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ON REMAND
Before: Hood, P.J., and Cavanagh and D. A. Teeple, JJ.
Per Curiam.
Defendant seeks reversal of that part of the November 1, 1991, order of the Worker’s Compensation Appeal Board that held that the one-year-back rule for nursing or attendant care does not apply to this case.
On June 3, 1980, plaintiff filed a petition for a hearing, alleging a work-related injury to her back that occurred on April 16, 1980. An open award of benefits beginning on May 8, 1980, plaintiffs last day of work, was entered by a hearing referee. Neither party appealed.
In January 1982, plaintiff filed a new petition, requesting a change in the weekly rate of compensation, reimbursement of medical expenses, and penalties. The hearing referee found that plaintiff’s petition was barred by res judicata and denied her claim by order mailed on November 24, 1982. The wcab affirmed in a decision dated April 14, 1983.
Plaintiff filed the petition at issue here on November 14, 1985, requesting payment of nursing care or attendant care expenses required as a result of the injuries sustained in April 1980. Plaintiff testified that beginning about ten months after her injury, her condition severely deteriorated. Plaintiff testified that she now has tolerable days and bad days, which come in three-day cycles. She testified that on bad days she vomits frequently and has diarrhea at the same time. She is unable to take medication or eat and cannot go to the bathroom without assistance. She testified that on those days her husband, who provides the home care, never leaves her side. Plaintiff testified that by the third day of the cycle, she is able to eat and feed herself. However, she testified that even on her tolerable days, she has bowel movements four to six times a day, after which she requires extensive care by her husband. Plaintiff testified that her husband gives her baths and washes her hair, because she passes out when she lifts her hands over her head to rinse her hair or otherwise wash herself. She testified that her husband helps her move from room to room, because she has difficulty walking and orienting herself. Her husband performs all the work around the house, including meal preparation for the two of them.
In a decision mailed on December 7, 1987, a worker’s compensation magistrate granted plaintiffs petition, finding that she had proven by a preponderance of the evidence that her husband provided reasonable and necessary home nursing care eight hours a day, seven days a week. The magistrate ordered defendant to pay nursing care benefits in the amount of $480 a week from February 16, 1981, until further order.
Defendant appealed, and, in a decision and order dated November 1, 1991, the wcab affirmed with modification. The wcab reduced the award of benefits to $262.50 a week from March 1, 1981, to November 4, 1987, with the benefits thereafter being in the amount specified by the magistrate. The wcab found that the record demonstrated that plaintiffs need for nursing care had increased with time.
In addition to finding that plaintiff had proven the need for nursing or attendant care, the wcab rejected defendant’s argument that plaintiffs claim was barred by res judicata or limited by the one-year-back rule of § 381(3), MCL 418.381(3), MSA 17.237(381X3), which provides:
Payment for nursing or attendant care shall not be made for any period which is more than 1 year before the date an application for hearing is filed with the bureau.
The wcab held that § 381(3) applies only to injuries occurring on or after the effective date of the statute, July 30, 1985. Because plaintiffs original injury occurred in 1980, the wcab held that § 381(3) is inapplicable.
This Court denied defendant’s original application for leave to appeal. Although the Supreme Court initially denied defendant’s application to that Court, on motion for reconsideration the Supreme Court remanded to this Court for consideration as on leave granted of defendant’s claim that § 381(3) applies here.
In Ivezaj v Federal Mogul Corp (On Remand), 197 Mich App 462, 465; 495 NW2d 800 (1992), this Court held:
The long-standing rule in workers’ compensation cases requires application of the law in effect at the time of the relevant injury unless the Legislature clearly indicates a contrary intention. Nicholson v Lansing Bd of Ed, 423 Mich 89, 93; 377 NW2d 292 (1985). We find no clear indication by the Legislature that [§ 381(3)] should apply retroactively. Furthermore, we decline to assert that subsection 3 must be applied retroactively as "re medial” legislation when it would divest [plaintiff] of her right to ten years of benefits — a right established with the filing of her petition and introduction of sufficient proofs to establish the need for nursing services.
Although defendant admits that the general rule is that the law in effect on the date an injury is received controls, defendant notes that plaintiff did not request nursing care benefits until she filed the supplemental petition in October, 1985, after the effective date of § 381(3). Defendant contends that the one-year limitation should apply and that plaintiff should not be entitled to benefits payable for any week before October 1984.
This issue of first impression did not arise in Ivezaj, because the petition for reimbursement of nursing or attendant care expenses in that case was filed well before the amendment took effect. We note, however,, that Ivezaj cites Nicholson as authority for the general rule regarding application of the worker’s compensation law in effect the date of injury. Nicholson in turn cites Wallin v General Motors Corp, 317 Mich 650, 652-653; 27 NW2d 122 (1947), and Wallin quotes with approval the following passages from Thomas v Continental Motors Corp, 315 Mich 27, 35-36; 23 NW2d 191 (1946):
"[P]laintiff relies on Allen v Kalamazoo Paraffine Co, 312 Mich 575 [20 NW2d 731 (1945)]. However, the Allen case does not refer either to dependency compensation after death, or to death benefits. It holds that the cause of action for the loss of an eye accrues when the loss occurs, i.e., when the employee suffers loss of industrial vision, and that compensation for the disability is fixed by the statute in effect at the time the loss of industrial vision occurred. Plaintiff also relies on Mason v Michigan Trading Corp, 308 Mich 702 [14 NW2d 545 (1944)]. This case dealt with a claim by the widow of a deceased employee for expenses of her husband’s last illness and for $200 funeral expenses. No claim for dependency compensation was involved in the case. The court held that the widow’s right of action for death benefits, namely, expenses of last sickness and funeral, did not accrue until the death of her husband, and therefore the statue in effect at the date of death controls.
"... The instant case involves both dependency compensation and death benefits. While the right of action for death benefits accrues at the date of death of the employee, the right of action for dependency compensation because of death arises at the date of disability, at which time 'the right to the compensation springs into existence.’ ”
In this case, the wcab affirmed the magistrate’s finding that plaintiff had proved by a preponderance of the evidence that her husband provided reasonable and necessary home nursing care for her since 1981. We hold that, by analogy with Thomas, the statute in effect at the time plaintiff’s claim for nursing benefits accrued applies. Because plaintiff’s claim for such benefits accrued in 1981, before the addition of the one-year-back rule, the wcab did not err in refusing to limit the award of nursing care benefits.
We note that in Riza v Delray Baking Co, 200 Mich App 169, 176-177, 177, n 1; 504 NW2d 193 (1993), a panel of this Court questioned the holding in Ivezaj that the one-year-back rule in § 381(3) is not remedial and should not be applied retroactively. Because the issue whether § 381(3) should be applied retroactively because it is remedial was not raised by defendant either before this Court or before the wcab, that issue has not been preserved for appellate consideration and must be considered waived. Achtenberg v East Lansing, 421 Mich 765, 773; 364 NW2d 277 (1985); Wiand v Wiand, 178 Mich App 137, 150; 443 NW2d 464 (1989). | [
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Sawyer, P.J.
Petitioner appeals from an order of the Tax Tribunal denying petitioner’s motion for determination of interest on a tax refund. We reverse.
Petitioner owns property located within respondents’ jurisdictions that is subject to the ad valorem property tax. Petitioner had challenged the 1981 assessment of the subject property and, in 1988, prevailed in the Tax Tribunal. The 1981 assessment was lowered from $6,794,200 to $4,620,-450. Respondent school district appealed that decision, and this Court affirmed. Unpublished opinion per curiam, decided February 23, 1990 (Docket No. 111742). Thereafter, the Supreme Court denied leave. 437 Mich 915 (1991). Respondents did not pay the tax refund due petitioner until after the final action in the Supreme Court. They then tendered the unlawfully charged property tax, but paid only simple interest from the date petitioner paid the tax until the date respondents paid the refund. Petitioner moved in the Tax Tribunal for a determination of the interest due on the refund, arguing that interest should have been calculated on the amount of the unlawfully charged tax from the date of the payment of the tax to the date of judgment in the Tax Tribunal (at simple interest), and then interest calculated on the entire amount of the judgment (including the prejudgment interest) from the date of judgment to the date of payment (again, at simple interest). Under petitioner’s calculation of interest, the interest that is due would increase by approximately $24,000.
The sole question presented on appeal is what method of calculation of interest should be employed, and that question appears to be one of first impression. For the reasons expressed below, we agree with petitioner’s interpretation of the statute.
MCL 205.737(4); MSA 7.650(37)(4) provides in pertinent part as follows:
... A sum determined by the tribunal to have been unlawfully paid shall bear interest from the date of payment to the date of judgment and the judgment shall bear interest to date of its payment.
Petitioner’s argument is one solely of statutory interpretation. Petitioner argues that the statute, by explicitly referring to two different interest calculation periods, prejudgment and postjudgment, reflects an intent that prejudgment interest is to be included in the judgment and that the judgment will bear interest on the entire amount, including the prejudgment interest. Respondent school district argues that interest must be calculated as purely simple interest unless there is statutory authorization for awarding compound interest.
Respondent is certainly correct that the general rule is that interest shall be simple interest unless there is specific authorization for compound interest. Norman v Norman, 201 Mich App 182, 184; 506 NW2d 254 (1993). That, however, does not resolve the question before us, because the question posited by petitioner is whether the above statute, in fact, does authorize the "compounding” of interest by including prejudgment interest in the sum upon which postjudgment interest is calculated.
Respondent also relies upon the Supreme Court’s decision in Gage v Ford Motor Co, 423 Mich 250; 377 NW2d 709 (1985). However, respondent’s reliance on Gage is misplaced. Gage did not involve the interpretation of the statute at issue here, but rather involved the general judgment interest statute, MCL 600.6013; MSA 27A.6013. Moreover, the corresponding language in that statute interpreted by the Gage Court contains a significant difference from the language of the statute in the case at bar. Specifically, the statute interpreted by Gage provided that interest was to be calculated from the date of the filing of the complaint to the date of satisfaction of the judgment. Gage, supra at 253. There was no similar temporal demarcation as that contained in the statute at issue here, which specifically directs that interest is to be calculated from the date of the payment of the unlawful tax until the date of judgment and then interest is also to be calculated from the date of judgment to the date of satisfaction. Finally, the Gage decision did not directly involve an issue of compound interest versus simple interest, but rather the application of an amendment of the general interest statute that provided for the compounding of interest and how that statute was to be applied to judgments rendered before the effective date of the amendment. At best, Gage stands for the proposition that interest shall be calculated as simple interest unless it is provided explicitly otherwise.
Accordingly, we must turn to the general principles of statutory construction in order to resolve the interpretation question now before us. The cardinal rule of statutory construction is to give effect to the Legislature’s intent. Gage, supra at 260. Similarly, we must give meaning to all words in a statute, because we will not presume that the Legislature intended to do a useless thing. Girard v Wagenmaker, 437 Mich 231, 244; 470 NW2d 372 (1991).
This then raises the question why the Legislature in drafting MCL 205.737(4); MSA 7.650(37)(4) specifically would segregate the calculation of interest to two time periods, namely, interest before judgment and interest after judgment. Had the Legislature intended to provide for purely simple interest calculated from the date of the payment of the unlawful tax to the date of satisfaction of judgment, then it simply could have said so. That is, the Legislature could have employed language similar to that used in the Revised Judicature Act concerning interest on money judgments, MCL 600.6013; MSA 27A.6013, and merely said that interest shall be calculated from the date of the payment of the tax until the date of the payment of the refund, or words to that effect. Instead, the Legislature chose to employ additional words and to segregate the two different interest periods.
We must, consistent with the rules of statutory construction, interpret the statute so as to give meaning to those additional words and to give effect to the legislative intent. The only intent we can derive from the language employed by the Legislature is that it intended that prejudgment interest, that is to say interest from the date of the payment of the tax until the date of the Tax Tribunal’s judgment, must be included in the judgment itself. Interest is then to be calculated from the date of judgment to the date of satisfaction on the basis of the entire amount of the judgment, including the prejudgment interest. This interpretation will give meaning to the demarcation created in the statute between prejudgment and post-judgment interest and, therefore, will give effect to the Legislature’s intent. Furthermore, this principle is consistent with the principle that the general judgment interest statute, MCL 600.6013; MSA 27A.6013, is remedial in nature and is to be construed liberally in favor of a plaintiff. McKelvie v Auto Club Ins Ass’n, 203 Mich App 331, 339; 512 NW2d 74 (1994).
For the above reasons, we conclude that the Tax Tribunal erred in its interpretation of the interest provisions of the statute. On remand, the Tax Tribunal shall calculate the amount of additional interest owed by respondents in a manner consistent with this opinion.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Petitioner may tax costs.
The remaining respondents have not filed briefs on appeal.
We note that it is not truly accurate to refer to petitioner’s method of calculating interest as providing for compound interest. We refer to it as such solely for ease of distinction between the two proposed methods of calculating interest. | [
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] |
Per Curiam.
In Docket No. 156321, Consumers Power Company claims an appeal from an order entered on August 30, 1990, by the Public Service Commission (psc) in Case No. U-9561, granting the complaint filed by plaintiff, City of Marshall, and enjoining Consumers from extending electric service to Progressive Dynamics, Inc., without first seeking to obtain a certificate of public conve nience and necessity (cpcn) pursuant to 1929 PA 69 (Act 69), MCL 460.501 et seq.; MSA 22.141 et seq. Consumers’ original claim of appeal was dismissed by this Court for lack of jurisdiction for the reason that the August 30, 1990, order issued by the psc was not appealable as of right pursuant to MCL 462.26(1); MSA 22.45(1). Unpublished order of the Court of Appeals, decided August 14, 1991 (Docket No. 132581). Our Supreme Court remanded the case to this Court for consideration as on leave granted. This Court was directed to determine whether it has jurisdiction over the appeal by claim or otherwise. Sub nom In re Complaint of the City of Marshall Against Consumers Power Company, 440 Mich 914 (1992).
In Docket No. 156322, Consumers appeals an order entered on February 15, 1990, by the Calhoun Circuit Court enjoining it from connecting or providing electric service to Progressive during the pendency of the case before the psc. This order is before this Court for the third time. Originally, this Court vacated the circuit court’s order and dismissed the matter for lack of subject-matter jurisdiction. This Court’s order stated that no statutory authority recognized equitable intervention in aid of psc proceedings. Unpublished order of the Court of Appeals, decided July 2, 1990 (Docket No. 126502). Our Supreme Court remanded the case for consideration as on leave granted. 435 Mich 881 (1990). Thereafter, this Court dismissed the appeal as moot. This Court’s order stated that the psc’s order of August 30, 1990, prohibiting Consumers from extending service to Progressive without first seeking to obtain a cpcn had the same effect as the preliminary injunction issued by the circuit court. Unpublished order of the Court of Appeals, decided August 14, 1992 (Docket No. 132884). Our Supreme Court remanded the case for consideration as on leave granted. 440 Mich 914 (1992).
In Docket No. 156464, Consumers claims an appeal from an order entered on August 25, 1992, by the psc in Case No. U-10006, granting the complaint filed by the city, ordering Consumers to discontinue providing electric service to the Marshall Training Center (mtc), and directing that Consumers not restore such service without first obtaining a cpcn.
This Court consolidated the cases for purposes of hearing and decision. We affirm in each case.
FACTS PERTINENT TO DOCKET NOS. 156321 AND 156322
Electric service in Marshall, Michigan, is provided by the city and Consumers. The city owns and operates the municipal electric utility. The utility provides electric service throughout the municipality to all but sixteen residents and businesses within the city limits. Consumers, a privately owned public utility, provides electric service to and conducts an electricity business in the city pursuant to a franchise granted to its predecessor, Jackson Light & Power Company. 1905 PA 264, popularly known as the Foote act, granted a franchise to electric utilities, including those in municipalities, to use the streets to conduct an electricity business and to transmit electric power. Consumers provides electric service to sixteen customers within the city. Ten of the sixteen customers receive electric service from both Consumers and the city. Consumers has only four exclusive customers within the City of Marshall.
In December 1989, the city learned that Consumers was planning to construct a line to extend service to Progressive Dynamics, an exclusive customer of the city. On December 26, 1989, the city filed with the psc a formal complaint alleging that Consumers was required to obtain a cpcn before constructing facilities for or providing electric service to Progressive. The city alleged that allowing Consumers to provide electric service to Progressive without first obtaining a cpcn would result in an unnecessary duplication of facilities, would not serve the public convenience, and would constitute an attempt by Consumers to unlawfully take a customer from the city’s exclusive territory.
In January 1990, the city filed an action in the Calhoun Circuit Court seeking to enjoin Consumers from serving Progressive until the psc acted on its complaint. In a preliminary injunction dated February 15, 1990, the circuit court, James Kingsley, J., enjoined Consumers from providing electric service to Progressive while the matter was pending before the psc.
In the proceedings before the psc, Consumers moved to dismiss the city’s complaint, arguing that it was not required to obtain a cpcn pursuant to Act 69 because it had a Foote act franchise, which predated Act 69, to provide electric service to any customer located within the City of Marshall. Consumers relied on Traverse City v Consumers Power Co, 340 Mich 85; 64 NW2d 894 (1954), in which the Supreme Court held that a Foote act franchise constituted a vested contractual right that could not be impaired by abrogation of the Foote act by a subsequently adopted constitutional provision, Const 1908, art 8, § 28.
In response to the motion, the city argued that the provisions of Act 69 applied to activities undertaken by utilities after April 23, 1929, the effective date of the act. Moreover, assuming that Consumers had a valid Foote act franchise, application of Act 69 would not be retroactive because the city was not contending that Consumers should obtain a cpcn to serve customers it had been serving before 1929. The city argued that Traverse City, supra, was not controlling because that case dealt with an attempt by the city to preclude the utility from constructing facilities in any part of the city that it or its predecessors in interest had not previously served and because it did not address the impact of or refer to Act 69. In that case the utility intended to serve a new customer.
On May 22, 1990, the psc hearing officer issued a proposal for decision, finding that, in light of the holding in Traverse City, supra, a utility operating under a Foote act franchise has the right to extend service throughout a municipality and holding that Consumers was not required to obtain a cpcn before extending service to Progressive or to any other customer in the City of Marshall. The hearing officer recommended that the city’s complaint be dismissed.
On August 30, 1990, the psc issued its opinion and order. The psc found that Traverse City, supra, was distinguishable because it dealt with an injunction that barred the utility from constructing facilities in any part of the city that it or its predecessors in interest had not previously served and because it dealt with the utility’s desire to serve a new customer. The psc concluded that, in light of these differences, Traverse City, supra, did not support dismissal of the city’s complaint.
In addition, the psc rejected Consumers’ argument that Act 69 required a utility to obtain a cpcn only when the utility constructs facilities or provides service within the municipality for the first time. The psc found that this interpretation could lead to a significant amount of waste. Act 69 was designed to preclude such unnecessary duplication. While the application of Act 69 does not limit a utility’s ability to compete with the munici pality for new customers, it regulates the utility’s ability to take existing customers from a municipality.
Given its resolution of the case, the psc declined to reach the issues whether Consumers holds a valid Foote act franchise and whether Act 69 was intended to have prospective or retroactive effect. The psc also declined to prohibit Consumers from extending service to any other customer located within the city limits.
The psc ordered that Consumers’ motion to dismiss was denied, and that the city’s complaint was granted. Consumers was prohibited from extending service to Progressive without first seeking to obtain a cpcn. The psc reserved jurisdiction and the authority to issue further orders as the facts and circumstances required.
FACTS PERTINENT TO DOCKET NO. 156464
In 1968, Consumers purchased the mtc and began erecting buildings on the property. The city provided electric service to the mtc and continued to do so after Consumers purchased the property. On October 18, 1991, Consumers bypassed the city’s service and began providing its own service to the mtc. Consumers installed a generator and constructed service drops. The service provided by Consumers was identical to that provided by the city. On October 18, 1991 the city filed a complaint with the psc challenging Consumers’ attempt to provide service to the mtc without first obtaining a cpcn. On November 12, 1991, Consumers filed a motion to dismiss the complaint. Consumers denied that providing electric service to its own facility would constitute either serving a retail customer or an unnecessary duplication of facilities.
In an order entered on August 25, 1992, the psc held that its decision in Case No. U-9561 was controlling. The psc did not agree that any Foote act franchise held by Consumers obviated the need for Consumers to obtain a cpcn. The psc found that compliance with the requirements of Act 69 was distinct from compliance with franchise requirements.
DISCUSSION OF DOCKET NOS. 156321 AND Í56464
This Court dismissed Consumers’ claim of appeal from the psc’s order of August 30, 1990, for lack of jurisdiction, because the order was not appealable as of right pursuant to MCL 462.26(1); MSA 22.45(1). In remanding the case for consideration as on leave granted, our Supreme Court directed this Court to consider whether this Court has jurisdiction over the appeal by leave or otherwise. The issue of jurisdiction applies to both Docket Nos. 156321 and 156464, because the same type of order was issued by the psc in each case.
MCL 462.26(1); MSA 22.45(1) provides in part:
Except as otherwise provided ... in this section, any common carrier or other party in interest, being dissatisfied with any order of the commission fixing any rate or rates, fares, charges, classifications, joint rate or rates, or any order fixing any regulations, practices, or services, may within 30 days from the issuance and notice of that order file an appeal as of right in the court of appeals.
Although Consumers is a party in interest and is dissatisfied with the psc’s orders, it does not have an appeal of right from the orders of August 30, 1990, and August 25, 1992. The orders prohibit Consumers from extending electric service to Progressive and the mtc without first seeking to ob tain a cpcn pursuant to Act 69. That which is involved in these cases is a service, i.e., the provision of electricity. The psc’s orders do not fix the service and do not determine with finality whether Consumers can supply electricity to these customers. Consumers must apply for the cpcn, a hearing must be held, and the psc must issue an order granting or denying the cpcn before the question whether Consumers may render service to the customers will be final (fixed). Any party aggrieved by an order granting or denying a cpcn would have an appeal of right to this Court pursuant to MCL 462.26(1); MSA 22.45(1).
In addition, we conclude that this Court has no jurisdiction over the appeal by leave. Pursuant to MCL 600.308(2)(d); MSA 27A.308(2)(d), our Supreme Court has determined that this Court may grant leave to appeal from "any other judgment or order appealable to the Court of Appeals by law or rule.” MCR 7.203(B)(4). No party has pointed to any law or rule that allows a party aggrieved by an order of the type entered by the psc on August 30, 1990, and August 25, 1992, to seek leave to appeal.
Notwithstanding our conclusion that we lack jurisdiction over the appeals by right or by leave, we consider the substance of the issue raised in Docket Nos. 156321 and 156464 pursuant to our Supreme Court’s remand order.
Consumers argues that pursuant to 1905 PA 264, the Foote act, it has a franchise to provide electric service to customers within the City of Marshall. This franchise created contractual rights that were not destroyed by the abrogation of the Foote act by Const 1908, art 8, § 28. Traverse City, supra at 103; see also Lansing v Michigan Power Co, 183 Mich 400; 150 NW 250 (1914); Village of Constantine v Michigan Gas & Electric Co, 296 Mich 719; 296 NW 847 (1941). The franchise gives Consumers the right to provide electric service to any customer within the City of Marshall and imposes on it the duty to do so upon reasonable demand.
The language of Act 69, § 2, MCL 460.502; MSA 22.142, which speaks of a utility beginning construction of a plant or system, indicates that a utility that commences operation in a municipality after April 23, 1929, the effective date of the act, must first obtain a cpcn. Consumers asserts that because it was operating within the City of Marshall before 1929 pursuant to its Foote act franchise, it is not seeking to commence operations. Rather, it is seeking to extend service to a customer within the city limits. It does not propose to render service outside its present service area; therefore, no cpcn is needed. Indiana & Michigan Electric Co v Miller, 19 Mich App 16, 21; 172 NW2d 223 (1969).
The standard of review for psc orders is narrow and well established. Pursuant to MCL 462.25; MSA 22.44, all rates, fares, charges, classification and joint rates, regulations, practices, and services prescribed by the psc are presumed, prima facie, to be lawful and reasonable. Michigan Consolidated Gas Co v Public Service Comm, 389 Mich 624; 209 NW2d 210 (1973). A party aggrieved by an order of the psc bears the burden of proving by clear and satisfactory evidence that the order is unlawful or unreasonable. MCL 462.26(8); MSA 22.45(8). The term "unlawful” has been defined as an erroneous interpretation or application of the law, and the term "unreasonable” has been defined as unsupported by the evidence. Associated Truck Lines, Inc v Public Service Comm, 377 Mich 259; 140 NW2d 515 (1966). Moreover, Const 1963, art 6, § 28 also applies, and provides that a final agency order must be authorized by law and be supported by competent, material, and substantial evidence on the whole record. See Attorney General v Public Service Comm, 165 Mich App 230, 235; 418 NW2d 660 (1987). A reviewing court gives due deference to the psc’s administrative expertise and is not to substitute its judgment for that of the psc. Yankoviak v Public Service Comm, 349 Mich 641, 648; 85 NW2d 75 (1975); Building Owners & Managers Ass’n of Metropolitan Detroit v Public Service Comm, 131 Mich App 504, 517; 346 NW2d 581 (1984), aff’d 424 Mich 494; 383 NW2d 72 (1986).
Section 2 of Act 69, MCL 460.502; MSA 22.142, reads:
No public utility shall hereafter begin the construction or operation of any public utility plant or system thereof nor shall it render any service for the purpose of transacting or carrying on a local business either directly, or indirectly, by serving any other utility or agency so engaged in such local business, in any municipality in this state where any other utility or agency is then engaged in such local business and rendering the same sort of service, or where such municipality is receiving service of the same sort, until such public utility shall first obtain from the commission a certificate that public convenience and necessity requires or will require such construction, operation, service, or extension.
Consumers’ argument that by virtue of its Foote act franchise it has the right and the duty to serve any customer in the franchise area is without merit. Consumers relies on Indiana & Michigan, supra, in which this Court held that the utility did not need a cpcn to construct a wire across the defendant’s farm, for the proposition that the existence of a Foote act franchise allows it to extend service to any customer in an area regardless of whether that customer is alreády being served by another utility. This reliance is misplaced. That case does not indicate that the utility was attempting to provide service to an existing customer of another utility. Indiana & Michigan, supra, relied on the decisions of our Supreme Court in Huron Portland Cement Co v Public Service Comm, 351 Mich 255; 88 NW2d 492 (1958), and Panhandle Eastern Pipe Line Co v. Public Service Comm, 328 Mich 650; 44 NW2d 324 (1951). Those cases made it clear that Act 69 was enacted to prevent duplication of facilities and the waste inherent in situations in which a public utility seeks to serve another utility’s existing customer.
The cases recognizing the validity of a Foote act franchise, including Traverse City, supra, do not address the issue of the impact of subsequent regulation by the state pursuant to its police powers, as it did by the enactment of Act 69. The Foote act and Act 69 are not inherently inconsistent. The Act 69 cpcn requirement applies in specific circumstances, such as those in the instant cases, when duplication would result by virtue of extension of service by one utility to the existing customer of another utility.
Nothing in the Foote act grants a franchisee priority over other utilities in the area. Public Service Comm v Cheboygan, 324 Mich 309, 325; 37 NW2d 116 (1949). Moreover, Consumers’ argument that the failure to refer to extension of service at the beginning of MCL 460.502; MSA 22.142 ignores the fact that at the end of the single sentence encompassing this section there is language that clearly provides that no extension of service can occur without first obtaining a cpcn. The language of the statute supports the position taken by the city rather than that taken by Consumers.
Assuming arguendo that Consumers has a valid Foote act franchise, the fact that the franchise predates Act 69 does not make the application of Act 69 a retroactive application. The psc’s orders do not apply the requirements of Act 69 to service extended by Consumers to any customer obtained before 1929. Consumers does not argue that in the absence of a valid Foote act franchise it would not be required to seek a cpcn to extend service either to Progressive or to the mtc. Under the psc’s analysis, Act 69 applies regardless whether Consumers has a valid Foote act franchise.
Consumers has not met its burden of showing that the psc’s orders of August 30, 1990, and August 25, 1992, were unlawful or unreasonable.
We note that, ultimately, Consumers applied for a cpcn to serve Progressive. In an order entered on May 6, 1992, by the psc in Case No. U-10005, the application was dismissed. Consumers did not appeal that order. Presumably, Consumers is proceeding with the appeal in Docket No. 156321 on the theory that because of the existence of its Foote act franchise, it was never actually required to apply for the cpcn. Nothing indicates that Consumers has applied for a cpcn to serve the MTC.
DISCUSSION OF DOCKET NO. 156322
Consumers argues that the circuit court lacked jurisdiction to issue an injunction in this case. The psc has exclusive jurisdiction to determine which utility may render electric service to a customer. MCL 460.502; MSA 22.142. Because the psc has exclusive jurisdiction, the circuit court lacked equity jurisdiction to enter a preliminary injunction. Fletcher Paper Co v Detroit & Mackinac R Co, 175 Mich 234; 141 NW 613 (1913). The city’s reliance on Consumers Power Co v Public Service Comm, 415 Mich 134; 327 NW2d 875 (1982), for the proposition that the circuit court had jurisdiction to enter a preliminary injunction in this case, is misplaced. In that case, the psc had acted and found that Consumers was entitled to increased rates, but delayed entering a final order. The circuit court entered an injunction allowing Consumers to post a bond and collect the increased revenues subject to refund following final psc action and appellate review. The circuit court action was upheld. In this case, the psc had not acted before injunctive relief was sought, and the city did not post a bond. Consumers asserts that Consumers Power, supra, is distinguishable and does not support the circuit court’s exercise of its powers of equity under the circumstances of this case.
Initially, we note that the circuit court dissolved the preliminary injunction at issue here on July 18, 1990. Moreover, in its order of August 30, 1990, the psc granted the city’s formal complaint and prohibited Consumers from extending electric service to Progressive without first seeking to obtain a cpcn. This clause in the psc’s order had the same effect as the preliminary injunction issued by the circuit court. Resolution of this issue will make no practical difference in this matter. Nevertheless, by virtue of our Supreme Court’s order remanding the case, this Court is obligated to consider the merits of the issue.
The power to regulate electric service is vested exclusively in the psc. MCL 460.502; MSA 22.142. Circuit courts are courts of equity, and have jurisdiction in all matters not prohibited by law. Const 1963, art 6, § 13. MCL 460.502; MSA 22.142 does not deprive the circuit courts of equity jurisdiction. In Consumers Power, supra, our Supreme Court held that the statutes delineating the powers of the psc did not deprive the circuit courts of gen eral equity jurisdiction and that if administrative procedures inadequately protected the substantive rights of a party, the circuit courts could exercise equitable powers to avoid irreparable harm. See also White Lake Improvement Ass’n v Whitehall, 22 Mich App 262; 177 NW2d 473 (1970). In the instant case the circuit court acted to prevent irreparable harm, specifically the taking of a large electric customer, to the city. The city had no other adequate means of preventing this harm.
Consumers’ argument that Consumers Power is distinguishable because in that case the psc had made a final decision, but simply had not issued a final order, is not persuasive. Here, the circuit court did not attempt to determine whether Consumers was required to obtain a cpcn before providing electric service to Progressive. Rather, the circuit court issued a preliminary injunction to maintain the status quo while the city’s complaint was pending before the psc. The question whether the circuit court had equity jurisdiction in this case is more properly analyzed under Consumers Power, than under Fletcher Paper. In this case, and under these facts, the circuit court had jurisdiction to grant equitable relief to preserve the status quo while the city’s complaint was pending before the psc.
Affirmed. | [
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Per Curiam.
In this case alleging fraudulent omission, plaintiff appeals as of right from the trial court’s order granting summary disposition in favor of defendant. We reverse and remand.
Plaintiff, Steven B. Shimmons, purchased a house "as is” from defendant, Mortgage Corporation of America. Before the sale, the Grand Blanc Township Building Department had inspected the house, declared it uninhabitable, and issued to defendant a repair notice and order. Defendant did not advise plaintiff of the existence of the repair notice and order.
Plaintiff alleged that the cost of rehabilitating the house to comply with the repair notice and order was considerably greater than it otherwise would have been.
The trial court granted summary disposition to defendant, finding it had no duty to disclose that the house had been deemed uninhabitable. This appeal followed.
A plaintiff may allege fraudulent concealment even where the purchase agreement includes an "as is” clause. Clemens v Lesnek, 200 Mich App 456, 460; 505 NW2d 283 (1993). Fraudulent concealment is established by showing that the hidden defect (which need not be unreasonably dangerous) was known to the vendor and that the purchaser had no knowledge of it. Id. at 459-461.
Plaintiff does not dispute that he was aware of the physical condition of the house. However, because plaintiff allegedly was required to carry out more extensive and expensive repairs because the house had been declared uninhabitable, we conclude that issuance of the repair notice and order was a latent defect that must be disclosed. Cf. Mulheron v Henry S Koppin Co, 221 Mich 187, 189, 191; 190 NW 674 (1922), overruled on other grounds Witte v Hobolth, 224 Mich 286; 195 NW 82 (1923).
Defendant asserts that plaintiff should be charged with constructive knowledge of the repair notice and order because it was a matter of public record. We disagree. It is not reasonable to assume, as a matter of law, that every prospective purchaser should examine the local building inspector’s records before purchasing a residential home. Whether such an assumption should be made in this case is a question of fact for the jury.
There remains a further issue of material fact whether plaintiff had actual knowledge of the building department’s determination. The trial court could not weigh the credibility of the afffdavits to decide this issue. Accordingly, summary disposition pursuant to MCR 2.116(0(10) was inappropriate. Arbelius v Poletti, 188 Mich App 14, 18; 469 NW2d 436 (1991).
Reversed and remanded for further proceedings. We do not retain jurisdiction.
McMullen v Joldersma, 174 Mich App 207; 435 NW2d 428 (1988), cited by defendant, is distinguishable because (1) that case concerned a proposed highway bypass plan that had been a matter of public record for years, and (2) the plaintiffs were represented by an attorney and a certified public accountant. | [
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] |
Michael J. Kelly, P.J.
Defendant pleaded no contest to a charge of unarmed robbery, MCL 750.530; MSA 28.798, and received a prison sentence of seven to fifteen years. He now appeals as of right. We affirm.
Defendant argues that the trial court abused its discretion in considering several previous, similar charges against defendant that were dismissed as a result of a plea bargaining agreement in a different court. While it is true that "[a] sentencing court may consider the facts underlying uncharged offenses, pending charges, and acquittals,” People v Parr, 197 Mich App 41, 46; 494 NW2d 768 (1992), these facts must be supported by reliable evidence, People v Ewing (After Remand), 435 Mich 443, 455 (opinion by Brickley, J.), 463 (opinion by Boyle, J.); 458 NW2d 880 (1990). The trial court in this case relied solely on the presentencing investigation report (psir), which incorporated a psir from another case against defendant in a different court. That report revealed that defendant had agreed to plead guilty of armed robbery in exchange for the dismissal of three other theft-related charges. Although the factual allegations of the dismissed charges were not independently supported by record evidence, the trial court concluded, in large part on the basis of the dismissed charges, that defendant had a "social history” of theft-related assaults and sentenced him accordingly.
Because the psir from the prior case was included in the psir for the present offense, which defendant received, defendant had the opportunity to challenge the accuracy or relevancy of the dismissed charges at the time of sentencing in the present case. See MCL 771.14(5); MSA 28.1144(5). Neither defendant nor his attorney alleged that the charges were inaccurate or that he was innocent of them. No evidentiary hearing was requested. Counsel simply urged that there be no assumption of guilt. She suggested, "I don’t think that anyone can make any assumptions about untried cases that were dismissed. There is no finding of guilt, there can be no assumption of guilt.” To challenge the charges, counsel should have requested an evidentiary hearing; that she did not do so we ascribe to defense strategy. In People v Hernandez, 443 Mich 1, 18-19; 503 NW2d 629 (1993), the Supreme Court held that the remand procedure for challenging an alleged scoring error in the sentencing guidelines "should not be utilized for presentence issues that can be raised contemporaneously with the event giving rise to the challenge.” The same reasoning applies by analogy to the present case. Accordingly, we conclude that defendant has failed to preserve the issue for appellate review.
With respect to the remaining sentencing challenges, we see no abuse of discretion in the trial court’s attempt to fashion a punishment proportionate to the offense and the offender. People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). The sentencing guidelines recommend a minimum sen tence of one to four years. The trial court gave a thorough explanation at sentencing for its departure from the guidelines. People v Adams, 195 Mich App 267; 489 NW2d 192 (1992), modified on other grounds 441 Mich 916 (1993). The court did not err in considering the fact that defendant pushed the victim. People v Duprey, 186 Mich App 313, 317; 463 NW2d 240 (1990).
Affirmed. | [
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Per Curiam.
In 1980, plaintiff Paragon Properties Company bought property located in the City of Novi that was zoned for single-family residential use. In 1984, Paragon requested that Novi rezone it for a mobile-home park, but Novi declined to rezone the property. After a first lawsuit was dismissed upon the parties’ stipulation, Paragon recommenced its suit against Novi in June 1989. Paragon’s claim was that Novi had effected an unconstitutional taking of Paragon’s property. Novi moved for partial summary disposition on the ground that Paragon’s claim was not ripe for adjudication because no final decision had been made, i.e., it was impossible to say there had been a taking because Paragon neither had sought a variance from the zoning board of appeals nor had exhausted its state remedies by making an inverse condemnation claim. Paragon, in turn, argued that Novi’s denial of its rezoning application constituted a final decision from which it was entitled to seek damages, and asserted that Novi was barred from asserting ripeness because it had failed to raise it as an affirmative defense in its first responsive pleading as required by MCR 2.111(F)(3). After a hearing, the trial court agreed with Paragon and denied Novi partial summary disposition.
Novi’s application to this Court for leave to appeal the trial court’s ruling was denied, and after Novi was allowed to file its affirmative defenses, a bench trial was held in July 1990. The thrust of Paragon’s case was that it was not economically feasible to develop the property for single-family residences under the existing zoning classification because the property lacks a sewer system and the soil does not percolate sufficiently to allow individual septic systems; the cost of installing a packaged water-treatment system could be borne if it was amortized over a great number of units, i.e., over a mobile-home park with 240 to 400 units, a cost that would be overwhelming if it was borne by a subdivision with 11 to 26 single-family residences. The trial court found that Paragon had been deprived of all reasonable use of the property and, therefore, the zoning classification was an unconstitutional taking of Paragon’s property.
Accordingly, a judgment entered, enjoining Novi from enforcing the single-family residential zoning classification and awarding Paragon damages of $12,000 per acre plus interest from 1984, as well as attorney and witness fees. After Novi unsuccessfully moved for a new trial or judgment notwithstanding the verdict, it appealed to this Court from the judgment. Paragon cross appeals concerning the amount of damages. We reverse.
The dispositive issue is whether Novi’s denial of Paragon’s rezoning application constituted a final determination from which Paragon could seek redress in the circuit court. Of course, Paragon contends that Novi’s denial was a final determination; Novi argues that Paragon was obliged to seek a zoning variance from the zoning board of appeals and to bring an inverse condemnation action before its constitutional claim was ripe. We agree with Novi.
Under Michigan law, the doctrine of finality requires a property owner to obtain a final decision from the governmental entity alleged to have unconstitutionally taken the property and also attempt to obtain just compensation through inverse condemnation. The purpose of the finality requirement is to ensure that there actually was a taking. Electro-Tech, Inc v H F Campbell Co, 433 Mich 57, 61; 445 NW2d 61 (1989), cert den 493 US 1021 (1990); Lake Angelo Associates v White Lake Twp, 198 Mich App 65; 498 NW2d 1 (1993).
We also reject Paragon’s contention that Novi waived the defense of finality because it failed to raise it as an affirmative defense in its first responsive pleading. Finality is relevant to subject-matter jurisdiction and thus need not be listed as an affirmative defense. Campbell v St John Hosp, 434 Mich 608, 616; 455 NW2d 695 (1990); Grand Blanc Landfill, Inc v Swanson Environmental, Inc, 200 Mich App 642, 646; 505 NW2d 46 (1993); Pearson v Grand Blanc, 961 F2d 1211, 1214-1215 (CA 6, 1992).
Finally, Paragon attempts to overcome the finality requirement by arguing that it would have been futile, as well as a measure taken in bad faith, to have sought a variance from the zoning board of appeals. We disagree, in light of the exceptional hardship exception that affords the zoning board of appeals the opportunity to grant the variance regardless of Paragon’s ability to qualify otherwise.
Because we reverse the judgment on finality grounds, we do not reach or consider the other issues raised in this case by Novi in its direct appeal or Paragon in its cross appeal.
Reversed. | [
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Hood, J.
This case arises from a motor vehicle accident in which Robert Gale was killed after his vehicle collided with a vehicle driven by defendant Dillon. The automobile driven by Dillon was owned and insured by Dillon’s mother, Joyce Anderson. Plaintiff, Farmers Insurance Exchange, claimed that Anderson procured the policy by fraud and that, therefore, it should not have to provide coverage. The trial court disagreed and granted summary disposition in favor of defendants pursuant to MCR 2.116(I)(2). Farmers now appeals as of right. We reverse.
Joyce Anderson applied for insurance on the subject vehicle and represented that she would be the primary driver. Anderson did not disclose that Dillon, whose driver’s license had been revoked, would be operating the vehicle. In fact, as a person with a revoked license, Dillon was ineligible for motor vehicle insurance. The policy provided a liability limit of $100,000 a person, with a $300,000 limit in any one accident. At the time of the collision that resulted in Gale’s death, Dillon not only was unlicensed and uninsured, but also was driving while intoxicated.
The Gale family initiated a wrongful death action against Dillon and Anderson. Farmers then filed a complaint for declaratory judgment, arguing that it had no duty to defend Dillon or to provide coverage, because Dillon had been using the vehicle without Anderson’s permission. Farmers further argued that it had no duty to defend or indemnify Anderson, because Anderson had made fraudulent and material misrepresentations in procuring the insurance policy. More specifically, Farmers asserted that Anderson had represented that she would be the primary driver of the vehicle even though she knew that Dillon would be the primary driver.
Therefore, Farmers argued, the policy should be declared void ab initio and rescinded. Alternatively, Farmers argued that if it was precluded from declaring the entire policy void ab initio, then the policy should be reformed to provide only the statutorily required minimum limits of $20,000/$40,000 rather than the stated policy limits of $100,000/$300,000.
Competing motions for summary disposition were filed. The trial court, relying on Ohio Farmers Ins Co v Michigan Mutual Ins Co, 179 Mich App 355; 445 NW2d 228 (1989), denied Farmers’ motion for summary disposition and granted summary disposition in favor of defendants. This appeal followed.
Plaintiff now concedes liability for the statutory $20,000/$40,000 limits. Therefore, the issue we must decide is whether an automobile insurer who, upon discovering that the insured has made fraudulent and material misrepresentations in procuring the policy, may assert rescission as a basis to limit its liability to the statutory minimum, even when innocent third parties have been injured.
We first note that when an accident occurs in this state, the scope of liability coverage is determined by the financial responsibility act, MCL 257.501 e£ seq.; MSA 9.2201 et seq. League General Ins Co v Budget Rent-A-Car of Detroit, 172 Mich App 802, 805; 432 NW2d 751 (1988). Section 520 of the act, MCL 257.520; MSA 9.2220, provides in relevant part:
(f) Every motor vehicle liability policy shall be subject to the following provisions which need not be contained therein:
(1) The liability of the insurance carrier with respect to the insurance required by this chapter shall become absolute whenever injury or damage covered by said motor vehicle liability policy occurs; .„. . except as hereinafter provided, no fraud, misrepresentation, ... or other act of the insured in obtaining or retaining such policy . . . shall constitute a defense as against such judgment creditor.
(g) Any policy which grants the coverage required for a motor vehicle liability policy may also grant any lawful coverage in excess of or in addition to the coverage specifíed for a motor vehicle liability policy and such excess or additional coverage shall not be subject to the provisions of this chapter. [Emphasis added.]
Generally, a material misrepresentation made in an application for no-fault insurance entitles the insurer to void or to cancel retroactively the policy. Katinsky v Auto Club Ins Ass’n, 201 Mich App 167, 170; 505 NW2d 895 (1993). However, this right to rescind a policy altogether ceases to exist once there is a claim involving an innocent third party. Id. As indicated previously, Farmers concedes that the language of § 520(f)(1) necessitates this result. However, Farmers contends that even though an innocent third party was injured, its liability should be limited to the statutory minimum, because the policy was fraudulently obtained. We agree.
As stated above, § 520(f)(1) prohibits an insurer from using fraud as a basis to void completely coverage under an insurance policy once an innocent third party has been injured. Thus, once an accident occurs, coverage in the amount of the statutory minimum of $20,000/$40,000 must be available for claims by innocent third parties, notwithstanding the fact that the policy in question may have been procured by fraud. However, this prohibition is found only in § 520(f)(1), which, again, deals with the statutorily mandated minimum coverage of $20,000/$40,000. By contrast, § 520(g), which addresses excess coverage, does not include such a limitation. In fact, in drafting § 520(g), the Legislature expressly provided that the additional coverage contemplated in that section "shall not be subject to the provisions of this chapter.”
Thus, reading §§ 520(f)(1) and 520(g) together, it is evident that the Legislature did not intend to preclude an insurer from using fraud as a defense to void optional insurance coverage. Had the Legislature intended to do so, the same prohibitory language found in § 520(f)(1) would have been included in § 520(g), namely, that, with regard to mandated minimum coverage, fraud on the part of the insured in obtaining or retaining a policy shall not constitute a defense for the insurer against a judgment creditor. See Sebewaing Industries, Inc v Village of Sebewaing, 337 Mich 530, 545; 60 NW2d 444 (1953). By failing to include this prohibitory language in § 520(g) and by specifically exempting the excess or additional coverage permitted by § 520(g) from the remaining provisions of the chapter, the Legislature made it clear that it did not intend to deprive insurers of this defense with respect to a claim for excess coverage.
Despite the holdings in Ohio Farmers and Katinsky, we do not go so far as to say that a validly imposed defense of fraud will absolutely void any optional excess insurance coverage in all cases. To the contrary, when fraud is used as a defense in situations such as these, the critical issue necessarily becomes whether the fraud could have been ascertained easily by the insurer at the time the contract of insurance was entered into. We think it unwise to permit an insurer to deny coverage on the basis of fraud after it has collected premiums, when it easily could have ascertained the fraud at the time the contract was formed — Ohio Farmers was such a case.
We are mindful that the Ohio Farmers panel concluded generally that "once an innocent third party is injured in an accident in which coverage is in effect on the automobile, an insurer will be estopped from asserting rescission as a basis upon which it may limit its liability to the statutory minimum.” Id. at 364-365. Again, unlike the present case, Ohio Farmers involved a situation where the fraud relied on by the insurer was readily ascertainable at the time the contract for insurance was formed. Moreover, neither Ohio Farmers nor Katinsky addressed §§ 520(f)(1) and 520(g) of the financial responsibility act. Instead, both panels analyzed the respective cases solely in light of public policy considerations.
As stated previously, when an accident occurs in this state, the scope of liability coverage is determined by the financial responsibility act. League General, supra. Because, as we have indicated, the financial responsibility act is controlling with respect to Farmers’ responsibility, Ohio Farmers and its progeny are not controlling in our resolution of this case. To the extent that those cases may be found to be inconsistent with our holding here, we decline to follow them.
In the present case, Dillon’s name was nowhere to be found on the application for insurance that was completed by Anderson. Therefore, the trial court properly concluded that it would have been virtually impossible for Farmers to know that it should obtain Dillon’s driving record, because it had no reason to believe that he would be operating the subject vehicle. Additionally, we accept the trial court’s assumption pursuant to the parties stipulation for purposes of the motion, that Anderson committed fraud to obtain the policy. Reviewing the issue de novo, we conclude that the trial court erred in granting summary disposition in favor of defendants, because Farmers was entitled to use fraud as a defense to limit coverage under the policy to the statutory minimum. Therefore, defendants were not entitled to judgment as a matter of law. Sections 520(f)(1) and 520(g); Borman v State Farm Fire & Casualty Co, 198 Mich App 675, 678; 499 NW2d 419 (1993).
Reversed and remanded. We do not retain jurisdiction. | [
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Shepherd, J.
Plaintiff appeals as of right from an April 29, 1992, order of the trial court granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(4). The trial court ruled that plaintiff’s premises liability claim was precluded by the exclusive remedy provision of the Worker’s Disability Compensation Act. We reverse.
The underlying facts of this case are not disputed. On December 11, 1989, plaintiff traveled to his place of employment, a Burger King restaurant located in Lansing, Michigan, to pick up his paycheck and give his girl friend, a coemployee, a ride home. Plaintiff had not worked that day, nor was he scheduled to work. Once inside the restaurant, plaintiff picked up his biweekly paycheck. After receiving his paycheck, plaintiff purchased some food at retail prices, entered the public dining room area, and ate his food. As he was leaving, plaintiff slipped and fell on an accumulation of water or snow located in front of the exit. Plaintiff allegedly sustained an injury to his hand when he fell.
Plaintiff filed his complaint against defendants in the circuit court on a theory of premises liability. Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(4) on the ground that the exclusive remedy provision of the wdca, MCL 418.131; MSA 17.237(131), precluded plaintiff’s claim. The trial court agreed with defendants and granted the motion.
The essential question in this case is whether the circuit court or the Bureau of Worker’s Disability Compensation has jurisdiction to hear this case. For the bureau to have exclusive jurisdiction, the injury must have arose out of and in the course of employment. MCL 418.131; MSA 17.237(131), MCL 418.301; MSA 17.237(301). Defendants are correct that as a general rule the question whether an injury arose out of and in the course of employment is a question to be resolved in the first instance by the bureau. Buschbacher v Great Lakes Steel Corp, 114 Mich App 833, 837; 319 NW2d 691 (1982). However, there is an exception "where it is obvious that the cause of action is not based on the employer/employee relationship.” Id. at 838; see also Genson v Bofors-Lakeway, Inc, 122 Mich App 470, 477; 332 NW2d 507 (1983). The question whether plaintiff’s injury arose out of and in the course of his employment may be a question of law or one primarily of fact, or a mixed question of law and fact. Koschay v Barnett Pontiac, Inc, 386 Mich 223, 225; 191 NW2d 334 (1971). Thus, where the facts are undisputed, the question is one of law for the courts to decide.
Here, the parties disagree concerning the application of two leading cases, MacDonald v Michigan Bell Telephone Co, 132 Mich App 688; 348 NW2d 12 (1984), and Dunlap v Clinton Valley Center, 169 Mich App 354; 425 NW2d 553 (1988).
In MacDonald, the plaintiff-employee had been gone from her place of employment for only , thirty minutes when she realized that she had lost the key to the trunk of her car. She then drove back to her employer’s parking lot and began searching for the lost key. While searching for the key, the plaintiff slipped on some loose gravel and fell, injuring her back. The panel of this Court in MacDonald reversed an award of benefits by the Worker’s Compensation Appeal Board, finding that the plaintiff’s injury did not occur, "within the course, the flow, the path, route, or channel of plaintiff’s employment.” Id. at 692.
In Dunlap, the plaintiff-employee stopped at her place of employment to pick up her paycheck. The plaintiff had been scheduled to work that day, but had taken the day off. The plaintiff slipped and fell in a puddle of water and was injured. Reversing a decision of the wcab, this Court in Dunlap concluded that the plaintiff’s injury arose out of the course of her employment because the act of "fr]eceiving remuneration for one’s work is a part of one’s duties for his employer.” Id. at 357. The Court further noted that the employer was obligated legally to give the plaintiff her paycheck. Id. at 357-358.
Herein, plaintiff argues that the present case is more similar to the situation in MacDonald and, thus, that the exclusive remedy provision of the wdca should not apply. Conversely, defendants argue that the present case is more similar to the situation in Dunlap and, thus, that plaintiff’s claim should be barred by the exclusive remedy provision of the wdca.
This topic is discussed in 1A Larson, Workmen’s Compensation Law, § 26.31, p 5-330 et seq. Larson states the general rule to be that "an employee is in the course of employment while collecting his pay.” Id. However, Larson, supra, § 26.33, pp 5-337 to 5-338, also recognizes an exception under the going and coming rule:
Once collection of pay has been identified as a work-connected activity, it follows that the normal course of employment limitations applicable to any work activity should apply. Thus, an injury occurring off the premises while the claimant is on his way to the plant to collect his pay, or is on his way home, is outside the course of employment; for there is no reason to place the discharged worker about to collect pay in a stronger position than that afforded to the worker on his way to the actual performance of the duties of his employment. Similarly, under the rule in the preceding subsection, a worker who has collected his pay may leave the course of employment by remaining on the premises for an unreasonable period, as in the case of the claimant who had stayed on the premises for three hours after collecting his paycheck, playing cards, and drinking, before being shot in an argument.41
41 Blade v Mervis, 226 So 2d 552 (La Ct App 1969).
We agree with the foregoing statement from Larson that an employee who has already received a paycheck may leave the course of employment at a subsequent time. However, rather than focusing upon the length of time (Larson speaks of an "unreasonable” delay) we believe that the controlling factor is the relationship between the parties. That is, the length of time following receipt of a paycheck may evince a change in relationship, but the key factor is the relationship itself.
This Court in Howard v White, 195 Mich App 590, 592-593; 491 NW2d 625 (1992), recognized the importance of the relationship between the parties with its discussion of the dual capacity doctrine. Therein, the plaintiffs, city employees, were injured in an accident caused in part by a malfunctioning traffic signal. The plaintiffs were driving a city vehicle and returning to their work site from lunch. In addition to filing suit against the driver of the other vehicle, the plaintiffs also filed suit against the city for failure to maintain the traffic signal. The Court reasoned as follows in permitting the plaintiffs to maintain their cause of action outside the ambit of the worker’s compensation exclusive remedy provision:
[T]he employer-employee relationship in this case was a mere coincidence and was entirely unrelated to plaintiffs’ cause of action. Plaintiffs’ action is not based on the employer-employee relationship. [Id., at 593.]
Cf. Handley v Wyandotte Chemicals Corp, 118 Mich App 423, 429; 325 NW2d 447 (1982); 2A Larson, Workmen’s Compensation Law, § 72.81, p 14-229 et seq.]
In the present case, although plaintiff’s singular act of picking up his paycheck may have been related sufficiently to the employment relationship to justify the application of the exclusive remedy provision in accord with Dunlap, the relationship between the parties changed when plaintiff purchased the food at retail prices and ate the food in the public section of the restaurant. At the time of plaintiff’s injury, there was no longer a sufficient nexus between the injury and the employment relationship; in other words, it can not be said that the injury was a circumstance of the employment. Collier v J A Fredman, Inc, 183 Mich App 156, 161; 454 NW2d 183 (1990). Not only did plaintiff modify the relationship by offering to purchase food at retail, but his employer also modified the relationship by making the retail sale. Although it appears that the lapse of time involved here between the receipt of the paycheck and the injury was not as lengthy as in Blade, supra (discussed in 1A Larson, § 26.33, supra), we are nevertheless convinced that plaintiffs injury did not arise out of or in the course of employment. This we conclude as a matter of law on the basis of the undisputed facts of record.
In response to the parties’ arguments, we conclude that the present case is more similar to the situation in MacDonald than that in Dunlap. As in MacDonald, supra at 692, the injury here did not occur "within the flow, the path, route, or channel of plaintiffs employment.” Thus, the exclusive remedy provision of the wdca, MCL 418.131; MSA 17.237(131), does not preclude plaintiff from pursuing his claim in the circuit court.
Reversed and remanded for further proceedings consistent with this opinion. | [
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] |
Holbrook, Jr., P.J.
Defendant pleaded guilty of possession with intent to deliver 225 grams or more but less than 650 grams of heroin, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii), in exchange for the prosecutor dismissing the charge of conspiracy to deliver more than 225 grams or more but less than 650 grams of heroin and agreeing to a minimum sentence of no more than ten years. Defendant was sentenced to the statutory mandatory minimum prison term of ten years, with a thirty-year maximum term. Defendant appeals as of right. We affirm.
On appeal, defendant argues that the trial court erred in failing to depart from the mandatory minimum term of imprisonment. Defense counsel had argued at defendant’s sentencing for a downward departure from the mandatory minimum term, because defendant was subject to deportation. The trial court determined that defendant’s impending deportation did not constitute a substantial and compelling reason to depart from the mandatory minimum prison term. Defendant now argues that the fact that he, most assuredly, will be deported constitutes an objective and verifiable factor that provides a substantial and compelling reason for the trial court to depart from the mandatory minimum prison term.
Under MCL 333.7401(4); MSA 14.15(7401)(4), a sentencing court retains discretion to depart from the minimum term if the court finds on the record that there are substantial and compelling reasons to do so. People v Poppa, 193 Mich App 184, 188; 483 NW2d 667 (1992). The trial court may depart from the mandatory minimum sentences for factors that are objective and verifiable. People v Hill, 192 Mich App 102, 105; 480 NW2d 913 (1991). Objective and verifiable factors include "actions and occurrences which are external to the minds of the judge, defendant and others involved in making the decision and must be capable of being confirmed.” People v Krause, 185 Mich App 353, 358; 460 NW2d 900 (1990).
Although the imminent deportation of a defendant is certainly an action that is external to the mind of a judge and is capable of being confirmed, we believe that it is not an objective and verifiable factor to consider in determining whether substantial and compelling reasons exist to depart from the mandatory minimum sentence. The Legislature intended to give trial courts discretion to depart from the presumptively mandatory sentences only in exceptional cases. People v Downey, 183 Mich App 405, 416; 454 NW2d 235 (1990). The trial court’s discretion thus is narrowed to considering only the mitigating reasons involved in the actual criminal act and the defendant’s individual characteristics. We believe that the fact that defendant is subject to deportation as a result of his involvement in this criminal act fits neither of these factors. See United States v Alvarez-Cardenas, 902 F2d 734, 737 (CA 9, 1990).
In addition, we find that defendant’s sentence does not violate the principle of proportionality as set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). Because defendant’s sentence was within the statutory minimum term in effect at the time of his sentencing, his sentence is presumptively valid and proportionate. People v Williams, 189 Mich App 400, 403-404; 473 NW2d 727 (1991); Poppa, supra, p 189. Defendant has failed to rebut this presumption. We conclude, therefore, that the trial court did not abuse its sentencing discretion. Poppa, supra, p 187.
Affirmed.
Sawyer, J. concurred. | [
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Taylor, J.
Plaintiff brought suit alleging that defendant had orally agreed to pay the legal fees incurred as a result of plaintiffs representation of defendant’s daughter in proceedings to enforce the daughter’s judgment of divorce. The trial court granted summary disposition to defendant on the basis that the agreement was unenforceable under the statute of frauds, MCL 566.132(b)(1); MSA 26.922(l)(b). Plaintiff now appeals as of right. We reverse.
It is well established that one may assume original liability by a direct promise to pay for services to be rendered to another in the future. Highland Park v Grant-Mackenzie Co, 366 Mich 430, 443-444; 115 NW2d 270 (1962). Furthermore, "[t]hat the consideration for a promise may inure to one other than the promisor or may lie in a detriment to the promisee is a well-established principle of contract law.” Id. at 446-447.
It is undisputed that plaintiff provided legal services to defendant’s daughter, resulting in successful enforcement of the daughter’s previously obtained divorce judgment. Plaintiff and defendant’s daughter submitted affidavits stating that defendant agreed to pay all fees incurred in the enforcement proceedings that plaintiff was unable to recover from the daughter’s ex-husband. Defendant submitted an affidavit stating that she did not make such a promise. Therefore, a genuine issue exists regarding this dispositive fact.
Defendant’s promise, if any, was an original promise, not a collateral one, and therefore not within the statute of frauds. Id. at 443. Accordingly, the trial court erred as a matter of law in holding that the alleged agreement was void and unenforceable on the grounds that it falls within the statute of frauds. The issue whether defendant actually made the alleged promise is a question for the factfinder.
Reversed and remanded. | [
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] |
Per Curiam.
Plaintiffs appeal as of right from a circuit court order granting summary disposition to defendant pursuant to MCR 2.116(0(10), thereby dismissing plaintiffs’ action seeking reformation of an automobile insurance contract to provide full medical coverage rather than the coordinated medical coverage provided by defendant insurer. We reverse and remand.
i
Plaintiffs Robert and Mary Mantua owned several vehicles. Some of the vehicles were for personal use, others were designated "work vehicles” and used in the course of conducting a family business, Architectural Exteriors. In 1984, the Mantuas obtained insurance for all their vehicles through Michael Ortkras, defendant Auto Club Insurance Association’s agent. Until 1988, the Mantuas contracted for coordinated benefits coverage for all their vehicles.
In April 1988, Ortkras met with Robert Mantua and rewrote the coverage on the Mantuas’ vehicles. According to Mantua, the discussion included an agreement that all business vehicles would thereafter carry full medical coverage. Ortkras could not remember whether such an agreement had been made at that time, but acknowledged that his records indicated that from that time, some vehicles had full medical coverage rather than coordinated benefits coverage, and all vehicles with full medical coverage were used by a business driver or in a business capacity.
All subsequent changes to the policy resulted from phone calls made by Robert Mantua notifying Ortkras’ office as vehicles were changed or added to the fleet. Ortkras or members of his staff would then delete vehicles from the policy, or add them after ascertaining title ownership, principal driver, financing, and intended use.
Effective August 17, 1989, a 1989 Geo Tracker, titled in the name of Architectural Exteriors, was added to the policy. According to Ortkras’ records, Mary Mantua was the named insured and principal driver, and the vehicle’s indicated use was as a pleasure, rather than a business, vehicle. Neither Robert Mantua nor Ortkras could later recall the specifics of the telephone conversation initiating the change. Robert Mantua testified that, while he could not recall the specifics of the conversation, when adding a vehicle he always told Ortkras who owned it and he would also have told him that the Tracker was to be used for company purposes. Plaintiffs concede, however, that the policy, which they did not review, thereafter listed the Tracker as a pleasure vehicle receiving coordinated benefits coverage.
On April 21, 1990, while on a nonbusiness-related trip, the Tracker was involved in a collision. Robert Mantua was driving; Mary Mantua and James Berry were passengers. All were seriously injured. Defendant paid coordinated benefits coverage, but refused to pay full medical coverage. Plaintiffs brought this action for full benefits. They claimed that because the Tracker was owned by Architectural Exteriors, with Mary DeAngelis (Mantua), an employee, designated the named insured and primary driver, it was therefore a work vehicle, for which full medical coverage had been intended. Defendant, relying on the written contract terms, moved for summary disposition.
In response, plaintiffs argued that defendant’s own records, which, with only two exceptions, appeared to correlate title ownership in the business with full medical coverage, confirmed the existence of an agreement to confer such coverage on business vehicles. Plaintiffs also argue that defendant’s records indicate it was mistaken with respect to the ownership of those two vehicles, and that if the insurance coverage on those vehicles is viewed in light of defendant’s belief concerning their ownership, there is even greater support for plaintiffs’ assertions regarding the existence and terms of the agreement regarding coverage. Relying on the correlation between business vehicles and full coverage, and on Ortkras’ deposition admissions that the two exceptions could have been mistakes, plaintiffs argued that title ownership in the business determined that a vehicle was a business vehicle, and was intended to have full medical coverage.
The trial court granted defendant’s motion, ruling that despite evidence of
at least some understanding that the general proposition was that business vehicles had full medical coverage and individual vehicles had coordinated benefits to save some money
plaintiffs had failed to establish
a continuing agreement between the parties at an earlier time, that if certain vehicles came in, they were automatically listed certain ways.
The court also stated that because Ortkras’ information would have been supplied by Robert Man tua, and neither he nor Ortkras remembered the specifics of the conversation involving the Tracker, there was insufficient evidence of mistake.
ii
A motion for summary disposition under MCR 2.116(0(10) tests the factual support for a plaintiffs claim. The trial court must give the benefit of any reasonable doubt to the nonmoving party, and must then determine whether a record might be developed that would leave open an issue on which reasonable minds might differ. Coleman-Nichols v Tixon Corp, 203 Mich App 645, 650; 513 NW2d 441 (1994).
Here, two questions of material fact were raised: (1) whether Robert Mantua and defendant affirmatively agreed in April 1988 that thenceforth all business vehicles would receive full medical coverage, and (2) whether the vehicle was properly insured in accordance with the agreement. Viewed in the light most favorable to plaintiffs, Robert Mantua’s deposition testimony concerning the 1988 meeting, his practice with respect to obtaining coverage for new vehicles, the record evidence of an ongoing correlation between business ownership and full medical coverage, and Ortkras’ concession that deviations from that correlation could have been mistakes were sufficient to establish genuine issues of material fact regarding these questions.
