-27,
54,
-32,
24,
36,
7,
-28,
34,
57,
-21,
-58,
-6,
-10,
-47,
-32,
-27,
-31,
-55,
-34,
30,
-11,
9,
-5,
-13,
28,
-45,
-27,
-18,
5,
20,
41,
31,
-35,
17,
-21,
22,
30,
-2,
50,
4,
10,
50,
7,
-39,
-17,
-49,
-13,
-54,
62,
-23,
-2,
-44,
-7
] |
Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we vacate the judgment of the Court of Appeals and we remand this case to the Court of Appeals for reconsideration in light of 2014 PA 282. | [
-44,
-39,
-67,
-12,
6,
65,
6,
-30,
-24,
-28,
33,
0,
6,
-61,
-47,
0,
-22,
-13,
-13,
29,
-53,
21,
79,
37,
32,
-5,
51,
-35,
64,
-45,
24,
-15,
-27,
-23,
17,
-58,
0,
5,
6,
-13,
10,
29,
-38,
-18,
-52,
-56,
-10,
12,
84,
61,
-16,
0,
-62,
-3,
18,
9,
0,
-11,
-49,
50,
-10,
58,
-58,
32,
73,
48,
-34,
-62,
-16,
-19,
7,
-27,
-20,
65,
0,
17,
-11,
28,
65,
46,
45,
-5,
0,
27,
10,
17,
42,
32,
-27,
29,
-20,
-1,
-36,
-42,
-43,
30,
-26,
-18,
13,
-14,
-35,
-45,
22,
-23,
-6,
-26,
-24,
49,
-57,
15,
44,
5,
-8,
-79,
10,
26,
-106,
2,
64,
-17,
-3,
64,
2,
-21,
42,
-29,
8,
2,
-47,
29,
-22,
19,
-78,
-38,
16,
22,
64,
-24,
-25,
-23,
-3,
42,
34,
-17,
0,
26,
-10,
0,
-9,
0,
62,
-17,
1,
53,
-18,
-13,
9,
-53,
-4,
7,
-18,
33,
-10,
-17,
23,
-7,
-33,
-21,
-23,
8,
104,
16,
46,
-10,
-72,
10,
-38,
62,
-7,
12,
-67,
-16,
27,
-12,
9,
12,
-75,
13,
-28,
-9,
-9,
-22,
-7,
7,
31,
-6,
-22,
22,
17,
4,
-74,
-6,
-30,
-38,
6,
-67,
28,
-43,
-49,
-87,
-44,
60,
-58,
-4,
26,
13,
96,
50,
4,
64,
-14,
3,
-1,
-54,
-30,
30,
-18,
60,
9,
8,
4,
-11,
0,
29,
-3,
43,
5,
1,
54,
-53,
0,
-13,
18,
-19,
11,
2,
6,
84,
8,
-38,
74,
-41,
42,
19,
23,
4,
-59,
21,
-19,
-26,
25,
45,
28,
-13,
-44,
28,
7,
-49,
-6,
-2,
13,
17,
34,
-18,
12,
13,
1,
-12,
36,
-15,
-14,
2,
-62,
57,
7,
65,
-35,
9,
57,
-57,
-25,
26,
41,
30,
-20,
-39,
-72,
26,
-3,
-12,
7,
6,
31,
-63,
40,
19,
1,
-1,
13,
-38,
41,
-4,
5,
37,
43,
-59,
-27,
17,
17,
-51,
-34,
-55,
-9,
-3,
-49,
-71,
36,
-33,
1,
43,
32,
-37,
1,
14,
-20,
42,
-9,
29,
-28,
43,
6,
10,
-9,
-19,
37,
21,
-34,
1,
2,
2,
16,
-2,
-22,
32,
50,
-23,
-23,
-18,
-4,
-2,
30,
10,
-22,
-56,
75,
2,
18,
44,
-29,
-34,
-28,
-23,
-16,
-13,
-25,
47,
25,
0,
-56,
-16,
-41,
-25,
-16,
-13,
-26,
-31,
-29,
60,
-8,
-1,
50,
13,
-8,
5,
27,
-19,
24,
12,
-14,
-1,
35,
-5,
8,
55,
-27,
-63,
2,
-7,
-8,
55,
-10,
97,
3,
25,
10,
-17,
2,
44,
30,
-10,
6,
-12,
-28,
38,
-19,
-2,
74,
-58,
45,
16,
-33,
-57,
-38,
-37,
-45,
33,
-24,
-82,
45,
38,
-32,
-24,
-8,
14,
-22,
-72,
-46,
-35,
-32,
18,
10,
-29,
36,
-35,
20,
-49,
13,
-2,
-28,
-18,
44,
-15,
-37,
1,
-7,
-17,
-46,
19,
0,
30,
-24,
0,
8,
51,
-22,
-9,
43,
26,
36,
-36,
54,
-46,
-44,
12,
34,
20,
41,
27,
14,
15,
-28,
58,
34,
23,
23,
-1,
5,
-37,
-37,
85,
-12,
-32,
6,
37,
68,
-5,
-14,
-54,
9,
17,
-2,
2,
22,
42,
-8,
12,
39,
-32,
9,
-15,
-65,
-27,
-4,
-69,
-27,
0,
-70,
-2,
7,
2,
-2,
3,
4,
-38,
-40,
-1,
-37,
-31,
-20,
6,
-31,
-11,
5,
-18,
6,
55,
-25,
49,
22,
23,
10,
13,
22,
35,
-16,
-52,
-52,
-10,
33,
1,
-6,
0,
24,
-9,
-10,
12,
-34,
-29,
-73,
82,
85,
-62,
50,
43,
62,
18,
-2,
-37,
0,
-11,
23,
25,
13,
7,
51,
-9,
-40,
-50,
-14,
-7,
-39,
0,
22,
7,
10,
32,
27,
32,
-21,
36,
-32,
17,
-30,
4,
17,
-6,
23,
-6,
-10,
44,
14,
-9,
-31,
-6,
-42,
-23,
52,
32,
26,
59,
-22,
-3,
-40,
-12,
9,
-68,
40,
3,
15,
50,
9,
66,
21,
-7,
-14,
-14,
11,
13,
-8,
12,
-34,
49,
13,
-12,
8,
-6,
0,
-58,
-39,
19,
13,
51,
9,
-3,
47,
-24,
24,
-26,
64,
-31,
19,
-20,
39,
0,
-27,
-16,
-35,
24,
0,
37,
16,
42,
-20,
55,
21,
-32,
50,
21,
-62,
-25,
-50,
-12,
-77,
31,
-22,
-5,
-35,
67,
3,
31,
-1,
-9,
-1,
49,
-1,
-20,
-6,
22,
32,
-15,
-16,
23,
39,
16,
-33,
-6,
-59,
12,
5,
-27,
-27,
42,
-41,
27,
-6,
-13,
0,
-33,
-27,
-13,
47,
-30,
-12,
34,
-26,
48,
-4,
17,
32,
-10,
-16,
-23,
18,
12,
-42,
-26,
0,
65,
64,
64,
-31,
-72,
-27,
32,
19,
103,
18,
26,
-21,
1,
-17,
-41,
-16,
13,
-26,
-16,
3,
-13,
-22,
-3,
31,
-9,
5,
57,
10,
-31,
25,
-6,
-12,
-8,
-10,
46,
54,
26,
1,
18,
-21,
-9,
-32,
6,
-58,
-45,
-33,
45,
-8,
-57,
-38,
-40,
-51,
-33,
75,
-28,
2,
16,
22,
33,
20,
-38,
-21,
-25,
-37,
41,
-58,
30,
11,
16,
-3,
35,
8,
-19,
17,
2,
43,
33,
-2,
22,
10,
16,
-21,
-34,
65,
18,
-45,
-2,
-44,
-10,
-19,
24,
27,
-49,
-34,
-37,
-12,
10,
-27,
-56,
34,
56,
23,
-54,
-35,
-69,
12,
-51,
-9,
28,
-51,
43,
20,
-12,
-19,
31,
-19,
2,
-37,
20,
3,
28,
42,
47,
5,
19,
56,
-2,
32,
59,
-15,
95,
50,
-43,
18,
-49,
-6,
82,
42,
20,
-2,
-8,
28,
-12,
-10,
-38,
27,
-65,
28,
-21,
3,
-40,
-43,
12,
43,
93,
12,
43,
12,
32,
-46,
-6,
-31,
17,
-20,
-26,
2,
-25,
43,
-27,
-41,
19,
16,
65,
-19,
28,
-18,
-3,
48,
-7,
-17,
-27,
36,
-8,
56,
11,
-3,
-3,
-14,
-8,
1,
-35,
39,
-56,
61,
-6,
-43,
-55,
71,
-26,
-60,
-14,
-49,
-4,
-26,
-31,
-22,
15,
5,
13,
3,
4,
31,
-25,
10,
0,
20,
-13,
-9,
55,
21,
-7,
-2,
-40,
-44,
-59,
-8,
-38,
-8,
27,
-73,
12,
-26,
5,
-26,
26,
33,
1,
25,
8,
-6,
-38,
5,
15,
3,
-63,
0,
-72,
-53,
11,
-55,
-6,
-26,
-87,
31,
-41,
15,
-13,
-55,
3,
-43,
15,
19,
19,
27,
6,
39,
-91,
3,
11,
-16,
-63,
10,
49,
33,
29,
56,
10,
45,
-32,
5,
35,
-42,
44,
35,
-46,
-53,
-16
] |
Pursuant to MCR 7.306(H)(1), in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and we remand this case to the Lenawee Circuit Court for entry of an order granting the motion for summary disposition filed by the defendants-appellants. The Court of Appeals erred by finding that the plaintiff established a prima facie case of an intentional tort falling within the exception to the worker’s compensation exclusive remedy that is found at MCL 418.131(1). There is no evidence in this case that the defendants had a specific intent to injure the plaintiff. Nor does the evidence establish that the defendants “had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.” Id. See also Travis v Dreis & Krump Mfg Co, 453 Mich 149 (1996). | [
-50,
11,
-48,
-11,
-15,
13,
15,
-14,
-29,
56,
33,
-29,
21,
-10,
1,
-33,
0,
8,
-27,
30,
18,
-41,
2,
52,
-46,
-38,
6,
-22,
10,
0,
-63,
34,
9,
-37,
-16,
-55,
9,
2,
-38,
-6,
-4,
43,
41,
-34,
-5,
-12,
29,
31,
55,
-4,
32,
-3,
-28,
-9,
16,
7,
27,
-12,
25,
27,
-34,
0,
49,
-25,
53,
-7,
13,
14,
-38,
7,
-14,
60,
13,
-15,
-25,
-20,
-18,
44,
7,
18,
6,
18,
39,
8,
-35,
43,
-41,
-5,
-36,
6,
-17,
-38,
-19,
4,
14,
6,
-17,
6,
-46,
-13,
3,
39,
26,
-23,
-39,
-28,
11,
-23,
-17,
39,
-16,
8,
-54,
19,
-53,
-23,
27,
-23,
19,
10,
20,
-19,
43,
-14,
41,
-1,
42,
-7,
2,
21,
-2,
12,
-8,
19,
8,
4,
-3,
-14,
9,
12,
13,
29,
-3,
-6,
-16,
53,
-14,
-37,
7,
-7,
-3,
-35,
4,
3,
-10,
8,
-25,
-12,
6,
10,
44,
23,
28,
54,
2,
-21,
-48,
-14,
-24,
-69,
53,
-64,
42,
-37,
5,
18,
51,
19,
-30,
17,
-37,
-37,
12,
-7,
-47,
-23,
-8,
-24,
-21,
-9,
44,
-8,
-37,
12,
7,
32,
10,
35,
32,
2,
23,
-54,
-13,
0,
15,
-6,
-9,
4,
26,
-50,
-8,
7,
-27,
-27,
18,
-36,
11,
-12,
-24,
-45,
-26,
15,
0,
-1,
-8,
-21,
-46,
-8,
0,
-5,
-2,
7,
33,
13,
8,
-34,
6,
0,
51,
-59,
9,
5,
-12,
6,
-48,
-7,
37,
-17,
7,
-2,
28,
-26,
3,
-17,
-4,
-17,
10,
23,
-69,
2,
-33,
29,
-19,
46,
-1,
7,
-31,
0,
-87,
-39,
-1,
13,
69,
-25,
-23,
-34,
-20,
44,
59,
10,
-8,
14,
16,
-4,
-78,
42,
-26,
35,
-31,
3,
2,
-42,
-7,
31,
35,
18,
36,
-49,
4,
-15,
32,
7,
30,
-36,
-17,
39,
-8,
7,
10,
-5,
-26,
-4,
10,
21,
2,
17,
-32,
11,
33,
-40,
-56,
20,
-13,
-62,
-27,
-73,
6,
-50,
-22,
28,
1,
27,
0,
45,
-2,
-1,
20,
2,
-13,
-11,
21,
23,
27,
-38,
-30,
22,
-4,
35,
29,
-26,
34,
-46,
25,
14,
-33,
-5,
-1,
-30,
-4,
33,
29,
-31,
-24,
-26,
-3,
-12,
-40,
1,
-16,
53,
-28,
-14,
22,
11,
-33,
-7,
-12,
22,
-4,
32,
-3,
5,
67,
-12,
8,
-6,
-12,
7,
1,
15,
-38,
-55,
67,
43,
-43,
-9,
-37,
3,
5,
-7,
1,
-22,
20,
8,
-36,
-57,
25,
-47,
-7,
-5,
41,
32,
47,
29,
-45,
-33,
73,
29,
31,
-48,
59,
-21,
-11,
-96,
5,
-30,
44,
17,
-15,
-21,
32,
-6,
11,
-68,
-5,
12,
-15,
-3,
-28,
19,
-42,
-20,
-35,
-39,
-2,
-43,
-31,
38,
9,
-29,
21,
23,
16,
-12,
-10,
8,
-1,
-22,
9,
-20,
28,
-42,
-26,
-38,
9,
-22,
-28,
-31,
39,
4,
21,
-29,
-24,
25,
36,
44,
0,
24,
4,
22,
3,
20,
6,
0,
-25,
16,
25,
43,
28,
-14,
0,
22,
8,
3,
-39,
-4,
-39,
33,
-32,
30,
-65,
-25,
-6,
-19,
62,
-19,
12,
-40,
-12,
27,
-64,
-8,
39,
38,
-7,
51,
-10,
-22,
-16,
-9,
-23,
-49,
-21,
-10,
-51,
-33,
-27,
-29,
-14,
12,
74,
-53,
35,
-18,
-4,
6,
-9,
-40,
-30,
3,
0,
-34,
-8,
31,
37,
-21,
-17,
39,
55,
35,
-37,
1,
14,
7,
36,
-16,
9,
1,
26,
-21,
-5,
13,
0,
27,
28,
2,
0,
-3,
35,
14,
6,
51,
26,
-15,
-22,
42,
-10,
31,
-38,
8,
30,
9,
1,
-73,
-26,
-80,
27,
-10,
-17,
-48,
-24,
-26,
3,
14,
43,
4,
-4,
-25,
32,
41,
-21,
-29,
-60,
3,
42,
10,
-18,
-31,
78,
5,
-18,
-18,
-8,
-1,
-38,
-41,
-12,
-39,
32,
58,
6,
7,
-5,
19,
-8,
12,
11,
-28,
-87,
-39,
-18,
75,
-9,
-36,
-28,
66,
-10,
40,
-8,
6,
-9,
50,
27,
16,
-23,
-48,
-21,
33,
-8,
-10,
-4,
21,
-5,
-15,
-3,
-13,
36,
37,
-21,
-46,
-21,
40,
-18,
8,
-31,
3,
14,
-24,
29,
-5,
30,
65,
0,
18,
21,
17,
-30,
-19,
1,
36,
-30,
-62,
45,
10,
12,
-6,
22,
33,
6,
-34,
-8,
82,
38,
27,
13,
0,
45,
48,
0,
-42,
-16,
20,
-52,
35,
21,
36,
25,
-35,
4,
23,
-22,
66,
-41,
13,
50,
66,
1,
-1,
-43,
-61,
-21,
-56,
-19,
-16,
30,
27,
21,
-7,
0,
1,
2,
20,
6,
23,
-33,
8,
-7,
20,
-28,
40,
46,
-23,
-15,
20,
2,
29,
43,
19,
33,
33,
0,
32,
31,
6,
32,
-6,
24,
0,
-28,
11,
24,
-3,
-37,
-8,
7,
-53,
-26,
-17,
-33,
-28,
-33,
82,
-11,
-7,
9,
2,
-17,
-12,
41,
-1,
18,
-20,
15,
19,
-35,
-16,
-16,
-37,
-30,
-17,
36,
20,
-5,
8,
45,
16,
16,
17,
-3,
-1,
61,
8,
-27,
22,
-33,
-2,
27,
21,
59,
14,
55,
-42,
0,
21,
-6,
15,
-10,
11,
-17,
-8,
23,
39,
-49,
-59,
-6,
-27,
16,
-48,
39,
-10,
-3,
3,
-42,
24,
25,
-9,
16,
-28,
-6,
-17,
30,
-27,
-43,
4,
37,
35,
-22,
33,
15,
6,
-9,
-33,
31,
6,
20,
18,
3,
0,
30,
46,
15,
11,
-76,
19,
-11,
19,
-81,
1,
-8,
-21,
-1,
31,
-28,
6,
-25,
14,
-32,
-31,
31,
47,
-6,
-15,
7,
-22,
-41,
-33,
-31,
-7,
-29,
62,
-3,
75,
-6,
20,
1,
-25,
-3,
0,
16,
-2,
10,
18,
27,
57,
45,
-28,
28,
-12,
-8,
40,
-33,
-15,
-14,
6,
-10,
36,
-39,
8,
-14,
11,
-15,
30,
5,
-16,
-7,
8,
1,
-2,
-36,
-13,
-4,
-27,
25,
-15,
40,
39,
-27,
-66,
-36,
12,
-17,
55,
-3,
68,
-19,
-37,
4,
44,
1,
3,
33,
-24,
23,
-12,
-4,
7,
28,
-4,
-26,
11,
1,
21,
-20,
49,
31,
13,
17,
0,
6,
-37,
-23,
-11,
33,
-66,
21,
-6,
29,
-14,
-41,
17,
31,
-53,
-3,
2,
-54,
-34,
-23,
-48,
-47,
-30,
-6,
-49,
47,
10,
-50,
3,
-42,
6,
42,
-9,
14,
0,
-4,
5,
0,
9,
40,
25,
10,
34,
15,
71,
29,
-36,
-6,
33,
-45,
-18,
-41,
11,
9,
18,
-29,
21
] |
On January 14, 2016, the Court heard oral argument on the application for leave to appeal the December 2, 2014 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal, we vacate that part of the Court of Appeals opinion holding that second-degree child abuse under MCL 750.136b(3)(b) is a necessarily included lesser offense of first-degree child abuse. The Court of Appeals did not need to reach this issue because that instruction was never requested in the trial court. 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. | [
-47,
-14,
-43,
-26,
-32,
15,
4,
36,
-28,
17,
-24,
-11,
54,
-55,
-15,
2,
-1,
8,
-8,
-2,
18,
26,
28,
27,
-4,
-71,
17,
-25,
8,
32,
-3,
-20,
-35,
-40,
30,
-10,
20,
19,
33,
3,
16,
22,
50,
-37,
-35,
-27,
1,
14,
-51,
72,
0,
5,
-1,
13,
20,
68,
55,
-8,
-15,
0,
-29,
47,
-66,
72,
12,
19,
-14,
-36,
-23,
-11,
-20,
34,
-39,
-1,
3,
0,
-36,
-14,
58,
97,
-9,
10,
37,
7,
21,
-10,
23,
13,
-7,
41,
0,
5,
-55,
-26,
-74,
31,
-3,
-58,
41,
-25,
-2,
-29,
44,
22,
-21,
-34,
-18,
16,
36,
7,
-6,
18,
-6,
-53,
-26,
-57,
35,
-22,
-10,
-13,
7,
78,
34,
25,
71,
-11,
32,
0,
-30,
8,
-28,
25,
31,
-10,
51,
-31,
60,
-65,
7,
-21,
-39,
68,
15,
-25,
42,
7,
-11,
-25,
13,
0,
63,
14,
-49,
23,
-10,
16,
-5,
-30,
-25,
-53,
17,
39,
-60,
15,
11,
-19,
-18,
49,
-33,
53,
44,
23,
-13,
34,
-49,
0,
-28,
30,
-35,
33,
-64,
12,
56,
14,
-19,
-3,
-29,
22,
-25,
-62,
-38,
0,
-2,
-5,
31,
15,
11,
22,
22,
0,
-45,
32,
20,
11,
24,
-41,
34,
-29,
-19,
-70,
-12,
82,
-6,
-34,
1,
-21,
42,
9,
-27,
7,
-5,
28,
-16,
-9,
-45,
-6,
-1,
32,
-37,
-12,
12,
79,
36,
-2,
1,
63,
-7,
-2,
59,
-35,
20,
2,
26,
-31,
36,
-7,
-8,
0,
42,
-26,
67,
23,
12,
13,
-1,
-27,
-44,
12,
-48,
-21,
-12,
12,
2,
-8,
-26,
9,
-21,
7,
-8,
-38,
-4,
4,
3,
-41,
0,
-44,
49,
-5,
-2,
23,
-39,
59,
1,
22,
-42,
-21,
3,
-23,
39,
44,
-22,
-11,
30,
-6,
47,
-41,
-75,
9,
-49,
-29,
55,
-37,
28,
-14,
-10,
21,
-17,
5,
17,
-4,
34,
37,
22,
32,
51,
-7,
-37,
0,
22,
-28,
-12,
-12,
15,
-64,
-30,
-11,
14,
-45,
5,
11,
-15,
-10,
16,
21,
17,
50,
4,
15,
15,
63,
19,
12,
1,
-17,
-34,
-3,
-50,
16,
20,
42,
27,
-6,
32,
-17,
-8,
7,
-52,
-36,
0,
43,
20,
-40,
-10,
-21,
18,
13,
59,
18,
-20,
-25,
-34,
-73,
-46,
-10,
-55,
-17,
3,
-10,
-25,
-35,
-18,
-21,
-12,
1,
41,
6,
-54,
13,
28,
32,
1,
-15,
29,
-12,
54,
-2,
-18,
27,
84,
-20,
-5,
-26,
-34,
76,
-42,
-14,
-2,
13,
3,
28,
43,
55,
8,
42,
2,
-37,
12,
2,
35,
-24,
1,
-8,
-16,
9,
24,
6,
22,
-41,
32,
-64,
-48,
9,
-45,
-39,
-6,
4,
10,
-25,
44,
24,
-60,
15,
0,
38,
23,
-85,
-53,
-22,
7,
-41,
-30,
-12,
31,
-19,
16,
-31,
-25,
1,
-1,
-42,
-6,
-11,
-26,
40,
6,
-4,
-64,
28,
17,
15,
0,
52,
24,
19,
-9,
25,
-13,
34,
-18,
-6,
-1,
-9,
-28,
48,
51,
9,
-1,
15,
49,
-18,
9,
18,
21,
-7,
-34,
0,
0,
-55,
-15,
37,
-37,
-18,
1,
-14,
57,
-39,
15,
0,
16,
-6,
-51,
57,
16,
-13,
-53,
23,
48,
-25,
6,
-45,
19,
-7,
7,
-37,
-61,
-32,
-46,
-49,
3,
8,
53,
29,
28,
0,
-12,
-18,
-28,
-40,
-8,
55,
12,
-36,
-18,
-17,
15,
-28,
-6,
26,
19,
16,
27,
-9,
-21,
-38,
-7,
-28,
-1,
44,
-12,
-50,
-32,
27,
15,
-6,
12,
-14,
-4,
16,
-14,
17,
29,
1,
-12,
40,
10,
37,
-6,
18,
-8,
8,
68,
-5,
-4,
20,
3,
-33,
-12,
-10,
-23,
-6,
-58,
3,
-32,
-3,
43,
1,
6,
-38,
-45,
14,
-15,
53,
-23,
-50,
-1,
28,
13,
8,
61,
-15,
8,
8,
-21,
-56,
-64,
-47,
28,
55,
30,
4,
-68,
-18,
7,
-46,
-50,
-37,
34,
57,
26,
-27,
72,
75,
57,
-32,
-9,
-5,
12,
23,
-19,
-19,
41,
46,
20,
22,
-36,
10,
43,
7,
-31,
-36,
2,
54,
-7,
-3,
-3,
30,
5,
47,
26,
-11,
68,
2,
-35,
15,
-51,
-4,
-59,
73,
19,
17,
-59,
37,
-34,
70,
-29,
37,
14,
16,
2,
0,
-46,
-43,
7,
-5,
29,
45,
27,
14,
-43,
-23,
35,
49,
87,
7,
-7,
-25,
-6,
69,
17,
7,
-31,
11,
62,
20,
18,
43,
-40,
-32,
32,
-29,
-24,
68,
-1,
27,
39,
0,
-28,
6,
-10,
7,
8,
19,
4,
13,
-4,
52,
9,
-14,
52,
5,
-10,
-6,
4,
1,
-57,
-20,
-37,
26,
44,
62,
-10,
-5,
0,
-43,
43,
52,
20,
2,
-42,
-13,
37,
-46,
-41,
36,
-53,
-19,
34,
-9,
17,
-38,
27,
43,
76,
24,
12,
-19,
-6,
-17,
27,
6,
-4,
-23,
20,
5,
33,
-27,
-8,
32,
-6,
-22,
-23,
-50,
-8,
17,
8,
-32,
-5,
-49,
-49,
5,
19,
-14,
-27,
39,
75,
9,
-5,
-19,
19,
-16,
46,
-41,
-30,
44,
-55,
38,
4,
-20,
26,
-11,
39,
7,
-20,
4,
-12,
-90,
43,
42,
5,
-59,
86,
-4,
-48,
18,
16,
-9,
40,
32,
12,
8,
11,
-4,
10,
-8,
-13,
-65,
-10,
-17,
68,
-17,
17,
36,
36,
-25,
41,
-2,
-10,
1,
18,
-3,
28,
-45,
-36,
18,
8,
-44,
-8,
15,
31,
22,
-2,
59,
-9,
0,
6,
32,
31,
-12,
29,
-29,
-28,
-50,
28,
17,
-35,
-27,
2,
-11,
-40,
50,
-26,
-44,
9,
-38,
41,
-6,
-90,
19,
-12,
-1,
47,
20,
25,
-5,
5,
2,
-20,
41,
-29,
-12,
-1,
-44,
-1,
-8,
11,
-20,
26,
-31,
23,
37,
-29,
-9,
-14,
-24,
53,
24,
-44,
-10,
6,
-47,
44,
12,
-13,
-50,
-18,
-66,
-21,
-67,
1,
-23,
34,
16,
13,
-73,
70,
-8,
-19,
-35,
-37,
10,
18,
25,
-5,
-15,
-23,
-27,
-77,
-25,
-24,
-13,
6,
-51,
-4,
-27,
-24,
0,
-24,
-16,
-65,
0,
-63,
-22,
10,
25,
3,
18,
-30,
35,
2,
-34,
-17,
-1,
6,
-47,
34,
-16,
-11,
-55,
-28,
-18,
-30,
-52,
-46,
-22,
-20,
15,
-46,
-32,
-31,
-24,
37,
-52,
24,
-54,
7,
26,
-54,
-2,
26,
-8,
25,
52,
-41,
-42,
-14,
34,
48,
-27,
-11,
26,
64,
-38,
0,
31,
56,
-2,
11,
-15,
-38,
7,
-18,
-4,
-20,
-22
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate that part of the Court of Appeals opinion applying the law of abandonment to the facts of this case. The Court of Appeals erred by finding that the facts on record are sufficient to demonstrate defendants Molly Kandle-Kost and James Kost intended to abandon their easement rights in Weberta Drive, particularly in fight of the failure of the trial court to make any findings on abandonment or the precise nature of defendants’ property right. We therefore remand this case to the Ionia Circuit Court for findings on the nature of any property right retained by defendants Molly Kandle-Kost and James Kost in Weberta Drive. Once that court has determined the nature of that right, it should determine whether an abandonment analysis is applicable and, if it is applicable, make any necessary findings regarding whether defendants intended to abandon their property rights in Weberta Drive. See Dep’t of Natural Resources v Carmody-Lahti Real Estate, Inc, 472 Mich 359, 385 (2005). 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 do not retain jurisdiction. | [
10,
60,
-60,
-12,
-18,
37,
4,
59,
-33,
8,
12,
-6,
-5,
-11,
4,
-13,
-21,
26,
-44,
51,
2,
8,
33,
-15,
-16,
-55,
-3,
-18,
1,
-16,
27,
8,
-55,
-10,
28,
-10,
39,
40,
-27,
-41,
-44,
-5,
-17,
-23,
7,
13,
-32,
-34,
-12,
38,
73,
64,
-14,
12,
-50,
4,
-3,
10,
0,
16,
-9,
-1,
-10,
95,
44,
54,
-12,
-26,
21,
-80,
-17,
22,
5,
-4,
61,
16,
3,
23,
19,
15,
20,
4,
56,
2,
30,
-16,
-21,
-10,
-8,
40,
-21,
-28,
-21,
-12,
10,
91,
47,
-38,
1,
-45,
9,
44,
-19,
18,
-39,
-10,
-13,
-40,
40,
4,
1,
3,
0,
-40,
-27,
15,
-12,
-29,
42,
-31,
-30,
-16,
-15,
-2,
79,
-41,
3,
-15,
-14,
5,
-64,
-45,
38,
37,
-9,
-4,
11,
-80,
-20,
-19,
-4,
19,
32,
-27,
-1,
29,
43,
-42,
-15,
-9,
6,
-7,
-19,
48,
27,
-7,
76,
-2,
-9,
25,
13,
17,
-19,
-24,
-15,
-2,
-4,
20,
-21,
29,
78,
17,
-1,
-25,
-30,
7,
8,
41,
-42,
14,
1,
3,
49,
-12,
-23,
-36,
-25,
-22,
-54,
-53,
-5,
-5,
53,
-4,
-12,
22,
21,
38,
-36,
-21,
-12,
-11,
-12,
-18,
25,
-14,
27,
-8,
33,
6,
-41,
37,
-67,
-52,
-7,
2,
42,
23,
-3,
-29,
51,
5,
-13,
-42,
-24,
4,
0,
26,
13,
-27,
18,
7,
-16,
20,
-52,
14,
57,
1,
30,
-2,
12,
21,
13,
19,
8,
3,
-6,
-6,
1,
-14,
-26,
-24,
-8,
0,
-5,
-32,
-5,
4,
-56,
-28,
16,
0,
-25,
-25,
-31,
37,
-26,
13,
-48,
0,
-24,
35,
7,
-9,
-26,
-19,
24,
-22,
-31,
37,
22,
16,
38,
44,
-49,
92,
2,
45,
16,
-2,
-45,
24,
-33,
29,
-26,
-46,
-28,
-59,
2,
-19,
47,
-2,
-35,
-18,
28,
20,
-33,
22,
22,
0,
29,
43,
-7,
17,
-9,
54,
36,
-38,
-4,
-59,
-2,
46,
24,
-10,
21,
-18,
4,
-83,
-20,
8,
-23,
7,
-14,
25,
14,
39,
-10,
-5,
-66,
-4,
-28,
-8,
-21,
-21,
10,
-2,
-7,
30,
6,
-3,
-19,
35,
-10,
8,
-21,
3,
-15,
-44,
-3,
26,
25,
-16,
5,
-1,
-4,
-1,
16,
-5,
7,
-21,
-2,
-17,
36,
-10,
18,
14,
0,
3,
-56,
-13,
-12,
-29,
21,
48,
15,
-31,
11,
19,
-18,
-5,
-6,
-45,
4,
3,
33,
-34,
12,
-17,
51,
-45,
-29,
2,
12,
55,
-56,
3,
14,
6,
-9,
56,
21,
28,
33,
2,
-42,
-21,
-6,
32,
29,
-26,
16,
-5,
10,
-28,
-23,
-12,
0,
35,
9,
34,
-15,
11,
-10,
-32,
4,
39,
13,
-49,
-28,
9,
-43,
-17,
1,
-63,
-59,
-93,
-64,
-25,
1,
-11,
-30,
51,
5,
-23,
-6,
-24,
34,
-32,
21,
16,
61,
-23,
30,
13,
-7,
-51,
-55,
-1,
13,
-6,
-11,
48,
-21,
8,
-22,
-21,
12,
54,
-4,
-4,
30,
-38,
13,
-16,
1,
-9,
18,
22,
36,
4,
13,
20,
37,
9,
-15,
-41,
-2,
-39,
14,
20,
22,
-4,
25,
-4,
61,
-27,
-33,
-3,
34,
25,
29,
-11,
37,
47,
-31,
54,
73,
5,
7,
-29,
31,
-15,
7,
-35,
-3,
26,
-27,
-23,
16,
0,
16,
-17,
6,
-56,
-18,
-14,
-24,
4,
-38,
10,
-14,
7,
-36,
-2,
-5,
25,
-4,
30,
34,
-12,
-39,
-29,
-38,
0,
-3,
-22,
-16,
-56,
7,
-17,
-13,
-11,
36,
-30,
13,
11,
-43,
-20,
-32,
24,
33,
-10,
19,
-19,
11,
33,
-1,
-23,
-10,
28,
-51,
-34,
-38,
-89,
-4,
5,
-17,
-19,
17,
-32,
-10,
-37,
-8,
-34,
-6,
-4,
32,
28,
25,
28,
-26,
22,
-14,
18,
34,
5,
25,
-27,
17,
16,
20,
-49,
-60,
24,
7,
22,
70,
-33,
66,
33,
10,
3,
-1,
-17,
-8,
-27,
25,
60,
-34,
16,
28,
8,
46,
-24,
-2,
-22,
16,
20,
8,
23,
2,
26,
-49,
-5,
-5,
-7,
4,
8,
-14,
-19,
-65,
74,
19,
5,
41,
44,
-10,
29,
16,
-13,
46,
-16,
-22,
45,
-3,
-31,
-2,
-4,
61,
35,
4,
52,
-28,
54,
-24,
-5,
-12,
-9,
16,
61,
-28,
-71,
8,
-4,
6,
14,
-9,
23,
9,
0,
2,
48,
65,
25,
-14,
-57,
-20,
53,
45,
-41,
-18,
28,
42,
25,
-24,
7,
17,
-42,
-13,
2,
-14,
70,
74,
-5,
-14,
28,
-35,
-3,
-19,
-7,
17,
-89,
-30,
-81,
41,
-15,
37,
-1,
1,
-2,
0,
24,
6,
-13,
-39,
-23,
-10,
-7,
16,
-33,
25,
-17,
37,
17,
-12,
72,
48,
-26,
-22,
-41,
-1,
12,
-18,
31,
14,
-22,
10,
-17,
-39,
-29,
4,
-3,
-20,
13,
9,
-60,
43,
-11,
15,
10,
-25,
10,
-38,
22,
4,
31,
32,
58,
21,
24,
-49,
-8,
-16,
-23,
17,
-7,
-47,
-15,
4,
23,
0,
5,
-19,
17,
-1,
0,
11,
-22,
13,
7,
17,
23,
-35,
28,
-1,
23,
-40,
55,
2,
5,
36,
-19,
-19,
5,
-7,
-7,
28,
60,
-32,
-31,
41,
-7,
-44,
-14,
-19,
-10,
29,
-13,
-3,
32,
6,
-27,
-12,
35,
30,
-58,
10,
8,
40,
-19,
-38,
-23,
-26,
-24,
10,
40,
-17,
-14,
-20,
48,
-60,
-12,
-28,
-12,
51,
-1,
-21,
-6,
59,
19,
72,
30,
2,
-26,
-27,
-24,
-20,
9,
0,
36,
4,
-51,
-17,
37,
28,
-4,
-13,
-53,
-15,
2,
-69,
24,
3,
6,
21,
-26,
-9,
-2,
-10,
32,
39,
26,
-11,
22,
5,
22,
10,
-26,
-16,
2,
-29,
7,
18,
6,
8,
-11,
6,
11,
3,
44,
-58,
31,
-23,
-34,
-1,
-19,
-102,
-8,
6,
48,
25,
0,
-39,
13,
-34,
-28,
17,
16,
4,
22,
-32,
56,
-4,
-16,
50,
-8,
-23,
-51,
-33,
-9,
-29,
-16,
-14,
36,
-33,
14,
7,
16,
-19,
-4,
3,
-36,
10,
24,
-18,
7,
-44,
-34,
-51,
0,
-42,
-9,
15,
40,
8,
0,
-25,
4,
-42,
-14,
-9,
-16,
44,
15,
-21,
12,
2,
30,
-23,
-20,
-17,
-7,
2,
-29,
5,
12,
-49,
0,
-74,
-41,
-3,
-52,
53,
-22,
32,
24,
-56,
10,
-39,
-9,
22,
20,
34,
-30,
55,
65,
41,
-19,
13,
29,
-34,
18,
115,
33,
-5,
-10,
-16,
-3,
-29,
55,
6,
8,
-56,
0
] |
reported below: 307 Mich App 272. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate only the Court of Appeals statement that: “Since the term [singular] is subject to two interpretations, it is ambiguous and judicial construction is required to effectuate Legislative intent.” This definition of ambiguity is not correct. A provision of law is ambiguous only if it “irreconcilably conflictfs]” with another provision or “when it is equally susceptible to more than a single meaning.” Mayor of Lansing v MPSC, 470 Mich 154, 166 (2004). However, the Court of Appeals correctly considered the statutory context to assess the meaning of the term. Koontz v Ameritech Services, Inc, 466 Mich 304, 318 (2002). In all other respects, leave to appeal is denied, because we are not persuaded that the question presented should be reviewed by this Court. | [
-4,
-25,
-67,
-24,
-20,
9,
13,
4,
-39,
32,
28,
-13,
-2,
-28,
-5,
26,
-70,
17,
-43,
53,
10,
29,
0,
47,
28,
-9,
69,
41,
28,
22,
10,
-11,
-27,
-23,
-5,
-39,
24,
-52,
-34,
2,
-13,
-26,
0,
-33,
-44,
-46,
31,
-10,
-17,
48,
-38,
-20,
-44,
-16,
0,
14,
32,
36,
-23,
17,
-29,
35,
-30,
11,
16,
-15,
10,
4,
1,
-30,
-8,
49,
-16,
-41,
8,
-30,
63,
0,
5,
17,
54,
17,
-7,
-40,
7,
10,
7,
0,
12,
8,
-35,
-34,
-49,
-16,
-41,
52,
20,
-11,
4,
-11,
12,
49,
26,
6,
-33,
-49,
-24,
64,
8,
6,
-25,
-16,
-7,
-32,
-56,
53,
-49,
28,
1,
-46,
-26,
-3,
11,
67,
50,
-8,
28,
0,
-63,
-4,
-15,
71,
23,
-11,
17,
8,
11,
-1,
-9,
-22,
8,
34,
73,
-61,
32,
-15,
20,
6,
-10,
5,
52,
10,
-20,
43,
-60,
-40,
16,
-30,
40,
10,
-21,
54,
-35,
20,
27,
-39,
-35,
68,
0,
18,
21,
-19,
-15,
33,
-28,
24,
-7,
0,
2,
7,
-51,
4,
40,
17,
28,
-12,
-11,
1,
-43,
-68,
6,
-19,
33,
-7,
51,
42,
-29,
33,
10,
-25,
-51,
-18,
-48,
17,
36,
-29,
-1,
27,
-6,
22,
-41,
63,
-48,
-5,
96,
-50,
18,
23,
11,
57,
14,
39,
-27,
-22,
-31,
-46,
-18,
58,
8,
20,
24,
44,
5,
18,
26,
13,
54,
30,
61,
-8,
3,
24,
9,
-5,
20,
-4,
11,
-6,
30,
-5,
26,
-13,
100,
-63,
-31,
-32,
-19,
16,
-33,
-29,
8,
34,
-1,
-11,
-25,
32,
-9,
-23,
-45,
-3,
-4,
34,
-30,
-29,
-44,
12,
-12,
8,
50,
-12,
-28,
37,
-68,
6,
-56,
22,
-21,
19,
20,
25,
-7,
-53,
-15,
23,
16,
5,
-14,
0,
-44,
-22,
19,
-32,
-12,
17,
17,
3,
-34,
25,
57,
-12,
-39,
7,
-22,
41,
6,
25,
-1,
-11,
33,
-38,
-2,
2,
25,
-17,
40,
-51,
18,
-35,
-12,
-9,
-23,
12,
-5,
11,
20,
52,
16,
-62,
-8,
39,
6,
-4,
-5,
-45,
33,
14,
-31,
2,
33,
-22,
20,
40,
-10,
-21,
-24,
-11,
-81,
-58,
-8,
10,
12,
13,
-2,
-2,
7,
21,
0,
21,
43,
-1,
-29,
-49,
20,
7,
15,
0,
44,
12,
-56,
-3,
-54,
11,
23,
17,
5,
16,
-29,
40,
37,
-10,
-20,
-89,
-27,
0,
33,
41,
-8,
-10,
28,
-22,
-27,
-7,
-6,
44,
17,
-43,
33,
-17,
-26,
50,
-33,
66,
12,
24,
3,
30,
21,
-20,
82,
-11,
15,
-16,
8,
0,
-30,
-13,
24,
-20,
39,
12,
-33,
-6,
24,
-48,
-18,
21,
-5,
-78,
13,
-4,
-29,
10,
-12,
-13,
-34,
-55,
-23,
-21,
-84,
-7,
14,
10,
-12,
-52,
-35,
-66,
-8,
-3,
0,
3,
7,
-53,
5,
-36,
21,
-20,
-90,
17,
40,
3,
35,
6,
-12,
9,
-40,
8,
-36,
43,
-40,
-38,
24,
-27,
25,
-31,
12,
8,
35,
3,
16,
-54,
-4,
66,
20,
1,
-13,
-40,
18,
-55,
-3,
50,
29,
7,
6,
-18,
39,
-55,
-5,
-49,
105,
-14,
-3,
26,
24,
72,
6,
45,
6,
-31,
39,
-18,
-39,
-48,
-25,
-51,
-26,
0,
-50,
-22,
28,
16,
44,
-20,
50,
0,
16,
39,
14,
-10,
-16,
1,
-1,
5,
15,
43,
36,
15,
16,
19,
16,
61,
-38,
17,
0,
17,
22,
-19,
-35,
12,
70,
-14,
-19,
-12,
-21,
-29,
-45,
-14,
-26,
31,
13,
10,
6,
-36,
11,
21,
36,
-36,
24,
0,
-25,
-16,
-5,
25,
18,
-31,
32,
-36,
-68,
-22,
19,
-20,
-46,
-43,
-40,
-36,
-41,
38,
-31,
2,
-40,
15,
-41,
19,
-23,
13,
-19,
37,
-19,
-49,
6,
27,
-14,
13,
-21,
-22,
-65,
-19,
-24,
0,
23,
64,
34,
51,
-37,
-28,
-54,
-12,
13,
-14,
-43,
0,
19,
56,
-8,
-43,
3,
15,
80,
-12,
7,
37,
-10,
11,
-13,
15,
28,
42,
-9,
22,
-13,
23,
-8,
7,
-26,
-24,
58,
25,
-33,
-11,
67,
11,
-4,
-31,
12,
29,
-24,
-5,
-39,
38,
23,
-51,
9,
41,
26,
57,
23,
-42,
67,
3,
16,
16,
-32,
-25,
24,
-16,
40,
23,
-35,
19,
14,
9,
31,
-27,
87,
-9,
45,
-37,
-42,
71,
30,
-56,
-9,
-17,
76,
-59,
-1,
-6,
-13,
-21,
21,
20,
9,
37,
-10,
-31,
13,
31,
-7,
-8,
-5,
-12,
-8,
14,
-7,
-4,
-16,
46,
2,
-54,
19,
-57,
-16,
-23,
25,
-3,
-41,
30,
-38,
0,
25,
-1,
20,
3,
14,
44,
-37,
41,
44,
4,
-15,
5,
18,
-38,
25,
4,
-57,
3,
-3,
44,
16,
5,
-55,
-20,
5,
11,
-36,
-25,
24,
20,
34,
25,
26,
-42,
42,
-17,
-12,
5,
-13,
-5,
-32,
-2,
0,
-20,
-29,
15,
28,
-38,
-13,
-44,
-73,
-68,
28,
-37,
-11,
18,
51,
-11,
42,
-35,
-20,
4,
11,
36,
-3,
37,
-10,
1,
-70,
32,
-1,
-50,
41,
15,
8,
9,
43,
-27,
35,
60,
-43,
-90,
75,
-4,
-16,
-12,
7,
13,
26,
35,
3,
-3,
6,
17,
7,
31,
45,
-51,
-9,
12,
56,
-31,
25,
0,
-39,
23,
0,
41,
7,
-52,
-14,
-49,
-41,
-30,
-26,
58,
33,
10,
-26,
-9,
14,
57,
-7,
70,
53,
-10,
-19,
33,
-20,
24,
28,
-20,
7,
-55,
12,
-35,
-2,
28,
15,
-52,
-58,
20,
-10,
-23,
24,
-34,
37,
-38,
-8,
-42,
-3,
40,
81,
16,
-13,
10,
-7,
8,
-35,
-24,
-61,
-26,
-5,
-39,
-37,
69,
41,
-46,
19,
-14,
52,
60,
-43,
16,
13,
-62,
73,
24,
-12,
17,
10,
-2,
26,
33,
22,
-7,
-11,
-14,
-15,
23,
-25,
-15,
11,
12,
-59,
-45,
42,
-17,
-21,
36,
11,
6,
-21,
-22,
-7,
-19,
-27,
-7,
17,
-26,
18,
-21,
8,
-22,
22,
-5,
35,
38,
4,
12,
-27,
-57,
-43,
-14,
43,
22,
36,
-19,
-39,
2,
-11,
7,
-39,
-7,
50,
-33,
-20,
30,
-30,
-39,
5,
23,
11,
-33,
-17,
-2,
-39,
-12,
-3,
-7,
-73,
-34,
21,
-18,
-15,
9,
20,
28,
-39,
30,
4,
43,
56,
42,
-27,
-51,
-1,
4,
-20,
-26,
-11,
8,
23,
-8,
12,
27,
-24,
-7,
-2,
-2,
-62,
-7,
25,
27,
-73,
-13
] |
On order of the Court, leave to appeal having been granted and the briefs and oral arguments of the parties having been considered by the Court, we reverse in part the April 22, 2014 judgment of the Court of Appeals and we remand this case to the Kent Circuit Court for a new trial. The trial court abused its discretion by admitting the recording of the defendant’s interrogation. See People v Musser, 494 Mich 337 (2013). Because nothing of any relevance was said during the interrogation, it was simply not relevant evidence, and thus was not admissible evidence. See MRE 401. The admission of this evidence amounted to plain error that affected the defendant’s substantial rights and seriously affected the fairness, integrity or public reputation of judicial proceedings. See People v Carines, 460 Mich 750, 763 (1999). In a trial in which the evidence essentially presents a ‘one-on-one’ credibility contest between the complainant and the defendant, the prosecutor cannot improperly introduce statements from the investigating detective that vouch for the veracity of the complainant and indicate that the detective believes the defendant to be guilty. On retrial, if the parties seek to admit expert testimony, &e trial court shall conduct a Daubert hearing to ensure that the proposed testimony is both relevant and reliable as is required under MRE 702. See Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993). In light of this disposition, we decline to address the other issues presented in our order granting leave to appeal. | [
46,
3,
18,
-25,
6,
-3,
-59,
-5,
-45,
5,
0,
-29,
57,
-50,
36,
-42,
36,
6,
57,
-54,
15,
-8,
40,
23,
-46,
-39,
-12,
10,
3,
-31,
-7,
46,
9,
-46,
62,
-50,
49,
23,
-35,
16,
5,
-17,
27,
-54,
-41,
16,
27,
43,
18,
26,
63,
52,
-41,
12,
14,
-49,
-20,
36,
1,
-11,
-3,
14,
7,
-15,
28,
32,
4,
-17,
-48,
-37,
-39,
9,
-14,
-26,
-28,
-35,
-7,
39,
28,
24,
63,
5,
46,
-4,
68,
8,
14,
-30,
-19,
64,
-19,
-27,
-46,
-50,
-34,
3,
-3,
-23,
34,
18,
-21,
12,
-4,
-27,
-9,
5,
-33,
62,
-22,
-6,
27,
30,
-18,
-58,
-19,
14,
-13,
-30,
-22,
-38,
-12,
9,
35,
23,
33,
4,
94,
-73,
-8,
-47,
-31,
37,
0,
-3,
30,
-27,
12,
-49,
-25,
22,
-19,
48,
24,
-32,
19,
9,
-34,
-10,
2,
33,
21,
-31,
13,
31,
-14,
-49,
16,
-27,
18,
21,
3,
70,
-90,
21,
-23,
7,
19,
-7,
34,
-23,
30,
14,
87,
43,
-39,
-20,
-22,
31,
3,
7,
-13,
-7,
32,
-29,
-19,
-9,
-24,
-32,
1,
-54,
-9,
21,
-17,
-6,
41,
-5,
-14,
69,
38,
-38,
-11,
16,
2,
12,
5,
25,
-19,
-31,
52,
-22,
-22,
45,
12,
-41,
11,
-48,
3,
-45,
-6,
24,
-14,
-41,
35,
-33,
2,
19,
0,
5,
2,
-6,
2,
67,
-16,
20,
0,
20,
-5,
-36,
58,
-49,
-34,
-12,
65,
-15,
-32,
-3,
23,
-33,
20,
-28,
20,
18,
29,
-7,
-64,
-70,
25,
45,
-47,
-8,
-2,
39,
-22,
20,
-1,
-40,
-12,
25,
-9,
15,
-25,
-46,
-3,
-22,
-9,
-31,
-27,
13,
16,
24,
7,
-7,
0,
6,
-46,
2,
-50,
36,
6,
50,
4,
6,
-47,
0,
39,
38,
11,
-5,
-47,
-6,
42,
39,
-37,
-22,
-21,
1,
-16,
74,
8,
1,
32,
65,
65,
39,
18,
20,
-27,
-15,
34,
-16,
-65,
-10,
11,
-66,
30,
18,
25,
-71,
28,
-28,
-17,
18,
48,
-15,
25,
-8,
-36,
15,
23,
3,
-46,
-4,
-10,
-37,
-5,
26,
-57,
12,
-11,
-43,
43,
-21,
29,
18,
-37,
-32,
-6,
-38,
-4,
-30,
22,
-57,
23,
-2,
3,
45,
11,
-21,
-16,
26,
-36,
-61,
-4,
-19,
-34,
-26,
25,
-40,
9,
32,
-45,
0,
-2,
13,
-18,
-12,
0,
57,
36,
52,
-8,
-22,
-11,
-12,
2,
2,
-12,
27,
42,
1,
6,
-21,
28,
13,
-45,
-39,
-2,
-8,
-17,
51,
41,
88,
16,
53,
-17,
-45,
38,
23,
29,
-39,
36,
-39,
19,
13,
17,
26,
40,
8,
45,
-20,
-8,
-20,
-15,
-59,
14,
16,
-19,
0,
8,
10,
-50,
-18,
-44,
20,
16,
-23,
-21,
15,
-1,
13,
-41,
22,
65,
-39,
-8,
27,
-12,
30,
16,
0,
-22,
-41,
-24,
-13,
20,
34,
-47,
-38,
1,
5,
89,
-21,
19,
34,
-45,
36,
-30,
21,
21,
0,
32,
-18,
-1,
-16,
13,
21,
-58,
-24,
44,
23,
-56,
-13,
0,
-14,
-48,
17,
19,
-8,
5,
34,
-5,
-41,
4,
2,
31,
6,
26,
-63,
71,
17,
36,
28,
-23,
-13,
-48,
-5,
31,
-36,
21,
1,
33,
-21,
48,
10,
-27,
-22,
1,
-45,
-6,
9,
83,
39,
17,
-43,
28,
-31,
-3,
-53,
7,
0,
-13,
27,
-36,
15,
10,
-19,
-2,
11,
16,
16,
47,
31,
3,
1,
4,
-19,
16,
25,
7,
-43,
-5,
6,
44,
50,
10,
-41,
-22,
-19,
51,
-27,
33,
21,
-40,
34,
-12,
34,
15,
27,
-16,
-13,
-31,
-15,
5,
-34,
-32,
-14,
36,
-32,
20,
-70,
-92,
1,
0,
-23,
-81,
-51,
13,
-47,
29,
65,
18,
-14,
-78,
38,
12,
21,
20,
7,
-10,
-22,
36,
-62,
1,
11,
-46,
8,
-30,
-2,
14,
18,
-54,
-28,
-9,
0,
-1,
-13,
-29,
10,
-54,
-8,
15,
21,
35,
14,
12,
23,
3,
-17,
-4,
-10,
16,
36,
22,
-40,
-4,
-12,
-1,
-25,
-17,
-40,
15,
26,
14,
-33,
4,
14,
5,
41,
-25,
8,
-3,
-8,
-40,
-23,
10,
19,
16,
-1,
37,
-43,
5,
22,
-10,
7,
-7,
0,
25,
-31,
-22,
38,
-31,
-65,
5,
-37,
5,
13,
-49,
32,
39,
23,
7,
-6,
17,
-1,
34,
-25,
32,
38,
-7,
-54,
-7,
-6,
18,
-9,
5,
30,
35,
-24,
8,
23,
0,
28,
-26,
48,
30,
-27,
-44,
0,
39,
-10,
27,
-11,
40,
37,
-26,
-6,
-3,
14,
49,
4,
7,
-32,
20,
-24,
-41,
31,
48,
-1,
-22,
65,
-2,
-11,
7,
14,
6,
29,
54,
-13,
10,
17,
27,
23,
-8,
18,
-28,
53,
41,
-23,
-31,
-18,
32,
24,
-43,
-91,
-13,
-2,
23,
10,
17,
38,
-3,
-42,
83,
-4,
0,
-20,
-13,
14,
23,
5,
67,
28,
-24,
53,
29,
-37,
-35,
-32,
-31,
3,
62,
-6,
-91,
42,
37,
-19,
-4,
-41,
-38,
48,
10,
-28,
24,
15,
10,
-6,
-4,
25,
18,
-18,
22,
23,
-19,
10,
13,
-46,
0,
-1,
1,
-16,
34,
9,
-13,
-41,
-19,
49,
26,
-21,
27,
0,
13,
-27,
37,
6,
-23,
-3,
-6,
-11,
14,
39,
-1,
25,
19,
13,
-3,
28,
-3,
1,
-32,
47,
-5,
67,
-49,
-13,
15,
-25,
13,
16,
-14,
2,
0,
58,
-48,
16,
0,
44,
-13,
-1,
21,
-59,
-3,
-29,
-27,
16,
-23,
23,
-35,
-7,
-16,
72,
-3,
-54,
-16,
-23,
30,
-59,
-11,
-17,
-32,
4,
12,
27,
21,
-3,
12,
20,
46,
-36,
-23,
25,
-28,
-64,
10,
9,
43,
5,
-4,
-18,
-11,
50,
-35,
-25,
16,
-30,
21,
50,
-27,
5,
44,
-44,
24,
43,
-22,
-22,
-11,
-55,
-4,
-38,
-45,
-3,
-19,
8,
-21,
-47,
82,
11,
-48,
-47,
-19,
0,
6,
16,
-61,
32,
-4,
-11,
-48,
-23,
-5,
41,
-10,
-25,
-46,
1,
-12,
-32,
38,
26,
-36,
-16,
-52,
-20,
-10,
29,
0,
19,
-59,
2,
4,
59,
23,
2,
35,
-26,
10,
-22,
8,
-9,
-23,
59,
-50,
-12,
-54,
-11,
-35,
-1,
-59,
-3,
-47,
-74,
-10,
-10,
2,
-18,
-34,
50,
-49,
-27,
27,
-16,
3,
8,
30,
9,
31,
4,
34,
-17,
-48,
14,
32,
2,
14,
-31,
-34,
-28,
3,
-60,
-12,
5,
-67,
37,
7,
49
] |
YOUNG, C.J.
The Civil Service Commission’s rules allow public collective bargaining agreements that require collection of a mandatory service fee, also known as an “agency shop fee,” from union-eligible employees who opt out of union membership. Civ Serv R 6-7.2. Although we conclude that public collective bargaining is a method by which the Civil Service Commission (the commission) may choose to exercise its constitutional duties, we hold that the commission may not effectively require civil servants to fund the commission’s own administrative operations. Accordingly, we affirm, albeit on different grounds, the judgment of the Court of Appeals.
FACTS AND HISTORY
The legislation commonly known as the “Right to Work” laws—Public Acts 348 and 349 of 2012—were made effective March 27, 2013. 2012 PA 348 governs private employers and 2012 PA 349 governs public employers. This case concerns the constitutionality of 2012 PA 349. Section 3 of 2012 PA 349 amends the public employment relations act (PERA), MCL 423.201 et seq., to provide that public employers may not require their employees to join a union or pay union dues, fees, or other expenses “as a condition of obtaining or continuing public employment. . . .” MCL 423.210(3) (“[A]n individual shall not be required as a condition of obtaining or continuing public employment to do any of the following: . . . (c) [p]ay any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value to a labor organization or bargaining representative.”).
The commission’s current rules, however, affirmatively and expressly allow public collective bargaining agreements that provide for the collection of an agency shop fee from union-eligible employees who opt out of union membership. Civ Serv R 6-7.2 (last amended April 29, 2004) provides:
Nothing in this rule precludes the employer from making an agreement with an exclusive representative to require, as a condition of continued employment, that each eligible employee in the unit who chooses not to become a member of the exclusive representative shall pay a service fee to the exclusive representative. If agreed to in a collective bargaining agreement, the state may deduct the service fee by payroll deduction. An appointing authority shall not deduct a service fee unless the employee has filed a prior written authorization or as otherwise authorized in a collective bargaining agreement.
Plaintiffs, union representatives of classified civil service employees, contend that agency shop fees defray various union activity costs. In accordance with the current rules, plaintiff unions have negotiated various agreements with the state that contain agency shop fee arrangements covering the employees whom they represent.