Moreover, the fact that Ortkras’ information about the Tracker could only have come from Robert Mantua does not indisputably establish that the vehicle’s designation as a pleasure vehicle arose from Mantua’s unilateral mistake. Mantua understood the terms of his agreement with defendant to mean that a vehicle titled in the name of his business and driven by an employee would qualify for full coverage. However, Qrtkras’ testimony that he did not realize that Mary Mantua was an employee leaves open the possibility that he or another staff member determined the Tracker to be a personal rather than a business vehicle on the basis of Mary Mantua’s designation as the principal driver.
in
Defendant argues that plaintiffs are estopped from maintaining this action under Drogula v Federal Life Ins Co, 248 Mich 645; 227 NW 692 (1929). We disagree. The holding in Drogula did not rest merely on the plaintiffs failure to read the printed conditions of his policy, but on the policy’s express limitation on the power of the agent. The policy stated, "No agent has authority to change this policy or to waive any of its provisions.” Id. at 649. The Court emphasized that such a provision, whether read by the insured or not, precluded any change in the conditions of the policy, either by parol or writing. Id. Under such circumstances, the plaintiff policyholder was
estopped, by accepting the policy, from setting up or relying upon powers in the agent in opposition to limitations and restrictions in the policy. [Id. at 649-650, quoting Cleaver v Ins Co, 65 Mich 527, 533; 32 NW 660 (1887).]
Moreover, although the circuit court in this case did not address whether plaintiff Robert Mantua had been negligent in failing to read the terms of his contract and did not decide the case on estoppel grounds, a mere failure to read a policy does not prevent reformation of a contract based on mutual mistake. Whitney v Nat’l Fire Ins Co, 296 Mich 38, 43; 295 NW 551 (1941); Heath Delivery Service v Michigan Mutual Liability Co, 257 Mich 482, 486; 241 NW 191 (1932).
Here, the issue is not whether Robert Mantua’s purported agreement with defendant was void by the contract’s very terms, but whether he is entitled to reformation of the contract on the basis of its alleged inaccuracy in representing the agreement made between the parties.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
Defendant has not asserted that its policy contains a similar provision. Even if such a provision is found in the policy, Drogula does not hold that the failure to read a policy precludes reformation where the policy was intended to provide one form of coverage but through a mutual mistake a different form of coverage was provided in its stead. | [
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Per Curiam.
Defendants were charged with sev eral counts of first-degree obscenity, MCL 752.365; MSA 28.579(365). The criminal charges, however, were dismissed subsequently by the district court on the basis of its finding that the Michigan criminal obscenity act, MCL 752.361 et seq.; MSA 28.579(361) et seq., is unconstitutionally overbroad. The people appealed, and the district court’s decision was affirmed by the Oakland Circuit Court. The people now appeal to this Court by leave granted. We affirm.
The sole issue raised by the people on appeal is whether the Michigan obscenity act is constitutionally valid and enforceable. The people contend that the act is constitutional and, consequently, request that this Court remand this case for reinstatement of the first-degree obscenity charges. At the time of the alleged offenses, MCL 752.365; MSA 28.579(365) stated in pertinent part:
A person is guilty of obscenity in the first degree when, knowing the content and character of the material, the person disseminates, or possesses with intent to disseminate, any obscene material if dissemination of obscene material is a predominant and regular part of the person’s business at a particular theater, store, warehouse, or other establishment and if obscene materials are a principal or substantial part of the stock in trade at that theater, store, warehouse, or other establishment.
"Knowledge of content and character” was defined in pertinent part as:
general knowledge or reason to know, or a belief or ground for belief which warrants further inspection or inquiry, of the nature and character of the material involved. A person has such knowledge when he or she knows or is aware that the material contains, depicts, or describes sexual conduct whether or not such person has precise knowledge of the specific contents of the material. [MCL 752.362(3); MSA 28.579(362)(3).]
These particular statutory provisions, however, have been amended by the Legislature. Currently, a person is guilty of obscenity only when, "knowing the content and character of the material, the person disseminates, or possesses with intent to disseminate, any obscene material.” MCL 752.365(1); MSA 28.579(365)(1). To know the content and character of the material for purposes of the current obscenity act means simply to have "general knowledge of the nature and character of the material involved.” MCL 752.362(3); MSA 28.579(362)(3). An issue is moot when the occurrence of an event renders it impossible for the court to fashion a remedy. People v Wershe, 166 Mich App 602; 421 NW2d 255 (1988); Crawford Co v Secretary of State, 160 Mich App 88, 93; 408 NW2d 112 (1987). It would now be impossible for this Court to grant the people a remedy in this case because this particular action was dismissed and was not pending on the effective date of the new law. People v Dalby, 181 Mich App 673; 451 NW2d 201 (1989); People v Gravedoni, 172 Mich App 195, 197-198; 431 NW2d 221 (1988).
Affirmed._
1992 PA 216, § 1, effective March 31, 1993. | [
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AFTER REMAND
Before: Shepherd, P.J., and Marilyn Kelly and J. H. Gillis, Jr., JJ.
Shepherd, P.J.
Petitioner, Consolidated Aluminum Corporation (Conalco), appeals as of right from a July 26, 1991, judgment of the Tax Tribunal, which reinstated an earlier tribunal judgment of November 13, 1986, which, in turn, affirmed a March 29, 1982, assessment of tax deficiency by respondent, the Department of Treasury, against Conalco. This Court considered the November 13, 1986, judgment in Docket No. 96966 and, in an order issued on November 17, 1989, remanded the case to the Tax Tribunal for reconsideration in light of the Michigan Supreme Court’s decision in Trinova Corp v Dep’t of Treasury, 433 Mich 141; 445 NW2d 428 (1989), which the United States Supreme Court affirmed in Trinova Corp v Michigan Dep’t of Treasury, 498 US 358; 111 S Ct 818; 112 L Ed 2d 884 (1991). The tribunal’s subsequent July 26, 1991, decision on remand is the subject of this appeal. We affirm.
i
FACTS AND PROCEEDINGS
Conalco is a foreign corporation subject to Michigan’s Single Business Tax Act (sbta), MCL 208.1 et seq.; MSA 7.558(1) et seq. Conalco manufactures and sells aluminum products in Michigan and elsewhere. During the period relevant to this appeal — i.e., for the tax years 1976 through 1979, inclusive — Conalco owned a sixty-six percent interest in a company known as Ormet. Ormet was a separate corporation, which produced raw aluminum from bauxite ore. Ormet served Conalco as a "cost company.” That is, Ormet sold sixty-six percent of its output to Conalco at cost. Conversely, Conalco was responsible for sixty-six percent of Ormet’s operating costs, including capital costs and interest expenses.
, Because of Ormet’s unique character, Conalco consolidated sixty-six percent of Ormet’s operations into its own financial statements for the tax years at issue. Conalco calculated its tax base under § 9 of the sbta, MCL 208.9; MSA 7.558(9), using these consolidated financial statements. However, Conalco did not add back any interest expenses to its tax base as required by § 9(4)(f), MCL 208.9(4)(f); MSA 7.558(9)(4)(f), because, in its opinion, the majority of the interest expenses were attributable to collateralized debt on property located outside Michigan.
After conducting an audit of Conalco’s 1976-79 tax returns, respondent concluded that Ormet should be excluded from Conalco’s financial statements because it was a separate taxable entity. As a result, this exclusion of Ormet’s financial information prevented Conalco from deducting certain expenses related to Ormet’s operating costs. Respondent also added back all interest expenses to Conalco’s tax base, including those interest expenses related to Ormet. Further, a capital acquisition deduction was allowed only for Michigan assets.
Respondent recalculated Conalco’s tax base, then applied the three-factor apportionment formula of § 45, MCL 208.45; MSA 7.558(45), to determine Conalco’s Michigan tax base. The recalculation resulted in an increase in Conalco’s Michigan tax base, and, thus, an increase in single business tax. Respondent assessed Conalco an additional $156,843.51, including tax and interest.
Conalco filed a petition of appeal with the Tax Tribunal, which affirmed the assessment. In an opinion and judgment dated November 13, 1986, the tribunal held that Ormet was properly excluded from Conalco’s tax base because they were separate entities. In particular, the tribunal noted that Conalco did not meet the threshold of eighty percent ownership of Ormet in order to be considered an "affiliated group” under § 3(1), MCL 208.3(1); MSA 7.558(3)(1). The tribunal also held that Conalco’s interest expenses were properly added back to Conalco’s tax base because Conalco treated the interest as an expense rather than capitalized interest on its financial statements.
As noted above, this Court considered the 1986 judgment in Docket No. 96966, and remanded the matter to the tribunal for reconsideration in light of the Michigan Supreme Court’s decision in Trinova, supra. On remand, in an opinion and judgment dated July 26, 1991, the tribunal adopted its prior opinion and judgment of November 13, 1986. Conalco now appeals as of right from the tribunal’s judgment of July 26, 1991.
ii
STANDARD OF REVIEW
On appeal, in the absence of fraud, our review of a decision of the Tax Tribunal is limited to whether the tribunal made an error of law or adopted a wrong legal principle. Gillette Co v Dep’t of Treasury, 198 Mich App 303, 306; 497 NW2d 595 (1993). We will not disturb the factual findings of the Tax Tribunal when those findings are supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28; Gillette, supra.
in
THE SINGLE BUSINESS TAX ACT
Michigan’s Single Business Tax Act imposes a value added tax (vat) upon business activity in Michigan. Wismer & Becker Contracting Engineers v Dep’t of Treasury, 146 Mich App 690, 696; 382 NW2d 505 (1985). Section 31 of the sbta, MCL 208.31; MSA 7.558(31), imposes a "specific tax of 2.35% upon the adjusted tax base of every person with business activity in this state which is allocated or apportioned to this state.” A "person” is defined under § 6(1) of the sbta, MCL 208.6(1); MSA 7.558(6)(1), as follows:
"Person” means an individual, firm, bank, financial institution, limited partnership, copartnership, partnership, joint venture, association, corporation, receiver, estate, trust, or any other group or combination acting as a unit.
The sbt is calculated by starting with a person’s federal taxable income, MCL 208.3(3); MSA 7.558(3)(3), and then making certain additions and subtractions according to § 9 of the act, MCL 208.9; MSA 7.558(9). Trinova, 433 Mich 150-151. Our Supreme Court in Trinova described these adjustments as follows:
Common adjustments to business income include additions to reflect the business consumption of labor and capital. Those include adding back compensation, depreciation, dividends, and interest paid by the taxpayer to the extent deducted from federal taxable income. Common deductions from business income include dividends, interest, and royalties received by the taxpayer to the extent included in federal taxable income. This income is deducted for the purpose of value added computation because it does not result from capital expenditure by the taxpayer. [Id.; emphasis in original.]
Of particular relevance to this appeal, subsection 9 of § 9 provides for an adjustment for gain or loss attributable to other entities, as follows:
To the extent included in federal taxable income, add the loss or subtract the gain from the tax base that is attributable to another entity whose business activities are taxable under this act or would be taxable under this act if the business activities were in this state. [MCL 208.9(9); MSA 7.558(9X9).]
Once the § 9 tax base is determined, then the "apportioned” or Michigan tax base is determined by applying the three-factor apportionment formula found in § 45, as follows:
All of the tax base, other than the tax base derived principally from transportation, financial, or insurance carrier services or specifically allocated, shall be apportioned to this state by multiplying the tax base by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is 3. [MCL 208.45; MSA 7.558(45).]
The property, payroll, and sales factors are themselves a fraction representing the proportion of Michigan property, payroll, and sales in relation to property, payroll, and sales everywhere. Wismer & Becker, supra at 699. In algebraic form, the formula for the Michigan tax base would look as follows:
MICH PROPERTY MICH PAYROLL MICH SALES
+ +
TOTAL PROPERTY TOTAL PAYROLL TOTAL SALES
TAX BASE X_ _ = MICH TAX BASE
3
Section 69, MCL 208.69; MSA 7.558(69), provides relief to a taxpayer when the § 45 apportionment formula results in a Michigan tax base that is "out of all appropriate proportion to the taxpayer’s intrastate business activity or has led to a grossly distorted result.” Trinova, 433 Mich 167. Section 69 has been described as a. "constitutional circuit breaker,” meaning that if the apportionment provisions of the sbta result in an unconstitutional tax, then § 69 will afford a taxpayer relief, saving the sbta. Trinova, 498 US 371-372. For the period relevant to this appeal, § 69 provided as follows:
(1) If the apportionment provisions of this act do not fairly represent the extent of the taxpayer’s business activity in this state, the taxpayer may petition for or the commissioner may require, in respect to all or any part of the taxpayer’s business activity, if reasonable:
(a) Separate accounting.
(b) The exclusion of any 1 or more of the factors.
(c) The inclusion of 1 or more additional factors which will fairly represent the taxpayer’s business activity in this state.
(d) The employment of any other method to effectuate an equitable allocation and apportionment of the taxpayer’s tax base.
(2) An alternate method will be effective only if it is approved by the commissioner.
Once the Michigan tax base has been determined, further adjustments are allowed in the form of exemptions under § 35, MCL 208.35; MSA 7.558(35), and deductions and additions under § 23, MCL 208.23; MSA 7.558(23), for the acquisition of tangible assets. Then, under § 31, MCL 208.31; MSA 7.558(31), the adjusted Michigan tax base is multiplied by 2.35 percent to determine the amount of sbt liability.
IV
APPLICATION OF THE SBTA TO CONALCO
A
First, Conalco argues that all of Ormet’s financial information should be included in the calculation of Conalco’s tax base under the sbta. Conalco argues that Ormet’s unitary business nature requires consolidation of its financial information under § 69. In the alternative, Conalco argues that if Ormet is to be excluded, it must be excluded totally._
Respondent argues that this Court’s decision in Wismer & Becker, supra, requires the exclusion of Ormet from Conalco’s tax base because Ormet is a joint venture and is organized as a separate corporation. Respondent argues that § 69 does not permit the consolidation of two taxpayers’ apportioned tax bases. We agree with respondent that Ormet’s financial information should be excluded from Conalco’s tax base.
Initially, there can be no doubt that Conalco’s interest in Ormet is that of a joint venture. There is no other appropriate category under the sbta in which to place Ormet; and, in fact, Conalco’s own representatives have referred to Ormet as a joint venture. Conalco and Ormet do not qualify as an "affiliated group” under § 3(1) (which might permit the filing of a consolidated return under § 77, MCL 208.77; MSA 7.558[77]) because there is no dispute that Conalco does not own or control at least eighty percent of the voting capital stock of Or-met. Consequently, as a joint venture, Ormet is a separate "person” under § 6(1).
Once Ormet is recognized as a joint venture, this issue is controlled by this Court’s decision in Wismer & Becker. In Wismer & Becker, supra, this Court was faced with a similar question involving a foreign corporation’s interest in various out-of-state joint ventures. Therein, the taxpayer attempted to include its share of property, payroll, and sales of the out-of-state joint ventures in the total property component of the § 45 apportionment formula. Wismer & Becker, supra at 695. We concluded in Wismer & Becker that the taxpayer must exclude its interest in the joint ventures when calculating its sbt, as follows:
Section 69 allows a taxpayer to petition for, or the Tax Commissioner to require, the use of vari ous methods of apportionment, including separate accounting, where the Chapter 3 formulary apportionment does not fairly represent the extent of the taxpayer’s business activity in this state. MCL 208.69; MSA 7.558(69). If the unitary concept has any relevance at all within the framework of the sbta, it is only as a tool to determine whether a taxpayer should utilize the exceptional relief of separate accounting under § 69. It has absolutely no relevance to the determination of whether interdependent business entities are one or more taxpayers under the act. That determination expressly has been made by the Legislature in the act. As discussed above, the act does not allow petitioner to treat itself and its joint ventures as a single taxpayer either in calculating its tax base under § 9 or in apportioning its tax base under § 45. On the contrary, the act recognizes a joint venture as a separate and distinct taxpayer subject to the single business tax if conducting business in Michigan regardless of whether the joint venture is part of a unitary business composed of other taxpayers. Petitioner would have this Court read into the act an exception for unitary businesses that simply does not exist.
Consistent with our interpretation, § 9(9) excludes from the tax base income or loss from any other entity (including joint ventures) which is subject to the tax or which would be subject to the tax if conducting business in the state. MCL 208.9(9); MSA 7.558(9)(9). [Id. at 702-703.]
In the present case, as in Wismer & Becker, the joint venture should be excluded from the principal taxpayer’s tax base because the joint venture either is or would be subject to the sbta if conducting business in the state. MCL 208.9(9); MSA 7.558(9)(9). Although the present case is somewhat distinguishable because the principal taxpayer desires to include the joint venture in the original calculation of the tax base rather than merely at the apportionment stage, this minor distinction is immaterial to the underlying holding of Wismer & Becker that a joint venture is a separate entity under the sbta. Id. at 701-702. Incidentally, this Court in Wismer & Becker, supra at 703, stated that consolidation would be inappropriate "either in calculating its tax base under § 9 or in apportioning its tax base under § 45.”
Conalco’s alternative argument that Ormet either should be included totally or excluded totally from its tax base emphasizes its real economic interest in Ormet, but provides no direct challenge to respondent’s accounting method of excluding Ormet. On this point, Conalco argues that separation of the two entities’ financial statements artificially inflates Conalco’s net income and, thus, its tax base. This is because Conalco buys aluminum from Ormet at cost, while paying a share of Or-met’s operating expenses. Although this argument concerning the real economic consequences of operating a cost company raises interesting and challenging questions from a theoretical standpoint, the statutory mechanics of the sbta nevertheless require that Conalco and Ormet be treated as separate entities. Wismer & Becker remains controlling. Further, because Conalco has not specified — either below or on appeal — how to allocate expenses that it believes are "attributable” to Ormet, this Court is not in a position to review the propriety of respondent’s method of "wholly” excluding Ormet. Rutherford v Dep’t of Social Services, 193 Mich App 326, 330; 483 NW2d 410 (1992). Thus, we conclude that the Tax Tribunal correctly affirmed the assessment, which was based in part upon respondent’s exclusion of Ormet from Conalco’s tax base.__
B
Having determined that Ormet’s financial information should be excluded from Conalco’s tax base when computing sbt liability, we next address the question of interest expenses. Here, Conalco argues that its interest expenses should be allocated geographically before being added to the tax base under § 9(4)(f), MCL 208.9(4)(f); MSA 7.558(9)(4)(f). Conalco argues that this geographic apportionment would more accurately reflect its Michigan business activity because most of its interest expenses are attributable to collateralized loans on property located outside Michigan. In essence, Conalco seeks to use a one-factor apportionment formula based on the geographic location of the financed property.
In support of its decision to affirm the assessment, the Tax Tribunal emphasized that Conalco’s proposal would circumvent the three-factor apportionment formula of § 45. Further, the tribunal noted that Conalco had included these amounts as expenses rather than capitalized interest in its financial statements. On appeal, Conalco argues that § 69 should be utilized to permit the geographic apportionment of interest expenses. Further, in response to the tribunal’s decision, Conalco argues that the prior treatment of the interest as an expense for accounting purposes does not foreclose its geographic apportionment because the financed property giving rise to the interest expense is recognized as a measure of value added through the inclusion of the property factor in the apportionment formula of § 45.
Ordinarily, interest expenses that are deducted for purposes of calculating federal income tax are added back to a taxpayer’s tax base for purposes of calculating Michigan’s sbt. MCL 208.9(4)(f); MSA 7.558(9)(4)(f). As noted above, the tax base is then adjusted to reflect Michigan activity by application of the three-factor apportionment formula of § 45. Relief from the three-factor apportionment formula of § 45 is afforded under § 69 only when the business activity attributed to the state is out of all appropriate proportion to intrastate business activity or has led to a grossly distorted result. Trinova, 433 Mich 167, and 498 US 380.
We believe that this issue is controlled by the United States Supreme Court’s decision in Trinova, supra. In Trinova, a foreign corporation doing business in Michigan sought to
dissect the tax base as if the sbt were three separate and independent taxes: a tax on compensation, a tax on depreciation, and a tax on income, each apportioned. Trinova insists that compensation and depreciation can be located and can be separated from the total value added calculation. [498 US 374-375.]
Thus, in Trinova, the taxpayer attempted to apportion geographically two of the components that must be added back to the tax base under § 9, i.e., compensation under § 9(5), and depreciation under § 9(4X0.
Similarly, in the present case, Conalco seeks to apportion geographically the interest expense component, which is ordinarily included in the tax base under § 9(4)(f). This approach was expressly rejected in Trinova when the Court concluded that the individual tax base components of § 9 "are not independent variables to be adjusted without reference to each other.” 498 US 376. Rather, the various tax base components must be added together, and then the total tax base is to be apportioned under § 45.
Conalco’s request for relief under § 69 must fail because Conalco’s arguments focus upon geographic apportionment of these interest expenses, without making the requisite showing that the total business activity attributed to Michigan after application of the three-factor formula of § 45 is out of all appropriate proportion to actual business transacted in this state. Trinova, 433 Mich 167, and 498 US 380. As such, Conalco has not demonstrated a need for the "constitutional circuit breaker” of § 69 relief. Trinova, 498 US 371-372. The Tax Tribunal correctly affirmed the assessment, which was based in part upon respondent’s inclusion of Conalco’s interest expenses in the tax base.
c
Next, we briefly address Conalco’s claim of entitlement to a capital acquisition deduction under § 23(c) for capital acquisitions everywhere, as opposed to a smaller deduction for capital acquisitions only in Michigan. Conalco made this argument in its brief on appeal, but abandoned the issue at oral argument, presumably in light of our Supreme Court’s recent decision in Caterpillar, Inc v Dep’t of Treasury, 440 Mich 400; 488 NW2d 182 (1992), which upheld the constitutionality of § 23. In accordance with Caterpillar, supra, we find that this issue is without merit.
D
Conalco makes a separate argument that to the extent that any portion of the assessment may be unconstitutional, respondent may not impose an unconstitutional tax. It is obvious that respondent may not impose an unconstitutional tax. However, Conalco has not demonstrated how the assessment is unconstitutional. In accordance with our disposition of the preceding issues, this issue is without merit.
E
Finally, Conalco raises a number of issues concerning the sufficiency of the Tax Tribunal’s findings. In particular, Conalco argues that the Tax Tribunal’s decision made no direct findings of fact, made conclusions of law without citing legal authority, and failed to address the substantive issues raised. Further, Conalco argues that it was entitled to have all factual issues resolved in its favor because respondent presented no evidence at the hearing before the Tax Tribunal. We find these issues to be without merit.
The fact that respondent did not present evidence at the hearing to support the assessment does not, in itself, mandate reversal of the Tax Tribunal’s decision. Gillette, supra at 317. In a case such as this, which involves primarily questions of law, the Tax Tribunal may rely upon the evidence presented by the taxpayer when deciding to uphold an assessment.
In the present case, the Tax Tribunal specifically adopted and incorporated by reference portions of the hearing officer’s proposed judgment. The hearing officer’s proposed judgment is replete with numerous citations of legal authority. To the extent that the Tax Tribunal disagreed with the proposed judgment, it made separate findings of fact and conclusions of law, citing appropriate legal authority. As such, we will not disturb the Tax Tribunal’s decision because it was based upon competent, material, and substantial evidence on the whole record, and was in accordance with the law. Gillette, supra at 306; Const 1963, art 6, § 28.
v
CONCLUSION
In summary, we hold that Ormet’s financial information should not be included in the calculation of Conalco’s tax base because the two corporations are separate entities. Further, Conalco’s total interest expenses must be included in its tax base without any prior geographic apportionment. Conalco is only entitled to a capital acquisition deduction for Michigan acquisitions. The tax assessment by respondent was constitutional; and the Tax Tribunal’s decision was in accordance with the law and was supported by competent, material, and substantial evidence on the whole record.
Affirmed.
Revere Copper and Brass, not a party to this appeal, held the remaining thirty-four percent interest in Ormet.
Ormet’s corporate charter precluded it from operating at a profit.
Assessment No. B647924.
If Conalco and Ormet were found to be an affiliated group under MCL 208.3(1); MSA 7.558(3)(1), then they might be permitted to file a consolidated return according to MCL 208.77; MSA 7.558(77).
MCL 208.31; MSA 7.558(31) recently has been amended, replacing the word "which” with "that.”
MCL 208.45; MSA 7.558(45) was amended following the period relevant to this appeal.
Section 46 defines the property factor as follows:
The property factor is a fraction, the numerator of which is the average value of the taxpayer’s real and tangible personal property owned or rented in this state during the tax year and the denominator of which is the average value of all the taxpayer’s real and tangible personal property owned or rented during the tax year. [MCL 208.46; MSA 7.558(46).]
Section 49 defines the payroll factor as follows:
The payroll factor is a fraction, the numerator of which is the total wages paid in this state during the tax year by the taxpayer and the denominator of which is the total wages paid everywhere during the tax year by the taxpayer. For the purposes of this chapter only, "wages” means wages as defined in section 3401 of the internal revenue code. [MCL 208.49; MSA 7.558(49).]
Section 51 defines the sales factor as follows:
The sales factor is a fraction, the numerator of which is the total sales of the taxpayer in this state during the tax year, and the denominator of which is the total sales of the taxpayer everywhere during the tax year. [MCL 208.51; MSA 7.558(51).]
Sections 36 through 39 of the sbta provide credits to offset the amount of tax liability.
Also consistent with our opinion, § 78, MCL 208.78; MSA 7.558(78), prohibits consolidation of the tax base or apportionment factors of two or more corporations except as expressly provided in § 77 for affiliated groups. | [
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Per Curiam.
Plaintiff Dart Energy Corporation filed this action for a declaratory ruling and injunctive relief, claiming that defendant Department of Natural Resources had exclusive jurisdiction to regulate an oil and gas well that had been converted to a brine injection well. MCL 319.1 et seq.; MSA 13.139(1) et seq. The trial court granted plaintiff and defendant dnr’s respective motions for summary disposition. MCR 2.116(0(10). Defendant Iosco Township now appeals as of right. We affirm.
Defendant Iosco Township is expressly prohibited from regulating an oil and gas well that is converted to a brine injection well. MCL 125.271; MSA 5.2963(1). Defendant dnr has exclusive jurisdiction to regulate such wells. MCL 319.1 et seq.; MSA 13.139(1) et seq., Addison Twp v Gout (On Rehearing), 435 Mich 809; 460 NW2d 215 (1990). Therefore, the trial court did not err in granting summary disposition to plaintiff and defendant DNR.
Affirmed. | [
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Taylor, J.
Defendant pleaded guilty of breaking and entering a motor vehicle with the intent to steal property valued over $5, MCL 750.356a; MSA 28.588(1), and habitual offender-second offense, MCL 769.10; MSA 28.1082. A condition of defen dant’s plea bargain was that he be allowed to appeal the denial of his motion to suppress the evidence. Defendant argues that the evidence was obtained illegally because the police did not have an individualized and objective basis for the investigative stop. Alternatively, defendant argues that his sentence of IV2 to 5 years is disproportionate. We affirm.
At approximately 4:30 a.m. on August 27, 1992, a witness phoned police to report three men breaking into a pickup truck across the street from her home on Curwood Street in Kentwood, Michigan. The witness stated that the men seemed to be taking things from the truck, that one of the men was carrying a large object, and that the men made several trips back and forth to the truck as if they were "going to a car or something.” The police dispatcher put the report out over the radio and then called the witness back to ask if the suspects were still there. The witness said that they were, but that they were starting to head south on her street on foot. At that point, the witness testified, it started to rain.
Sergeant Hiram Collins of the Kentwood Police Department testified that when he heard the radio report he was very close to the location of the reported crime and that it took him only a minute to get to Curwood Street. He parked his car at the corner of Curwood and Pickett, the nearest cross street south of the witness’ address. Sergeant Collins was aware that another police car had arrived at a location to the north of the witness’ address and that nobody had left the area in that direction.
Within one minute of the time he arrived on Curwood Street, Sergeant Collins observed a car heading south on Curwood from the same area in which the reported crime had occurred. Although he knew that the witness had not seen the three men get into a car, he knew from experience that use of a getaway vehicle "was consistent with what these guys do when they’re going to rip off a car. They park a car down the road. . . .” Sergeant Collins testified that he had dealt with twenty or thirty similar crimes that summer alone and that he had been a Kentwood police officer for twenty-two years. He also testified that the car he observed heading south on Curwood was the only car on the street at that time.
Sergeant Collins observed two men in the front seat of the car. He knew that the witness had reported seeing three men, but it was dark and the back windows of the car were smoked glass, preventing him from seeing if there were any passengers in the back seat. He pulled the car over and, subsequently, stereo equipment was observed in the back, which the owner of the pickup truck later identified as his property. Defendant was a passenger in the car.
Defendant was charged with breaking and entering a motor vehicle with the intent to steal property valued at over $5, MCL 750.356a; MSA 28.588(1), and habitual offender-third offense, MCL 769.11; MSA 28.1083. In exchange for the prosecutor’s agreement not to bring an additional charge of breaking and entering a dwelling, and to dismiss the habitual offender-third offense information against him, defendant pleaded guilty of breaking and entering a motor vehicle and habitual offender-second offense, MCL 769.10; MSA 28.1082.
Defendant also filed a motion to suppress the evidence against him, which was denied. An additional condition of defendant’s plea bargain was that he would be allowed to appeal this denial of his motion to suppress. It is the denial of this motion that is the precise legal issue presented for review. ,
"This Court will not disturb a trial court’s ruling at a suppression hearing unless that ruling is found to be clearly erroneous.” People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). However, the underlying issue before us is "the strict application of a constitutional standard to uncontested facts. Application of constitutional standards by the trial court is not entitled to the same deference as factual findings.” People v Nelson, 443 Mich 626, 631, n 7; 505 NW2d 266 (1993).
The requirements of a constitutionally proper investigative stop are:
The totality of the circumstances as understood and interpreted by law enforcement officers, not legal scholars, must yield a particular suspicion that the individual being investigated has been, is, or is about to be engaged in criminal activity. That suspicion must be reasonable and articulable .... [Nelson at 632 (citations omitted).]
The [law enforcement officer’s assessment of the circumstances] does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. [United States v Cortez, 449 US 411, 418; 101 S Ct 690; 66 L Ed 2d 621 (1981).]
In the instant case, Sergeant Collins testified that within a minute of receiving the radio report he was at a location where he would see anyone leaving the scene of the crime in the direction testified to by the witness; that in his experience these types of thieves have a getaway car in the area; that there were no cars on the road other than the one that he stopped to investigate in which defendant was a passenger; and that, in the totality of these circumstances, he had a particular suspicion that the vehicle and its passengers were involved in the reported crime.
There is no bright line rule to test whether the suspicion giving rise to an investigatory stop was reasonable, articulable, and particular. Common sense and everyday life experiences predominate over uncompromising standards. Therefore, deference should be given to a law enforcement officer of twenty-[two] years. ... In analyzing the totality of the circumstances, the law enforcement officers are permitted, if not required, to consider "the modes or patterns of operation of certain kinds of lawbreakers. From [this] data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person.” [Nelson, supra at 635-636 (citations omitted).]
The suspicion which led Sergeant Collins to stop defendant’s vehicle was reasonable in the context of the circumstances and the sergeant’s experience of twenty-two years. It was particular in that the vehicle was coming from the area of the reported crime, in the direction reported by the witness, and was the only vehicle on the road in that area.
Defendant’s reliance on People v Coscarelli, 196 Mich App 724; 493 NW2d 525 (1992), is unavailing. In Coscarelli, this Court held that the trial court’s denial of the defendant’s motion to suppress was clearly erroneous because "the officers candidly admitted that they had no probable cause to believe that defendant was engaged in criminal activity.” Id. at 727. In the case before us, Sergeant Collins had a reasonable and particularized suspicion directed at the vehicle in which defendant was a passenger. We also note that Coscarelli was decided without the benefit of our Supreme Court’s meticulous explication in Nelson, supra, of the proper analysis in such cases. The trial court’s denial of defendant’s motion to suppress was not clearly erroneous.
"Although the sentencing guidelines do not apply to an habitual offender’s sentence, the principle of proportionality is still applied to the review of the defendant’s sentence.” People v Derbeck, 202 Mich App 443, 446; 509 NW2d 534 (1993). However, the guidelines are a tool to assist the determination whether defendant’s sentence as an habitual offender is proportionate. The habitual offender statute under which defendant was sentenced allows for a maximum term not more than 1 Vi times the longest term prescribed for a first conviction of the underlying offense. The guidelines range for breaking and entering a motor vehicle with the intent to steal property valued over $5 is 0 to 12 months. Defendant’s minimum sentence of 18 months is precisely IV2 times the longest term prescribed for a first conviction of that offense. This is "an indication that defendant’s sentence is proportionate.” People v Williams, 191 Mich App 685, 687; 479 NW2d 36 (1991).
The sentencing judge stated on the record that he had spent extra time considering the appropriate sentence. He cited defendant’s juvenile offenses and his previous felony offenses as an adult, one of which occurred while defendant was on probation. The judge did not abuse his discretion. The sentence is proportionate to the offense and the offender. People v Milbourn, 435 Mich 630, 635-636; 461 NW2d 1 (1990).
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Per Curiam.
These consolidated appeals arise from a 1986 investigation, known as "Operation Shifty,” that was conducted by the Department of State’s (dos) Bureau of Automotive Regulation (bar) in conjunction with the Office of the Attorney General (oag) into fraudulent practices by transmission repair facilities pursuant to the Mo tor Vehicle Service and Repair Act (the Act), MCL 257.1301 et seq.; MSA 9.1720(1) et seq.
The bar and its director, Frederick Pirochta, and its mechanic, Walter Curtis, together with the oag, received the technical support and assistance of General Motors Corporation, Lucille Tregowan and her Pennsylvania corporation, Transmissions by Lucille, and the Fairfax Group Ltd. (hereinafter referred to as the private defendants) in implementing the investigation. General Motors supplied four vehicles, twenty transmissions, garage facilities, and technical engineering assistance. Transmissions by Lucille rebuilt the transmissions and prepared them for use. Pursuant to the directions of state officials, Transmissions by Lucille filled the transmissions with used transmission fluid, sprayed the pans with graphite to create the appearance of "dirty pans,” and added metallic debris to the pans. Fairfax provided the "cover stories” to explain why the cars were brought in for servicing.
During the summer of 1986, state employees took the vehicles with rebuilt transmissions to various franchised facilities, posing as customers in response to advertisements for low-priced transmission tune-ups. At thirteen repair facilities, expensive "tear-down” inspections were performed even though the transmissions were in good working order.
As a result of the investigation, the thirteen transmission repair facilities were charged on August 6, 1986, with violations of the Act. Among them were the AAMCO repair shop in Grand Rapids operated by Pentco Enterprises, Inc., that was owned by plaintiffs Arim and Ditta, and three American Transmissions, Inc., repair shops in Plymouth, Garden City, and Ann Arbor that were owned and operated by the Folino plaintiffs (who also owned plaintiffs Jay Enterprises, Inc., J J & T, Inc., and Commercial Transmissions, Inc.). On the same day, the Secretary of State summarily suspended the certifications and registrations of the three American Transmissions repair facilities owned by the Folinos.
On August 11, 1986, the oag filed an administrative complaint against Pentco and its owners and their repair facility licenses were also summarily suspended. On the same day, the oag also filed a civil complaint for injunctive relief and penalties against Pentco in the Kent Circuit Court. The oag also filed criminal charges against plaintiff Jay Enterprises, Inc. (owned by the Folinos) and its employee, Michael Rutherford, for obtaining money under false pretenses. Plaintiff Mario Bossio, the owner of B & C Corp., Inc., and Trans-4, Inc. (hereinafter the Bossios), and plaintiffs Emilio and Mary Daloisio, the owners of M & E Corporation, Inc. (hereinafter the Daloisios), which also operated transmission repair facilities, were investigated but were not charged with any violations under the Act.
On August 12, 1986, at the close of the investigation, Attorney General Frank Kelley and Secretary of State Richard Austin held a joint press conference and issued a press release stating the nature of the undercover investigation and the identity of thirteen registered transmission repair facilities that had been charged with violation of the Act. On that same day, Attorney General Kelley discussed the investigation and the prosecution of the thirteen repair shops when he was interviewed by Bill Bonds of WXYZ-TV in Detroit.
On August 19, 1986, the dos commenced admin istrative hearings regarding the suspension and revocation of the certification and registration of the three American Transmissions facilities owned and operated by the Folino plaintiffs. In the final administrative decision issued by the administrative hearing officer and entered by the Secretary of State on February 17, 1989, it was determined that all three American Transmissions shops owned by the Folinos committed unfair and deceptive acts and violated §§ 7 and 33 of the Act, MCL 257.1307; MSA 9.1720(7) and MCL 257.1333; MSA 9.1720(33), as well as various provisions of the bar’s General Rules. As a result, a cease and desist order was entered against the Folinos, whose registrations and certifications were permanently revoked. The hearing officer specifically found that these American Transmissions shops had misrepresented the condition of the transmissions and the need for expensive "tear-down” work, charged for services not performed, unnecessarily replaced a working transmission, or performed unnecessary repairs in order to profit.
During the administrative proceedings, the Folino plaintiffs attacked the integrity of Operation Shifty, contending that the bar had violated § 26(2)(d) of the Act, MCL 257.1326(2)(d); MSA 9.1720(26)(2)(d), which prohibits the bar from "deliberately misrepresenting] the condition of the vehicle” used in an investigation. Specifically, the Folinos argued that gm improperly cooperated with state officials, and that the use of old transmission fluids, the failure to flush the cooling lines, the alteration of the transmission pans to make them appear dirty, and the use of "coercive cover stories” would be misleading to an honest and reasonable transmission repair facility employee or mechanic. The hearing referee rejected these claims and found that the investigative method was not improper.
The administrative decision was affirmed on appeal by the Wayne Circuit Court on May 8, 1990. On September 11, 1990, application for leave to appeal was denied by this Court. On March 29, 1991, the Michigan Supreme Court denied leave to appeal.
During the pendency of the administrative proceedings involving the Folinos’ American Transmissions repair shops, the Pentco plaintiffs, Arim and Ditta, agreed to waive trial and surrender their repair facility license under an administrative decision entered on May 19, 1987. Subsequently, on March 9, 1988, the Kent Circuit Court entered a consent injunction that permanently enjoined the Pentco plaintiffs from having an ownership interest in any repair facility or performing any automotive repair work for five years. In late 1991, Pentco was dissolved.
On July 10, 1989, the plaintiffs in Docket No. 145204 (plaintiffs Arim and Ditta, owners of Pentco) filed the instant action against the private defendants alleging a violation of due process under 42 USC 1983, as well as claims of fraud, injurious falsehood, tortious interference with advantageous business relationship, intentional infliction of emotional distress, and abuse of process. Principally, these plaintiffs contend that defendant gm initiated the Operation Shifty investigation to shut down franchised transmission repair facilities because the franchisees were informing their customers of their rights under a 1982 Federal Trade Commission (ftc) consent decree that required gm to submit to binding arbitration to repair defective transmissions in approximately five million automobiles.
On July 18, 1989, the plaintiffs in Docket No. 145205 (the Folino and Bossio plaintiffs) filed a complaint alleging a violation of due process under § 1983, as well as fraud, injurious falsehood, tortious interference with a business relationship, and intentional infliction of emotional distress. As in Docket No. 145204, these plaintiffs alleged that gm initiated the investigation to disparage the franchised transmission repair facilities in order to avoid its warranty obligations under the ftc consent decree.
The private defendants then moved to dismiss the complaints in Docket Nos. 145204 and 145205 on the grounds that plaintiffs failed to state a claim under § 1983, that defendants’ alleged conduct was privileged under the First Amendment, and that the complaints were barred by collateral estoppel because the factual core claims had already been adjudicated in the state administrative proceedings.
After the cases were removed by defendants to federal district court for the Eastern District of Michigan, the federal court granted the motion to dismiss on February 9, 1990, on the basis of First Amendment immunity under the Noerr-Pennington (Eastern Railroad Presidents Conference v Noerr Motor Freight, Inc, 365 US 127; 81 S Ct 523; 5 L Ed 2d 464 [1961]; United Mine Workers of America v Pennington, 381 US 657; 85 S Ct 1585; 14 L Ed 2d 626 [1965]) doctrine and, alternatively, on the ground that the Folino plaintiffs’ § 1983 claim was barred by collateral estoppel because the "allegations forming the core of plaintiffs’ claim, i.e., that the investigation was improper, were considered and rejected in the underlying administrative proceedings.” However, the court noted that the collateral estoppel ground for dismissal did not apply to the "non-Folino plaintiffs.” Having dismissed the § 1983 claim, the court remanded the pendent state law claims to the Wayne Circuit Court on the ground that the court did not have authority to rule after dismissal of the federal claim. On June 4, 1991, the federal district court’s judgments were affirmed in American Transmissions, Inc v General Motors Corp, 935 F2d 269 (CA 6, 1991).
On remand to the Wayne Circuit Court, the trial court granted summary disposition in favor of defendants in Docket Nos. 145204 and 145205 on July 18, 1991, and dismissed plaintiffs’ state claims. Reconsideration was denied on September 12, 1991, and a final order was entered on September 27, 1991.
Plaintiff Jay Enterprises, Inc. (Docket No. 148304) and plaintiffs American Transmissions, Inc., Mario Bossio, and Emilio Daloisio (Docket No. 147502) filed state law claims against defendants Curtis and Pirochta. After a hearing held on November 22, 1991, the Wayne Circuit Court issued an order granting in part defendants’ motion for summary disposition in Docket Nos. 147502 and 148304, but allowed the Bossio plaintiffs to file an amended complaint regarding their claims of injurious falsehood and tortious interference with an advantageous business relationship (Docket No. 154046).
On December 6, 1991, the Bossio plaintiffs filed the amended complaint. After a hearing on May 20, 1992, the trial court granted defendants’ motion for summary disposition under MCR 2.116(C) (10).
Plaintiffs now appeal as of right.
DOCKET NOS. 145204 AND 145205
Plaintiffs first contend that the trial court erred in granting summary disposition pursuant to MCR 2.116(C)(8) based upon Noerr-Pennington immunity. We disagree.
The doctrine and the exceptions thereto arose from Noerr, supra, and Pennington, supra, which essentially held, as summarized in Video Int’l Production, Inc v Warner-Amex Cable Communications, Inc, 858 F2d 1075, 1082 (CA 5, 1988), cert den sub nom City of Dallas v Video Int’l Productions, Inc, 490 US 1047 (1989), "that parties who petition the government for governmental action favorable to them cannot be prosecuted under the antitrust laws even though their petitions are motivated by anticompetitive intent.”
In Potters Medical Center v City Hosp Ass’n, 800 F2d 568, 578 (CA 6, 1986), the Sixth Circuit Court of Appeals similarly observed "that attempts to influence the legislative process, even if prompted by an anticompetitive intent, are immune from antitrust liability.” In Potters, at 578, the Sixth Circuit Court of Appeals, citing Noerr, supra at 137-138, noted two reasons for conferring immunity:
[T]he First Amendment’s protection of the right to petition the government, and the recognition that a representative democracy, such as ours, depends upon the ability of the people to make known their views and wishes to the government.
In Potters, supra at 578, the Sixth Circuit Court of Appeals also noted, citing California Motor Transport Co v Trucking Unlimited, 404 US 508, 510; 92 S Ct 609; 30 L Ed 2d 642 (1972), that "the protection of the Noerr-Pennington doctrine [extends] to efforts to influence administrative agencies and the courts.”
Until recently, courts have identified two separate exceptions to the Noerr-Pennington doctrine: (1) the "sham” exception and (2) the "coconspirator” exception. As set forth in Video Int’l, supra at 1082:
The "sham” exception comes into play when the party petitioning the government is not at all serious about the object of that petition, but engages in the petitioning activity merely to inconvenience its competitor. Thus, the sham exception is said to apply when one party has begun litigation not to win that litigation, but rather to force its competitor to waste time and money in defending itself. Similarly, a party that "petitions” the government by engaging in administrative processes only to preclude or delay its competitor’s access to those processes may be liable for antitrust damages under the "sham” exception.
The "coconspirator” exception was applied where "a government official or body has been influenced by the petitioner through some corrupt means.” Id. at 1083. However, in City of Columbia v Omni Outdoor Advertising, Inc, 499 US 365, 382-384; 111 S Ct 1344; 113 L Ed 2d 382 (1991), the Court rejected a "conspiracy” exception to the NoerrPennington doctrine.
In the instant case, defendants were entitled to Noerr-Pennington immunity to plaintiffs’ tort claims because their assistance and cooperation with the State of Michigan in a law enforcement operation was constitutionally protected under the First Amendment.
Contrary to plaintiffs’ contention, the Noerr-Pennington doctrine is not limited to federal antitrust actions. As explained in Video Int’l, supra at 1084:
Although the Noerr-Pennington doctrine initially arose in the antitrust field, other circuits have expanded it to protect first amendment petitioning of the government from claims brought under federal and state laws, including section 1983 and common-law tortious interference with contractual relations. . . . There is simply no reason that a common-law tort doctrine can any more permissibly abridge or chill the constitutional right of petition than can a statutory claim such as antitrust. [Citations omitted.]
Furthermore, contrary to plaintiffs’ contention, there is nothing in City of Columbia, supra, to indicate that the Court limited the application of the doctrine to antitrust cases. The Sixth Circuit Court of Appeals, in affirming the decision of the federal district court, rejected plaintiffs’ argument in American Transmissions, Inc v General Motors Corp, 935 F2d 269 (CA 6, 1991), cert den — US —; 112 S Ct 308; 116 L Ed 2d 250 (1991).
Moreover, plaintiffs fail to establish the "sham” exception to the Noerr-Pennington doctrine. In view of the license revocation actions undertaken by the bar against plaintiffs Arim and Ditta and the Folino plaintiffs, defendants’ conduct in cooperating with the state government could scarcely be considered "baseless.” Potters, supra at 579.
Further, there is nothing to indicate that defendants — specifically gm — exceeded the permissible bounds of petitioning under the First Amendment. The record indicates that the state conducted and controlled the entire operation with the assistance of defendants. According to the administrative hearing officer, defendant Pirochta initially contacted gm, requesting assistance with regard to the bar’s ongoing investigation, and gm replied that "it was up to the State of Michigan to investigate the matter on its own.” Subsequently, gm and the other private defendants agreed to provide assistance to the state investigation, which was controlled by the oag and the bar. Thus, there is no basis for plaintiffs’ contention that gm initiated the Operation Shifty investigation in order to avoid its warranty requirements pursuant to the ftc consent decree.
Notwithstanding, plaintiffs argue that evidence discovered in a companion case in the Court of Claims allegedly shows that gm approached the oag and dos and asked if "[the State] would be willing to join forces and conduct a number of investigations in Michigan [concerning franchised transmission repair shops].” But a perusal of the evidence clearly shows that the bar, which was already considering an investigation of unnecessary transmission repairs at the time, contacted gm. It was only after the bar found out that gm was also paying for unnecessary repairs that gm offered to "join forces and conduct a number of investigations in Michigan.”
Even if gm cooperated with the state in order to avoid its warranty requirements under the ftc decree, plaintiffs still have failed to show that defendants engaged in "excessive” or improper cooperation with the State of Michigan beyond the permissible scope of the First Amendment. Here, the trial court agreed with the federal court’s conclusion that defendants’ actions were comparable to the immunized assistance given to law enforcement activities in Ottensmeyer v Chesapeake & Potomac Telephone Co of Maryland, 756 F2d 986 (CA 4, 1985), and Forro Precision, Inc v Int’l Business Machines Corp, 673 F2d 1045 (CA 9, 1982).
In Ottensmeyer, an antitrust case, the Fourth Circuit Court of Appeals held that private telephone companies that actively assisted in a law enforcement investigation of a rival answering service were entitled to First Amendment immunity, notwithstanding anticompetitive motives or purposes. In Forro, the Ninth Circuit Court of Appeals similarly held that ibm’s active participation with the police in investigating Forro’s suspected theft of ibm trade secrets was entitled to First Amendment immunity. See also Stachura v Truszkowski, 763 F2d 211 (CA 6, 1985), rev’d in part on other grounds Memphis Community School Dis v Stachura, 477 US 299; 106 S Ct 2537; 91 L Ed 2d 249 (1986), where the Sixth Circuit Court of Appeals held that a private party does not lose First Amendment protection, notwithstanding improper means or motives.
In short, plaintiffs have offered nothing to show that allowing immunity for the private defendants in these cases "would abuse the First Amendment into becoming the ultimate weapon — both a sword for achieving evil and a shield for preventing liability.”
Thus, the trial court correctly concluded, as did the federal district court and the Sixth Circuit Court of Appeals, that defendants’ conduct was protected by their First Amendment right to petition the government, and that neither gm nor the other private defendants exceeded the scope of their First Amendment protection. In view of defendants’ immunity, the trial court properly granted their motions for summary disposition under MCR 2.116(C)(7). Because this issue is dis-positive in these cases, we need not reach the other issues raised in Docket Nos. 145204 and 145205.
DOCKET NO. 148304
Plaintiff Jay Enterprises, Inc., which is owned by the Folino plaintiffs, argues that the trial court erred in finding that collateral estoppel barred the Folino plaintiffs, who were subjected to the administrative proceedings, from asserting claims against defendants Pirochta and Curtis for improper conduct during the investigation. We disagree.
First, even though defendants Pirochta and Curtis were not parties to the prior administrative proceeding, they may assert collateral estoppel defensively so as to preclude plaintiff Jay Enterprises’ claim against them. A well-established exception to the mutuality requirement is where the litigants in the second suit are the agents, servants, or employees of the litigants involved in the first suit. Braxton v Litchalk, 55 Mich App 708; 223 NW2d 316 (1974); see also Lichon v American Universal Ins Co, 435 Mich 408, 428, n 16; 459 NW2d 288 (1990). As plaintiff acknowledges in its complaint, defendants Pirochta and Curtis are state employees, and, thus, they are entitled to assert collateral estoppel defensively against plaintiff Jay Enterprises, which is in privity with the Folinos. Howell v Vito’s Trucking & Excavating Co, 386 Mich 37; 191 NW2d 313 (1971).
Second, plaintiff’s claims that defendants conducted an improper investigation of the Folino plaintiffs’ transmission repair facilities by deliberately misrepresenting the condition of the vehicles used in the investigation in violation of § 26(2)(d) of the Act are the same issues raised by the Folino plaintiffs and decided against them during the state administrative proceedings. Senior Accountants, Analysts & Appraisers Ass’n v Detroit, 399 Mich 449; 249 NW2d 121 (1976).
Third, the factual questions central to these claims were fully and fairly litigated by the Folino plaintiffs in their defense during the administra tive proceedings. Hence, because plaintiff had a full and fair opportunity to litigate the same issues during the prior adversarial administrative proceedings, and because the issues were decided adversely to plaintiff, collateral estoppel bars plaintiff from relitigating these claims before this Court in the action against defendants Curtis and Pirochta. The trial court properly granted summary disposition for defendants.
DOCKET NO. 147502
Plaintiffs argue that the trial court erred in dismissing their claim of fraud without permitting them to amend their complaint, in finding that plaintiffs failed to set forth a prima facie case of intentional infliction of emotional distress, and in determining that plaintiffs’ claims of injurious falsehood and tortious interference with advantageous business relationships were barred by governmental immunity.
First, the trial court did not err in dismissing plaintiffs’ fraud claim. To show fraud or misrepresentation, plaintiffs must prove: (1) defendants made a material misrepresentation; (2) it was false; (3) when defendants made it, defendants knew that it was false or made recklessly without knowledge of its truth or falsity; (4) defendants made it with the intent that plaintiffs would act upon it; (5) plaintiffs acted in reliance upon it; and (6) plaintiffs suffered damage. Hi-Way Motor Co v Int’l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976). Here, plaintiffs were not charged with any violation of the Act and were not among the thirteen transmission repair shops mentioned in the public statements by Attorney General Kelley and Secretary of State Austin. Because plaintiffs were not the "object of fraud” and were not sub jected to the administrative process, no factual development could justify a right of recovery.
Nevertheless, plaintiff Bossio alleges in plaintiffs’ joint amended complaint that the Bossio plaintiffs were included on a dos inquiry form for license applicants listing facilities that had been charged with violations as a result of Operation Shifty. Even accepting this claim as true, plaintiffs still fail to allege that defendants Curtis and Pirochta made materially false representations upon which plaintiffs detrimentally relied. Hi-Way, supra. Because summary disposition is appropriate under either MCR 2.116(C)(8) or (10), there is no need to disturb the result. Ellsworth v Highland Lakes Development Associates, 198 Mich App 55, 57; 498 NW2d 5 (1993).
Second, the trial court properly granted summary disposition pursuant to MCR 2.116(C)(8) of plaintiffs’ claims of intentional infliction of emotional distress. A review of plaintiffs’ complaint does not reveal any allegations of outrageous conduct on the part of defendants Curtis and Pirochta. McCahill v Commercial Union Ins Co, 179 Mich App 761, 768; 446 NW2d 579 (1989).
Last, the trial court did not err in granting summary disposition on the ground that defendants were entitled to governmental immunity. There is no doubt that defendants Curtis and Pirochta, in carrying out the Operation Shifty investigation, were acting in the course of their employment and within the scope of their authority in the discharge of a governmental function. Thus, the only question is whether defendants’ conduct amounted "to gross negligence that is the proximate cause of the injury or damage.” Dedes v South Lyon Community Schools, 199 Mich App 385, 388-391; 502 NW2d 720 (1993). Given the methodical integrity of Operation Shifty, plaintiffs’ claim that defendants’ conduct in carrying out the investigation amounted to gross negligence cannot be sustained. Assuming, arguendo, that defendant Pirochta provided false information to Attorney General Kelley and Secretary of State Austin that was then conveyed to the media, there is no showing that Pirochta’s conduct rose to the level of gross negligence. Given that plaintiffs were not charged with any violations of the Act and their names were never published in connection with the investigation, plaintiffs suffered no apparent injury or damage. Thus, defendants were entitled to summary disposition pursuant to MCR 2.116(C) (7) of all the tort claims of plaintiffs Bossio and Daloisio.
DOCKET NO. 154046
The Bossio plaintiffs contend that the trial court improperly granted defendants’ motion for summary disposition regarding their claim of tortious interference with business relations. We disagree. The trial court properly concluded that there was no genuine issue of material fact regarding plaintiffs’ claim because defendants participated in a lawful investigation under the authority of the Secretary of State and because there was no indication that defendants had any motive to interfere with the business relations of plaintiffs, who were not charged with any violations of the Act. Michigan Podiatric Medical Ass’n v Nat’l Foot Care Program, Inc, 175 Mich App 723, 735; 438 NW2d 349 (1989).
The plaintiffs also contend that the trial court improperly granted defendants’ motion for summary disposition regarding their claim of injurious falsehood. Again, we disagree. The record provides no evidence to support plaintiffs’ claim that the allegedly false statements made by Secretary of State Austin and Attorney General Kelley were based upon false statements made by defendants Curtis or Pirochta, or that these statements referred to plaintiffs. Kollenberg v Ramirez, 127 Mich App 345, 352; 339 NW2d 176 (1983).
Affirmed.
This Court reversed the conviction against Jay Enterprises in People v Jay Enterprises, Inc, unpublished opinion per curiam of the Court of Appeals, decided May 9, Í991 (Docket No. 105861).
American Transmissions, Plymouth v Dep’t of State, Docket No. 89-910378.
American Transmissions v Dep’t of State, unpublished order of the Court of Appeals (Docket No. 130457).
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Per Curiam:.
Defendant was charged in three informations with a total of twenty-one counts of child sexually abusive activity, MCL 750.145c; MSA 28.342a, second-degree criminal sexual conduct, MCL 750.520c(l)(c); MSA 28.788(3)(l)(c), and first-degree criminal sexual conduct, MCL 750.520b(l)(c); MSA 28.788(2)(l)(c). In exchange for the dismissal of sixteen counts and an agreement that his minimum sentence would not exceed fifteen years, defendant pleaded guilty of one count of child sexually abusive activity in each of the three case files. Additionally, he pleaded guilty of one count of second-degree esc in one file and of one count of first-degree esc in one file. Defendant was sentenced to ten to twenty years’ imprisonment for each of the three child sexually abusive activity convictions, five to fifteen years’ imprisonment for his second-degree esc conviction, and fifteen to thirty years’ imprisonment for the first-degree esc conviction. He appeals as of right. We affirm.
Defendant’s convictions arise out of three instances in which he and another individual brought thirteen- and fourteen-year-old girls to a house for photography sessions. Both still photographs and videotapes were taken of the girls in nude or erotic poses. Photographs were also taken of defendant fondling the girls and digitally penetrating them, and of the girls licking defendant’s penis.
i
Defendant contends that his convictions of both child sexually abusive activity and first- or second-degree criminal sexual conduct violate the Double Jeopardy Clause’s prohibition against multiple punishments.
MCL 750.520b(l)(c); MSA 28.788(2)(l)(c) provides:
(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and . . .
(c) Sexual penetration occurs under circumstances involving the commission of any other felony.
Similarly, MCL 750.520c(l)(c); MSA 28.788(3)(l)(c) provides:
(1) A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and . . .
(c) Sexual contact occurs under circumstances involving the commission of any other felony.
The other, or predicate, felony at issue in this case is child sexually abusive activity. MCL 750.145c; MSA 28.342a provides that a person is guilty of that offense when the person "persuades, induces, entices, coerces, causes, or knowingly allows” a child to engage in "sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity” "for the purpose of producing” "a developed or undeveloped photograph, film, slide, electronic visual image, or sound recording” of such acts. MCL 750.145c(1)(e), (h), (i), and (2); MSA 28.342a(1)(e), (h), (i), and (2).
The concept of multiple punishment in double jeopardy jurisprudence has as its purpose the avoidance of more than one punishment for the same offense arising out of a single prosecution. People v Harding, 443 Mich 693, 705; 506 NW2d 482 (1993) (opinion by Brickley, J.). The double jeopardy protection against multiple punishment serves to ensure that a defendant is not subjected to more punishment than that authorized by the legislative branch of government. People v Sturgis, 427 Mich 392, 403; 397 NW2d 783 (1986), citing Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979). Multiple convictions for legislatively linked compound and predicate crimes, such as the offenses in this case, do not necessarily violate the double jeopardy protection against multiple punishments. Rather, the determinative inquiry is what punishment the Legislature intended to be imposed. People v Robideau, 419 Mich 458, 485-486; 355 NW2d 592 (1984).
In determining legislative intent, a court must identify the type of harm the Legislature was intending to prevent, and the amount of punishment authorized by it. Robideau, supra, p 487. Where two statutes prohibit violations of the same social norm, albeit in a somewhat different manner, as a general principle it can be concluded that the Legislature did not intend multiple punishments. Id. Further, where one statute incorporates most of the elements of a base statute and then increases the penalty as compared to the base statute, it is evidence that the Legislature did not intend punishment under both statutes. Id.
Here, it is apparent that the criminal sexual conduct statutes and the child sexually abusive activity statute prohibit conduct that is violative of distinct social norms. The criminal sexual conduct statutes involve sexual assaults on persons of all ages. The focus of first-degree esc is clearly on penetration, Robideau, supra, p 488, while the focus of second-degree esc is on sexual contact. The offense of engaging a child in sexually abusive activity, on the other hand, focuses on protecting children from sexual exploitation, assaultive or otherwise. The purpose of the statute is to combat the use of children in pornographic movies and photographs, and to prohibit the production and distribution of child pornography. See Senate Fiscal Agency Bill Analysis, SB 426, December 1, 1987.
Further, while the punishments for the criminal sexual conduct offenses and for the underlying predicate felony of child sexually abusive activity are not identical, as they were in Robideau, neither are they part of a hierarchy of crimes that build upon a single base statute. This, too, suggests that the Legislature intended imposing dual punishment. See Robideau, supra, pp 487-488.
Because the Legislature intended to punish conduct violative of distinct social norms and did not authorize punishments based on a continuum of culpability, it is apparent that the Legislature intended that the crimes of criminal sexual conduct and child sexually abusive activity be punished separately. Robideau, supra. Accordingly, we hold that defendant’s convictions do not violate the double jeopardy protection against multiple punishments.
n
Defendant also argues that the sentence for his first-degree esc conviction was disproportionate. People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). In People v Blount, 197 Mich App 174, 175-176; 494 NW2d 829 (1992), this Court held that a defendant who pleads guilty and is sentenced in accordance with a plea bargain and sentencing agreement waives the right to challenge the sentence unless there is also an attempt to withdraw the plea for a sound legal reason. Defendant argues that the Blount waiver rule should be given prospective effect only and that, because he was sentenced before the release of the Blount decision, he is entitled to appellate review of his sentence. We disagree.
The general rule in Michigan is that appellate court decisions are to be given full retroactivity unless limited retroactivity is justified. Moorhouse v Ambassador Ins Co, Inc, 147 Mich App 412, 420-421; 383 NW2d 219 (1985). The Blount decision did not overrule prior law or settled precedent and did not involve a vested property right. Jahner v Dep’t of Corrections, 197 Mich App 111, 114; 495 NW2d 168 (1992). Further, the Blount decision was clearly foreshadowed by People v Vitale, 179 Mich App 420, 422; 446 NW2d 504 (1989), where this Court stated:
The trial court accepted defendant’s plea and sentenced him under a sentence recommendation to which he agreed. Why should defendant now be heard to complain? It seems pointless to remand such a case to the trial court. Here, where the prosecution and defendant agreed to the minimum sentence imposed, what are we to review and what are we to demand of the trial court?
Accordingly, we give the rule announced in Blount full retroactive effect. Defendant has, therefore, waived his right to challenge the proportionality of his sentence where he entered into a sentence agreement, the trial court abided by the agreement, and defendant did not move to withdraw his guilty plea. Blount, supra, pp 175-176.
In any event, defendant’s sentence for his first-degree esc conviction was proportionate to the seriousness of the circumstances surrounding the offense and the offender. Milbourn, supra. The sentence was within the guidelines’ recommended minimum sentence range and defendant benefited from a plea bargain resulting in the dismissal of a substantial number of other charges. People v Broden, 428 Mich 343, 354; 408 NW2d 789 (1987); People v Duprey, 186 Mich App 313; 463 NW2d 240 (1990).
Affirmed.
Child sexually abusive activity is part of the child protection laws and not one of the series of laws prohibiting criminal sexual conduct. Producing child sexually abusive material is a felony punishable by twenty years in prison. MCL 750.145c(2); MSA 28.342a(2). Second-degree esc is a felony punishable by fifteen years in prison, MCL 750.520c(2); MSA 28.788(3)(2), while the aggravated crime of first-degree esc is punishable by imprisonment for life or any term of years, MCL 750.520b(2); MSA 28.788(2X2). | [
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Per Curiam.
Following a jury trial, defendant was convicted of second-degree child abuse, MCL 750.136b(3); MSA 28.331(2)(3), and was sentenced to a prison term of two to four years. Defendant appeals as of right. We reverse and remand for a new trial.
Defendant was charged with first-degree child abuse after her daughter received second-degree burns over thirty-three percent of her body as a result of contact with boiling hot water. Although there is a dispute over the manner in which the child came into contact with the water, there is no dispute that defendant left a bucket of boiling hot water on a floor in a location easily accessible to her children. The prosecution’s theory was that defendant threw the water at the child. The de fense theory was that defendant, who is deaf, was drawing a bath for the children and did not see how the child came into contact with the water.
In instructing the jury on the elements of second-degree child abuse, the trial court stated:
Second, that the defendant did some reckless act. In this act, for example, leaving a large pail of scalding hot water in a bucket on the floor of a room easily accessible to small children.
Although the defendant did not object to this instruction, the instruction regarding recklessness was error that requires reversal. Defendant admitted leaving the bucket of water on the floor. The trial court told the jury in this instruction that it was reckless to leave a bucket of hot water on the floor in the presence of children. The instruction removed the element of recklessness from the jury’s consideration. The failure to permit the jury to make the critical determination regarding whether defendant’s conduct constituted a reckless act requires reversal and a new trial. See, e.g., People v Allensworth, 401 Mich 67, 71; 257 NW2d 81 (1977).
The prosecution argues that the trial court merely gave an example of a reckless act in an effort to "clarify the meaning of a complex legal term.” People v Shepherd, 63 Mich App 316; 234 NW2d 502 (1975). While acknowledging that examples may be useful for this purpose, however, the Shepherd Court cautioned:
[T]he jury is likely to give undue weight to examples, since they are easier to comprehend, and it may simply compare the defendant’s conduct with the example. To prevent these adverse effects, the trial judge must clearly indicate that the examples are only examples, and that the jury must determine guilt or innocence by following the jury instructions as a whole. [Id. at 322.]
In this case, the trial court used defendant’s conduct itself as an example of a reckless act. The court exceeded the danger contemplated in Shepherd that the jury might simply compare the defendant’s conduct with the example. Rather, the court’s "example” made a determination regarding one of the elements of the charged offense.
The error cannot be deemed harmless in this case. The jury’s rejection of the charge of first-degree child abuse reveals that the jury did not find beyond a reasonable doubt that defendant threw the water at the child. Given defendant’s admission that she left the bucket of water on the floor, the only contested issue was whether placing a bucket of hot water on the floor constitutes a reckless act.
For purposes of avoiding possible error on retrial, we turn to defendant’s allegation that the trial court improperly excluded as hearsay the victim’s statements made to others. We first note that defendant failed to characterize the statements at trial as excited utterances, and it is unclear from the record whether the trial court ruled with regard to the question whether the statements were excited utterances. On retrial, should defendant attempt to admit the statements as excited utterances under MRE 803(2), admissibility is governed by a two-step test for determining whether the declarant had time to contrive or misrepresent; that is, whether the interval between the event and the statement was long enough to make fabrication possible and whether the declarant’s emotional state at the time permitted it. People v Carson, 87 Mich App 163, 168; 274 NW2d 3 (1978).
Reversed and remanded for a new trial.
The hot water heater in defendant’s home was broken, and defendant had to boil water to use for bathing and cleaning. | [
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] |
ON REMAND
Before: Griffin, P.J., and Sawyer and P. H. Chamberlain, JJ.
Per Curiam.
Pursuant to the Michigan Supreme Court’s order of June 1, 1992, this case comes to this Court for plenary consideration "as on leave granted.” 439 Mich 1022 (1992).
The procedural history of this case is lengthy, but not complex. In 1985, after a jury trial in the Recorder’s Court, defendant was convicted of first-degree murder and possession of a firearm during the commission of a felony. On August 20, 1985, he received the statutory sentence for each offense.
A claim of appeal was filed, and defendant’s convictions were affirmed. People v Kincade, 162 Mich App 80; 412 NW2d 252 (1987). No further appeal was sought.
On September 9, 1987, defendant, proceeding in propria persona, filed a motion in the lower court that he styled as one for a new trial. That motion was denied by an order dated September 14, 1987. A delayed application for leave to appeal from that order was filed in the Court of Appeals, which denied leave. Unpublished order of the Court of Appeals, decided November 22, 1988 (Docket No. 104129). The Supreme Court denied leave on May 31, 1989. 432 Mich 909 (1989).
Subsequently, defendant again moved for a new trial in the Recorder’s Court. From denial of that motion, defendant filed an application for leave to appeal in the Court of Appeals, which was denied. Unpublished order of the Court of Appeals, decided March 15, 1990 (Docket No. 121864).
However, our Supreme Court, in People v Kin cade, 436 Mich 883 (1990), remanded the matter to the Recorder’s Court with instructions "to provide a hearing on the defendant’s claim that he should receive a new trial because he was denied effective assistance of counsel. MCR 7.302(F)(1).” Furthermore, the Court provided that "[o]n remand, if the defendant is indigent, the court is to appoint an attorney who has not previously represented the defendant.”
Hearings were held on January 23 and 24 and April 26, 1991, for which attorney Kimberly Reed was appointed to represent defendant. On April 26, 1991, the trial court denied the motion for a new trial, ruling that defendant’s claim of ineffective assistance of trial and appellate counsel had not been sustained.
Defendant filed a claim of appeal in the Court of Appeals, contending that the Recorder’s Court decision was a "final judgment” appealable as of right. When defendant failed to respond to correspondence from the clerk’s office of this Court, requesting a copy of the trial court’s order and opinion as required by MCR 7.204(C)(1), this Court dismissed the appeal. Unpublished order of the Court of Appeals, decided on October 17, 1991 (Docket No. 140764).
Contemporaneously with defendant’s filing of a claim of appeal in Docket No. 140764, defendant filed a complaint for superintending control. That complaint challenged the Recorder’s Court’s failure or refusal to provide defendant with appointed appellate counsel following the hearings and the alleged refusal of the Recorder’s Court to provide defendant with transcripts of those hearings. This Court issued a peremptory order pursuant to MCR 7.206(D)(3), directing the Recorder’s Court forthwith to provide defendant with a copy of its decision of April 26, 1991, and with a transcript of the proceedings on remand. The order further provided that, in all other respects, "the complaint for superintending control is denied for lack of merit in the grounds presented. MCR 7.205; Ross v Moffitt, 417 US 600; 94 S Ct 2437; 41 L Ed 2d 341 (1974) .” In re Kincade, unpublished order of the Court of Appeals, decided October 16, 1991 (Docket No. 141703). The citation of Ross and MCR 7.205 was an effort to suggest that an appeal as of right would not lie from such an order and, thus, that there would be no right to appointed counsel on appeal therefrom. Ross holds that the Sixth Amendment right to appointment of counsel for indigent criminal defendants on appeal applies only to first appeals or appeals as of right and not to subsequent, discretionary appeals.
It is the decision in Docket No. 140764 that has been returned to this Court "for consideration as on leave granted.” Defendant contends he is entitled to the appointment of counsel and to an appeal as of right in these circumstances. We disagree.
In People v Jones, 394 Mich 434; 231 NW2d 649 (1975) , our Supreme Court reaffirmed its holding in People v Pickett, 391 Mich 305; 215 NW2d 695 (1974), that where an appellate court remands for some limited purpose following an appeal as of right in a criminal case, a second appeal as of right, limited to the scope of the remand, lies from the decision on remand. From the second appeal under those circumstances, a defendant is entitled to the full panoply of ancillary rights, such as the right to the assistance of appointed counsel if indigent. Const 1963, art 1, § 20.
Granting that proposition, it has no application here. In resolving defendant’s appeal as of right by published opinion, this Court did not remand or otherwise leave open any issue raised for further resolution on remand. Defendant’s postappeal motions for a new trial, all of which were filed more than eighteen months after the original sentencing date, MCR 7.205(F), were reviewable only as motions for relief from judgment pursuant to MCR 6.501 et seq. When the Supreme Court remanded for an evidentiary hearing, the invocation of defendant’s right to the appointment of counsel in conjunction with the motion for relief from judgment was the result of the fact that an evidentiary hearing had been ordered. MCR 6.505.
Because the proceedings on remand were not a continuation of defendant’s appeal as of right, no further appeal as of right could lie therefrom; appeals from decisions under the relief from judgment chapter are by leave to appeal only. MCR 6.509(A). However, in any such appeal, where the trial court, as here, has appointed counsel for the defendant during the proceeding, that appointment "authorizes the attorney to represent the defendant in connection with an application for leave to appeal to the Court of Appeals.” MCR 6.509(B).
The rule in that respect is not mandatory in terms of the lawyer’s obligation; rather, the matter is left to the lawyer’s professional discretion, as this Court recently recognized in a peremptory order in People v Baber, unpublished order of the Court of Appeals, decided February 18, 1994 (Docket No. 169488):
Once the circuit court determined that oral argument was necessary to resolve one or more aspects of the motion for relief from judgment, it became mandatory to appoint counsel for defendant, MCR 6.505(A), assuming defendant’s indigence. When counsel is once appointed pursuant to that rule, and the trial court ultimately concludes that the motion for relief from judgment should be denied, counsel has authority to appeal, but not a mandate, and therefore must exercise professional discretion in determining whether to seek leave to appeal that decision to this Court. MCR 6.509(B).
Here, defendant’s appeal is discretionary. Thus, the extent of defendant’s right to the assistance of counsel is provided by court rule, MCR 6.509(B), rather than the requirements of the Sixth and Fourteenth Amendments as delineated in Ross, supra. It is for attorney Kimberly Reed, in the exercise of her professional discretion, to decide whether a substantive challenge to the order denying the motion for relief from judgment should be sought in this Court by a delayed application for leave to appeal, a decision that it appears defendant has not yet requested her to make. That decision can still be made, because the eighteen-month time limitation of MCR 7.205(F) was tolled during the time the various appellate proceedings connected with the order denying relief from judgment have been pending in this Court or the Supreme Court. Riza v Niagara Machine & Tool Works, Inc, 411 Mich 915 (1980).
Accordingly, defendant’s appeal is dismissed without prejudice to the filing of a delayed application for leave to appeal from the order denying relief from judgment, whether by counsel previously appointed or by defendant in propria persona, if brought within the time otherwise allowed by MCR 7.205(F).
This Court retains no further jurisdiction. | [
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] |
Per Curiam:.
In Docket No. 148914, Maersk Container Service Company, Inc., appeals as of right from the circuit court’s order granting the motion for summary disposition of plaintiff Integral Insurance Company pursuant to MCR 2.116(C) (10). Although it prevailed, Integral cross appeals as of right from certain conclusions of law reached by the circuit court. In Docket No. 149038, Insurance Company of North America (ina) also appeals as of right from the same order. Integral also cross appeals in Docket No. 149038. We consolidated the appeals and affirm.
This case involves a dispute between no-fault insurers regarding the primary liability to Ralph Scott for injuries he sustained on May 4, 1989, when the semitrailer and truck tractor he was driving overturned in Pennsylvania. Although the tractor was owned by Scott and registered in Michigan, Scott leased it to Maersk on April 4, 1989, for ninety days. Under the terms of the lease, Maersk agreed to procure and maintain liability insurance covering bodily injury and property damage for the tractor. Scott agreed to procure "bobtail” insurance and worker’s compensation insurance.
Ina issued a policy to Maersk covering personal injury protection for automobiles subject to no-fault. Scott’s tractor was covered under the policy. Integral issued a "bobtail” policy to Scott that expressly excluded coverage (1) while the tractor was being used to carry property for business and (2) while the tractor was being used for the business of anyone who leased the tractor. Apparently, the lease and insurance arrangement between Scott and Maersk is very common in the trucking industry.
There is no dispute that at the time of the accident, Scott was hauling a trailer attached to the tractor and that the trailer was loaded with cargo for Maersk. Integral contended that ina’s policy covered Scott and was primarily liable because Integral’s policy excluded coverage when Scott was hauling cargo for a company to whom the tractor was leased. Integral and ina each agreed to contribute fifty percent of Scott’s personal protection insurance (pip) benefits during their dispute regarding priority. Integral filed sep arate lawsuits against Maersk and ina that were later consolidated. Initially, the trial court held that the exclusion clause contained in Integral’s policy was contrary to public policy and therefore void. Thus, the issues focused on which policy was primarily responsible for Scott’s pip benefits.
The no-fault act provides that owners or registrants of motor vehicles shall maintain security for payment of benefits under personal protection insurance, as well as property and residual liability insurance. MCL 500.3101(1); MSA 24.13101(1). The act also requires insurers to pay pip benefits to their policyholders for injuries resulting from automobile accidents regardless of fault. MCL 500.3105; MSA 24.13105. Because Scott was entitled to pip benefits under MCL 500.3111; MSA 24.13111, it is necessary to determine which insurance company is liable for those benefits.
In determining their respective priorities, the parties argued, at length in the trial court regarding the application of MCL 500.3114; MSA 24.13114, which provides in relevant part:
(1) Except as provided in subsections (2), (3), and (5), a personal protection insurance policy described in section 3101(1) applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household, if the injury arises from a motor vehicle accident.
(3) An employee . . . who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.
The trial court deferred its decision whether Scott was an employee of Maersk to the hearing referee who was deciding a worker’s compensation claim filed against Maersk by Scott. The referee eventually ruled that Scott was an employee of Maersk. Afterward, the trial court entered an order finding that ina was first in priority to pay Scott’s pip benefits under MCL 500.3114(3); MSA 24.13114(3). However, the Worker’s Compensation Appellate Commission subsequently reversed the referee’s decision, finding that Scott was not an employee. Thus, the basis for the circuit court’s order no longer holds true.
This Court agrees with Maersk and ina that’ the trial court erred in refusing to determine whether Scott was an employee for purposes of no-fault and deferring its decision to the hearing referee. Although the bureau has exclusive jurisdiction to decide whether injuries suffered by an employee were in the course of employment, the courts have jurisdiction to determine the fundamental issue whether an employee-employer relationship exists. Sewell v Clearing Machine Corp, 419 Mich 56, 62; 347 NW2d 447 (1984); Amerisure Ins Cos v Time Auto Transportation, Inc, 196 Mich App 569, 572; 493 NW2d 482 (1992). The trial court should have decided on its own whether Scott was an employee of Maersk for purposes of applying MCL 500.3114(3); MSA 24.13114(3).
Regardless of the court’s error, this Court finds that the court also erred in holding that the bobtail policy was void as contrary to public policy. The scope of coverage regarding an automobile accident is determined by the financial responsibility act, MCL 257.501 et seq.; MSA 9.2201 et seq. State Farm Mutual Automobile Ins Co v Snappy Car Rental, Inc, 196 Mich App 143, 146; 492 NW2d 500 (1992). Public policy prevents an automobile liability insurance policy from containing exclusions not specifically authorized by the Legislature. However, an exclusionary clause is not per se invalid simply because it is not specifically provided for in the no-fault act. Id., p 147.
Generally, a "bobtail” policy is a policy that insures the tractor and driver of a rig when it is operated without cargo or a trailer. The policy issued by Integral to Scott contained the following exclusion:
This insurance does not apply to:
1. A covered auto while used to carry property in any business.
2. A covered auto while used in the business of anyone to whom the auto is rented.
Integral’s policy provided coverage only when Scott was not hauling cargo for a business or when Scott was not hauling cargo for a business to whom the tractor was rented. Admittedly, the policy itself does not provide full coverage. However, the tractor was fully covered under no-fault by the addition of ina’s policy that provided coverage when Scott was hauling cargo on behalf of Maersk. This is allowed under MCL 257.520(j); MSA 9.2220(j), which provides:
The requirements for a motor vehicle liability policy may be fulfilled by the policies of 1 or more insurance carriers which policies together meet such requirements.
Taken together, the policy issued by ina and the bobtail policy issued by Integral provided continuous insurance coverage to the tractor as required by the motor vehicle financial responsibility act. See also State Farm Mutual Automobile Ins Co v Auto-Owners Ins Co, 173 Mich App 51, 54; 433 NW2d 323 (1988). Accordingly, we hold that the policy issued by Integral is not void, and therefore the trial court’s ruling was erroneous.
Thus, the issues related to the trial court’s decision that ina was first in priority for paying Scott’s pip benefits under MCL 500.3114(3); MSA 24.13114(3) because he was an employee of Maersk are irrelevant because Integral’s exclusion is applicable. We further find that both Scott and Maersk were owners of the tractor under the no-fault act as defined under MCL 500.3101(2)(g); MSA 24.13101(2)(g):
"Owner” means any of the following:
(i) A person renting a motor vehicle or having the use thereof, under a lease or otherwise, for a period that is greater than 30 days.
(ii) A person who holds the legal title to a vehicle, other than a person engaged in the business of leasing motor vehicles who is the lessor of a motor vehicle pursuant to a lease providing for the use of the motor vehicle by the lessee for a period that is greater than 30 days.
Maersk leased the vehicle for ninety days and Scott held legal title to the tractor. Therefore, as owners of a motor vehicle, Scott and Maersk were required to maintain security for payment of benefits under personal protection insurance. MCL 500.3101(1); MSA 24.13101(1). However, as previously stated, ina is responsible for the pip benefits because Integral’s policy did not provide coverage when Scott was hauling cargo on Maersk’s behalf.
Therefore, we affirm the summary disposition order despite the erroneous conclusions reached by the court. This Court will not reverse a trial court’s decision where it reached the correct result, but for the wrong reason. Bonner v Chicago Title Ins Co, 194 Mich App 462, 472; 487 NW2d 807 (1992). In light of our disposition, we decline to address the remaining issues raised by the parties.
Affirmed.
An application for leave to appeal the wcac’s decision was filed and was denied by this Court. Scott v Maersk Container Service Co, Inc, unpublished order of the Court of Appeals, issued March 18, 1994 (Docket No. 170422). | [
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ON REMAND
Before: Weaver, P.J., and Shepherd and D. A. Johnston, III, JJ.
Per Curiam.
This case has been remanded to us from the Supreme Court for consideration as on leave granted. In this appeal, the prosecutor argues that the circuit court erred in affirming the decision of the district court to dismiss ouil charges against defendant. The district court dismissed the case after finding that the police officer’s stop of defendant’s vehicle was unreasonable. We agree with the prosecutor’s position that the stop was reasonable, and reverse and remand for further proceedings.
The prosecution developed the following evidence at the bench trial in the district court. On February 10, 1990, at approximately 10:30 p.m., Deputy Morgan of the Oakland County Sheriff’s Department observed defendant’s vehicle traveling west on Richardson Road in Commerce Township. Morgan recalled that he was in uniform in a fully marked patrol car at the time. Morgan followed defendant’s vehicle for approximately one-half mile, and observed defendant’s vehicle "drifting like to the right and left and driving on the lane markers.” Morgan testified that the weather was dry and there was no ice or rain on the paved road.
At some point, defendant activated his left turn signal, traveling past numerous driveways and one side street before turning south at Newton Road. Morgan estimated that defendant had activated his turn signal approximately two-tenths of a mile before finally turning. Morgan followed defendant onto Newton Road and activated his overhead lights, and defendant pulled his vehicle over to the side of the road. Morgan testified that he stopped defendant to investigate defendant’s extended use of his turn signal.
When Morgan asked defendant for his driver’s license and vehicle registration, he immediately noticed a "very strong odor of alcohol or intoxicants coming out of the vehicle and from [defen dant’s] breath.” Morgan recalled asking defendant why he had his turn signal on for so long, but could not remember defendant’s answer. Next, Morgan asked defendant whether he had been drinking. Defendant replied that he had consumed a few beers. Morgan recalled that when defendant answered, his speech was slow and slurred. After defendant had some difficulty performing various field sobriety tests, he was arrested for ouil.
The prosecution presented the foregoing testimony by Deputy Morgan at the bench trial in the district court. The prosecution also presented testimony by Deputy Scott, who had arrived on the scene while Morgan was administering the field sobriety tests. Scott’s testimony confirmed much of Morgan’s testimony. In particular, Scott confirmed defendant’s difficulty with the field sobriety tests.
After presenting these two witnesses, the prosecution rested its case. Then, defendant moved for dismissal, arguing that the prosecution had presented insufficient evidence and that the police stop was unreasonable. The trial court then instructed the parties to submit briefs regarding the reasonableness of the police stop. At the close of a subsequent hearing concerning the matter, the district court ruled that the police stop was unreasonable and dismissed the charges against defendant. The circuit court affirmed the decision of the district court by an order dated July 9, 1991.
On appeal, we must first define the scope of our review. Our interpretation of the record is that the district court essentially dismissed the case on the basis of insufficient evidence. However, the district court’s implicit finding of insufficient evidence was based on its decision that the evidence from the stop was obtained illegally. Accordingly, the prosecution has limited its argument on appeal to the issue of the reasonableness of the police stop. Defendant’s response is similarly focused on the reasonableness of the stop, but also includes a general argument contesting the sufficiency of the evidence. Herein, we limit our review to the question whether the district court could properly consider the evidence obtained during the police stop. On this question, the decision of the district court must be affirmed unless clearly erroneous, i.e., unless this Court is left with the definite and firm conviction that a mistake has been made. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983).
It is well established that brief investigative stops short of arrest are permitted where police officers have a reasonable suspicion of ongoing criminal activity. Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968); People v Faucett, 442 Mich 153, 168; 499 NW2d 764 (1993). The totality of the circumstances test is to be used in cases involving investigative stops. Id., citing United States v Cortez, 449 US 411; 101 S Ct 690; 66 L Ed 2d 621 (1981). The Cortez Court warned against overly technical reviews of a police officer’s common-sense assessment of the probability that criminal activity is afoot. Faucett, supra at 168.
In People v Whalen, 390 Mich 672, 682; 213 NW2d 116 (1973), our Supreme Court concluded that the following rules apply with respect to the stopping, searching, and seizing of motor vehicles and their contents:
1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.
2. Said reasonableness will be determined from the facts and circumstances of each case.
3. Fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved.
4. A stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search is conducted by the police.
In People v Chinn, 141 Mich App 92, 97; 366 NW2d 83 (1985), this Court found that Chinn’s erratic driving supported a "reasonable suspicion that the defendant had ingested more alcohol than allowed under state law.” Although the primary issue in Chinn was whether the officer had a duty to inform Chinn of his Miranda rights, and although Chinn’s driving appears to have been more erratic than that of our defendant, we agree with the general principle that erratic driving can give rise to a reasonable suspicion of unlawful intoxication so as to justify an investigatory stop by a police officer.
In the case at bar, we believe that Deputy Morgan had reasonable cause to suspect ongoing criminal activity, i.e., that defendant may have been intoxicated. Faucett, supra at 168. Defendant’s vehicle was seen swerving in the lane and driving on the lane markers. Defendant had his turn signal flashing for two-tenths of a mile before turning at the second side street. This would appear to be classic indicia of an intoxicated driver. Because fewer foundational facts are necessary to support a finding of reasonableness when moving vehicles are involved, Whalen, supra at 682, we hold that the trial court erred in concluding that the investigatory stop of defendant’s vehicle was unreasonable. The investigatory stop was a "minimal intrusion” of defendant’s Fourth Amendment rights in light of defendant’s potential danger to the public. People v Nelson, 443 Mich 626, 637; 505 NW2d 266 (1993).
Because the courts below resolved this case on the issue of the investigative stop, we reverse and remand for further proceedings consistent with this opinion. However, our decision to reverse on this one issue is made without prejudice to any other issues that might be raised in the courts below.
Reversed and remanded.
This Court originally denied plaintiffs application for leave to appeal, unpublished order of the Court of Appeals, decided November 21, 1991 (Docket No. 142935). The Michigan Supreme Court remanded the matter to us for consideration as on leave granted, 439 Mich 964 (1992).
Defendant was charged with operating a vehicle while under the influence of intoxicating liquor, MCL 257.625(1); MSA 9.2325(1).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Chinn’s vehicle was seen swerving onto the left shoulder of the freeway, and at one point accelerated to seventy miles per hour while negotiating a fifty-miles-per-hour curve. Chinn, supra at 94. | [
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Marston, J:
In this case it is claimed that the note sued upon has been paid so far as plaintiff in error is concerned. It is a sufficient answer to this to say that the court below has not so found, nor does such a conclusion follow from the facts found.
It is claimed that the court erred in admitting in evi denee the promissory note sued upon, without proof of the endorsements or signatures of the endorsers. The suit was brought against the makers and all the endorsers but one, and his endorsement was admitted to be genuine. The execution of the note and endorsements were not questioned in the pleadings. Where the action, as in this case, is brought against the makers and endorsers,, under the plea of the general issue each defendant thereby admits that he signed the instrument as alleged in the declaration, and also that it was executed by the parties declared against.— Pegg v. Bidleman, 5 Mich., 29.
It was also claimed that there was no proof offered showing-any co-partnership between defendants Lobdell and Stevens as alleged in the declaration. No such proof was necessary. The admission of the execution was an admission that it was executed by the defendants by the name and description alleged in the declaration. — Pegg v. Bidleman, supra.
It is also claimed that the plaintiff had no right to sue this note in its own name and for its own benefit. Under the finding of the court we think it had the right to sue and collect in its own name. — Brigham v. Gurney, 1 Mich., 349.
The only other objection made in this court is to the admission of the duplicate notices of protest in evidence. The record states when these notices were offered that the “defendant’s counsel objected.” It does not appear that any particular objection or reason was given why they were incompetent. The objection was too general. The particular ground of their incompetency should have been pointed out so that the party offering them might have had an opportunity to supply the defect if in his power so to do.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Per. Curiam:
I. The charge of the court as given covered all the points involved in the several requests which were proper to be given, and was as favorable to the plaintiff as under the evidence was warranted, and the refusal to grant his requests was therefore not error.
II. It is just as competent for a magistrate, as conservator of the peace, to order into custody an insane man who is committing a breach of the peace in his presence, as to order the arrest of a sane person under like circumstances; though an insane person may not be guilty of crime, he may lawfully be prevented from doing harm.
Judgment affirmed. | [
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Graves, J:
Locke and defendant in error, David McVean, entered into an agreement in writing on the 1st of March, 1871, of the following tenor:
“It is agreed that all sales of sewing machines which 0. M. Locke, of Detroit, Mich., shall make to David McVean,. of Lapeer, shall be upon, the terms and conditions following, unless it shall be otherwise in writing hereafter agreed, during the continuance of this contract. All indebtedness by account, note or otherwise, which shall arise under this contract from said D. McVean to said O. M. Locke, shall be paid when due.
“First. Machines will be packed for transportation and delivered in Detroit by O. M. Locke, after which all expenses of every kind will be paid by said David McVean.
“Second. Said David McVean shall reasonably advertise and make all reasonable efforts to sell at prices not less than the. regular retail prices of O. M. Locke, and shall introduce, supply and sell said machines as speedily, thoroughly and extensively as practicable throughout said Lapeer county, state of Michigan.
“Third. Said D. M’cVoan shall neither keep nor deal in any other sewing machines than the ‘ Florence/ and shall supply himself, by purchase from O. M. Locke, with needles, threads and findings for said machines,. that his customers and the community may be at all times promptly and conveniently supplied; and said needles, thread and findings shall be sold to him by 0. M. Locke at .the lowest wholesale price to such agents for cash.
“Fourth. O. M. Locke will, during the continuance of this agency, sell 'his machines to said D. McVean at a discount of.- twenty-five per cent, from the regular retail prices at Detroit.
“Fifth. Said D. McVean shall give to every purchaser of a Florence machine full and thorough instructions how-to run said machine, and shall forfeit to O. M. Locke all profit or commission on such sale in case of failure or neglect to fulfill the requirements of this clause.
“Sixth. So long as said D. McVean shall conduct this business properly, energetically and to the satisfaction of O. M. Locke, no other local agent for the sale of said sewing machines will be established in said territory.
“Seventh. Said D. McVean shall give his nóte of hand for all purchases of machines, at the time of purchase, said notes to be on four months’ time without interest. If 'so desired, an extension of time will be granted by O. M. Locke, equal to sixty days on each note, said McVean' to pay interest therefor at the rate of eight per cent, per annum.
“O. M. Locke agrees to take good notes that said Mc-Voan may receive in exchange for machines, provided said notes are payable at bank or express office, bearing interest from date, on not over six months’ time and endorsed by D. McVean. If not paid at maturity, said notes are to be returned to said D. McVean. If O. M. Locke shall not be satisfied with the conduct of said business and agency by said D. McVean, he may establish another agent in his stead at pleasure. Said D. McVean may discontinue this agency at pleasure, on notice of thirty days.
“For the more convenient prosecution of this agency, O. M. Locke agrees to furnish said McVean with a wagon, as soon as said McVean shall become satisfied that the territory will pay sufficiently well to justify the expense. Said wagon to be .the property of O. M. Locke, and to be returned in as good order as received, cnatural wear excepted,’ upon demand of O. M. Locke.”
At the time this contract was entered into, a bond was written and executed on the back of it, from the defendant David McVean as principal, and the defendant Daniel Mc-Vean and one Alexander McVean, now deceased, as sureties, to. the plaintiff Locke, in the penal sum of two thousand dollars, and conditioned that if David McVean'should “well and truly keep and perform in all respects, according to its true intent and meaning,” the contract in question, then the obligation should be void, otherwise in force.
Subsequently David McVean gave his five several promissory notes to Locke, each payable six months after date, and dated respectively May 17th, May 18th, September 22d, October 2d, and October 7th, in the year 1871, and each, except the second, only drawing interest after four months, and then at the rate of eight per cent. The second was so worded as upon its face to draw interest at seven per cent, from date for the first four months, and thereafter at eight.
The notes were all given for sewing machines furnished by Locke in the course of the business explained in the contract, and not being paid, Locke sued upon the bond to enforce collection of the surviving surety. When the case came on for trial, there was no dispute about the genuineness of the papers. The only question was Avhether the bond applied to and covered these notes. The contract and bond were admitted in evidence without objection, but the surety insisted that the notes Avere not such as ho agreed to be liable for; that he only bound himself to be liable for notes given by David McVean to the plaintiff, and drawn payable at four months, whereas the notes offered were drawn payable at six months; and the judge sustained the objection and refused to admit the notes in evidence. The question in the case is upon the correctness of this ruling, and it turns upon the interpretation of the papers. In argument counsel laid down conflicting rules as to the interpretation of guaranties. For the defendants it Avas contended that the undertaking of the guarantor must be read and applied according to the strict letter or precise terms used to express it, and Wright v. Johnson, 8 Wend., 512, and several other cases, were cited.
On the part of plaintiff in error it Avas claimed that the same principle is to govern which obtains Avhere other contracts are in question, and that the intent of the parties is to be sought for and may be gathered from the whole instrument and the subject matter of the engagement, and Curtis v. Hubbard, 6 Met., 191, and Lee v. Dick, 10 Pet., 493, were referred to.
Formerly it is certain there Avas much diversity of opinion on this subject. A number of New York cases Arere very strongly on the side of construction favorable to the guarantor and such as would reduce his liability Avithin the narrowest limits. Chancellor Kent seems to have inclined to that ’ doctrine. — Com., Vol. 3, p. 124. There were likewise some English authorities which favored the same view. But in Mason v. Pritchard, 12 East, 227, the court of King’s Bench declared that the words were to be taken as strongly against the guarantor as the sense of them would admit of, and in Merle and others v. Wells, 2 Campb., 413, Lord Ellenborough, at nisi prius, acted on the same principle.
In Hargreave v. Smee, 6 Bing., 244, Tindal, C. J., said: "The question is, What is the fair import to be collected from the language used in this guaranty? The words employed are the words of the defendant, the guarantor in this cause, and there is no reason for putting on a guaranty a construction different from that which the court puts on any other instrument. With regard to other instruments the rule is, that if the party executing them leaves any thing ambiguous in his expressions, such ambiguity must be taken most strongly against himself.” Park, J., observed, that it had been conceded that, all these cases were to be decided each on its own ground; and that it was useless, therefore, to refer to the decisions, except for some principle incidentally laid down; that the only question of principle which had been agitated was, Avhether these instruments were to be construed strictly, and that he was not disposed to hold the doctrine which had been imputed to Lord Wynford, that a guaranty ought to receive a strict construction. Bwrrough, J., remarked, that he hoped the time would come when more reliance would be placed on principles than on cases; that he had no doubt as to the intention of the parties; that the writings were commercial agreements, and ought to receive a liberal, -not a strict construction. In Wood v. Priestner, in the Exchequer in 1866, the Chief Baron observed, the question in these cases depends not merely on the words; but, when the words are at all ambiguous, requires a consideration of the circumstances to aid the construction; that it was therefore necessary to look at the existing state of things, and looking to that, to construe the words in such a way as the court considered most consistent with the intention of the parties; not, indeed, considering any statement of either party as to what he meant by the words used, but taking the words themselves, together with the surrounding facts, as the exponents of the meaning of both. Martin, B., observed, that he could not assent to the remarks of Bayley, B., in Nicholson v. Paget, 1 Cr. & M., 52, that a contract of guaranty ought to be read in any peculiar way, and stated that his own opinion was it should be read in the same way as any other contract.
Bramwell, B., also repudiated the opinion of Bayley, B., in Nicholson v. Paget, and thought a contract of guaranty should be interpreted in the same way as other contracts. Pigott, B., concurred, and the judgment followed the rule as stated (L. R., 2 Excheq., 66), and -was affirmed in the Exchequer Chamber.— Ib., 282.
In Burgess v. Eve the Vice Chancellor remarked, that reason must be applied to the construction of an instrument of guaranty, and-in view of the surrounding facts and the expressions, he proceeded to ascertain the import of the engagement by giving what he called a reasonable construction to the terms.— L. R., 13 Eq. Cases, 450; 2 Eng., 379; see also Tanner v. Woolmer, 20 E. L. & E., 491; Northwestern R. W. Co. v. Whinray, 26 E. L. & E., 488; Bainbridge v. Wade, 1 E. L. & E., 236; Rolt v. Cozens, 37 E. L. & E., 261; Broom v. Batchelor, Ib., 572; Mayer v. Isaac, 6 M. & W., 605.
In Curtis and another v. Hubbard, 6 Met., 186, Chief Justice Shaw Observed, that in construing an instrument of guaranty, as in the case of any other written instrument, the intent of the parties is to govern, as collected from the whole instrument and the subject matter to which it applies.
In Dobbin v. Bradley, 17 Wend., 422, in Gates v. McKee, 3 Ker., 232, and in Rindge v. Judson, 24 N. Y., 64, the true rule was deemed to be, that when the question is as to the meaning of the written language in which a guarantor has contracted, there is no difference between the contract of a surety and that of any other party, and this seems to be the doctrine as now settled in New York. In the last case many authorities were cited and considered.
The view now generally received appears to be, that for the purpose of finding out what the contract is, the same course is to be pursued that the law authorizes to ascertain what the parties have agreed upon in the case of other mercantile contracts, but that when an understanding is once reached of the true agreement, the rules and principles which pertain to the rights and duties of principal and surety apply, so far as appropriate to the form of that relation recognized in the case of guarantor and guarantee, or admissible in view of the nature and terms of the particular transaction.
This subject has been examined because counsel on both sides appeared to attach importance to it; but according to my impressions the decision of the present case does not depend upon the adoption or rejection of any particular rule which ambiguous arrangements may be supposed to call for.
When the stipulations are plain on their face, so far as they concern the matter in dispute, there is no occasion to spend time about rules. — Mayer v. Isaac, supra.
The explicit description of the undertaking of the party can speak for itself, and if the question is, whether a particular matter equally specific is within it, there ought not to be great difficulty in deciding. As he who undertakes cannot be required to assume more than he promised, if the matter he is sought to be charged with is identically different in substance and effect, no nice reasoning is necessary to prove the want of liability of the promisor.' And, on the other hand, if -what is claimed is identically comprehended by the written description of the undertaking, there would seem to be no room for debate. The transaction here must be viewed as it would be if the contract between the plaintiff and David McVean had been copied into the preamble of the condition of the bond, and proceeding to read the bond in that way and comparing the notes in question with the defendant’s undertaking in the obligation, I discover no ambiguity and find nothing uncertain. The parties con-' templated two forms of indebtedness, one by notes given for machines, and the other for needles, thread and findings, for which notes were not expected to be given, and in' the commencement of the agreement it was provided that David' should pay such indebtedness when due. The notes there referred to were left to be described in a later provision, and in the seventh article we find them described. For every machine David was to give at the time of purchase his note on four months’ time without interest, and in case he desired was to have an extension for sixty days, but for the time of the extension there was to be interest at the rate of eight per cent. Of course under this arrangement Locke would be entitled to the specified note on parting with the machine. No other or different notes were provided to be given by David to the plaintiff, and under the contract the plaintiff could not require any other. They would be a specific form of indebtedness, and very distinguishable from one' resting upon verbal proof. As notes they could be negotiated and used in business and transferred so as to exclude objection or defense by the maker. The guaranty amounted to an obligation that such notes should- be paid when due; but it was not an agreement that any notes which David might give, to run six months or six years, should be paid when due. It was of special interest to the guarantors that the time of running of the notes they were to be liable for should be fixed. If not fixed, then the time in each case would depend on the notions of the immediate parties, who might make it very short or extend it to years, and the guarantors would be always uncertain as to the length of time to which their liability might be carried. Every one must see the difference between becoming bound for all notes 'one neighbor may give another, on whatever time, and becoming bound for all notes so given having four months to run. It is common experience that men will often become sureties on three or four months’ paper when they would not if the paper were drawn at six months. There are sonic definite circumstances which mark the difference in the risk, and there is always room for contingencies to enhance the risk.
But the main consideration is, the guarantors only undertook for paper of a specific description, only became bound to stand responsible for four months’ notes, and the plaintiff and David had no power to extend the obligation to other securities.
The plaintiff’s counsel contends, however, that in view of the clause for an extension on each four months’ note for sixty days, the notes in question, though given for six months, were substantially equivalent to four months, extended as authorized.
I do not think so. • Each note was to run four months without interest, and in case of extension, then to carry interest at eight per cent, per annum for the extended time.
As previously stated, the second note in question ivas worded to draw interest from its date for four months at seven per cent, and thereafter at eight.
Clearly this note was a great ways from being the same . as one drawn pursuant to the plan covered by the guaranty, and then extended sixty days. A few figures will explain one marked difference in dollars and cents.
But a short computation and comparison will prove that neither of these notes, in regard to length of time or amount of interest, is in substance the same as if drawn for four months without interest, and extended sixty days with interest at eight per cent, during that period. In every case the time and amount are both greater. Other distinctions may be noticed. The legal right to compel reception of payment and the surrender of the paper is postponed an additional two months, and that excess of time is likewise afforded for transfer before maturity, and these are substantial differences.
Indeed, the variances are too marked to leave room for any serious question — Russell v. Perkins, 1 Mason, 368; Birckhead v. Brown, 5 Hill, 634; Northwestern R. W. Co. v. Whinray, 26 E. L. & E., 488; Walrath v. Thompson, 6 Hill, 540; S. C. 2 Com., 185; Skinner v. Valentine, 59 N. Y., 473; Hall v. Rand, 8 Conn., 560; Eames v. Carlisle, 4 N. H., 201.
The judgment should be affirmed, with costs.
The other Justices concurred. | [
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] |
Per Curiam:
The plaintiff sued to recover damage she claimed to have suffered by the defendant’s obstruction of a highway.
The obstruction as alleged consisted in fencing in and across the highway near to certain ■ land of the plaintiff. The declaration set up that for more than twenty years prior to the commencement of the suit the highway in question had been, and still was, a common public traveled highway, and was the main outlet or passage way for the plaintiff in the use and enjoyment of her said land, and without, which she was injured in the use and occupation of it; that by reason of such obstruction she was prevented from passing upon or using said highway, and was greatly annoyed and incommoded in the use, possession and enjoyment of her farm; that she was compelled, in order to obtain ingress and egress, to travel several miles further by another high way, and to expend nracli money in traveling and procuring teams therefor.
The general issue being pleaded, the cause was tried by jury, who found for defendant, and the plaintiff brought error. The only objections to the proceedings relate to the directions and rulings of the judge in charging.
There was evidence tending to show that one Campbell was compelled to deviate and pass round upon the plaintiff’s land, and the plaintiff requested a charge that if any one was compelled by reason of the fence to go around upon her land, it was matter of special damage for which she could recover. This was refused, and the refusal is assigned for error. The ruling was right. There was no suggestion in the declaration that any damage would be claimed on account of the passage of third persons over the plaintiff’s land to avoid the fence, and such damage could not be regarded as a necessary consequence of the facts and circumstances set forth. We need not consider how the point would have appeared if the declaration had afforded ground for it.
There was evidence tending to show that defendant made a fence which occupied and obstructed a part of the highway, and also evidence tending to show that the plaintiff placed her fence in the highway there, and thereby occupied and obstructed it from four to twelve feet. The defendant requested, and the court charged, that if the plaintiff could have passed if she had not moved her own fence into the road she could not recover. This ruling is complained of, but we think the objection untenable. If she helped to seal up the road, and in doing what she did precluded her own passage, she became the author of the particular injury she alleges in her declaration.
It is lastly objected that the court instructed the jury, that unless the highway had been used and traveled twenty years prior to the alleged obstruction by defendant the plaintiff could not recover. The proposition in the charge does not appear to have been given as a direction to the jury, but seems to have been mentioned rather as something conceded, and there is nothing in the case to indicate that there was any dispute in regard to the existence of the highway, or in regard to its haying been used and traveled for more than twenty years. The declaration and affidavit for capias both stated that it had been used and traveled for the period mentioned. But aside from this, this part of the charge Avas not excepted to, and consequently there is not the least basis in .the record for the allegation of error.
The judgment should be affirmed, Avith costs. | [
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] |
Per Curiam :
This case will be reversed on the ground that the plaintiff below showed no title to the mortgage. He claimed under an assignment from Adee which recited a previous assignment to another person; which, in other words, admitted that the assignor had no title to assign. 'True, it says the prior assignment was made to Samuel Blackwood under whom the plaintiff claimed; but this was no evidence of that fact. Adee could admit title out of himself, but he could not admit title into any other. | [
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Campbell, J:
Roethke was sued for beer furnished by defendants in error, who were a corporation located in Milwaukee. The beer was sold after verbal negotiations with an agent, carried on at Roethke’s store in Saginaw City. The jury having found the transactions were sale, and not agency, several questions otherwise material cease to be so.
Part of the beer was sent under the Saginaw city negotiations, and the sale was held by the court below to have been void under the Michigan liquor law. The remainder was sent from Milwaukee on separate orders, and held by. the court to be valid foreign contracts. As the verbal agreement made in this state was not sufficient under the statute of frauds to cover future orders, and as those, therefore, stood on their own merits, and the sales and shipments were in Milwaukee, the rulings on these were correct, as there was a contract made there which would have been valid at common law, and which we must presume valid, under which those latter sales were made.
But the court refused to allow the money paid for the unlawful purchases to be set off against the demand in suit for the rest.
This was a manifest error. The statute declared that all moneys paid for liquors sold in violation of law should be considered “as having been received without consideration,” and recoverable back by the person paying the same, etc.— C. L., § 2137. This law places the liability for such money on the same footing as for any other money had and received. It was therefore as legitimate ground of set-off as if plaintiffs below had collected it for defendant and failed to pay it over.
There is a notice of recoupment attached to the plea, averring damages for breach of the plaintiff’s contract to supply defendant with all the beer he could sell, and that it should be good and salable. As it does not point out in what respect the contract had been broken to defendant’s injury, it is too indefinite to allege error upon, and we do' not deem it. important to consider the minor questions raised in reliance on it.
The judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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] |
Campbell, J:
The present controversy arises out of an arbitration of partnership matters, whereby an award was made against Beam in favor of Maeomber of nine hundred and ninety-two dollars and thirty-four cents. The parties had been engaged in buying and selling live stock, and upon a difference in their final accounting, they referred their matters to A. C. Prutzman, C. F. Wheeler and E. II. Lothrop, each depositing a note of one thousand two hundred dollars, the prevailing party to receive the note of the other, with such endorsements as should reduce it to the real balance. The arbitrators, having found the amount of nine hundred and ninety-two dollars and thirty-four cents to be due Maeomber from Beam, endorsed down his note to that sum and gave it to Maeomber, June 23d, 1870. Four days thereafter Maeomber sued it in attachment against Beam. In February, 1871, Beam filed his bill to have allowed him a sum of one thousand two hundred dollars paid for the firm but accidentally omitted from his statement submitted to the arbitrators, and never acted on by them, though alleged to have been known to Maeomber and not revealed by him. Various proceedings were had before answer, which need not be referred to. The answer, which was not sworn to, denies the error, but avers two errors against Maeomber, which he claims to have recently discovered, — one in an omission by Beam to charge himself with seven hundred dollars, part of receipts from sales of hogs, September 23, 1869; and one of one thousand three hundred dollars, from sales on October 20, 1869. A cross-bill, not sworn to, sets up the same facts, and prays a correction of the award.
Proofs were taken, and all the arbitrators were sworn on behalf of Beam, who was also a witness. Maeomber introduced no evidence, except from an accountant to prove the proper mode of making debit and credit entries. He was not sworn himself. Both bills were dismissed, and both parties appeal.
The first question presented is, whether any case is made for disturbing the award.
It is not competent to open an award made by judges selected by the parties themselves for any small or slight occasion. Parties having selected them and trusted to their discretion must abide by their decision unless very good reason can be shown to the contrary. But on the other hand, the mere fact that arbitrators have acted, does not prevent courts from inquiring to ascertain whether by fraud or accident they have been prevented from making such an award as- they might or would have made on -a fair and full showing; and equities may exist which will render it just and proper to relieve against the defects which are found to arise from their omissions, for which the complaining party is not in fault. Fraud and mistake may furnish grounds for equitable interference. — Bulkley v. Starr, 2 Day, 553; Van Cortlandt v. Underhill, 17 J. R., 405; Charter v. Trevelyan, 11 Cl. & Finn., 714; Champion v. Wenham, Ambler, 245; Hutchinson v. Shepperton, 13 Q. B., 955; Boston Water Power Co. v. Gray, 6 Met., 131; In re Dare Valley Railway Co., L. R., 6 Eq., 429.
In Champion v. Wenham, Ambler, 245, it was held the whole award need not be disturbed where the matter complained of can be discriminated and settled by itself. And such seems to be the good sense of the matter.
The present case being one where each of the partners kept account of his own matters, each was bound in good faith to lay before the arbitrators his whole knowledge of the facts, and any willful omission to do this would have been fraud. The failure to have all proper evidence laid before them could hardly fail to have arisen from either fraud or mistake of one or both of the parties.
The items set up by Macomber, if correctly claimed by him to have' been omitted in the accounting, would have changed the balances very considerably. Their combined amount is two thousand dollars, and the allowance of either of them would have required the arbitrators to make an award against Beam beyond the face of the one thousand two hundred dollar note deposited; and the allowance of both would have about doubled the award.
The fact of this great excess is of itself enough to require caution in examining Macomber’s claim, for it is evident the differences which the parties found in their private accounting, and which led them to arbitrate, must have been such as did not contemplate a balance of more than one thousand two hundred dollars due to either, and no attempt has been made to show any concealment of these items at that time.
Upon examining the record and proofs we find abundant evidence that the items out of which the seven hundred dollar claim arises were submitted to the arbitrators, and that they heard the parties, and upon investigation changed Beam’s statement by adding to it a charge against him of a further sum than he had credited. He swears, and the other testimony bears him out in it, that the additional charge grew out of a dispute which they examined into. There is nothing to show the arbitrators had not full means of knowledge, and Beam swears positively that he credited the whole money in controversy except the sum added by them against him. It also appears from the testimony of one of the arbitrators, that while Macomber found fault afterwards with the disallowance of the one thousand three hundred dollar item, he said nothing to him about this. Under all these circumstances we think there is nothing to show any mistake or misconduct of the arbitrators, or any oversight. And as Macomber has not seen fit to give his own testimony or show his own vouchers or accounts, it must be presumed there is no ground of complaint on this score.
The one thousand three hundred dollar item was also brought before the arbitrators and passed upon, and we have no reason to suppose there, was any mistake-here, for it was in the minds of all the parties, and it is not probable that any one of intelligence could have passed by such a mistake as is set up in regard to it. This sum, as well as other items, appears in Beam’s statement.in a form not according with the rules of book-keeping, but nevertheless in such a way as to lead to no difficulty, if compared with the sales accounts, to which, it must be presumed all the parties looked for information. Beam received two thousand three hundred and eighteen dollars and twenty cents, on the 22d of October, 1869, of which he retained one thousand and eighteen dollars and twenty cents, and paid to Macomber one thousand three hundred dollars. He charged himself with the former sum and the company with the latter, and made no credit. There were no partnership books, and these charges, if they stood alone, would represent the transaction in the same way as if he had simply charged the difference between what he and Macomber received, leaving each to retain his own share of two thousand and thirty-six dollars and forty cents as- divided. No injustice could be done, unless Macomber also charged himself a second time with the same amount, and was, in consequence, twice charged by the arbitrators. Such a mistake would be so obvious it could hardly escape attention. In the statement on which the arbitrators appear to have made their final figuring, the account of Macomber’s dealings charges him only with such moneys as he received from his own sales, which would not include this. If this is so,' and we find nothing which leads us to doubt it, then 'if there is any error at all, it is against Beam, for charging to the company what was chargeable to Macomber individually. In regard to these two items set forth in his cross-bill, Macomber was the complaining party on the record, and had the burden of proof. He has made no attempt to enlighten the court by his own testimony, or that of others, and has not produced the papers and vouchers which he must have had the means of producing. We have nowhere the sanction of his oath, either positively or on information and belief, as to any error against him, and there are some things which appear to indicate that the award, apart from Beam’s present claim, might have been too large instead of too small. He contented himself with swearing a witness upon the proper method of-entering items of debit and credit, and has not shown any thing to impeach the actual result. It certainly requires some .strong. evidence to impeach, a result on which the arbitrators heard -the parties and exercised their judgment, and where there was no concealment of facts. The arbitrators have not • discovered' any error themselves, and do not admit any. Beam denies any error, and gives good reasons for denying any, and the exhibit of the arbitrators’ reckoning shows none that we haye discovered.. Macomber made no effort to have any correction made until he filed his answer and cro'ss-bill, eighteen months after the original bill was filed. . .
We think Macomber’s case entirely fails, and that the award is not one which has done him injustice. It is not necessary to consider the question of estoppel urged against him from his prosecution of the Beam note, since he has not proved-any defect to his prejudice.
As to the twelve hundred dollars which the bill was filed to have credited to Beam, the testimony is full, from arbitrators and witnesses, that it was never brought to the attention of any one during the arbitration. It escaped the attention both of Beam and of Mr. Cole, who drew off his account, and there is no doubt he made the payment as he claims he did. It is also evident that Macomber knew it and concealed his knowledge. He admitted as much after the award, to Mr. Wheeler and to Beam. He cannot, therefore, complain that he has been misled or damnified by Beam’s silence or neglect. It was as much his duty as it was Beam’s to show all that he knew of the true condition of the accounts, and intentional concealment is legal fraud between persons in such confidential relations.
Having failed to give his own explanation or to contradict Beam in any particular, we must accept the complainant’s theory of the transaction, and hold that he has, -without fault of his own, been deprived of a credit which he should have received. The original bill does not ask relief against the award except as to this item, and we have not any adequate means of correcting it in any other respect. Treating this as a separate item, and as a partnership debt of which Beam was bound' to bear'one-half, hi' is entitled to a credit on his note to Maeomber. of six hundred dollars, and interest from December T6, 1869, to the date of the note, being in all six hundred and twenty dollars.and forty-two cents, leaving the note reduced from' nine hundred and ninety-two dollars and thirty-four- cents to three hundred and seventy-one dollars and ninety-two cents.
The decree of the circuit court; dismissing the cross bill must be affirmed, the decree dismissing the original bill must be reversed, and a new decree entered allowing to Beam the correction of the award by deducting such credit from the note and endorsing the note down to three hundred and seventy-one dollars and ninety-two cents as of its date, and restraining the collection of the balance, and granting costs of both courts to Beam, against Maeomber.
The other Justices concurred. | [
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] |
Grates, J:
Complainant claims to own and be in possession of numerous large tracts of land in different counties in this state, and which land he alleges defendants are seeking to subject for debts of the Detroit & Milwaukee Railway Co. as property of the latter, and which proceedings he avers becloud his title and impair his equitable rights.
He deduces his title from a decree of the circuit court for the county of Oakland in chancery, made on the 8th of December, 1863, and entered on the 18th of January, 1864, in a suit brought by Morgan L. Drake against the Detroit & Milwaukee Railway Co. and others, and upon a sale made thereunder by a circuit court commissioner for the county of Oakland, on the 25th of April, 1864, and the order to confirm the same, dated May 7th thereafter.
Whatever, therefore, may be said in regard to other aspects of the case, he cannot have relief unless title to the land was obtained through these proceedings, and if the proceedings were actually defective and invalid on jurisdictional grounds, then no title was obtained.
The defendants urge that there were many such jurisdictional defects, and therefore that the present bill was rightly dismissed by the court below.
The term “want of jurisdiction” is used in equity tribunals in different senses.
Sometimes it is conventionally applied, and means no more than this: that the litigation is not launched in such manner as to make it regular for the court to take cognizance of it, or that the proceedings, although well enough begun,are not so shaped or proceeded in as to make it proper to. allow relief, or some particular relief in question; and yet it is well understood that if cognizance of the controversy is taken in the one case, or if the court allows some relief, or the particular relief, in the other, the action had must bind unless set aside in some direct proceeding.
There is no need to mention cases to illustrate this, because they must bo familiar to all. But apart from cases rvithin this principle' we recognize those cases where the defects or miscarriages are so vital or far reaching that the proceeding is positively lad, and does not require to be formally set aside in order to prevent its having operation as something of lawful force. Every court is in some way limited in its powers. There must be certain conditions on which the right to act depends; and in most cases, certainly, the absence of these necessary conditions must deprive the act, if done, of all legal force. When the act is not merely an error or irregularity in the exercise of jurisdiction, but consists in taking cognizance of a case or proceeding without any power to do so, or in doing something which, on account of the character of the court, the nature of the litigation, the subject matter and the aptitude of the complaint, pleadings or issues, is absolutely beyond its legal sphere of action or authority, or in positive derogation of its competency, or in contravention of the power marked ■out by law for its course of action, then, however well intended in point of fact, the thing done amounts to usurpation, and cannot possess any binding force.
Now, when we read the record before us, we notice, in the first place, that the decree in Drake’s case was pro confesso, and that there is no averment in the present bill, or .any proof in the record, that any defendant in Drake’s case was subpoenaed or notified in any form, neither does the ^present bill state that any defendant appeared in that case. But we do not rest on this. We proceed to notice briefly the nature of Drake’s complaint touching these lands and his position in court, in order to ascertain the foundation .and scope of the court’s authority to decree pro confesso.
He claimed to be owner of a judgment for a large sum .against the Detroit & Milwaukee Bailway Co., and he filed his bill in the circuit court for the county of Oakland in chancery, to obtain collection of it. He alleged the recovery of the judgment by other parties, its transfer to him, and that executions had been issued in Oakland county and returned nulla lona, except as to a small pjortion.
He made no charge, and there was no pretense, that any •of the lands in question had been levied on. He however alleged positively that these lands were “vested fully and •completely” in the company, but that by certain subsequent void proceedings of the board of control and others, an ostensible but invalid title had been conferred on certain named persons, and that such ostensible title was a mere “cover,” and not a valid interest, and that in fact these persons were only holding for the use of the company.
It is too plain to admit of question, that Drake’s entire case, as made by his bill, concerning these lands, was framed and based exclusively on the theory and assumption that the company had previously acquired the legal title and was still the true owner, and that what had been done by and through the board of control with others had served to create an ostensible and colorable title merely, in the persons named, as trustees, and which was simply an obstacle in his way to the obtainment of a complete title by sale on execution at law on the judgment against the company.
With the case thus based and shaped in relation to these lands, the court in decreeing pro confesso, or in other words, in proceeding to decree when it could only do so within the precise limits of the case made by the bill, and upon the theory of an admission by the defendants of a right to just such relief, and no other, as the actual case stated by complainant authorized, did not .keep within the bounds prescribed by the case, or even within the limits which would have existed if there had been a levy, but went on and ordered that the premises in question, or so much thereof as should be sufficient to raise the amount due, be sold at public auction under the direction of the circuit court commissioner for Oakland county, at the court house at Pontiac, upon “at least six weeks’ public notice of the time and place of such sale, according to the course and practice of this court f’ and further, among other things, that the lands should be so sold “in such convenient and reasonable parcels as in the opinion of said commissioner should be most conducive to the interest of all the parties.”
The advertisement of the commissioner gave no specific description of the lands whatever. It mentioned the lands as being all sections and parts of sections denoted by odd numbers within fifteen miles of the railroad between Owosso and Grand Haven, which the United States owned on the 3d of June, 1850, and then suggested that a particular description could be obtained from the commissioner, or by referring to the register of the court.
The sales under which complainant claims title were made on the strength of these proceedings, and numerous tracts were offered in one body, and struck off together upon the bid of a round sum. Now it seems clear to us that no change of title ivas produced by these proceedings. There are several reasons for holding that the course taken was without legal force to shift or impair the ownership, but' it does not seem needful to advert to more than one or two.
The case made by the bill, instead of placing the court in a situation where it could, even through the commission of an error within the scope of its jurisdiction, directly subject the lands to sale through its own process in order to satisfy the judgment, excluded on its face all right in the court to order any sale, or even to decree upon the question of title to the lands. If the lands vested in the company, as this bill alleged, and the title was subsequently entangled, but still virtually belonged to the company, as the bill also alleged, a lien by levy was practicable, and was indispensable .for the purpose of founding a jurisdiction in a court of equity to assist in compelling payment of the judgment. Upon the theory of the bill in other respects, if there had been a levy, it would have been within the general competency of the court to have removed the obstructions in the way of the execution, at law, but then it could regularly have gone no further than to afford such auxiliary aid in so far as these lands were concerned.
As it was, there was no more authority to order the sale of these lands by the commissioner to satisfy the judgment, than there was to dissolve the corporation. There was no basis in the bill for it, and the authority was as much wanting as it would have been if no case at all had been ponding.
The transfer of legal title to laud, through the immediate power of the court, where no lien has been previously-obtained, in order to satisfy judgment creditors, is not an attribute of the traditionary jurisdiction of equity, and there is no statute in this state to authorize it. Mere equitable rights and titles may bo directly dealt with, and in proper cases, and when necessary, made available to satisfy judgments, through a receiver or otherwise.
The assuming, in the case of Drake, to decree a sale of the lands by commissioner, -was, we think, a plain excess of power, and one which involved a loss of jurisdiction to the extent of such excess. The act was void upon its face. No doubt as the decree ivas pro confesso, the learned judge, under whose authority it seems to have been allowed, inadvertently permitted the complainant to draw up and take at his peril such decree as he deemed the case warranted and himself entitled to. Indeed, we cannot avoid thinking that the decree was, in fact, such an one as the complainant saw fit to draw on the footing of the default, and that the court never gave it any strict examination at all.
There arc difficulties likewise in the proceedings subsequent to the decree. The commissioner in advertising and in selling disregarded the directions in the decree in substantial particulars. He did so in omitting to give any description of the lands in his advertisement, and also, in spirit, in selling numerous distinct bodies upon one offer and bid.
It does not, however, appear necessary to dwell on this objection, or to notice others which are suggested by the record.
The decree of dismissal should be affirmed, with costs.
Cooley, Oh. J,, and Marston, J., concurred.
Campbell, J., did not sit in this case. | [
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] |
Campbell, J:
Weaver, on the 8th day of July, 1874, pleaded guilty to a charge of malicious injury to a dwelling. The case was pending in the circuit court for the county of Van Burén, and the plea was put in before Hon. J. W. Stone, circuit judge. On the same day Judge Stone suspended sentence until the first day of the next term, which was the first Monday of October, 1874, the respondent being allowed to give his own recognizance to appear at that clay, in the sum of one hundred dollars. The sentence was not further suspended, nor the recognizance forfeited, and defendant was not called up for sentence at the return term, but continued at liberty. On the 25th clay of October, 1875, Judge Tennant, a judge of another circuit sitting temporarily, sentenced Weaver to two years and six months imprisonment in the state prison. On this error is brought.
It is not necessary in this case to discuss the power of a different judge to give sentence where it has been omitted, and where it does not appear that such omission was designed to interfere with punishment. There has been some dispute as to the best course to pursue under such circumstances. Lord Hala, not considering the abstract question, said it was not his custom to give such sentences in cases of felony. But generally the question seems to become important in view of some action or expression of the trial judge indicating his sentiments. It is said with much force that inasmuch as there can be no sentence without the joint belief of the jury in the prisoner’s guilt, and of the judge in the deserts of the offender, where he has any discretion to exercise, the view's of the judge are to bo respected.
In the present case there was no fixed penalty. It ¡might be imprisonment in the state’s prison, or it might be a short imprisonment in the county jail, or a fine not exceeding five hundred dollars, but with no minimum amount required to be imposed. In other words, it was recognized by the legislature that such offenses might be of trifling-enormity, and not worthy of serious notice.
Sentences may bo suspended for various purposes. It may be for the purpose of allowing steps to be taken for a new trial, or other relief, or it may be with a view of letting- the offender go without punishment. The release of a defendant on his own recognizance and -without sureties, in a merely nominal amount, signifies usually the latter purpose. It at least is a plain assertion of the judge that he did not regard the offense as one that should receive a serious punishment. The failure to take steps during the October term of 1874 was a practical abandonment of the prosecution, and corroborates the opinion that such must have been understood as the object of the suspension, and as the record stands, it is fairly to be inferred it was intentional. To sentence a prisoner to the penitentiary under such circumstances, and when the trial judge has distinctly said he ought not to be so sentenced, is not supplying his omissions, but is overruling' his decision. This we think not admissible, and the- sentence was unauthorized, and the judgment must be reversed, and the prisoner discharged.
The other Justices concurred. | [
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Campbell, J:
Plaintiff in error was convicted of keeping open on Sunday his saloon for the sale of intoxicating- liquors at retail, and of selling such liquors at retail on that day. The conviction was under section 1 of “an act to prevent the sale- or delivery of intoxicating liquors, wine and beer, to minors, and to drunken persons, and to habitual drunkards; to provide a remedy against persons selling liquor to husbands or children in certain cases,” approved May 3, 1875.
The clause under which he was convicted is as follows:
“All-saloons, restaurants, bars, bar-rooms, in taverns or otherwise, and all places of public resort where intoxicating liquors are sold, either at wholesale or retail, shall (unless otherwise determined and directed by the board of trustees or common council of the village or city where such saloons, restaurants, bars or bar-rooms are kept) be closed on the first day of the week, commonly called Sunday, and on each week-day night, from and after the hour of eleven o’clock until six o’clock of the morning of the succeeding day. But this provision shall not be construed to prohibit druggists from selling such liquors at such times, upon the written request or order of some practicing physician of the town, village or city. Any person who shall violate any of the provisions of this section shall be -deemed guilty of a misdemeanor, and upon a conviction thereof shall be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars, and costs of prosecution, and on fail-to pay such fine and costs shall be imprisoned in the county jail not less than ten nor more than ninety days, or both such fine and imprisonment, in the discretion . of the court.”
The first part of the section prohibits sales to minors and drunkards, and sales made by persons who have not filed a bond under the act.
It is claimed by the plaintiff iu error that the provision under which he was convicted is invalid, because that provision is not within the title of the act, if applied to such cases as his, where the sale is not made to minors or drunkards; and that if meant so to apply, the act is void, under that clause of the constitution which requires that “no law shall embrace more than one object, which shall bo expressed iu its title.”
It is claimed that the statute so construed is a law to enforce the proper observance of Sunday, and that no such purpose is disclosed in the title.
There is no question now presented concerning the somewhat extraordinary proviso, which seems to be based on the idea that a municipality can be allowed to suspend the penal laws of the state; as the complaint negatives any such attempt on the part of the city of Detroit, where this conviction was obtained. The case stands before us on the statute alone.
There is no ambiguity in the statute. It very clearly intends to close up the places named against liquor selling, on Sundays, or after eleven at night. It is uot important on this record to examine critically into the moaning of the term “closed,” as applicable to houses, rooms, or parts of rooms. It is clearly meant that the sales at least shall be entirely stopped, and the traffic shut off effectually, so that drinking, and the conveniences for drinking, shall ho no longer accessible, and. those who frequent them for that purpose shall be dispersed. Common sense will dispose of such cases readily enough. Every body knows practically what closing a saloon or drinking place means, and there is no occasion for seeking or solving imaginary difficulties.
We are brought, then, to the question whether under such a title as that of the act in question, the legislature can punish Sunday or night sales to persons not minors, drunken persons or habitual drunkards.
Nothing but our respect for what we understand to be the doubts of some judicial officers in regard to this statute, has induced us to deem it proper to do more than refer to the numerous cases heretofore decided on the meaning of the constitutional provision. It is a very wise and wholesome provision, intended to prevent legislators from being-entrapped into the careless passage of bills on matters foreign to the' ostensible purpose of the statute as entitled. But it is not designed to require the body of the bill to be a mere repetition of the title. Neither is it intended to. prevent including in the bill such moans as are reasonably adapted to secure the object indicated by the title. It would not be profitable to discuss those extreme cases where the adaptation of means to ends is so far-fetched and unnatural as to be directly and palpably misleading. This case presents, in our view, no such difficulties. ■
The legislature assume that the opening of drinking-places on Sundays and late at night is likely to induce or favor the tempting of youths and drunkards into drinking and intoxication. If there is any possible ground for holding-that belief, it certainly is no function of a court to determine that the legislature were mistaken. It is their view, and not ours, which must determine the value of such an opinion. But if we were to be called on to express the views which belong to the other department of the government, we think it is not only possible, but obvious from all human, experience, that they have judged reasonably. ' Dissipation, is very closely connected with idleness, and brought on by its temptations. It is the use of leisure which determines character more than any thing else. The daily experience-of mankind is open to courts and legislatures as it is to-others. The time when persons are unemployed, and perhaps weary, is the time when they are most easily led astray. The records of police courts indicate beyond doubt that when places of resort for drinking are open on Sun-days or other days of leisure they are sure to be liberally patronized by the classes who have least control of their appetite. The tendency of those who have begun to drink, to go on with drinking when opportunities are before them, is known to all. The pressure of business, and the performance of such duties as keep the mind occupied, may and will control those who cannot so easily control themselves when those checks are removed. The-continuance of lounging and drinking into the late hours of the night is equally known as peculiarly dangerous. Men or boys can escape observation more readily by night than by day. When they have once become engaged in the pleasures and temptations of such resorts, it is but too sadly manifest to all who do not shut their eyes to what is going on around them, that after drinking has once begun by those who are in danger of excess (if there are any that are not), it is apt to be kept up much longer than may have been thought of or intended. “Midnight revels” would never have become- .a popular phrase unless they had been a well known reality. Unless the annals of crime are strangely distorted, the amount of mischief due to the indulgence of late drinking is much beyond its proportion in any other part of the day. There is certainly a decided impression that such is the fact; and •if the legislature, like other persons, have been impressed with its truth, we arc not prepared to say that it is such a palpable erroy as to show they cannot be regarded as acting within their province in accepting it. We think the objection to the law without foundation.