2012 PA 349 purports to make these mandatory agency shop fees illegal. Plaintiff labor unions filed the instant complaint in February 2013 challenging the validity of 2012 PA 349, § 3. Plaintiffs alleged that, under Const 1963, art 11, § 5, the statute’s agency shop fee prohibition cannot apply to the commission because it infringes the commission’s constitutional mandate to “regulate all conditions of employment” for civil servants.
The Court of Appeals in a split decision held that the Legislature possesses the authority to enact legislation concerning and restricting agency shop fees. Int’l Union v Green, 302 Mich App 246; 839 NW2d 1 (2013). In reaching that conclusion, the Court of Appeals reasoned that the commission’s power to “regulate” conditions of employment is necessarily subservient to the Legislature’s power to “enact laws” relative to hours and conditions of employment. The dissent, on the other hand, would have held that agency shop fees are “conditions of employment” by virtue of being “on-duty employment concerns.” Id. at 294 (GLEICHER, J., dissenting).
STANDARD OF REVIEW
Questions of constitutional and statutory interpretation are reviewed de novo. Hunter v Hunter, 484 Mich 247, 257; 771 NW2d 694 (2009).
ANALYSIS
Our primary goal in construing a constitutional provision is to give effect to the intent of the people of the state of Michigan who ratified the Constitution, by applying the rule of "common understanding.” See Goldstone v Bloomfield Twp Pub Library, 479 Mich 554, 558-559; 737 NW2d 476 (2007) (“When interpreting constitutional provisions, our primary objective is to realize the intent of the people by whom and for whom the constitution was ratified. That is, we seek the ‘common understanding’ of the people at the time the constitution was ratified. This involves applying the plain meaning of each term used at the time of ratification, unless technical, legal terms are used.”) (citations and quotation marks omitted). We identify the common understanding of constitutional text by applying the plain meaning of the text at the time of ratification. Wayne Co v Hathcock, 471 Mich 445, 468-469; 684 NW2d 765 (2004). Interpretation of a constitutional provision also takes account of “the circumstances leading to the adoption of the provision and the purpose sought to be accomplished.” People v Tanner, 496 Mich 199, 226; 853 NW2d 653 (2014) (citation and quotation marks omitted). Unless we are able to determine that a constitutional provision had some other particularized or specialized meaning in the collective mind of the 1963 electorate, we must give effect to the natural meaning of the language used in the Constitution. Mich United Conservation Clubs v Secretary of State (After Remand), 464 Mich 359, 376; 630 NW2d 297 (2001) (YOUNG, J., concurring). Technical legal terms are those that have acquired a special meaning and “must be interpreted in light of the meaning that those sophisticated in the law would have given those terms at the time of ratification.” Dep’t of Transp v Tomkins, 481 Mich 184, 191; 749 NW2d 716 (2008). The Address to the People, which was distributed to Michigan citizens in advance of the ratification vote and which explained in everyday language what each provision of the proposed new Con stitution was intended to accomplish, Walker v Wolverine Fabricating & Mfg Co, Inc, 425 Mich 586, 597; 391 NW2d 296 (1986), and, to a lesser degree, the constitutional convention debates themselves are also relevant in determining the ratifiers’ intent. Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich 146, 156; 665 NW2d 452 (2003).
“The Civil Service Commission is a constitutional body . . . .” Viculin v Dep’t of Civil Serv, 386 Mich 375, 393; 192 NW2d 449 (1971). It possesses “plenary and absolute powers in its field.” Id. at 398. The constitutional provision concerning the commission, Article 11, § 5, provides, in relevant part:
The Commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service. [Const 1963, art 11, § 5, ¶ 4.]
Article 11, § 5 thus sets forth the “duties of the Civil Service Commission [.]” See Mich Coalition of State Employee Unions v Civil Serv Comm, 465 Mich 212, 221; 634 NW2d 692 (2001). The commission possesses authority over and exercises its duties concerning, in part, “the procedures by which a state civil service employee may review his grievance,” Viculin, 386 Mich at 393, as well as rates of compensation and conditions of employment. See Council No 11, AFSCME v Civil Serv Comm, 408 Mich 385, 406; 292 NW2d 442 (1980).
The commission’s rules authorize the use of public collective bargaining agreements as a mechanism for exercising its constitutional authority over such matters as grievance procedures and rates of compensation. See, e.g., Civ Serv R 6-9.6(a) (“An exclusive representative and the employer may agree upon a procedure for the resolution of grievances of exclusively represented employees against the departmental employer..Civ Serv R 6-3.6(b) (“The rates of compensation for all existing grades within a classification of positions . . . may be established in a collective bargaining agreement. . .”). The commission retains absolute authority over the contents of a public collective bargaining agreement. Civ Serv R 6-3.1(b) (“The civil service commission retains the authority to (1) approve, modify, or reject, in whole or in part, a proposed collective bargaining agreement presented to it for review and (2) to impose on the parties and eligible employees a collective bargaining agreement as modified by the commission.”). This authority makes clear that the commission uses public collective bargaining as one important tool within its constitutional arsenal, establishing a procedure by which civil servants and the state employer may bargain over a variety of employment-related matters. This choice presumably reflects the commission’s judgment that it wishes to facilitate input from the employees’ representatives. If the commission deems public collective bargaining to be an appropriate mechanism for exercising its constitutional duties, that is its prerogative and we have no warrant to challenge this aspect of its exercise of authority. See Makowski v Governor, 495 Mich 465, 471; 852 NW2d 61 (2014), citing Marbury v Madison, 5 US (1 Crunch) 137, 170; 2 L Ed 60 (1803) (applying Marbury to Michigan’s three branches of government and stating that “courts may not inquire into how the executive or his officers perform their duties in which they have discretion”).
Having established for the purposes of this case that the commission may authorize public collective bargaining as a tool in the exercise of its constitutional duties, we turn to the specific issue before us: whether the mandatory agency shop fee is consistent with such authorization. Although authorizing public collective bargaining agreements is within the commission’s sound judgment, we hold that the commission lacks the authority to tax or appropriate—to wit, the authority to compel civil service employees to make involuntary financial contributions to subsidize the commission’s exercise of its constitutional duties and responsibilities.
Generally, of course, the power to tax and appropriate rests exclusively with the Legislature. See 46th Circuit Trial Court v Crawford Co, 476 Mich 131, 141; 719 NW2d 553 (2006) (opinion by MARKMAN, J.); see also Const 1963, art 9, § 1 (“The legislature shall impose taxes sufficient with other resources to pay the expenses of state government.”). It has been stated:
The power to tax defines the extent to which economic resources will be apportioned between the people and their government, while the power to appropriate defines the priorities of government. Partly in recognition of the enormity of these powers, the framers of our constitutions determined that the branch of government to exercise these powers should be that branch which is closest to, and most representative of, the people [i.e., the Legislature]. [46th Circuit Trial Court, 476 Mich at 141-142 (opinion by Markman, J.).]
Indeed, we have recognized that this is “the most fundamental aspect of the ‘legislative power ....’” Id. at 141 (opinion by MARKMAN, J.). Therefore, in order for another constitutional body, such as the commission, to exercise the same powers that are historically vested in our Legislature, the Constitution must affirmatively provide for them. See Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 752-753; 330 NW2d 346 (1982).
In an unrelated, but illustrative, context, the commission actually enjoys such a narrow and highly distinctive power of appropriation. Paragraph 7 of Const 1963, art 11, § 5, expressly empowers the commission to increase civil servants’ rates of compensation by having that increase placed into the state’s annual budget. That increase becomes effective unless the Legislature vetoes the commission’s increase by a supermajority vote. In turn, when the commission opts to increase the payroll of employees in the civil service, the Constitution automatically increases the commission’s own administrative operational budget in direct proportion to the payroll increase. Const 1963, art 11, § 5, ¶¶ 7 and 10. Specifically, ¶ 10 of Const 1963, art 11, § 5 provides:
To enable the commission to exercise its powers, the legislature shall appropriate to the commission for the ensuing fiscal year a sum not less than one per cent of the aggregate payroll of the classified service for the preceding fiscal year, as certified by the commission. Within six months after the conclusion of each fiscal year the commission shall return to the state treasury all moneys unexpended for that fiscal year.
At the constitutional convention, this—the commission’s “privilege of a mandatory [administrative operational] appropriation”—was rightfully described as “extraordinary.” 1 Official Record, Constitutional Convention 1961, p 639 (stating that “[t]he commission does not appear to have abused its extraordinary privilege of a mandatory appropriation” in order to raise the payroll and, by extension, its own budget).
But the commission’s limited and explicit power to appropriate its own administrative funding by adjusting budgeted rates of compensation stands in stark contrast to an asserted broad and implicit power to appropriate funds from whatever source. The former has textual support in the Constitution, while the latter does not. There is simply no authority in the Constitution that would support an argument that its ratifiers commonly and reasonably understood the commission as possessing the authority that plaintiffs ascribe to it—in particular, the power to require that assessments from civil servants’ paychecks additionally subsidize the commission’s own duties and responsibilities.
Reading this administrative funding provision in Article 11, § 5, ¶ 10 in context with the enumeration of the commission’s powers in ¶ 4 underscores that the ratifiers could not have contemplated that civil servants would serve as an alternative or additional source of funding for the commission’s budget. The only potential source of an authority to permit mandatory agency shop fees is the commission’s power to “regulate” the conditions of employment, which regulation is effected through public collective bargaining agreements. But the power to “regulate” does not encompass the specific authority to compel other entities, including civil servants themselves, to subsidize the commission’s constitutional operations. This authority is one of taxation and appropriation and is fundamentally legislative in character.
Indeed, the presence of the funding provision of Article 11, § 5, ¶ 10 serves to confirm this analysis, which concludes that the ratifiers must have understood, consistent with separation of powers principles, that the commission would be adequately funded by the Legislature in proportion to the size of the civil service. In that paragraph, the Constitution provides the commission with the financial means “[t]o enable the commission to exercise its powers [.]” In other words, upon receiving an operating appropriation, which is scaled to one percent of the total payroll of all classified civil servants, the Constitution considers the commission “enable [d]” to exercise all of its powers— including its power to “regulate all conditions of employment in the classified service.” In light of the foregoing, the commission cannot simply provide itself with additional administrative operating funds as a function of its authority to “regulate.” Instead, because the Constitution provides the commission with a source of funding “to enable [it] to exercise its powers,” the ratifiers must have reasonably understood that to be the commission’s exclusive source of funding. See Blank v Dep’t of Corrections, 462 Mich 103, 142 n 14; 611 NW2d 530 (2000) (MARKMAN, J., concurring) (“There is nothing unusual about the principle that language couched in terms of an affirmative grant can also reasonably imply a restriction.”); see also Cooley, Constitutional Limitations (1868), p 64 (“[W]here the means for the exercise of a granted power are given, no other or different means can be implied, as being more effective or convenient.”) (citation and quotation marks omitted). It follows then that the commission lacks the power to compel funding for its administrative operational duties from another and unstated source. Ac cordingly, we hold that allowing the imposition of mandatory agency shop fees upon civil servants is beyond the commission’s constitutional authority. Civ Serv R 6-7.2 is unconstitutional to the extent it allows the exaction of such fees.
RESPONSE TO THE DISSENT
The dissent does not disagree with our conclusion that the commission lacks the authority to demand additional administrative operating funds from third parties. Rather, it is the dissent’s position that, because employees are forced to pay the agency shop fees directly to the unions, rather than to the commission itself, the fees “do not fund the commission’s ‘administrative operational duties’ to establish the conditions of employment” as we have reasoned. We respectfully argue that the dissent misses the point of our analysis.
The fact that, here, the agency fees are paid to the union does not change the fact that the commission permits collective bargaining in order to fulfill its constitutional obligation to regulate conditions of employment. Thus, using collective bargaining for that purpose provides a benefit that flows directly to the commission. Contrary to the dissent’s assertion that “there has been no finding—not even an allegation— that agency fees fund [the commission’s] regulatory efforts,” the commission’s own rules link collective bargaining directly to conditions of employment. Under Civ Serv R 6-2.1(d), “[t]he provisions of a collective bargaining agreement, when approved by the commission, become a subset of the civil service rules governing . . . conditions of employment for the eligible employees in the applicable unit.” This is underscored by the commission’s absolute control over collective bargaining agreements, which renders them merely advisory until approved by the commission and illustrates that the commission is the true beneficiary of the collective bargaining process it has authorized in order to fulfill its constitutional regulatory obligation. Although the employers and employees may benefit from collective bargaining, those entities enjoy any such positive externalities at the grace of the commission.
As explained earlier, collective bargaining is one method by which the commission has chosen to exercise its obligation to “regulate all conditions of employment.” And this is the critical point in our analysis that explains why the commission is the true beneficiary of the collective bargaining process: Unless collective bargaining was a proper method of regulating conditions of employment within the civil service, there would be no lawful basis for the commission to permit it at all. Stated differently, because the commission can permit collective bargaining, it follows that it does so as part of its own duty to regulate. The agency fees in turn exist to support that regulatory duty, regardless of who receives them.
Having chosen this method of regulating conditions of employment, what the commission cannot do is foist the administrative costs of that choice onto anyone else. This principle remains true regardless of who pays whom. What matters is who authorizes and receives the benefit. Illustratively, had the commission chosen another method by which to regulate conditions of employment—for example, by hiring a panel of consultant labor economists—no one would assert that the labor economists could then submit their invoice to the affected civil servants. That is precisely what the commission has done in passing on to civil servants the cost of regulating conditions of employment through the mechanism of collective bargaining.