The judgment must be affirmed.
The other Justices concurred. | [
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Campbell, J:
Hoffman brought ejectment to recover certain lands in St. Clair county, the title to which purported to be derived under a mortgage foreclosure. The land was patented by the United States in 1835 to one Lucius Beach, who, in 1834, granted it by warranty deed to Jeremiah Harrington, and he in the same year (1834) conveyed it with, warranty to John Kennelly. January 13, 1836, Kennelly mortgaged it to Charles Peltier for one hundred and thirty-eight dollars. November 15, 1839, Peltier began a foreclosure by advertisement, and on March 30, 1840, the land was struck off by Harmon Chamberlain, sheriff of St. Clair county, to Caleb 0. Halstead, to whom Chamberlain, in 1844, after he had ceased to be sheriff, conveyed it in pursuance of the certificate. Halstead devised the property to Lucy Cain, who conveyed it to Ploffman.
The defendants claim under a deed from Lucius Beach, made in 1866, to Daniel B. Harrington, and recorded before the deed to Jeremiah Harrington; but defendants are found not to be dona fide purchasers without notice. The court below gave judgment for defendants, on the ground that plaintiff showed no possessory title.
The important controversy arises out of the foreclosure proceedings.
The mortgage in question, being in form a common-law mortgage, and dated many years before the statute which deprived mortgagees of the right of possession, gave Mr. Peltier or his assigns the right to go into the enjoyment of the lands and hold them until redeemed. After the time for payment had expired Peltier. caused a foreclosure to be made and the property was sold to Mr. Halstead, through whom plaintiff claims.
It is not very important in this case whether the mortgage was legally foreclosed or not, except upon the question of the transfer of title. Where no steps’ have been taken to redeem a mortgage for nearly forty years after its maturity, and more than thirty after an open attempt to foreclose, it would require a very strong showing to authorize a bill to redeem. — Reynolds v. Green, 10 Mich. R., 355. And as the right to redeem, if by any chain of circum stances, it should be found possibly outstanding, cannot affect the right of possession, and can only be asserted by bill, it cannot take away the rights of plaintiff if he has succeeded to Peltier’s title, whether legally foreclosed or not.
It was held in Gilbert v. Cooley, Walker’s Ch. R., 494, that the purchaser at an irregular foreclosure obtains all the rights of the mortgagee. That case has always been followed in this state as a correct interpretation of the law of mortgages. But it is insisted that case merely held it to be an assignment in equity, and is no authority for legal proceedings. It was, however, held in Dougherty v. Randall, 3 Mich. R., 581, that the rights of any one entitled to the real ownership of a mortgage, whether transferred to him by deed or otherwise, are possessory and valid to maintain ejectment, under a mortgage made prior to 1843; and that for such a purpose an equitable assignment is sufficient. These cases dispose of the whole controversy. , But it is an error to speak of such a purchase as not covering a legal transfer. If there is any thing which it does not cover it is the equitable right of redemption. And while this right has always, under our law, been regarded as practically a legal estate, the right of the mortgagee may be transferred either by a legal or by an equitable assignment or conveyance, and either will suffice. — Niles v. Ransford, 1 Mich. R., 338.
The power of sale in the mortgage in question empowered either the mortgagee or such person as was authorized under the statute (which is a part of every mortgage with power of sale executed under it), to make sale and conveyance on default. These powers were introduced originally to save the necessity of an equitable foreclosure, and were designed to cut off the twenty years’ equity of redemption. Our statutes have imposed certain conditions before this redemption can be thus absolutely barred. But the sale under the power is a distinct exercise of authority under the terms of the contract; and while it may not be effectual to bar redemption unless in accordance with the statute, it conveys the title of the mortgagee, and that of the mortgagor subject to his redemption right, according to the form of the-mortgage itself. The officer who sells merely stands in the shoes of the mortgagee and represents both parties.
It is claimed, however, that the deed in this case was made by a person not exercising any official powers, because' not then sheriff. This, objection is rested on a misapprehension of the statute applicable to the case. This mortgage was executed under “an act concerning mortgages,” approved April 19, 1833. That act becáme a part of the contract, so far at least as to make valid any jiroceedings had in accordance with its provisions. It regarded the power of sale as continuing until completed by deed in the person who acted when the property was struck off, as a personal power, passing in case of his death to his representatives and not to any official successor. It is declared by section twelve-that if-the property sold is not redeemed “it shall be the duty of the officer or other person who shall have sold the same, or his executors, or administrators, to complete such sale by executing a deed of the premises so sold to the purchaser or purchasers.” Whether under this or any subsequent statute, the sheriff’s successor, as one of the persons, contemplated as a possible actor under the original power,, could or could not take it up where his predecessor left it,, the language of the statute is entirely, clear, that the deed may be lawfully made by the person selling, or his executors, whether in or out of office.
The facts found entitle the plaintiff to judgment, and the-judgment for the defendants was erroneous. There seems, however, to be a difficulty without a further finding, in precisely locating some part of the premises. It will be necessary, therefore, to order a new trial.
The judgment below must be reversed, with costs, and a. new trial granted.
The other Justices concurred. | [
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Graves, J:
Ferton was supervisor and Beaufait treasurer of Harrison township in Macomb county in 1871, and Feller was a resident tax-payer there on lands and personalty. Ferton made out the tax list in the spring under sections 987 to 992, Comp. L., and in the fall it was passed .upon and certified by the board of supervisors (§§ 992, 993, 994, 995, Comp. L.), and became a record in his office. The board also ascertained and certified to Ferton the various sums to be spread upon the roll and collected in his township. — §§ 997, 998, Comp. L.
He then proceeded to extend these sums against the taxpayers according to the valuation on the completed and authenticated original roll in his office. — § 999 Comp. L. And after the county treasurer had receipted Beaufait’s bond as township treasurer (§§ 1000, 1001, 1002), and on or before the first Monday of December, he delivered to Beaufait a -copy of the roll for collection. In this collection copy taxes were set down against Feller as follows:
Beaufait proceeded to collect and did collect a considerable portion of the taxes, but Feller and some other taxpayers objecting that this collection roll was unlawful on account of defects and errors made by Ferton in extending taxes and in framing the warrant annexed, the board of supervisors, at a session in January, 1875, passed resolutions purporting to authorize Ferton to make a new roll in pursuance of § 1004, Comp: L., and also ordering an extension of time for collecting until March 1st, 1875.
Shortly after this action of the board Ferton went to Beaufait, who was lawful custodian of the roll, and appended a copy of the resolutions to it and drew his pen across the figures denoting the amounts of Feller’s taxes and set down in lieu of them other figures varying the amount of each item except that under the head of school taxes and reducing the gross amount a little less than a dollar. He made a similar alteration in the cases of three other tax-payors. The existing collection roll was no otherwise changed, and no other roll was made.
Under this roll so altered Beaufait demanded payment of Feller of these items so inserted, as taxes he was bound to pay. Payment was refused, and Beaufait seized and sold Feller’s wagon. Feller then sued in trespass before a justice, and recovered. The case was appealed, and on trial without a jury Ferton and Beaufait sought to justify under the collection roll and the proceedings had upon it, but the court, on a special finding, gave Feller judgment for forty-two dollars and forty-two cents and costs.
The case raises the general question whether the findings established a justification. Because if they did not, a recovery was warranted, and we are of opinion they did not.
First. Without attempting to, specify the conditions which are necessary to authorize the ordering and making of a new roll, or the precise limits set by law in regard to its ingredients, it is sufficient here to say that the act of Ferton was in no just sense the construction of a new roll, and consequently what he in fact did was not warranted or supported by the terms of the authority the board assumed to confer upon him.
In the nature of things there must be a radical distinction between the construction of a new roll and an act which contemplates the continuance of an old one with unchanged identity, and merely alters it in some specific particular. And it would seem like confounding perfectly separate and distinct matters to say that a roll already lawfully in use by the treasurer for collection is made a new one in the sense of the statute by a change of some of the items in it as to three or four tax-payers. Here there was no physical change of one document for another, and no such alteration in the reading as to destroy identity and give to the roll the character of a new one.
Second. The seizure here was not made on the strength of the roll as it stood when drawn up under the statute and delivered to the treasurer, and not for the same gross sum, and not for the same items of amount for state, county and township taxes respectively; and not under a warrant made, attached and directed for the collection of the same items or the same gross amount. The amounts to be collected of Feller when the roll was completed by Ferton, and when the latter attached his warrant and passed the finished document from his statutory power into that of Beaufait for the purpose of collection, were stricken out by Ferton, and the seizure of Feller’s property was for items Ferton inserted when he thus struck out the original ones. Had it been made on account of the original items, in disregard of Fer-ton’s alteration, the case would have been open to very different considerations. That Ferton had no power, as'a consequence of the bare fact that he was supervisor, thus to strike out and insert, and change the gross sum and the respective sums of state, county and township taxes, would seem to be a plain proposition; and -we have seen that he got no power to do it from the board of supervisors. No-other ground of power can be imagined. In the progress of the statutory events under the tax-law his power had ceased.
It terminated when, in regular course, the collection roll went finally and fully, and in proper time, into thfe power of the treasurer for collection. His act in altering the roll was not an official one. It was private and personal. It is true the gross amount of the items after the alteration, and for which the seizure' was made, was less than the sum officially written down, and to which the warrant applied.
But this cannot aid. What was thus inserted and sought to be collected by the levy was not a tax. It was an unauthorized entry to which the warrant in legal contemplation could not apply. Public policy is opposed to all unwarranted tampering with such matters, however well intended in the particular instance, and the courts ought not to strive for reasons to screen or excuse it. Doubtless cases may occur where corrections of plain clerical inaccuracies may be considered as. not objectionable, or seriously so. But the present is not of that kind, and I do not see how we can yield sanction to what was done here without making a precedent of most dangerous tendency. There is no reason to suppose that any thing improper was designed. On the contrary, the facts indicate that the difficulties about the roll were caused by want of knowledge for the proper performance of duties.
Third. The roll first made by the supervisor is carried before the board, and after final correction there, and after its authentication, by the chairman, it is delivered to the supervisor, who is required to file it and heap it in his office. —§ 995, C. L. No other roll is brought to the attention of the board, and this alone receives the sanction of the board. With this before him, and the requisite certificates and statements in regard to the taxes to be levied and their destination, the supervisor is required to proceed and assess, “according and in proportion to the individual and particular estimate and valuation specified hi the assessment roll.” —§ 999, C. L. lie is next to make the collection roll, and this is required to be a copy of the corrected roll in his office. — § 1002, C. L. As this correspondence is'indispensable in the first instance, its continuance is equally indispensable. The symmetry of the proceedings, the consistency of the records and the dependence of the collection roll upon the first roll and their legal connection, all alike require it. As the first roll is to remain in the supervisor’s office as a public record or memorial, so the collection roll is to go ultimately to the county treasurer’s office to be kept for the same purpose. — § 1023, C. L. The entire theory of the system, and all the regulations, contemplate that these documents shall be and continue substantially alike, and in all essential particulars speak the same language when referred to. No lawful change can be made in the collection roll, unless warranted by the state of the roll having the sanction of the board of supervisors; and consequently the collection roll cannot legally be changed so as to be in substantial disagreement with the other. Passing other objections, then, to the validity of the alteration of the collection roll, it was essential that the state of the first roll was such, either on account of its original frame or subsequent amendment, as to warrant the alterations made and leave the two rolls alike.
Now there is no finding whatever to show that the two rolls agreed after the alterations in the collection roll, nor any finding in regard to the shape of the first roll at any time, or in regard to any amendment of it.
It is claimed that whatever errors -were committed were cured by § 1129, C. L. I cannot think so. Feller’s property was not seized for a tax, but upon items inserted in the collection roll unofficially and without authority of law. If some private person, supposing himself authorized, and acting in good faith, had stricken out the tax and inserted items raising the gross amount to fifty dollars, the sum. so inserted would have been no further from a legal tax than that on which Feller’s property was seized and sold, and yet no one will claim that a sum so written in the collection roll by a private person could in any legal sense be considered as a tax.
It is said in the brief for plaintiffs in error that the judgment is void, it not being one hi trespass. It is "true, the judgment is one appropriate to assumpsit, and not trespass. But it is equally true that no error is assigned upon it, and if there had been, it would have been of no importance, because, first, the imperfection would be cured by the provisions of Ch. 190, C. L., and if otherwise, then, second, a proper judgment could be entered here on the findings. Several questions not noticed, and of more or less importance, were mooted on the hearing, but the objections to the justification which have been considered, are, as it seems to me, fatal, and hence I perceive no necessity for extending the discussion.
I think the judgment should be affirmed, with costs.
The other Justices concurred. | [
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] |
Marston, J:
Plaintiff in error executed and delivered an instrument in writing, of which the following is a copy:
“$321 00. Stanton, Mich., July 8, 1872.
“For value received, I promise to pay to the order of H. H. Smith, Esq., three hundred and twenty-one dollars, one year from the time when the railroad proposed to be built on some point on Detroit, Lansing and Lake Michigan Railroad, not more than five miles from the station of that company in Ionia, north to Stanton, shall be open, and trains shall pass over it to and from Stanton to said point of junction; the said road, under present or future to bo formed organization, to be called The Ionia, Stanton and Northern Railroad;’ provided work bo commenced on said • road within forty days, and that said trains are run. thereon by the first of May, A. D. 1873.
“William H. Stevens.”
This agreement was afterwards properly assigned to the defendant in' error, who commenced an action in March, 1875, to recover the amount claimed to be duo thereon.
The court found that II. II. Smith in July, 1872, was superintending the D., L. & L. M. R. R. Co.,, and was the active business man in building the Ionia, Stanton & Northern Railroad, and was president of both roads; that all the terms and conditions of the agreement, as to the time, manner, etc., of building the road, had been fulfilled, and that trains were running regularly over it to and from Stanton to the junction and Ionia station about the 28th of April, 1873. Judgment was rendered in favor of Corbitt for the principal, with interest thereon from Ajnil 28, 1873.
A question was raised as to the form and effect of the written assignment made by Smith; also, whether it could be said that trains were running regularly over the road while the engine had to back one way for want of a turn .table at Stanton. We do not, however, find any error in the ruling of the court upon these, or some other questions that wore raised, and we do not consider them of sufficient general importance to discuss them at present.
It was insisted that the organization of the company and building the road did not affect this agreement; that in order to entitle the plaintiff to recover, it must appear either .that there was some promise or agreement to build the road, made to Stevens as a consideration for his promise, or that the company went on and built the road in reliance upon Stevens’ promise to pay, and it is insisted that there was no evidence given tending to bring the case within either of these propositions.
Where a party promises to contribute in aid of such' an improvement, in the absence of express conditions, it would be implied as a condition, that the road should be constructed and operated, and upon this being done within a reasonable time, where no time was fixed, the promise would then become operative and binding, and the party making the promise would not thereafter be at liberty to repudiate it. The fact that a company was organized'to build the road at the time the promise Avas made> or that even in the absence of such a promise the road would haye been built, would not be sufficient to defeat it. The mere fact that a company is organized to build a road does not necessarily insure the work being done, or so make it the duty of the company to commence work, or complete the road, that a promise to assist by voluntary contributions would necessarily be without consideration' and Aroid,
Many private enterprises, of a quasi public nature, already commenced, or in contemplation, are largely dependent upon private, voluntary subscriptions to carry on and complete the work. Where such a promise is made to some one necessarily connected with, or interested in the work being done, for the benefit of the company about to, or which may have undertaken the work, then, upon completion of the same, or upon the performance of the conditions upon which the promise Avas made, the liability of the promisor becomes complete. There are also cases Avhere expense is incurred, or an obligation created under the promise, where a like liability Avould follow.
In all such cases the fair inference is, that the work Avas done, or the expense or liability incurred, in reliance upon the subscription or promise, and the person making the same Avould not be permitted thereafter to withdraw his offer. “In such case'the question is not properly whether there is any consideration for the agreement, but whether there is any agreement at all.” — Underwood v. Waldron, 12 Mich., 90; Comstock v. Howd, 15 Mich., 242. This question is fully discussed in Underwood v. Waldron.
The court allowed interest from the time the road was completed, viz.: April 28, 1873. There is no express promise to pay interest, and according to the express terms of the contract the principal does not become due until one year from the time the road proposed should be open and trains pass over it. This, under the finding of the court, would make the principal become due April 28, 1874. If Stevens was liable to pay interest at all, it could only be computed from this latter date.
It may be questionable whether under the facts in this case interest could be allowed except from the time a demand was made; and if none was made, then from the time of the commencement of the suit. In Beardslee v. Horton, 8 Mich., 564, it was said, “when credit is given for a specified or indefinite time, interest is not allowable in the absence of a special agreement to pay interest; but after the expiration of the time in the one instance, and a demand in the other, interest is allowed.” At the time this agreement was given, the time when it would become due, if at all, was indefinite. True, there was a time fixed within which, if trains were not running, it never should become due, but within the limit there fixed the time was indefinite; it depended upon the happening of an event which might not occur at all, and if it did, was so uncertain that we think a demand should have been made, or Stevens, in some way, notified that the conditions had been performed, and that his obligation had become due and payable.
The plaintiff in the court below was, under the finding, entitled to recover the amount of the note, with interest thereon from the date of the commencement of suit. As to all over this amount, the judgment must be reversed, and affirmed as to the residue, the plaintiff in error to recover his' costs in this court.
The other Justices concurred. | [
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Marston, J:
The legislatule in 1813 passed an act to incorporate a board of water commissioners for tire city of Bast Saginaw, to supply tbe city with pure water, and to provide for the completion and management of the Bast Saginaw water works.
The first section of this act authorized and empowered and made it the duty of the common council of Bast Saginaw to appoint five persons, residents and freeholders of the' city, who, and their successors, should be a body corporate with certain powers, and amongst others, to purchase, hold and convey personal and real estate, to make by-laws, ordi nances, rules and regulations, and do all legal acts that might be necessary and proper to carry out the. effect, intent and objects of the act.
The fourth section gave the board power to borrow, from time to time, and for such time as they should deem expedient, a sum of money not exceeding three hundred thousand dollars, for the purpose of constructing water-works, upon the credit of the said city of East Saginaw, with authority to issue bonds pledging the faith and credit of said city for the payment of the principal and interest thereon, which bonds were to be signed by the board, or a majority of them, and by the mayor of said city, and payable at a period not exceeding twenty years from their date. The amount authorized to be issued was afterwards increased to three hundred and fifty thousand dollars.
Section twenty-two gave said commissioners the custody and control of all money, revenues, accounts and bonds belonging to said board, with authority to deposit the same as they might deem for the best interests of the city, also authorized them to appoint a treasurer, who should pay out such moneys as the board should order.
Section twenty-three made it the duty of said board, whenever their receipts from water rates or other sources accumulated to a certain amount, with the aid of the mayor of the city, to invest the same in stocks, or upon real estate, such investment to be made in the name of said board, and in such manner as to make the same available for the payment of the principal and interest of such bonds; and then provided as follows: “It shall be the duty of said commissioners to pay the interest on such bonds, and, as fast as such surplus fund will permit, also the principal, as the bonds become due, as funds for such purpose shall from time to time accumulate. The said commissioners may, when they have funds for that purpose, purchase the bonds so issued as aforesaid, whether the same shall have become due or not; and in case the said commissioners shall at any time not have funds on hand sufficient to meet any of the said bonds at the time when they shall become due, they shall have the right to issue new bonds for such amount as they shall deem expedient, in the place of bonds so becoming due as aforesaid.”
Section twenty-four: “It shall be the duty of said commissioners, at least ten days before the time fixed by the charter or ordinances of said city for assessing city taxes, to make a special report to the common council of said city what, if any, sum will be needed by said commissioners, over and above the revenue of said board, to meet the payment of interest or principal of the' bonds issued as aforesaid ; and it shall be the duty of the common council to raise said amount by special tax, in the same manner as general taxes, to be designated a water tax; and the said amount shall be paid over to said board by the treasurer of said city, weekly, as collections are made.”
The petition and answer assume that under and in pursuance of this act the common council of East Saginaw did appoint five commissioners, who qualified and entered upon the discharge of their duties as provided in said act. The petition sets forth, that under and by virtue of the authority in them vested by said act, the said board have, from time to time, for the purpose of constructing water-works for said city, borrowed money upon the credit of said city, .and have duly and regularly, in the manner provided in said act, issued bonds to the amount of three hundred and fifty thousand dollars; that there will fall due November 1, 1875, fourteen thousand dollars, and May 1, 1876, fourteen thousand dollars, interest upon said bonds, and on the first day of May, 1876, fifty-one thousand five hundred dollars principal; that there is not, and will not, at the maturity of said bonds, be funds on hand to meet and pay the same unless it is raised by a special tax as in said act provided; that ten days previous to the time fixed by the charter of said city for assessing taxes, a special report was made to tlie common council, that the sum needed by said commissioners, viz.: To pay interest on three hundred and fifty thousand dollars, twenty-eight thousand dollars; to pay water bonds which fall due May 1, 1876, fifty-one thousand five hundred dollars; that the common council directed the sum necessary to pay the interest to be raised, but refused to raise the amount necessary to pay the bonds falling due May 1, 1876. The issuing of these bonds, and the fact that interest and principal will fall due at the time above stated, and that the common council refuse to raise money to meet the principal, are admitted by the answer.
In the brief submitted on the part of the respondents they insist, that the relators have no interest in this matter not common to other citizens, except to maintain the credit of the board, and that the application should therefore have been upon the relation of the attorney general; second, that there is another remedy in this case: the bondholders may have an action against the city; and a mandamus will not, therefore, be granted.
It is very clear that the relators have an interest in this case which is not common either to the citizens of the state or of Bast Saginaw. It is made the official duty of relators, as commissioners, to pay both the principal and interest on the bonds issued by them as the same become due, and while it is true that the bond-holders would have a remedy against the city in case the bonds were not paid at maturity, yet that would not justify the relators in sitting quietly by, knowing that these bonds were maturing, and yet make no effort whatever to provide funds to meet them. Their interest did not cease upon the issuing and negotiating of these bonds, nor even upon presenting to the council a report showing the amount of money necessary to be raised to pay them. It still remained their duty to take such other and further measures as might be necessary to accomplish the end sought, i. e., funds to meet the bonds at maturity. The case of State v. Haben, 22 Wis., 660, cited by conn sel for respondents, is not in point. Had. it been the duty of the city treasurer to pay these bonds upon the order of the board of water commissioners, and had such an order been given the bond-holders, and payment thereon refused, the cases would have been parallel. In the case of The State v. The City of Cincinnati, 19 Ohio, 178, under circumstances more closely resembling those in the present case, the writ was granted.
It is insisted in the third place, that the act in question, and particularly section 24, if construed to be mandatory, confers upon the board powers which cannot be tolerated under our system of local government; that such boards do not directly represent the people^ but are subordinate to the will of the council; that this must- necessarily be so for the reason that the most disastrous consequences might follow from permitting- several boards to dictate to the council the amount of taxes they should raise in each year; that while the legislature may interfere in the affairs of a municipality, in so far as the latter acts as the agent of the state, yet local matters must be left to the people of the city to regulate as they see fit.
How far it is competent to subject the authority of the common council of a city, as to the amount of taxes necessary to be raised for city purposes, to the control of boardwhich do not represent a different municipality co-existing within the same city, as a school-district, is a very serious question. That such boards may bo provided for, as the agents or assistants of the common council, is beyond question. But if they can be given powers beyond this, if they can control the common council in its discretion, as to the amount of moneys to be raised for local purposes, and compel it to raise such sum as they may deem necessary, it is very evident that the power and authority of the council may be so abridged that it will become the mere ministerial agent of such boards, having no discretion whatever as to the amount of taxes to bo raised. Upon this question we do not at present desire or intend to express any opinion, preferring to leave it until it becomes necessary to deal with it.
As a general rule, the common council of a city should be allowed to determine what taxes ought to be levied for city purposes, and there ought to be no interference by the courts, with its discretion, except on the most imperative reasons. We are not satisfied that such reasons exist in this case. The relators, under section 23, have power to issue bonds to meet payments becoming due in 1876, and it does not appear that if a new issue is made they cannot be negotiated; indeed, we may infer the contrary. The relators therefore have a remedy in their own hands. They will not necessarily be without funds to meet the bonds falling due in 1876, so that it does not appear that any mischief will follow from a refusal to grant the writ.
The writ of mandamus is, in most cases, discretionary, and where, as in this case, the common council have apparently acted in good faith, and have refused upon the ground that the taxes to be raised for that year were already too high, so that the question as between the common council and the relators was one more of policy than right or power, and as there are no evils appearing or being threatened, we áre of opinion we may justly exercise our discretion and abstain from interfering.
We cannot undertake to correct all differences of opinion^ or, indeed, wrongs, by this writ, but only such as appear so serious as to demand interference.
The writ must be denied, but without costs to either-party.
The other Justices concurred. | [
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Per Curiam.
Defendant Hospitality Motor Inns, Inc. (now Harley Hotels, Inc.), appeals as of right from an order of summary judgment holding that plaintiffs notice of intention to claim mechanics’ lien was timely served and from a judgment in favor of plaintiff in the amount of $15,389.43 due under the lien.
In August, 1977, Hospitality Motor Inns, Inc., contracted for Russo Ornamental Iron Products, Inc., to provide all labor, materials, equipment and supervision for the installation of metal work at five Hospitality Motor Inns under construction, including one in Lansing, Michigan. On September 27, 1977, Russo subcontracted the work to plaintiff, R & T Sheet Metal, Inc.
On May 6, 1978, plaintiff delivered the necessary materials to the Lansing construction site for work to be done by plaintiff at a later date. Plaintiff commenced work at the Lansing site on June 5, 1978, and completed the project on or around August 15, 1978. Plaintiff filed a notice of intention to claim lien upon defendant on August 29, 1978.
Plaintiff and defendant brought cross-motions for summary judgment on the issue of whether plaintiff’s notice of intention to claim lien was timely served. The trial court granted summary judgment to plaintiff, holding that the notice was timely served and reserving the question of the amount of damages owed. Trial was subsequently held on the question of damages. The court found for plaintiff in the amount of $15,389.43.
I
Defendant first argues that the trial court incorrectly held that plaintiff’s notice of intention to claim lien was timely served.
The mechanics’ lien statute, MCL 570.1; MSA 26.281, states in pertinent part:
"[A]nd every person who shall be subcontractor, * * * perform any labor or furnish materials * * * to such original or principal contractor * * * in carrying forward or completing any such contract, shall have a lien therefore upon such * * * building * * *: Provided, That any person, firm or corporation furnishing materials or performing labor of any kind entering into the construction of any such building * * * shall within 90 days after furnishing the first of such material or performing the first of such labor * * * serve on the owner * * * or his agent * * * a written notice * * * as will inform the owner * * * that such person, firm or corporation furnishing materials or performing labor will claim a lien upon such premises for any amounts unpaid for such materials so furnished or labor performed * * *.”
The trial court found that the 90-day notice limitation period began to run when the materials were first incorporated into the building, not when they were first delivered to the job site, and, therefore, plaintiffs notice was timely served. We affirm the trial court’s ruling that plaintiffs notice was timely. The grounds for our decision, however, are different than those relied upon by the trial court.
The issue here is one of statutory construction. The notice provision in MCL 570.1; MSA 26.281 states that the notice of intent to claim lien shall be given "within 90 days after furnishing the first of such materials or performing the first of such labor”. (Emphasis added.) In construing this statutory provision, we are governed by traditional rules of construction:
"[I]f the statute 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 in enacting the statute. 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, the evil or mischief which it is designed to remedy, and will apply a reasonable construction which best accomplishes the statute’s purpose. Bennetts v State Employees Retirement Board, 95 Mich App 616; 291 NW2d 147 (1980), Stover v Retirement Board of St Clair Shores, 78 Mich App 409; 260 NW2d 112 (1977). Also, ambiguous statutes will be interpreted as a whole and construed so as to give effect to each provision and to produce an harmonious and consistent result. In re Petition of State Highway Comm, 383 Mich 709; 178 NW2d 923 (1970), People v Miller, 78 Mich App 336; 259 NW2d 877 (1977). Further, specific words in a given statute will be assigned their ordinary meaning unless a different interpretation is indicated. Oshtemo Twp v Kalamazoo, 77 Mich App 33, 39; 257 NW2d 260 (1977), MCL 8.3a; MSA 2.212(1).” Pittsfield Twp v City of Saline, 103 Mich App 99, 104-105; 302 NW2d 608 (1981).
Section 27 of the mechanics’ lien act declares that the act is a remedial statute intended to benefit and protect subcontractors, materialmen, and laborers and should be construed liberally in order to carry out the intent of the Legislature. MCL 570.27; MSA 26.307. Georgia-Pacific Corp v Central Park North Co, 394 Mich 59, 66; 228 NW2d 380 (1975).
The disjunctive "or” recognizes two distinct events which trigger the 90-day limitations period, depending on whether the lien is being claimed for materials or labor. Plaintiffs claim herein is for labor performed. All parties agree that plaintiff had been paid for the materials and their fabrication prior to delivery of the materials to the various job sites. Therefore, upon delivery of the materials to the job sites, plaintiff was not entitled to claim a lien and had absolutely no reason to do so. It was only after plaintiff had completed labor on four of the jobs, and had not been paid for the labor performed on the fifth (Lansing) job site, that plaintiff could and did file a lien claim. To hold, as defendant urges, that plaintiff is precluded from claiming a lien because it did not file notice at a time when it had no right or reason to do so is illogical and violates the act’s remedial purpose.
Plaintiffs lien is claimed solely for labor performed. Since notice was served within 90 days after "performing the first of such labor”, the notice was timely served.
II
It was undisputed that plaintiff fully performed its contract for the fabrication, production and installation of certain materials at the Lansing construction site. The trial court found that the amount owed to plaintiff was $15,389.43. Defendant claims that insufficient evidence was introduced to establish the amount owed with reasonable certainty. This Court will not set aside the trial court’s finding unless it was clearly erroneous. Detroit Independent Sprinkler Co v Plywood Products Corp, 311 Mich 226, 230; 18 NW2d 387 (1945); Loranger v Citizens Mutual Ins Co, 100 Mich App 681, 684; 300 NW2d 369 (1980).
Plaintiff was required to prove by a preponderance of the evidence the sum claimed owing to a reasonable certainty. Wheelmakers, Inc v Flint, 47 Mich App 434, 442-443; 209 NW2d 444 (1973). Richard Pizem, president of R & T Sheet Metal, testified that he was responsible for reviewing all billings and accounts receivable of plaintiff. The amount due plaintiff was $15,389.43 for field labor performed on the Lansing project. Pizem arrived at this figure by deducting the cost of fabrication and the cost of materials from the undisputed contract price of $21,491. The cost of materials and fabrication were paid to plaintiff in March, 1978, when fabrication for all five projects was completed.
Contrary to defendant’s assertion, plaintiff was not required to produce the invoices to establish the amount owing.
"The best evidence rule is not applicable to require the introduction of books of account and to exclude parol testimony as to the contents thereof where a witness has independent knowledge of the facts stated therein. Insofar as no attempt is made to prove the contents of books of account but to show certain facts independent thereof, such books are not necessarily the only evidence nor the best evidence of the facts, but a party may make out his case as to such facts by the testimony of a witness.” 29 Am Jur 2d, Evidence, § 475, p 533. See also New Jersey Title Guarantee & Trust Co v McGrath, 239 Mich 404, 408; 214 NW 195 (1927).
Once evidence of the amount of indebtedness was offered, the burden was on defendant to establish a defense of payment. Slater v Christenson, 226 Mich 621, 623; 198 NW 224 (1924). Defendant offered no evidence to rebut plaintiff’s claim. Instead, defendant attempted to show that plaintiff had previously claimed four different amounts owing. Plaintiff’s cost sheet, original complaint and the lien account statement stated the amount owing as $21,490. The ledger sheet indicated that $18,094 was owing. The sworn affidavit by Pizem indicated that $15,843.26 was due, and Pizem’s trial testimony stated that $15,389.43 was due and owing.
The trial court based its judgment of $15,389.43 on the uncontroverted testimony of Pizem that all materials had been paid for, but no payment for labor was received. The court found that the $21,-490 figure was not inconsistent as it reflected the undisputed total contract price without subtracting the amounts previously paid by defendant. Furthermore, the ledger sheet failed to note all previous payments, and a clerical error was the cause of the inconsistency between the earlier sworn affidavit and Pizem’s trial testimony. The court’s finding that plaintiff established the amount due with reasonable certainty was not clearly erroneous.
Finally, defendant argues that the trial court erroneously relied on an admission by Richard Colwell, defendant’s employee, that plaintiff was owed for labor on the Lansing project. We disagree. The trial court did not rely on Colwell’s admission to set the figure of the amount owed, but only considered the evidence as an admission by defendant that plaintiff was not paid for labor performed. The court’s findings with reference to the amount due were properly based on the evidence introduced by plaintiff.
Affirmed.
This statute was repealed and reenacted by 1980 PA 497, § 303, effective March 1,1982. | [
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Per Curiam.
This case involves two appeals from the withdrawal and reinstatement of defendant’s pleas of guilty to first-degree criminal sexual conduct, MCL 750.520b(l)(e); MSA 28.788(2)(l)(e), and to carrying a concealed weapon,. MCL 750.227; MSA 28.424. Defendant was sentenced to 12 to 20 years for the criminal sexual conduct conviction, from which he appeals as of right. Defendant was sentenced to 1-1/2 to 5 years for the weapon conviction, from which he appeals by leave granted.
Defendant was charged with criminal sexual conduct, first degree, for raping a woman in her home in Ann Arbor on July 15, 1982. After being bound over, he was released on bond. While out on bond, he was arrested and charged with carrying a pistol in his vehicle, MCL 750.227; MSA 28.424, after two officers spotted him carrying two uncased shotguns inside the back window of his truck and, after stopping him, found a .22-caliber magnum revolver in the passenger compartment of the truck. The victim of the July 15 rape realized it must also have been defendant who raped her on June 11, 1982, under similar circumstances, breaking into her house around 3 a.m., awakening her and raping her at knife-point. Thus, defendant was additionally charged with first-degree criminal sexual conduct for the June 11, 1982, incident. He also had an unrelated breaking and entering charge pending against him.
As of December 10, 1982, defendant had at least four actions pending against him in Washtenaw County courts. On that day, defendant pled guilty as charged to the July 15 rape, and the June 11 rape charge was dropped. The prosecutor was allowed to amend the information on the original weapon charge to include carrying a concealed weapon on the person. Defendant pled guilty to carrying a concealed weapon on his person, and the charge of carrying a weapon in a motor vehicle was dismissed, as was the breaking and entering charge.
On January 11, 1983, the Supreme Court released its opinion in People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982), ruling that a defendant must be given the opportunity to withdraw a guilty plea if the trial court rejected the sentence recommended by the prosecutor or if the trial court participated in discussions aimed at reaching a plea agreement. At the end of its opinion, the Court ruled that Killebrew should be applied:
"(1) to all future trial court decisions where the defendant moves the sentencing court to vacate the sentence and withdraw the plea; (2) to all appeals or applications for leave to appeal filed prior to the date of this opinion where the issue is properly raised; and (3) to the two instant cases.” 416 Mich 212.
On February 18, 1983, the Supreme Court issued the following order, clarifying the retroactivity of the ruling in Killebrew (and its companion case, People v Briggs):
"On further consideration we have determined that the rules announced in People v Killebrew and People v Briggs are to be applied only to those two cases and to cases in which guilty pleas have been accepted after the January 11, 1983 release of the opinion in People v Killebrew and People v Briggs.” 416 Mich 216.
Defendant’s guilty pleas had been accepted prior to Killebrew, but he had not yet been sentenced. On February 18, 1983, the date set for sentencing, the Washtenaw County Circuit Court judge offered to allow defendant to withdraw his plea, believing that he was required to do so under Killebrew:
"The court cannot be bound by its prior sentence agreement in any way, and I do feel, since I know that many cases are what we call pre-Killebrew cases and the defendant has taken some position, that is, offered a plea, that he has moved in detrimental reliance on whatever that was, I feel that I morally cannot sentence any harsher than I may have agreed to do earlier without allowing the defendant to set aside his plea voluntarily on my part, but first, you would have the right, under the Killebrew case, to set aside your plea in this instance and — in any event — and secondly, the nature of the agreement was such that I don’t want you to feel I am bound in any way under it.”
At defense attorney’s request, court was adjourned to allow defendant to decide whether to withdraw his pleas.
At a hearing held on February 22, 1983, defendant indicated that he wished to withdraw his pleas. He also requested that the charges pending against him be assigned to a different judge. Both the prosecutor and the court repeated their beliefs that defendant had a right to withdraw his plea under Killebrew, still unaware of the Supreme Court’s modification of Killebrew’s application. The judge denied defendant’s motion to disqualify him, without prejudice to defendant’s filing a formal written motion to disqualify.
On March 21, 1983, the prosecutor filed a motion to reinstate defendant’s guilty pleas based on the Supreme Court’s order of February 18, 1983, modifying Killebrew’s retroactive application. Hearing on the motion was held April 1, 1983. Defense counsel stated that defendant did not want his pleas reinstated, asserting that defendant wished "to effectuate” his right to trial by jury. The court replied that it had erred in allowing defendant to set aside his plea. The court could see no reason not to correct the error by reinstating the pleas, since there was no showing that defendant’s rights had been prejudiced in any way, there was no detrimental reliance by defendant, nor any consideration for setting aside the plea. The reason it felt bound under Killebrew to permit defendant to withdraw his plea was that the court had promised defendant that it would abide by the presentence report recommendation, unless it recommended less than 15 years. The court explained that now it could not be bound in any way to promises of sentence. The pleas were thus reinstated.
Defendant argues on appeal that, once a guilty plea is withdrawn, it is a nullity and there is nothing to reinstate. The cases on which he relies in support of this proposition, however, Kercheval v United States, 274 US 220; 47 S Ct 582; 71 L Ed 1009 (1927); People v Street, 288 Mich 406; 284 NW 926 (1939), and People v George, 69 Mich App 403; 245 NW2d 65 (1976), involved use of a withdrawn guilty plea as substantive evidence of defendant’s guilt or for impeachment of defendant’s assertion of innocence at a subsequent trial. Reinstatement of the plea was not at issue. To the contrary, in People v Kosecki, 73 Mich App 293; 251 NW2d 283 (1977), this Court approved reinstatement of defendant’s guilty plea after defendant had withdrawn it. Similarly, in United States v Farrah, 715 F2d 1097 (CA 6, 1983), cert den — US —; 104 S Ct 2343; 80 L Ed 2d 817 (1984), the Sixth Circuit approved reinstatement of a Michigan defendant’s guilty plea, which the court had permitted defendant to withdraw under the mistaken belief that defendant had been misled as to the length of incarceration. The Court adopted the reasoning of United States v Jerry, 487 F2d 600 (CA 3, 1973), which also upheld reinstatement of a guilty plea where the court determined that, although the Federal Rules of Criminal Procedure did not specifically provide for modifying or setting aside an order entered through mistake, it had always been within the court’s power to grant relief from orders entered'erroneously, as long as that power was exercised in justice and good conscience.
Michigan court rules provide in GCR 1963, 528.3:
"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake * * * (5) * * * a prior judgment upon which it is based has been reversed or otherwise vacated, * *
In this case, permission to withdraw the guilty pleas was granted under the mutually mistaken belief that the court was required underKillebrew to do so. The "judgment” on which this determination was based, Killebrew, was not technically reversed or otherwise vacated. Nevertheless, GCR 1963, 528.3(5) applies to this case because the Supreme Court’s order of February 22, 1983, specifically and completely invalidated the retroactivity of Killebrew assumed by the parties in this case, even though Killebrew itself had not been reversed or vacated. The judge did not err in reinstating the pleas in this case.
Defendant contends that the judge also erred in denying his motion to withdraw the pleas once they were reinstated. There is no right to withdraw a guilty plea once it is accepted. People v Hale, 99 Mich App 177, 180; 297 NW2d 609 (1980). However, such requests to withdraw a plea, when offered prior to sentencing, are to be treated with great liberality. People v Sanders, 112 Mich App 585, 586; 316 NW2d 266 (1982), lv den 413 Mich 917 (1982). Where a defense of innocence is asserted at the time of a request to withdraw the plea, and the request is not obviously frivolous and is made before sentencing, the request should be granted. People v Paulus, 121 Mich App 445, 450; 328 NW2d 659 (1982), lv den 417 Mich 1025 (1983).
Defendant in this case did not assert his innocence when he moved to withdraw his pleas nor does he assert his innocence on appeal. He has not indicated that he would be prejudiced by reinstatement of the pleas or that original acceptance of the pleas was improper. Defendant states that he has a right to jury trial; however, he was specifically informed of this right, and waived it, at the original plea-taking. Were an assertion that defendant had changed his mind sufficient, withdrawal of a guilty plea would be essentially a matter of right, rather than a matter of discretion. People v Woods, 119 Mich App 129; 326 NW2d 138 (1982). We do not find that the judge abused his discretion in denying the motion to withdraw the pleas.
Defendant contends that the judge erred in not disqualifying himself after permitting defendant to withdraw his pleas, having heard defendant give a factual basis for the offenses to which he was pleading. Defendant never filed a motion to disqualify, as required under GCR 1963, 912.3, to raise the issue. Defendant argues that the judge should have disqualified himself sua sponte. The record must show actual bias or prejudice before a conviction will be reversed on the ground that the trial judge should have disqualified himself. People v Paulus, supra, p 450; People v Elmore, 92 Mich App 678, 681; 285 NW2d 417 (1979). The record in this case discloses no actual bias or prejudice. The Supreme Court has ruled that the fact that a trial judge had previously heard the defendant proffer a factual basis for the charge of which he was ultimately convicted does not impose upon a trial judge the duty to raise sua sponte the question of his disqualification. People v Cocuzza, 413 Mich 78, 83; 318 NW2d 465 (1982).
The other issues defendant raises on appeal relate solely to the concealed weapon conviction.
Defendant first argues that there was not a sufficient factual basis for the plea to be accepted, because the arresting officer testified at the preliminary examination that he found no weapon on defendant’s person. The police officer’s testimony was that he found the revolver in the passenger compartment of defendant’s truck. A factual basis for a guilty plea may be established solely on the admissions made by the defendant at the plea proceeding. People v Tilliard, 98 Mich App 17, 19; 296 NW2d 180 (1980). At the December 10 plea-taking proceeding, defendant testified that at the time of his arrest he had a pistol in his jacket. This is sufficient to support defendant’s plea. Even if the police officer’s testimony had been brought up at the plea proceeding, it would not have justified rejecting defendant’s plea since a jury still could have found defendant guilty beyond a reasonable doubt from his own admissions.
Defendant contends the handgun should have been suppressed because it was obtained via an illegal search. Because defendant pled guilty, we find the unlawful search and seizure issue to have been waived. People v Kline, 113 Mich App 733, 735; 318 NW2d 510 (1982). Moreover, the search and seizure were not unconstitutional. People v Myshock, 116 Mich App 72; 321 NW2d 849 (1982).
Defendant’s contention that his possession of a firearm was legal is without merit. Defendant waived the issue by failing to raise it at the district court or circuit court levels. People v Snell, 118 Mich App 750, 758; 325 NW2d 563 (1982). Moreover, defendant has failed to allege how he could fall within the statutory exception which permits a person to carry a pistol legally if it is in a wrapper or container, the person possesses a valid Michigan hunting license, and is enroute to a hunting area. MCL 750.231a; MSA 28.428(1). There has been no indication that defendant possessed a valid hunting license. The gun was not in a wrapper, and was accessible to the occupants of the vehicle, contrary to the statute. For these reasons, defendant’s contention on appeal that he was denied the effective assistance of counsel because his attorney failed to raise this defense is without merit. People v Saxton, 118 Mich App 681, 693; 325 NW2d 795 (1982), lv den 414 Mich 931 (1982).
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Per Curiam.
Plaintiffs appeal as of right from an order of the circuit court denying their motion for a continuance and dismissing their suit with prejudice and from a subsequent order denying their motion to reinstate their suit. We find that the court abused its discretion in denying plaintiffs’ motion to adjourn the trial date and subsequent motion to reinstate.
GCR 1963, 503.1 provides in pertinent part as follows:
".1 Policy. It is the policy of this rule to encourage the diligent preparation and trial of cases. Except where the court, within its discretion and to promote the ends of justice, adjourns a cause, continuation of any trial or hearing upon stipulation shall not be granted unless the stipulation is made in writing or made orally only in open court and is based upon good cause shown to the satisfaction of the court under all of the circumstances of the case and with a view toward speedy and substantial justice.”
The grant or denial of a motion for adjournment is within the trial court’s discretion; cases upholding a denial have always involved some combination of numerous past continuances, failure of the movant to exercise due diligence, and lack of any injustice to the movant. Rosselott v County of Muskegon, 123 Mich App 361, 370-371; 333 NW2d 282 (1983), lv den 418 Mich 869 (1983); Hackett v Connor, 58 Mich App 202, 206; 227 NW2d 292 (1975).
Plaintiffs’ complaint alleging medical malpractice was filed in October of 1981, and defendants’ answer was filed in February of 1982. Mediation was held in May of 1982, and the mediation award was rejected by all the parties. On September 3, 1982, defendants moved for and were granted an adjournment of the trial date from September 24, 1982, to November 15, 1982. Plaintiffs’ motion for adjournment was made on November 15 when the case was called for trial.
On appeal defendants rely heavily on cases holding that denial of a motion to adjourn because of the absence of a witness is proper where the movant fails to provide an adequate explanation and show that diligent efforts were made to secure the witness. E.g., Sleeman v Dickinson County Bd of Road Comm’rs, 8 Mich App 618, 624-626; 155 NW2d 262 (1967). See also GCR 1963, 503.2. Defendants point to plaintiffs’ counsel’s failure to show that diligent efforts were made to secure plaintiffs’ expert’s presence at trial. However, the basis for plaintiffs’ motion was not simply that their expert was out of state, but also that discovery had not yet been completed (only plaintiffs and one of the three defendant doctors having been deposed), and that plaintiffs’ counsel had learned on November 12, 1982, that a trial on another of his cases was to commence on November 18, and that the parties were ordered to take a deposition for that case later in the day on November 15 or November 16.
Where a motion to adjourn is requested in order to complete discovery, the inquiry focuses on whether the movant has shown an adequate explanation for the failure to complete discovery and whether the failure was due to a lack of diligence in preparation. Hackett, supra; State Highway Comm v Redmon, 42 Mich App 642, 646-647; 202 NW2d 527 (1972). In the present case, the trial court never made a finding of a lack of diligence by plaintiffs, and we find that the explanation provided by plaintiffs’ counsel does not reflect lack of diligence or negligence on the part of plaintiffs. While the depositions of all the parties were originally scheduled to be taken prior to the November 15 trial date, the November 8 date for deposing Dr. Paroly had to be cancelled because plaintiffs’ counsel was in trial on another case on that date, and Dr. Paroly’s deposition was rescheduled to January 12, a date supplied by defense counsel. The deposition of Dr. Kent was scheduled for October 14, the same date as plaintiffs’ depositions, but when plaintiffs were unable to make it on that date due to transportation problems, Dr. Kent’s attorney refused to produce Dr. Kent and stated that the next available date for his deposition was January 19; plaintiffs’ depositions were subsequently taken on October 20. Only six months had elapsed from the mediation until the scheduled trial date of November 15 in this medical malpractice case involving three defendant doctors. Compare Hackett, supra.
We further note that at no time did defense counsel show how the granting of the adjournment would be unfair to defendants and note that the trial court did not address itself to the possible difficulties posed by plaintiffs’ counsel’s other trial set to commence on November 18 and that other court’s order that a deposition be taken in that case on November 15 or 16. We do, however, appreciate the trial court’s concern with efficient court administration and agree that plaintiffs’ counsel could have and should have made a motion to adjourn sooner. While this delay in bringing the motion would certainly have warranted a sanction such as imposition of cost, see GCR 1963, 503.3, we nevertheless conclude, in view of the explanation provided by plaintiffs’ counsel and the absence of any lack of diligence in preparation by plaintiffs or any injustice to defendants, that the court’s refusal to grant an adjournment and subsequent refusal to reinstate the case represented an abuse of discretion.
Reversed and remanded. | [
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Cynar, J.
Plaintiff filed suit in Saginaw County Circuit Court seeking declaratory relief. Plaintiff asked the trial court to determine which of the defendants was responsible for medical expenses incurred when policemen for the City of Saginaw brought three persons to plaintiffs facility for medical treatment. The trial court issued an opinion and order holding the County of Saginaw liable for the medical expenses. Defendant County of Saginaw appeals to this Court as of right.
The parties have stipulated to the facts. On November 16, 1980, Dale Austin was brought to Saginaw St. Mary’s Hospital emergency room by the Saginaw City Police. Austin had suffered a broken leg while being pursued by the Saginaw City Police. Austin was discharged from the hospital on December 1, 1980. His treatment costs were $7,359.80. George Nickleberry was treated at St. Mary’s Hospital emergency room on October 8, 1981, after his automobile struck a tree as he was being pursued by the Saginaw City Police. Nickle- berry’s treatment costs were $2,301.65. Both Austin and Nickleberry were taken to the Saginaw County Jail after their discharges from the hospital. On April 2, 1982, x-rays of Melvin Hooks were taken at the request of Saginaw City Police pursuant to a search warrant issued by a Saginaw County District Judge. The x-rays cost $114.50.
The issue is whether defendant Saginaw County is liable for the medical expenses. MCL 801.4; MSA 28.1724 provides:
"Except as provided in section 5a, all charges and expenses of safekeeping, and maintaining prisoners and persons charged with an offense, shall be paid from the county treasury, the accounts therefor being first settled and allowed by the county board of commissioners.” (Footnote omitted.)
MCL 801.4a; MSA 28.1724(1) provides:
"Except as provided in section 5a, all charges and expenses of safekeeping and maintaining persons in the county jail charged with violations of city, village, or township ordinances shall be paid from the county treasury if a district court of the first or second class has jurisdiction of the offense.”
This question was once presented to the Attorney General. In reply the Attorney General concluded that, since the state has impressed upon the counties the cost of law enforcement,
"the cost of hospitalization of a criminal wounded while engaged in breaking a criminal law in the state of Michigan is that of the county”. OAG, 1947-1948, No 793, pp 722, 724 (June 30, 1948).
We adopt the Attorney General’s reasoning. It is clear that the men brought to the hospital were prisoners within the meaning of MCL 801.4; MSA 28.1724 because their liberty had been restrained by state authorities. (See, MCL 600.4322; MSA 27A.4322, defining the term "prisoner” for purposes of a habeas corpus proceeding.) The men were in custody by virtue of the control the police exercised over them. Cf., People v Gonzales, 356 Mich 247, 253; 97 NW2d 16 (1959). This case is distinguishable from Borgess Hospital v Berrien County, 114 Mich App 385; 319 NW2d 354 (1982), lv den 417 Mich 865 (1983), because the patient involved in that case was not in the custody of the county at the time the expenses were incurred.
We also note that the Michigan Supreme Court has stated that under the general laws of the state the expenses of enforcing the criminal statutes of the state must be borne by the counties. People ex rel City of Grand Rapids v Kent County Supervisors, 40 Mich 481 (1879). Our application of this statute is consistent with that principle. The county is responsible for the medical costs in this case under MCL 801.4; MSA 28.1724.
The judgment of the trial court is affirmed. No costs will be assessed because the case involved a public question.
Affirmed. | [
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Taylor, J.
Appellee James McCarthy, the personal representative of the estate of Edith Mildred Ford, deceased, petitioned for a determination of title to real property, bank accounts, and other assets allegedly held in a constructive trust. Appellants Roy and Marjorie Ford, decedent’s son and daughter-in-law responded to the petition.
The parties stipulated below that decedent’s final will, dated December 4, 1987, was valid and properly executed. Thus, this case does not involve a will contest. Rather, this case involves possible fraudulent inducement or undue influence on the decedent when making a number of earlier transfers to appellants. Decedent’s final will indicated that certain assets and accounts naming family members as co-owners were to become the sole property of those persons upon her death. In other words, those prior transfers were not to be considered part of decedent’s estate. The residual estate was to be shared by decedent’s children equally. Appellee challenged the earlier transfers, rather than the will itself.
On March 20, 1982, a jury returned a verdict in appellee’s favor. The trial court subsequently entered an order dated August 20, 1992, requiring appellants to transfer the assets to the estate. Appellants appeal as of right from that order. We reverse and remand.
Appellants raise a number of issues on appeal. However, only one issue merits extended discussion. Appellants argue that the trial court erred in excluding the testimony of Gary Holland and Joyce Wooten regarding their observations of and discussions with decedent when they witnessed the execution of her final will. Holland is an attorney, and Wooten is Holland’s secretary. While neither party contests decedent’s final will per se, appellants argue that Holland and Wooten were able to contribute testimony relevant to the prior transfers by decedent.
At the trial below, appellee invoked the attorney-client privilege on behalf of the estate in order to prevent Holland and Wooten from giving testimony to the jury concerning the prior transfers. The trial court honored the privilege, but created a special record outside the presence of the jury concerning Holland’s professional relationship with decedent. Holland testified that decedent consulted him in order to witness the execution of a will drafted by another attorney. Holland acknowledged that he had discussed the provisions in the will with decedent, but denied the existence of an attorney-client relationship at that time.
The trial court ruled that Holland’s discussion of the provisions in the will with decedent constituted legal advice sufficient to invoke the attorney-client privilege. The trial court then precluded Holland from giving any further testimony on the special record concerning his discussions with decedent about the provisions in the will. None of Holland’s testimony from the special record reached the jury. The trial court also precluded the jury from hearing testimony by Wooten on the basis of the attorney-client privilege as Holland’s agent.
On appeal, appellants acknowledge that Holland was acting as decedent’s attorney at the time of the signing of the will. Although appellants agree that decedent’s communications with Holland were privileged during her lifetime, appellants argue that the privilege ceased to exist upon decedent’s death. We agree, but for reasons different from those tendered by appellants.
Initially, the parties’ stipulation that Holland was functioning as decedent’s attorney at the time of witnessing the will is not binding on this Court because it relates to a question of law. In re Finlay Estate, 430 Mich 590, 595; 424 NW2d 272 (1988); Eaton Co Rd Comm v Schultz, 205 Mich App 371, 375; 521 NW2d 847 (1994). This means that the parties to a civil matter cannot by their mere agreement supersede procedures and conditions set forth in statutes or court rules. In re Estate of Meredith, 275 Mich 278, 292; 266 NW 351 (1936).
Because the will was drafted by Joseph C. Fisher, he is the only attorney covered by the attorney-client privilege in that regard. Holland, who may have represented the testatrix in other matters, did not thereby become her attorney for all purposes. In any event, even if he had been testatrix’s attorney with respect to some aspects of the will, because witnesses to a will may properly be called upon to prove the will, MCL 700.146; MSA 27.5146, disclosures made by the testatrix to a person functioning as a witness are necessarily intended to be disclosed to third parties and, therefore, are not confidential communications protected by the attorney-client privilege. Yates v Keane, 184 Mich App 80, 83; 457 NW2d 693 (1990). Mr. Holland was therefore not precluded by the attorney-client privilege from offering evidence concerning Mrs. Ford’s intention and understanding, her soundness of mind, and whether she was operating under the undue influence of any person.
In light of the foregoing, we are convinced that the trial court erred in precluding the jury from hearing the testimony of Holland and Wooten.
With respect to the remaining issues raised by the appellants, we believe there was no error in denying the admission of medical records because the parties stipulated decedent’s medical condition at the time of the videotaped deposition. Further, the admission of the videotaped deposition, to the degree it was used to show that decedent was unduly influenced when she made transfers to her son, Roy Ford, is admissible, and the court did not abuse its discretion in admitting the tape. Price v Long Realty, Inc, 199 Mich App 461, 466; 502 NW2d 337 (1993).
Reversed and remanded for proceedings consistent with this opinion.
Holland later represented decedent in another matter, and acknowledged that an attorney-client relationship was established at that time. | [
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Sawyer, J.
Defendant pleaded nolo contendere to criminal sexual conduct in the second degree. MCL 750.520c; MSA 28.788(3). He was thereafter sentenced to serve ten to fifteen years in prison. He now appeals, raising only issues regarding sentencing, not the conviction. We remand for consideration by the sentencing judge of a motion for resentencing.
Defendant raises a number of issues with respect to his sentence, one of which has merit. Defendant argues that the trial court erred in assessing ten points in the scoring of Offense Variable 6 under the sentencing guidelines. We agree.
Offense Variable 6 deals with multiple victims, and ten points are appropriate where there are two or more victims. In the case at bar, the offense for which defendant was convicted involved only one victim, but, according to the presentence investigation report, defendant has admitted to engaging in similar conduct with various victims over the course of a number of years. It was on the basis of these other instances that the trial court assessed ten points for Offense Variable 6. Thus, the question before us is whether, as defendant argues, Offense Variable 6 refers only to the victims in the charged offense, or to any victim in any offense, as the prosecution argues. We agree with defendant.
We begin by looking at the definition of "offense variable” contained in the sentencing guidelines. The definitions section defines "offense variable” as being the factors "that are used to evaluate the seriousness of the offense.” Thus, the primary focus of the offense variables is not to measure the offender, but to measure the offense. Indeed, in looking at the various offense variables, both for criminal sexual conduct and other crimes, it can be readily observed that the offense variables by and large speak to the circumstances of the particular offense for which the defendant is to be sentenced. For example, Offense Variable 1 addresses the use of a weapon in the course of the crime, Offense Variable 2 addresses a physical attack on the victim, Offense Variable 3 addresses the intent to kill or injure, Offense Variable 4 addresses aggravated physical abuse involved in an offense, and so on.
In fact, the only offense variables that by their specific terms direct attention to crimes other than the one for which the defendant is being sentenced are Offense Variable 8 (continuing pattern of criminal behavior), Offense Variable 16 to a limited extent (aggravated controlled substance offense), and Offense Variable 25 in certain circumstances (contemporaneous criminal acts, which can include similar acts committed within the last six months). However, to the extent those variables require consideration of offenses other than the one for which the defendant is being sentenced, the instructions specifically direct the court to consider other offenses.
If, on the other hand, we were to accept the prosecutor’s invitation to read into the offense variables the idea that prior conduct may be considered in scoring the variable even absent explicit instructions to do so, absurd results could occur. For example, Offense Variable 1 involves the aggravated use of a weapon and fifteen points is appropriate if a firearm is pointed toward the victim. Under the prosecutor’s rationale, fifteen points could be scored if the defendant has ever pointed a weapon at someone, during any offense, and even where no weapon was involved in the current offense. Similarly, under Offense Variable 2 (physical attack or injury), one hundred points is scored if the victim is killed. Under the prosecutor’s theory, once a defendant has committed a crime in which a victim is killed and the scoring of one hundred points for Offense Variable 2 is appropriate, the defendant would always receive a score of one hundred points for Offense Variable 2 for any offense committed thereafter even though there may have been no killing in those offenses.
We think the rule that more accurately applies the sentencing guidelines is that the offense variables are to be scored only with respect to the specific criminal transaction that gives rise to the conviction for which the defendant is being sentenced unless the instructions for a variable specifically and explicitly direct the trial court to do otherwise. In this respect, the scoring of Offense Variable 6 is more akin to the scoring of Offense Variable 12, as discussed in People v Polus, 197 Mich App 197; 495 NW2d 402 (1992).
In Polus, this Court considered, the proper scoring of Offense Variable 12, which deals with the number of criminal sexual penetrations. The trial court in Polus had scored fifty points, which is appropriate where there are two or more penetrations in addition to the penetration that forms the basis of the conviction. However, to conclude that there had been multiple penetrations, the trial court in Polus had relied upon penetrations that had occurred over the course of months or years, not just penetrations during the specific criminal transaction for which the defendant was convicted. Id. at 199. We reversed, concluding that only those sexual penetrations occurring during the course of the same criminal transaction were to be scored. If the prosecutor is correct in theorizing that offense variables are not specific to the crime for which the defendant is being sentenced, then Polus would have had to have been decided otherwise. We do not believe that Polus was incorrectly decided, but that the prosecutor’s reasoning is flawed.
Finally, the prosecutor suggests that if Offense Variable 6 is limited to the number of victims during the same criminal transaction, then Offense Variable 25 becomes meaningless because it would cover contemporaneous criminal acts. We disagree. First, by its terms, Offense Variable 25 is not limited to the same criminal transaction. Rather, it considers all criminal acts occurring within twenty-four hours of the offense for which the offender is being sentenced or up to six months for crimes that are the same or similar in nature to the crime for which the defendant is being sentenced. Thus, the crimes that are eligible for scoring under Offense Variable 25, by the specific instructions for the scoring of that offense variable, do not need to be part of the same criminal transaction. Moreover, Offense Variable 25 does not require the presence of multiple victims. Rather, Offense Variable 25 focuses on multiple criminal acts, regardless of the number of victims.
Furthermore, Offense Variable 6 does not necessarily require a contemporaneous criminal act. The instructions for Offense Variable 6 provide that a victim is each person who is placed in danger of injury or loss of life. It does not necessarily require that a separate criminal offense have occurred with respect to that victim. For example, in a robbery, the defendant may rob only one victim, but scoring Offense Variable 6 for multiple victims is nevertheless appropriate because there are other individuals present at the scene of the robbery who were, therefore, endangered. See People v Day, 169 Mich App 516; 426 NW2d 415 (1988). Thus, while there may be some overlap between Offense Variable 6 and Offense Variable 25, they are by no means duplicative in that the scoring of points under one offense variable necessarily requires the scoring of additional points under the other.
Accordingly, for the above reasons, we conclude that the trial court erred in scoring ten points for Offense Variable 6. Because there was only one victim involved in the criminal transaction for which defendant was convicted, Offense Variable 6 should be scored as zero.
There remains, however, the question of the appropriate remedy. In Polus, supra, we held that the appropriate remedy where there is a scoring error is to remand the matter to the trial court to determine whether resentencing is required in light of the corrected scoring. As the Court did in Polus, we wish to emphasize here that we are not saying that the trial court must ignore defendant’s prior conduct in determining the appropriate sentence to impose. As the Polus Court pointed out, just because prior conduct is not scored under the offense variable does not mean that it cannot be considered in determining where within the guidelines recommendation to sentence the defendant or be considered in deciding to depart from the guidelines recommendation. Polus, supra at 200. Rather, that conduct cannot be used to score the offense variable to determine the base guidelines recommendation. Id.
Accordingly, it is entirely possible that, even with the changed guidelines recommendation, the trial court might choose to impose the same sentence. Thus, it is premature to order a resentencing because it is not entirely clear that a resentencing will be required. Rather, consistent with the decision in Polus, the matter should be remanded to the trial court for the court to determine whether it would impose a different sentence in light of the changed guidelines scoring. If the court determines that it would impose a different sentence, then it may enter the appropriate order granting resentencing and bring defendant before it to be resentenced. On the other hand, if the trial court determines that its sentence would not change even in light of the correct scoring of the guidelines, then it may enter an appropriate order denying resentencing. The trial court should make its determination and enter the appropriate order within fifty-six days of the clerk’s certification of this opinion.
Defendant next argues that the sentence imposed violates the principle of proportionality set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). However, in light of the remand ordered on the previous issue, we believe it would be premature to decide the proportionality question. Rather, if the trial court affirms its original sentence on remand, or imposes a shorter sentence but one which defendant believes is still disproportionate, then defendant may raise that challenge in an appeal following the remand.
Next, defendant argues that the trial court improperly interjected defendant’s religion into the sentencing proceeding. We disagree. It was defendant who brought up the issue of his religion during his allocution at sentencing. The trial court’s comments were merely in response to those stated by the defendant. Accordingly, we are not persuaded that the trial court improperly injected religious values into the sentencing proceeding.
Finally, defendant argues that he should be resentenced before a different judge. We see no need to assign this matter to a different judge. As explained above, the trial court did not consider improperly defendant’s religious values in fashioning the sentence, nor has defendant shown that the trial court has exhibited a bias toward defendant. Defendant suggests that the trial court would have a difficult time setting aside its previously expressed views concerning the scoring of Offense Variable 6. We, however, see no reason to believe that the trial court cannot reconsider this issue in light of properly scored sentencing guidelines and determine whether resentencing is required. As noted above, the mere fact that defendant’s prior conduct is not properly scored under Offense Variable 6 does not mean that it cannot be considered by the trial court in fashioning defendant’s sentence. It only means that the trial court must consider the appropriate sentence to impose in light of a somewhat reduced recommendation under the sentencing guidelines. That reduced recommendation may or may not translate into the trial court deciding that a shorter sentence is appropriate.
We suspect that the trial court will again depart from the sentencing guidelines and may even reaffirm its original sentence in light of the comments made at sentencing. However, that does not translate into an automatic conclusion that such a sentence would be disproportionate under Milbourn. Because there is no reason to believe that the trial court cannot properly comply with our directions on remand, we see no need to direct assignment to a different judge. If defendant has objections to the manner in which the remand is handled or to the sentence that he ultimately receives following remand, be it affirmation of the original sentence or the imposition of a new sentence, he may pursue the appropriate remedies in an appeal following remand.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
The nature of the offender is primarily measured by use of the prior record variables. This is not to say, of course, that the offense variables completely ignore the nature of the offender, only that their primary focus is on the nature of the offense. | [
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R. J. Danhof, J.
Plaintiff appeals as of right from the judgment entered by the trial court on a jury verdict of no cause of action in favor of defendant Dr. Matthew Borovoy, a board-certified podiatrist. Plaintiff brought a medical malpractice action against Dr. Borovoy and the other defendants based on their unsuccessful attempt to extract a fragment of a sewing needle that had lodged in her foot. Dr. Borovoy treated plaintiff at his office located in Oak Park, Michigan. Among other errors raised on appeal, plaintiff claims the trial court erred in instructing the jury to apply a local standard of care as opposed to a national standard of care to Dr. Borovoy’s conduct. We affirm.
The trial court initially ruled during the trial that a board-certified podiatrist was to be held to a national standard of care, thereby finding plaintiffs expert podiatrist from California, Dr. Anthony Dintcho, qualified to testify. However, on the ninth day of trial, before closing arguments, the court ruled that a podiatrist is subject to the same standard of care as other general practitioners, and later instructed the jury over plaintiffs objection:
When I use the words "professional negligence” or "malpractice” with respect to the Defendant Matthew Borovoy’s conduct, I mean the failure to do something which a podiatrist who is board certified of ordinary learning, judgment or skill in this community or a similar one, would do, or the doing of something which a podiatrist who is board certified, of ordinary learning, judgment or skill, would not do under the same or similar circumstances you find to exist in this case.
It is for you to decide, based upon the evidence, what the ordinary podiatrist who is board certified of ordinary learning, judgment or skill would do or would not do under the same or similar circumstances. [Emphasis added; see SJI2d 30.01.]
i
On appeal, plaintiff first contends that the trial court erred in instructing the jury to apply a local community standard of care as opposed to a nationwide standard of care. We disagree.
A malpractice action may be maintained against any state-licensed professional. MCL 600.2912a; MSA 27A.2912(1) provides that in a malpractice action, the plaintiff has the burden of proving:
(a) The defendant, if a general practitioner, failed to provide the plaintiff the recognized standard of acceptable professional practice in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered injury.
(b) The defendant, if a specialist, failed to provide the recognized standard of care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.
Restated, the applicable standard of care for general practitioners is that of the local community or a similar community, whereas the standard of care for specialists is nationwide. Bahr v Harper-Grace Hosp, 198 Mich App 31, 34; 497 NW2d 526 (1993); Thomas v McPherson Community Health Center, 155 Mich App 700, 708; 400 NW2d 629 (1986).
This Court must decide the applicable standard of care for podiatrists for purposes of professional malpractice. MCL 333.18001; MSA 14.15(18001) defines the practice of podiatric medicine as follows:
(a) "Podiatrist” means a physician and surgeon licensed under this article to engage in the practice of podiatric medicine and surgery.
(b) "Practice of podiatric medicine and surgery” means the examination, diagnosis, and treatment of abnormal nails, superficial excrescenses occurring on the human hands and feet, including corns, warts, callosities, and bunions, and arch troubles or the treatment medically, surgically, mechanically or by physiotherapy of ailments of human feet or ankles as they affect the condition of the feet. It does not include amputation of human feet, or the use or administration of anesthetics other than local.
A podiatrist receives four years of training regarding the foot at a school of podiatry, and may subsequently engage in an optional internship. Podiatric medicine does not have areas of specialties within the general field of practice.
On the other hand, medical doctors or osteopathic physicians attend medical or osteopathic schools for fours years, where they are instructed in all the general areas of medicine. Upon completion of an internship, they are eligible to become licensed as general practitioners. However, a person desiring to become a specialist in a particular field of medicine proceeds into a residency for a period, generally four years. During the residency, the doctor or physician receives advance training in the particular field. Upon completion, the doctor or physician must pass a nationally administered examination. Afterward, the doctor or physician is a board-certified specialist.
We hold that the local standard of care is applicable to podiatrists in light of our finding that a podiatrist is not a specialist under MCL 600.2912a; MSA 27A.2912(1). As this Court previously has recognized, a podiatrist is not a medical or osteopathic doctor who specializes in the treatment of the foot, but rather is a limited practitioner authorized to treat ailments of the human foot. See DeHart v Bd of Podiatry, 97 Mich App 307, 314; 293 NW2d 806 (1980)(a licensure action brought against a podiatrist). We are not persuaded by plaintiff’s argument that Dr. Borovoy is a specialist because his practice focuses on a certain part of the body and is board-certified by a national organization. A doctor or physician is a specialist on the basis of advanced training and expertise in a particular field of general medicine. As the Michigan Supreme Court has explained, a specialist is measured by a national standard because:
The reliance of the public upon the skills of a specialist and the wealth and sources of his knowledge are not limited to the geographic area in which he practices. Rather his knowledge is a specialty. He specializes so that he may keep abreast. Any other standard for a specialist would negate the fundamental expectations and purpose of a specialty. [Naccarato v Grob, 384 Mich 248, 253-254; 180 NW2d 788 (1970).]
Accordingly, the trial court did not err in instructing the jury to apply a local community standard of care to Dr. Borovoy’s conduct.
Additionally, plaintiff argues that she was prejudiced by the court’s earlier erroneous ruling that a national standard would be applied because her experts had testified regarding the national standard of care. We disagree. Although plaintiff learned of the court’s ruling before closing arguments, she did not move to reopen proofs or move for a mistrial, but took her chances with the jury. Moreover, this Court will not reverse on the basis of prejudice where plaintiff’s counsel urged the erroneous ruling during the trial. See Vannoy v City of Warren, 386 Mich 686; 194 NW2d 304 (1972).
ii
Plaintiff next claims that the court erred in instructing the jury regarding comparative negligence. We disagree.
Defendant requested the standard jury instruction regarding comparative negligence, SJI2d 11.01. When requested by a party, a standard jury instruction must be given if it is applicable and accurately states the law. MCR 2.516(D)(2); Constantineau v DCI Food Equipment, Inc, 195 Mich App 511, 516; 491 NW2d 262 (1992). In this case, Dr. Borovoy testified that plaintiff disregarded his instructions to use crutches and to refrain from placing weight on her foot. Plaintiff also admitted that she did not follow Dr. Borovoy’s instructions. Defendant’s podiatrist expert opined that she may have caused the needle to move further into her foot by continuing to walk on her foot, thereby causing her injuries. We find that the instruction was supported sufficiently by the evidence.
Moreover, plaintiff’s argument that comparative negligence is not applicable in a malpractice action is without merit. Pietrzyk v Detroit, 123 Mich App 244, 248-249; 333 NW2d 236. Accordingly, the trial court did not err in giving the standard jury instruction regarding comparative negligence.
nr
Plaintiff also contends that the trial court erred in denying her request to excuse a juror for cause, where the juror was subsequently dismissed peremptorily. We disagree.
This Court reviews a court’s decision to deny a challenge for cause for an abuse of discretion. Poet v Traverse City Osteopathic Hosp, 433 Mich 228, 236; 445 NW2d 115 (1989). Error requiring reversal occurs when the record indicates (1) the court improperly denied a challenge for cause, (2) the aggrieved party had exhausted all peremptory challenges, (3) the party demonstrated a desire to excuse another summoned juror, and (4) the juror whom the party later wished to excuse was objectionable. Id., pp 231, 241. The determination whether a trial court improperly denied a challenge for cause is made in accordance with whether a juror is excusable under MCR 2.511(D). Poet, supra, p 241, n 13.
The juror in question, John Hart, indicated that a potential witness for defendant Beaumont Hospital, Dr. Richard Reilly, had operated on his knee fifteen years before. Mr. Hart responded negatively when asked by the court and counsel whether his contact with Dr. Reilly would cause him to be biased or to believe Dr. Reilly over the testimony of other doctors. Mr. Hart voluntarily stated that he did not believe doctors were "gods.” Plaintiff argued that Mr. Hart’s statement that doctors were not "gods” would require a greater showing of negligence than the law required and, therefore, he should have been excused for cause. The court disagreed, and, in response to the court’s inquiry, Mr. Hart stated that he believed doctors should be held accountable if they do something wrong. The court denied the request, finding that Mr. Hart was not biased for or against any party. This Court agrees with the trial court that Mr. Hart’s statements did not establish that he was biased for or against either party. Because Mr. Hart was not excusable per se under MCR 2.511(D) (3), the trial court did not abuse its discretion by denying plaintiff’s challenge for cause.
This Court also notes that plaintiff’s counsel indicated on the record at the end of voir dire that he would have used a peremptory challenge for a subsequent juror had he not used his last peremptory challenge for Mr. Hart, although he never identified which juror he would have subsequently excused. We assume plaintiffs counsel was referring to the last person seated on the jury because only two men were called after Mr. Hart, and one was excused for cause. However, plaintiffs counsel failed to indicate specifically on the record and on appeal any particular reason why this person was objectionable, and this Court cannot glean any reason from the record. See Poet, supra, p 241, n 15. Thus, plaintiff also failed to establish the fourth requirement for reversal.
IV
Finally, plaintiff claims that the trial court denied her a fair trial by failing to rule on the admission of certain exhibits and by refusing to allow Dr. Dintcho to examine her. Plaintiff requests a new trial on the basis of these alleged prejudicial errors. After reviewing the record, this Court finds that plaintiff was not denied a fair trial. Van Oordt v Metzler, 375 Mich 526; 134 NW2d 609 (1965).
Affirmed.
Hood, P.J., concurred.
Dr. Borovoy has been a board-certified podiatrist since 1975 by the American Board of Podiatric Surgery. He is also certified by the American Board of Quality Assurance and Utilization Review, which is a national board.
MCL 600.2912; MSA 27A.2912.
The trial court expressed its displeasure that these matters were not brought to its attention before trial.
Ultimately, Dr. Reilly did not testify at trial. | [
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Per Curiam.
Defendant, Athir Mansour, was charged with second-degree obscenity, MCL 752.366; MSA 28.579(366). Before trial, defendant filed a motion to dismiss based upon the constitutionality of the Michigan criminal obscenity statute. A hearing concerning defendant’s motion to dismiss subsequently was held, and the trial court entered an order of dismissal, finding that the statute was unconstitutional. The prosecution appeals by leave granted, and we affirm.
The prosecution’s sole claim on appeal is that the trial court erred in dismissing the charge of second-degree obscenity. The prosecution contends that the statute is constitutional and, consequently, requests that this Court allow this case to proceed on its merits. MCL 752.366; MSA 28.579(366) specifically provides in pertinent part:
(1) A person is guilty of obscenity in the second degree when, knowing the content and character of the material, the person disseminates, or possesses with intent to disseminate, to the public any obscene material.
This particular statutory provision, however, has been repealed by the Legislature. An issue is moot when the occurrence of an event renders it impossible for the court to fashion a remedy. People v Wershe, 166 Mich App 602; 421 NW2d 255 (1988); Crawford Co v Secretary of State, 160 Mich App 88, 93; 408 NW2d 112 (1987). Because it would now be impossible for this Court to grant the prosecution a remedy in this case, we find that this issue is moot.
Affirmed.
1992 PA 216, § 2 effective March 31, 1993. | [
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Griffin, J.
Plaintiff appeals as of right from an order of the circuit court granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8) and (10) in this breach of contract action. We affirm._
i
On October 11, 1990, plaintiff received a number of "McMillion$” game tickets while visiting a McDonald’s franchise restaurant owned by defendant Rymac, Inc. The lottery-style promotional game, "McMillion$ on nbc,” promised millions of dollars in prize money to the holder of a winning game ticket. While watching television that night, plaintiff discovered that the number on one of her tickets matched the winning prize number. After calling a telephone number printed on the ticket, plaintiff was told to report to the Detroit advertising office of defendant Arthur Andersen & Company to verify that she had won the $10 million prize.
The following morning, plaintiff, her husband, and one of her daughters met with an employee of Andersen, who confirmed that plaintiff possessed the winning ticket. Shortly thereafter, a representative of McDonald’s arrived and congratulated plaintiff on winning the prize. Plaintiff spent the remainder of the day engaging in promotional activities that included television appearances and radio interviews. Later that evening, plaintiff was informed that she was "disqualified” from winning the contest because her daughter, Charlene Saunders, worked at the McDonald’s franchise where plaintiff obtained the winning ticket. Under the contest rules, "persons who are immediate family members of or who reside in the same household” as an employee of a McDonald’s franchisee were ineligible to participate in the contest. Saunders was married and resided approximately thirty miles from her mother.
On October 30, 1990, plaintiff brought the instant action, alleging breach of contract, intentional infliction of emotional distress, defamation, portrayal in a false public light, and violation of the Michigan Consumer Protection Act. Following defendants’ motion for summary disposition, the trial court dismissed all of plaintiffs claims except for her breach of contract count against defendants Delaware McDonald’s Corporation and National Broadcasting Company, Inc. Thereafter, plaintiff amended her complaint to allege estoppel and breach of contract against both remaining defendants. Following defendants’ motion for summary disposition under both MCR 2.116(C)(8) and (10), the trial court dismissed the amended complaint. The trial court ruled that plaintiff was ineligible to participate in the contest under the contest rules because she was a member of her daughter’s "immediate family.” Plaintiff now appeals as of right.
ii
Although the parties ágree that there is no prior Michigan case on point, other jurisdictions have recognized that contract law governs the relationship between the sponsor of a prize contest and an entrant in the contest. See, e.g., Johnson v BP Oil Co, 602 So 2d 885, 888 (Ala, 1992); First Texas Savings Ass’n v Jergins, 705 SW2d 390 (Tex App, 1986); Chenard v Marcel Motors, 387 A2d 596 (Me, 1978). In order to establish the formation of an enforceable contract, an entrant must show (1) the offer of a prize by the sponsor for the performance of a specified act, (2) competition in the contest, and (3) the performance of the specified act required for winning the contest. Nat’l Amateur Bowlers, Inc v Tassos, 715 F Supp 323, 325 (D Kansas, 1989); Las Vegas Hacienda, Inc v Gibson, 77 Nev 25, 27; 359 P2d 85 (1961).
However, the rights of an entrant who has performed the act required in the sponsor’s offer are limited "by the terms of the offer, i.e., by the conditions and rules in the contest.” Nat’l Amateur Bowlers, Inc, supra at 325. Here, rule 8 of the contest rules provided that "persons in any of the following categories are not eligible to participate or win prizes: . . . (c) persons who are immediate family of or who reside in the same household as any person in the preceding categories.” The categories listed included employees of McDonald’s Corporation, its subsidiaries, franchisees, or affiliates, or employees, or agents, or independent contractors of any of the listed McDonald’s organizations
Relying on Bryant v Deseret News Publishing Co, 120 Utah 241; 233 P2d 355 (1951), plaintiff asserts that she was eligible to participate in the contest under the contest rules because she is not a member of her daughter’s "immediate family.” In Bryant, the plaintiff sued the defendant sponsor to invalidate a prize won by a contestant who was the father of one of the sponsor’s employees. Id. at 242. The son was twenty-one years old and resided with his wife and children in their own home. Id. The contest rules precluded "employees of the Deseret News and their immediate families.” Id. In upholding the award of the contest prize, the Utah Supreme Court construed the word "immediate” as having a restrictive effect upon the word "family,” thus limiting this class to only those family members residing in the son’s household. Id. at 244-245.
More recently, the Illinois Court of Appeals, in Harlem-Irving Realty, Inc v Alesi, 99 Ill App 3d 932; 425 NE2d 1354 (1981), expressly rejected the rationale in Bryant. In Harlem-Irving Realty, the winner of a promotional contest run by a group of business tenants was sued after it was learned that he was the father and grandfather of two employees of the tenants. Id. at 933-934. The rules precluded employees and their "immediate families” from contest participation. Id. at 934. However, the defendant did not reside in the same household as either relative. Id. at 934. In upholding the grant of the plaintiffs motion for summary judgment, the panel in Harlem-Irving Realty criticized the narrow construction of the term "immediate family” advanced in Bryant. Instead, the Illinois Court of Appeals concluded that it should be liberally construed to "effectuat[e] the purpose of the contest rules.” Id. at 938. Under this construction, the panel concluded that the plaintiffs clearly intended to exclude the defendant and members of his class. Id. We agree with Harlem-Irving Realty and adopt its analysis.
hi
In the present case, rule 8(c) excludes from eligibility those who are immediate family members of or who reside in the same household as any employee of a McDonald’s franchisee. In light of the additional exclusionary class included in the contest rules, the narrow construction of the term "immediate family” advanced by plaintiff would render the term surplusage.
Furthermore, we construe the term "immediate family” in light of the apparent purpose of the contest rules. Rule 8(c) and other exclusionary rules are designed to encourage public participation in the contest by creating an appearance of fair play and impartiality, while at the same time bolstering public confidence. Applying this principle, we conclude that defendants intended to exclude members of plaintiffs class.
We also reject plaintiffs claim that summary disposition was premature because discovery was incomplete. This Court has held that a grant of summary disposition is premature if granted before discovery on a disputed issue is complete. Mackey v Dep’t of Corrections, 205 Mich App 330, 333; 517 NW2d 303 (1994). However, a disputed issue must be before the court. Pauley v Hall, 124 Mich App 255, 263; 335 NW2d 197 (1983). If a party opposes a motion for summary disposition on the ground that discovery is incomplete, the party must at least assert that a dispute does indeed exist and support that allegation by some independent evidence. Michigan Nat’l Bank v Metro Institutional Food Service, Inc, 198 Mich App 236, 241; 497 NW2d 225 (1993); Pauley, supra. Here, plaintiff failed to do so.
Finally, we agree that the trial court did not err in granting summary disposition with respect to plaintiffs equitable estoppel claim. The doctrine of equitable estoppel is not available to a plaintiff as a cause of action. Hoye v Westfield Ins Co, 194 Mich App 696, 707; 487 NW2d 838 (1992); Harrison Twp v Calisi, 121 Mich App 777, 787; 329 NW2d 488 (1982).
Affirmed. _
In view of our resolution, we find it is unnecessary to address defendants’ alternative argument that the contest rules restrict the scope of judicial review. We recognize, however, that a split of authority exists regarding whether a contest rule that makes the decision of the promoter or sponsor final precludes judicial review of the decision. See, e.g., Johnson, supra; Bridges v Georgiana, 211 NJ Super 427; 511 A2d 1255 (1985); Carlini v United States Rubber Co, 8 Mich App 501; 154 NW2d 595 (1967); anno: Private contests and lotteries: entrants’ rights and remedies, 64 ALR4th 1021, §§ 12-13b, pp 1065-1068. | [
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] |
Taylor, P.J.
Petitioner appeals as of right from the order of the Michigan Tax Tribunal dismissing petitioner’s claim for a single business tax refund. The claim was dismissed on jurisdictional grounds because petitioner failed to file its appeal with the Tax Tribunal within thirty days of the final decision as required by MCL 205.735(2); MSA 7.650(35) (2) and MCL 205.22; MSA 7.657(22). On appeal, petitioner claims that its appeal was timely, that the statutory period for filing an appeal was tolled during the negotiations between petitioner and respondent, and, alternatively, that a delayed appeal should have been granted for equitable reasons. We affirm.
In December 1988, petitioner filed a refund request for alleged overpayment of the single business tax for the years 1984-87. In a letter dated November 20, 1990, David Kirvan, the administrator of respondent’s single business tax division, denied petitioner’s refund requests for the years 1985-87. Petitioner sent letters to Kirvan on November 29, 1990, and December 5, 1990, in which it acknowledged receipt of Kirvan’s letter denying those refund requests and expressed its disagreement with the denial. Kirvan’s response to these letters and his statements in subsequent telephone conversations uniformly reiterated the original denial.
Petitioner effectively filed its claim of appeal in the Tax Tribunal on February 11, 1991. The Tax Tribunal granted respondent’s motion to dismiss on the ground that petitioner had failed to comply with the relevant statutes, which mandate that an appeal be filed within thirty days of the final decision being challenged. Petitioner’s motion for reconsideration was denied on the same basis.
Petitioner argues that the original denial was not a final decision, because Kirvan’s letter did not advise petitioner of its right to appeal, citing MCL 205.21; MSA 7.657(21). This statutory section is irrelevant to the case at bar because it deals with situations where returns or payments are not made as required. Cases involving refunds of taxes already paid are controlled by § 22, which does not mandate notice of a petitioner’s right to appeal.
Petitioner next argues that the statutory period for an appeal was tolled during the negotiations between petitioner and respondent. We disagree.
The record does not support petitioner’s contention that a settlement was being negotiated. Petitioner expressed its disagreement with Kirvan’s final decision, but each of Kirvan’s communications to petitioner uniformly reiterated the original denial. Furthermore, Revenue Administrative Bulletin 89-35, cited by petitioner, allows submission of additional information by a petitioner, but still requires proper filing of an appeal within thirty days from the date of the decision or order. This thirty-day period was not tolled.
Finally, petitioner argues that the Tax Tribunal should have exercised its equitable power to grant the delayed appeal. There is no authority for petitioner’s contention.
In Campbell v Dep’t of Treasury, 77 Mich App 435; 258 NW2d 508 (1977), this Court remanded the action to the Board of Tax Appeals for a delayed appeal. Subsequent to that decision, the Legislature added subsections 2 and 3 to MCL 205.22; MSA 7.657(22). These subsections state that final decisions not appealed in accordance with the thirty-day period "shall be final and shall not be reviewable in any court by mandamus, appeal, or other methods of direct or collateral attack,” MCL 205.22(2); MSA 7.657(22)(2), "and [are] not subject to further challenge,” MCL 205.22(3); MSA 7.657(22)(3).
[W]hile there may be an extraordinary case which justifies the exercise of equity jurisdiction in contravention of a statute, this is not such a case. Where the Legislature has provided a plain, adequate remedy at law, it has the constitutional authority to impose limitations on other available remedies. . . . The legal remedy available in this case is a proceeding before the Tax Tribunal. [Wikman v Novi, 413 Mich 617, 648; 322 NW2d 103 (1982).]
The Tax Tribunal had no authority to grant petitioner’s request for a delayed appeal. The tribunal was divested of jurisdiction over this matter when the thirty-day period expired.
Our review of Tax Tribunal decisions, absent fraud, is limited to whether the tribunal made an error of law or adopted a wrong principle. We accept the factual findings of the tribunal as final, provided they are supported by competent, material, and substantial evidence. Dow Chemical Co v Dep’t of Treasury, 185 Mich App 458, 462-463; 462 NW2d 765 (1990). After careful review of the record, we find no error of law and that the tribunal’s factual findings are supported by competent, material, and substantial evidence on the whole record.
Affirmed.
Petitioner originally filed its claim of appeal on February 4, 1991. By letter dated February 7, 1991, respondent informed petitioner that its proof of service was defective. Petitioner then filed a proper proof of service on February 11, 1991.
Both statutory sections relevant to this issue set forth the thirty-day period, although they do so in slightly different terms. MCL 205.22(1); MSA 7.657(22)(1) states: "A person aggrieved by an assessment, decision, or order of the department may appeal the contested portion of an assessment, decision, or order to the tax tribunal within 30 days . . . .” MCL 205.735(2); MSA 7.650(35)(2) states that in cases such as the one presented here "the jurisdiction of the tribunal shall be invoked by the filing of a written petition by a party in interest, as petitioner, within 30 days after the final decision, ruling, determination, or order which the petitioner seeks to review.”
Although not requiring specific notice to the petitioner of its right to appeal, all three subsections of § 22 contain references to the right to appeal one of respondent’s decisions to the Tax Tribunal.
In Bickler v Dep’t of Treasury, 180 Mich App 205, 212; 446 NW2d 644 (1989), this Court, in dicta, cited Wikman, supra, for the proposition that the Tax Tribunal has equitable powers to review decisions of a revenue commissioner. We are not compelled to follow Bickler under Administrative Order No. 1994-4, and therefore, because its statement as to the equitable powers of the Tax Tribunal is mistaken, we decline to do so. Petitioner’s reliance on Bickler is unavailing. | [
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Per Curíame.
Defendants appeal as of right from the trial court order that granted summary disposition to plaintiff pursuant to MCR 2.116(0(10). We affirm.
Plaintiff filed this action for declaratory judgment to determine its obligations under a homeowner’s insurance policy to defend defendants, its insureds, in an underlying action filed by Jeannine Westwood for damages for mental anguish, suffering, embarrassment, ridicule, humiliation, loss of wages and earning capacity, attorney fees and expenses, invasion of privacy, and harm to reputation. Westwood also sought damages for psychological and psychiatric injury. The complaint pleaded causes of action for libel, slander, intentional infliction of emotional distress, negligence, malicious prosecution, and invasion of privacy.
Defendants requested plaintiff to defend them and to provide coverage if they were found liable to Westwood. Plaintiff denied the request, claiming that coverage was excluded under the insurance policy because Westwood had not alleged any bodily injury in the underlying action. The provision in the policy upon which plaintiff relied for its denial of coverage provides:
COVERAGE l - personal liability
If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will:
1. pay to our limit of liability for the damages for which the insured is legally liable; and
2. provide a defense at our expense by counsel of our choice ....
Bodily injury is defined in the policy as
bodily harm, sickness or disease. This includes required care, loss of services and death resulting therefrom. Bodily injury does not include any of the following which are communicable: disease, bacteria, parasite, virus, or other organism, any of which are transmitted by any insured to any other person. It also does not include the exposure to any such disease, bacteria, parasite, virus, or other organism by any insured to any other person.
Plaintiff moved for summary disposition on the ground that there was no genuine issue of material fact that it did not have a duty to defend or provide coverage under the insurance policy. MCR 2.116(0(10). The trial court granted the motion, finding that Westwood’s injuries did not constitute the requisite "bodily injury” necessary to trigger coverage.
Defendants thereafter filed a motion for reconsideration, which was denied. In the motion, defendants included the affidavit of Dr. R. Curtis Bristol, who opined that physical manifestations result from psychiatric problems and that psychiatric damage is a form of bodily injury.
Whether an insurance carrier has a duty to defend its insured in an underlying tort action depends upon the allegations in the complaint. The duty extends to allegations that "even arguably come within the policy coverage.” Allstate Ins Co v Freeman, 432 Mich 656, 662-663; 443 NW2d 734 (1989); United States Fidelity & Guaranty Co v Citizens Ins Co of America, 201 Mich App 491, 493; 506 NW2d 527 (1993). The duty to defend or indemnify, however, is not determined solely on the basis of the terminology used in the plaintiff’s pleadings in the underlying action. Freeman, supra at 662. Rather, a court focuses on the cause of the injury to determine whether coverage exists. Id. at 662-663; U S F & G, supra at 493-494.
In Greenman v Michigan Mutual Ins Co, 173 Mich App 88; 433 NW2d 346 (1988), the plaintiff sued the defendant for failing to defend him in a lawsuit in which sexual harassment and discrimination were alleged. The trial court granted summary disposition in favor of the defendant on the ground that it was not required to provide coverage or a defense in the absence of bodily injury. Id. at 90. "Bodily injury” was defined in the policy as bodily injury, sickness, or disease. This Court held, in pertinent part, that because the complainant in the underlying action did not allege any physical manifestations of her mental injuries, the plaintiff failed to fulfill the bodily injury requirement of the policy. As such, the defendant was not required to defend the plaintiff. Id. at 92. See also Nat’l Ben Franklin Ins Co of Michigan v Harris, 161 Mich App 86, 90; 409 NW2d 733 (1987) (the phrase "bodily injury,” absent allegations of physical manifestations, does not encompass damages for humiliation, mental anguish, and mental distress); Farm Bureau Mutual Ins Co of Michigan v Hoag, 136 Mich App 326, 332, 335; 356 NW2d 630 (1984) (the phrase "bodily injury” does not encompass damages for humiliation, mental anguish, and mental suffering; at a minimum, physical manifestation of mental suffering is necessary to satisfy bodily injury requirement).
Defendants distinguish Greenman, Harris, and Hoag by claiming that psychiatric harm is a sickness or illness from which physical manifestations can result and as such constitutes "bodily injury” within the meaning of the policy. We disagree and hold that, absent physical manifestations, the phrase "bodily injury” does not include a claim for psychiatric damage. While we recognize that there are differences between "mental suffering” and "psychiatric damage,” the distinction does not alter our analysis as it relates to insurance coverage. At a minimum, there must be allegations of physical manifestations supported by sufficient documented evidence in order for insurance coverage to be triggered.
In her complaint in the underlying action, West-wood did not allege any physical manifestations resulting from the psychiatric harm she claims to have suffered. Defendants did state in passing at the summary disposition hearing that Westwood was suffering from alcoholism as a result of the psychiatric damage. However, defendants failed to present any documentary evidence in support of this allegation. Mere allegations are not sufficient to withstand a motion brought pursuant to MCR 2.116(0(10). McCart v J Walter Thompson USA, Inc, 437 Mich 109, 115; 469 NW2d 284 (1991). Further, the affidavit of Dr. Bristol, which defendants presented at the hearing for the motion for reconsideration, was general in nature and did not address whether Westwood experienced any physical manifestations of injury. Id.
Accordingly, we conclude that the trial court properly granted summary disposition in favor of plaintiff because Westwood did not allege a bodily injury within the terms of the parties’ insurance policy.
Affirmed. | [
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The Judges of this Court having been polled pursuant to Administrative Order No. 1994-4, and the result of the poll being that fourteen Judges opposed convening a special panel, nine were in favor, and one abstained, it is ordered that a special panel shall not be convened.
It is the recommendation of this Court that the Supreme Court accept an application for leave in this matter, to be held in abeyance together with Pick v Gratiot Co Road Comm, 203 Mich 138; 511 NW2d 694 (1993), pending the Supreme Court’s decision in Mason v Wayne Co Bd of Comm’rs, Supreme Court Docket No. 94911, lv gtd 442 Mich 924 (1993). | [
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Per Curiam.
Plaintiffs in these three consolidated cases appeal as of right from the portion of the trial court’s orders applying the worker’s compensation lien of the Silicosis, Dust Disease, and Logging Industry Compensation Fund to all damages recovered in each case. In Docket Nos. 152023 and 152024, the fund cross appeals from the allocation of the tort recovery. We affirm in part and reverse in part.
Decedents, Merel Beaudrie, Ralph Wright, and Willie Smith, died from mesothelioma resulting from exposure to asbestos. The personal representative of each estate brought wrongful death actions against a number of defendants. Pursuant to §§ 531(3) and 827 of the Worker’s Disability Compensation Act, MCL 418.531(3); MSA 17.237(531) (3), and MCL 418.827; MSA 17.237(827), the fund filed a notice of lien on any settlement or judgment recovered by plaintiffs. The court granted the fund’s motion to intervene to protect the lien. Each case was ultimately settled. The court incorporated each settlement in a consent judgment that indicated the settlement in that case, the manner in which the recovery was to be divided among the interested parties, and the portion of the recovery that was subject to the fund’s lien. This appeal and cross appeal followed.
Plaintiffs argue on appeal that the trial court erred in subjecting to the worker’s compensation lien (1) damages payable for loss of consortium or loss of society and companionship and (2) damages payable to those interested parties who were not worker’s compensation beneficiaries.
Where an employee who has received worker’s compensation benefits recovers in a third-party tort action, the employer or the compensation carrier that paid the benefits is entitled to reimbursement from the recovery under § 827(5), which provides:
In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.
Our Supreme Court construed this subsection in Eddington Estate v Eppert Oil Co, 441 Mich 200; 490 NW2d 872 (1992). The lead opinion, written by Justice Brickley and joined by Justices Riley and Griffin, would have held that the subsection entitled the worker’s compensation carrier to seek reimbursement from the entire amount of the third-party tort recovery obtained as a result of the death of an employee, regardless of the classification of the damages (as either economic or noneconomic) and regardless of whether the recipient of the proceeds was entitled to receive compensation benefits. Id. at 204. Justice Mallett agreed that the classification of the damages was immaterial, but argued that the status of the claiming party should dictate whether the lien would attach. Id. at 218-219.
Justice Mallett agreed in part with the result of the lead opinion, but dissented from part iv(c) of that opinion, which would permit the employer to recover from loss of society and companionship damages awarded to the deceased employee’s non-dependent parents. Id. at 218. Because Justice Mallett expressly dissented only from part iv(c) of the lead opinion, it is appropriate to read his opinion as concurring in both the reasoning and the result of the remainder of the lead opinion. Accordingly, with the exception of part iv(c), Eddington constitutes binding precedent under the doctrine of stare decisis. See Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98 (1976); Breckon v Franklin Fuel Co, 383 Mich 251, 279; 174 NW2d 836 (1970), overruled on other grounds in Smith v Detroit, 388 Mich 637, 651; 202 NW2d 300 (1972). Eddington thus stands for the proposition that, where the recipient is a worker’s compensation beneficiary, a worker’s compensation carrier is entitled to reimbursement from the entire amount of the third-party tort recovery awarded, regardless of the type of damages recovered.
In the present case, therefore, the trial, court did not err in permitting the fund’s lien to attach to damages for loss of consortium or loss of society and companionship.
The fund concedes that, under Eddington, any recovery made by a party who is not eligible for worker’s compensation benefits is not subject to the worker’s compensation lien. In light of the fund’s concession, we decline to consider the merits of this issue, and we reverse the decision of the trial court to the extent that it permitted the lien to attach to the recoveries of the decedents’ adult, nondependent children.
On cross appeal, the fund argues that the percentages of the third-party recoveries awarded to the adult, nondependent children in the Beaudrie and Wright cases constitute an effort to circumvent the fund’s lien and are unsupported by the record.
By failing both to cross-examine witnesses when it had the opportunity to do so and to object to the allocation of the proceeds among the interested parties, which failure was not merely a procedural defect, the fund has waived this issue. See Tucker v Clare Bros Ltd, 196 Mich App 513, 519-520, 519, n 2; 493 NW2d 918 (1992).
Affirmed in part, reversed in part, and remanded for modification of the consent judgments. We do not retain jurisdiction.
To the extent that Judge Cavanagh may have stated otherwise in Piper v Chrysler Corp, unpublished opinion per curiam of the Court of Appeals, decided April 13, 1994 (Docket No. 145931), p 3, n 1, he is now of the view that Justice Mallett’s partially concurring opinion renders the applicable portion of Eddington binding authority.
In Tucker v Clare Bros Ltd, 196 Mich App 513, 520; 493 NW2d 918 (1992), this Court asserted that the right to reimbursement does not extend to a spouse’s recovery for loss of consortium. That case is distinguishable from the present case, because the employee in Tucker suffered nonfatal injuries. The distinction is a significant one. Hearns v Ujkaj, 180 Mich App 363, 370-371; 446 NW2d 657 (1989). | [
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Michael J. Kelly, P.J.
Plaintiffs appeal as of right a circuit court order granting defendant’s motion for summary disposition. We affirm in part and reverse in part.
i
Plaintiff Shirlee Michaels became affiliated with defendant Amway Corporation as a distributor in 1969. An Amway distributor’s business grows by sponsoring other "down-line” distributors and thereby establishing a personal distribution network. Michaels sponsored plaintiff Joan Baker and her husband in 1975. The Bakers in turn sponsored Mary and Maurice VanDusen and Mariis and Donald Shamblin. In 1979, the VanDusens sponsored George and Barbara Simmons. In 1985, the Shamblins sponsored Lillian Cummings. The Simmonses and Cummings in turn each established their own networks of down-line distributors so that, by 1990, plaintiffs Michaels and Baker stood atop a large and lucrative pyramid of down-line distributors and operated their own sizeable Amway warehouses.
In 1983, the Bakers moved to Hong Kong and set up servicing agreements with several other high-level Amway distributors in order to ensure that their down-line distributors would have continuity of supply in their absence. One of those agreements was with Dick and Doreen Yost, who agreed to provide Amway products for the Simmonses and Cummings, among others. When the Bakers returned from Hong Kong in 1987, they terminated most of the servicing agreements, in- eluding the agreement with the Yosts, and reopened their Amway warehouse.
The Bakers kept regular pickup hours at their warehouse from 3:00 p.m. to 5:00 p.m. on Mondays and Thursdays. They used these hours to discuss training and motivating of new distributors. The Bakers also maintained contact with their distributors by setting up lunch and dinner appointments with members of their distribution group.
In August 1989, the Bakers began selling a health drink manufactured by a company called Matol. The Bakers met with George Simmons, among other down-line distributors, to advise him of their association with Matol and to assure him that their primary commitment was to Amway. Defendant received complaints from Simmons and other down-line distributors. Although Simmons was not actively solicited to join the Matol business, he contacted defendant after the meeting to complain about the Bakers’ involvement with Matol. In January 1990, Paul Burt, of defendant’s Business Conduct and Rules Department, informed the Bakers that the Code of Ethics and Rules of Conduct in defendant’s Business Reference Manual (brm) prohibited them from selling Matol to any Amway distributors except those directly sponsored by them.
Three times in the spring and summer of 1990, George Simmons requested a transfer to another network of distributors, citing the Bakers’ Matol business and their alleged failure to offer enough meetings to down-line distributors. However, defendant’s brm provides that a distributor wishing to change sponsors must be inactive for six months and that a distributor wishing to take along down-line distributors must be inactive for two years.
Notwithstanding these rules, the Simmonses were able to terminate their association with the Bakers’ in December 1990, and transfer to the Yosts’ network in January 1991. Eight down-line distributors accompanied them. Robert Kerkstra, the director of defendant’s Business Conduct and Rules Department, approved the transfer. Shortly thereafter, Cummings received permission to do the same. She subsequently sent a formal letter of resignation to the Bakers in February 1991 and became a member of the Simmonses’ distribution network one month later, taking nineteen down-line distributors with her.
ii
At issue is the effect of a provision in the brm on the propriety of Kerkstra’s decision to waive the two-year inactivity requirement for the Simmonses and Cummings. This provision reads:
The Rules are designed to preserve the benefits available to all independent distributors under the Amway Sales and Marketing Plan. To this end, Amway reserves to itself the sole right to adopt, amend, modify, supplement, or rescind all or such a portion of the Rules, as necessary, in order to promote the goals, objectives and benefits of the Amway Sales and Marketing Plan.
Defendant concedes that it is contractually bound by the brm and that its decision to allow the Simmonses and Cummings to transfer violated the two-year rule. However, defendant relies on the reservation-of-rights provision to justify its action. Alternatively, defendant argues that plaintiffs may not invoke their contractual rights under the brm because they already had breached that contract by failing to properly supply, train, and motivate their down-line distributors with weekly meetings and regular mail contact and by attempting to involve their distributors in the Matol distribution scheme.
The circuit court order did not specify under which court rule it was granting summary disposition. Defendant submitted its motion under both MCR 2.116(C)(8) and (10). However, it is apparent from the circuit court record that the motion was decided under MCR 2.116(0(10). We will review the matter accordingly.
A motion for summary disposition under MCR 2.116(0(10) tests whether a genuine issue of material fact remains upon which reasonable minds could differ. In making this determination, a court must review all relevant affidavits, depositions, admissions, and other documentary evidence and construe the evidence in favor of the nonmoving party. Farm Bureau Mutual Ins Co of Michigan v Stark, 437 Mich 175, 184-185; 468 NW2d 498 (1991).
When deciding a motion for summary disposition in a claim for breach of contract, a court may interpret the contract only where the terms are clear. If the terms are ambiguous, a factual development is necessary to determine the intent of the parties, and summary disposition is inappropriate. SSC Associates Ltd Partnership v General Retirement System of the City of Detroit, 192 Mich App 360, 363; 480 NW2d 275 (1991).
hi
The circuit court concluded that the reservation-of-rights clause in the brm permitted defendant to modify the two-year rule. We believe that the court’s interpretation was not the only reasonable interpretation and conclude that the contract was ambiguous.
The power to amend, modify, or rescind rules does not encompass necessarily the power to create exceptions to rules case by case. A reasonable person could determine that the term "rule” refers to a policy that applies to everyone and, thus, that "modification” of a "rule” involves a change affecting everyone equally, a change in the brm itself. See, e.g., Cain v Allen Electric & Equipment Co, 346 Mich 568, 580; 78 NW2d 296 (1956); Dalton v Herbruck Egg Sales Corp, 164 Mich App 543, 546; 417 NW2d 496 (1987). Such an interpretation also would make common sense, because a reservation to change any rule at will case by case would essentially render plaintiffs’ rights under the brm illusory.
Accordingly, the circuit court erred in granting defendant’s motion for summary disposition. However, because the contract is susceptible to more than one interpretation, we decline to grant plaintiffs’ request for an order of summary disposition in their favor.
IV
Defendant argues that any breach of contract by it was rendered nonactionable by plaintiffs’ breach of the provisions of the brm. "The rule in Michigan is that one who first breaches a contract cannot maintain an action against the other contracting party for his subsequent breach or failure to perform.” Flamm v Scherer, 40 Mich App 1, 8-9; 198 NW2d 702 (1972). See also Nat’l Teleinformation Network, Inc v Michigan Public Service Comm, 687 F Supp 330, 337 (WD Mich, 1988); 5 Callaghan’s Michigan Civil Jurisprudence, § 249, pp 809-810. However, that rule only applies when the initial breach is substantial. Baith v Knapp-Stiles, Inc, 380 Mich 119, 126; 156 NW2d 575 (1968). See also Callaghan’s, supra, § 249, p 810. Here, there is an issue of fact concerning whether plaintiffs breached the contract substantially. Defendant alleges that plaintiffs failed to properly supply, train, and motivate their down-line distributors as provided in the brm. Defendant points to the terms of the brm, which required plaintiffs to conduct weekly sales meetings and maintain frequent mail contact with their down-line distributors, and to the complaints from those distributors regarding plaintiffs’ performance. The record evidence reveals, however, that plaintiffs opened their warehouse for pickup from 3:00 p.m. to 5:00 p.m. twice a week and that they used this time to discuss training and motivation. In addition, they set up lunch appointments and dinners with their distributors to discuss Amway business. With regard to their sale of Matol products, plaintiffs dispute that they ever solicited distributors. The evidence, construed in plaintiffs’ favor, does not conclusively demonstrate a substantial breach of contract. Accordingly, summary disposition was not proper on the breach of contract claim.
v
Because an issue of fact exists regarding the meaning of the reservation-of-rights clause, we cannot say that summary disposition was appropriate with regard to plaintiffs’ claim under § 3 of the Michigan Consumer Protection Act (mcpa), MCL 445.903(1); MSA 19.418(3)(1). Plaintiffs allege that defendant failed to reveal the material fact that it could change the rules in the brm unilaterally case by case under the reservation-of-rights provision. The mcpa claim is essentially an extension of the breach of contract claim. Because the reservation-of-rights clause is ambiguous and, therefore, arguably misleading and confusing, plaintiffs have a justiciable claim that defendant engaged in an unfair and deceptive commercial practice by causing them to rely on the clause. Cf. Lesatz v Standard Green Meadows, 164 Mich App 122, 128; 416 NW2d 334 (1987) (holding that a lease provision did not violate the mcpa where it was not ambiguous, confusing, or misleading with regard to the plaintiffs’ rights, obligations, or remedies).
vi
Notwithstanding our resolution of the preceding issues, the circuit court did not err in granting summary disposition of plaintiffs’ fraud claim. Again, plaintiffs base their claim on defendant’s alleged misrepresentation of the meaning of the reservation-of-rights provision. To constitute fraud, the misrepresentation in question must be predicated on a statement of past or existing fact. Kamalnath v Mercy Memorial Hosp Corp, 194 Mich App 543, 554; 487 NW2d 499 (1992). A mere promise that is broken is neither fraud nor evidence of fraud. Marrero v McDonnell Douglas Capital Corp, 200 Mich App 438, 444; 505 NW2d 275 (1993). The reservation-of-rights provision was not a statement regarding past or existing facts. Accordingly, the circuit court did not err in dismissing plaintiffs’ fraud claim.
Affirmed in part, reversed in part, and remanded. | [
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Per Curiam.
Following a jury trial, defendant was convicted of first-degree murder, MCL 750.316; MSA 28.548, and was sentenced to life imprisonment without parole. Defendant appeals as of right. We affirm.
Defendant first contends that, as a minor who was arrested in California for a crime that occurred in Michigan, the statements he gave to the police are subject to scrutiny under California law. We review questions regarding conflicts of law de novo. See Severine v Ford Aerospace & Communications Corp, 118 Mich App 769; 325 NW2d 572 (1982).
Although there is no law specifically on point regarding which state’s law should be applied when a defendant is determined to be a minor in the state where he was arrested but is considered to be an adult in the state where the crime occurred, we are convinced that the trial court correctly applied Michigan law in determining whether defendant’s April 7, 1991, confession was voluntarily made.
States have jurisdiction over criminal matters that occur within their respective territories. See LaFave, Criminal Law, 2d, §2.9. Further, where two states have sufficient contact with the subject matter of litigation, the forum state may constitutionally apply the law of either state having an interest in the subject activity. Severine, supra at 772. Michigan clearly had sufficient contact with the subject matter of the litigation because the crime occurred in Michigan. Thus, defendant’s argument that his confession should have been suppressed under California law because he was not allowed to contact his mother concerning the waiver of his rights is without merit. Under Michigan law, defendant was an adult when the interview occurred. MCL 712A.3; MSA 27.3178(598.3).
Defendant also maintains that the trial court abused its discretion in denying his motion to suppress an April 16, 1991, statement that was made in Michigan. Specifically, he claims that the trial court failed to consider that the police officers questioned him before his arraignment and failed to consider his age and lack of counsel. The arguments are without merit.
In evaluating the voluntariness of a confession, this Court is guided by the factors articulated by our Supreme Court in People v Cipriano, 431 Mich 315; 429 NW2d 781 (1988). In reviewing a trial court’s determination regarding voluntariness, this Court examines the entire record and makes an independent determination. Nonetheless, we defer to the trial court’s superior ability to view the evidence and the witnesses, and we will not disturb the court’s findings unless they are clearly erroneous. People v Marshall, 204 Mich App 584; 517 NW2d 554 (1994).
In this case, the trial court’s finding that defendant’s statement was voluntary is not clearly erroneous. The totality of the circumstances indicates that it was freely and voluntarily made. Cipriano, supra. Although defendant was questioned before the arraignment, there is nothing in the record to indicate that the questioning was for the purpose of obtaining a confession. Defendant, who was seventeen at the time of the incident, had an eleventh grade education, had several juvenile criminal convictions, had been informed that he had a right to an attorney, and had signed a written consent form. Cipriano, supra. The evi dence showed that defendant’s statements were voluntary, and the trial court’s findings are not clearly erroneous. People v Etheridge, 196 Mich App 43; 492 NW2d 490 (1992).
Next, defendant argues that his April 7 statement should have been suppressed because insufficient evidence was produced to establish that he initiated further contact with the police after invoking his right to counsel. Defendant did not raise this issue below and we need not address it on appeal. People v Hamacher, 432 Mich 157, 168; 438 NW2d 43 (1989). Appellate review is appropriate, however, because a constitutional issue is raised. People v Harris, 95 Mich App 507, 509; 291 NW2d 97 (1980).
There is no dispute that defendant requested counsel on April 6 and that questioning ceased at that time. Thus, the determinative question is whether defendant initiated further communication with the police and thereby waived his previously invoked right to counsel. See People v Myers, 158 Mich App 1, 9; 404 NW2d 677 (1987).
The record indicates that defendant asked to talk to detectives on April 7. Defendant testified that he chose to talk to the officers, that no one suggested that he talk to them, and that he chose to talk to them even though he knew he had the right to speak with an attorney. Under these circumstances, we conclude that the evidence clearly established that defendant waived his right to counsel by initiating further contact with the police. Id.
Lastly, defendant’s argument that in the absence of the two confessions there was no probative evidence introduced to show that the crime was committed in Michigan is without merit in light of our conclusion that the confessions were voluntary.
Affirmed. | [
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Per Curiam.
Defendant appeals as of right his plea of guilty of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), and his sentence of twenty-five to fifty years of imprisonment for the armed robbery conviction. Defendant pleaded guilty pursuant to the prosecutor’s promise to dismiss a charge of conspiracy to commit armed robbery and a charge of being an habitual offender in this case and to dismiss charges in another case of unlawfully driving away an automobile, conspiracy, and of being an habitual offender. The prosecutor and defendant also negotiated a sentencing agreement. We affirm defendant’s plea-based conviction but remand for further proceedings regarding the scope of the prosecutor’s promise relating to the sentencing recommendation.
Defendant claims that the prosecutor breached the sentencing agreement by recommending a sentence of twenty-five years, a specific top end of the guidelines’ sentence, instead of honoring his promise to make a general recommendation of a sentence of five to twenty-five years. Whether the prosecutor breached the agreement depends on the exact terms of the agreement. At the rearraignment, the prosecutor stated:
[T]he People are making a Briggs-Killebrew sentence recommendation that the defendant receive an initial sentence within that recommended by the sentencing guidelines as determined by the court at the time of sentencing.
[W]e believe the minimum range is going to fall between 5 to 25, but I think that’s something that ultimately will have to be determined by the court.
At sentencing, the prosecutor argued:
I think that this court should give him the 25 years, the maximum in the guideline range, as the minimum and I have no problem with the 50 years as maximum on the maximum part of the sentence.
Defense counsel never objected to the prosecutor’s specific sentence recommendation at sentencing. The record contains no copy of a written plea agreement, and the parties’ intent appears somewhat ambiguous. From the record before us, the true nature of the prosecutor’s promise is not adequately developed.
A prosecutor who agrees to make a general sentence recommendation pursuant to a sentencing agreement breaches the agreement by recommending a specific number of years. People v Shuler, 188 Mich App 548; 470 NW2d 492 (1991). A sentencing court is, of course, not bound by any sentencing agreement negotiated between a defendant and the prosecution. People v Killebrew, 416 Mich 189, 207; 330 NW2d 834 (1982). Where a defendant’s plea of guilty is induced by the prosecutor’s promise relating to sentencing, the terms of that agreement must be fulfilled. People v Nixten, 183 Mich App 95; 454 NW2d 160 (1990).
It is not apparent from the record before us whether the prosecutor agreed to recommend, generally, that defendant’s minimum sentence fall within the guidelines or whether he agreed to recommend to the court a specific sentence that would fall within the guidelines.
We, therefore, remand to the trial court for a determination of the actual terms of the agreement regarding the prosecutor’s intent. If the court on remand concludes that the promise was breached, the court should resentence defendant in accordance with Shuler and Nixten, supra, so that defendant may obtain specific performance of the bargain.
Remanded. We do not retain jurisdiction. | [
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The Court
held that evidence that the only note of the kind defendant ever signed was payable in two years, while the note sued upon and produced in court was payable in four months, was evidence fairly tending, if believed, to prove an alteration of the identical instrument originally signed; and that the defendant had a right to have the case submitted to the jury on this theory; that it cannot be assumed that the question whether an instrument has been altered is one that can always be determined by inspection merely, but that it is a question of fact to be submitted to the jury in the light of all the evidence on the subject. Judgment reversed, with costs, and a now trial ordered. | [
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Graves, J:
This is a case made after judgment. Hill was a justice of the peace residing in the village of Cedar Springs, in Kent county, and Howard was marshal of the village. Complaint was made before Hill that plaintiff broke the village pound and rescued a certain cow there confined, and that the act was a violation of section six of a certain ordinance of the village. Hill issued to Howard a precept for her arrest upon this charge, and thereupon Howard arrested her and took her before Hill, and according to the record made by the latter, he then read the complaint to her and required her to plead thereto, whereupon she pleaded guilty, and he gave judgment against her and issued a mittimus to Howard to commit her to the county jail, and the latter took her to jail accordingly, where, as she testifies, she was detained for the space of seven days. She then brought this suit and defendants proceeded to justify by setting up these proceedings against her.
The declaration is not given in the record. The material questions concern the matter of justification, and they arise upon the charge and refusals. The court overruled her requests and in substance directed a verdict against her, and the jury found accordingly. There was no dispute about the fact of her being taken to jail, or of the defendants’ connection with the transaction.
The ordinance, the complaint and subsequent proceedings before Hill as justice, including the warrant of arrest, the judgment and the warrant of commitment, were given in evidence, and Howard’s agency in the arrest and final commitment appeared and were not disputed.
The ordinance is entitled “Ordinance No. 2, relating to the impounding of animals and fowls;” and the 6th section, on which the complaint was based, reads as follows: “Sec. 6. Any person who shall rescue, or attempt to rescue any animal or fowl from said pound or pound-master, shall be punished by a fine not less than ten dollars nor more than fifty dollars and cost of suit for each offense, or by imprisonment in county jail of Kent county not to exceed ninety days, or both such fine and imprisonment, in the discretion of the court convicting such offender.”
This ordinance • appears to be warranted by the charter. —Laws 1871, Vol. 2, p. 512, Sec. 31, clause 18 j also, sections 49, 50, 51, 52, 55; and the objection that it was not proved has no apparent tenability. — § 5953 O. L. No substantial objection to the complaint has been pointed out. —Section 55 of the charter.
The warrant of arrest was not regular. The charter (§ 50) seems to contemplate a proce.ss in such a case agreeing substantially with the warrant of arrest prescribed in the statute giving justices of the peace criminal jurisdiction. — § 5526 C. L. But the warrant in question was a considerable departure. It required the marshal to take Mrs. Sheldon and have her forthwith before the justice at his office, to answer a complaint filed against her on behalf of the village of Cedar Springs, for an alleged violation of section six of ah ordinance of the village relating to the impounding of animals and fowls, in a plea of debt for the penalty, to their damage of fifty dollars, and after'the arrest to notify the plaintiff thereof. Being taken before the justice on this paper, she was required to plead to the complaint. This was hardly regular. The charge as stated in the warrant should have been read to her, and she should have been required to plead to that, and not to the original complaint. —§ 50 of the charter, and § 5529, C. L. Passing these irregularities we come to the judgment. The record made by the justice himself, as shown by the defense, reads as follows: “ May 12, six o’clock in the afternoon. Suit called; D. C. Lyle appeared for the village. The defendant in court, the complaint read, to which the defendant pleaded guilty to the charge set forth in the complaint, to wit: of having on the tenth day of May, 1874, broken open the village pound in Cedar Springs, and rescuing therefrom one cow in violation of said ordinance; T, therefore, the said justice, did adjudge that for the said offense, the said Eliza Sheldon should pay a fine of ten dollars and costs of suit, which amounted to the sum of three dollars, and in default of payment to be at once committed to the county jail for ten days; which fine the defendant refused to pay, therefore the defendant was committed. Fine ten dollars, cost three dollars. May 12, 1874.
' “ (Signed) N. R. Hill, Justice of the Peace.”
Immediately after the giving of judgment, the mittimus was made out, directed to “the marshal of the village of Cedar Springs, or any constable of the township of Solon, or Nelson, Kent county, Michigan, and to the keeper of the common jail of said county,” and after reciting the conviction and judgment and default in payment, it proceeded to require the marshal, or any of the before mentioned constables, in the name of the people of the state of Michigan, to forthwith convey the present plaintiff into the custody of the keeper of the jail, and the keeper to receive her into his custody and there safely keep her until the expiration of ten days, or until she should be discharged by due course of law.
The defendant Howard, as before stated, took the plaintiff on this precept and conveyed her to jail, where she was kept for some time under it.
The judgment was not warranted by the ordinance or charter. The former could not go further than the latter, and it does not purport to do so. By the charter the council were empowered to impose a fine or imprisonment or both, but no authority is given to adjudge the payment of a fine and the immediate imprisonment of the offender in case of non-payment. The charter not only does not give any such power, but it takes pains to exclude it. The power given to the council to enact the punishment is found in §§ 52 and 54, and the latter expressly provides that the execution, and which may be issued immediately on rendition of judgment, “shall command the amount to be made of the property of the defendant, if any such can be found, and if not, then to commit the defendant to prison if it be so adjudged, and according to law.” A provision immediately follows for those cases where a fine and imprisonment are both positive ingredients of the judgment, but it has no application here, where the imprisonment was only adjudged as a means to enforce payment, or as an alternative to be inflicted upon the contingency of non-payment at the very time of judgment.
The execution intended to be authorized in case of fine and when imprisonment is not made an absolute ingredient of the judgment, is similar to that provided to be issued against civil debtors whose bodies may be taken, in so far as the requirement involves an endeavor in the first instance to make the fine and costs out of property. — § 5387, C. L. The judgment was void. There was no law to authorize a judgment that in case the defendant did not pay the fine and costs she should be at once committed to the county jail for ten days, or for any other period.
The execution or mittimus was also void upon its face on the same ground, and it afforded no protection to the marshal. It may be well to notice also that it was wrongly directed. It should have been directed to the marshal of the village of Cedar Springs. The charter is express. — § 55. How far this irregularity might affect it, if otherwise unobjectionable, it is needless to consider.
These proceedings, then, afforded no justification whatever to either defendant, and the plaintiff was entitled to have the jury instructed in substance as asked in her fourth request, and the charge given was of course erroneous. Several other questions were agitated on the argument, but some of them have no force, and we do not deem it needful to discuss the others.
The judgment must be reversed, with costs, and a now trial ordered.
The other Justices concurred. | [
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Mahston, J:
The complainant filed its bill to restrain defendant from erecting a wooden building within certain established fire limits contrary to the provisions of an ordinance, a copy of which as set forth in the bill was as follows: “No. 1.
The board of trustees of the village of St. Johns ordain, that there shall not be built, enlarged or placed upon any lot or part of a lot fronting on Clinton avenue, between Bailroad and State streets, any wooden or wooden roofed building.” The answer admitted that a resolution which the board of trustees termed an ordinance had been adopted, and there was no proof introduced on the subject, the case being permitted to stand in this ’respect upon the statement in the bill as admitted in the answer.
A court in chancery has no jurisdiction to restrain the threatened violation of a village ordinance, unless the act threatened to be done, if carried out, would be a nuisance. If it were otherwise, the court might be called upon in all classes of cases to restrain the doing of acts prohibited by statute. — Mayor, etc., v. Thorne, 7 Paige, 261; Att'y Gen. v. Utica Ins. Co., 2 Johns. Ch., 370.
The erection of a wooden building within the limits of a city or village is not in and of itself a nuisance. Neither does the fact that the erection of such is prohibited by ordinance make it a nuisance. If this were so, then the doing of any act prohibited by law would, upon the same reasoning, be a nuisance. The act, if prohibited, would be illegal; but something more than mere illegality is required to give this court jurisdiction. It was, however, insisted that the erection of a wooden building in a thickly settled portion of a village increases the danger in case of fire, and thereby injures adjoining property.' There are, however, many kinds of trades and occupations, some of them prohibited by law, which, when carried on, equally tend to injure adjoining-property, yet no one would contend that a court of chancery should interfere by injunction. It was also claimed that if the relief prayed for was refused there was no other adequate remedy, and that therefore the court ought to grant relief. This may be true under the ordinance set forth. That the legislature, however, can give the village power to establish fire limits and enforce obedience thereto was not denied, and could not well be. If' a proper ordinance was framed with an appropriate penalty for all violations of its provisions, we think the remedy at law would be found adequate. The fact that the remedy was not adequate in this particular case, on account of the ordinance not being sufficiently stringent in its provisions, cannot give this court jurisdiction to interfere.
The decree of the court below must be affirmed, with costs.
The other Justices concurred. | [
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Cooley, Ch. J:
The plaintiff, as administratrix, has recovered against the defendant a judgment for damages occasioned by the killing of the intestate, who was a servant in defendant’s employ. The accident occurred while the intestate was engaged in coupling two cars, one of which was lower than the other, rendering the act of coupling peculiarly difficult and dangerous. The gravamen of the complaint is, the negligence of defendant in making use of this low car, and subjecting its servants to the consequent risks. It is not claimed that the difficulty and danger were unknown to the intestate; on the contrary, much evidence was given on the part of the plaintiff to show that the danger was well understood by the intestate, and that the car had a bad reputation among the employes of defendant. "What the bad reputation was for does not very distinctly appear, though the evidence tends to show that it was rather because its construction, — it being an old mail car, — made it inconvenient for use, than for any other reason. This, however, is not very material. No question is made but that any difficulty that existed in coupling the car was understood by the intestate.
The question in the record is, whether there was any evidence tending to establish a claim against the defendant. On the argument it has been assumed on both sides that the rule of law which leaves the servant to bear the consequences of all the ordinary risks incident to his employment ought to remain undisturbed. Both parties rely upon the case of Davis v. Detroit & Milwaukee R. R. Co., 20 Mich., 105, in which that rule was examined and approved, as a rule reasonable in itself as it affected the particular relation of employer and employed, and as being also an important rule of public policy in its tendency to ensure caution and vigilance on the part of persons employed.
The plaintiff relies upon exceptions to that rule and claims to recover on the ground, either that the defendant was guilty of a breach of duty to its employes in making use of a dangerous vehicle, or that it was culpable in not discontinuing its use in accordance with what were equivalent to assurances to the persons employed that the car should be replaced by another. If the evidence tends to show a breach of duty in either of these particulars, it is insisted there was a case for the jury based upon the negligence of the employer, the risks of which the employed is never understood to assume.
Undoubtedly a servant has a right to repose confidence in the prudence and caution of his employer, and .to rely tqpon his not putting him in charge of implements which, from improper construction or other cause, are so dangerous that a prudent man would not-make use of them. If the servant is injured in consequence of this confidence being-abused, he ought to be remunerated. But where the difficulties in the case are fully known to him, and he undertakes the employment, or continues in it without protest, and makes use of the implement without there being in the case any thing in the nature of compulsion, it is a serious question whether his case is within the reason of recognized exceptions to the general rule. This, however, is a suggestion which will be passed over without discussion at this time.
The car which was the cause of the injury in this case was not in itself dangerous, or unfit for use. In coupling it with other cars peculiar caution was requisite, making it more liable to cause injury than would be a car of more modern construction. Its use, therefore, made the employment more dangerous than it otherwise would be. In that particular the case may be compared to that of a farmer, who, with knowledge on the part of himself and those in his employ, that a horse he has had in use is disposed to be fractious and unmanageable, continues nevertheless to use him in his business. It may be compared to that of the merchant who continues to make use of a fluid for light, when something else which is within his reach has been demonstrated by experience to be safer. So far as we can perceive, the case of the manfacturer would not be different in principle, who should continue the use of a building which, in the event of a conflagration, would subject his employes to greater risks than would one of different construction. Comparisons innumerable might be made with this case in all the avocations of life.
Now any rule on this subject must be a general rule, and not one to be applied to railroad companies alone. It will be perceived that the risk in the case was such as would .affect only the person employed, and that whatever duty was imposed by the circumstances upon any one, could have had reference only to such persons. The case is consequently divested of any question except such as would concern the relation of master and servant, and the same rule would govern the case that would govern were the question to arise between the farmer, the mechanic, or the manufacturer, and the persons in his employ. And treating it as a question of such broad application, we do not perceive any ground upon which the plaintiff’s case can safely bo planted, which comes short of this: that the employer is under obligation to his servants under all circumstances to make use of the safest known appliances and instruments, and is responsible for any failure to discard what is not such, and to its place with something safer.
Any doctrine so far reaching as this would manifestly be destructive of the general rule, and would almost make the employer the guarantor of his servant’s safety in his employ. But under any loss serious responsibility, it would be impossible to sustain a judgment against this defendant, upon the sole ground of a failure to discontinue the use of this car. In any light in which the question can be viewed, no breach of duty can be charged against the defendant, unless it be the duty to make the employment as safe for the persons employed as was possible. Certainly, in making use of this car no confidence which was reposed in the prudence and caution of the employer has been betrayed. difficulties, as has already been stated, were fully known and understood, and the intestate voluntarily continued to encounter the risks.