The dissent further assigns significance to the fact that the commission authorizes, rather than requires, an employer to force its employees to pay agency shop fees. This does not affect our reasoning. The dissent cites no authority for the proposition that the commission can authorize an employer to do something that the commission itself cannot do. Given the fact that collective bargaining can only exist as a means to permit the commission to discharge its constitutional obligation, it is irrelevant that an employer retains the choice whether to require agency shop fees. When no agency shop fee is assessed, there is no constitutional problem. But whenever an employer opts to require the agency shop fee, the fee comes into existence as a mechanism to fund collective bargaining and, by extension, the commission’s regulatory obligations. Permitting agency shop fees is therefore impermissible for the reasons stated earlier.
It therefore remains unnecessary for us to respond to the dissent’s argument that 2012 PA 349 is prohibited by Const 1963, art 4, § 48.
CONCLUSION
The authority of the Civil Service Commission is not without limits. Although public collective bargaining is a method by which the commission may choose to exercise its constitutional duties, it may not require collection of agency shop fees to fund its administrative operations in pursuit of those duties. The commission’s rules must yield to the Constitution when there is no authority for it to impose such fees. Accordingly, we affirm, albeit on different grounds, the judgment of the Court of Appeals.
MARKMAN, ZAHRA, and VIVIANO, JJ., concurred with YOUNG, C.J.
Under § 10(6) of 2012 PA 349, the Court of Appeals exercises exclusive original jurisdiction over such actions. MCL 423.210(6).
It may seem excessive to suggest that the commission might someday seek to use compelled contributions from civil servants in order to cover administrative costs other than those associated with public collective bargaining. However, absent affirmative constitutional authority, the premise of the commission’s supposed power to assess agency shop fees from civil servants has no apparent or necessary limiting principle that would preclude such an action.
Because the commission’s power to “regulate” does not encompass the general legislative authority to tax or appropriate, we overrule Dudkin v Civil Serv Comm, 127 Mich App 397, 408-409; 339 NW2d 190 (1983), to the extent that it held that “imposition of an agency shop fee” is constitutionally authorized “pursuant to efficient civil service operations.”
Given our holding that the commission may not impose mandatory agency shop fees on civil servants because it lacks the affirmative constitutional authority to do so under Const 1963, art 11, § 5, we need not consider whether it is also prohibited by 2012 PA 349 from doing the same. Thus, we need not address the meaning and breadth of “conditions of employment” in Article 4, § 49 and Article 11, § 5, or how the commission’s authority in Article 11, § 5 to “regulate all conditions of employment in the classified service” should be reconciled with the Legislature’s authority in Article 4, § 1 to exercise “[t]he legislative power of the State of Michigan” and its authority in Article 4, § 49 to “enact laws relative to . . . conditions of employment.” Furthermore, there is no need to address plaintiffs’ argument that 2012 PA 349 is inapplicable to civil servants as a function of its placement within PERA.
Post at 303.
Specifically, collective bargaining agreements relieve the commission of the burden of its constitutional responsibility to regulate particularized “conditions of employment for the eligible employees in the applicable unit.” Civ Serv R 6-2.1(d).
Post at 303-304.
Emphasis added.
The dissent warns of “other conditions of employment” being “subject to invalidation by this Court as improper ‘appropriations!.]’ ” Post at 308. However, the instant holding is founded solely on the agency shop fee’s unique relationship to the entire collective bargaining framework. “Other conditions of employment” are not before this Court.
See note 4 of this opinion. | [
19,
-37,
-50,
48,
73,
49,
15,
-21,
6,
26,
2,
9,
71,
-23,
-37,
-30,
43,
110,
-46,
29,
-5,
-25,
23,
22,
-7,
90,
24,
13,
-12,
12,
-18,
5,
-70,
-21,
-44,
-4,
16,
14,
-1,
-3,
56,
28,
-53,
-42,
-1,
14,
8,
20,
12,
-45,
-24,
65,
-34,
18,
18,
16,
24,
-42,
-70,
23,
-80,
-15,
13,
23,
-25,
-10,
-19,
52,
40,
-20,
-36,
22,
-41,
-7,
55,
25,
-30,
-25,
-5,
42,
-16,
-29,
-24,
-67,
-7,
57,
12,
18,
36,
4,
-16,
47,
-41,
17,
-8,
6,
52,
15,
22,
-5,
-18,
-11,
0,
27,
11,
1,
4,
-50,
-29,
0,
-22,
-33,
21,
-64,
-50,
15,
5,
-25,
28,
-23,
33,
9,
-2,
9,
-42,
-26,
42,
-6,
-73,
19,
-10,
-7,
-38,
-36,
0,
48,
-8,
-7,
44,
60,
-65,
22,
7,
-53,
33,
17,
-22,
3,
-5,
-50,
53,
-43,
98,
-34,
-43,
-16,
-52,
-21,
22,
16,
19,
1,
-15,
-65,
1,
9,
-47,
60,
5,
10,
22,
30,
24,
-36,
-17,
-87,
-22,
29,
-63,
-33,
-10,
-43,
-20,
-9,
15,
-17,
-64,
-21,
39,
-89,
-19,
-45,
21,
-27,
4,
8,
-3,
28,
-36,
8,
-24,
-1,
-10,
-2,
-6,
19,
12,
-33,
-29,
-57,
27,
50,
-65,
-30,
-69,
24,
-7,
-13,
-30,
-25,
30,
16,
-44,
-13,
-58,
-14,
18,
41,
25,
0,
-24,
48,
21,
-26,
24,
27,
-18,
16,
102,
64,
-39,
1,
-6,
-28,
-35,
-35,
-23,
7,
-6,
12,
2,
-4,
7,
30,
-22,
-85,
-13,
24,
33,
16,
-56,
76,
52,
-6,
-37,
7,
-24,
9,
39,
27,
0,
69,
42,
-18,
23,
-8,
-27,
-13,
-40,
6,
-109,
21,
-14,
-23,
-22,
-4,
-35,
-41,
17,
-9,
42,
7,
37,
41,
56,
24,
50,
65,
2,
68,
-41,
11,
31,
6,
5,
-29,
-49,
11,
21,
-21,
-7,
-102,
12,
-5,
8,
-40,
1,
-17,
56,
38,
-44,
-29,
58,
71,
1,
-79,
-17,
-34,
8,
-29,
-4,
0,
31,
-38,
49,
-5,
8,
64,
-31,
-5,
1,
22,
56,
-29,
4,
-64,
17,
13,
-16,
-36,
-32,
37,
-8,
50,
21,
32,
-5,
0,
-17,
-27,
60,
47,
-3,
-60,
-67,
0,
-11,
17,
16,
20,
46,
28,
-23,
-20,
-56,
39,
19,
23,
-44,
-12,
32,
-29,
-15,
-29,
9,
-12,
4,
38,
-30,
-36,
35,
-45,
-65,
48,
-10,
82,
107,
-12,
-20,
36,
47,
-3,
-19,
-22,
3,
-1,
32,
-16,
-25,
80,
52,
6,
-55,
15,
-31,
21,
19,
-59,
8,
2,
0,
-21,
-28,
31,
-22,
-26,
-94,
54,
-35,
35,
-56,
-118,
-1,
-55,
-32,
-42,
-48,
-67,
-37,
0,
-28,
6,
5,
23,
-2,
-30,
-70,
18,
8,
-19,
-13,
57,
-4,
76,
7,
-7,
-26,
30,
-24,
-6,
-59,
44,
-3,
5,
64,
-28,
-45,
55,
20,
46,
-72,
-22,
35,
9,
25,
-76,
-10,
-46,
53,
-9,
68,
-15,
46,
-52,
-90,
-30,
20,
1,
-3,
-44,
9,
-28,
-12,
-31,
69,
1,
52,
36,
-9,
19,
-29,
60,
27,
24,
-45,
-8,
-40,
-14,
38,
-66,
-7,
13,
69,
27,
16,
29,
-17,
9,
2,
-47,
-54,
4,
-51,
23,
43,
14,
-20,
10,
31,
-9,
48,
-7,
49,
19,
-5,
14,
41,
0,
14,
-35,
-7,
32,
-30,
4,
2,
20,
12,
11,
47,
0,
10,
-8,
-25,
3,
40,
9,
-19,
54,
57,
20,
-47,
19,
12,
12,
5,
25,
-3,
81,
49,
5,
-18,
31,
25,
10,
44,
-34,
49,
-47,
22,
-46,
24,
-25,
22,
-25,
26,
-38,
-22,
-47,
15,
-17,
-17,
-60,
14,
57,
36,
-5,
56,
22,
-16,
37,
-2,
3,
-92,
28,
-38,
-19,
43,
2,
13,
-22,
20,
-19,
8,
-64,
-10,
-13,
11,
13,
127,
-8,
-49,
79,
-16,
-46,
26,
26,
74,
45,
35,
-6,
37,
-8,
-35,
-23,
-47,
-18,
44,
42,
50,
51,
-7,
-37,
37,
-30,
-18,
-21,
24,
36,
27,
0,
-37,
60,
9,
-1,
-5,
57,
-57,
16,
35,
-42,
-29,
-55,
35,
84,
9,
61,
13,
-19,
32,
-24,
14,
36,
35,
-17,
101,
2,
15,
-10,
-61,
-43,
-31,
-14,
-26,
18,
-73,
1,
0,
-16,
-21,
-87,
60,
8,
-8,
-36,
-4,
-23,
36,
4,
3,
30,
-3,
-53,
-74,
18,
0,
3,
-65,
39,
-25,
34,
8,
-52,
-21,
3,
6,
-9,
-89,
59,
-1,
-1,
-25,
27,
-46,
29,
-4,
21,
-35,
-38,
-49,
28,
-31,
0,
-23,
-7,
-3,
16,
-2,
16,
-13,
-6,
18,
69,
23,
30,
0,
10,
-68,
-18,
-42,
23,
-27,
-58,
-17,
5,
-25,
12,
-23,
2,
-25,
-17,
-76,
44,
-13,
99,
67,
16,
-16,
35,
60,
-25,
39,
14,
-35,
2,
34,
16,
8,
-84,
-37,
-16,
26,
23,
38,
2,
-37,
-35,
-13,
-42,
-48,
14,
-32,
-20,
0,
-7,
18,
-7,
-16,
2,
15,
-33,
-62,
19,
-51,
-32,
24,
-4,
-4,
27,
9,
-33,
-41,
-48,
18,
2,
-31,
-37,
19,
45,
4,
0,
30,
-20,
6,
0,
-30,
-8,
6,
-50,
-14,
-8,
-20,
95,
-42,
-71,
-17,
4,
-53,
13,
9,
19,
-7,
-61,
28,
-4,
-21,
50,
-62,
79,
-30,
-17,
17,
21,
-59,
22,
65,
2,
-25,
-3,
85,
-48,
18,
-3,
30,
43,
-21,
-36,
-44,
2,
79,
-78,
17,
-13,
17,
-99,
15,
34,
0,
24,
2,
-69,
-46,
9,
-8,
-61,
57,
6,
32,
-6,
1,
62,
56,
-11,
-40,
-11,
8,
-37,
-21,
24,
6,
11,
26,
70,
7,
-36,
48,
90,
-14,
23,
-52,
30,
18,
34,
-71,
-24,
63,
22,
-33,
51,
26,
37,
3,
-16,
-41,
-26,
-30,
13,
13,
0,
-19,
-6,
16,
-2,
30,
30,
28,
9,
19,
52,
-11,
-58,
-12,
39,
-44,
-43,
-43,
28,
-60,
4,
24,
-37,
-23,
7,
75,
-15,
-34,
-51,
-18,
14,
0,
5,
-39,
1,
63,
-18,
-44,
-59,
49,
-41,
-53,
3,
66,
13,
37,
-10,
6,
-21,
-37,
-31,
37,
23,
14,
23,
20,
30,
-92,
-31,
-56,
3,
-38,
-24,
66,
-2,
17,
2,
0,
-71,
-62,
15,
88,
2,
34,
14,
-37,
-39,
-66,
-7,
82,
9,
9,
80,
21,
-4,
47,
67,
-25,
10,
-18,
31,
-39,
-9,
68,
-28,
-31,
8
] |
Leave to appeal denied at 498 Mich 884. | [
0,
-19,
-59,
-25,
20,
56,
6,
41,
-53,
25,
-16,
5,
7,
-43,
28,
49,
79,
35,
-2,
14,
-21,
7,
11,
42,
-23,
-78,
55,
8,
-33,
-67,
-9,
-52,
-48,
-59,
-1,
-21,
-21,
1,
-1,
5,
-41,
-31,
-15,
12,
-19,
-58,
8,
39,
-22,
16,
-52,
34,
-72,
27,
-19,
42,
53,
-42,
-43,
56,
-25,
48,
35,
35,
31,
-3,
-47,
1,
27,
-17,
-23,
11,
15,
11,
-1,
27,
29,
73,
29,
55,
15,
8,
0,
20,
46,
39,
10,
62,
-17,
-9,
-10,
-42,
-43,
34,
-49,
57,
-5,
-49,
49,
-70,
2,
43,
25,
-53,
1,
-24,
10,
74,
-56,
1,
23,
-20,
-27,
-36,
16,
-9,
-17,
8,
48,
-3,
-18,
39,
28,
46,
53,
-4,
39,
-11,
0,
-51,
-4,
69,
90,
45,
-7,
-10,
66,
-87,
-47,
-59,
-38,
97,
45,
-37,
-18,
-63,
33,
-33,
22,
-49,
-3,
-4,
0,
13,
-16,
48,
19,
-18,
48,
9,
43,
40,
-73,
26,
63,
-31,
29,
32,
48,
36,
24,
-14,
20,
-37,
-28,
4,
4,
36,
-27,
3,
-41,
25,
-11,
26,
-1,
-67,
42,
-42,
-12,
-86,
-42,
-51,
83,
30,
33,
24,
12,
12,
-16,
22,
-16,
29,
-28,
29,
40,
-70,
-24,
-32,
50,
32,
-43,
9,
-26,
-10,
38,
-10,
-25,
15,
52,
6,
43,
40,
-26,
-35,
-16,
51,
-7,
22,
21,
-12,
11,
26,
0,
-6,
38,
-37,
2,
19,
49,
-53,
-71,
-24,
-22,
53,
-13,
-30,
-68,
-18,
42,
-38,
43,
-1,
9,
-99,
-51,
-34,
-17,
1,
-14,
3,
14,
-1,
42,
26,
-35,
29,
-43,
12,
28,
-56,
22,
28,
-17,
-70,
22,
9,
8,
17,
66,
-5,
-22,
5,
1,
-2,
-55,
61,
15,
-17,
-18,
21,
15,
-9,
12,
48,
4,
-31,
-39,
13,
-15,
7,
15,
52,
-37,
30,
46,
-44,
-41,
-54,
97,
0,
19,
-21,
0,
37,
9,
-57,
-1,
-74,
-28,
-23,
5,
10,
-24,
75,
-42,
65,
-24,
60,
23,
23,
13,
22,
-61,
83,
-17,
47,
-25,
-65,
-24,
31,
-5,
56,
-6,
32,
-12,
-8,
-103,
-10,
88,
32,
28,
30,
-30,
-52,
9,
83,
-24,
-42,
-55,
51,
6,
-78,
-1,
50,
-4,
-38,
8,
58,
11,
29,
-66,
-7,
39,
8,
34,
39,
-23,
-47,
0,
-45,
-22,
-37,
-22,
12,
31,
16,
30,
26,
26,
75,
-26,
-60,
-34,
-28,
33,
-13,
29,
70,
18,
27,
-77,
-47,
-91,
83,
-26,
-8,
19,
24,
-22,
53,
-2,
22,
10,
15,
-51,
2,
69,
-19,
-16,
3,
-30,
-62,
-53,
9,
-47,
-2,
-50,
2,
13,
51,
0,
-38,
18,
-48,
-21,
25,
8,
-14,
-14,
32,
-49,
-29,
24,
-99,
-11,
-71,
-9,
-8,
-97,
-43,
-6,
21,
17,
-41,
-47,
-53,
-32,
82,
16,
9,
-50,
-43,
-63,
59,
-8,
-16,
-58,
47,
19,
-35,
6,
16,
-39,
-28,
39,
-50,
-25,
-52,
-24,
-20,
5,
-25,
-4,
13,
29,
30,
3,
-9,
-31,
-4,
-19,
68,
35,
26,
-19,
51,
26,
-9,
29,
4,
-49,
-6,
-14,
4,
14,
-35,
-1,
-30,
10,
0,
14,
-12,
-15,
52,
-44,
72,
-25,
14,
5,
-33,
-30,
-4,
23,
-16,
27,
0,
-53,
-20,
0,
67,
-23,
-10,
14,
27,
3,
-62,
54,
21,
-91,
71,
36,
-42,
-31,
-22,
9,
34,
-66,
-52,
-24,
6,
12,
-23,
-81,
-6,
-8,
-54,
-5,
-6,
26,
-16,
-10,
-14,
-8,
17,
-35,
-39,
-14,
28,
14,
43,
56,
20,
5,
5,
46,
-3,
32,
0,
1,
-9,
-38,
1,
23,
-38,
-13,
-60,
-64,
-7,
-14,
-1,
-35,
-4,
-21,
-60,
33,
7,
0,
7,
-6,
98,
-49,
8,
6,
10,
1,
14,
-9,
1,
25,
4,
-23,
51,
4,
-24,
-28,
-3,
7,
16,
27,
4,
84,
40,
-4,
-35,
-33,
-3,
1,
10,
43,
28,
-8,
71,
3,
-22,
27,
35,
24,
14,
-10,
64,
12,
-10,
-22,
9,
10,
-24,
22,
-70,
-4,
-16,
-29,
40,
-25,
-32,
19,
36,
-6,
-53,
43,
-28,
-22,
63,
-3,
39,
-56,
-61,
11,
17,
87,
49,
-32,
70,
16,
0,
-9,
-17,
10,
-1,
-12,
64,
-27,
-35,
-6,
25,
-5,
-48,
16,
15,
15,
35,
51,
51,
49,
-14,
-28,
-14,
-4,
70,
-21,
8,
9,
17,
22,
-28,
-12,
51,
-16,
-54,
-25,
9,
-55,
-10,
53,
-2,
91,
26,
-37,
-46,
-2,
-7,
1,
-29,
-75,
-17,
31,
45,
23,
-20,
52,
20,
0,
-21,
24,
-44,
-38,
-1,
-5,
12,
29,
18,
-26,
-23,
11,
-48,
-4,
4,
56,
-40,
-3,
-62,
-8,
0,
-18,
80,
-54,
-13,
-14,
39,
18,
44,
20,
-51,
-43,
15,
14,
-19,
2,
8,
48,
30,
29,
-36,
28,
-34,
-1,
-17,
-19,
-1,
41,
-9,
35,
-6,
-62,
35,
48,
24,
-84,
-33,
-32,
-40,
18,
-53,
-8,
-13,
24,
18,
22,
-45,
29,
3,
-9,
0,
12,
25,
37,
-20,
-54,
21,
-10,
-24,
33,
-8,
-57,
11,
55,
-16,
53,
72,
-4,
-8,
32,
49,
-21,
-5,
0,
-44,
12,
51,
54,
27,
2,
36,
67,
15,
-57,
-75,
5,
-46,
65,
6,
0,
-27,
-16,
-50,
-34,
-21,
14,
-15,
11,
-47,
-36,
-38,
-16,
25,
9,
22,
-23,
33,
33,
24,
37,
29,
0,
47,
-26,
6,
35,
-48,
32,
28,
-18,
-89,
23,
5,
-34,
44,
-22,
-46,
-11,
36,
9,
-42,
42,
-44,
78,
2,
19,
39,
2,
28,
48,
0,
-47,
23,
27,
17,
-4,
38,
-36,
-19,
23,
-66,
-14,
-20,
23,
-15,
24,
-2,
18,
-9,
-79,
8,
-16,
-46,
34,
-79,
-106,
40,
-43,
4,
2,
-14,
-28,
-23,
8,
-35,
-6,
6,
10,
-85,
44,
-48,
-27,
-16,
-8,
-21,
-2,
-86,
-3,
-14,
5,
89,
-47,
-7,
-3,
20,
-74,
27,
16,
13,
16,
-35,
68,
-28,
10,
28,
-24,
-15,
-62,
-2,
11,
17,
19,
64,
-23,
-3,
-10,
24,
0,
37,
-4,
7,
1,
1,
-65,
12,
-48,
-7,
52,
-23,
-11,
-56,
53,
-35,
-20,
-45,
-13,
52,
-11,
-9,
-13,
7,
26,
-25,
41,
6,
-36,
44,
4,
76,
95,
26,
18,
-31,
3,
43,
19,
-44,
31,
15,
36,
26,
27,
39,
21,
-41,
23,
12,
-35,
97,
17,
-34,
-31,
-40
] |
On order of the Court, leave to appeal having been granted and the briefs and oral arguments of the parties having been considered by the Court, we vacate our order of December 12, 2014. The application for leave to appeal the February 20, 2014 judgment of the Court of Appeals is denied, because we are no longer persuaded that the questions presented should be reviewed by this Court. | [
-49,
-29,
-46,
-8,
43,
21,
11,
49,
3,
19,
15,
-4,
35,
-51,
-35,
12,
19,
5,
5,
53,
-60,
39,
27,
4,
3,
-26,
39,
-13,
-12,
-15,
1,
-62,
-11,
-46,
-7,
-13,
-50,
38,
3,
-25,
-6,
40,
7,
12,
-53,
-39,
17,
-30,
-54,
71,
16,
-12,
-54,
5,
50,
52,
-15,
-2,
-18,
25,
-16,
64,
-16,
99,
19,
51,
-30,
-34,
-19,
-8,
-57,
-34,
4,
6,
-10,
-30,
-38,
18,
-1,
71,
43,
-3,
25,
23,
36,
40,
52,
25,
15,
39,
-35,
7,
-44,
-10,
-59,
51,
-55,
-14,
62,
-61,
-35,
-13,
-2,
4,
-59,
-58,
-1,
50,
7,
-50,
37,
-22,
11,
-33,
-2,
31,
-32,
-24,
16,
-49,
21,
86,
29,
-2,
68,
-23,
72,
-27,
8,
-25,
-45,
35,
-22,
-23,
13,
-15,
71,
-66,
-52,
-65,
21,
57,
24,
-33,
30,
12,
0,
-5,
8,
-1,
39,
38,
-4,
51,
-30,
58,
42,
-5,
40,
-53,
-20,
28,
-44,
-3,
53,
4,
17,
34,
30,
38,
75,
11,
32,
9,
-48,
17,
-5,
27,
-10,
11,
-37,
16,
13,
21,
24,
-24,
-76,
36,
-10,
-53,
-46,
9,
54,
6,
29,
8,
29,
59,
46,
11,
-40,
29,
-37,
-26,
-3,
-49,
-14,
-29,
14,
-2,
-70,
56,
10,
-40,
21,
-19,
18,
-10,
-5,
-4,
36,
26,
-17,
-51,
-30,
31,
36,
9,
-14,
11,
-11,
53,
-9,
26,
51,
78,
24,
2,
40,
-37,
-19,
25,
5,
0,
-43,
-30,
-11,
31,
75,
2,
33,
8,
31,
9,
-12,
-56,
-53,
-5,
-34,
-4,
-14,
29,
11,
-14,
12,
15,
4,
-30,
16,
-19,
-15,
-33,
-31,
-32,
37,
33,
-10,
-28,
-19,
1,
-27,
25,
-51,
12,
-49,
11,
66,
-16,
43,
6,
-57,
12,
6,
47,
40,
-41,
-20,
67,
-51,
-80,
1,
-19,
-2,
53,
11,
31,
-14,
-20,
62,
-21,
62,
3,
14,
23,
62,
-33,
10,
3,
-49,
32,
-32,
4,
19,
-9,
-20,
-13,
-11,
-35,
45,
6,
-57,
-35,