On the other ground wo find it equally difficult to discover what there- was to go to the jury. It was not shown that any complaint was made to the company, or its superintendent, that there was danger in the use of the car, or that any assurances were given that the use would be discontinued. There is no ground in the evidence for a' suggestion that the intestate continued in the business because of assurances from any person in authority, that this car would be taken off. There is some testimony of complaint made to the mechanic in charge of the Michigan Central car shops at Jackson, where the defendant had its repairs made, and of a reply made by him, that the car ought not to be made use of for coupling with the coupler on the other cars; but obviously there was nothing in this to charge the defendant with any assurances, or to affect the case in any manner.
The judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Graves, J:
From about the last of April or first of May, 1873, dur ing the season, defendant in error ran a shingle mill, and he sued plaintiffs in error for his services and got judgment, and they asked to have it reversed for rulings at the. trial. He claimed that he worked the mill under an express contract made the last of April with the plaintiffs in error,, who were partners, or appeared to be such, and that he thus contracted through Briggs alone, who told him they were in partnership, and upon which statement he relied. Bobinson and Briggs denied that they were partners at the time in question, and insisted that the former partnership, connection between them was dissolved on the 21st of December, 1872, and that Worden had notice the partnership was not subsisting. Briggs also denied that he told Worden the partnership with Bobinson was existing, and denied that he assumed to contract otherwise than in his individual character. Much evidence was adduced to prove and disprove the existence of the partnership in April, and prior and subsequent thereto, and in regard to publicity and notice of dissolution, and to affect Worden with notice that there was no partnership and that Briggs was going on alone. As tending to show such notice, plaintiffs in error offered in evidence a series of reports, beginning very early in May, 1873, and extending into October, made under oath by one Hayes to the boom company, and purporting to show the scalage of the logs at the shingle mill, and in which reports the mill was described as the “A. W. Briggs” mill, and not as one being run by a firm. Prior to December, 1872, it had been run by A. W. Briggs & Co., and which firm was then composed of plaintiffs in error. This offer of proof was accompanied by a further offer to prove that Hayes in making these reports acted as Worden’s agent. The court sustained an objection to the offer. Evidence was subsequently given tending to show that Hayes was employed by Worden to make these reports, and was in his service in making them, but that the object of making them was to enable Briggs (not plaintiffs in error) to settle with the boom company for boom charges. In the same con nection there was evidence tending to show that the scaling and .making returns was part of the running expenses of the mill, and that the business of the scaler was to dog the logs, haul them in, scale them, and make returns to the boom company. After this and some further testimony, plaintiffs in error again offered the scaler’s reports, and they were again «excluded on objection.
This rejected evidence was not strong, and was open to an interpretation by the jury which would leave it without any force whatever. At the same time, it was susceptible in its nature, and under the actual circumstances, of a construction and application to help somewhat the side of the ease occupied by plaintiffs in error, and we cannot assume the jury would' have given it one construction or application rather than another. It was susceptible of a tendency or bearing in some degree to show that Worden had notice, or was aware that the mill business was carried on on Brigg’s individual account, and not by or on account of the former firm; and according to one construction of it, it had some tendency to corroborate the testimony of Briggs and Bobinson, and detract from the credit of that given by Worden. It may be that the mill bore the name “A. W. Briggs,” .and that the reports had been made out in the same way when Bobinson was confessedly a partner, and before Worden began to run the mill; but all this would be for the jury to settle, and not for the court on an offer of proof. No satisfactory reason is perceived to justify the refusal to receive and submit the evidence to the jury for their construction and use, and in view of the peculiarities of the «case it is quite impossible to say as matter of law that its rejection ivas not prejudicial. As the record is constituted, it is not prudent to discuss the other .points, and it is more than probable the facts will not appear again as now. For the error mentioned, the judgment should be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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The Court
denied the writ on the ground that the statement of the counsel, that the party is by said act placed outside the town limits, shows prima facie that he is not treasurer and that he has no right to the moneys. | [
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Grates, J:
The plaintiff, a child, was in August, 1869, taken as a passenger on the East Saginaw city railway, and whilst being carried as such passenger was severely hurt through the negligence of the company’s conductor. Eor such injury an action was brought against the company, and on the 5th of March, 1873, the plaintiff obtained judgment for damages five thousand five hundred dollars and costs taxed at ninety-five dollars and sixty-six cents.
The corporation then brought the case'here on writ of error, and we affirmed the judgment in July of the same year. — 27 Mich., 603. An execution was issued and returned nulla bona, and the plaintiff, having thus failed to collect of the corporation, instituted this action against Brown to enforce collection of him as owner and holder of a considerable amount of unpaid capital stock, and the jury having found against the plaintiff by express direction of the court, he now claims a revision of the proceedings on writ of error and bill of exceptions. The suit, of course, does not assume to proceed for a common-law cause of action against Brpwn, but is prosecuted again st him on the strength of certain provisions of the act under which the company were incorporated, and being the amended act of February 13th, 1855, entitled “ an act to provide for the construction of train railways.” — Ch. 76, C. L.
The main question is, whether the claim of a passenger under such circumstances, after judgment against the carrier and execution returned unsatisfied, affords a ground of action against the stockholder. All admit that the point depends upon the construction due the provisions before mentioned, and these provisions are found in the eighteenth and twentieth sections of the act.
• The, eighteenth section reads as follows: “The stockholders of every company incorporated under this act shall be jointly and severally liable in their individual capacity for all labor performed for such company; and shall also be liable for the debts of such company, for an amount equal to the amount of any unpaid stock in such company, held by them at the time such debt was contracted and suit commenced thereon, to be recovered of any stockholder who is such when the debt is contracted, or any subsequent stockholder.”
The nineteenth section makes directors and stockholders jointly and severally liable for existing company debts, and debts afterwards contracted whilst such directors continue in office and the others remain stockholders, in case the directors declare or pay a dividend when the company is insolvent, or when the payment would either render it insolvent or diminish the amount of capital stock. Then comes the twentieth section, which reads as follows:
“But no suit shall be brought against any individual stockholder for any debt of such company as provided in the last two preceding sections, until judgment on the demand shall have been obtained against the company, and execution thereon returned unsatisfied in whole or in part, or until the company shall have been dissolved; and any stockholder who may have paid any debt of such company, either voluntarily or by compulsion, shall have a right to sue and recover of such company the full amount thereof, with interest, costs and expenses; and any such stockholder, who may have paid as aforesaid, shall have a right to bring an action against, and recover of the rest of the stockholders, or any one or more of them, the due proportion thereof which such stockholder or stockholders ought to pay; and if such action for contribution shall be brought against more than one stockholder, the judgment and the execution thereon shall specify the amount to be recovered and collected from each defendant.”
As understood, the position of plaintiff.’s counsel is, that it makes no difference in respect to the right to sue the stockholder, whether the cause of action against the company is a pure tort, committed by the company through its servants, or one sounding exclusively in contract; and that the judgment recovered against the company is conclusive, or at least prima facie sufficient, to ground an action against the stockholders under the provisions in question.
On the other hand, defendant’s counsel insists, that the cause of action against stockholders is identical with that against the corporation, and that to bring stockholders under individual liability the cause of action must be a debt contracted by the corporation, and not a liability of the company arising from the tortious conduct of company agents or servants, and that a judgment recovered against the corporation for such tortious conduct is not a debt contracted to bind stockholders as individual debtors. In the few cases found in which courts have considered similar provisions there would seem to have been much diversity of opinion. And looking at the question which arises here, and the shape it assumes under the influence of the facts which have a bearing, it appears to me that the authorities cited by counsel do not offer forcible aids. Hence in forming an opinion on the precise case to be decided, it is the better way to read the foregoing provisions as we think they were intended to be read, and then apply them to the actual facts.
In pursuing this course we must suppose that the mind of the legislature being specially drawn to the subject of departing from the regulations of the common law in regard to the liability of corporators, and conceiving a purpose to make certain members responsible for company liabilities, the extent of the departure and the class of liabilities, if less than all, and the limitations and conditions, if any, would naturally be indicated with some distinctness, and we should expect to find in the terms and arrangement of the statute, without straining or refinement, the real sense of the legislature. Whether in our judgment the legislature went too far, or did not go far enough, is not for us to consider. The scope of our duty is to ascertain just how far the law makers went, and then to pause precisely where they did. In studying the provisions here with this object, we are forced to think that the expressions used to denote the conditions of the stockholders’ liability are to be taken in their natural and ordinary sense.
Passing these general remarks, we are to consider, in the first place, whether it was meant that a judgment, for whatever cause, against the company should be deemed in itself a definite ground of action against • the stockholder. The plain language of the law appears to negative any such purpose. Tlie cause of action against the stockholder is made identical with that against the company. The original dolt or demand against the company is what the stockholder is made liable for, and not something of a different nature. In regard to this there is no ambiguity. The idea is never departed from. The right to sue the stockholder is just as broad, or more precisely, the causes of action on which, he may be held are just the same, in case the corporation is dissolved, as in case it is not, and in all instances where the corporation is dissolved, care is taken to dispense expressly with the condition requiring judgment to be first obtained against the company. Accordingly in such cases no judgment could exist to sue upon, and the original cause of action would have to be resorted to. The statute throughout assumes the existence of a cause of action against the stockholders prior to judgment against the company, and in case the corporation is not dissolved, requires the proceedings against the company as preliminary to a suit against the stockholder, not to bring into existence a cause of action against him, but, among other things, to collect of the corporation itself, if practicable, before going against the stockholder. -The fundamental ground of action against the stockholder is, then, the original cause of action against the company, and the proceedings against the corporation, when it is not dissolved, are matters of inducement. Had it been intended to make every unsatisfied judgment against the corporation, for whatever cause, a ground of action in itself against the stockholder individually, the terms and arrangement, we must suppose, would have been different'.’ Moreover^ as will appear, the intrinsic nature of the liability of the corporation before judgment against it, is made a criterion for the stockholders’ secondary liability, and any such arrangement would be absurd if the recovery itself against the company had been fixed upon as constituting the source of this liability of the stockholders. It is perhaps unnecessary in this case to decide what force the judgment against the corporation should have on the trial against the stockholder; but there is room for contending that the statute recognizes as a principle, that where the judgment is obtained without fraud or collusion between the company and the claimant, the existing stockholders are represented by the company, and bound by the judgment, in regard to the liability of the company and the amount, and that the controversy concerning the original liability should not be open to litigation by stockholders, after a determination against their representative, the company. Some analogy is perceived between such a case and that where a judgment creditor who has exhausted his remedy at law proceeds by creditor’s bill. True it is not close. In view of the scheme as it stands enacted, it would seem requisite that the question as to whether the cause of action adjudicated was of a nature to involve the stockholders under the statute, and whether the conditions as to ownership of stock, and the fact of such ownership at the times specified, existed, should be considered open. And of course if the proceedings against the corporation should appear to be tainted by fraud or collusion between the claimant and the corporation, the judgment would not be good as inducement, or as an adjudication to fix the" liability of the stockholder through it, or to fix the amount, and the suit against the stockholder would fail inevitably.
We may secondly consider whether the plaintiff’s claim against the corporation in its un adjudicated state was intrinsically a debt contracted by the corporation. Because if it was, he had a contingent right of action, by force of the statute, against Brown as holder and -owner of unpaid stock; and if it was not, he had no such right.
In observing upon this point we cannot help seeing that the legislature evidently designed to limit the liability of stockholders to a portion only of the kinds of liabilities the company would be subject to incur; that necessarily contemplating there would be claims arising out of - contract, and also out of wrongful and tortious acts, and deciding to provide that for some of these liabilities the stockholders should be individually responsible, but not for all, the legislature proceeded to word the provisions as we find them. Instead of enacting in general terms that stockholders should be individually responsible for all valid claims against the corporation, to one extent or another, the legislature cautiously and guardedly specified charges for labor, and claims for debts contracted. Certainly it must be admitted that in thus casting personal responsibility upon stockholders on account of particular causes of action, it was designed they should remain not responsible for others; and in order to find what kinds were meant to be left out, we must follow the description of the causes of action brought in, and to be met by stockholders. Except where dividends are improperly declared or paid, the right to go against stockholders is authorized only in cases of demands for labor performed, and in cases of debts contracted. All these are purely matters of contract, and no claim founded on pure tort is embraced; and if not embraced, it is excluded. The conclusion is then warranted that the legislature, foreseeing that corporations would be subject to incur liabilities upon contract, and also for pure torts, were minded to not extend the remedy against stockholders, in their individual character, to- the latter.
The law then draws a line and fixes a limit, and that line excludes claims springing directly from a pure tort.
For example, suppose a person entitled to do so had attempted to cross .the railway track, and, although himself exercising due care, had been run against and injured by the cars by means of the admitted negligence of the company. Had such a case happened, the injured person would have had no eventual remedy against stockholders in their individual character, on the strength of the provisions we are- considering. His cause of action against the corporation would not have consisted of, or rested on, a debt contracted. It would have been for a plain tort and without any thing of contract inducing it, and without any mixture or shading oí contract in'or connected with it. It would have been as clear of any ingredient, badge or color of contract as a naked assault would be. A legal liability would have existed, but it would be a gross abuse of terms to call it a debt contracted. — Fox v. Hills, 1 Conn., 295.
But the original cause of action of the plaintiff against the corporation in the present case was a different one in its surroundings, in its antecedent and concomitant facts, and it is this difference which causes all the difficulty there is.
A contract relation did actually exist between the plaintiff and the corporation, and the claim of the plaintiff, and the liability of the corporation, were caused by conduct of servants of the corporation in the course of performance of the company’s undertaking. This conduct was at the same time a breach of the contract and a tort.
The company wore carriers of passengers, and the plaintiff was being carried by them upon an undertaking to carry him safely. They did not carry him safely, but, on the contrary, caused him a severe personal injury. For that .injury he was at liberty to sue, either in assumpsit for the breach of contract, or specially on the case upon the negligence of the company. And it may be. said with some reason that the distinction between the form of action and the cause of action should be borne in mind, and that the case ought not to be varied because the law allowed a remedy in form ex delicto as well as ex contractu. On the first view of the subject I was not satisfied that the plaintiff’s claim might not be considered, on the theory hero indicated, a debt contracted, within the sense of the statute, but a closer inspection of the subject has removed that impression.
It is certainly correct to say, that the circumstance that the plaintiff’s grievance was of such character that the law gave him an option as to the form of remedy, and allowed him to proceed in assumpsit or special case, and that the same facts were adducible and proper to support either form, cannot rule the question, or lead to a solution of it. And it is equally true that the circumstance that the wrong was done in the course of carrying out, and in the way of carrying out, a contract which subsisted between, the plaintiff and the corporation, and that such wrong in itself constituted a breach of the contract, will not suffice to settle the point. The intrinsic nature of the specific matter standing as the cause of action, or the gist of it, would remain the same, whatever the form of remedy, and the specific wrong, whether consisting of negligence or blows, would still be tortious in its own nature, though amounting to a breach of contract at the same time. Viewed from any side it would be a tort. True, the plaintiff at his election would be at liberty to use it in evidence to prove a breach of contract, but not because in its own nature it would prove nothing more. A clerk under contract with his employer to render honest service may break his agreement and make himself liable therefor by an act of embezzlement, but the criminal act will not be shorn of any of its criminal features on account of the special agreement to render honest service.
Keeping in mind the abstract quality of the fact on which the right of the plaintiff to call on the company for redress depended, and passing the artificial methods of redress, and also the circumstance that the fact of injury was done in the course of carrying out the company’s undertaking, we are enabled to perceive clearly that it was a downright tort which called for atonement, for satisfaction, and was not a contracted debt, to be collected if practicable from the company as promissor, and if not practicable, then from stockholders.
There was a liability of the corporation for a real wrong, a tort in a setting of contract, and the plaintiff had the right to enforce such liability in any form of procedure which by law was open to him. He was in a situation to obtain, not a debt the company had engaged for, but such damages for the tortious injury done to him as a jury might find it just and reasonable to award. The enforcement of payment of a contracted debt through a suit at common law is quite similar in principle, when fictions and artificial dis tinctions are put aside, to enforcement of specific performance in equity, but the enforcement of a liability caused by a real tort is wholly dissimilar. In the former case the obligation to be coerced is something which is the primary, direct and immediate end of express or implied agreement, whilst in the latter the liability is for damages which the law considers, not as the primary and immediate end of an agreement, but as something secondary and consequential, — a satisfaction for a wrong done. Whatever the form of remedy, the actionable grievance in the one case is not one of those transgressions of right which the law permits the injured party to sue for in tort, whilst in the other, the grievance is one where the constituent facts fix its intrinsic character, and show it to be-such a transgression of right as amounts to a tort, and is suable as such. The grievance of the plaintiff was of this latter kind, and its nature would remain the same-however the pleader might see fit to use the facts in choosing a form of remedy. Undoubtedly the nature, of the remedy chosen would control in regard to many remedial incidents, but this matter is quite aside from the present consideration.
No doubt the case is a hard one, but we cannot extend the stockholders’ liability further than the legislature have done. Whether the actual circumstances will warrant any mode of proceeding other than an execution, suited to bring about a satisfaction of the judgment, we are not called on to consider.
The judgment is affirmed, with costs.
The other Justices concurred. | [
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Graves, J:
Turner was convicted in June, 1875, in the circuit court for Huron county, upon a charge of rape on Emma Thompson in May, 1874, and is now undergoing sentence given on such conviction.
On arraignment in the circuit court, and before pleading, he moved to quash the information on the following grounds, in substance:
First, That he had never been examined on the specific charge set out, or had waived his right to be examined in regard thereto;
Second, That there had been no finding made by an examining officer that the offense described had been committed, nor any adjudication or finding by any such officer that he, Turner, was probably guilty of such offense, nor any determination requiring him to appear and answer to a charge therefor before the circuit court.
As matter of fact, he had been examined before a justice of the peace, under a complaint and warrant imputing to him a charge of rape upon Emma Thompson, named in the information, and these proceedings having been certified by the justice to the circuit court and there filed, the prosecuting attorney had based the information upon them. And on presenting the motion to quash, these proceedings were relied on by the plaintiff in error as evidence to support the motion, and his counsel read the complaint and warrant of arrest, the return made by the justice, and a portion of the examinations to establish the correctness of his position.
The court overruled the motion and required the plaintiff in error to plead, and he thereupon pleaded not guilty. On the coming in of the verdict, a motion in arrest of judgment was made, based upon the same ground as the motion to quash, and this the court likewise overruled. These, and other rulings, made in charging the jury, are now before us in a bill of exceptions brought up on writ of error. As the two motions raise the same questions, there is no need for separate consideration.
The grounds of the motions, in the form in which they were stated, were deductions of the mover, and the true points contended for can hardly be apprehended without explanation; and this can only be obtained with fullness by recurring to the brief and arguments.
As already -intimated, the plaintiff in error practically .asserted that there had been a complaint, a warrant of arrest and an examination. The real claim was, that these proceedings were defective and were not competent to be a basis for an information charging an offense on May o, 1874.
The substance of the argument may be indicated by three propositions:
First, It was indispensably necessary that the complaint' prior to the warrant should distinguish and charge the precise criminal act, to be followed up by a warrant and examination, and that the subsequent examination was required to be exclusively referred to such charge, and the respondent was not liable to be held, in consequence of the proceedings, for any other charge; that neither the complaint nor examination marked out a charge as one on which Turner was to be held for an act done on May 5, 1874;
Second, If the complaint was valid to support an examination for any specific criminal fact, it could be so deemed only by considering it as identifying and alleging an offense on the 4th of January, 1873, and the.'complaint being thus construed, the whole examination of Turner was required to be confined, and must be referred to the specific transaction so pointed out, and it could not have been legally extended, and cannot be referred to a transaction of a later date by several months;
Third, It was indispensable for the legal completion and shaping of the proceedings to warrant an information, that the justice should have found that the specific offense alleged had been committed, and that there was probable cause to believe that Turner committed -it. It was likewise necessary that such findings should bo certified to the circuit court by the justice.
Assuming for the present that the proceedings before the justice were not impeachable for any thing suggested in the first and second propositions, but were a sufficient foundation for the information notwithstanding, it is then, we think, pretty clear that the objection implied by the last proposition was unwarranted.
The statute requires the justice, after “ an examination of the whole matter,” to come to an opinion as to whether or not an offense has been committed, and if of opinion that there has been, then as to whether there is probable cause to believe the accused guilty thereof, and thereupon to discharge or hold him to answer, according to the conclusion reached. — §§ 7859, 7860, C. L. But no record of a specific finding one way or the other is required to be kept or certified to the circuit court. If on “examination of the whole matter” it appears to the justice that an offense not cognizable by him has been committed, and that there is probable cause to believe the accused guilty, it is then the duty of the justice, if the case is bailable by him and sufficient bail is offered, to accept it and discharge the accused; and on the other hand, if the offense is not thus bailable, or being- thus bailable if no sufficient bail is tendered, it is then the duty of the justice to commit the accused for trial.
In case the accused is held for trial the justice is required to “forthwith certify and return all examinations and recognizances” to the clerk of the court where the accused is bound to appear, and in case of failure the court' is expressly authorized to compel return. — § 7867, C. L. In case the justice commits for want of bail, he is commanded to certify on the mittimus the sum for which bail was required.— § 7875, C. L.
This mittimus would naturally recite the conclusion reached on examination, but the mittimus is not an authority for filing an information. It is simply an authority to the sheriff and jailer to receive and hold the accused, and it is not to be filed in court or with the clerk. When the examinations and recognizances given by the accused and by witnesses are certified and returned, the statute is satisfied, and if bail is given, a return of the recognizance affords strong-record evidence of the conclusion which the justice must have reached. The fact of taking bail imports the decision of the justice, and the fact of giving it imports a recognition of it by the accused. In the present case the plaintiff in error gave bail, and the justice certified the examinations.
The next point relates to the necessity of setting out in formal and distinct terms in the complaint the precise criminal act to be inquired into and prosecuted.
When, as in this instance, the complaint concerns am offense not triable by a justice, no such formality as the* objection supposed is at all necessary. The statute does not intend it, and the nature of the proceeding makes against; the propriety of exacting such formalities.
The fact itself of a complaint is needed to set the law in motion; but the statute does not prescribe any form in which the complaint must be made, and does not, in terms at least, even require that it shall be made- in writing. Apart from some exceptional cases, as for adultery, it may proceed from any one, however illiterate or however unversed; in the forms of procedure, who is able from acquaintance: with facts to inform the magistrate that some particular;crime a justice cannot try has been committed. Indeed,,, except in respect to special cases, as before mentioned, the law makes it the duty of every one, however unskilled in technical knowledge or uneducated, to inform against criminals, and failure to perform the duty cannot be answered by setting up inability to describe crime in the language of the law, or inability to read and write. Upon the fact of a complaint, the magistrate is moved to act. Then he must examine on oath the complainant and witnesses produced, to> ascertain the truth, to develop, particulars and find out. whether there is proper cause, and if so, of what nature,, for the issuance of a warrant. • ’Whether there is ground for a warrant, and if so, for what, is not supposed to be necessarily made known by the complaint, and the law does not assume that the complaint must fix and control the after proceedings in regard to the title of the offense, or the date of it. — People v. Annis, 13 Mich., 511. The examination on oath, which immediately follows and is required as a consequence of the complaint, is the proceeding which the: statute looks upon as the one to guide the magistrate in.: deciding whether a warrant ought to issue or not, and if so, for what. — People v. Lynch, 29 Mich., 274; Pardee v. Smith, 27 Mich., 33. The statute says expressly that “if it shall appear from such examination that any criminal offense not cognizable by a justice of the peace has been committed, the magistrate shall issue a warrant,” etc., “reciting the substance of the accusation,” etc. — § 7845, C. L.
True it may often happen that the complaint is at once reduced to writing, and that the examination preceding the warrant is combined, but the admissibility and reasonableness of such a course cannot add to or change the legal significance and requisites of a complaint. — §§ 7844, 7845, 7855, 7859, 7860, C. L.; and §§ 2, 3, 13, 20, 21, of Tit. 2, Pt. 4, ch. 2, N. Y. R. S. of 1830; Stewart v. Hawley, 21 Wend., 552; Payne v. Barnes, 5 Barb., 465; People v. Hicks, 15 Barb., 153.
Another circumstance tends to show the nature and office the legislature ascribed to the complaint and other proceedings prior to the warrant. The law contemplates that there is no necessity that the magistrate who examines after the arrest, ’and who must decide whether the accused shall be held or not, should have before him the complaint or any of the proceedings prior to the warrant. Because it is expressly-provided that if the magistrate who issues the warrant is absent or unable to attend, the accused shall be taken before some other magistrate of the same county, and that the warrant, with a proper return thereon, signed by the person who made the arrest, shall be delivered to the magistrate. — §§ 7850, 7851, C. L. The law here contemplates that the warrant will contain the substance of the accusation as shown by the examination made before its issue. — § 7845, C. L. With the exception of some few amendments not material to the present inquiry, this chapter for the arrest and examination of offenders was made before the law of 1859 allowing criminal prosecutions on information, and it was established as a branch of a system of criminal procedure which did not permit one held on examination for a criminal offense to be arraigned for trial until after an investigation by a grand jury, and an accusation by that tribunal through the form of an indictment. In view of such an arrangement, there could be no pretense for requiring any thing technical in the structure of the proceeding to initiate the first inquiry, and which at the most could only eventuate in holding the party subject to the action of a grand jury. The fact that the intervention of. that tribunal is now made not essential cannot add, however, to the legal provisions as to the form and function of the preliminary complaint. The law is' set in motion, and the magistrate caused to act, in the same way npw in the first stage as when the accused could be tried only after indictment.
The remaining question raised by'the motions is, whether upon the strength of the examinations returned the' prosecuting attorney was authorized to inform for the act described in the information.
The statute provides that no information shall be filed against any person for any offense until such person shall have had a preliminary examination as provided by law, unless the right thereto is waived. — S. L. 1859, pp. 391, 393, § 8. And it provides likewise that the prosecuting attorney shall inquire and make full examination of all the facts and circumstances connected With any case of preliminary examination touching the commission of any offense, and in case he determines that an information ought .not to be filed, he shall file with the clerk his statement of reasons in law and fact for not informing,, “provided that in such case such court may examine said statement, together with the evidence filed in the case, and if upon such examination the court shall not be satisfied with said statement, the prosecuting attorney shall be directed by the court to file the “proper information and bring the case to trial.” — § 6 of act of 1859, as amended in 1863, S. L. 1863, p. 279.
In the present case the prosecuting attorney decided to inform for the offense set up in the information, and the court, on the motion to quash, decided that the “evidence filed in the case” authorized it.
If it appears, however, that as to the offense charged in the information there had been no preliminary examination, then it was not competent to inform for it, and the prosecuting attorney and the court were equally at fault.
But in order to ascertain how this is, we can only have* recourse to the “examinations,” or in the equivalent terms of the proviso, to the “evidence filed in the case.” Because no other matter of evidence is required to be returned and filed (§ 7867, C. L.), and it is to such evidence the prosecuting attorney is plainly referred in order to shape his information, and the same evidence which is to govern the court when, directing, a “proper” information to be filed. All the regulations point to it as the evidence to discriminate the criminal act to.be laid, and to disclose its class and character. Indeed,, on this subject the law appears clear when the various provisions are examined and compared.
Before proceeding to introduce the charge as preferred in the information, or any of the “examinations” or “evi~dencc” certified and returned by the justice, it seems proper to advert to the views heretofore expressed by this court in four o.r five cases in regard to the nature and purpose of' these examinations, and the construction they should receive.
It was observed in Hamilton v. The People, 29 Mich., 173, 176, that “the justice in these examinations does not. act judicially in the technical sense, but in his capacity of a conservator of the peace, and the proceeding is one which at common law was conducted very much at discretion.” In People v. Lynch, 29 Mich., 274-9, the court say in regard to the examination after warrant, that “the object of' that examination is, not to determine the guilt or innocence of the accused, as upon a trial, but whether there is probable cause for believing him guilty; and if the justice thinks from the evidence on the examination that there is such probable cause, he is to cause him to be committed or enter into recognizance so as to secure his presence at the circuit-court for trial.” In Lightfoot v. The People, 16 Mich., 507, 512, a majority of the court then sitting, in speaking of the force and use of depositions taken on examinations and returned by the justice, observed that the law “presumes that those statements of witnesses were the only ground on whioh the prisoner was regarded as worthy of being charged as culpable, and put.upon his trial for the offense alleged.” Hanna v. The People, 19 Mich. 316, was a case where the prisoner was informed against for an assault with intent to murder, being a felony, but the jury convicted him of assault and battery, being a misdemeanor; and the point was made, that he had never been examined on the charge of a misdemeanor, but the court said, p. 323: “This being included in the charge of the felony, an examination upon the transaction claimed to constitute the higher offense was an examination upon the minor charge included in it.”
The subject is further alluded to in some of these and in other cases, but is noticed with the most particularity in the earlier case of The People v. Annis, 13 Mich., 511, and not, as incorrectly entitled in the report, Annis v. The People. After referring to the law for prosecuting by information, and the preliminary examination contemplated, the court say: “The examination under this statute was designed to some extent to accomplish the purpose of a presentment by the grand jury under the law as it existed before, in protecting a party against being subject to the indignity of a public trial for an offense, before probable cause had been established against him by evidence under oath. But it was never designed that the complaint or warrant before the magistrate should stand in the plabe of a formal presentment, nor that in the circuit court the prosecuting officer should be limited by it in the mode of charging'the offense. It is undoubtedly competent for him, so long' as he does not undertake to proceed against a person for a different -transaction than that’to u’hich the examination relates, to put his information in such form as in his opinion will enable him to try the offense on its merits in the way most effectually to advance the ends of justice.”
On turning to the record in the case before us, it appears that the complaint was reduced to writing, and that the examinations previous to tbe 'warrant were combined with it, and were recited at length in the warrant. Those proceedings were all taken on the third of May, 1875, and, as the record states, the complaint and the examination before warrant were as follows:
“State of Michigan, Huron County, — ss.
“The complaint and examination on oath and in writing of Emma Thompson, of the township of Lake, taken and made before me, George McKay, a justice of the peace for the township of Lake in said county, upon the third day of May, A. D. 1875, who, being duly sworn, says that heretofore, to-wit: on the fourth day of January, A. D. 1873, at the township and in the county aforesaid, Albert Turner, late of the township of Lake, in the county of Huron, on the fourth day of January, in the year of our Lord one thousand eight hundred and seventy-three, with force and arms, at the township aforesaid in the county aforesaid, in and upon one Emma Thompson, a female of the age of ten years or more, to-wit: of the age of thirteen years, then and there being, violently and feloniously did make an assault, and.her, the said Emma Thompson, then and there by force and against her will, feloniously did ravish and carnally know, against the form of the statute in such case made and provided, and against the peace and dignity of the people of the state of Michigan. And Emma Thompson aforesaid, upon her oath aforesaid, does, further say, that heretofore on other times, to-wit: on the twentieth day of January, A. D. 1873, and on divers days and times between the said twentieth day of January, A. D. 1873, and the thirtieth day of September, A. D. 1874, at the township of Lake and in the county of Huron aforesaid, Albert Turner, late of the township of Lake in the county of Huron aforesaid, in and upon one Emma Thompson, single woman and not the wife of the said Albert Turner, a female of the age of ten years or more, to-wit: of the age of thirteen years, then and there being, violently and feloniously did make an assault, and her, the said Emma Thompson, then and there by force and against lior will, feloniously did ravish and carnally know, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the state of Michigan; wherefore the said Emma Thompson prays that the said Albert Turner may be apprehended and held to answer this complaint, and further dealt with in relation to the same as law and justice may require. . .
her
“Emma + Thompson.
mark
“In presence of James H. Hall.
“Taken, subscribed and sworn to before me the day and year first above written.
“George McKay, Justice of the Peace.”
However informal and inartificial, this complaint and examination certainly contained a charge upon oath that Turner had committed the crime of rape on complainant in Lake township in Huron county, on or about the fourth day of January, 1873, and also'between the twentieth of January, 1873, and the thirtieth of September, 1874, and the justice concluding therefrom that a “criminal offense not cognizable by a justice of the peace had been committed” 7845, C. L.), and that an examination on oath in Turner’s presence ought to be had “in regard to the offense charged, and in regard to any other matters connected with such charge” which the examining magistrate might deem pertinent on such examination (§ 7855, C. L.), proceeded to cause Turner’s apprehension, to the end that he might “be dealt with according to law.” — § 7845.
In this the justice was certainly correct. There was sufficient not only to prompt him to act, but to make it his duty to act, and there can be no possible question but that he had full jurisdiction on the strength of the complaint and examination to take steps under the statute to call Turner before him for the purpose of a due investigation in Turner’s presence. And there can be no question but that it was perfectly competent, if not a duty, to inquire upon such examination in regard to the commission of the offense on any particular occasion between the 20th of January, 1873, and the 30th of September, 1874. The statute contemplates an inquiry, to find out whether reasonable ground •exists for going further, and the proceeding in no proper .sense is a trial, and an application to it of the rules which .govern in respect to the frame and construction of criminal pleadings, the scope and import of trial issues, and the 'relevancy of evidence thereto, would go far to defeat its object. To answer any useful purpose the inquiry must not be hampered by the restrictions which are wisely provided for the later proceedings, and without sacrificing or infringing any privilege or benefit the' party implicated may regu- ■ larly claim, the examining magistrate must be allowed the exercise of a large discretion. And the range and -essence of this discretion must be judged of in view of the ■fact that it pertains to a preliminary examination or inquisition to see whether a trial or definite investigation ought to be had, and not to such trial or definite investigation 'itself. It would be absurd to apply the same principles to an investigation designed to find out .whether grounds exist for making a precise and formal accusation, that are proper. after the grounds are regularly disclosed. So long as they are not ascertained, they are not to be set'up as something vfco control the inquiry carried on to ascertain them.
Acting upon the opinion that the investigation was not -required to be confined to the first allegation in the complaint and warrant, the justice extended it to the second, and this was clearly authorized. But the only evidence on the subject inserted in the record consists of a part of the deposition made by the complaining witness. It is unnecessary to repeat it here. It is very distinct and clear in the details and in its relation of facts and circumstances going to' single out and identify a particular offense, and the witness states that she thinks it was in the 'month of May, 1874. The occurrence is minutely particularized in other respects. A large number of coincident facts are given, and among them she stated the act was committed in the sugar bush; that in. the forenoon of the same day herself and Turner’s wife went out to gather what sap remained in the troughs, in order to. make vinegar of it; that between eleven and twelve Turner calme to the bush and told his wife to go to the house and get dinner; that witness inquired if she did not want her help, and that Mrs. Turner said she did not and then left "for the house; that Mrs. Turner returned, but .during her absence, and just before her return, the criminal'.act was done; that shortly afterwards .Turner and his wife, and the witness proceeded to the house, and that on the way there, upon her refusal to allow him to take hold of her hand and assist her to jump from a log across some water, he broke off a basswood sprout and struck her with it several times, and that she then screamed; that they reached the house and had dinner; that the next day or two Lizzie Devine called at the house and stated that she and her sister were looking for cows and wanted to know if it was fitness who screamed, alluding evidently to the outcry said to-have been made during the return of witness from the sugar bush to dinner.
By this evidence the transaction it referred to was liquidated and identified by the group of facts specified, with their mutual relations, as plainly as a well ascertained locality is marked and denoted by the nature, shape and relations of its numerous physical monuments. True, the precise date was not stated in terms, and it was not indispensable that it should be. The witness mentioned the time, but not positively, as in May, 1874, and there is nothing shown to discredit the correctness of the statement. There is no room for claiming that the least ambiguity existed in regard to the identity of the transaction referred to in this evidence, and no ground for saying there was no preliminary examination in regard to it. The prosecuting attorney had to gather from the examination the identical fact for which to accuse, and the -foregoing evidence afforded him the means, but it did not afford him the means to enable him to state positively and certainly the exact day.
This, however, was not important so long as the facts and incidents precluded all doubt respecting the identity of the transaction to be prosecuted, and so long as it was manifest that the act was recent enough to be subject to prosecution, and that a preliminary examination in regard to it had been had. Time is not an ingredient of the offense in any such sense as to make it necessary to charge it according to the truth. The information or indictment may state one time and the proof show a different one without involving an objectionable variance. — § 7,923, C. L. The deposition of the complaining Avitness, as we hav’e seen, tended to show that the transaction at or near the sugar bush was in May, 1874-, and it does not appear that the evidence on examination tended to show any other in that month. The information preferred a single charge, and in the usual form laid the act as of May 5th, 1874. There was nothing more in the description of the offense in the information to point out the transaction aimed at, but there is no rule of criminal pleading which requires the setting out ear marks or the identifying facts and incidents elicited on examination. They must be matter of proof on trial. Still the information was grounded on the examination, and that confined the prosecution within limits. It is not pretended that the information was otherwise than good upon its face, and' as the charge Avas shaped in it, the affair at, or near the sugar bush Avas provable to support it without raising any question of variance from the information or the-examination.
Passing to the later proceedings, it may be well to seeAvhether in fact the charge in the information was applied to the affair at or near the sugar bush or to some other.
The bill of exceptions does not set forth the evidence, but in a Aery brief and general manner speaks of its tendency, and in mentioning that says in substance there Avas, evidence tending to prove that Turner committed the offense in question on Emma Thompson “some time in the fore part of May, 1874,” and that this was the first offense proved on the trial. No mention whatever is made of any of the facts and incidents which would particularize the transaction and identify it with or discriminate it from the affair before alluded to. That there was evidence, however, that the transaction of the fore'part of May was the same as that described as having occurred at or near the sugar bush,, and that the conviction was on account of that transaction, appears clearly from the record. The second, third and fourth propositions of the judge’s charge, which were not excepted to, make this matter very plain. These propositions are as follows:
“2. Under the statute the people charge that Albert Turner had connection with the' girl Emma Thompson on or about May 5th, 1874, by force and against her will.
“3. This is the time the girl claims she was forced at or near the sugar bush, and of the rape at this time and place the defendant must be convicted, if convicted at all.
“4. She has been allowed to testify as to other times and places for other purposes; but he can only be convicted of a rape at the time and place charged. If he is hot. guilty of that, no matter how many other offenses he committed, he cannot be convicted here unless he committed the particular one charged.”
The conclusion, then, on this part of the case is, that the plaintiff in error had a preliminary examination in regard to the transaction said to have occurred at or near the sugar bush in May, 1874; that on such examination the justice held him to answer for said transaction; that the prosecuting attorney informed against him on account of it; that-he was tried therefor and finally convicted thereof.
Error was assigned on a portion of the charge which submitted to the jury whether Turner put the prosecutrix in such fear as to preclude her from offering resistance to the commissiop. of the criminal act, but this objection is very properly abandoned. The brief does not allude to it.— Strang v. The People, 24 Mich., 1; Don Moran v. The People, 25 Mich., 356.
It is next objected that the judge erred in charging in regard to the delay of the prosecutrix in making complaint. The instructions bearing on this subject were as follows:
“I trust you all understand that one charged with crime Is presumed innocent; that the people must satisfy the jury 'that he is guilty or he cannot be convicted'; as is commonly said, the presumptions, are in favor of the prisoner, and the jury must be satisfied beyond a reasonable- doubt that he .is guilty before they convict.
“Ordinarily it is deemed suspicious that a complaint is not made at once after the alleged commission of the offense, .and in this case it appears that no complaint was made, except, perhaps, to Mrs.. Turner, until long after the crime is ¡said to have been committed. The prosecution seek to explain "this by offering evidence tending to show that she dared not, through fear of Turner, make any complaint.
“If the long delay is accounted- for to your satisfaction, then the delay would not prejudice her story; but if without some good and sufficient excuse she delayed some ten or twelve months to expose her destroyer, and then only told her story when she herself was charged with a crime, it is, to say the least, a circumstance against the-truth of, her .story. The whole question of the credibility of -the- girl Emma and the other witness is-for your consideration. The reasonableness and probability of the evidence given must not be lost sight of. Starting, then, with the presumption of innocence, have the people -convinced you that the defendant is guilty of the crime charged. If they have, your -verdict will of course be guilty; but, on the other hand, if you are not convinced of his guilt, you will say - not guilty. Let us have neither fear, love, nor favor in deciding this •question. If the man is innocent, it would be a terrible .thing to doom him to a term .of years in state prison. If he is guilty, as the girl Emma says, he is an unsafe man to have loose among the wives and daughters of the good people of Huron county. Consider carefully; weigh well; determine impartially; and render such a verdict as your judgments approve.”
The evidence concerning this point, and to which the charge had reference, is not set out. But the bill of exceptions states that the evidence adduced by the people tended to show that the prosecutrix was fourteen years and four months old on the 5th of May, 1874; that she commenced living in Turner’s family January 2d, 1873, and continued to live there until about April 26, 1875; that she was prevented from making complaint, and from leaving the family and seeking protection elsewhere, by Turner’s harsh treatment of her, and because she was afraid that if she left he would bring her back and treat her worse than before, and because he threatened to kill her if she told any one what he had done; but that she did complain to Turner’s wife after each violation of her person, but to no one else until about the 26th of April, 1875.
The bill states also that evidence was given by Turner tending to show that the prosecutrix before entering his family had been for several years an inmate of a public poor house in Bay City, and had lived at several different places in Huron county; that she had repeated opportunities to leave Turner’s family, and to communicate with neighbors, between January 4, 1873, and May 5, 1874, and between that date and April 26, 1875, and had not done so, and had never in any way made complaint to-Turner’s wife that he had violated her person; and that when she first-complained to any one of the offense charged in the information or of any other outrage against her person by Turner, she was under arrest on a charge of having concealed the death of a-bastard child.
It does not appear that Turner’s counsel made any request or suggestion for any charge on this subject, or the modification of that given, or even intimated any reason for being dissatisfied with it. We find simply and barely in the record that the plaintiff in error excepted “to that part of said charge which instructs the jury that if the delay in making the complaint is explained to the satisfaction of the jury, such delay ought not to prejudice the story of the complaining witness.” Now, this exception touches only a single sentence in one of the several propositions of the charge relating to the delay in making complaint and to the evidence given to explain the delay, and the matter to which the exception is confined has a very different meaning when read in connection with the context from what it has when read separately and abstractly. If this single passage was unsatisfactory, fairness to the court and the course of justice suggested it as a duty at the very time to make known to the court the true nature of the objection in some regular way. By such action the judge would have had the benefit of the explanation in season to set the direction right if the reasons indicated were such as to satisfy him he had made a slip.
The practice of taking general and obscure exceptions at the moment, in order to cover the case and enable counsel on subsequent critical examination to raise points under the exceptions which have never been suggested at all to the mind of the trial judge, is objectionable on many grounds, and is contrary to the theory upon which points are allowed to be raised by exceptions. — Adams v. State, 25 Ohio St., 584. The substance of the argument, made here in favor of the exception, as gathered from the brief, is, that the evidence of fear adduced to explain the delay only tended to show the fear of a future possible or threatened danger and not one presently impending, and that no such fear, if it existed, could be admitted to excuse delay. And, further, that the charge was unfair to Turner, inasmuch as it made the evidence prominent which was given to explain the delay and nearly ignored or suppressed the force of the circumstances having a counter tendency. The reasoning in regard to the kind of fear shown and that required to be shown is not well based or sound. According to the record, the prosecutrix swore she feared that if she left, Turner would bring her back and treat, her worse than ever; and, further, that he threatened to kill her if she exposed him; and if in her situation and under the circumstances as they appeared to her, these considerations actually kept her in such fear that she dared not complain against him, it was then a fear which had constant operation, and the circumstance that the violence she was caused to fear could not be expected to take place at the very time she should expose him, but only afterwards, was of no importance. There is • no room for saying, in view of the facts indicated by the record, that what the prosecutrix claims to have feared was, as a ground of fear, too far off and uncertain to preclude a jury from finding that the fear itself was enough, as she was situated, to deter her from complaining sooner than she did.
Now, whether a prosecutrix makes early complaint or not, is not a fact belonging to the res gestee at all. It is only material as bearing upon the credibility of her evidence.— 3 Greenleaf Bv., § 213. She is a competent witness, and if sworn and examined, “the credibility of her testimony, and how far forth she is to be believed, must be left to the jury upon the circumstances of fact that concur in her testimony.” And one of the circumstances having a strong tendency to show that her testimony is false or feigned is her concealment of the injury for any considerable time after she has opportunity to complain. — 4 Blade. C., 213, 214. But there is no iron rule which requires complaint to be made within this or that time. She must have opportunity, and how this is must depend upon the particular circumstances. If there is considerable delay, and yet there is satisfactory reason for it in the opinion of the jury, such as that she was under the offender’s control or influence, it may not detract from her credit. — 1 East P. C., 445; Higgins v. The People, 58 N. Y., 377.
Looking at the record as it is shaped in regard to what was given in evidence, and considering the charge and the exception, there appears to be no foundation for any claim that the charge was unfair. It might have been more full, but Turner’s counsel did not ask it, and the paragraph excepted to, when read in connection with other portions, does not appear to be objectionable on any ground suggested.
It is further objected that the judge mislead the jury in what he said concerning a claim by Turner’s counsel that the credibility of the prosecutrix was destroyed by her denial on cross-examination of having given certain testimony before the justice. It would seem that while being cross-examined on the trial she “denied having given certain testimony before the justice,” and that at a later stage of the trial Turner’s counsel read her deposition and “claimed” that it tended to contradict and impeach her, and that in regard to this claim the judge observes: “The jury should consider the statement from the justice, containing Emma Thompson’s evidence, with reference to the circumstances under which it was taken. They should remember that the exact words are not always written down, and that it is very difficult to produce on paper a full statement in the words and manner of a witness.” The argument against this remark assumes that she denied having sworn to something which the deposition in fact contained, and something, too, of substance, whereby she stood self-contradicted in such a way as to affect her credibility, and that the tendency of the charge was to alleviate the effect of this upon untenable grounds. It is a sufficient answer that the bill of exceptions does not show that the deposition contained in fact what she denied having testified to before the justice, or that there was any substantial variance between her testimony at the trial and her deposition. Neither her deposition nor cross-examination at the trial is set out, and we are not informed in any way to what her denial related, nor that her deposition contained what she denied having sworn to, or even that in point of fact there was any real disagreement at all; and we cannot presume that there was a material variance, a variance going beyond unimportant matters and involving substantial contradiction under oath.
Whether there was any basis for the “claim” made by the plaintiff in error is not apparent, and nothing is shown to convict the charge of any injurious' tendency. It was incumbent upon the plaintiff in error to bring the facts, or sufficient facts, upon the record in some form so as to show that the charge applied to a case in which, to say the least, it may have operated to his legal prejudice.
One more objection remains to be noticed. In the sixteenth proposition of the charge the judge said: “It makes no difference in the case what may have been the relations of the girl before she went to defendant’s house, or what she may have done since; her character, good or bad, cannot exempt him, if you find that he committed the crime-of rape in the sugar bush as alleged.” There seems to-have been no suggestion to the judge to modify or change this proposition in any way. Turner’s counsel merely excepted “to that part of said charge which says it makes no difference what the complaining witness did before or since the act.” But without dwelling on the force of the exception or pausing to question its scope or efficacy as matter of practice, it may be- assumed to apply cither to the passage mentioned or to the whole. proposition and to be sufficient to present a point. Still the sentence mentioned in the exception, and to which the allegation of error is confined, must be read with the rest of the proposition, and the proposition must be read with the rest of the charge. The objection to the charge, as understood, is that it was equivalent to a direction that the jury might find whether Turner was guilty or not without regard to facts and circumstances bearing on the truth and accuracy of the statements of the prosecutrix, and that if they should find him guilty, such facts and circumstances would then be of no consequence. The argument does not represent the charge fairly. The question of the credibility of the prosecutrix and the “reason ableness and probability” of her statement had been just before explicitly submitted to the jury, and certainly the judge did not intend to recall or destroy the force of that submission, and could not have been understood by the jury as meaning to do so.
The instruction how in question did not concern credibility at all. Viewed in connection with other matters charged', the meaning of the judge is obvious enough. What he meant, and what the jury unquestionably understood him to mean, was, that if the imputed fact was committed, it was equally a criminal fact, equally a rape, whether the character of the prosecutrix was good or bad. He certainly did not mean that if the evidence would be insufficient to convict on account of its impairment by the bad character of the prosecutrix, but Avould be sufficient if her bad character was not allowed to diminish the force of the people’s evidence, that the jury might decide upon Turner’s guilt without allowing her badness of character to impair the evidence, and if satisfied of his guilt, then ignore all the facts, concerning her character.
No error being shown, the judgment should be affirmed.
The other Justices concurred. | [
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Cooley, J:
1. Tie do not consider the objections which were made-to the evidence introduced for the purpose of showing a. regular incorporation of the village, because we do not regard •that question, as involved in this suit. Proceedings had been taken under which a village government had been brought into existence and was exercising its authority. If defects exist, they should be pointed out in a direct proceeding for the purpose, instituted on behalf of the state. .Even the state, it has been held, may be precluded from raising such objections after the corporate government has been fairly established with general acquiescence (People v. Maynard, 15 Mich., 463); but a private party cannot be ¿allowed in this collateral way to question an assumption of corporate powers which the state does not dispute. — See Fractional School District v. Joint Board of Inspectors, 27 Mich., 3.
2. Sufficient evidence was given of the official character of defendant as village marshal. True the resignation of the person chosen marshal is not shown, but the resolution appointing defendant to that office recites a resignation, and ¿a person of the same name, and presumptively the same person as the one who was elected, signs defendant’s official bond. These facts, we think, make out a prima facie right in defendant, especially as he proceeded to the discharge of .the duties without, so far as we are informed, his right being questioned.
3. The principal question in the case concerns the protection which the defendant claims under his warrant. Plaintiff insists that he is not protected, first, because, having been a member of the village board when the tax was levied, he is chargeable with notice of all illegalities. But on this point this court, in Wall v. Trumbull, 16 Mich., 228, held the contrary. Second, because the warrant was not fair on its face, but, on the contrary, that and the roll attached to it had several defects which rendered it invalid.
Of the defects which the plaintiff has pointed out we shall notice those which seem to us to require it. One of these is, that the figures indicating the valuation of property on the roll were preceded by no dollar mark, and therefore the .roll does not on its face show whether money or something else was intended. But an inspection of the roll shows clearly enough that dollars were meant, and no one could possibly have been in doubt on that subject. The. tax is properly carried out with the dollar mark preceding it; and this would perhaps be enough in any ease; but the decisions in Cahoon v. Coe, 52 N. H., 518, 524, and State v. Eureka etc. Co., 8 Nev., 15, which to us are satisfactory, would sustain the roll without it.
Another objection is, that the certificate attached by the assessor to the roll was insufficient. The original roll is not in evidence, and we do not know what certificate was to that. We do not understand that the copy of the roll upon which the tax is extended must have the assessor’s certificate copied upon it. The roll and the certificate are distinct things. — Tweed v. Metcalf, 4 Mich., 579. Defendant therefore had a right to assume that the original roll was properly authenticated.
It is also objected that one. description of land for which plaintiff was charged was so imperfectly described as to be void. The description was the east half of the southeast quarter of a section, but without giving the number of the section. But on examination of the petition upon which the village was organized we find the village contains but one east half of southeast quarter of a section, and consequently this description is sufficient.
A further objection is, that the board issued a now warrant to defendant after having extended the original warrant and while the period of the extension was still unexpired. But if the original warrant was still in force the new warrant was merely nugatory. Both the new and the old warrant were attached to the roll in defendant’s hands, and if either was valid it was sufficient for his protection.
These objections not being well taken, we think defendant had process which was fair on its face. We also think this was sufficient to protect him against any illegalities except his own. — Ford v. Clough, 8 Greenl., 334; Nowell v. Tripp, 61 Me., 426; Savacool v. Boughton, 5 Wend., 171; Chegaray v. Jenkins, 5 N. Y., 376 ; Turner v. Franklin, 29 Mo., 285; Walden v. Dudley, 49 Mo., 419; Holden v. Eaton, 8 Pick., 436 ; Underwood v. Robinson, 106 Mass., 296; Brainard v. Head, 15 La. An., 489; Blanchard v. Goss, 2 N. H., 491; Kelley v. Noyes, 43 N. H, 209; Moore v. Allegheny City, 18 Penn. St., 55; Billings v. Russell, 23 Penn. St., 189; Shaw v. Dennis, 5 Gilm., 405; Hill v. Figley, 25 Ill., 156; State v. Jervey, 4 Strob., 304; Loomis v. Spencer, 1 Ohio, N. S., 153; Watson v. Watson, 9 Conn., 140; Neth v. Crofut, 30 Conn., 580; McLean v. Cook, 23 Wis., 364; Noland v. Busby, 28 Ind., 154; LeRoy v. East Saginaw City Railway Company, 18 Mich., 233; Lott v. Hubbard, 44 Ala., 593; Stale v. Lutz, 65 N. C., 503; Gore v. Mastin, 66 N. C., 371; Erskine v. Hohnbach, 14 Wall., 613.
4. We do not think the defendant became a trespasser cib initio by keeping the horse levied upon a little longer than was absolutely necessary to giving notice and making-sale. There may have been good reasons for this, and something must be allowed to the officer’s discretion in such cases. And if the keeping was lawful, the expense was a lawful charge; but if not, the plaintiff in a proper action might recover the excess.
There is no error in the record, and the judgment must be affirmed, with costs.
The other Justices concurred. | [
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Per Curiam :
We think there is no material distinction between this case and Wells v. Martin, 32 Mich., 478, as to the proof introduced to show liability.
. We discover no evidence in the record tending to show an original undertaking by Danaher, or any act of ratification of any arrangement which Fahy & Dye may have made, and the bill of exceptions states that the substance of all the testimony given is set out; and the judge, after refer ring in his charge to the evidence supposed to bear on the point, stated that it was substantially the testimony produced by both parties.
The judgment should be set aside, with costs, and a new trial ordered. | [
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] |
Campbell, J:
Complainant filed her bill to avoid a mortgage made on the homestead of her husband during their family occupation of it, alleging that she never knowingly signed or acknowledged it.
There are some suspicious circumstances about the case, but there is no doubt of the mortgagee’s good faith, nor of the fact that the money was borrowed and used to build a house on the premises. The justice who took the acknowledgment swears quite distinctly upon the facts, and there is corroborating evidence.
All presumptions in cases of this kind must be treated with reasonable respect to the improbability of misconduct in a reputable officer, or of forgery which he ought to have discovered if it existed; and the burden of proof was on complainant to make out a plain case.
We do not think her case is clear enough to warrant us iu disturbing the decree against her below, which is affirmed, with costs.
The other Justices concurred. | [
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] |
Campbell, J:
This case, which has been in this court once before, is now presented under a somewhat different state of facts.
On the 8th of March, 1872, the' Westchester Fire Insurance Company insured Earle & Kéynolds to the amount of two- thousand dollars on their fixed and movable machinery, situated in their woolen manufactory. A fire destroyed the insured property in January, 1873, during the original term of the insurance.
The policy contained two clauses which are regarded as important in this suit. One was: “If the assured shall have, or shall hereafter make any other insurance upon the property hereby insured, or any part thereof, without the consent of this company written hereon, then, and in every such case, this policy shall be void.”
The other was: “The use of general terms, or any thing less than a distinct specific agreement, clearly expressed and endorsed upon this policy, shall not be construed as a waiver of any printed or written condition or restriction therein.”
There was inserted in the written part of the policy “§3,000 other insurance permitted.” Insurance was effected, at or about the same time, in other companies, for the aggregate sum of three thousand dollars.
In May, 1872, additional machinery, being knitting machinery of the value of three thousand dollars, was put in the factory.
In June, 18'72, the firm procured two thousand five hundred dollars further insurance in the American Central Insurance Company upon the entire machinery, new and old; and this was not preceded or followed by written consent of the Westchester Fire Insurance Company. This additional insurance is relied upon as a defense to the suit now before us, it being claimed that the original insurance policy was made void by the additional insurance, because the latter was not. formally consented to.
It is claimed. by Earle & Reynolds that the conduct of Mr. Atwater, the agent of the Westchester Fire Insurance Company, was such as to leave the policy in force, in spite •of the failure to have consent for further insurance endorsed.
Upon most of the facts outside of the writings there is a conflict of testimony. Earle and Reynolds were sworn in their own behalf, and Atwater for the Westchester Fire Insurance Company; and the finding of the jury is in accordance with the testimony of the insured. The errors assigned refer to the rulings.
It is to be remarked that the consent actually inserted in the policy did not refer to insurance in particular companies, but allowed the three thousand dollars further insurance to be obtained any where. It must be assumed, therefore, that it was not designed to require consent to future insurance to be any more definite. In this respect the policy furnishes its own rule of construction.
It is also to be remarked that the circuit court charged the jury, at the request of the defendant below, that the mere fact that the agent Atwater did not dissent upon receiving knowledge or notice of the intention of plaintiffs below, would create no waiver or estoppel; and further, that it was not the duty of the insurance company, after such notice, to notify the insured that the additional insurance avoided the policy; and further, that the policy contemplated notice of the proposed additional insurance in advance; and that knowledge of the additional insurance would amount to-no more than knowledge that the insured had voluntarily terminated the policy.
The court refused to charge that Atwater had no authority to waive the condition, or make assurances that it could be waived, except in the manner provided in the policy; or to charge that there were no sufficient facts proved to constitute a waiver or estoppel.
The charges given, under which the recovery was had, were in substance as follows: that in order to escape the-condition the insured must show that the agent had done some act, or made some representation, or remained silent when he ought to have spoken, and thereby misled the insured, and induced them to rely on the policy to their injury, and by causing them to believe the policy remained in force, prevented their seeking other insurance; and that such conduct would preclude the company from setting up the condition; and that notice to the agent was notice to the* company.
All the dealings in evidence were with Atwater, the agent at Grand Rapids, where the property was situated; and no other representativo of the company took any steps before the fire.
The testimony for the insured went to show that the property insured was worth about twice the amount of the whole insurance. It further showed -that the first application for further insurance was to Atwater, who said he would try and get it placed in some company of which he was agent, and that after waiting some time without his doing so, the risk was placed elsewhere. It is sworn that in this conversation Atwater said it would make no difference to the company, but did hot say in so many words that it need not be consented to in writing, though that inference was drawn from all that took place. There seems also to have been some talk about terms, as that appears to have been one of the reasons for preferring the other insurers.
Immediately after the new insurance was obtained, Earle and Reynolds (according to their testimony) wrote a letter to Atwater, informing him of the precise amount of the additional insurance on the machinery, and stating in detail all the policies which they held, including the one in controversy, amounting with the new policy to seven thousand five hundred dollars, which they said was all they cared to insure on the machinery. In the same letter they asked for terms of insurance on the stock in the building. This letter is sworn to have been left in Atwater’s office.
Very shortly thereafter Earle met Atwater, who at once referred to the new insurance, and asked why it had been placed with the other insurers aud not with him, and was told it was because it was got on cheaper terms. In this and in following conversations about the same time, no objection was made, and no suggestion offered, that any breach of condition had been created, or would be relied upon. At-water said he considered the risk of seven thousand five hundred dollars on the machinery then owned, as equivalent to the original five thousand dollars on what was owned before. No further objection was over made, and proof of loss was made as required, to the adjusters.
Upon this testimony, which the jury had the right to believe, and which they appear to have believed, it is beyond question that Earle and Reynolds relied, and had reason to rely on the validity of their insurance, and to assume that nothing had been done to destroy it. If Atwater himself had been the insurer, it would be difficult to find a plainer case of estoppel. It would have been a direct fraud to repudiate an obligation after such conduct as could not have failed to induce the insured to rest satisfied with their policies.
The controversy is reduced to the inquiry, whether, with the written conditions of the policy in view, Atwater had authority, or Earle and Reynolds were justified in assuming he had authority to bind the company by such conduct 'as would have bound himself.
This case does not show that the condition against further insurance without written consent endorsed on the policy, is one which is imposed by the charter of the company; which has in some cases required all contracts to be in writing, and to be signed by the company officers. — See Insurance Co. v. Colt, 20 Wallace, 560; Spitzer v. St. Mark’s Insurance Co., 6 Duer’s R., 6; Blanchard v. Atlantic Ins. Co., 33 N. H., 9; Couch v. City Fire Ins. Co., 38 Conn., 181.
Neither is this shown to be a mutual company, under whose by-laws, brought home to the members, and binding them, an agent or officer cannot deviate from the condition, as has been held in some cases. — American Ins. Co. v. Gilbert, 27 Mich., 429; Van Buren v. St. Joseph Co. Village Fire Ins. Co., 28 Mich. R., 398; Barrett v. Union Mut. Fire Ins. Co., 7 Cush., 175; Forbes v. Agawam Mut. Ins. Co., 9 Gush., 471; Hale v. Mechanic’s Mut. Fire Ins. Co., 6 Gray, 173; Stark Co. Mut. Ins. Co. v. Hurd, 19 Oh., 149.
Neither is this a case where the consent was, under the policy, to be given by any one but Atwater, or where his written endorsement would not bind the company. — Security Ins. Co. v. Fay, 22 Mich., 467; Continental Life Ins. Co. v. Willets, 24 Mich., 268.
We need not, therefore, consider the correctness of any of those decisions which rest upon the disabilities of agents or officers arising from want of power, plainly notified or known, to act in the business. By the terms of the present policy Atwater was to countersign it, and any policy which he countersigned would have bound the company to an innocent holder, whether he had or had not violated his duty to his principal. Earle & Reynolds were to deal with him, and with no one else.
It was held in Hibernia Insurance Co. v. O’Connor, 29 Mich. R. 241, that delivery by an agent, of a policy and renewal certificate, as-valid and effective instruments, made them good and binding without being countersigned by him, although countersigning was required by their terms. Such delivery was held a waiver of the formal condition. And it has been more than once held by this court, that where an agent in giving a policy has, by his own conduct, misled parties into making applications or accepting conditions under a misapprehension as.to their literal accuracy, the company is estopped by his action. — Michigan State Ins. Co. v. Lewis, 30 Mich., 41; Continental Insurance Co. v. Horton, 28 Mich., 173; Peoria Ins. Co. v. Perkins, 16 Mich., 380; Ætna Live Stock, Fire and, Tornado Ins. Co. v. Olmstead, 21 Mich., 246 ; N. A. Fire Ins. Co. v. Throop, 22 Mich., 146; Peoria M. & F. Ins. Co. v. Hall, 12 Mich., 202 ; Niagara Fire Ins. Co. v. De Graff, 12 Mich., 124. — See also to the same doctrine, Insurance Co. v. Mahone, 21 Wal., 152; Mitler v. L. Insurance Co., 12 Wal., 285; Ins. Co. v. Slaughter, 12 Wal., 404; Ins. Co. v. Wilkinson, 13 Wal., 222.
It has been held that all of those conditions and provisions which involve forfeitures are to be construed strictly. Such is the common-law rule in regard to forfeitures, and it is a wholesome and sound rule. Parties may contract very much, as they choose, so long as they keep within the law; and it may be assumed there is some r'eason for each condition adopted. But there is great hardship in allowing parties to keep money which they have not fairly earned, and great wrong in favoring blind conditions, or those which parties do not fully understand, where they are not in actual fault. A close construction is the only just one.
In Insurance Co. v. Colt, 20 Wal., 560, it was held that although by a corporation charter all contracts, policies, etc., were required to be in writing or in print, sealed by the corporation and signed by the president and attested by the secretary or other officer appointed for that purpose, yet this only applied to the executed contracts and policies, and that an agent could bind the company by a preliminary contract, which they would be compelled to perform. In that case the policy was not made out until after the fire, but it was held to relate back to, and to be in performance of, the preliminary bargain. The decision refers to several analogous cases, and rests upon the analogies of specific performance, where, although land can only be conveyed by deed, yet an agreement for a conveyance need not bo itself of the same character as a specialty.
In Insurance Co. v. Webster, 6 Wal., 129, a policy on which after its delivery a memorandum was endorsed that it should take effect upon the approval of a general agent named, was held valid and effectual until disapproved.
In Peck v. New London Co. Mutual Ins. Co., 22 Conn., 575, where a charter required the consent of the directors to further insurance, it was held that consent given by an agent should be regarded as their consent, and that every agent might, if necessary, stand as a secretary for that purpose.
So it was held in Hatton v. Beacon Ins. Co., 16 Q. B. U. C., 316, that where an agent stated that an endorsement was unnecessary, it was a waiver of a condition requiring endorsement.
It is very-well settled that, except where prevented by the operation of the statute of frauds, or some other equivalent prohibition, a policy of insurance may be made or changed by parol. — Sanborn v. Fireman’s Ins. Co., 16 Gray, 448; Kelly v. Com’th Ins. Co., 10 Bosworth, 82; Audubon v. Excelsior Ins. Co., 27 N. Y., 219; Baxter v. Massasoit Ins. Co., 13 Allen, 320.
The fact that a policy is written does not prevent its change by subsequent parol agreement. Any written contract not within the statute of frauds may be changed by parol. — Seamen v. O’Hara, 29 Mich., 66. And this has been aioplied to the enlargement, and continuance of policies. — Kennebec Co. v. Augusta, Ins. Co., 6 Gray, 209; Trustees 1st Baptist Ch. v. Brooklyn F. I. Co., 19 N. Y., 305.
The powers of Atwater in the present ease do not appear to bo restricted in any way. The condition literally applied would prevent any unendorsed consent by the company itself, by resolution of its board, or by act of its officers, as effectually as by any one else. And the case seems to settle down to the simple question whether a person who has agreed that he will only contract by writing in a certain way, precludes himself from making a parol bargain to change it. The answer is manifest. A written bargain is of no higher legal degree than a parol one. Either may vary or discharge the other, and there can be no more force in an agreement in writing not to agree by parol, than in a parol agreement not to agree in writing. Every such agreement is _ ended by the new one which contradicts it.
We think the case was properly laid before the jury upon the important issues.
The evidence concerning the purchase of the additional machinery was proper as part of the res gestee. It was the occasion for the new insurance, and while it would not have validated this without some consent or action of the agent or company, it furnished a very good reason for such consent. The error assigned, on which it is claimed the court erred in refusing to charge that the purchase did not affect the condition, is not founded on the record. The request for that charge was not separate, but asked a charge that the policy was made void unless there was written consent, and this addition concerning the purchase was a part of that general request which the court rightly refused.
Objection was also made that some answers to the interrogatories in a deposition of Earle’s were not responsive. We do not think this was the fact.
Error is also assigned upon a refusal to charge ' that if the jury believed Mr. Atwater’s testimony they must find for defendant. The court told them that if they considered it-a square denial of Earle’s testimony, and believed it, they should so find, but remarked that counsel had claimed it was not, and so it was left for them to determine.
It certainly belonged to the jury to settle this question, where there was a dispute about it. But we do not think a court is bound to present any such proposition to a jury as will confine them to considering one witness more than another. There may be no objection to it if the case is plain and if the court finds it will simplify matters to do so. But it is a very different thing to hold that a court is obliged to do it. The duty of the court is ended when the jury have been properly charged upon the law as applicable to the facts, and it is more important that they consider the facts themselves in the light of all the testimony, than by singling out witnesses whom they may believe wholly, or partially, or not at all, according as they are convinced.
We find no error in the record, and the judgment must be affirmed, with costs.
The other Justices concurred. | [
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Graves, J:
Plaintiff sued defendant before a justice, under the com mon count for work and labor, to recover for services as book-keeper. He got judgment, and defendant appealed. The jury found against him in the circuit court, and he claims the judge erred in charging.
There was no dispute but that he served defendant as book-keeper, at defendant’s request, between sometime in April, 1874, and the latter part of the August following, and neither was there any question but that plaintiff had received nearly, if not all, his pay for such services, if calculated at the rate of one thousand dollars per year, and the defendant claimed that it was agreed between them, about the close of the service, that the pay should be at that rate. The defendant claimed he was entitled to six dollars per day for a portion of the time, and five dollars for the rest. The arrangements as to pay were testified to by the parties, and the testimony they gave was contradictory.
That given by plaintiff tended to show that on the 26th of August he talked with defendant, and that it was then agreed that he should work for defendant for a year, including his four month’s work performed prior to the 23d of August, at one thousand dollars' for the year, and that in accordance with that understanding he entered a credit on defendant’s books, and at his request, and that three days afterwards the defendant expressly repudiated this agreement and employed another person in plaintiff’s place. The defendant’s testimony went to show that the agreement was that plaintiff should receive pay for what he had done at the rate of one thousand dollars per year, and that there was no agreement to employ plaintiff for a year’s time. Defendant’s version of the arrangement between the parties varied greatly in other respects from that of plaintiff. The court charged the jury that if they believed the plaintiff, then the contract was for a year’s hiring, including the four months, and in such case there could be no recovery; that the action should have been brought on the contract, and not on the common count. He further charged, in substance, that if the jury believed the defendant, then the plaintiff was not entitled to recover. The instruction was erroneous. There was evidence tending to show that the service was worth more than at the rate of one thousand dollars per year, and more than the plaintiff had received, and if, as the plaintiff’s testimony tended to show, there was no bargain as to price except that made in August, and the defendant repudiated that, and refused to regard it, shortly after it was made, the plaintiff was entitled to recover. The defendant was not at liberty to claim the benefit of a contract he refused to regard and expressly repudiated,' in order to turn the plaintiff out of court. If the jury believed the plaintiff’s evidence he had a valid cause of action under the general count for work and labor.
The judgment should be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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The Court
denied the motion, but granted leave to complainant, if not satisfied with the proofs as returned, to have the case resettled. | [
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Makston, J:
There are two objections to granting the relief sought in this case: First, the bill sets up that upon the 5th day of April, 1859, an agreement was entered into by which complainant consented that a certain tax-title interest which Henry S. Durand then held in certain lands claimed by said Ford, and also certain personal property then owned by Ford, should be conveyed to Loomis and Ludington in trust; that they were to take all of said property, operate the mill upon said lands, manufacture lumber, and out of the proceeds thereof pay themselves the amount of a decree which they had against complainant, and which was a lien upon most of his real and personal property, less twenty thousand dollars which they agreed to deduct therefrom; second, pay themselves five thousand five hundred dollars which they had paid Durand, and also pay all other debts which complainant was then owing divers persons, and after making such payments and also paying themselves for all costs, trouble and expense they were to in so doing, that they should then redeliver and reconvey the balance of said property to complainant, and that upon this agreement being made, complainant consented to their taking possession.
Complainant’s own testimony fails to show that any such trust agreement was then or at any time entered into. It tends to show, and such was the theory of complainant’s counsel, that Durand’s claim or interest under the tax deeds was that of a mortgagee; that Loomis and Ludington merely succeeded to his rights and held this property as mortgagees for the payment of their decree, less the twenty thousand dollars deducted therefrom, and for the amount paid by them to Durand, and to one Hannah, in order to obtain a release of a lien which he held upon a part of the property. Complainant’s testimony does not, nor does any of the testimony, tend to show an assignment to Loomis and Ludington of, this property in trust for the payment of all Ford’s debts as set forth in the bill of complaint. It has been so often decided in this state that no relief can be given on evidence establishing a case not made by the bill, that a reference to the cases is unnecessary.
Second. While there are many circumstances in the case tending to support the theory that the conveyance was intended as a security only;, that Durand had no knowledge of the execution of the deeds of November 16, 1858, by Ford, and that only his interest under the tax deeds, and in.the lands therein described, was to pass, yet the testimony is not of that clear, explicit and unequivocal character that would warrant us at this late day in opening up such matters. Where a party has consented that the legal title should, by an absolute conveyance, be passed over to another, or discovers that another has fraudulently obtained the legal title, and put it in the market, he cannot stand by and see third parties acquire rights upon such apparent legal title, and ask for relief which is purely equitable. Whatever rights Ford originally may have had, have been cut off by his laches. A party must be prompt in communicating the fraud when discovered. — Disbrow v. Jones, Har. Ch., 102; Street v. Dow, Id., 427; McLean v. Barton, Id., 279; De Armand v. Phillips, Walker's Ch., 186.
The fraud, if any was perpetrated, was in recording the deeds of' November 16, to Durand. Complainant discovered this the next day after they were recorded, viz.: April 12, 1859, and yet he took no steps whatever in the case until this bill was filed in 1873, but stood silently by while the property was being improved,, by parties claiming to own it in fee, until it has now become very valuable, and third parties have acquired rights therein.
The decree of the court below, dismissing the bill, must be affirmed, with costs of both courts to defendants.
The other Justices concurred. | [
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Marston, J:
Defendants in error brought an action against the railroad company to recover damages claimed to arise from unreasonable delay on the part of the company in carrying-apples from Vandalia in this state to Chicago.
It appeared that plaintiffs in the court below shipped, November 10, 1871, four car loads of apples, consigned to their agents at Minneapolis, in the state of Minnesota; that the apples were transferred by defendants at Chicago to the next carrier November 17, and arrived at Minneapolis on the evening of November 22, badly injured by frost, having been frozen while in transit from Chicago on or after November 21.
It also appeared, and was not disputed, that the tracks of the railroad company were in good condition; that the company had abundant rolling stock of- every kind to do all its business, and that it had no difficulty in moving, storing and taking care of freight previous to October 8, 1871; that on the 8th of October a fire originated on the west side of the city of Chicago, and that about three hundred acres of the city were burned on that and the next day; that the depots belonging to the company caught fire from the surrounding buildings and were destroyed, as were also the tracks within three thousand feet of the depots, and also the tracks in the freight depots, thus rendering it impossible for the company to receive any freight,, having neither freight houses to receive it in, nor tracks to handle it on; that the company immediately made all possible efforts to temporarily replace their tracks and buildings, drawing for such purposes their force of men from the east and west ends of their road.
It further appeared, and was not disputed, that large numbers of people in Chicago, after the fire, were suffering and destitute, and that in order to relieve their immediate wants, it became necessary to send clothing, provisions, building material, hardware, stoves and other necessary supplies known as relief goods, forward, which made the freight business threefold greater than it had been before the fire; that the company under these circumstances immediately issued orders, as soon as they were able to carry any freight, to give relief goods the preference, next in order fruit and perishable property, and then general merchandise.
It also appeared that at the time the apples in question were received by the defendant its line of road was greatly blocked by an accumulation of freight, occasioned by the causes already stated; that previous to the fire the running time of freight trains from Vandalia to Chicago was about twenty-four hours; that at the time this shipment was made the average running time between the same points was ten days, on account of the fire and great increase of freight; and that the apples were carried in about seven days.
Under the facts as stated, the defendant denied that there was any unreasonable delay on its road, and insisted that having completed the carriage of the fruit over its road, and delivered it to the next carrier in good order,- in no event could it be held liable for the alleged injury to the property, occurring while in transit, and in the custody of the next carrier.
Was there, then, under the circumstances stated, any unreasonable delay on the part of the company in the carriage of these apples between Vandalia and Chicago?
Railroad companies are bound to have all reasonable and necessary facilities and appliances for conducting and carrying on the business in which they are engaged in a prompt, skillful and careful manner. It is their duty to keep and maintain their tracks in a good condition and state of repair, to have a sufficient supply of rolling stock to carry, and suitable depots to receive, the usual and ordinary quantity of freight offered them for transportation, or which might reasonably and ordinarily be expected. They are not bound, however, to be prepared for unusual and extraordinary contingencies which no ordinary prudence or foresight could reasonably foresee or anticipate. And where an unusual contingency has arisen, which unexpectedly largely increases the business, or prevents, as in this case, the handling of freight in so prompt and expeditious a manner as the company formerly had been accustomed to do, the company can not be charged with unreasonable delay for not carrying-freight in the same time it had done previous to such- contingency. In other words, what would or would not constitute unreasonable delay, cannot be determined by a comparison between the actual time and what had been the average running time between two given points under usual and ordinary circumstances. The proper question would be, what was the average running time under the extraordinary and unusual circumstances existing at the time of the alleged delay; and then to ascertain whether the goods in question had been unreasonably delayed beyond such time.
It appears in this case that the average running time between Vandalia and Chicago when these apples were shipped was ten days, while the time occupied in carrying and transferring the apples did not exceed seven, thus showing not only that there was really no delay in this case, but that these goods were given a preference and were carried through in an unusually prompt -and expeditious manner under all the circumstances.
Look at the result of the doctrine contended for by the plaintiffs if carried out. The usual and average time for carrying freight before the fire between Vandalia and Chicago was two days. Owing to the destruction of the company’s tracks and depots, and the large and sudden influx of business, ten clays was the average time actually required to carry freight between these same points, and it was impossible for the company to carry it in two days. Should the company, under the facts as presented, be liable for unnecessary delay in each case where more than two days was taken to transport freight between those points? To so hold would be to render the company liable in every instance, and that for a delay caused by circumstances over which it had no control.
The position taken by plaintiffs, defendants in error here, would make it the duty of the company to carry and deliver freight with the same rapidity during the time of these extraordinary occurrences that it did previous there to, and hold it responsible for the delay if it did not. But the company found it impossible, without any fault on its part, so to do. The destruction of the tracks and depots utterly prevented the company from handling freight with its accustomed rapidity, and caused a blockade along the entire line. Circumstances beyond their control prevented, and the law does not seek to hold any one responsible upon the ground of negligence for not doing that which, it was practically impossible to do.
It was urged, however, that it was the duty of the company to send forward freight in the same order in which it was received; that there should have been no discrimination made, no preference given between the classes of freight received by the company for transportation. After the fire large quantities of goods were being sent forward by relief societies from all parts of the country for the purpose of both preventing and relieving the great suffering and distress which did exist and otherwise would have existed among" the people, who had by a great public calamity suddenly been left without proper clothing or houses to shield and protect them from the inclemencies of the season, or sufficient provisions to prevent many of them from imminent danger of starvation. So urgent was the demand for supplies that relief societies sprung up as if by magic all over the country. The people promptly responded to their calls, and the necessary supplies of all kinds were sent forward in such abundance that railroad companies, crippled as they were by the fire, found it difficult to promptly carry and dispose of their freights. Belief goods, therefore, were given the preference, and the companies would have been justly chargeable with public condemnation had they refused to give a preference to and carry all such goods offered for transportation under the circumstances. Although the company had suffered very great injury by the fire, yet it was doing all in its power to repair the damage as promptly as it could, and at the same time making every effort to carry forward all goods received, making, however, a just, proper, and highly commendable discrimination in favor of that class of goods which would alleviate the suffering and distressed. The law is not so harsh and unjust as to punish a common carrier who makes such a discrimination under the circumstances, but rather commends and approves what was done. TVhile, therefore, it may be true as a general proposition, that it was the duty of the company to forward freight in the order in which it was received,yet in this case there was a great public necessity to which all general rules must bend, making it the imperative duty of the company to give relief goods a preference. “The law itself and the administration of it,” said Sir W. Scott (2 Dods., 323-4), “must yield to that to which every thing must bend— to necessity. The law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling to impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases. In the performance of that duty, it has three points to which its attention must be directed. . In the first place it must see that the nature of the necessity pleaded be such as the law itself would respect, for there may be a necessity which it would not. A necessity created by a man’s own act, with a fair previous knowledge of the consequences that would follow, and under circumstances which he had then a power of controlling, is of that nature. Secondly, that the party who was so placed used all practicable endeavors to sur- . mount the difficulties which already formed that necessity, and which on fair trial he found insurmountable. I do not mean all the endeavors which the wit of man, as it exists in the acutest understanding, might suggest, but such as may reasonably be expected from a fair degree of discretion and an ordinary knowledge of business. Thirdly, that all this shall appear by distinct and unsuspected testimony; for the positive injunctions of the law, if proved to be violated, can give way to nothing but the clearest proof of the necessity that compelled the violation.” And it is also said to be a general rule admitting of ample practical illustration, “that where the law creates a duty or charge, and the party is unable to perform it without any default in him, and has no remedy oyer, there the law will in general excuse him.” — Paradine v. Jane, Aleyn, 27, cited per Lawrence, J., m 8 T. R., 267; Evans v. Hutton, 5 Scott, N. R., 670.
This case comes within the principles quoted. Here was a necessity which the law would respect. It was not created by the company’s own act, but by a power which proved to be beyond the control of man. The company used all practicable endeavors to surmount the difficulties which formed that necessity, and all this appeared by distinct and unsuspected testimony. We are all of opinion, therefore, that from the undisputed facts in this case there was not only no unreasonable or unnecessary delay in the transportation of the apples, but that the same were carried within the then average timé of carrying freight between Vandalia and Chicago, and that the jury should have been so instructed.
Admitting, however, that there was unreasonable delay between Vandalia and Chicago, would the defendant by reason thereof be liable for the injury which the apples sustained by freezing while in the custody of the next carrier?
In Clark v. Moore et al., 3 Mich., 62, it was said: “No damages are ever recoverable in actions ex contractu, unless they are shown by the party claiming them to be the natural and proximate consequence of the breach complained of. Of course each of the circumstances which concurred with the breach in producing the damage, and without which it would not have happened, is a part of its cause, and if any of these concurring circumstances are so far out of the ordinary course of nature, or of human affairs, that they cannot bo fairly presumed to have contemplated by the parties at the time of making the contract, then the damage is not the natural result of the breach, and is therefore not recoverable.” This rule has been since repeatedly followed.
The contract which the defendant entered into in thi case was to carry the property safely and deliver it within a reasonable time to the next carrier at Chicago. The only breach of this agreement complained of was the failure to deliver within a reasonable time. Are, then, the damages claimed the natural and proximate consequence of such breach? We think not. To be so the loss must be immediately connected with the supposed cause of it. The loss in this case might or might not have occurred even had there been no delay. If in the ordinary course of events a certain result usually follows from a given cause, then we may well consider the immediate relation of the one to the other to be established. Cold, freezing weather does not, however, in the ordinary course of events, follow from mere delay; such is not the natural and direct result of the delay. It is true that in certain climates, and at certain seasons, such an injury would be much more likely to result from delay, while at others there would be not even a possibility of such a result following. It is very evident, therefore, that rs we approach the one or the other we must enter upon debatable ground, where it would be very difficult, if not indeed impossible, to say what the result of a given delay would be. Where fruit is to be carried a long distance, especially in such a country as this, where the climate is so changeable, it would as frequently result that delay would be the cause of averting such an injury as of contributing to it. It may be true that had there been no delay whatever on the part of defendant, the loss would not have happened. The law, however, cannot enter upon an examination of, or inquiry into, all the concurring circumstances which may have assisted in producing the injury, and without which it would not have occurred. To do so would only be to involve the whole matter in utter uncertainty, for when once we leave the direct, and go to seeking after remote causes, we have entered upon an unending sea of uncertainty, and any conclusion which should be reached would depend more upon conjecture than facts.
Lord Bacon said: “It were infinite for the law to con sider the causes of causes, and their impulsions one of another, therefore it eontenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.” — Bacon’s Maxims. .
The following cases are so directly in point, and the reasoning therein so satisfactory, that a reference thereto will render any farther discussion unnecessary. — Denny v. N. Y. C. R. Co., 13 Gray, 481; Railroad Company v. Reeves, 10 Wall., 176; Morrison v. Davis, 20 Penn. St., 171; Hoadley v. Northern Transportation Co., 115 Mass., 304.
The'court, therefore, should have given defendant’s eleventh request to charge.
We think the court also erred in refusing to give defendant’s twelfth request. This request was based upon the assumption that ‘the Chicago and Northwestern R. R. Co. was guilty of negligent delay in carrying the apples after delivery to them by the defendant, and the court was requested to •charge, in substance, that if the jury should find that without such delay the damage would not have occurred, then the plaintiffs could not recover. It is somewhat difficult to conjecture upon what theory this request was refused. If the jury should find that there was negligent delay on the part of the carrier to whom defendant delivered the apples, and that without such delay the injury would not have occurred, then clearly this defendant should not be held responsible for an injury caused by the negligence of others over whom it had no control. Take the case of fruit, during the summer season, shipped at San Francisco for New York; during the transit it passes over several different 'lines of railroads; there is a delay of two days on each line, and in consequence of the entire delay, the fruit on reaching the ultimate consignee, is found badly damaged. Is the first carrier to be held responsible for the consequence of the •entire delay? Such a rule, to say the least, would savor very much of harshness, and if carried out to its legitimate results would, we think, end in absurdity. Suppose the fruit shipped at San Francisco was consigned to the European market, and eacli different carrier through whose hands it passed delayed it somewhat, and that in consequence of the combined delay, the fruit on arriving at its destination was found injured; or, arriving during a riot, was wantonly destroyed ; should the first carrier be held responsible for the entire loss? To so hold, there should be something in the undertaking or agreement into which the company entered, to show that it contracted with reference to such an enlarged liability; in other words, such an injury would not be the natural result of the delay on the part of the first carrier, but the result in part of' the combined delay. It would not, therefore, naturally result from the breach on the part of the first carrier, nor could such a result have been contemplated by the parties at the time of entering' into their agreement.
As the views we have taken of this case will be decisive upon a new trial, we do not consider it necessary to discuss the other questions raised. The judgment of the court below must be reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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] |
Graves, Oh. J:
Complainant sued for a divorce on a charge of desertion, and his case was dismissed. He filed his bill on the 6th day of November, 1873, and alleged the marriage on the 20th day of January, 1869, and averred that his wife deserted on the 5th day of November, 1871, or two years to a day prior to the filing of the bill. He was bound to prove his case in substance as stated, and hence was bound to .show an actual desertion begun at least as early as November 5th, 1871, and continued without interruption to the time of filing the bill. — Cooper v. Cooper, 17 Mich., 205; Porritt v. Porritt, 18 Mich., 420. There is no evidence or claim of an act of desertion earlier than the time averred, and the proof is, that the defendant went to her father’s and has since remained there. We have carefully examined all the testimony and are not satisfied it amounts to proof that when the defendant went to her father’s she designed absolutely to break off all matrimonial cohabitation for the future; and this difficulty in complainant’s case is increased by the proof that the parties met afterwards and treated upon measures for living together. This last proof goes further than to show entreaties and tender of kind offices by him to induce her to return, and which she rejected. It favors the idea that the parties were mutually consulting and deliberating upon a basis for living and consorting as husband and wife, and goes to negative the proposition that either party considered that matrimonial cohabitation was not to be resumed or continued. The result is, that in our opinion the bill is not maintained by the proofs, and that the decree should therefore be affirmed, with costs.
The other Justices concurred. • | [
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Graves, Ch. J:
Irwin brought general assumpsit, and his ground of action was an instrument of the following tenor, dated Albion, June 19, 1871: “For value received I promise to pay to the Northern Central Michigan Railroad Company or bearer the sum of fifteen hundred dollars, to be paid twenty per cent, a month from the first day of July, 1871, towards the right of way and grading said railroad from Jonesville to the city of Lansing. J. G. 'Wright.”
The general issue was pleaded, with notice of special matter, but no affidavit questioning the genuineness of the instrument was made.
The cause was tried by jury and a verdict returned for Irwin. A bill of exceptions was settled at Wright’s instance, and he brought error. At the trial Irwin produced the instrument declared on, and offered it in evidence, and the court admitted it against several objections. Tire only ground of objection which appears worthy of notice was, that the instrument was not a promissory note, and we are satisfied this was not tenable.
That Wright executed and delivered the paper to the company was fully admitted by his failure to show any thing by affidavit to the contrary, — Burson v. Huntington, 21 Mich., 415; Polhemus v. Savings Bank, 27 Mich., 44, and other cases; and the authorities are full to show that the writing is a promissory note. — Edwards on Bills, ch. 3. It contains all the elements required, and the statement at the end, about right of way and grading, does not take away its legal quality as a promissory note.
Wright, for an expressly admitted consideration, promised to pay the company or bearer a certain sum of money in definite instalments at specified times, and lie promised nothing else. He admits he delivered it to the company. There is no contingency, no alternative, no uncertainty. The passage superadded goes to explain how the party absolutely entitled to receive the money was expected to employ it; that is all, and it served in no manner to impair the right to exact the money promised at the times set for payment, as so much money payable by the provisions of a promissory note. — Beardslee v. Horton, 3 Mich., 560; Knight v. Jones, 21 Mich., 161; Littlefield v. Hodge, 6 Mich., 326; Fairchild v. Ogdensburgh, Clayton & Rome R. R. Co., 15 N. Y., 337; Hodges v. Shuler, 22 N. Y., 114; Bull v. Sims, 23 N. Y., 570; Oatman v. Taylor, 29 N. Y., 649, 665; Cota v. Buck, 7 Met., 588 ; Wells v. Brigham, 6 Cush., 6; Taylor v. Curry, 109 Mass., 36; Protection Insurance Co. v. Bill, 31 Conn., 534; Holland v. Hatch., 15 Ohio St., 464.
The case of Cook v. Satterlee, 6 Cow., 108, which was most relied on to support the objection, is not at all analogous. There W. F. and O. E. Clark drew a bill upon the Satterlees, and thereby requested them to pay four hundred dollars and take up a note for the amount which had been given by William and Henry B. Cook. By accejitance the Satterlees promised to do what was requested by the drawers, and the court considered that the undertaking amounted to a promise to pay four hundred dollars on the giving up of the note, and so was conditional; and, hence, as the court said, the instrument was not “technically” a bill of exchange.
Whether this view was right or wrong, it has no bearing here.
There was no force in the objection to the question put to Stetson, when asked whether the note shown to him was that on a copy of which he had computed the interest.
When the plaintiff below rested, the' defendant proceeded to offer evidence for the purpose of showing, as he claimed,' that the note was obtained -without consideration and by false inducements and fraudulent representations made by one then acting on behalf of the company, and who treated for the note, and in fact received it when made.
On objection by counsel for the plaintiff below this evidence was excluded. These rulings were certainly correct when they were made. Without stopping to consider whether the proof tendered, or. any part of it, would have been objectionable or not if the defendant had been in a situation at the time to advance the proposed defense as we understand it against Irwin, it is enough for the present purpose that he was not then in such a situation.
Irwin was presumptively a Iona ficle holder, and no evidence had then appeared to impeach his position as such and open the way to the defense. At a subsequent stage of the trial, and after these rulings, it was admitted for the purpose of the trial that Irwin took the note after it had fully matured from W. H. Brockway, who was then, and also at the 'time of the trial, a director of the company; that at the time of taking it Irwin was also a director and the president of the company, and that the note was an item of the assets retained by Brockway pursuant to a written instrument purporting to have been made by the company and Brockway under date of the 19th of August, 1871, or two months subsequent to the date of the note, and at which time Brockway was acting as one of the board of directors; that this instrument provided, amongst other things,' that Brockway, in consideration of the covenants and agreements to be kept and performed by him, should have as his own property all the notes and subscriptions then in any wise belonging to the company. Thereupon the plaintiff in error offered in evidence an instrument in writing, purporting-to have been executed between the company of the one part, by Mr. Brockway as their agent, and J. Condit Smith of the other part. This instrument bore date on the 8th day of J une, 1871, or eleven days prior to the execution and delivery of the note by Wright to the company. The admission of the paper was objected to, and the court excluded it. No explanation was given as to what was aimed at by its introduction, and as its relevancy was not apparent, the ruling was not irregular.
Wright’s counsel then offered evidence that the only inducement for his giving the note was Mr. Brockway’s statement that the road would run through Center street in Albion, and across Wright’s land, and that the depot would be located there, and that Wright could have sub-contracts for- construction.. This was rejected. The offer was not very precise and clear, but I am inclined to think it ought not to have been refused. The respective positions of Irwin and Brockway, their relations to the company, and their relations to each other through the company, had been shown. These and the other facts belonging to the case should be considered in connection with the proposal in question, and thus looking at the matter, the offer may be construed as importing a tender of evidence to show that the consideration -of the note consisted in benefits Wright might naturally expect, and did expect, from the final location of the road through Center street and across his land, and the location of the depot there; that Brockway being in a situation to know, and Wright not, the former assured Wright that the road and depot would be there, and hence gave Wright to understand that the sites of the road and depot were finally fixed and settled, and that Wright confided in Brockway’s assurance, and was thereby caused to believe, and did believe, that it was settled and determined that the road would go through Center street and across his land, and that the depot would be there placed.
Now if Wright was brought to give the note by such indúcements, and Mr. Brockway was either aware that the road and depot would not be so placed, or had no good reason for believing that they would be, and in point of fact they were fixed elsewhere, it appears to me that it should be left to the jury to find that the note was obtained by fraudulent misrepresentations. — Beebe v. Knapp, 28 Mich., 53; Bristol v. Braidwood, Ib., 191; Shaeffer v. Sleade, 7 Blackf., 178; Sawyer v. Prickett and wife, 19 Wall., 146.
Contemplating the offer in this way, the gist of the representation proposed to be shown would not be matter of opinion, or promissory in character, but of the existence of a fact or circumstance sure to produce consequences which Wright was willing to assume, and did actually assume would be valuable to him. But the offer may be viewed in another aspect. The evidence proposed had, with other facts admitted to the jury, some tendency to show that, the company, through Mr. Brockway, their agent, obtained the note on the consideration and agreement that the road and depot were already definitely located so as to cross his land and make the depot there, and as the fact was not so, and the road and depot were made elsewhere, the note was without consideration.
On the whole, it seems to me the evidence offered should have been submitted to the jury under proper instructions calling for their interpretation and application of it.
The judgment is reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Per Curiam:
1. Assignments of error in the general form of most of those in this case will not be .considered.
2. The question put to defendant, whether he ever paid plaintiff any more, was not open to the complaint iiow made, that it tended to prove set-off; but it was a proper question to draw out evidence of payment, which may properly be shown under the general issue. If the answer as given tended to prove set-off rather than payment, that was not ground of objection to the question; and the exception to the ruling admitting the question will, not support an assignment of error directed against the effect of the answer as evidence. The question being proper, the ruling admitting it was proper; and any objection to the answer as going beyond what the question called for, cannot be raised upon an exception to the correct ruling admitting the question; and, therefore, the real ground of complaint here sought to be urged is not supported by any exception.
Judgment affirmed. | [
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] |
The Court
held that the facts found shoAV that the contract Avas substantially performed by Blaisdell; that Sherman had no title or interest in the oxen that could be transferred separate from the contract; and that the facts found, therefore, did not support the judgment.
Judgment reversed. | [
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Cooley, Oii. J:
I. Borne of the questions which wore put to the witnesses called by the plaintiff, in order to show that the injury to her wall must have been caused by water flowing from defendants’ building, and which xYere ruled out by the circuit judge, seem to have been unobjectionable, and then' rejection was error, unless the same, witnesses were allowed to answer other questions of corresponding import. This seems to. have been the case in some instances. Tie do not deem it important to examine the several questions in detail, but as the case is to go back for a new trial, it will be sufficient to lay down tlie general principle which should govern if similar evidence should again ho offered.
The case was one of injury to the foundation walls of a building, some portion of which it would seem to have been conceded oii both sides must have been caused by water. The plaintiff’s ease was, that this xvater ivas thrown upon her walls by the roof of the defendants’ building constructed adjoining, with only some four inches between them. The theory of the defendants seems to have been, that the water which caused the injury was from the wet and springy soil on which the building stood, and from an accumulation that, for a time at least, had been allowed in the plaintiff's cellar. In support of her own view of the case the plaintiff called masons and others, and desired them to testify, from their knowledge, experience and observation, whether the injury to the building was caused by water from the inside," or by water poured from above upon the building on the outside. We say this' was what she appeared to seek by the questions proposed, though none of them were put exactly in this form, and some of them were probably objectionable, because comprehending something more which was not properly within the scope of a question calling for mere opinion.
The general inquiry which was proposed to be gone into did not call for opinions on matters of science, but on matters on which any man who has observed the effect of water upon walls might be supposed to be competent to express an opinion. The effect of water in disintegrating .the mortar of a wall is no more a matter of science than is the effect of a running stream in excavating its banks at its angles; the effect is one that any person may have occasion to observe, and that persons in all occupations may be competent to express opinions upon. One man’s observation and . experience may make his opinion more valuable than that of another, but this may or may not be because the observation and experience have been connected with some particular employment.
'Whether there will be in any particular case any marks or indications such as fairly can justify opinions, is a question which only the facts in that case can determine. If a man only sees the plaster of a wall disintegrated and destroyed by water, with nothing but the disintegration to indicate from whence the water came, it is obvious there can be no basis for an opinion on that subject, because water coming from any source must or may cause the result he sees. To ask him, then, his opinion whence the water came, would be unwarranted, because plainly he can have no opinion except such as he must form on facts or opinions communicated by others, or derived from something besides that which he is supposed to be giving an opinion upon. But if in addition to the fact of injury, there arc other facts indicating that the water came from a particular direction, or must have been applied in a particular way, it would be unreasonable to exclude opinions upon those indications. True, the indications themselves ought to be proved; and it is quite true also, that the jury are authorized to draw their own deductions from them; but no witness can fully present the appearances as they were before his eyes; and to take his testimony of what he saw, without his opinion, would seldom prove fully satisfactory, and would often be misleading. Indeed, .in many cases it is difficult to separate a description of the indications from an opinion upon them; nor is a witness always expected to do so. If a man were to come upon the track of a recent rain or snow storm, ho would hardly be stopped in giving an account of it as a witness if he were-to say among other things that the storm appeared to have come from a particular direction; because such a storm, as every one knows, must usually, for a time, leave behind it some very conclusive indications of the direction it had taken.
Of course in any such case it should appear that the witness had some basis of observation on which to justify his opinion; but when he has stated the peculiar facts,, his opinion may properly be called for. When called for, however, it should be confined to an opinion upon the very facts which have come under his observation, and the questions intended to elicit it ought to be framed with that view, and be calculated to exclude the influence of every thing else upon the reply. A man may find A’s wall injured and conclude that B committed the injury, because he knows B and A are enemies. Now, as the law will permit no one to testify to his opinion what B would be likely to do because of his hatred, neither will it permit a witness, in testifying to an injury A has received, to take this enmity into account in judging wheñee the injury came. The enmity as an independent fact may in some cases be put before the jury, but the witness must discard it from consideration when testifying. We speak of this with a view to more caution on a new trial, as we think some of the questions put before •were carelessly framed, and did not by their terms necessarily exclude from the mind of the witness all considerations but those connected with what he had observed and seen.
II. The circuit judge seems to have thought the doctrine of contributory negligence had or might have an important influence in determining the rights of the parties to this cause. If we do not misapprehend some of his rulings, lie intended to give the jury to understand that if the plaintiff ivas negligent in constructing her building upon wet and springy ground without sufficient foundations, or in allowing water to stand in her cellar, and this negligence contributed with ‘that of defendants’ in allowing the water to be thrown from their building upon hors, to injure the latter, then for this injury, because of the contributory fault on her part, she can have no cause of action against them. This, as it appears to us, ivas the idea intended to be conveyed by some of the instructions given, and in this way he ivas probably understood by the jury.
It seems hardly necessary to say that this is wholly A misapplication of the law of contributory negligence. It is no negligence, in any proper sense of the term, when one erects a building on foundations not calculated for great endurance. If the building is on his own land, and for his own use, ho has a perfect right to erect it so that it shall stand for a single year only, if he shall please to do so. His doing so can give no other person, not endangered by the building, a right to invade his premises and to destroy, or assist in the destruction of the building in a less time. No one can question his right to allow water to stand in his cellar, unless by so doing he creates a public nuisance, or a private nuisance to Ms neighbor. The injury thereby caused is his own concern, and a neighbor has no more right to add to it by a wrongful act of his own than he would have to commit a like injury upon the preihiscs of one who took better care of Ms buildings. Any other doctrine would detract greatly from the privileges and rights of private ownership), and place owners of property in many cases at the mercy of adjacent proprietors. The poor man whose roof was found going to decay might have it destroyed without remedy by the heedlessness of his neighbor, and the man who had built of wood might be set at defiance by one who had carelessly destroyed his building, because he was negligent in not building of brick or stone. It is impossible to predict where such a doctrine would lead, but it is certain that it would end in destroying the sanctity of private property.
All rules concerning the relative rights and duties of adjacent proprietors must have for their basis the concession to every one of the right to an undisturbed enjoymeut of his own, so long as he does not make use of it to the injury or annoyance of others. The durability of Ms structures concerns no one else, so long as they are not dangerous, and do not become or create nuisances. If, as they stand or are used, they will stand for five years, the wrongful act of another party which causes them to fall in two is as effectual to give a right of action as if the construction had been of the most substantial character. The damages recoverable would manifestly bo less, because the injury from the wrongful act would he less; but the right of action would be as complete in the one case as in the other.
What the plaintiff complains of here is, that defendants by their negligence threw water from their building on her wall and injured it. If the injury came from this source, the doctrine of contributory negligence might be applicable provided the plaintiff as well as the defendants had been neglectful of some duty in protecting her building against the water flowing from theirs. If, for instance, the gutter prepared for carrying the water off had been one which, by agreement or otherwise, it was the joint duty of the adjacent proprietors to keep in repair, neither of them would be suffered to maintain an action against the other for that which was the mutual fault of both. _ To this extent the rule is perfectly clear, and also perfectly reasonable; but it does not go to the extent of giving one man a right to create a nuisance on his neighbor’s land because the neighbor himself does not use his premises to the best advantage.
III. But although the defendants are liable if they have wrongfully thrown water upon plaintiff’s building to her injury, we do not think their duty in the premises was coextensive with the claim in that behalf set up on the j>art of the plaintiff. That claim seems to be that the defendants were bound, at all events and under all circumstances, to keep the water that flowed from their building from falling upon the plaintiff’s land.
There is some strong language in the case of Rylands v. Fletcher, Law R., 1 Exch., 265; S. C., Law R., 3 H. L., 330, as to the duty of one man to protect another against water flowing from his reservoir; but the case had no analogy to this in its facts, and the governing principle should perhaps be different. The injury in that case was from the bursting of a reservoir into which defendant had gathered water on his grounds; and it was thought that under the peculiar circumstances, which need not here be mentioned, the party should, at his peril, have kept the water from inflicting injury to his neighbors. That was an exceptional case, but this was the ordinary case. Here are adjoining proprietors in a- town, mutually improving their property with buildings. This is their right, and the policy of the law favors it. Neither of them is under obligation to permit His lot to remain vacant, because putting up a building will possibly throw water upon his neighbor.
The respective duties of the parties to each other are those which the requirements of good neighborhood in such a town would impose. Each must so use his own as not to injure Ms neighbor. But this means only that he shall use all due care and prudence to protect his neighbor; not that he shall at all events and under all circumstances protect him. Any injury that may result notwithstanding the observance of proper caution, must be deemed incident to the ownership of town property, and can give no right of action.
Undoubtedly the defendants were bound to put proper caves-troughs or gutters upon their building, and to keep them in proper order, if the neglect to do so would be likely to injure the plaintiff. But if they did this, and wore guilty of no negligence in that regard, the plaintiff can have no legal complaint against them. Injuries from extraordinary or accidental circumstances for which no one is in fault, must be left to be borne by those on whom they fall.
IV. Of the other points taken by the plaintiff in the brief in this court, we think the first and second not well taken. The question put to tbe witness Campbell was not wholly foreign to tho case, and might with propriety have been allowed, though a judgment would not be reversed for .an error — if it was one — so trivial. We are not prepared to say that there was any error in allowing the questions which were put to Sampson. The ninth request of the defend ants, as modified by the judge and then given, was objectionable in assuming that the plaintiff was to be the moving party in the precautions taken to protect her premises against water from defendants’ building. Her consent and cooperation might possibly have been necessary, but the duty of affirmative action was on the defendants. Still, the action of the plaintiff, or her non-action, might have an important bearing on the question of negligence under some circumstances. The question of what is customary in these cases is very important, and juries ought not to apply such strict rules as may lay the foundation for perpetual broils and litigations over unintentional and insignificant injuries.
The judgment must be reversed, with costs of this court, and a new trial ordered.
The other Justices concurred.
The defendant’s 9tli request, as modified and given, read as follows, the modifications added by the judge being printed in italics:
“If the jury find from the evidence that the building of defendants had been erected about eighteen years prior to the erection of plaintiff’s building, which was placed within a few inches of the eaves of defendants’ building, and so close to the same, that an eaves-trough to protect the plaintiff’s building would necessarily have to he fastened to both buildings in order to prevent the injury complained of, then the plaintiff was hound to such care and prudence, under the peculiar circumstances of the case, as a reasonable, prudent person would exercise to protect his property; and defendants were entitled to good faith and fair dealing on the part of the plaintiff, and if she neglected to offer to co-operate with defendants in the erection of a proper eaves-trough or to request that such trough he erected, or neglected to do what good faith and fair dealing required of her under the peculiar circumstances of the ease, then, even if you find there was no other proper way to avert the injury complained of, than the erection of a valley attached to both buildings, the defendants could not ho held guilty merely for a neglect on their part to erect such valley.” | [
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Per Curiam.
Plaintiff appeals as of right from summary judgments granted in favor of both defendant insurance companies. The trial judge held that plaintiff’s back injury was not compensable under the no-fault automobile insurance act.
At the time of the claimed accident, plaintiff was a yardman for F. J. Boutell Company. His job responsibilities included loading and unloading trucks carrying automobiles. He had to drive the automobiles to and from a large parking lot on his employer’s premises. He rode in vans provided by his employer in order to reach and return from vehicles located a substantial distance away from the trucks.
On April 22, 1980, while getting in and out of these various vehicles, plaintiffs back began to hurt. The pain became worse each time he had to bend in and out of the vehicles he was entering and leaving. This back injury is the injury for which he seeks to recover no-fault benefits.
Defendant Carriers Insurance Company insured the vans in which plaintiff rode to and from new vehicles on the lot. The automobiles themselves were not insured and not required to be. Defendant Allstate Insurance Company was plaintiffs personal no-fault insurer.
Both defendants moved for summary judgment, GCR 1963, 117.2(3), claiming that plaintiffs injury was not covered by the no-fault act. Both motions were granted.
At the motion hearing and on appeal, defendants claim that plaintiff did not incur a single injury to his back, but suffered progressively greater pain which eventually resulted in his alleged injury. In making this argument, defendants rely on the following statements taken from plaintiffs deposition:
"Q. Mr. Randles, I mean, did anything happen while you were at work in April of '80? Did you fall down or were you hurt again?
"A. I did not fall down again, no; just constantly walking, bending over.
"Q. You didn’t have any accident, what you would call an accident in April of 1980?
"A. No.”
These statements do not clearly support the proposition that no single point in time existed at which an injury occurred. The fact that an injury was not immediately perceptible is not dispositive; traumatic injuries do not always manifest themselves when first received.
On appeal, plaintiff claims that, although it cannot be identified, a single point in time existed at which the pain in his back increased so suddenly that it can be said that an injury occurred. For purposes of this appeal, we accept this claim as true. We nonetheless affirm the decision of the trial court. For purposes of this appeal, we view this case as one in which the plaintiff injured his back while entering or exiting from a motor vehicle. A no-fault insurer is liable to pay personal protection benefits "for accidental bodily injury arising, out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle”. MCL 500.3105(1); MSA 24.13105. Bodily injury is not accidental only if it was intentionally suffered by the injured person or intentionally caused by the person claiming benefits. MCL 500.3105(4); MSA 24.13105(4). Under the statutory definition, the injury to plaintiff was accidental.
We nonetheless find that the injury did not arise out of the use of a motor, vehicle as a motor vehicle. We agree with the trial court that the motor vehicles in question merely provided the situs for plaintiff’s injury.
When the legislative purpose behind the no-fault act is considered, the facts of this case are closely analogous to those of Wheeler v Tucker Freight Lines Co, Inc, 125 Mich App 123; 336 NW2d 14 (1983). In Wheeler, this Court stated that 19 years of the rigors of truck driving eventually took their toll on the plaintiff’s back, "disabling him completely by late 1979”. The Supreme Court has stated that eligibility for no-fault benefits depends on "whether the injury upon which the claim is based is the type of injury which the act is designed to compensate”. See Belcher v Aetna Casualty & Surety Co, 409 Mich 231, 242; 293 NW2d 594 (1980).
In Wheeler, this Court noted that the plaintiffs injury was "accidental” under a literal reading of the statutory definition contained in MCL 500.3105(4); MSA 24.13105(4). It held, however, that a literal application of the terms of the statute in that case would conflict with the underlying purpose of the no-fault act. Wheeler, supra, p 126. This Court concluded that plaintiff’s injuries were not compensable because they were not sustained in a single accident having one temporal and spatial location. Instead, they arose from a series of events spanning many years of driving over many miles of roads. Wheeler, supra, p 128.
Plaintiff has attempted to distinguish the present case from Wheeler, supra. Although some of the reasoning in Wheeler does not apply here, much of it does. Even though plaintiffs injury was not suffered intentionally, it was not the result of a "motor vehicle accident” as that term is commonly understood.
We find the reasoning of the Minnesota Supreme Court in a similar case to be persuasive:
"Galle and Schroedl were both engaged in loading and unloading heavy boxes inside of stationary vehicles. * * * The only issue on appeal is whether plaintiffs’ injuries arose out of the 'maintenance or use of a motor vehicle,’ the definition of which is set forth in Minn. Stat § 65B.43, subd. 3 (1980):
"' "Maintenance or use of a motor vehicle” means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, and alighting from it. Maintenance or use of a motor vehicle does not include * * * (2) conduct in the course of loading and unloading the vehicle unless the conduct occurs while occupying, entering into or alighting from it. (emphasis added).’
"* * * In the present case, all three plaintiffs were engaged in loading or unloading activities and were occupying or entering their vehicles at the time they suffered their injuries. Thus both requirements of § 65B.43, subd. 3(2) (1980) have been met.
"We do not believe, however, that all loading and unloading injuries incurred while occupying, entering into or alighting from a vehicle are necessarily compensable under the No-Fault Act. The injury must also arise out of the 'maintenance or use of a motor vehicle as a vehicle.’ Minn. Stat. § 65B.43, subd. 3 (1980). To hold otherwise would lead to extreme and absurd coverage results which we are certain the Legislature never intended. Would no-fault coverage exist in a situation where a Brinks security guard standing in the rear of his truck unloading money is shot by a robber? Would coverage be extended to an instance where the freight being unloaded were fireworks and the injury resulted from an accidental explosion? We do not believe these are injuries for which the Act is intended to provide compensation, for there is no causal relationship between the injury and the use of the vehicle for transportation purposes. Haagenson v Nat’l Farmers Union Property & Casualty Co, 277 NW2d 648, 652 (Minn 1979).
"The Commissioners’ Comments to Section 1(a)(6) of the 1972 Uniform Motor Vehicle Accident Reparations Act, in discussing the definition of 'maintenance or use of a motor vehicle’ state:
" 'While "use” has a broader meaning than operating or driving a vehicle, the requirement that use of the motor vehicle be "as a motor vehicle” qualifies the term so that both the tort exemption and the availability of basic reparation benefits are more nearly limited to activities whose costs should be allocated to motoring as part of an automobile insurance package.’
"14 Uniform Laws Annotated 55-56 (1980).
"The maintenance or use issue has been discussed in several cases, but 'each case presenting such a question must to a great degree, turn on the particular facts presented.’ Associated Independent Dealers, Inc v Mutual Service Ins Cos 304 Minn 179, 182; 229 NW2d 516, 518 (1975) (footnote omitted). A person injured when he is entering a car intending to become a passenger would be allowed recovery. See Haagenson v Nat’l Farmers Union Property & Casualty Co, 277 NW2d 648, 652 (Minn 1979). In contrast, an intoxicated, unconscious person who dies due to exposure when left sitting in a car overnight has not suffered an injury arising from the use of the automobile as a vehicle. See Engeldinger v State Auto & Casualty Underwriters, 306 Minn 202; 236 NW2d 596 (1975). Where it is established that the injury or loss 'was a natural and reasonable incident or consequence of the use of the [insured] vehicle,’ Associated Independent Dealers, Inc v Mutual Service Ins Cos, 304 Minn 179, 182; 229 NW2d 516 (1975) (footnote omitted), a sufficient relationship between the injury and the use of the vehicle for transportation purposes exists to allow recovery.
"* * * While it is true that lifting injuries are not unlikely when the vehicle in question is a delivery truck, it is apparent that the injuries occur not because of the use of the vehicle but because of the nature of plaintiffs’ employment. This is not one of those activities 'whose costs should be allocated to motoring as part of an automobile insurance package.’ Commissioner’s Comments supra.” Galle v Excalibur Ins Co, 317 NW2d 368, 369-370 (Minn, 1982) (footnote omitted).
We agree with the trial judge that plaintiffs injury, suffered "through accumulated use of his body in a certain way in the course of his employment”, was not an injury from a motor vehicle accident under the no-fault act.
Affirmed.
Plaintiff’s deposition was never filed with the trial court and has not been included in the record on appeal. We are unwilling to place total reliance on isolated phrases in a deposition, where no effort is made' to inform the court of the context in which those phrases are use. .... | [
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Per Curiam.
Defendant was charged and arraigned in circuit court on two counts of forgery, MCL 750.248; MSA 28.445, and two counts of uttering and publishing, MCL 750.249; MSA 28.446, and was given notice of the prosecutor’s intent to file a supplemental information charging him as an habitual offender. Pursuant to a plea bargain, defendant pled guilty to one of the uttering and publishing counts and to the charge of being a second offender in return for dismissal of the other three counts and the charge of being a fourth time habitual criminal. Defendant was then sentenced to 7 to 14 years for uttering and publishing and 12 to 21 years as an habitual criminal. He appeals as of right, claiming that the trial court abused its discretion in imposing a sentence that shocks the conscience.
At the sentencing hearing, defendant and defense counsel stated that they had reviewed the presentence report, and defense counsel allocuted on defendant’s behalf. The trial judge reviewed defendant’s prior criminal record, which indicated that defendant has been in constant difficulty with the law since he was 18 years of age, including an attempted breaking and entering, a probation violation, joyriding, two attempted larcenies, and an assault and battery. The court noted that defendant is now aged 23 and unemployed.
Uttering and publishing is punishable by up to 14 years’ imprisonment.
Under the circumstances, we cannot say that the sentence was cruel and unusual under either the United States or Michigan Constitution. After reading the presentence report, we cannot say the sentence shocks our conscience. People v Coles, 417 Mich 523; 339 NW2d 440 (1983). If anything, the sentence prescribed by the statute for uttering and publishing seems harsh; however, that is a question for the Legislature, not us.
Affirmed. | [
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Per Curiam.
Defendant pled guilty to breaking into a safe, MCL 750.531; MSA 28.799, and breaking and entering, MCL 750.110; MSA 28.305. Defendant was sentenced to five years’ probation with the first year to be served in the county jail. Defense counsel asked about credit for time served, and the court stated that there would be no credit and that he was "taking that into consideration in placing him on probation”.
On appeal, defendant argues that he is entitled to credit for time served. The trial judge indicated that one year in jail, along with probation, was too lenient a sentence for defendant unless defendant was not given credit for time served. The statute allowing for credit for time served is mandatory. People v Woodard, 134 Mich App 128, 131; 350 NW2d 761 (1984). The fact that the trial court may have granted a "lenient” sentence in consideration of the time already served does not give the trial court the discretion to deny the credit. Id. Defendant is, therefore, entitled to credit for time served. We note that the record does not indicate the number of days to be credited to defendant’s sentence. We therefore remand to the trial court to correct the sentence, allowing credit for time previously served.
Remanded. | [
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] |
Per Curiam.
Plaintiff, Gus Taylor, appeals as of right from a judgment of no cause of action entered following a directed verdict for defendant, Wyeth Laboratories, Inc.
This case arose from the death of plaintiff’s wife, Carrie Sue Taylor. Plaintiff alleged that his wife died from a pulmonary embolism (a blood clot in the lung) which was caused by her consumption of the oral contraceptive Ovral-21, manufactured by defendant Wyeth Laboratories. The medication was prescribed by defendant Dr. Brockington. Defendant Dr. Johnson treated decedent for a broken ankle shortly before her death.
Plaintiff claimed defendant Wyeth had been negligent in two respects: (1) in failing to adequately test Ovral-21 before and after marketing with regard to its use and the occurrence of "thromboembolic disorders” (blood clotting); and (2) in failing to provide physicians with adequate warnings of the specific relationship between Ovral-21 and the occurrence of blood clots, in particular, the increased risk to women with certain blood types. In addition, according to plaintiff, defendant Wyeth failed to advise physicians of available diagnostic tests which should be administered to patients using the substance. Plaintiff alleged that each of these acts or omissions "was a proximate and foreseeable cause” of his wife’s death. The defendant physicians reached a settlement with plaintiff during trial.
At trial, plaintiff testified that his wife broke her ankle on January 4, 1979. Dr. Johnson applied a second cast to decedent’s leg on January 19, after which decedent continued to complain about pain in her foot and leg. On February 26, 1979, plaintiff took decedent to Dr. Johnson’s office for an appointment, at which time decedent collapsed outside the doctor’s office and was dead on arrival at the hospital. The medical examiner concluded that she died from a "massive pulmonary embolism or blood clot” which migrated from her leg to the large blood vessel connecting her heart to the lungs. The contraceptive was "a factor in the forming of the clot in this case”. Decedent was 34 years old.
At the close of plaintiff’s proofs, the trial judge granted defendant’s motion for directed verdict. On the claim of failure to test, the judge concluded there was insufficient evidence of the information available to defendant and of "what the testing was going to be all about”. Moreover, in the judge’s view, "there is no indication that the testing would have changed what’s in the labeling”. On the failure to advise of the availability of the blood tests, the judge relied on the testimony of Dr. Laird on cross-examination. The judge recalled that Laird "indicated that these tests were available but he himself [sic] would not advise that these tests be given”. The judge also stated:
"And without such a showing, it would seem the fact that the manufacturer did not warn or advise that these tests were available is not of import, because even if they were available, if in fact they were too expensive, that expense outweighed the risk and would make no difference.
"So I find that particular issue does not weigh in plaintiff’s favor and that no reasonable person can say that that testing or advising of the test should have been in the warnings to the physician.”
The judge further held that, even if the warnings were inadequate in the manner averred by plaintiff, there was no showing of proximate cause; in other words, that Dr. Brockington’s "actions would have been any different”. The judge noted that Dr. Johnson was decedent’s physician at the time of her death and that Dr. Johnson testified that he never asked if decedent used the pill. Both doctors "knew of the associated increase of thromboembolic disorder”. The judge concluded that no reasonable person could find that any inadequacy in the warnings was the proximate cause of decedent’s death.
On August 10, 1983, the trial judge heard argument on and denied plaintiff’s motion for new trial. The judge reiterated some of her findings made on the motion for directred verdict. In addition, the judge held that Dr. Johnson’s conduct was an intervening cause, the sole proximate cause of the injury complained of.
On appeal, plaintiff raises two issues. First, he contends that the trial judge erred in granting a directed verdict on plaintiff’s claim that defendant negligently failed to adequately test for and research the cause of the injurious effects of its product. We agree.
If the evidence, viewed in a light most favorable to plaintiff, establishes a prima facie case, a defense motion for directed verdict should be denied. If material issues of fact remain, upon which reasonable minds might differ, they are for the jury. A plaintiff has the right to ask the jury to believe the case as he presented it, however improbable it may seem. Directed verdicts are particularly disfavored in negligence actions, since the ultimate questions are so often the reasonableness of defendant’s conduct and whether that conduct was a proximate cause of the plaintiffs injury.
A manufacturer’s duty of reasonable care includes a duty of product inspection and testing during and after the course of manufacture as is reasonably necessary to render the product safe for its users. As in other negligence actions, generally it is a question of fact for the jury whether a manufacturer’s failure to test or inspect the product constitutes negligence. Plaintiff must show there was a danger which could have been detected and that the injury was proximately caused by the discoverable defect. In this respect also, such a claim is no different from any negligence claim for which proximate cause is one of the elements of a prima facie case. This issue is one for the jury, provided there is evidence from which reasonable persons could draw a "fair inference” that the injury was caused by the negligent omission. _
In this case, plaintiff claimed that defendant should have conducted further testing and research on the relationship between Ovral-21 and blood clotting. Plaintiff submitted expert testimony that a prudent drug manufacturer would have explored the more specific relationship between blood types and the risk of blood clotting. Therefore, we believe that it was error for the trial judge to conclude that there was no evidence that defendant had information indicating such a relationship existed. Defendant’s employee, Dr. Lewis, admitted that defendant, along with the other oral contraceptive manufacturers, had such information but did not act upon it because they felt the evidence was insufficient. Plaintiff submitted medical research articles from which the jury could infer what the results of the tests would have been. In addition, Dr. Laird stated that he knew of 13 similar cases in which all of the women concerned had type A blood. Accordingly, reasonable minds could differ as to whether a causal connection existed.
Defendant argued that there is no study which establishes a direct link between blood type and coagulation factors in the blood, a fact which was admitted by plaintiff’s expert, Dr. Laird. While the lack of a study is cause for academic interest, it does not dispose of the issue. Plaintiff submitted evidence, in the form of medical research articles and Dr. Laird’s testimony, of the heightened danger of thrombosis for women with type A blood. That such women experienced a disproportionate share of the pulmonary embolisms is enough to create a jury question on the "failure to test” claim.
The trial court held that there was no showing of proximate cause, i.e., that defendant Wyeth would have changed its warning as a result of the tests which it failed to perform. However, plaintiffs "failure to test claim”, like all those of its kind, requires a certain degree of inferential reasoning. We believe that, on the basis of the evidence submitted, a reasonable jury could properly infer that the failure to test or conduct research on the blood type question was negligence.
Plaintiff also claims on appeal that the trial court erred in granting a directed verdict for defendant on plaintiff’s claim that defendant negligently failed to convey adequate warnings and instructions on the dangers associated with the use of Ovral-21.
A manufacturer of a prescription drug has a duty to warn the medical profession of any risks inherent in the use of the drug which the manufacturer "knows or should know” exist. If warnings or instructions are required, the information provided must be adequate, accurate and effective. Determination of whether this duty has been breached in the context of a negligence claim necessitates that the warnings given be examined as to their reasonableness under the circumstances. Whether referred to as "the specific standard of care”, or simply as "the reasonableness of the defendant’s conduct”, the issue is for the jury, unless all reasonable persons would agree or there is some overriding legislative policy to the con trary. This Court has repeatedly held that the adequacy of a warning and the reasonableness of a failure to warn are questions of fact. Moreover, "the duty to warn may exist even where the danger associated with the product is so slight that few have ever been injured by it”.
In the within case, plaintiff submitted expert testimony on three alleged inadequacies in the warnings accompanying defendant’s product. First, according to the testimony, the warning concerning the danger posed by prolonged immobilization was inadequate, since it was vague and "buried” deep within the printed material. The record does not, therefore, support defendant’s argument that there was no evidence of the warning’s inadequacy. This was a jury question, to be answered according to the jury’s view of the evidence, including the expert testimony and exhibits at hand.
There was evidence that defendant was aware of the correlation between blood type and blood clotting and chose not to warn about it. In addition to the admission of Dr. Lewis that defendant was aware of this danger, this Court has held that "the manufacturer is held to the knowledge of an expert and is presumed to know of scientific studies and articles concerning the safety of its products”. Dr. Laird testified that the patient’s blood coagulation factors should be tested and monitored and that two such tests were available at a combined cost of $24 to $40.
When defense counsel impeached Dr. Laird with his testimony in a 1978 trial, in which Laird said the tests should not "be required on a routine basis”, and that the tests "are expensive”, the witness stated he had changed his opinion since 1978. Further, Dr. Laird stood by his prior statement, explaining that his reference to "the advisability of using the tests” is "different than doing it in every single patient”. The trial court held, however, that Dr. Laird’s prior testimony, that in 1978 he felt the tests were too expensive to be routinely required, was conclusively favorable to defendant on this point. We believe that this was error.
On a motion for directed verdict, "the trial judge may not select among actual or seeming contradictory statements of a witness given on direct examination and cross-examination what he believes should be applied to that motion”. The inconsistency in the expert’s testimony presented a question of credibility for the jury. Moreover, the conflict was not an absolute one, given the evidence in the case. Even if Dr. Laird still held the view that a doctor need not give the tests routinely when he prescribes an oral contraceptive, a woman with type A blood would hardly present a "routine” case in which a doctor might reasonably omit these tests, given the information that women of that blood type were at greater risk.
More basically, the question of whether the expense outweighed the risk is precisely the kind of issue which must be decided by the jury. Dr. Laird’s personal view is perhaps relevant, but certainly not dispositive. This is a products liability case, not a professional negligence or malpractice case in which expert testimony would be required to demonstrate a breach of the pertinent standard of care. Determination of whether a battery of tests costing $40 is too expensive where a person’s life may be at stake does not necessarily call for a strictly professional judgment. The jury had evidence of the risk and the means available to obviate that risk. It was free to reject the expert’s opinion.
Finally, the trial judge held that there was no showing of proximate cause. Specifically, she ruled that there was no evidence that Dr. Brockington would have changed his advice to decedent if defendant’s warnings were altered to plaintiffs specifications, and that Dr. Johnson’s conduct was an intervening, superseding cause of the injury. In addition, defendant argues on appeal that the evidence conclusively established that decedent would have continued taking Ovral-21 even if the warnings had been made adequate.
Defendant notes that decedent continued taking the pill even though she experienced headaches, implying that this action shows that she would have also disregarded a warning linking her blood type to an increased danger of fatal blood clots. Apparently, this Court is asked to equate chronic headaches with the risk of fatal thromboembolic disorder. Defendant further notes that the danger of blood clotting is stated in the warnings. The trial judge also attached relevance to this fact:
"The Court would note that it is in fact a thromboembolic disorder from which Mrs. Taylor died and that this type of disorder is clearly warned about in the label and that reasonable people could not differ that this particular warning was contained.”_
Reasonableness is a question of fact. Here, the trial judge studied the warnings and found that they were adequate. However, this issue is not one for the judge to resolve. The jury could reasonably find that a generalized risk of blood clotting in women is not the same as a specific, enhanced risk, applicable to a specific class of individuals with a certain blood type. Defendant argues (and the trial court found) that Wyeth was entitled to the directed verdict because there was no evidence that Dr. Brockington advised decedent of the danger or that he would have relayed a revised warning to her, if the warning had been provided to him by defendant Wyeth. In fact, the record plainly contains the doctor’s statement that it was his custom to give his patients such warnings. There was no direct evidence of what he told the patient in this case because he had no recollection of her. However, evidence of his routine practice, though uncorroborated, is relevant to prove the conformity of his conduct thereto. The jury could reasonably infer that, if it had been provided to him, Dr. Brockington would have given a revised warning, that he would have tested decedent’s blood coagulation factors, and that her problem was discoverable and her death not inevitable.
"The proximate cause of an injury has been defined as that which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, without which such injury would not have occurred.” An act of negligence does not cease to be a proximate cause of the injury because of an intervening act of negli gence, if the prior negligence is still operating and the injury is not different in kind from that which would have resulted from the prior act. The courts of this state have held that whether an intervening negligent act of a third person constitutes a superseding proximate cause is a question for the jury. An intervening cause is not an absolute bar to liability if the intervening event is foreseeable, though negligent or even criminal.
Judged by this standard, it is clear that whether Dr. Johnson’s conduct was a superseding cause of the injury was a jury question. Plaintiff admitted by his complaint that Dr. Johnson (and Dr. Brockington, for that matter) was negligent. That is not the point. The court apparently ignored Dr. Brockington’s prescription of the medication based on defendant’s allegedly inadequate warning and concentrated instead on Dr. Johnson’s negligence. However, decedent’s use of the drug might have been stopped before she broke her ankle if she had been tested or warned.
As in Muilenberg v The Upjohn Co, plaintiff has presented a case in which a jury might find that the prescribing physician was not warned of the drug’s side effects with sufficient particularity. In such a situation, the physician, being ignorant of the enhanced risk to women with type A blood, would have no reason to hesitate.
For these reasons, we reverse the trial court’s judgment. We hold that plaintiff is entitled to a new trial on each of the claims raised against defendant Wyeth Laboratories.
Reversed.
Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975); Young v E W Bliss Co, 130 Mich App 363, 369; 343 NW2d 553 (1983).
Caldwell, supra; Villar v E W Bliss Co, 134 Mich App 116, 118; 350 NW2d 920 (1984).
Id.; Dowell v General Telephone Co of Michigan, 85 Mich App 84, 89-90; 270 NW2d 711 (1978).
Detroit & Milwaukee R Co v Van Steinburg, 17 Mich 99, 120-121 (1968); Beasley v Grand Trunk R Co, 90 Mich App 576, 583; 282 NW2d 401 (1979); Bosca v J A Ferguson Construction Co, 79 Mich App 177, 181; 261 NW2d 249 (1977).
Livesley v Continental Motors Corp, 331 Mich 434, 446; 49 NW2d 365 (1951).
63 Am Jur 2d, Products Liability, § 305, p 358.
Id., pp 358-359.
Ziginow v Redford Jaycees, 133 Mich App 259, 262; 349 NW2d 153 (1983).
Schedlbauer v Chris-Craft Corp, 381 Mich 217, 223; 160 NW2d 889 (1968) ; McKee v Dep’t of Transportation, 132 Mich App 714, 722; 349 NW2d 798 (1984).
Bilicki v W T Grant Co, 382 Mich 319, 325-326; 170 NW2d 30 (1969) .
Smith v E R Squibb & Sons, Inc, 405 Mich 79, 88; 273 NW2d 476 (1979).
Antcliff v State Employees Credit Union, 414 Mich 624, 638; 327 NW2d 814 (1982); Central Soya Co v Rose, 135 Mich App 180; 352 NW2d 727 (1984).
ER Squibb, supra, pp 88-89.
Moning v Alfono, 400 Mich 425, 438; 254 NW2d 759 (1977); Beals v Walker, 416 Mich 469, 480-481; 331 NW2d 700 (1982).