-39,
40,
49,
37,
-9,
38,
-22,
36,
7,
1,
-27,
-33,
2,
-9,
-24,
35,
32,
52,
37,
52,
1,
-6,
4,
14,
-82,
-59,
-62,
20,
25,
-53,
16,
-7,
49,
14,
30,
20,
-17,
-10,
-41,
-20,
9,
-50,
-8,
26,
-7,
-44,
-19,
-11,
-28,
-68,
-3,
-13,
-8,
-6,
-27,
52,
23,
29,
21,
-29,
-15,
2,
34,
13,
-7,
17,
48,
-6,
10,
4,
-45,
49,
-41,
-26,
-56,
-37,
12,
29,
56,
62,
32,
37,
-52,
0,
-20,
60,
58,
3,
-14,
-25,
-30,
55,
-6,
-2,
25,
-47,
47,
36,
-68,
-16,
-28,
-54,
-57,
69,
39,
-77,
-14,
-4,
-7,
13,
5,
42,
-8,
-52,
-42,
-10,
-56,
26,
-29,
-10,
24,
-39,
9,
-60,
51,
35,
5,
-4,
-1,
-26,
-44,
-3,
-8,
-13,
-81,
-29,
-22,
5,
15,
34,
30,
1,
-56,
6,
10,
3,
19,
-31,
28,
18,
7,
34,
15,
11,
25,
21,
24,
15,
-19,
57,
-2,
-2,
-23,
24,
-6,
-61,
-5,
53,
-60,
8,
8,
15,
56,
-48,
0,
-17,
81,
0,
15,
14,
19,
-38,
-30,
14,
15,
-21,
-10,
4,
1,
8,
9,
-30,
-36,
23,
-43,
-54,
-10,
16,
-6,
37,
23,
3,
-16,
-9,
8,
-31,
11,
35,
-56,
-3,
-16,
-7,
7,
33,
-36,
-29,
35,
23,
54,
23,
-50,
10,
-40,
-31,
29,
-2,
19,
-28,
-11,
35,
2,
-8,
-29,
-13,
-46,
32,
-29,
58,
46,
3,
-36,
70,
19,
22,
-21,
5,
5,
-14,
-10,
1,
-38,
17,
37,
-56,
-8,
-13,
-28,
-3,
-90,
-8,
5,
-16,
3,
-1,
3,
9,
1,
39,
-51,
57,
-17,
6,
-20,
28,
-2,
25,
-19,
18,
31,
-8,
-33,
-22,
-85,
-31,
-8,
91,
79,
16,
-13,
-12,
-4,
30,
-38,
-36,
27,
37,
10,
38,
1,
44,
72,
-33,
38,
59,
53,
24,
-2,
-19,
52,
28,
37,
-22,
-25,
23,
-60,
-20,
-17,
21,
12,
51,
-5,
-31,
37,
30,
6,
8,
16,
28,
-5,
-19,
-47,
-12,
-47,
-32,
-49,
64,
45,
3,
-24,
35,
-3,
27,
-16,
14,
69,
12,
-37,
39,
-37,
-42,
-25,
-17,
-89,
-14,
4,
38,
28,
-10,
16,
9,
58,
14,
-25,
-46,
-29,
88,
43,
-44,
-31,
1,
73,
15,
35,
20,
-52,
1,
46,
-1,
-41,
70,
0,
44,
49,
-21,
-18,
-26,
9,
-4,
42,
12,
33,
7,
-32,
15,
1,
-27,
33,
35,
-22,
16,
36,
-46,
-32,
-2,
21,
1,
68,
-3,
-42,
-12,
35,
-9,
30,
44,
8,
-18,
-38,
-51,
46,
-54,
-34,
20,
3,
-45,
-18,
-45,
-2,
-31,
43,
-49,
-3,
36,
-8,
37,
44,
27,
11,
44,
-3,
-48,
49,
-12,
-1,
5,
12,
4,
23,
53,
-34,
-90,
-42,
-8,
36,
-38,
-41,
-2,
-17,
-52,
6,
-47,
-49,
2,
21,
-5,
19,
-51,
46,
-16,
-21,
-17,
5,
36,
-15,
0,
-21,
31,
4,
-37,
-6,
-12,
-14,
-24,
7,
-54,
20,
10,
12,
-36,
27,
0,
-24,
56,
20,
-5,
2,
28,
12,
14,
-8,
-69,
50,
22,
-31,
-56,
-3,
5,
72,
0,
-34,
6,
-7,
-19,
-5,
4,
-4,
19,
-43,
-14,
7,
-16,
-7,
45,
-28,
-13,
-14,
-45,
8,
21,
25,
27,
27,
-7,
-17,
7,
27,
0,
29,
13,
32,
-61,
16,
30,
-20,
17,
10,
-23,
-12,
-12,
-20,
-29,
3,
-49,
15,
17,
-21,
-32,
-63,
11,
51,
-14,
-4,
21,
4,
8,
30,
-5,
-56,
25,
-43,
-33,
26,
-38,
20,
2,
7,
-5,
30,
32,
-10,
0,
-21,
-77,
116,
15,
-44,
-30,
5,
-60,
13,
8,
0,
-79,
5,
-32,
-31,
-32,
3,
-82,
57,
52,
28,
-27,
-10,
-23,
-26,
-42,
-5,
58,
-5,
-32,
-26,
-32,
-16,
20,
-56,
0,
42,
-14,
21,
-18,
-20,
-11,
38,
-8,
-5,
-16,
-80,
14,
-40,
-29,
7,
4,
25,
63,
-18,
35,
0,
9,
-2,
21,
44,
0,
-59,
-5,
4,
-49,
-6,
20,
12,
-63,
-28,
-50,
-4,
26,
-70,
-20,
-35,
-56,
19,
-41,
26,
-51,
-13,
39,
-70,
-5,
15,
58,
31,
1,
2,
-90,
0,
30,
-8,
-26,
-32,
59,
23,
-24,
17,
24,
29,
-28,
-3,
-20,
0,
18,
-19,
-8,
-20,
-8
] |
Leave to appeal denied at 497 Mich 971. | [
29,
-12,
-29,
-11,
8,
49,
23,
50,
-35,
30,
-31,
11,
12,
-46,
33,
36,
66,
15,
-11,
4,
-33,
-8,
-2,
41,
-49,
-74,
40,
23,
-32,
-59,
-14,
-56,
-31,
-61,
-30,
-17,
-26,
-1,
-1,
8,
-38,
-31,
0,
12,
-15,
-53,
2,
0,
-42,
18,
-65,
25,
-77,
23,
17,
37,
37,
-41,
4,
52,
-37,
54,
28,
54,
12,
-2,
-48,
-6,
23,
-16,
-11,
43,
-4,
30,
2,
15,
38,
63,
25,
81,
29,
16,
16,
1,
32,
37,
7,
55,
-3,
13,
14,
-59,
-38,
46,
-42,
72,
0,
-40,
19,
-52,
-9,
49,
13,
-55,
-25,
-40,
28,
59,
-33,
10,
9,
-22,
-12,
-33,
2,
-24,
-39,
6,
48,
-13,
-30,
40,
24,
43,
50,
-6,
40,
-19,
-21,
-61,
10,
39,
77,
72,
-17,
-13,
61,
-99,
-26,
-78,
-17,
113,
30,
-33,
-32,
-76,
48,
-29,
16,
-41,
4,
15,
-4,
14,
-22,
33,
23,
-10,
49,
14,
22,
33,
-52,
8,
62,
-17,
28,
42,
34,
18,
24,
37,
7,
-70,
-33,
11,
0,
55,
-31,
-4,
-26,
2,
-8,
38,
-23,
-72,
27,
-43,
30,
-76,
-41,
-44,
85,
28,
17,
25,
22,
26,
-26,
17,
-24,
51,
-49,
26,
49,
-57,
8,
-47,
10,
15,
-44,
-8,
-15,
-13,
38,
-45,
-35,
27,
35,
-9,
55,
29,
-7,
8,
-19,
48,
-16,
34,
4,
-16,
11,
26,
3,
-17,
29,
-58,
11,
19,
57,
-60,
-82,
-25,
-15,
68,
0,
-24,
-66,
-16,
73,
-47,
69,
4,
30,
-97,
-50,
-51,
-58,
18,
-3,
-11,
25,
17,
13,
15,
-19,
31,
-27,
37,
22,
-83,
38,
34,
5,
-86,
19,
6,
5,
21,
65,
14,
-42,
11,
11,
-9,
-71,
47,
14,
-16,
-34,
21,
-13,
-1,
8,
67,
0,
-39,
-18,
31,
-13,
31,
16,
30,
-45,
13,
31,
-32,
-66,
-71,
77,
45,
12,
-8,
-13,
49,
17,
-46,
-2,
-104,
-23,
-2,
14,
-4,
-37,
67,
-18,
81,
-12,
43,
5,
14,
-4,
28,
-47,
79,
-39,
52,
0,
-77,
-35,
36,
5,
39,
-9,
35,
-5,
-12,
-93,
-16,
83,
21,
33,
55,
-21,
-39,
7,
62,
-36,
-41,
-40,
32,
9,
-65,
-1,
61,
-11,
-26,
3,
28,
1,
38,
-66,
-16,
36,
0,
20,
52,
-53,
-33,
-14,
-23,
8,
-15,
-20,
25,
43,
35,
19,
27,
32,
68,
0,
-81,
-35,
-29,
23,
-17,
25,
59,
19,
37,
-39,
-42,
-76,
82,
-14,
-10,
21,
3,
-29,
63,
-3,
38,
25,
26,
-62,
6,
85,
-32,
-22,
5,
-21,
-54,
-48,
6,
-34,
12,
-36,
31,
5,
78,
-9,
-30,
20,
-27,
-16,
14,
10,
-15,
-7,
12,
-57,
-33,
9,
-85,
7,
-74,
-53,
-11,
-102,
-41,
-11,
9,
0,
-39,
-61,
-50,
-67,
71,
11,
3,
-50,
-46,
-56,
52,
-9,
5,
-57,
37,
15,
-45,
-14,
5,
-48,
-16,
17,
-17,
-24,
-43,
-5,
-1,
12,
-31,
-17,
0,
30,
7,
-5,
2,
-35,
2,
-26,
84,
42,
31,
-19,
49,
17,
-11,
16,
-16,
-36,
-19,
8,
14,
8,
-34,
10,
-33,
-17,
0,
3,
-16,
10,
40,
-46,
56,
-38,
8,
-2,
-28,
-19,
10,
21,
1,
43,
-8,
-80,
-24,
32,
103,
-20,
-5,
39,
59,
8,
-69,
38,
26,
-75,
68,
33,
-38,
-35,
16,
19,
48,
-36,
-61,
-17,
14,
28,
-20,
-84,
-9,
-20,
-35,
18,
0,
9,
-22,
-9,
-24,
27,
25,
-37,
-39,
-25,
45,
3,
64,
72,
25,
0,
2,
40,
11,
36,
-5,
-4,
-7,
-29,
11,
42,
-33,
-17,
-64,
-74,
-15,
-16,
-10,
-27,
-15,
-12,
-81,
0,
29,
3,
8,
-1,
77,
-54,
2,
-17,
29,
0,
41,
-12,
8,
43,
3,
-20,
33,
12,
-19,
-40,
9,
4,
12,
19,
-5,
61,
44,
1,
-45,
-60,
-19,
8,
3,
44,
19,
1,
70,
25,
-49,
10,
36,
13,
3,
-12,
55,
10,
10,
-17,
18,
21,
-26,
3,
-67,
-6,
-12,
-32,
43,
-27,
-11,
6,
35,
-8,
-47,
20,
-13,
-33,
59,
-23,
37,
-62,
-48,
-10,
31,
88,
54,
-35,
47,
20,
-4,
-6,
-30,
6,
-5,
2,
51,
-46,
-21,
-13,
20,
11,
-34,
7,
25,
4,
32,
40,
42,
43,
-4,
-36,
-6,
-13,
47,
-27,
7,
3,
29,
4,
-10,
-16,
29,
-3,
-54,
-9,
-32,
-35,
2,
27,
-6,
103,
16,
-20,
-41,
18,
2,
5,
-29,
-73,
-29,
23,
54,
-5,
-2,
57,
36,
-16,
-7,
15,
-14,
-56,
17,
16,
25,
36,
0,
-29,
-31,
0,
-61,
-15,
-11,
44,
-34,
4,
-53,
19,
-25,
-21,
87,
-37,
-24,
-26,
17,
22,
39,
13,
-61,
-59,
0,
18,
0,
0,
21,
63,
36,
6,
-25,
9,
-10,
7,
-19,
-6,
31,
34,
-15,
25,
-24,
-57,
5,
46,
11,
-56,
-39,
-29,
-47,
16,
-63,
3,
-20,
40,
23,
32,
-28,
24,
3,
-1,
8,
13,
18,
7,
-23,
-60,
30,
-6,
-26,
64,
-3,
-58,
-6,
36,
-31,
66,
70,
-14,
0,
46,
7,
-22,
4,
2,
-26,
6,
59,
10,
17,
5,
34,
91,
1,
-50,
-76,
5,
-54,
57,
13,
-10,
-27,
-23,
-37,
-51,
-6,
0,
-10,
9,
-48,
-44,
-46,
-20,
1,
9,
45,
-10,
25,
32,
13,
60,
37,
-10,
50,
-28,
-17,
48,
-58,
29,
31,
6,
-78,
9,
21,
-32,
37,
1,
-38,
-2,
48,
5,
-26,
36,
-37,
82,
-8,
-7,
20,
-8,
14,
62,
-19,
-63,
27,
9,
9,
19,
29,
-58,
-15,
6,
-71,
-19,
-39,
44,
-18,
31,
-5,
-2,
15,
-62,
3,
-6,
-46,
43,
-70,
-94,
31,
-22,
6,
2,
0,
-35,
-7,
-1,
-21,
-15,
-6,
6,
-74,
34,
-19,
-7,
-18,
-7,
-14,
16,
-99,
2,
1,
17,
68,
-54,
-36,
-11,
12,
-53,
31,
6,
18,
24,
-54,
52,
-20,
10,
25,
-53,
-20,
-55,
-10,
11,
9,
16,
61,
-27,
-7,
-18,
15,
-7,
55,
6,
32,
16,
-11,
-55,
12,
-71,
-11,
58,
-24,
-4,
-55,
63,
-39,
-22,
-58,
-1,
25,
-8,
-20,
-2,
24,
12,
-43,
32,
13,
-30,
28,
5,
86,
105,
33,
18,
-21,
6,
28,
21,
-31,
59,
17,
36,
36,
37,
50,
10,
-26,
-3,
35,
-46,
90,
27,
-13,
-25,
-30
] |
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. We further order that trial court proceedings are stayed pending the completion of this appeal. On motion of a party or on its own motion, the Court of Appeals may modify, set aside, or place conditions on the stay if it appears that the appeal is not being vigorously prosecuted or if other appropriate grounds appear. We do not retain jurisdiction. | [
-8,
-11,
-76,
-29,
16,
22,
-24,
12,
-40,
0,
11,
23,
24,
-72,
10,
-22,
0,
-44,
9,
-7,
-38,
30,
33,
41,
-32,
-58,
3,
-38,
34,
-30,
-3,
30,
-31,
-6,
25,
-30,
66,
4,
-1,
-12,
19,
0,
1,
-2,
-39,
-52,
3,
49,
40,
35,
44,
35,
-52,
1,
-7,
51,
-14,
-11,
-33,
45,
-40,
70,
-26,
43,
67,
33,
-5,
-48,
-24,
-49,
-4,
-2,
-18,
50,
4,
3,
0,
17,
50,
56,
51,
11,
-1,
-51,
27,
12,
50,
-7,
-28,
18,
-20,
11,
-41,
-37,
-40,
25,
5,
-24,
52,
33,
-4,
7,
-6,
-15,
-12,
17,
-33,
27,
-20,
12,
57,
30,
-8,
-10,
-40,
4,
-54,
-13,
-24,
-40,
26,
13,
17,
18,
44,
-40,
-24,
4,
-16,
-32,
-44,
12,
56,
-46,
20,
31,
12,
18,
-2,
-40,
27,
62,
39,
-19,
76,
20,
46,
-27,
-32,
23,
40,
14,
-49,
93,
12,
8,
-1,
-30,
16,
59,
-32,
62,
-38,
-7,
51,
-29,
-7,
22,
5,
-9,
24,
6,
17,
45,
-45,
20,
-29,
32,
-14,
-7,
-77,
59,
-14,
-58,
32,
-2,
-73,
20,
-42,
-56,
-41,
-1,
17,
-24,
27,
11,
20,
8,
-6,
10,
-85,
-16,
-16,
-1,
30,
-51,
-13,
26,
18,
-10,
-44,
20,
-15,
-47,
-17,
-14,
53,
0,
-19,
34,
2,
-2,
21,
6,
-31,
8,
17,
27,
28,
-9,
5,
76,
-20,
55,
-13,
71,
26,
2,
30,
-15,
-4,
-29,
3,
-46,
-8,
34,
2,
43,
-10,
-65,
37,
3,
10,
10,
6,
0,
-33,
12,
-45,
-6,
17,
59,
13,
-2,
-44,
39,
4,
8,
5,
16,
-19,
-5,
11,
-23,
6,
-7,
32,
4,
42,
47,
-15,
32,
-10,
22,
-58,
-12,
-17,
-26,
72,
23,
-46,
17,
18,
25,
25,
-17,
-24,
42,
-1,
-12,
12,
33,
-22,
10,
24,
3,
1,
2,
-2,
-33,
15,
56,
5,
15,
14,
-1,
-13,
15,
9,
-72,
-12,
-7,
24,
-38,
-3,
14,
38,
-72,
6,
17,
20,
-26,
5,
21,
-3,
75,
-8,
57,
-13,
42,
18,
-4,
31,
6,
6,
-2,
-16,
-51,
3,
12,
-6,
-14,
11,
9,
18,
-14,
-54,
-22,
-34,
5,
27,
-26,
1,
-32,
21,
6,
48,
8,
-13,
-29,
-22,
-49,
-5,
-34,
-57,
5,
12,
0,
3,
-12,
-48,
-11,
21,
-16,
-4,
12,
-8,
49,
41,
5,
40,
-11,
0,
-9,
-12,
23,
19,
-12,
52,
-52,
-5,
7,
4,
-6,
-4,
-13,
21,
2,
2,
96,
-29,
67,
-6,
79,
3,
-28,
-17,
44,
-34,
-45,
25,
-51,
-34,
-15,
10,
47,
39,
-31,
52,
-26,
-5,
-46,
-40,
-28,
-64,
28,
-35,
-40,
9,
13,
-63,
-56,
-15,
16,
-48,
-42,
-29,
-9,
-16,
-43,
0,
-36,
45,
-28,
-17,
-42,
1,
29,
3,
-47,
0,
-25,
-29,
35,
9,
-24,
-69,
-7,
1,
55,
-18,
1,
67,
32,
-19,
-36,
-37,
40,
21,
2,
12,
-50,
-29,
6,
11,
8,
-14,
35,
44,
34,
-5,
19,
-15,
38,
-38,
33,
43,
-7,
-31,
33,
-42,
-84,
12,
-18,
60,
-28,
-33,
-50,
62,
-6,
-26,
-23,
-15,
20,
19,
-13,
11,
-2,
18,
-22,
-21,
-22,
-2,
-53,
-32,
15,
-73,
-7,
35,
10,
-5,
-34,
14,
-18,
-18,
-49,
-38,
-24,
-6,
-12,
-4,
1,
-28,
22,
38,
14,
7,
26,
17,
58,
11,
6,
-23,
25,
-12,
-46,
-50,
9,
37,
-41,
25,
-32,
-15,
24,
-20,
0,
-13,
-17,
16,
49,
97,
15,
54,
53,
5,
-4,
28,
12,
14,
0,
-13,
8,
1,
-39,
18,
-23,
-33,
5,
-10,
-20,
-12,
19,
22,
-17,
-23,
30,
22,
-24,
-9,
58,
-14,
38,
-35,
11,
17,
32,
27,
26,
29,
-22,
23,
1,
-14,
-24,
-25,
-47,
22,
12,
-30,
51,
-13,
-54,
-34,
1,
-22,
-43,
15,
11,
-8,
-13,
-16,
47,
45,
-37,
-62,
16,
0,
18,
-9,
18,
10,
32,
31,
-37,
-17,
-17,
30,
-41,
-40,
1,
59,
63,
-4,
-14,
61,
-25,
-10,
5,
69,
-20,
-5,
-42,
-22,
-2,
2,
-7,
-31,
-1,
25,
-2,
10,
30,
7,
58,
-22,
-25,
-17,
-37,
-37,
-20,
-35,
-28,
13,
-36,
5,
-4,
-13,
-11,
-9,
36,
20,
34,
24,
-1,
-6,
-1,
0,
37,
18,
-50,
14,
9,
72,
14,
-9,
-11,
-14,
-14,
34,
-8,
-27,
98,
-3,
-22,
24,
-20,
-32,
-44,
28,
14,
69,
-13,
5,
12,
-10,
86,
-30,
4,
39,
-59,
10,
-14,
10,
-16,
-24,
-38,
-22,
-18,
-2,
0,
-8,
-12,
-7,
-3,
9,
91,
60,
10,
-20,
8,
4,
5,
24,
14,
-38,
12,
21,
-63,
-54,
8,
56,
18,
3,
3,
-20,
-57,
46,
26,
-6,
-3,
-4,
-12,
81,
-18,
-3,
-8,
-38,
12,
17,
-22,
36,
-19,
0,
7,
-16,
-16,
-45,
-80,
-76,
-20,
43,
-22,
-6,
30,
50,
-5,
11,
-32,
18,
32,
17,
8,
2,
56,
-16,
29,
19,
33,
19,
-38,
50,
-8,
-17,
48,
-23,
-26,
2,
6,
9,
-49,
34,
14,
-17,
-22,
-1,
-11,
39,
-5,
15,
11,
-1,
-28,
48,
18,
0,
-44,
18,
-6,
-17,
-47,
-32,
-11,
-20,
-4,
-7,
58,
-59,
23,
10,
44,
11,
45,
-62,
-12,
-22,
0,
-26,
20,
4,
12,
12,
64,
40,
-14,
6,
34,
-14,
1,
14,
-8,
53,
-79,
3,
74,
-8,
4,
-9,
-2,
-7,
25,
35,
-40,
47,
-61,
4,
-20,
-2,
-4,
-59,
22,
27,
2,
-9,
46,
31,
50,
-32,
4,
-15,
16,
-13,
-23,
20,
16,
55,
-68,
-5,
-32,
-11,
16,
-22,
45,
-16,
-14,
84,
-10,
-48,
-22,
27,
-20,
-13,
0,
-38,
-42,
-16,
-40,
-10,
-43,
33,
-21,
3,
-1,
-45,
-16,
78,
-22,
-10,
-37,
-53,
5,
-17,
28,
-47,
23,
-30,
42,
-5,
29,
-7,
-19,
-46,
-30,
24,
7,
-27,
-9,
-5,
-14,
-10,
16,
-85,
-31,
35,
-18,
32,
16,
-80,
0,
-51,
-42,
0,
-14,
40,
-21,
25,
17,
-2,
-30,
8,
17,
-36,
-21,
-20,
-62,
-34,
3,
-52,
-38,
-18,
-28,
40,
-62,
43,
-21,
-26,
29,
-16,
-42,
-1,
18,
10,
56,
10,
-48,
25,
-23,
-8,
11,
-26,
17,
7,
-3,
57,
-15,
-45,
18,
0,
8,
-45,
56,
17,
-15,
-27,
-4
] |
reported below: 304 Mich App 1. By order of June 20, 2014, the applica tions for leave to appeal the January 30, 2014 judgment of the Court of Appeals were held in abeyance pending the decision in Krusac v Covenant Medical Center, Inc (Docket No. 149270). On order of the Court, the case having been decided on April 21, 2015, 497 Mich 251 (2015), the applications are again considered. In Krusac, we overruled that part of the Court of Appeals opinion in this case (Harrison v Munson Healthcare, Inc), in which the court held that factual information recorded on the first page of the incident report was not immune from disclosure as material protected pursuant to MCL 333.21515. In light of our decision in Krusac, we vacate the remainder of the Court of Appeals opinion. In addition, we vacate the April 8, 2011 Decision and Order Regarding Motion for Sanctions of the Grand Traverse Circuit Court, and we remand this case to the circuit court for further proceedings. The circuit court erroneously relied on Centennial Healthcare Mgt Corp v Dep’t of Consumer & Industry Services, 254 Mich App 275 (2002), to conclude that the facts recorded in the incident report should not have been kept from the jury. Because it is unclear from the circuit court’s Decision and Order Regarding Motion for Sanctions whether this conclusion was central to its decision to sanction defendant Hospital and its counsel, we remand for reconsideration of the sanctions award. If it chooses to again impose sanctions, the court shall explain why the specific facts on which it relies to conclude that defendant Hospital and its counsel were precluded from arguing that the Bovie was inadvertently or accidentally unholstered justify its sanctions award. We do not retain jurisdiction. | [
7,
-32,
-33,
-1,
-39,
24,
4,
-59,
-27,
42,
-5,
-26,
26,
-28,
-55,
-29,
-8,
-2,
-29,
28,
0,
3,
6,
69,
-37,
-19,
-10,
-11,
9,
-54,
-25,
27,
-19,
-13,
3,
-16,
32,
11,
16,
14,
5,
8,
-6,
-23,
-42,
-23,
26,
7,
40,
-4,
36,
55,
-66,
19,
-8,
38,
27,
-11,
40,
5,
-53,
34,
52,
-4,
60,
41,
9,
-4,
-21,
-7,
-1,
5,
-12,
0,
-16,
20,
-35,
33,
32,
9,
-9,
11,
12,
5,
-15,
-6,
48,
-6,
21,
6,
-1,
-87,
-26,
-63,
-18,
23,
-21,
-10,
5,
-21,
-24,
41,
-13,
29,
-15,
-4,
45,
1,
15,
-11,
-23,
-23,
-49,
-42,
-22,
-14,
14,
30,
27,
10,
-15,
1,
24,
-33,
25,
14,
79,
-33,
-7,
4,
-16,
-17,
-18,
11,
-11,
13,
48,
-69,
22,
1,
-6,
-1,
43,
9,
20,
46,
-8,
-35,
16,
-10,
-17,
47,
54,
41,
-6,
22,
-37,
-14,
4,
18,
-4,
34,
13,
8,
3,
2,
-27,
46,
-27,
-21,
57,
18,
47,
-45,
-48,
22,
24,
38,
-48,
33,
-67,
-22,
13,
-28,
1,
-22,
11,
-26,
-17,
-24,
0,
-18,
-6,
90,
12,
-19,
-11,
65,
48,
-11,
-21,
17,
17,
28,
2,
-6,
17,
-37,
21,
-20,
-3,
-32,
-29,
-46,
18,
-52,
19,
-5,
-18,
4,
-12,
13,
7,
-27,
-36,
9,
19,
0,
-26,
-51,
13,
20,
20,
43,
24,
30,
-14,
19,
49,
-25,
6,
24,
-25,
-16,
15,
11,
-3,
1,
18,
-14,
56,
-19,
-14,
-21,
-68,
-54,
-18,
4,
-54,
24,
-33,
4,
-28,
88,
21,
41,
-20,
0,
6,
-44,
-31,
3,
13,
-88,
-13,
-44,
-27,
-2,
37,
11,
-32,
2,
39,
0,
-49,
17,
-14,
56,
-26,
23,
16,
16,
-46,
-1,
26,
-47,
30,
-24,
-52,
-19,
10,
18,
9,
22,
-19,
41,
-21,
34,
0,
29,
45,
-1,
0,
-9,
8,
-8,
-4,
-30,
47,
-14,
4,
21,
-30,
14,
-63,
-61,
13,
-82,
-5,
-12,
-51,
9,
-27,
53,
22,
-19,
16,
4,
21,
1,
54,
-20,
2,
-35,
-39,
32,
-2,
0,
4,
-10,
-13,
42,
14,
38,
-16,
36,
-37,
0,
-37,
23,
34,
2,
-60,
-1,
-20,
-7,
-24,
4,
3,
75,
-38,
-27,
21,
-3,
-23,
22,
-10,
-40,
39,
42,
-14,
-12,
9,
-22,
3,
1,
-25,
68,
24,
41,
12,
-44,
31,
19,
-35,
1,
-17,
34,
22,
-38,
30,
7,
12,
38,
12,
-20,
11,
-21,
0,
7,
21,
-2,
16,
8,
-11,
-2,
-25,
0,
28,
-54,
31,
29,
-30,
-57,
-2,
-32,
46,
19,
12,
42,
-16,
10,
27,
-55,
-27,
45,
-16,
-9,
-8,
-22,
-27,
12,
-70,
-31,
-11,
-56,
10,
5,
5,
20,
14,
50,
9,
-46,
-36,
16,
-44,
23,
-29,
-20,
55,
-67,
-8,
-39,
23,
23,
-1,
-30,
28,
-2,
-22,
4,
-43,
42,
19,
-10,
-7,
32,
-47,
-5,
28,
25,
-7,
-11,
-33,
47,
-6,
74,
-1,
28,
0,
-10,
-36,
8,
-19,
7,
-15,
9,
-17,
13,
-62,
-31,
7,
4,
58,
-22,
27,
-40,
18,
-3,
-9,
18,
6,
19,
-52,
24,
30,
-33,
4,
-13,
-1,
30,
-6,
-35,
-15,
-25,
-11,
-35,
36,
21,
16,
-4,
70,
-24,
-16,
-23,
1,
2,
0,
19,
6,
2,
6,
-5,
28,
-57,
-13,
-26,
50,
-49,
-21,
4,
-23,
-12,
-4,
-29,
43,
26,
-6,
-10,
-12,
35,
19,
0,
-19,
10,
-68,
-22,
41,
59,
60,
57,
-2,
0,
5,
65,
-13,
33,
-24,
-3,
13,
10,
38,
-9,
-2,
-33,
-6,
-43,
-1,
-51,
-28,
-23,
3,
-1,
51,
38,
7,
-25,
-5,
52,
14,
17,
-41,
4,
5,
5,
29,
52,
48,
-50,
5,
-14,
-35,
-14,
-72,
-6,
0,
-3,
0,
49,
-58,
-5,
4,
33,
-5,
29,
54,
30,
-20,
-15,
10,
58,
25,
-69,
-10,
24,
0,
24,
-5,
-3,
12,
63,
29,
5,
-6,
-43,
59,
-66,
-16,
26,
-40,
48,
0,
-11,
-4,
12,
49,
45,
14,
8,
6,
22,
-39,
40,
-29,
-25,
25,
-7,
99,
15,
25,
56,
-13,
-7,
41,
-30,
-4,
-15,
55,
15,
-81,
7,
-26,
8,
-31,
-51,
21,
37,
-1,
15,
-31,
55,
11,
-1,
14,
-39,
-13,
67,
49,
8,
-43,
36,
12,
23,
3,
8,
-43,
-1,
19,
-13,
-20,
33,
-5,
7,
17,
43,
-11,
9,
-25,
-50,
-40,
-25,
32,
-24,
43,
11,
36,
4,
31,
4,
-31,
7,
24,
17,
-46,
-16,
14,
-9,
-24,
29,
43,
16,
33,
-27,
-5,
26,
22,
77,
-20,
-15,
29,
0,
-45,
9,
-52,
-28,
32,
-39,
-9,
-18,
22,
6,
-8,
7,
-26,
-49,
49,
16,
31,
-25,
-19,
33,
5,
-19,
-18,
47,
-14,
-23,
-8,
-27,
-1,
-6,
-6,
-34,
-21,
-26,
-47,
-21,
-30,
6,
24,
-64,
24,
-35,
59,
19,
28,
-16,
12,
7,
46,
8,
-10,
45,
-31,
9,
23,
1,
29,
1,
4,
13,
9,
-35,
26,
-87,
-18,
-33,
-10,
-46,
37,
-28,
-44,
-32,
-40,
-7,
19,
-15,
53,
4,
-6,
6,
-50,
-13,
-13,
-24,
28,
19,
17,
-7,
5,
3,
-39,
-12,
-32,
22,
-21,
7,
-3,
2,
-7,
-60,
37,
-25,
34,
9,
27,
-41,
9,
46,
26,
0,
-27,
-5,
-5,
60,
-26,
3,
-32,
16,
-15,
-28,
-24,
29,
-86,
-27,
-25,
-22,
6,
-20,
0,
12,
30,
-65,
45,
-10,
-8,
9,
-85,
-30,
42,
49,
-40,
18,
-23,
-2,
58,
-1,
-11,
20,
-2,
15,
16,
13,
-22,
32,
-2,
-26,
-37,
9,
-69,
18,
-17,
16,
-30,
-1,
-23,
2,
27,
-2,
34,
39,
26,
-25,
-30,
10,
28,
-2,
-42,
27,
5,
-27,
-65,
0,
-25,
18,
2,
10,
-27,
23,
-9,
-28,
17,
18,
-22,
-5,
-17,
-6,
-25,
-33,
47,
-46,
23,
-19,
-39,
34,
30,
2,
-4,
12,
17,
-22,
-56,
-7,
-11,
31,
-47,
-15,
16,
5,
-9,
6,
32,
-20,
18,
-20,
1,
27,
-10,
26,
0,
-13,
-12,
-10,
-77,
-22,
-22,
-38,
-14,
-29,
15,
-50,
27,
-47,
-23,
35,
-53,
-16,
24,
25,
63,
-6,
2,
10,
-28,
5,
12,
-15,
26,
39,
49,
51,
22,
-25,
37,
-31,
17,
-27,
-53,
16,
-16,
7,
-4,
23
] |
Summary disposition at 498 Mich 860. | [
-22,
29,
3,
-29,
-25,
-2,
32,
51,
-4,
-4,
-14,
-9,
-87,
1,
-18,
28,
21,
-70,
-30,
-6,
-36,
-41,
-25,
35,
-18,
57,
37,
41,
24,
-38,
-35,
35,
-32,
-70,
50,
30,
-4,
0,
2,
-35,
-37,
-35,
26,
-40,
-25,
-30,
14,
-17,
53,
-79,
-56,
6,
-10,
16,
46,
20,
-24,
20,
-25,
74,
-11,
21,
22,
-25,
-22,
21,
5,
-1,
3,
37,
-40,
1,
-25,
2,
-42,
72,
15,
50,
-18,
-6,
14,
-21,
-11,
69,
5,
12,
-37,
13,
-41,
-62,
10,
-56,
25,
69,
-10,
-17,
43,
-24,
-42,
-14,
-11,
8,
2,
-26,
-24,
1,
20,
-53,
-57,
5,
5,
-31,
31,
-16,
9,
32,
5,
-16,
99,
94,
-35,
-6,
11,
11,
-19,
-40,
-15,
-26,
-5,
-15,
-38,
1,
64,
47,
44,
-27,
25,
-32,
-5,
-5,
-2,
-9,
30,
-4,
-28,
72,
-47,
7,
38,
-26,
-61,
24,
-12,
-25,
-50,
-6,
-57,
-4,
30,
-15,
2,
-98,
42,
-14,
-29,
-12,
-4,
-5,
-10,
70,
19,
-77,
58,
-62,
-47,
64,
0,
86,
15,
-12,
14,
-20,
-26,
-49,
-58,
-67,
44,
-30,
-75,
-1,
-25,
2,
21,
19,
-61,
29,
24,
43,
-87,
-2,
21,
-69,
-25,
-35,
-24,
0,
2,
5,
44,
-19,
8,
-9,
-69,
3,
58,
-46,
18,
-11,
16,
-16,
18,
-11,
28,
25,
58,
-11,
-68,
21,
-18,
-33,
67,
-4,
-3,
-68,
44,
-18,
-23,
22,
19,
-89,
1,
-70,
-1,
-36,
47,
46,
-39,
-62,
7,
23,
8,
-15,
-55,
-99,
-7,
-49,
-1,
29,
14,
-6,
8,
27,
43,
113,
-50,
96,
-38,
-31,
-13,
-30,
35,
27,
-18,
-57,
-31,
29,
-16,
67,
37,
25,
17,
-61,
74,
-25,
18,
-9,
3,
45,
-19,
-31,
11,
30,
6,
-36,
-36,
17,
-46,
-56,
21,
6,
-68,
42,
-65,
16,
38,
-8,
-35,
16,
1,
30,
7,
-36,
39,
17,
1,
-44,
26,
-28,
11,
69,
6,
66,
-30,
-26,
8,
29,
-7,
67,
2,
29,
-19,
7,
-33,
47,
-104,
58,
-47,
-36,
0,
-45,
59,
-22,
-47,
40,
-8,
5,
-51,
14,
37,
-62,
-52,
10,
5,
28,
14,
27,
-18,
86,
27,
24,
36,
-33,
28,
0,
-16,
-35,
-22,
31,
0,
-4,
-25,
-15,
-1,
53,
49,
17,
-1,
-64,
-22,
3,
38,
-31,
-23,
20,
44,
-33,
-1,
6,
-12,
1,
-34,
-40,
-25,
13,
-18,
-103,
48,
0,
-47,
-53,
13,
12,
-38,
62,
-20,
-30,
75,
14,
31,
32,
12,
-72,
13,
-1,
-27,
-8,
71,
26,
-80,
-34,
13,
40,
-34,
-10,
-27,
-31,
-1,
-6,
-6,
38,
20,
-10,
11,
76,
5,
47,
-5,
-56,
33,
-1,
10,
-11,
-15,
-51,
-10,
-72,
-69,
37,
28,
-72,
52,
53,
15,
-55,
-39,
10,
-46,
32,
-8,
28,
14,
-118,
-8,
50,
-106,
12,
11,
20,
9,
14,
-18,
0,
-39,
2,
32,
-20,
-10,
-50,
0,
-11,
-2,
-31,
-1,
-6,
-61,
-29,
-15,
62,
-67,
28,
20,
-37,
-10,
18,
43,
-16,
-23,
27,
10,
-38,
16,
-53,
-17,
6,
-34,
-10,
-21,
26,
-16,
-32,
31,
-5,
-3,
-2,
-24,
40,
-47,
-27,
42,
19,
-15,
18,
25,
47,
31,
45,
61,
3,
14,
37,
-3,
-63,
51,
14,
33,
6,
-39,
65,
-31,
-22,
65,
-45,
55,
-48,
-20,
22,
4,
-23,
-70,
7,
-35,
-1,
-13,
-24,
5,
10,
42,
-2,
28,
-39,
-28,
5,
-4,
-20,
14,
-36,
-35,
-9,
-2,
-20,
9,
4,
81,
19,
-10,
10,
-12,
7,
26,
10,
-60,
-4,
66,
-41,
0,
17,
35,
30,
8,
17,
-47,
15,
-24,
43,
-37,
-7,
-52,
70,
-20,
22,
3,
-27,
5,
16,
15,
53,
14,
-12,
16,
15,
6,
19,
22,
23,
-27,
45,
38,
16,
14,
-6,
-2,
30,
19,
51,
23,
6,
8,
-28,
-26,
-7,
-22,
20,
-17,
-12,
7,
16,
61,
-36,
-15,
11,
-32,
-2,
33,
22,
44,
-76,
10,
-13,
-11,
52,
-60,
-3,
-20,
27,
-28,
17,
-25,
-37,
62,
5,
-4,
59,
16,
-47,
-6,
-69,
54,
-42,
100,
16,
-1,
-18,
-68,
-43,
26,
59,
0,
26,
51,
57,
-25,
46,
-47,
68,
-39,
-62,
0,
60,
44,
1,
-7,
48,
27,
22,
-51,
10,
18,
37,
20,
-27,
-6,
36,
-15,
-37,
8,
19,
30,
25,
-45,
-1,
0,
-20,
30,
39,
-2,
71,
-23,
15,
-37,
-9,
43,
35,
-11,
-87,
50,
15,
-13,
-54,
-10,
31,
47,
4,
28,
-42,
-28,
8,
-25,
-4,
-31,
3,
27,
-32,
-5,
-69,
-55,
24,
11,
14,
14,
-52,
-15,
38,
82,
-11,
3,
-4,
55,
68,
-28,
45,
-7,
-45,
-99,
6,
71,
-22,
-29,
12,
-20,
-44,
-7,
17,
-18,
34,
-59,
-25,
-61,
25,
12,
-32,
-12,
5,
-29,
0,
32,
11,
-9,
-46,
66,
-15,
-36,
-47,
65,
-41,
4,
19,
59,
-47,
-8,
-36,
10,
24,
-22,
8,
0,
49,
-39,
0,
-27,
33,
53,
-20,
-16,
-92,
61,
5,
15,
13,
-20,
-20,
-4,
-21,
13,
-24,
-24,
20,
-27,
22,
36,
-1,
71,
26,
40,
2,
-95,
1,
45,
-58,
-1,
57,
-3,
-38,
-54,
-46,
-41,
-11,
33,
-6,
32,
-89,
-16,
-8,
50,
-36,
-10,
39,
-18,
44,
38,
43,
22,
3,
-4,
40,
0,
34,
62,
0,
10,
17,
-11,
-40,
36,
25,
-26,
35,
5,
-38,
12,
-35,
37,
-21,
38,
-15,
36,
37,
20,
-4,
39,
12,
-23,
31,
-41,
12,
-41,
15,
49,
-15,
-26,
-58,
78,
11,
-59,
33,
45,
10,
-14,
-5,
11,
-28,
-46,
-8,
17,
22,
-30,
-38,
-28,
-21,
6,
-11,
0,
-26,
15,
-4,
46,
4,
39,
4,
-36,
42,
-22,
20,
-81,
9,
62,
-10,
-11,
-34,
-1,
54,
3,
70,
-38,
0,
89,
-17,
-12,
25,
32,
11,
23,
7,
14,
-46,
4,
71,
79,
-46,
-44,
4,
44,
-35,
22,
-43,
-34,
-10,
-57,
10,
59,
10,
-23,
19,
-11,
20,
6,
-74,
17,
-5,
-16,
-50,
-30,
-41,
13,
32,
32,
-22,
26,
69,
5,
10,
-13,
-31,
10,
-9,
12,
25,
41,
33,
-12,
6,
39,
-55,
8,
-12,
-17,
-42,
-10,
-30,
0,
22,
-18,
66,
-14,
-19,
6,
-3,
5,
17,
5,
29,
100,
-3,
-16,
25
] |
Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals.
An offer “is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” See Eerdmans v Maki, 226 Mich App 360, 364 (1997). Here, and contrary to the judgment of the Court of Appeals, the January 20, 2012 e-mail from plaintiffs counsel to defendants’ counsel did not constitute an offer to settle this case. Instead, this e-mail inquired whether defendants would present an offer at some point in the future, which they did, through a subsequent e-mail by their counsel. Defendants’ counsel confirmed that this subsequent e-mail was an offer by later inquiring whether plaintiff had accepted their offer. For these reasons, and for the reasons stated by the Court of Appeals’ dissenting opinion, no enforceable settlement agreement existed to bind the parties in this case. We remand this case to the Wayne Circuit Court for further proceedings not inconsistent with this order. We do not retain jurisdiction. | [
-15,
-28,
-71,
-5,
-11,
-1,
4,
41,
-17,
37,
8,
26,
-1,
52,
-44,
-22,
0,
-18,
12,
-17,
-22,
12,
21,
0,
-22,
-28,
32,
-31,
62,
-11,
-42,
51,
-36,
-6,
-35,
-20,
-13,
-4,
-41,
-50,
6,
-28,
35,
27,
-50,
14,
14,
-13,
25,
-47,
52,
33,
18,
5,
-4,
20,
-31,
7,
8,
10,
-34,
-26,
12,
51,
-9,
-11,
-7,
11,
6,
-16,
-33,
21,
23,
17,
0,
2,
-15,
31,
19,
-12,
52,
15,
51,
-39,
-14,
67,
8,
-35,
15,
49,
-32,
24,
-7,
-4,
7,
56,
16,
7,
-28,
-1,
0,
-2,
-15,
-15,
25,
27,
15,
6,
33,
89,
8,
-32,
-25,
-47,
-57,
38,
-39,
-56,
34,
-15,
-29,
11,
3,
41,
41,
-27,
55,
-21,
53,
-5,
1,
26,
-39,
34,
5,
-19,
33,
-4,
20,
10,
-1,
-6,
0,
-36,
4,
34,
-18,
-74,
-38,
-7,
48,
-44,
-28,
56,
-33,
-30,
87,
-36,
22,
-19,
38,
29,
-34,
35,
-35,
-47,
-11,
22,
15,
-38,
21,
0,
4,
-51,
-11,
-1,
0,
13,
3,
23,
3,
48,
-9,
-56,
18,
-12,
4,
23,
-23,
-34,
14,
-28,
28,
19,
13,
21,
23,
53,
-12,
39,
-18,
-52,
-20,
56,
-5,
-52,
-5,
-47,
20,
-11,
-36,
16,
-15,
-61,
42,
-2,
7,
-11,
-27,
25,
25,
-15,
-32,
68,
-59,
-11,
8,
-17,
12,
-17,
-40,
40,
-7,
54,
51,
13,
23,
25,
13,
-28,
-3,
9,
-3,
4,
-21,
-34,
-54,
4,
12,
16,
-30,
-43,
17,
-11,
10,
-19,
0,
59,
-50,
3,
-18,
13,
-28,
24,
13,
18,
6,
-32,
-34,
-31,
-49,
-41,
-11,
14,
-26,
-50,
-25,
1,
-4,
-36,
-26,
12,
5,
-55,
-21,
41,
-36,
9,
6,
5,
3,
2,
35,
2,
45,
40,
24,
-11,
-3,
9,
-27,
6,
46,
-39,
35,
-46,
-16,
17,
-6,
-41,
27,
-36,
-24,
5,
9,
-9,
-28,
19,
35,
-41,
-6,
43,
12,
-22,
35,
-84,
20,
-78,
-17,
14,
-9,
-10,
-26,
29,
10,
51,
15,
-7,
-20,
16,
16,
0,
18,
6,
8,
0,
13,
11,
26,
12,
-11,
-52,
-20,
38,
24,
-13,
-44,
-36,
3,
1,
23,
-2,
-23,
-50,
-25,
33,
28,
19,
11,
20,
-16,
14,
-21,
-3,
-36,
9,
9,
-11,
-19,
18,
-63,
-34,
26,
22,
30,
-26,
-39,
31,
16,
-20,
-65,
-40,
23,
58,
-24,
-7,
10,
-23,
57,
-21,
50,
4,
10,
-3,
-2,
6,
-1,
-61,
-46,
42,
10,
25,
-1,
9,
-51,
-22,
39,
7,
59,
0,
-1,
24,
-38,
-33,
-20,
-6,
82,
2,
-25,
-14,
2,
58,
30,
-60,
19,
22,
-11,
-44,
-43,
24,
0,
6,
17,
-19,
-17,
-40,
-64,
20,
-54,
15,
17,
31,
5,
5,
-38,
-13,
-12,
8,
49,
-59,
30,
-43,
-24,
-4,
-18,
-63,
0,
-15,
-9,
33,
-10,
13,
3,
46,
-11,
0,
-49,
6,
14,
45,
-32,
44,
-11,
27,
-41,
31,
-25,
-22,
23,
-10,
-8,
-19,
35,
29,
-45,
3,
24,
-7,
17,
20,
-18,
-48,
31,
5,
16,
-3,
-33,
-75,
27,
-6,
24,
-8,
-9,
28,
8,
56,
-7,
2,
13,
73,
-13,
-39,
3,
-51,
-10,
34,
-4,
-27,
-19,
1,
12,
-53,
15,
-75,
24,
-13,
-11,
-22,
24,
15,
-18,
-36,
-63,
0,
29,
55,
8,
29,
53,
2,
-15,
-30,
-16,
-4,
18,
59,
35,
-43,
-13,
-39,
-12,
24,
28,
17,
61,
-16,
42,
2,
0,
44,
-7,
-22,
19,
21,
-13,
-25,
8,
-45,
-19,
-16,
-23,
25,
-32,
-66,
-41,
-47,
22,
-35,
12,
-5,
-17,
24,
48,
-13,
-13,
-44,
45,
-25,
3,
30,
-2,
48,
-53,
-44,
21,
-35,
-48,
11,
-10,
-1,
-23,
-3,
-40,
14,
-40,
-53,
43,
-2,
-8,
54,
20,
11,
12,
-58,
-17,
-23,
12,
21,
-26,
63,
33,
10,
90,
18,
13,
22,
17,
59,
-36,
-9,
-26,
49,
-36,
-17,
38,
2,
-42,
15,
1,
40,
15,
33,
29,
-28,
-12,
13,
17,
12,
-21,
-19,
6,
-15,
-14,
-1,
-6,
12,
2,
39,
28,
-21,
25,
13,
-12,
17,
8,
33,
30,
4,
0,
59,
-18,
10,
-2,
-30,
-40,
-12,
-4,
43,
-14,
31,
-16,
29,
-29,
-21,
37,
-52,
-2,
70,
21,
18,
30,
14,
20,
-18,
-25,
28,
0,
24,
19,
3,
-5,
40,
-11,
0,
-12,
45,
5,
32,
-34,
-44,
5,
-34,
39,
-43,
8,
-19,
-11,
-10,
10,
25,
8,
5,
21,
30,
-52,
14,
-35,
-10,
-16,
-8,
5,
38,
21,
45,
28,
31,
58,
22,
0,
-23,
29,
-47,
-38,
82,
55,
22,
14,
-4,
-36,
57,
30,
-10,
-33,
-14,
18,
2,
3,
-13,
11,
-24,
-23,
-3,
17,
64,
33,
-16,
0,
31,
18,
-10,
-5,
-15,
-9,
50,
-45,
-39,
-3,
-38,
-35,
28,
-1,
-11,
1,
-4,
69,
19,
53,
14,
30,
-28,
-27,
-55,
0,
17,
-6,
4,
-5,
14,
58,
20,
16,
-19,
-11,
26,
-2,
30,
-17,
-17,
-1,
-33,
44,
5,
-68,
-12,
-19,
-8,
-2,
-57,
-11,
-7,
8,
1,
-1,
15,
-27,
38,
1,
-20,
16,
-34,
53,
-66,
-44,
-7,
23,
44,
-43,
17,
-18,
-39,
-6,
-73,
-20,
11,
6,
-5,
-25,
-27,
53,
-35,
5,
38,
-38,
54,
31,
-39,
-43,
-21,
4,
-21,
16,
-4,
-29,
42,
12,
14,
-14,
-47,
-12,
-19,
-22,
20,
18,
-14,
-60,
10,
-21,
-29,
-43,
32,
9,
-20,
-49,
32,
27,
-18,
-22,
-12,
48,
5,
24,
-4,
8,
-28,
7,
22,
30,
5,
1,
60,
6,
-9,
34,
-42,
-3,
22,
-49,
-8,
0,
-17,
33,
5,
-61,
-54,
35,
-16,
2,
59,
-34,
-18,
25,
25,
18,
-2,
62,
-32,
25,
-25,
-42,
13,
-16,
17,
-4,
-26,
-16,
-1,
-45,
3,
0,
0,
33,
-14,
63,
46,
-16,
-36,
-9,
2,
-69,
-8,
-31,
-7,
19,
4,
24,
11,
-30,
2,
-26,
-2,
12,
30,
-36,
2,
3,
-14,
29,
-23,
-41,
-39,
1,
-44,
19,
39,
26,
59,
-41,
27,
-52,
-13,
24,
-29,
16,
-38,
23,
-15,
-2,
3,
-25,
-30,
-21,
17,
11,
-31,
-10,
21,
45,
1,
0,
-26,
0,
23,
53,
-16,
-15,
28,
0,
-18,
-4,
46,
5,
-38,
-18,
27
] |
The parties shall include among the issues to be briefed: (1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., amount to “punishment,” see People v Earl, 495 Mich 33 (2014); (2) whether the answer to that question is different when applied to the class of individuals who have successfully completed probation under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.; (3) whether MCL 28.722(b) (defining HYTA status to be a “conviction” for purposes of SORA) provides the defendant constitutionally sufficient due process where the defendant is required to register pursuant to SORA as if he had been convicted of an offense, notwithstanding that upon successful completion of HYTA the court is required to “discharge the individual and dismiss the proceedings” without entering an order of conviction for the crime; MCL 762.14(1); US Const, Am XIV; Const 1963, art 1, § 17; (4) whether, assuming that the requirements of SORA do not amount to “punishment” as applied to the defendant, application of the civil regulatory scheme established by SORA to the defendant otherwise violates guarantees of due process; (5) whether requiring the defendant to register under SORA is an ex post facto punishment, where the registry has been made public, and other requirements enacted, only after the defendant committed the instant offense and pled guilty under HYTA, US Const, art I, § 10; Const 1963, art 1, § 10; and (6) whether it is cruel and/or unusual punishment to require the defendant to register under SORA, US Const, Am VIII; Const 1963, art 1, § 16.
The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae. | [
50,
14,
0,
-26,
-67,
-7,
-9,
-8,
-23,
22,
-69,
4,
-30,
25,
56,
28,
23,
13,
25,
-36,
-9,
13,
26,
22,
-45,
-36,
30,
72,
49,
-36,
-47,
47,
14,
-27,
26,
-36,
41,
-1,
39,
23,
-13,
14,
31,
-57,
-73,
25,
44,
28,
7,
-54,
-10,
48,
-13,
-27,
4,
-16,
-10,
5,
-8,
18,
-6,
59,
10,
20,
0,
-13,
13,
53,
20,
-34,
29,
46,
-69,
35,
12,
19,
-23,
-4,
72,
88,
-9,
0,
26,
-18,
24,
-10,
-7,
-18,
-23,
-11,
0,
-17,
-64,
-11,
32,
29,
35,
-29,
7,
-31,
-22,
14,
8,
9,
-39,
-33,
-25,
-65,
2,
23,
73,
-5,
9,
-54,
-3,
-29,
-50,
9,
-1,
-31,
-22,
14,
-2,
48,
0,
7,
8,
-38,
-54,
9,
-13,
0,
47,
-7,
4,
45,
16,
22,
36,
20,
-18,
-1,
64,
9,
42,
-20,
-31,
-8,
41,
8,
23,
-14,
-41,
28,
-2,
-7,
8,
8,
-14,
48,
-11,
-45,
-29,
-25,
7,
-37,
-10,
47,
24,
-32,
-2,
6,
41,
-52,
-1,
-65,
-21,
50,
40,
-27,
-47,
12,
12,
-31,
-5,
11,
-57,
11,
-8,
-30,
7,
-41,
29,
-6,
26,
3,
30,
86,
-40,
79,
26,
8,
2,
19,
30,
-16,
-11,
-61,
-20,
5,
17,
-29,
-18,
23,
-18,
-46,
42,
-17,
-17,
15,
-52,
-60,
4,
-10,
11,
-32,
23,
-10,
24,
-42,
69,
-21,
62,
9,
-44,
-23,
-7,
23,
31,
16,
18,
-43,
0,
-23,
43,
10,
-18,
-37,
-25,
-54,
41,
-20,
-15,
3,
-61,
-16,
10,
-6,
-28,
27,
-37,
-6,
16,
1,
-85,
40,
26,
16,
-24,
3,
-17,
29,
-4,
30,
-1,
2,
7,
7,
-12,
-42,
18,
33,
38,
11,
-76,
-25,
-19,
-40,
-34,
19,
-7,
1,
-64,
-29,
38,
-20,
-45,
-47,
-42,
2,
74,
12,
80,
-17,
32,
-45,
7,
28,
-19,
-37,
-13,
-27,
17,
-33,
-7,
10,
10,
-26,
69,
-18,
2,
-9,
0,
-35,
-17,
-1,
64,
-55,
-20,
-17,
3,
-43,
0,
2,
-9,
34,
35,
-8,
-41,
13,
22,
-32,
9,
20,
-5,
31,
45,
-5,
-73,
-39,
-34,
25,
-6,
6,
55,
-31,
-29,
-15,
5,
8,
18,
14,
12,
-2,
2,
18,
-11,
-10,
27,
25,
0,
-80,
-45,
54,
-47,
-32,
70,
16,
-47,
2,
-26,
-28,
20,
31,
12,
-2,
-18,
-21,
50,
5,
-2,
-10,
-29,
-20,
-106,
12,
-21,
15,
61,
-34,
30,
21,
49,
35,
10,
27,
-14,
14,
-9,
64,
-21,
22,
21,
19,
14,
6,
-16,
-23,
-39,
-64,
-9,
-23,
-39,
-32,
-40,
53,
-15,
31,
28,
1,
-13,
27,
26,
26,
-11,
7,
-66,
36,
31,
-17,
5,
-6,
-67,
-2,
-45,
-8,
-24,
16,
33,
-45,
12,
27,
9,
-58,
-3,
30,
-7,
65,
-35,
-11,
-70,
-78,
-38,
-30,
17,
-17,
-55,
28,
28,
-7,
-46,
-10,
-10,
97,
-41,
21,
13,
80,
-10,
32,
-51,
21,
-3,
-79,
-58,
-7,
-36,
-9,
-2,
20,
-40,
-59,
-28,
81,
-26,
63,
-37,
12,
7,
70,
44,
-26,
18,
45,
10,
-40,
23,
8,
-25,
12,
20,
16,
-14,
46,
-31,
22,
11,
-29,
-6,
1,
41,
-61,
17,
-42,
0,
31,
1,
-84,
-9,
6,
75,
-6,
-23,
-74,
95,
31,
-48,
19,
22,
-24,
58,
48,
0,
-51,
68,
18,
38,
-15,
40,
-39,
-13,
19,
-39,
-6,
-14,
22,
-13,
-21,
-34,
-18,
-13,
-59,
33,
31,
-8,
-48,
-16,
14,
37,
20,
7,
37,
16,
12,
1,
19,
55,
39,
12,
-19,
77,
0,
20,
-12,
-30,
-40,
-16,
-7,
48,
-23,
21,
12,
-1,
-4,
-17,
6,
-29,
23,
12,
-28,
4,
32,
-44,
-24,
37,
45,
25,
73,
20,
-44,
-17,
-28,
0,
-25,
-5,
2,
37,
-22,
-45,
32,
-46,
-15,
19,
28,
47,
-53,
-22,
30,
40,
10,
17,
-2,
-11,
-24,
-16,
23,
-14,
0,
-19,
-47,
-60,
95,
6,
3,
54,
-59,
-28,
19,
13,
-12,
-13,
47,
-20,
-60,
7,
-7,
-34,
-10,
44,
-12,
-39,
19,
2,
43,
45,
25,
-1,
-58,
28,
22,
18,
18,
-31,
0,
33,
-24,
15,
10,
35,
-12,
-48,
-29,
-2,
-3,
35,
3,
-7,
6,
47,
-15,
-21,
16,
31,
-42,
39,
-26,
22,
4,
1,
56,
-34,
52,
-35,
-13,
-24,
6,
-23,
-12,
-5,
-31,
2,
66,
23,
39,
-57,
2,
-87,
-27,
-28,
14,
-31,
0,
-10,
-4,
66,
46,
-76,
60,
25,
-28,
19,
-2,
12,
7,
3,
14,
-5,
35,
14,
33,
37,
-50,
-48,
-72,
-45,
-18,
-18,
-4,
2,
-23,
-7,
-10,
0,
39,
-41,
28,
47,
-72,
-56,
22,
-27,
19,
-15,
-25,
-30,
26,
12,
-7,
24,
-15,
-30,
-19,
-19,
-12,
27,
4,
-24,
-48,
30,
-13,
28,
38,
-19,
-22,
-32,
-4,
-8,
-72,
31,
-30,
-4,
1,
39,
47,
51,
24,
18,
-31,
-29,
-6,
9,
8,
6,
25,
-50,
17,
0,
-31,
53,
38,
29,
50,
-70,
-6,
-30,
9,
-16,
-10,
35,
-46,
-8,
5,
-12,
-18,
-10,
45,
22,
-10,
12,
28,
95,
5,
18,
38,
-28,
-5,
30,
18,
-1,
22,
52,
6,
6,
-23,
-16,
18,
-44,
0,
95,
18,
70,
-18,
-37,
-11,
-4,
33,
-15,
-19,
34,
-38,
15,
-40,
-13,
-53,
10,
38,
-13,
-31,
36,
31,
14,
-44,
-7,
39,
-4,
-22,
-56,
-2,
-44,
-11,
6,
32,
42,
-21,
31,
20,
10,
-49,
-32,
-42,
1,
7,
-13,
-8,
-24,
31,
40,
8,
-23,
-21,
-9,
22,
0,
13,
-23,
11,
-39,
-35,
-64,
21,
0,
26,
32,
50,
-15,
-23,
-7,
-19,
-32,
-23,
-4,
26,
-4,
12,
-12,
-16,
31,
-33,
-35,
27,
-11,
-22,
-25,
-37,
36,
-6,
77,
-52,
17,
-5,
-38,
7,
-65,
-21,
-2,
11,
-49,
-12,
36,
-29,
-44,
2,
3,
15,
-36,
18,
72,
67,
-21,
9,
5,
0,
7,
37,
28,
24,
-44,
-26,
4,
18,
-14,
10,
-35,
31,
21,
12,
-3,
13,
1,
1,
-70,
-61,
-6,
23,
-8,
-16,
-7,
16,
-2,
-40,
21,
-30,
23,
-7,
-39,
-40,
29,
17,
-21,
-52,
26,
53,
-46,
22,
-47,
5,
15,
14,
-6,
24,
35,
29,
14,
14,
9,
44,
-35,
-7,
-2,
-1,
0,
47,
-9,
-2
] |
Long, J.
The plaintiff brings this suit as administratrix of the estate of James O’Donnell, deceased.
Deceased was the husband of'the plaintiff, and was employed by the defendant as an engine inspector. He had been in defendant’s employ for several months, and for- several years had been engaged in that kind of work for the defendant and other railroad corporations. His work was at the round-house of the defendant company, situated near the east end ’of the company’s yards. On the east end of the yard is Fifth street, in the city of Marquette, and extending along the north side,of the yard, running east and west, is Washington street. The yard is several hundred feet in extent east and west, and is occupied by some 12 or 15 tracks. The deceased resided at the west end of Washington street, north and west of the railroad. In going to and returning from his house he sometimes passed through the yard, along the line of these various tracks, to the scales in the company’s yard at the west end, and from there passed northward to his home. There was a traveled way for pedestrians passing from the round-house a little eastwardly, and then north across these tracks to Washington street. There was also a way passing from the roundhouse, directly southward of the tracks, east to Fifth street. There was also a door leading from the roundhouse south to a wagon road extending eastward to Fifth street.
On the night of November 22, 1888, between 6 and 7 o’clock, the deceased was on his way home from work. He started from the round-house, and walked along between the tracks in the yard westward, and had reached a point about 800 feet from the round-house, and opposite a coal trestle of defendant, when the last car of a train which was running onto the trestle left the track, and struck him, injuring him so that he died about an hour afterwards. The train consisted of seven cars, going about six or seven miles an hour up grade onto the coal trestle; and in passing over the switch the hind trucks for some cause jumped the track, the other cars passing over the switch in safety. At the point in the yard where the deceased was struck were 11 tracks, lying close together. The deceased walked between two tracks which were only seven feet apart; and on the north track, at the place where he was struck, was a lot of cars together, standing still, which barred his escape. These, cars were struck and damaged by the car which jumped the track, killing deceased.
The allegation of negligence in the declaration is that—
“It was the duty of the said defendant to keep and maintain its said railroad track and its switches and its-right of way between the said round-house and the said weigh-house in good repair, and in a reasonably safe condition, so that the said James O'Donnell, while passing rightfully over its said right of way between its. main track and the next adjoining side track, carefully, and without negligence on his part, in going to and from his work as aforesaid, might do so without injury to his person; and that it was likewise the duty of the said defendant to keep the passage-way between the said main ti’ack and its said side track unobstructed and free from dangerous and sudden obstructions. And the plaintiff avers that the said defendant, neglecting its said duty, did not keep and maintain its said railroad track and its said switches and its said right of way and its said passage-way between its said two tracks in good repair and in a reasonably safe condition, and its said passageway between its said tracks unobstructed and free from dangerous and sudden obstructions, but that, on the contrary, the said described switches, on the said 22d day of November, 1888; and for a long time prior thereto, was in a worn-oút and shaky condition, and that the switch-bolts were loose, and the eye-holes in the connecting-rod and switch-rod were by long use so worn as to allow great play, and so worn as not to be in a reasonably safe condition, and the switch in its several parts so worn as not to be in reasonably good repair and condition; that, by reason of the worn-out condition of said switch and of the said eye-holes in the connecting-rod and in the switch-rod thereof, the north rails of the said track and switch would not meet and be directly opposite each other, but that, on the contrary, said defective switch caused a portion of the east rail to project towards the south for a distance of about three-quarters of an inch, and that the said switch and track, when in that condition, were not in a reasonably safe repair; and that the worn-out, defective, and unsafe condition of said switch and of its several parts should have been known and was known to said defendant for a long time previous to said injury to said O’Donnell; and that, after said defendant ought to have had knowledge, and, in contemplation of law and in fact had knowledge, of said defective condition of said switch, said defendant waited an unreasonable time before repairing the same, and did not repair the said defective switch until the morning after the injury to said James O’Donnell, at which time said defendant did repair said defective switch.”
On the trial in the court below the circuit judge very properly directed the jury to return a verdict in favor of defendant. There was no evidence in the case showing that any officer of the defendant ever saw the deceased walking between these tracks to and from his home, or had actual notice of his doing so. There is no evidence of any beaten path or traveled way along the side of or between these tracks, and there is no evidence that any of the other employés or other persons used this route as a way to reach their homes or to get to Washington street. There were three other ways by which deceased could have gone to his home, and ways which he often used. The diagram which is presented shows that had the deceased, in using the yard as a way of reaching his home, kept south of the tracks, he would have been out of the way of the cars, which, in the ordinary way of doing the work of the defendant company; were frequently run over these tracks and upon the side tracks and coal trestle.
The record does not present a case showing any duty upon the part of the defendant towards the deceased to keep its tracks and switches in the yard in good condition or repair, so that its trains and cars would safely pass the switches and side tracks upon which it - was intended to run or shunt such cars; and the defendant company could not be held liable if, in the ordinary mode of doing its work, by some accident, either by the switches or track being out of repair, the deceased was injured, unless it should be made to appear that the company was guilty of gross carelessness or recklessness in handling and running its cars, thereby inflicting the injury. It has been several times held by this Court that railroad companies are not held to the same degree of care in maintaining their side tracks as in the care of their main tracks. Mich. Central R. R. Co. v. Austin, 40 Mich. 250; Batterson v. Railway Co., 53 Id. 125; Hewitt v. Railroad Co., 67 Id. 71.
It is undoubtedly true that the owner or occupier of ¡ands or premises is liable in damages to. those, using due care, going thereon at his invitation or enticement, express or implied, on any business to be transacted with or permitted by him, for the injury occasioned by the unsafe condition of such lands or premises, or of the access thereto, which is known to him and not to them, and which his negligence suffered to exist, and given them no notice of; but in the present case it appears that the deceased was using this way for his own convenience, when there were other ways open to him which were safe, and which he had frequently used; and the use which he attempted to make of this way through the company’s grounds does not, by this record, appear to have been known by the company or any of its officers, or sanctioned by it.
There is no claim in the declaration, or any proofs showing or tending to show, that the company, its agents or servants, in operating the train or cars by which the deceased was struck and killed, did so in a reckless or wanton manner. The cars were being pushed upon this trestle in the ordinary way and at the ordinary speed.
Though the company or its officers may have known that the tracks at this switch, and the switch itself, were not in such condition that they could be operated so that the cars at all times would pass safely from the main track upon the side track and thus to the coal trestle, yet, so far as the deceased was concerned, under the circumstances here stated, the company owed him no duty to repair the switch or tracks for the purpose of protecting him from injury, should he happen to be passing through the yard and along-side this track.
Counsel for plaintiff contends that this case falls within the ruling of this Court in Bouwmeester v. Railroad Co., 63 Mich. 557. In that case, however, it appeared that the deceased had for months previous to his death been in the habit of going upon the railroad track in returning to his home after his work was done; that it was inconvenient and difficult to go by the ordinary route of travel; that it was almost a necessity for men living where he did to walk upon the track; that these facts were well known to the defendant company, and the use of the track thus made by the men was permitted. It also appeared in that case that, while the deceased was upon the track, and unaware of the train’s approach, the engineer, who saw him there, and knew that he was unconscious of the train’s approach, failed to check his engine, though he had time so to do; thus showing in that case that the claim was made that the deceased came to his death by the willful and wanton negligence of the engineer of the train. No such thing is averred in the present case, and no such principle is here involved.
The question of the deceased’s contributory negligence is presented in the case, and it is insisted by the counsel for the defendant company that the record shows such contributory negligence, in the deceased placing himself in so dangerous a proximity to moving cars while those cars were standing upon another track only seven feet distant. We need not discuss or determine the question of the contributory negligence of the deceased, as we are satisfied that the record does not disclose any negligence upon the part of the defendant company which would warrant a recovery.
The court below was not in error in directing a verdict in favor of defendant.
The judgment must be affirmed, with costs. ■
Ohamplin, O. J., Morse and McGrath, JJ., concurred. Grant, J., did not sit. | [
-12,
22,
4,
-19,
29,
30,
15,
-18,
72,
-4,
-1,
-12,
-10,
-22,
11,
-1,
-21,
-37,
-20,
15,
21,
-29,
-14,
-19,
-64,
-31,
-14,
1,
-29,
8,
43,
2,
-7,
-19,
5,
18,
42,
-72,
-13,
22,
15,
-6,
6,
-8,
53,
32,
44,
10,
16,
-26,
0,
12,
-10,
-15,
48,
-8,
-1,
70,
-23,
32,
-13,
-38,
6,
-32,
-7,
35,
43,
-2,
-26,
-14,
-26,
31,
-17,
14,
22,
23,
-7,
15,
-37,
16,
-39,
31,
38,
-40,
-37,
5,
-54,
-43,
-36,
22,
-18,
12,
-29,
35,
30,
-23,
-44,
32,
-18,
-8,
1,
33,
1,
-34,
-55,
20,
-18,
-30,
-21,
-15,
-16,
-20,
25,
-3,
21,
-23,
-7,
-20,
-5,
45,
45,
-23,
57,
-34,
-9,
8,
-15,
56,
-19,
5,
16,
32,
11,
-17,
73,
7,
-12,
-14,
44,
-20,
-18,
34,
-8,
-27,
-63,
-34,
-25,
40,
-19,
-21,
-3,
20,
19,
-69,
23,
9,
18,
-9,
85,
41,
41,
0,
98,
-9,
-51,
-29,
-37,
-17,
-11,
40,
-23,
-1,
6,
-65,
46,
60,
45,
11,
-57,
28,
-2,
7,
42,
14,
-62,
-57,
-9,
-10,
-25,
-20,
46,
-1,
27,
-80,
-31,
53,
38,
-22,
6,
31,
47,
-47,
-6,
-2,
-19,
-9,
-2,
19,
-2,
-24,
43,
-7,
-41,
-12,
-31,
17,
-21,
-57,
-3,
-71,
8,
26,
40,
-6,
13,
-44,
-38,
-22,
-10,
25,
17,
-47,
13,
-18,
-27,
-10,
11,
-29,
34,
3,
77,
17,
-5,
-44,
20,
-29,
-33,
-31,
-36,
44,
4,
-26,
0,
-17,
39,
7,
16,
-2,
37,
-3,
3,
14,
-50,
87,
52,
0,
-3,
34,
-34,
17,
-27,
-15,
63,
5,
-5,
-23,
13,
41,
15,
20,
42,
6,
-26,
-22,
-47,
5,
-62,
4,
-42,
13,
44,
-9,
-11,
12,
33,
42,
29,
7,
-12,
-15,
6,
-13,
-28,
-16,
17,
78,
-35,
-6,
4,
-18,
8,
7,
18,
-20,
69,
15,
0,
18,
35,
-24,
-11,
-18,
-34,
-21,
55,
19,
-2,
33,
-2,
21,
39,
14,
35,
38,
-20,
-29,
-14,
39,
33,
-6,
29,
56,
-9,
40,
-60,
0,
30,
-6,
8,
-46,
-21,
-63,
61,
-52,
-21,
-3,
8,
-20,
16,
53,
52,
-23,
-3,
4,
-4,
-67,
-46,
-17,
-17,
0,
54,
0,
13,
2,
41,
-42,
-18,
46,
-21,
91,
28,
-34,
3,
-26,
3,
11,
-45,
-31,
-62,
60,
-26,
-10,
43,
9,
10,
52,
-4,
47,
-25,
-41,
-4,
-8,
4,
3,
-25,
-23,
-34,
-6,
19,
32,
-22,
-3,
45,
-13,
42,
-32,
19,
6,
24,
18,
60,
19,
35,
-30,
29,
8,
-12,
0,
-21,
-61,
23,
-26,
55,
4,
-23,
18,
9,
-31,
-41,
-30,
-26,
-25,
23,
2,
18,
-9,
-40,
-19,
49,
-33,
-13,
64,
7,
40,
-18,
15,
-10,
0,
77,
51,
13,
-17,
15,
69,
-9,
33,
-6,
-12,
63,
4,
-10,
9,
-40,
46,
-32,
-63,
29,
11,
-14,
-36,
-43,
13,
-14,
-18,
-21,
-35,
-4,
-12,
24,
-18,
76,
44,
-35,
-34,
26,
41,
-15,
15,
-2,
-11,
-51,
-32,
8,
-24,
17,
-1,
-16,
-8,
-26,
-1,
18,
-26,
6,
-19,
-12,
-18,
-54,
-21,
16,
-78,
40,
11,
-15,
15,
-10,
-5,
7,
3,
-18,
-3,
3,
-55,
13,
6,
10,
-30,
6,
17,
-30,
-25,
31,
1,
34,
4,
3,
0,
-20,
25,
9,
26,
-10,
-22,
-18,
6,
-18,
-24,
-11,
-50,
37,
0,
-16,
-65,
34,
-27,
24,
-12,
-26,
51,
18,
-44,
-63,
81,
31,
-21,
-25,
70,
10,
44,
-22,
28,
29,
-11,
10,
7,
-20,
2,
-40,
-25,
-34,
63,
-35,
35,
-35,
6,
76,
3,
-33,
39,
21,
-46,
11,
-55,
-27,
25,
6,
43,
-57,
-17,
17,
30,
-13,
5,
-17,
10,
0,
26,
-11,
0,
23,
-35,
22,
9,
-10,
21,
-45,
-3,
14,
51,
-39,
0,
-19,
36,
-41,
26,
14,
-1,
1,
33,
-13,
-7,
-15,
2,
15,
-9,
-66,
-57,
-58,
34,
-42,
17,
-42,
10,
18,
-1,
-29,
-31,
35,
53,
-59,
-4,
12,
6,
0,
3,
-81,
-1,
33,
-46,
8,
39,
69,
-13,
-30,
-3,
-37,
-16,
-17,
19,
13,
19,
18,
10,
78,
-18,
38,
21,
-15,
1,
3,
-30,
-56,
-16,
-9,
9,
0,
39,
7,
-32,
14,
-61,
-44,
50,
17,
68,
14,
6,
18,
-98,
-21,
6,
-17,
-23,
30,
-18,
38,
49,
-10,
-30,
-24,
-14,
27,
5,
-32,
-56,
43,
12,
16,
-5,
-45,
-96,
9,
18,
-48,
-31,
-42,
-11,
1,
-27,
-73,
2,
-16,
-49,
37,
-1,
-6,
-6,
-2,
10,
-18,
25,
1,
70,
52,
-18,
76,
-56,
18,
20,
-17,
-37,
23,
-45,
44,
40,
-44,
37,
12,
7,
5,
-21,
16,
34,
-32,
-20,
7,
25,
26,
7,
5,
0,
31,
21,
42,
-12,
4,
-4,
-25,
-26,
8,
17,
-61,
-12,
29,
-7,
-70,
-13,
-4,
15,
27,
7,
-23,
-2,
-16,
21,
-12,
-13,
-21,
6,
-55,
20,
-3,
10,
-36,
-32,
-29,
16,
-14,
-25,
-33,
34,
2,
36,
15,
-13,
16,
-31,
-15,
-23,
33,
-8,
16,
-7,
2,
-32,
30,
-2,
0,
20,
-26,
-22,
45,
35,
-46,
-12,
4,
15,
-2,
-2,
9,
27,
-32,
-16,
-27,
-65,
-42,
-28,
-7,
-44,
-7,
20,
-23,
-9,
-39,
6,
-42,
1,
-26,
-58,
-38,
-7,
30,
-29,
4,
-47,
1,
-32,
-6,
-45,
39,
64,
-18,
-57,
63,
4,
-44,
0,
16,
-25,
52,
51,
-9,
14,
37,
13,
-42,
-53,
4,
41,
36,
28,
-18,
25,
5,
24,
23,
-12,
-5,
-42,
-37,
32,
-2,
-27,
-39,
0,
-5,
28,
-29,
54,
-35,
22,
-32,
0,
-2,
24,
-8,
27,
23,
14,
-28,
46,
-40,
-18,
32,
-43,
23,
-16,
6,
-72,
-19,
-8,
13,
35,
-42,
57,
11,
-11,
37,
-13,
5,
32,
-10,
-6,
2,
50,
-27,
-22,
-4,
-17,
-63,
-17,
50,
19,
24,
57,
42,
-34,
10,
2,
15,
-48,
-53,
-7,
16,
-31,
35,
-24,
41,
15,
5,
-79,
53,
0,
-28,
36,
32,
-23,
-53,
-59,
-7,
12,
-23,
-12,
8,
28,
48,
15,
-27,
11,
-3,
-24,
25,
-53,
-23,
15,
33,
19,
30,
65,
9,
-5,
-42,
15,
50,
6,
56,
70,
1,
22,
-21,
0,
16,
-2,
11,
17
] |
reported below: 308 Mich App 702. | [
-50,
-34,
-33,
-52,
-30,
34,
-5,
66,
13,
37,
-1,
14,
-61,
-14,
9,
37,
8,
-4,
-26,
1,
-33,
53,
-5,
-10,
-60,
49,
22,
27,
29,
-29,
-19,
39,
-56,
-11,
41,
-54,
18,
43,
36,
0,
11,
9,
50,
-12,
23,
-36,
50,
-20,
27,
-8,
10,
13,
6,
-69,
57,
3,
20,
13,
-54,
47,
52,
74,
49,
-12,
-17,
-36,
-16,
58,
46,
-1,
17,
38,
-14,
30,
-43,
-7,
46,
8,
-39,
13,
22,
-17,
-15,
13,
35,
-33,
0,
-6,
-57,
0,
42,
-27,
-43,
20,
31,
-13,
64,
-29,
-39,
44,
58,
-18,
21,
44,
-39,
-56,
46,
-14,
-36,
-63,
47,
-24,
46,
-19,
30,
47,
1,
56,
64,
16,
-9,
24,
-28,
-11,
14,
0,
41,
0,
-29,
6,
-23,
19,
-36,
-3,
40,
2,
4,
-30,
-14,
10,
-20,
-23,
11,
7,
21,
11,
-33,
5,
61,
-12,
-27,
5,
3,
37,
-39,
-59,
48,
2,
11,
-8,
15,
-68,
24,
-19,
-54,
12,
-9,
-12,
-46,
65,
50,
-22,
8,
-46,
-57,
-14,
-3,
68,
11,
86,
13,
-97,
-13,
-12,
-61,
48,
-7,
-51,
-23,
-56,
6,
-12,
39,
-40,
-39,
-12,
0,
21,
-53,
-67,
0,
-75,
0,
-33,
0,
-30,
-17,
-2,
-21,
-9,
45,
0,
32,
32,
70,
-40,
3,
6,
11,
-33,
25,
-27,
67,
-43,
14,
-40,
-35,
50,
0,
-2,
63,
11,
-32,
-21,
0,
-37,
-11,
51,
46,
21,
0,
-33,
0,
-36,
64,
33,
-46,
-38,
33,
-30,
21,
-29,
4,
-57,
-5,
39,
-25,
35,
21,
9,
-47,
-18,
27,
38,
-51,
53,
-57,
6,
-28,
20,
-23,
29,
-13,
-57,
-50,
21,
3,
1,
51,
30,
7,
-93,
-49,
31,
24,
13,
2,
-23,
-18,
-61,
10,
-9,
-5,
-57,
-41,
-51,
-21,
-72,
-20,
28,
-19,
6,
-37,
-8,
11,
9,
-3,
-75,
8,
-9,
-45,
-2,
56,
-19,
0,
-26,
41,
12,
47,
18,
23,
46,
-13,
8,
-51,
-56,
27,
13,
-52,
27,
31,
35,
-15,
44,
-56,
-1,
-25,
-50,
-8,
-15,
43,
2,
1,
71,
15,
22,
-33,
5,
-12,
-22,
-82,
35,
51,
59,
18,
61,
2,
31,
9,
2,
5,
25,
64,
-74,
-43,
-24,
-2,
2,
-5,
-15,
-31,
-1,
-25,
59,
53,
-10,
16,
0,
-59,
-6,
-1,
66,
-4,
28,
28,
43,
-50,
0,
-18,
43,
-15,
-30,
-19,
-10,
76,
-84,
19,
-28,
-10,
-82,
-1,
-18,
-2,
121,
10,
69,
32,
5,
7,
45,
-84,
27,
-31,
-26,
-11,
-1,
124,
-8,
-28,
-21,
9,
26,
-51,
15,
-13,
-63,
-28,
13,
-9,
74,
-7,
-14,
24,
53,
31,
-62,
-21,
-75,
-7,
-50,
37,
-25,
-12,
-7,
-10,
-51,
-62,
5,
10,
-15,
18,
6,
-79,
29,
4,
-1,
-39,
-8,
3,
-34,
-1,
-37,
-13,
18,
-53,
15,
23,
18,
56,
-35,
-16,
7,
-25,
24,
0,
-47,
8,
32,
0,
12,
24,
-14,
-13,
-28,
-51,
-32,
-1,
-23,
-91,
28,
42,
-65,
-10,
-7,
35,
22,
0,
-4,
-24,
16,
-32,
12,
-43,
-3,
-30,
-14,
-38,
16,
11,
-26,
34,
20,
-46,
20,
-64,
-33,
-8,
-78,
-6,
18,
-39,
-24,
-14,
15,
59,
12,
41,
4,
-32,
52,
-26,
-10,
63,
-36,
-8,
0,
-18,
27,
-48,
-1,
80,
5,
54,
12,
27,
55,
32,
9,
25,
0,
-33,
-43,
-67,
27,
22,
-26,
26,
9,
-10,
-14,
-58,
16,
-14,
-36,
-17,
15,
-26,
-29,
24,
-22,
-34,
40,
53,
-32,
16,
16,
35,
-50,
-5,
28,
21,
21,
26,
26,
14,
0,
45,
55,
52,
6,
-3,
-8,
-42,
33,
17,
23,
18,
44,
-19,
-9,
25,
-48,
-4,
10,
-6,
-33,
-35,
-1,
44,
-42,
-2,
-24,
26,
40,
-59,
22,
-24,
24,
6,
-9,
-46,
26,
48,
47,
97,
10,
26,
-12,
-6,
6,
13,
11,
63,
-62,
-21,
13,
66,
-87,
-30,
-27,
-30,
-10,
20,
22,
3,
40,
10,
15,
-11,
-14,
-48,
31,
-4,
11,
15,
14,
-19,
-19,
-24,
-7,
69,
25,
7,
39,
14,
-31,
10,
-23,
54,
52,
-88,
27,
-36,
-8,
-5,
48,
2,
77,
52,
-13,
-35,
-4,
-39,
18,
-9,
-24,
26,
52,
-29,
-15,
8,
-14,
14,
19,
-1,
12,
-36,
24,
-42,
-18,
-6,
-70,
3,
-53,
-4,
43,
-12,
-8,
-70,
-11,
-12,
-6,
-5,
41,
-37,
-9,
-22,
26,
-37,
27,
27,
-35,
-3,
-32,
15,
-4,
15,
55,
-21,
-36,
-42,
-6,
-14,
-68,
71,
-49,
-11,
56,
-46,
41,
-4,
-4,
10,
-77,
-33,
45,
24,
65,
-23,
0,
33,
65,
17,
-37,
-1,
-12,
-15,
7,
-28,
48,
-24,
-20,
-10,
20,
87,
0,
-39,
47,
50,
-22,
10,
40,
-43,
30,
-17,
-23,
-76,
-10,
-28,
-13,
-24,
-11,
15,
3,
-10,
3,
-5,
4,
67,
-86,
-5,
28,
22,
-64,
19,
51,
78,
-30,
-12,
-40,
34,
-21,
12,
37,
-36,
22,
-73,
-4,
-1,
43,
-1,
9,
-29,
-26,
71,
59,
33,
12,
-8,
-2,
23,
-27,
49,
-31,
-4,
13,
-10,
14,
7,
-25,
37,
65,
16,
24,
-31,
-78,
28,
-47,
12,
-15,
9,
7,
-19,
-53,
-51,
-57,
-1,
-24,
57,
-46,
-44,
32,
14,
-66,
30,
70,
38,
58,
13,
22,
12,
49,
-44,
2,
-15,
28,
69,
18,
6,
16,
6,
-21,
-19,
28,
56,
4,
13,
-11,
18,
-34,
13,
32,
63,
-70,
64,
-4,
0,
-4,
-24,
28,
12,
18,
20,
-32,
-18,
-18,
-2,
-7,
-51,
-59,
38,
20,
-27,
32,
12,
99,
-40,
-46,
-19,
13,
-37,
-16,
-14,
15,
-76,
15,
8,
10,
29,
-42,
48,
-44,
17,
-29,
20,
-13,
20,
13,
-39,
-17,
0,
-3,
-35,
-7,
-6,
-19,
-7,
-10,
4,
36,
10,
3,
-37,
16,
27,
-13,
-33,
9,
-32,
1,
48,
-18,
15,
36,
-35,
55,
41,
-4,
43,
26,
-17,
2,
27,
16,
7,
47,
-19,
-58,
12,
-4,
-32,
2,
-100,
49,
6,
4,
-25,
-22,
-15,
-47,
-7,
-23,
40,
-11,
28,
-52,
9,
53,
52,
-20,
-1,
-4,
-37,
-14,
0,
-42,
67,
16,
28,
32,
7,
-16,
-22,
-30,
26,
-33,
-2,
-32,
6,
31,
22,
73,
-42,
-42,
52,
-23,
1,
-54,
13,
-67,
68,
3,
-63,
31
] |
Leave to appeal denied at 498 Midi 899. | [
23,
-25,
-49,
5,
57,
68,
30,
22,
-32,
46,
-59,
38,
4,
-41,
-10,
42,
93,
13,
23,
-12,
2,
-3,
-6,
27,
-21,
-68,
38,
37,
-35,
-75,
24,
-23,
-27,
-58,
-49,
-37,
-54,
24,
-19,
27,
-39,
-22,
21,
11,
-10,
-63,
20,
27,
-40,
35,
-56,
40,
-54,
39,
-22,
62,
78,
-31,
-65,
40,
-47,
57,
11,
31,
18,
10,
-59,
-23,
10,
-52,
-28,
24,
1,
9,
-10,
28,
17,
88,
16,
51,
16,
-3,
3,
21,
45,
37,
49,
52,
13,
38,
-6,
-43,
-33,
18,
-84,
61,
4,
-33,
67,
-35,
-7,
2,
0,
-45,
-20,
-19,
3,
58,
-37,
7,
15,
-5,
-30,
-55,
24,
-48,
-38,
15,
36,
-26,
-22,
73,
54,
43,
58,
-9,
53,
0,
-53,
-79,
2,
54,
107,
50,
10,
-23,
74,
-85,
-60,
-73,
-61,
105,
37,
-13,
-15,
-60,
43,
0,
11,
-35,
9,
-18,
-14,
13,
-20,
5,
22,
-14,
55,
-22,
24,
45,
-34,
14,
67,
-7,
24,
16,
52,
44,
9,
22,
19,
-35,
-46,
9,
13,
12,
-24,
-27,
-30,
20,
-31,
43,
23,
-55,
8,
0,
-1,
-50,
-75,
-63,
88,
39,
29,
-29,
16,
-2,
-28,
-21,
-54,
59,
-60,
11,
52,
-21,
-27,
-15,
38,
29,
-38,
10,
-37,
-9,
36,
-10,
-25,
8,
35,
50,
-3,
85,
-41,
-57,
-62,
39,
1,
24,
8,
20,
-1,
66,
-11,
-23,
45,
-21,
30,
15,
74,
-44,
-89,
-16,
-27,
30,
28,
-41,
-31,
-12,
43,
-57,
57,
20,
28,
-54,
-33,
-25,
-17,
2,
2,
-19,
17,
-1,
40,
25,
-33,
15,
-28,
8,
59,
-15,
9,
9,
-6,
-56,
42,
26,
-9,
33,
70,
1,
-12,
5,
21,
-29,
-74,
24,
49,
-26,
-21,
35,
2,
9,
15,
40,
22,
-34,
-45,
64,
-1,
13,
0,
-2,
-31,
32,
51,
-61,
-35,
-52,
73,
-1,
24,
-45,
-15,
27,
10,
-76,
2,
-93,
-36,
-42,
25,
-11,
12,
55,
-10,
29,
-20,
61,
40,
29,
19,
57,
-30,
66,
18,
92,
-1,
-51,
-42,
36,
-44,
57,
-35,
7,
-19,
-13,
-85,
-16,
47,
25,
16,
44,
1,
-65,
23,
99,
-49,
-56,
-41,
52,
39,
-67,
16,
23,
27,
-38,
34,
53,
-19,
28,
-84,
-22,
53,
-53,
25,
74,
-15,
-39,
11,
-60,
1,
-57,
-31,
-2,
0,
11,
20,
19,
30,
62,
-7,
-56,
-42,
-30,
1,
0,
40,
75,
14,
46,
-65,
-32,
-66,
32,
-43,
-3,
1,
0,
-29,
73,
-9,
31,
11,
28,
-46,
12,
82,
-9,
-9,
8,
-28,
-72,
-67,
-2,
-39,
41,
-84,
14,
-15,
22,
-35,
-35,
-4,
-43,
-46,
23,
20,
-4,
-20,
33,
-63,
-49,
28,
-57,
14,
-69,
-19,
-15,
-93,
-29,
-16,
2,
18,
-6,
-30,
-56,
-53,
84,
5,
-13,
-67,
-11,
-41,
95,
30,
8,
-69,
48,
9,
-35,
10,
9,
1,
1,
22,
-24,
-27,
-60,
-5,
-54,
-1,
-1,
-9,
-24,
51,
24,
-20,
-6,
-38,
-7,
-44,
66,
54,
7,
-47,
67,
42,
-27,
26,
12,
-51,
-11,
0,
2,
28,
-54,
-6,
-48,
9,
2,
10,
-20,
19,
3,
-14,
79,
-47,
32,
-23,
-58,
-32,
-9,
28,
13,
26,
8,
-88,
8,
0,
57,
-23,
-30,
17,
48,
-20,
-95,
30,
-12,
-88,
49,
17,
-34,
-30,
33,
-13,
54,
-40,
-43,
-58,
20,
42,
20,
-56,
11,
-17,
-30,
23,
-11,
10,
-17,
-18,
-14,
-18,
12,
-31,
-23,
-14,
61,
15,
36,
76,
45,
-17,
38,
53,
2,
44,
10,
7,
-14,
-40,
15,
38,
-15,
0,
-75,
-55,
-1,
-6,
-24,
-69,
2,
-26,
-81,
6,
-3,
10,
-30,
-54,
96,
-73,
17,
-8,
1,
0,
11,
-8,
5,
0,
-14,
-32,
72,
25,
-1,
-40,
-23,
52,
49,
11,
-26,
82,
66,
-24,
-64,
-85,
-12,
-5,
19,
65,
15,
-8,
58,
1,
-28,
17,
48,
-23,
28,
-39,
78,
48,
-7,
-12,
-26,
5,
-3,
20,
-78,
0,
-17,
23,
58,
4,
-52,
31,
63,
-6,
-56,
6,
-4,
-23,
52,
-2,
41,
-61,
-47,
-4,
26,
80,
34,
-68,
43,
57,
-12,
-28,
-11,
41,
-13,
-46,
27,
-20,
-72,
11,
-21,
-5,
-40,
14,
-14,
-7,
74,
54,
8,
67,
-5,
-19,
-3,
12,
53,
-11,
23,
23,
19,
46,
-11,
30,
-4,
-26,
-48,
-17,
-15,
-4,
-18,
36,
-14,
123,
-29,
-34,
-11,
28,
1,
67,
1,
-59,
-9,
3,
55,
17,
7,
56,
35,
-16,
-15,
-16,
-33,
-47,
-5,
18,
21,
58,
6,
-48,
-8,
4,
-26,
-17,
35,
24,
-46,
-16,
-45,
-3,
1,
-51,
48,
-32,
10,
0,
33,
35,
37,
30,
-39,
-30,
-12,
24,
11,
-21,
1,
51,
64,
39,
-62,
67,
-38,
-28,
5,
-1,
30,
35,
8,
4,
-19,
-72,
32,
44,
-5,
-84,
-16,
-25,
-39,
26,
-78,
-34,
-13,
27,
6,
19,
-53,
12,
-5,
-4,
12,
24,
23,
2,
-18,
-29,
-6,
-16,
-37,
16,
-12,
-60,
4,
39,
-48,
52,
60,
5,
-23,
34,
31,
-30,
25,
8,
-47,
17,
60,
35,
31,
4,
7,
81,
-5,
-70,
-66,
-15,
-89,
63,
11,
-17,
-43,
16,
-19,
0,
-55,
-10,
-17,
-5,
-48,
2,
-24,
8,
35,
-8,
8,
-50,
22,
50,
10,
35,
20,
20,
62,
-31,
32,
50,
-22,
53,
13,
-20,
-77,
35,
13,
-24,
70,
-9,
-35,
-9,
27,
23,
-33,
-11,
-19,
33,
-9,
-3,
27,
27,
18,
78,
-23,
-42,
32,
26,
19,
30,
36,
-40,
2,
4,
-60,
-37,
-30,
41,
-28,
13,
1,
-6,
-9,
-36,
14,
-6,
-69,
64,
-84,
-91,
41,
-42,
-23,
12,
-11,
-5,
-17,
31,
-33,
-31,
5,
33,
-93,
52,
-39,
-9,
-18,
-4,
-11,
-16,
-68,
-17,
2,
31,
73,
-30,
-3,
-24,
16,
-85,
54,
-6,
-8,
13,
-24,
31,
-49,
-2,
16,
-53,
1,
-74,
0,
-11,
-3,
34,
48,
-44,
-12,
17,
20,
-26,
20,
63,
9,
36,
-34,
-50,
36,
-57,
-35,
37,
-4,
-4,
-62,
21,
-53,
-42,
-20,
-15,
46,
8,
-29,
-16,
19,
17,
-26,
41,
9,
-57,
35,
6,
65,
82,
27,
20,
-51,
14,
34,
46,
-27,
53,
0,
35,
-7,
22,
36,
-15,
-37,
20,
13,
-40,
124,
0,
-27,
-42,
-32
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.