Downie v Kent Products, 122 Mich App 722, 731; 333 NW2d 528 (1983); Gutowski v M & R Plastics & Coating, Inc, 60 Mich App 499, 506-508; 231 NW2d 456 (1975).
Schedlbauer, supra, p 221; Gerkin v Brown & Sehler Co, 177 Mich 45, 60; 143 NW 48 (1913).
Dunn v Lederle Laboratories, 121 Mich App 73, 79-80; 328 NW2d 576 (1982).
Schedlbauer, supra, p 229; Dowell, supra, p 90.
See MRE 613.
Sullivan v Russell, 417 Mich 398, 407; 338 NW2d 181 (1983); Wilson v Stilwill, 411 Mich 587, 611; 309 NW2d 898 (1981).
Shapiro v Wendell Packing Co, 366 Mich 289, 295; 115 NW2d 87 (1962).
Dunn, supra, p 80.
MRE 406.
Weissert v City of Escanaba, 298 Mich 443, 452; 299 NW 139 (1941); Hall v Dep’t of State Highways, 109 Mich App 592, 603; 311 NW2d 813 (1981).
Parks v Starks, 342 Mich 443, 447; 70 NW2d 805 (1955); Michigan Sugar Co v Employers Mutual Liability Ins Co of Wisconsin, 107 Mich App 9, 15; 308 NW2d 684 (1981).
Young, supra, 130 Mich App 369.
Davis v Lhim, 124 Mich App 291, 307; 335 NW2d 481 (1983).
GCR 1963, 604; Slocum v Ford Motor Co, 111 Mich App 127, 132; 314 NW2d 546 (1981).
115 Mich App 316, 332-333; 320 NW2d 358 (1982). | [
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] |
Per Curiam.
The instant case comes before this Court on plaintiffs’ appeal as of right from an order of summary judgment entered in favor of defendant. Plaintiffs sought declaratory relief below, requesting payment from defendant for certain medical services rendered to defendant’s insureds. We affirm.
Initially, we note that defendant moved for summary judgment in lieu of a responsive pleading. Although defendant’s motion did not state specifically under which subrule of GCR 1963, 117.2 the motion was brought, it appears that defendant moved pursuant to GCR 117.2(1). Accordingly, we accept as true the well-pled facts in plaintiffs’ complaint. Borman’s, Inc v Lake State Development Co, 60 Mich App 175, 179; 230 NW2d 363 (1975).
Plaintiffs are duly licensed chiropractors within this state and participate as "health care providers” under a Blue Cross & Blue Shield of Michigan health care plan. Although we do not have benefit of a copy of the actual plan involved herein, MCL 550.1502(1); MSA 24.660(502)(1) sets forth the general conditions for health care agreements between a health care corporation and a professional health care provider:
"(1) A health care corporation may enter into participating contracts for reimbursement with professional health care providers practicing legally in this state for health care services which the professional health care providers may legally perform. A participating contract may cover all members or may be a separate and individual contract on a per claim basis, as set forth in the provider class plan, if, in entering into a separate and individual contract on a per claim basis, the participating provider certiñes to the health care corporation:
"(a) That the provider will accept payment from the corporation as payment in full for services rendered for the speeiñed claim for the member indicated.
"(b) That the provider will accept payment from the corporation as payment in full for all cases involving the procedure specified, for the duration of the calendar year.” (Emphasis added.)
In the instant case, plaintiffs averred that they perform professional services on many patients who have been involved in automobile accidents and who are both BCBSM subscribers and insureds of defendant under policies of no-fault insurance. Payment for such services is made by BCBSM pursuant to its contract with plaintiffs. However, pursuant to the same contract, as well as the above-cited portion of MCL 550.1502(1), plaintiffs must accept payment from BCBSM as payment in full for the services rendered. Until recently, according to plaintiffs, payment was nevertheless made by defendant on the difference between the contractually-set reimbursement rate paid by BCBSM and plaintiffs’ "customary” charge for such services. An example cited by plaintiffs concerns their practice with respect to x-rays. Plaintiffs normally charge $30 per x-ray, but, pursuant to agreement, BCBSM pays only $20 for such. The remaining $10 was paid by defendant pursuant to policies of no-fault insurance with its insureds who were injured in automobile accidents.
Recently, however, defendant has instituted a policy whereby payment to participating health care providers in excess of the amount paid by BCBSM is not made. Plaintiffs seek continued payment of this excess. Defendant bases its refusal to pay the excess on the following language in its no-fáult insurance contracts:
"We agree to pay in accordance with the Code the following benefits to or for an insured person (or, in case of his/her death, to or for the benefit of his/her dependent survivor[s],) who suffers accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. "MEDICAL BENEFITS (ALLOWABLE EXPENSES)
"All reasonable charges incurred for reasonably necessary products, services and accommodations for an insured person’s care, recovery or rehabilitation.” (Emphasis added.)
Defendant reasons that, because its insureds may not be charged more than the reimbursement rate pursuant to plaintiffs’ agreement with BCBSM, the excess charges are not "incurred” by defendant’s insureds inasmuch as they are not obligated to pay such. Furthermore, defendant’s policies of insurance contain the following coordination-of-benefits clause:
"If the declaration certificate shows coordinated medical benefits, sums paid or payable to or for you or any relative shall be reduced by any amount paid or payable under any valid and collectible: individual, blanket or group disability or hospitalization insurance; medical, surgical or hospital direct pay or reimbursement health care plan; worker’s compensation law, disability law of a similar nature, or any other state or federal law; or car or premises insurance affording medical expense benefits.” (Emphasis added.)
Defendant further reasons with respect to this clause that, by making specific reference in the contract to other insurance or health care plans with which defendant’s coverage is coordinated, its policies of no-fault insurance expressly contemplate incorporating the substance of those plans into the no-fault agreement; that is, BCBSM’s reimbursement rate for given services is expressly incorporated into the policies.
As noted, defendant moved for summary judgment. In addition to the above arguments, defendant argued that plaintiffs lacked standing to assert rights under a contract to which they were not parties. Plaintiffs also moved for summary judgment. In an opinion issued on September 22, 1983, the lower court held that plaintiffs did not lack standing because an actual controversy existed, that defendant was required to pay only those sums which its insureds were charged and obligated to pay, and that §§ 3107 and 3157 of the no-fault act, MCL 500.3107 and 500.3157; MSA 24.13107 and 24.13157, were not applicable to the instant situation. These provisions are discussed below.
Plaintiffs challenge defendant’s refusal to tender payment on the excess charges as being unfair and contrary to the import of defendant’s no-fault insurance policies. Plaintiffs further contend that defendant is not a third-party beneficiary of the BCBSM health care provider contract with plaintiffs, so that defendant has no right to limit its obligations on the basis of language in plaintiffs’ provider agreement. Finally, plaintiffs posit that, pursuant to § 3107 of the no-fault act, they are entitled to a "reasonable fee” and that § 3157’s proscription against charging other than the "customary fee” where insurance is involved is not implicated because "customarily” they would charge, for example, $30 for x-rays rather than the $20 allowed by BCBSM. We find plaintiffs’ position untenable.
As a preliminary matter, we decline to address the issue of plaintiffs’ standing. Plaintiffs correctly assert that defendant has not cross-appealed this issue. Moreover, plaintiffs brought a motion to dismiss the appeal on the basis of mootness and, to some extent, lack of standing, since defendant had begun to make the contested payments in the interim. Defendant opposed plaintiffs’ motion, and we denied it. Therefore, we will not address the standing issue.
Turning to the substance of plaintiffs’ claim, we specifically hold that granting plaintiffs their requested relief — to compel defendant to make payment on the difference between the BCBSM reimbursement rate and plaintiffs’ "reasonable” and "customary” fee — would contravene public policy.
The instant dispute focuses on the coordination-of-benefits clause in defendant’s no-fault insurance policies. Such clauses are specifically authorized by § 3109a of the no-fault act, which provides:
"An insurer providing personal protection insurance benefits shall offer, at appropriately reduced premium rates, deductibles and exclusions reasonably related to other health and accident coverage on the insured. The deductibles and exclusions required to be offered by this section shall be subject to prior approval by the commissioner and shall apply only to benefits payable to the person named in the policy, the spouse of the insured and any relative of either domiciled in the same household.” MCL 500.3109a; MSA 24.13109(1).
It has been held that this provision of the no-fault act "was inextricably tied to coordination of insurance protection with Blue Cross-Blue Shield-type benefits”. Nyquist v Aetna Ins Co, 84 Mich App 589, 592; 269 NW2d 687 (1978), aff'd 404 Mich 817; 280 NW2d 792 (1979). Indeed, a report on HR 5724, subsequently enacted into 1974 PA 72 (the present § 3109a), which was prepared by the Analysis Section of the House Insurance Committee and which was quoted with approval by the Supreme Court in LeBlanc v State Farm Mutual Automobile Ins Co, 410 Mich 173, 196-197; 301 NW2d 775 (1981), recites this relation to BCBSM coverage as one of the goals of § 3109a. The relevant portion of that report reads as follows:
“Argument For:
"The bill would save millions of dollars for Michigan drivers and would offer them an opportunity to eliminate their duplicate, overlapping insurance coverage since automobile insurers would be required to offer deductibles of exclusions which wrap-around a policyholder’s health and accident coverage. No-fault insurers would offer these deductions at reduced premiums, and State insurance official estimate the 5 to 6 million Michigan drivers could save $100 million annually.
"Agrument For:
"Passage of the bill would create more flexibility in health and accident coverage by offering consumers an insurance option which the vast majority of underwrit ers operating in Michigan do not offer. Further, if the Blue Cross/Blue Shield plans gain approval for their proposed modifications, the consumer seeking health and accident coverage will have yet another option from which to choose. The bill does not make it mandatory for an insurance buyer to select these deductibles and exclusions so many could still opt for overlapping coverage.
°Argument For:
"The skyrocketing hospital and medical costs could be contained to a greater extent with health and accident as the primary coverage since these policies, like the Blue Cross/Blue Shield plans, have established limits on their reimbursement of doctor and hospital expenses. A physician who knows his or her patient has unlimited medical coverage has no incentive to keep the doctor bill at a minimum.” (Emphasis added.)
We think the above-emphasized language is clear that the legislative mandate (embodied in § 3109a) requiring insurance companies to offer coordination-of-benefits clauses to their insureds contemplated the very situation presented here and sought to place a check on health care providers who have "no incentive to keep the doctor bill at a minimum”. In other words, the Legislature did not intend to allow participating health care providers to seek additional reimbursement from no-fault insurers over and above the BCBSM reimbursement rate. The no-fault act was as concerned with the rising cost of health care as it was with providing an efficient system of automobile insurance. And there is little doubt that the legislation governing health care corporations (BCBSM), MCL 550.1101 et seq.; MSA 24.660(101) et seq., had as its chief concern the affordability of health care. See generally the discussion in Blue Cross & Blue Shield of Michigan v Insurance Comm’r, 403 Mich 399; 270 NW2d 845 (1978). Accordingly, plaintiffs may not participate in the BCBSM health care plan and then frustrate the legislative attempt to contain health care costs by simply seeking payment on the excess from no-fault insurers.
We find further support for this position in §3157 of the no-fault act. That section provides that:
"[a] physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured person for an accidental bodily injury covered by personal protection insurance, and a person or institution providing rehabilitative occupational training following the injury, may charge a reasonable amount for the products, services and accommodations rendered. The charge shall not exceed the amount the person or institution customarily charges for like products, services and accommodations in cases not involving insurance.” (Emphasis added.) MCL 500.3157; MSA 24.13157.
The lower court stated that § 3157 had no application "in that the customary fees charged by a physician are not at issue when the plaintiffs have entered into a provider contract with BCBSM”. Section 3157 is, however, instructive on this issue. It represents the policy of this state that the existence of no-fault insurance shall not increase the cost of health care. In the context of the instant case, plaintiffs must accept the reimbursement rate prescribed by BCBSM for services rendered to patients whose injuries do not arise from situations covered by no-fault insurance. See MCL 550.1502; MSA 24.660(502). To seek remuneration in excess of the prescribed reimbursement rate for services rendered to "no-fault patients” collides directly with § 3157. This conclusion results irrespective of the reasonableness of the fees sought to be recovered, since plaintiffs seek such remuneration solely on the basis of the existence of no-fault insurance.
We do not address plaintiffs’ contentions that defendant is not a third-party beneficiary to their provider contract with BCBSM. Nor do we address defendant’s argument that its no-fault insurance policies incorporate such agreement by reference. Our decision is not based on the construction of either plaintiffs’ provider contract or defendant’s insurance policies. Rather, we hold, as a matter of public policy, that the relief sought by plaintiffs is precluded by the intent and spirit of the no-fault act.
Affirmed. No costs, a public question being involved. | [
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Per Curiam.
Defendant was charged with two counts of first-degree criminal sexual conduct, MCL 750.520(b)(1); MSA 28.788(2X1), and two counts of second-degree CSC, MCL 750.520(c)(1); MSA 28.788(3X1). Defendant was found guilty of all four charges after a jury trial. Defendant was sentenced to 7 to 20 years on each first-degree CSC count and 7 to 15 years for each second-degree CSC count. The sentences are concurrent. Defendant received credit for 84 days served in jail. Defendant appeals to this Court as of right.
Defendant claims on appeal that the trial court erred by admitting evidence of the victim’s out-of-court conduct to corroborate the truth about her accusation of the defendant. The victim’s mother, Vacheal Fields, testified that when she asked her daughter about defendant’s actions the child "burst out into tears”. Defendant contends that the victim’s conduct, crying when confronted by her mother, was a statement within the scope of the hearsay exclusions. This was the only basis for the objection at trial.
The question is whether the conduct, the victim’s crying, can be considered a statement. MRE 801(a) defines a statement for hearsay purposes as: (1) an oral or written assertion or, (2) nonverbal conduct of a person, if it is intended by him as an assertion. Crying can hardly be considered an oral or written assertion, therefore only MRE 801(a)(2) could possibly apply in this situation.
The Note to MRE 801(a) indicates that the rule is identical to FRE 801(a). The Advisory Committee’s Note to FRE 801(a) states:
"When evidence of conduct is offered on the theory that it is not a statement, and hence not hearsay, a preliminary determination will be required to determine whether an assertion is intended. The rule is so worded as to place the burden upon the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility.”
The record before us is void of any indication that the victim intended to make an assertion by her spontaneous act of crying. This is an instance of behavior so patently involuntary that it cannot by any stretch of the imagination be treated as a verbal assertion by the victim within the scope of MRE 801(a)(2). Cole v United States, 327 F2d 360 (CA 9, 1964); Bagwell & Stewart, Inc v Bennett, 214 Ga 780; 107 SE2d 824 (1959); McCormick, Evidence (2d ed), § 250, p 596.
We also note that MRE 801(a) is consistent with prior Michigan law. Before the rules came into effect the Michigan Supreme Court stated in People v Stewart, 397 Mich 1, 9-10; 242 NW2d 760, 763 (1976):
"Acts or conduct not intended as assertive are not hearsay and, therefore, they are admissible. It should be noted that nonassertive acts or conduct are not an exception to the hearsay rule — rather, they are not hearsay in the first place.”
The conduct at issue was not considered assertive conduct before the adoption of MRE 801(a)(2) and it is not assertive conduct under the rule. Nonassertive conduct is not hearsay.
No other objection was made at trial or on appeal. The ruling of the trial court was proper. Defendant’s conviction is affirmed. | [
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Per Curiam.
Defendant pled no contest to charges of second-degree murder, MCL 750.317; MSA 28.549, assault with intent to murder, MCL 750.83; MSA 28.278, and felony-firearm, MCL 750.227b; MSA 28.424(2). The trial court sentenced him to concurrent prison terms of 30 to 60 years for the murder conviction and 20 to 60 years for the assault conviction, and the mandatory, consecutive two-year term for felony-firearm. Defendant appeals as of right, raising three issues. We affirm.
This matter is before this Court for the second time. In 1980, defendant pled guilty to second-degree murder and felony-firearm, in exchange for dismissal of charges of first-degree murder and assault with intent to commit murder. The trial court sentenced him to a term of life imprisonment. This Court vacated the conviction in an unpublished per curiam opinion (Docket No. 55388, decided March 25, 1982), because defendant had been led to believe that he would be eligible for parole. On remand, the prosecution reinstituted the original charges.
Defendant contends that the 30-year minimum sentence imposed following his nolo contendere plea on remand is improper, since it amounts to a punishment for successfully appealing from the original, plea-based conviction. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969). According to defendant, the 30-year minimum is a greater sentence than the life term first imposed, because the latter sentence left him with a reasonable expectation of eligibility for parole after ten years under the "lifer law”. MCL 791.234(4); MSA 28.2304(4). This argument lacks merit. This Court’s reversal of defendant’s original conviction was based on a conclusion that his expectation of parole had no legal basis, owing to the effect of Proposal B. MCL 791.233; MSA 28.2303, People v Cohens (After Remand), 134 Mich App 132; 351 NW2d 205 (1984); People v Penn, 102 Mich App 731; 302 NW2d 298 (1981); but see People v Waterman, 137 Mich App 429; 358 NW2d 602 (1984). Since this Court vacated defendant’s prior conviction, his erroneous expectation of parole was irrelevant to the proceedings on remand. In fact, the sentence on remand now leaves defendant eligible for parole at some point in the future. MCL 791.234(1); MSA 28.2304(1).
Moreover, a life term is, by definition, a greater penalty than a minimum term of years. Even if Proposal B did not affect a "lifer’s” chances for parole, Waterman, supra, the mere possibility of parole would not render a life term less serious than a term of years. The decision whether to grant parole to such a prisoner is "discretionary with the parole board”. MCL 791.234(5); MSA 28.2304(5), Shields v Dep’t of Corrections, 128 Mich App 380; 340 NW2d 95 (1983). The sentencing court can prevent the granting of parole by filing written objections thereto. MCL 791.234(4). Thus, a "non-lifer” is more easily made eligible for parole than a "lifer”. MCL 791.234(1). Given this statutory scheme, whether a sentence imposed following a successful appeal is greater for purposes of Pearce, supra, is determined by the sentence itself, not by eligibility for parole.
Next, defendant argues that the prosecution could not charge him anew with first-degree murder after this Court vacated his guilty plea. People v McMiller, 389 Mich 425, 434; 208 NW2d 451 (1973), cert den 414 US 1080 (1973). We disagree. The rule announced in McMiller applies only where there was a procedural error in the plea-taking process. People v Thornton, 403 Mich 389, 392; 269 NW2d 192 (1978); People v Lippert, 79 Mich App 730, 737; 263 NW2d 268 (1977), lv den 404 Mich 805 (1978); see also GCR 1963, 785. There was no such error in defendant’s guilty plea proceeding. The trial court is not required to advise the accused of the consequences of Proposal B before accepting a guilty plea. People v Johnson, 413 Mich 487; 320 NW2d 876 (1982).
Defendant’s last claim is that there was an insufficient factual basis for his nolo contendere plea. The trial judge relied on his reading of the preliminary examination transcript. At the examination, the murder victim’s son testified that defendant shot him and his mother at close range with a handgun. Defense counsel stipulated to the sufficiency of the evidence adduced at the preliminary examination as a basis for the nolo contendere plea. There was no error. People v Chilton, 394 Mich 34; 228 NW2d 210 (1975); People v Michelle, 69 Mich App 389, 391; 245 NW2d 59 (1976).
Affirmed.
We also note that the McMiller rule is somewhat undercut by a recent amendment to GCR 1963, 785.7(7). See 418 Mich ix-xi. In appeals from guilty plea convictions entered on or after March 1, 1984, a defendant must raise alleged noncompliance with the court rule by moving in the trial court for withdrawal of the plea. If the motion is granted, the case may proceed on the basis of the original charge. | [
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Per Curiam.
This Court granted the application of defendants Vettes Mason Contractors and the Michigan State Accident Fund for leave to appeal from a decision of the Workers’ Compensation Appeal Board. The WCAB found that plaintiff was disabled due to pulmonary disease and a left shoulder injury and it apportioned liability among all defendants except the Silicosis & Dust Disease Fund.
Plaintiff was a bricklayer by trade. He filed a workers’ compensation claim, alleging that he was disabled by problems with his left shoulder caused by lifting, reaching, and pulling in his work. He also alleged that he suffered disabling pulmonary diseases due to repeated exposures to airborne irritants in his work.
The referee found that plaintiff was disabled both from pulmonary disease and shoulder injury and that each condition, "in itself and irrespective of the other, would cause total disability”; she further determined "that the shoulder injury was not attributable to a single event but resulted from the stresses and strains imposed by his employment”. The referee also held that plaintiff’s pulmonary disease constituted a disability which entitled defendant employers to partial reimbursement by the Silicosis and Dust Disease Fund. By concurrent order, liability was apportioned, for the pulmonary disease only, among the last employer, Valley Consolidated Industries, and the several prior employer defendants, pursuant to MCL 418.435; MSA 17.237(435). Each prior employer was ordered to reimburse the last employer, Valley Consolidated, in proportion to the amount of time plaintiff had worked for that employer.
The WCAB affirmed the findings of the referee as to plaintiff’s disabilities. However, the board reversed the referee’s determination of liability of the Silicosis and Dust Disease Fund and held that plaintiffs disabilities from both pulmonary disease and shoulder injury were fully apportionable among all defendant employers pursuant to statute.
This Court granted leave to consider on appeal the claim of plaintiffs prior employers (and their respective workers’ disability compensation liability insurers) that apportionment was not permissible because of the amendment to MCL 418.435; MSA 17.237(435) by 1980 PA 357. Valley Consolidated, plaintiffs last employer, contends that the 1980 amendment eliminating apportionment for Chapter 4 disabilities should not be applied retrospectively. We agree with Valley Consolidated’s argument that the statutory amendment should not be applied retrospectively so as to relieve the prior employers from apportionment.
Prior to 1980 PA 357, § 435 of the Worker’s Disability Compensation Act, MCL 418.435; MSA 17.237(435), provided that "total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted”. See Johnson v Valley Grey Iron Foundry, 58 Mich App 574; 228 NW2d 469 (1975). This portion of § 435 was not changed by 1980 PA 357. However, prior to 1980 PA 357, § 435 also afforded the last employer the right to require joinder of all prior employers identified by the last employer and, further, required an apportionment of liability for compensation according to the length of time a disabled employee had worked for each employer "in the employment to the nature of which the disease was due and in which it was contracted”. Derwinski v Eureka Tire Co, 407 Mich 469, 482; 286 NW2d 672 (1979).
The amendment to § 435, § 1 of 1980 PA 357, eliminated all references to apportionment of lia bility among the last and prior employers. Section 435 now simply provides that the "total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted”. In the present case, that employer would be Valley Consolidated Industries.
A statute should be applied retrospectively if the Legislature intends that result. Franks v White Pine Copper Div, Copper Range Co, 122 Mich App 177, 183; 332 NW2d 447 (1982), lv gtd 419 Mich 855 (1984). There is no language in amended § 435 stating that it applies retrospectively. To the contrary, there is language in the amending act which indicates that the Legislature intended amended § 435 to have only prospective effect. The Legislature approved and passed 1980 PA 357 in December, 1980. Section 2 of the amendatory act expressly declared that the amendment to § 435 would become effective January 1, 1981. 1980 PA 357, § 2. See Norwin v Ford Motor Co, 132 Mich App 790, 794; 348 NW2d 703 (1984). The decision of the referee was entered May 21, 1979, and affirmed (as modified) by the WCAB on May 4, 1982. Defendant Valley Consolidated had exercised its claim for apportionment well prior to January 1, 1981.
Defendant Vettes argues that the amendment to § 435 should be deemed procedural because it merely serves to establish the employer against whom the employee must proceed and repeals joinder of prior employers. We disagree and find that the amendment to § 435 deals with substantive and not procedural rights.
Both this Court and the Michigan Supreme Court have had occasion to consider whether sundry amendments to diverse provisions of the Work er’s Disability Compensation Act were to be applied retrospectively or to be given only prospective application. As a general rule of statutory construction, statutes are presumed to operate prospectively only, unless the contrary intent is clearly manifested. Selk v Detroit Plastic Products, 419 Mich 1, 9; 345 NW2d 184 (1984). The fact that the statute itself relates to antecedent events does not require a finding that it operates retrospectively. Selk, supra, p 9. On the other hand, an exception to the general rule has been recognized where a statute is remedial or is procedural in nature. Selk, supra, p 10; Hansen-Snyder Co v General Motors Corp, 371 Mich 480, 484-485; 124 NW2d 286 (1963).
The Supreme Court has stated on several occasions that the Worker’s Disability Compensation Act, as a whole, is essentially remedial legislation. See McAvoy v H B Sherman Co, 401 Mich 419, 437; 258 NW2d 414 (1977). In such cases, however, the Supreme Court was speaking of the act in the context of the rights of the injured worker to obtain compensation from his or her employer. Prior to the amendment of §435, the last employer could relieve his statutory burden by requiring prior employers to defray a proportionate share of the compensation obligation to the injured employee. The statute, as amended, now places the entire burden of compensating the injured employee on the last employer. The present case is unlike McAvoy, supra, which held that the section requiring employers to make immediate payment, pending appeal, of 70% of the benefits found due by the referee was procedural since substantive benefits ultimately owed, or not owed, remained the same. Here, although the amount ultimately owed by the last employer remains the same, the liability of prior employers is abolished while the cost to the last employer is substantially increased. Clearly, as between a last employer and prior employers, § 435 concerns substantive rights. See Briggs v Campbell, Wyant & Cannon Foundry Co, 2 Mich App 204, 218; 139 NW2d 336 (1966), aff'd on other grounds 379 Mich 160; 150 NW2d 752 (1967).
The presumption against retrospective application is especially true when "giving a statute operation will interfere with an existing contract, destroy a vested right, create a new liability in connection with a past transaction, or invalidate a defense which was good when the statute was passed”. Hansen-Snyder, supra, p 484. In the present case, the amendment takes away the right of the most recent employer to have its liability for compensation apportioned among prior employers in proportion to the time that the employee was employed in the service of each prior employer. Therefore, the general rule that an amendatory statute is to be given only prospective effect is applicable.
Even if we were to accept defendant Vettes’ argument that §435 is remedial because it was amended in response to Derwinski v Eureka Tire Co, supra, we would not find the amendment to be retrospective in effect for the same reasons. Therefore, we find that the WCAB properly apportioned the liability among plaintiffs prior employers.
Our finding, granting the prayer of Valley Consolidated that the order of the WCAB be affirmed, makes it unnecessary to address Valley Consolidated’s cross-appeal.
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Cynar, P.J.
Plaintiff was injured in an automobile accident by an uninsured motorist on May 30, 1981. A dispute arose between plaintiff and defendant concerning both the personal protection in surance benefits and benefits payable under the uninsured motorist coverage. Defendant apparently paid some of the personal injury protection benefits and plaintiff instituted an action in district court for those benefits allegedly outstanding. The district court action is still pending. On September 7, 1982, plaintiff demanded arbitration on the uninsured motorist claim pursuant to the terms of the insurance policy. The award was arbitrated and an award was given. Plaintiff also filed an action in Gratiot County Circuit Court alleging that defendant failed and refused to pay, or delayed in paying, plaintiffs insurance benefits, and that such actions constituted a tort under the Uniform Trade Practices Act. A motion for summary judgment under GCR 1963, 117.2(1) and a motion for accelerated judgment under GCR 1963, 116.1(2) were filed by defendant. Both motions were granted by the trial court. Plaintiff filed a delayed application for leave to appeal. Leave was granted by this Court.
Defendant based its motion for accelerated judgment pursuant to GCR 1963, 116.1(2) on the following arbitration clause in the insurance contract which provided:
"If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this Part, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this Part.”
The dispute between the parties does not fall within the terms of the arbitration clause. Plaintiffs claim does not involve his entitlement to benefits. Plaintiff, as will be discussed below, asserted a tort claim against the insurance company. Plaintiff was not seeking benefits under the contract in circuit court, nor was plaintiff claiming disagreement, in the circuit court action, with the amount of money due under the contract for his injuries. Plaintiffs claim was that there was actionable tortious conduct on the part of the defendant as the result of its handling of the claim. This type of dispute was not within the terms expressed in the arbitration clause. Arbitration is a matter of contract. A party cannot be required to arbitrate an issue unless he has agreed to do so. Kaleva-Norman-Dickson School Dist No 6 v Kaleva-Norman-Dickson School Teacher’s Ass’n, 393 Mich 583, 587; 227 NW2d 500 (1975). No construction of the arbitration clause can support the conclusion that this dispute was subject to arbitration; therefore accelerated judgment under GCR 1963, 116.1(2) was improper.
The next issue is whether summary judgment was properly granted pursuant to GCR 1963, 117.2(1). Summary judgment should only be granted when the plaintiffs claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Graves v Wayne County, 124 Mich App 36; 333 NW2d 740 (1983).
Plaintiff alleged three alternative bases for legal relief in the broadly stated complaint. First, plaintiff alleged that defendant’s actions in handling his claim for benefits constituted tortious conduct be cause they violated § 2006 of the Uniform Trade Practices Act, MCL 500.2006; MSA 24.12006. Second, plaintiff alleged the same actions constituted tortious conduct because they violated MCL 500.2026; MSA 24.12026. Third, plaintiff alleged tortious conduct amounting to bad faith failure to settle the claim resulting in anxiety, outrage and hardship to the plaintiff.
We first consider whether a private party may maintain an action in tort for violation of MCL 500.2006; MSA 24.12006. Plaintiff contends that MCL 500.2006; MSA 24.12006 creates a cause of action in tort which can be maintained by a private party. We disagree. In Barker v Underwriters at Lloyd’s, London, 564 F Supp 352 (ED Mich, 1983), the same question was before the district court. The plaintiff alleged that the insurer refused to promptly settle a fire insurance claim. Plaintiff also alleged, as in this case, that MCL 500.2006; MSA 24.12006 of the UTPA created an implied cause of action in a private party. The district court rejected that argument.
In Barker, the district court noted, as we do, that the UTPA was an amendment to the Insurance Code of 1956, 1956 PA 218; MCL 500.100 et seq.; MSA 24.1100 et seq. The UTPA is part and parcel of the Insurance .Code. The Insurance Code states: The provision precludes a private party from recovering penalties specified in the code unless otherwise provided. Dasen v Frankenmuth Mutual Ins Co, 39 Mich App 582; 197 NW2d 835 (1972).
"Every penalty provided for by this code, if not otherwise provided for, shall be sued for and recovered in the name of the people by the prosecuting attorney of the county in which the insurer or the agent or agents so violating shall be situated; and shall be paid into the treasury of said county; such penalties may also be sued for and recovered in the name of the people, by the attorney general, and, when sued for and collected by him, shall be paid into the state treasury.” MCL 500.230; MSA 24.1230.
This Court has held that a private party may directly recover the interest penalty in an action against the insurer. Fletcher v Aetna Casualty & Surety Co, 80 Mich App 439; 264 NW2d 19 (1978), aff'd on other grounds 409 Mich 1; 294 NW2d 141 (1980); Herring v Golden State Mutual Life Ins Co, 114 Mich App 148; 318 NW2d 641 (1982). However, the interest penalty is not what plaintiff sought here. Plaintiff instead contended that a cause of action in tort which can be pursued by a private party has been implicitly created by MCL 500.2006; MSA 24.12006. That is the gravamen of his complaint and the position was restated emphatically in his brief on appeal. We do not agree with that position. We believe the position enunciated in Barker, supra, p 355, is, instead, the correct one:
"The Court finds that plaintiffs may assert a private cause of action to recover the interest penalty in section 2006 of the UTPA since that section provides that the insurer pay the interest penalty to the insured on claims not paid on a timely basis. In the absence of any authority supporting the maintenance of a private cause of action founded upon any other section of the UTPA, the Court concludes that section 230 of the Insurance Code of 1956, MCLA § 500.230, governs the enforcement of the UTPA and that plaintiff may not assert a private cause of action based on other alleged violations of the UTPA.”
Summary judgment was proper on this issue. There is no implied private cause of action in tort for violation of MCL 500.2006; MSA 24.12006. This conclusion is further buttressed by our discussion of plaintiffs claim under MCL 500.2026; MSA 24.12026.
Plaintiff also claimed that a private cause of action is implied by MCL 500.2026; MSA 24.12026. This claim was rejected by the Michigan Supreme Court in Shavers v Attorney General, 402 Mich 554, 604, fn 27; 267 NW2d 72 (1978), cert den sub nom Allstate v Kelley, 442 US 934; 99 S Ct 2869; 61 L Ed 2d 303 (1979). The Michigan Supreme Court noted that isolated incidents do not constitute unfair trade practices under MCL 500.2026; MSA 24.12026; MCL 500.2027; MSA 24.12027. There can be no independent cause of action in a particular insurance client since an insurance client’s dealings with an insurance company are of necessity an isolated incident. MCL 500.2026; MSA 24.12026 is designed to give the Commissioner of Insurance authority over certain continuing practices of insurance companies. See MCL 500.2028 et seq.; MSA 24.12028 et seq. The insured does not have an independent cause of action under MCL 500.2026; MSA 24.12026.
Plaintiff’s final claim, as suggested by his complaint, was that defendant’s bad faith acts or omissions caused him hardship, anxiety, outrage and inconvenience. In Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401, 423; 295 NW2d 50 (1980), the Court was faced with a similar set of allegations. The plaintiff claimed that the defendant’s breach of a commercial insurance contract resulted in an actionable tort. After acknowledging case law in other jurisdictions, the Court stated:
"The plaintiff in this case alleged and proved no more than the failure of the defendant to discharge its obligations under the disability insurance contract.
"We decline to follow the California court and to declare the mere bad-faith breach of an insurance indemnity contract an independent and separately actionable tort and to thereby open the door to recovery for mental pain and suffering caused by breach of a commercial contract.”
This Court applied Kewin, supra, in Smith v Metropolitan Life Ins Co, 107 Mich App 447, 451; 309 NW2d 550 (1981). Kewin also applies here.
Summary judgment was proper under GCR 117.2(1) because plaintiff failed to state a claim upon which relief could be granted.
Affirmed as to the grant of summary judgment.
We note that this Court has held on two recent occasions that an insurance company’s bad faith refusal to settle a claim against the insured by a third party which exposes the insured to excess liability is actionable. Commercial Union Ins Co v Medical Protective Co, 136 Mich App 412; 356 NW2d 648 (1984); Commercial Union Ins Co v Liberty Mutual Ins Co, 137 Mich App 381; 356 NW2d 648 (1984). This case is distinguishable because the claim was by the insured against the insurance company, not by a third party against the insured. Note also that the alleged bad faith actions by the insurance company asserted by the plaintiff in this case did not expose the plaintiff to excess liability. We believe this case falls squarely within Kewin, supra. | [
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M. P. Reilly, J.
On June 30, 1980, petitioner, Board of Education, of Benton Harbor Area Schools, dismissed respondent from her teaching position on the ground that respondent had failed to establish and maintain control over her students. Resondent appealed to the State Tenure Commission, which held that the discharge was without reasonable and just cause because respondent was not afforded an adequate opportunity to correct the deficiencies which existed in her classroom performance. On June 17, 1981, the commission ordered that respondent be reinstated to a classroom position with petitioner effective at the start of the 1981-1982 school year. It further ordered petitioner to provide training to respondent in the areas of classroom control and student discipline during the period between the date of the commission’s decision and respondent’s return to the classroom. Proceedings on the issue of "salary lost” were held in abeyance pending the completion of the 1981-1982 school year. Petitioner appealed from the commission’s decision to the circuit court, which affirmed. Petitioner appeals as of right. Respondent has filed a cross-appeal claiming that she is entitled to be immediately reinstated and awared all lost pay.
On review, this Court must determine whether the commission’s order was authorized by law, and was supported by competent, material and substantial evidence on the whole record.
The facts as found by the State Tenure Commission are not in dispute. Respondent was a tenured teacher employed by petitioner since 1965. The majority of her teaching career with the Benton Harbor schools was in an elementary school position at the Sorter Elementary School. The Sorter school is located in a rural section of the Benton Harbor district and the student population at Sorter is largely white, middle and lower socioeconomic class. Respondent’s overall teaching performance at Sorter was evaluated as satisfactory, although there were noted performance difficulties in the area of classroom management and student discipline.
Following a maternity leave for the 1978-79 school year, respondent was assigned to the fourth grade position at the Martin Luther King, Jr. Elementary School. The King school is located within the City of Benton Harbor and is composed of a predominately black student population.
Respondent began experiencing classroom difficulties almost immediately upon commencement of the 1979-80 school year. These problems centered around respondent’s inability to establish effective methods of classroom control. The control problems subverted the instructional process in the classroom.
Administrators made numerous observations of respondent’s classroom, followed by conferences with respondent. The building administrator and central administrative staff found respondent’s classroom performance unsatisfactory. Supervisors provided respondent with suggestions for improving her deficiencies. On February 29, 1980, respondent was relieved of her classroom duties and assigned to a noninstructional position.
On March 11, 1980, charges were filed with petitioner board alleging 11 areas of unsatisfactory performance, concluding that respondent was unfit to teach. The board proceeded on the charges pursuant to provisions of Article IV of the teacher tenure act, MCL 38.101 et seq.; MSA 15.2001 et seq. By decision dated June 30, 1980, petitioner board found that several of the charges were substantiated and ordered respondent discharged. The board concluded that respondent had failed to establish control over her students, creating an ineffective learning environment in the classroom and a resulting adverse effect on the district.
Respondent appealed to the State Tenure Commission alleging that the record before the board of education did not support a finding of reasonable and just cause for discharge. De novo proceedings were held before the commission. On June 17, 1981, the commission, one member dissenting, issued its decision. The only portion of the decision relevant to the present appeal is the commission’s findings with regard to the charge that respondent was incompetent to teach. The commission found that, despite extensive efforts made by petitioner to provide assistance to respondent in the area of effective classroom management techniques, respondent’s discharge was improper because she was not afforded an adequate opportunity to correct the deficiencies in her classroom performance. The State Tenure Commission ordered the following relief:
"Appellant shall be reinstated to a classroom position with appellee effective the start of the 1981-82 school year. In the interim, appellant shall be afforded preplacement training by appellee in the area of classroom control and student discipline. During the period of reinstatement, appellant shall be subjected to the same evaluation process as other teachers and shall be provided access to staff development personnel and other resources available to the Benton Harbor teaching staff. If, after a reasonable adjustment period, appellant’s classroom has not reached a satisfactory performance level, the board may return to this forum and offer further proofs before this Commission on the charges filed and now pending before us. At that time, a final decision incorporating these additional proofs will be rendered. If appellant’s performance achieves a satisfactory level by the end of the school year, and agreement cannot be reached, the parties may seek a decision on the amount of 'salary lost’ pursuant to Shiffer [v Gibraltar School District, 393 Mich 190; 224 NW2d 255 (1974)].” (Footnote omitted.)
The circuit court affirmed.
The discharge or demotion of a teacher on continuing tenure may be made only for reasonable and just cause. MCL 38.101; MSA 15.2001. Reasonable and just cause can be shown only by significant evidence proving that a teacher is unfit to teach. The focus of the evidence must be the effect of the teacher’s questioned activity on the students. Beebee v Haslett Public Schools, 66 Mich App 718, 724; 239 NW2d 724 (1976), rev’d on other grounds 406 Mich 224; 278 NW2d 37 (1979). The Supreme Court in Beebee held that reasonable and just cause for dismissal may be established by substantial evidence that the teacher’s classroom is significantly more disorderly or unsafe than would be reasonably expected. 406 Mich pp 233-234.
The commission in this case cited several State Tenure Commission decisions for the proposition that a controlling board, before discharging a teacher, must give the teacher the opportunity to correct the alleged deficiencies. The commission found that the teaching environment at the King school was substantially different from that encountered by respondent at the Sorter school, and further held that, since respondent was not given "preplacement” training prior to the commencement of her duties at King, she was denied an adequate opportunity to correct the deficiencies in her classroom performance.
Although the commission has consistently required that a teacher be given an opportunity to correct his or her deficiencies prior to discharge, we note that the asserted requirement is not found in any provision of the teacher tenure act or in any Michigan appellate court decision. This Court agrees with the general principle prohibiting a teacher’s discharge based on inadequate classroom performance unless the teacher is first notified of and given a reasonable opportunity to correct the deficiency; however, we believe that the "opportunity” must necessarily be limited to providing the teacher with a reasonable time to improve, considering all the circumstances.
While the State Tenure Commission is "vested with such powers as are necessary to carry out and enforce the provisions of this act”, MCL 38.137; MSA 15.2037, it has not been authorized to exercise equitable jurisdiction. The State Tenure Commission is a quasi-judicial body created by the Legislature. Unless expressly authorized, a legislative tribunal does not have equitable jurisdiction. Dation v Ford Motor Co, 314 Mich 152; 22 NW2d 252 (1946). We find no provision in the teacher tenure act authorizing the commission to exercise equitable powers by requiring a controlling board to take affirmative steps to afford specialized training to a teacher who has failed to perform his or her professional duties. We hold that the State Tenure Commission erred in assuming the authority to order equitable relief. We agree with the observations expressed by Member Gibson in her dissenting opinion in this case:
"My greatest concern lies with the remedy fashioned by the majority. The Act, as I read it, does not contain a provision affording this Commission the authority to order the retraining of a teacher or to subject the teacher, her students and the employer to a trial period of employment beyond the statutory period of probation. Article IV, Section 3, MCL 38.103; MSA 15.2003, provides only for reinstatemnt with payment of salary lost. This is the only relief provided by the Legislature. Had the Legislature desired the retraining of teachers by their employers, it would have clearly provided for that relief in the statute.
"I must also question the burden the relief formulated has placed on the district. An individual who has been awarded a teaching certificate in this state must meet certain educational and performance requirements. See the Administrative Rules Governing the Certification of Michigan Teachers, R 390.1101 et seq. To demand of a board that a failing teacher be retrained — be taught to teach — far exceeds the already vigorous requirements placed upon school boards by our decision in Niemi v Board of Education of the Kearsley Community School District [Docket No. 74-36-R (1978)]. To require the retraining of the teacher, to meet the changing circumstances of his or her employment, is an untenable burden to impose. Especially, in the instant cause, where the assistance already provided has proven futile. One must ask what good is achieved by submitting appellant to further attempts to educate her?
"Further, the majority has failed to consider the obligation of the employee. Should not the teacher bear part of the burden in maintaining her professional competency? Here, nothing suggests appellant took any action to acclimate herself to her changed classroom situation. To assess the blame for her failure solely on the board is both unfair and unwise.
"Finally, the majority disregards the real dangers inherent in returning appellant to the classroom. If appellant’s retraining fails, her 1981-82 students face the same fate as those in her 1979-80 classroom. Not only would a year of schooling be wasted, but returning appellant to the classroom may jeopardize the physical well-being of the children, as well.”
In this Court’s opinion, the facts found by the commission clearly establish reasonable and just cause for respondent’s discharge.
At the beginning of the 1979-80 school year, requests for assistance by respondent and complaints from students and other teachers prompted the building principal, Ms. Yingst-Morris, to make a formal classroom observation on November 9, 1979. She found an unstructured, undisciplined classroom. The children were ignoring the instruction being attempted, they talked out of turn and engaged in other disruptive behavior. Ms. YingstMorris, in reviewing the observation with respondent, emphasized the lack of discipline as the paramount problem. Respondent was referred to a number of sources (tapes, film strips and staff development personnel) and was provided with a number of suggestions for bringing order to the classroom.
A second observation on November 20, 1979, disclosed some improvement in student control, though the disciplinary problems observed were still considered detrimental to the instructional program. Respondent, who had undertaken and followed a number of the earlier recommendations, was again provided recommendations for strengthening student control.
During December, supervisors made daily informal observations and one formal observation was made. Some improvement was noted on classroom discipline; however, a growing lack of student respect for respondent was noted. Much of the instruction consisted of copying assignments. Children were leaving the classroom at will and they remained a disruptive force to other classroom. Respondent was again referred to staff development personnel for further assistance in all aspects of her teaching performance. An observation from January 18, 1980, showed "* * * progress evident in the area of discipline, seatwork, and instruction”, however, the overall rating given was "need for improvement”.
Ms. Yingst-Morris’ performance evaluation dated January 24, 1980, rated respondent not acceptable in 8 of 11 performance categories. It reflected the problems and difficulties observed in earlier observations, and highlighted the discipline problems and the detrimental effect of these problems in the classroom. Specific steps for improvement were provided.
Two additional administrators were called into the classroom to observe respondent. Ms. Gregory concluded that effective classroom control was absent, and she recommended that respondent be removed from the classroom at once. Dr. Jeter, Director of Elementary Education, found in her initial observation on January 22, 1980, a classroom lacking in an environment conducive to learning. She attached to her observations a list of ten solutions. In Dr. Jeter’s second observation, she noted some minor improvements but found that major problems remained. Dr. Jeter concluded that respondent should be removed from the classroom because her performance was handicapping the children.
Ms. Yingst-Morris made a final observation on February 5, 1980, and found that improvements which had been noted in prior observations were absent. The room was described as chaotic. Little control over students was exhibited and, as a result, there was no viable instructional program occurring. A final evaluation was issued February 19, 1980. Respondent was again found not acceptable in 8 of 11 performance areas. A detailed critique of her work and suggestions for improvement were included. Respondent was thereafter removed from the classroom.
The commission’s decision notes that, as early as November 19, 1979, efforts were made by petitioner’s personnel office to provide assistance to respondent. Three consultants offered assistance in the math and reading programs and in effective classroom management techniques.
Upon a review of the record, the evidence is clear that petitioner went beyond its obligation to notify respondent of her inadequate performance and to allow her a reasonable time for improvement. The petitioner took all reasonable steps in an attempt to assist respondent in performing her duties at the King school. We find that the commission’s conclusions are not supported by the record. The respondent was provided an adequate opportunity to correct the problems which the commission found existed in her classroom performance and, because she failed to correct her inadequate performance, there was reasonable and just cause for her discharge.
The decisions of the circuit court and the State Tenure Commission are reversed and the decision of the board of education discharging respondent from employment is reinstated.
Reversed.
Const 1963, art 6, § 28; MCL 24.306(l)(d); MSA 3.560(206) (l)(d).
Under the terms of the collective bargaining agreement, respondent, on her return, could be assigned to any vacant position in the district. Respondent’s request for reassignment to Sorter Elementary was denied.
Because of a labor dispute, the Benton Harbor Schools did not begin the 1979-80 instructional year on the usual date. The usual week for teacher orientation did not occur and school began September 28, 1979.
The commission found that students in the classroom were undisciplined; they were observed wandering freely about the room and talking out of turn. Fighting was frequent and the students entered and left the classroom without permission. Students exhibited a disrespectful attitude toward respondent and refused to participate in instructional activities.
The commission cited Chesher v Coldwater Community Schools (After Remand), Docket No. 73-56-R (1979); Niemi v Bd of Ed of the Kearsley Community School Dist (After Remand), Docket No. 74-36-R (1978) aff'd on other grounds 103 Mich App 818; 303 NW2d 905 (1981), lv den 411 Mich 1076 (1981); Cameron v Bd of Ed of the Algonac Community Schools, Docket No. 77-25 (1979) Comstock Public Schools v Wildfong (After Remand), Docket No. 74-26-R (1980); Knox-Brown v Bd of Ed of the Benton Harbor Area Schools, Docket No. 79-41 (1980). | [
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Per Curiam.
Defendants, Jose A. Santana and Leon C. White, and Edward Patrick were originally charged with kidnapping, criminal sexual conduct in the first degree, and armed robbery. Their first trial ended with a hung jury. Their second trial ended in defendant White’s conviction, for kidnapping and defendant Santana’s conviction for kidnapping and assault with intent to commit criminal sexual conduct. The kidnapping convictions were reversed on appeal by this Court (Docket Nos. 52868, 53171. Decided July 9, 1982 [unreported]). Following their third joint trial, defendants White and Santana were both convicted of kidnapping. Defendant Santana was sentenced to a prison term of from 5 to 15 years and defen dant White to a term of from 10 to 15 years. Charges against Edward Patrick were dismissed in exchange for his agreement to testify at trial, although the prosecutor did not ultimately call Patrick as a witness. Defendants White and Santana both appeal as of right.
Defendant White’s principal argument on appeal is that his testimony was improperly impeached, essentially because the prosecutor failed to establish a foundation for statements attributed to him and used to impeach him. We disagree.
When attempting to impeach a witness with a prior inconsistent statement made by that witness, "a proper foundation must be laid by interrogating the witness as to the time and place of the statement and the person to whom it was alleged to have been made”. People v Claybon, 124 Mich App 385, 399; 335 NW2d 493 (1983); MRE 613. Once a foundation is properly laid and the witness either admits or denies making the statement, the witness may be impeached by proof of that statement. Claybon, supra.
Defendant White relies on MRE 613 and this Court’s decisions in People v Lynn, 91 Mich App 117; 283 NW2d 664 (1979), aff'd sub nom People v Barker, 411 Mich 291; 307 NW2d 61 (1981); People v Martin, 75 Mich App 6; 254 NW2d 628 (1977), lv den 402 Mich 881 (1978), and People v Dozier, 22 Mich App 528; 177 NW2d 694 (1970), lv den 383 Mich 826 (1970), for the proposition that once a witness denies a statement, the proof of that statement must be made through another witness. Although in the above cases this Court held that it was proper to call another witness to the stand to testify as to the statement denied by the first witness, this Court did not make this procedure mandatory. Furthermore, MRE 613 would appear to require actual proof of the statement itself only where the impeaching party seeks to admit the statement into evidence.
MRE 613 provides as follows:
"(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, if written the statement must be shown to the witness and if oral, its substance and the time, place, and person to whom the statement was made must be disclosed to the witness, and on request must be shown or disclosed to opposing counsel.
"(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).”
In the instant case, the prosecutor initially showed defendant White a written copy or "transcript” of the alleged oral colloquy between White and a Canton police officer and read aloud some of the questions and answers contained therein:
”Q. [Prosecutor]: Mr. White, I’m going to ask you to read the last four questions in that document to yourself on page 13.
"A [Defendant White]: Okay.
”Q. [Prosecutor]: I’m going to ask you, sir, whether or not you made these statements to the officer you spoke to, Lt. [sic] Stewart.
”Q. 'How did she get bloody?’
"A T don’t know.’
”Q. 'Leon. Leon.’
'A. 'I know Jose had my chuks [nunchaku, a wooden weapon used in Karate].’
"Q. [Prosecutor]: 'He hit her with your chuks?’
"A. 'Ah, ah, ah.’
”Q. 'With, with your chuks. And how did they get in her car?’
"A. 'Jose put them in there. They were in Jose’s car. I had them wrapped in newspaper and when we got out of Jose’s car, he had them in his hand. And all I remember is they were — I didn’t even see them when they were in her car. I didn’t even see them, but I heard the chains, though.’ ”
The prosecutor complied with the requirements of MRE 613(a). The written version of the statement was shown to White and he was informed of the substance, the time and place of the statement, and the identity of the person to whom the statements were allegedly made. Although the prosecutor did not call to the stand the police officer identified as the taker of the statement, the prosecutor did not seek to admit the written copy of the statement into evidence under MRE 613(b). He was therefore not required to call the officer to the stand, as he complied with the foundational requirements for impeachment pursuant to MRE 613(a) and simply allowed White’s denial that he made the statement to go unrebutted. The jury was free to take into account the prosecutor’s failure to rebut White’s denial. They were informed by the trial court that the statement itself was not proof that it was from an actual transcript if defendant White denied its accuracy, that it was not evidence, that evidence comes only from answers and not from questions. Furthermore, it is clear from the colloquy between the court and counsel in the presence of the jury that the court was saying that, unless the defendant admitted the statement or unless the prosecutor brought in other proof that defendant White made the statement, the alleged statement had no evidentiary value at all. Apparently, all parties decided to do nothing further with the statement since it was not referred to again. We are satisfied that the requirements of MRE 613 were met and that there was no prejudice.
Although none of the remaining issues raised by defendant White warrants reversal, we will discuss each briefly. Defendant White claims that the trial court improperly instructed the jury on the elements of kidnapping when it merely read the statute and failed to include the element of asportation in its preliminary, pre-proof instructions. It is clear, however, that the trial court did correctly instruct the jury on the asportation element at the close of proofs. The jury was therefore properly charged at the necessary time. Jury instructions are to be read in their entirety and not taken out of context or considered in isolated segments. People v Dozier, supra; People v Benevides, 71 Mich App 168; 247 NW2d 341 (1976). The trial court here charged the jury that asportation was a required element of kidnapping and that the movement had to be independent of any other crime. People v Adams, 389 Mich 222; 205 NW2d 415 (1973); People v Barker, 411 Mich 291; 307 NW2d 61 (1981). The jury was therefore properly instructed.
The trial court’s allowance of the prosecutor’s definition of kidnapping to the jury, which omitted the asportation element, despite White’s urging to the contrary does not require reversal. First, defendant White did not object to the comments. Second, the trial court informed the jury during instructions that the prosecutor’s definition of kidnapping was incomplete. Since any error was not objected to and was subsequently corrected, and since the jury was aware that it was the trial court’s function to give instructions, which it did, we find no reversible error.
Defendant White next argues that the trial court erred in sustaining the prosecutor’s objection to defense counsel’s attempt to instruct the jury on asportation during closing argument. It is, however, the trial court’s function to instruct the jury on relevant law, not counsels’ responsibility. People v Lambert, 395 Mich 296, 304; 235 NW2d 338 (1975). Where defense counsel is prohibited by the trial court from giving a direct presentation of the law, counsel has not been unduly restricted by the court. People v Giacalone, 23 Mich App 163, 179; 178 NW2d 162 (1970), lv den 383 Mich 786 (1970). In the instant case, we find no error. Defense counsel was not precluded from stating the law as he interpreted it; he was merely prevented by the trial court from reading the applicable jury instructions to the jury. This restriction was well within the province of the trial court. MCL 768.29; MSA 28.1052.
Next, defendant White argues that the trial court erred in refusing a continuance so that White could obtain copies of transcripts from previous trials. Defense counsel’s initial motion for adjournment was denied by the circuit court chief judge. Subsequently, White himself requested a continuance from the trial court immediately before jury selection. This request was denied. We agree with the trial court that defendant had considerable time between trials to examine the transcripts. Although White stated that he had requested the transcripts three years earlier, he waited until the day trial was to begin before requesting a continuance. Furthermore, he did not assert that defense counsel did not have the transcripts during that time. Since defendant White was represented by counsel throughout trial, White’s claimed vital need for a continuance in order to acquire the transcripts of previous trials is not apparent to this Court. Presumably defense counsel, who was charged with the duty of conducting White’s defense, was familiar with the contents of those transcripts; we also presume he could have furnished them to White had he been asked.
The grant or denial of a continuance is within the discretion of the trial court. People v Williams, 386 Mich 565; 194 NW2d 337 (1972); People v Gatewood, 103 Mich App 763; 304 NW2d 3 (1981). Applying the criteria set forth in Williams, supra, and People v Taylor, 110 Mich App 823; 314 NW2d 498 (1981), we find that the trial court properly exercised its discretion in denying defendant White’s request.
Defendant White next alleges that he was prejudiced by his absence from the first hearing at which his counsel requested a continuance. We find, however, that there was no "reasonable possibility of prejudice” arising from White’s absence, and reversal is therefore unwarranted. People v Morgan, 400 Mich 527, 536; 255 NW2d 603 (1977). White was represented by counsel at the hearing; he was subsequently allowed to make the same request for adjournment personally before the trial court. Furthermore, we have determined that defendant White was not entitled to a continuance or adjournment, the subject of the hearing White did not attend.
Defendant White next argues that the trial court breached its duty of impartiality through its unfair or negative conduct toward him. This argument is baseless.
Of course, a defendant’s right to a fair and impartial trial by jury demands the display of impartiality on the part of the trial judge. People v Cole, 349 Mich 175, 200; 84 NW2d 711 (1957); People v Neal, 290 Mich 123; 287 NW 403 (1939). In the instant case, however, it was defendant White himself who disrupted the proceedings, argued with counsel, and introduced prejudicial matters. The trial court attempted to maintain control and was generally equitable and restrained in its dealing with defendant White. We will not allow White to manufacture error by virtue of his own disruptive courtroom behavior and subsequent distortion of the record on appeal.
Defendant White’s claim that the prosecutor improperly and incorrectly implied that he had had two prior convictions rather than only one is also without merit. Any confusion resulting from the prosecutor’s correct labelling of the crime White incorrectly named during cross-examination could have been eradicated upon redirect examination, as the trial court suggested to defense counsel. Counsel, however, chose not to subsequently clarify the matter. Furthermore, the jury heard counsel’s objection and was therefore made aware that defendant White claimed he had only one conviction.
Nor did the trial court err in granting the prosecutor’s motion to endorse defendants’ accomplice as a witness. Although defendants may have been surprised by the move, as the accomplice had previously been tried with defendants, they were not prejudiced by the endorsement nor did they request a continuance. They had at least four or five days following the endorsement in which to question the witness and were presumably familiar with his story through preparation for two previous trials. People v Koukol, 262 Mich 529; 247 NW 738 (1933), relied on by defendant White, is therefore not applicable.
The late endorsement of a witness is within the discretion of the trial court and will not be reversed absent an abuse of discretion. People v Powell, 119 Mich App 47; 325 NW2d 620 (1982). In People v Blue, 255 Mich 675; 239 NW 361 (1931), the Supreme Court established the standard of review:
"The ultimate question, on review, is whether the trial court abused its discretion, with the burden ordinarily on the party asserting abuse. Want of excuse or bad faith in failing to promptly indorse names does not deprive the court of jurisdiction to permit indorsement but it casts upon the prosecution the burden of demonstrating that defendant will not be injured thereby and that the court is justified in granting the motion.” Id., p 678.
See also People v Stewart, 61 Mich App 167; 232 NW2d 347 (1975), lv den 395 Mich 793 (1975).
Defendant White has not shown that he was injured by the late endorsement. Since the witness was originally a codefendant, defense counsel knew that there existed the possibility that the witness might have testified at a joint trial on his own behalf. It appears the endorsement of the accomplice was made after extended negotiations. In addition, defense counsel was afforded ample time to question the witness before trial. Most importantly, the prosecutor ultimately did not call the witness to testify. We therefore conclude that the trial court did not abuse its discretion and that no reversible error resulted.
Defendant White also contends on appeal that the trial court erred by granting the prosecutor’s motion to strike the accomplice as a witness. This procedure, however, was proper in light of People v Gawthrop, 106 Mich App 722; 308 NW2d 621 (1981), remanded on other grounds, 417 Mich 983 (1983), which holds that "[s]hould the prosecutor not wish to call that witness, he must move to strike that witness’ name from the information”. Gawthrop, supra, p 728. This aspect of defendant White’s argument is therefore also without merit.
Defendant White finally argues on appeal that rebuttal testimony by a prosecution witness was improper, as it was unrelated to matters testified to by defense witnesses. This argument is without merit. The rebuttal witness was called to counter testimony by a defense witness regarding statements given by the complainant about the number of vehicles being driven immediately after the initiation of the crime. Admission of testimony was therefore permissible at the discretion of the trial court. People v Gonyea, 126 Mich App 177, 186; 337 NW2d 325 (1983).
Defendant Santana raises three issues on apeal. As was the case with defendant White, none requires reversal.
First, defendant Santana argues that his conviction for kidnapping, following his earlier conviction for assault with intent to commit criminal sexual conduct, violated the constitutional prohibition against double jeopardy. See People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980). We conclude, however, that in the instant case multiple punishments were not imposed for the same offense. Jankowski, supra. One offense was not a necessary or cognate lesser included offense of the other. People v Wilder, 411 Mich 328; 308 NW2d 112 (1981), reh den 411 Mich 1157 (1981).
The elements of assault with intent to commit criminal sexual conduct involving penetration, MCL 750.520g; MSA 28.788(7), include:
"(1) There must be an assault. (2) There must be a sexual purpose. When the act involves penetration, defendant must have intended an act involving some sexually improper intent or purpose. When the act involves contact, defendant must have intended to do the act for the purpose of sexual arousal or sexual gratification. (3) When the act involves penetration, the intended sexual act must have been one involving some actual entry of another person’s genital or anal openings or some oral sexual act. When the act involves contact, defendant must have specifically intended to touch the complainant’s genital area, groin, inner thigh, buttock, breast, or clothing covering those areas, or defendant must have specifically intended to have the complainant touch such area on him. (4) There must be some aggravating circumstances, e.g., the use of force or coercion. An actual touching is not required. When the act involves penetration, it is not necessary to show that the sexual act was started or completed.” People v Snell, 118 Mich App 750, 754-755; 325 NW2d 563 (1982), lv den 417 Mich 1032 (1983).
Defendant Santana was convicted in his second trial of kidnapping, MCL 750.349; MSA 28.581, which provides:
"Any person who wilfully, maliciously and without lawful authority shall forcibly or secretly confine or imprison any other person within this state against his will, or shall forcibly carry or send such person out of this state, or shall forcibly seize or confine, or shall inveigle or kidnap any other person with intent to extort money or other valuable thing thereby or with intent either to cause such person to be secretly confined or imprisoned in this state against his will, or in any way held to service against his will, shall be guilty of a felony * *
Case law' mandates that the element of movement of the victim be established when movement has a significance independent of the lesser crimes charged. People v Gwinn, 111 Mich App 223; 314 NW2d 562 (1981), lv den 417 Mich 949 (1983). Movement cannot be merely incidental to the commission of another lesser crime, here, assault. People v Adams, 389 Mich 222; 205 NW2d 415 (1973).
Here there was evidence showing that two separate criminal acts had been committed: the act of kidnapping and the act of assault with intent to commit criminal sexual conduct. The act of kidnapping was completed when defendants forced the complainant into her car and drove her away, refusing to allow her to leave. Subsequently, defendant Santana committed the second act by assaulting and forcing the complainant to engage in various sexual acts. Since the crimes here are both factually and legally distinguishable, defendant Santana’s convictions of kidnapping and assault with intent to commit criminal sexual conduct are not barred by the prohibition against double jeopardy.
Defendant Santana next argues that he was prejudiced because he was tried jointly with defendant White. This claim is based primarily on the statements discussed previously which were alleg edly made by defendant White to police and which were used by the prosecutor in his attempt to impeach defendant White. In those statements, defendant White indicated that the weapon used in the assault had been in the possession of defendant Santana. We find Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), to be inapplicable. The statements in the instant case were not admitted into evidence. They could not therefore be called confessions by a codefendant and White denied making the statements. We therefore find that defendant Santana was not denied his constitutional right to confrontation by the prosecutor’s mention of defendant White’s alleged statements. People v Coates, 40 Mich App 212; 198 NW2d 837 (1972). Furthermore, in the instant case the trial judge told the jury that any such statements could not be used as evidence against defendant Santana.
Defendant Santana also contends that his joint trial with codefendant White deprived him of a fair trial. "Generally, a defendant does not have a right to a separate trial; joinder is usually within the discretion of the trial court.” People v Holly, 129 Mich App 405, 409; 341 NW2d 823 (1983); MCL 768.5; MSA 28.1028. Because of the strong public policy favoring joint trials, a defendant must make an affirmative showing that his substantial rights will be prejudiced before he is entitled to a separate trial. Holly, supra. The showing of prejudice must be "supported by an affidavit defining the inconsistencies between the defenses of the parties”. Holly, supra, p 410. A defendant is entitled to a severance when it appears that a codefendant will testify to exculpate himself at the expense of incriminating the defendant seeking a separate trial. People v Hurst, 396 Mich 1; 238 NW2d 6 (1976), reh den 396 Mich 976 (1976); Holly, supra, p 411.
Defendant Santana, however, did not move for severance. He asks that this Court infer such a motion from his objection on Bruton grounds and from defendant White’s request for a separtate trial. Defendant Santana’s counsel, however, did not join codefendant’s motion for severance. Furthermore, the Bruton objection was made on the last day of a four-day trial. This would hardly be the time to move for severance since almost all of the testimony and evidence had been admitted. "Had defendant wanted a separate trial, he could have sought one upon motion.” People v Philson, 19 Mich App 574, 575; 172 NW2d 829 (1969). Defendant Santana’s failure to seek a separate trial precludes him from successfully raising this issue on appeal. Philson, supra. Furthermore, defendant White testified only that he saw no weapon and saw or heard nothing violent going on in the back seat as he was driving. His testimony did not incriminate defendant Santana on the kidnapping charge.
Defendant Santana also argues that defendant White’s remarks concerning the number of trials had by defendants was so prejudicial to Santana that the trial court erred in denying Santana’s motion for mistrial. We disagree.
A trial court’s denial of a motion for mistrial will not be reversed on appeal absent an affirmative showing of prejudice. People v Bradley, 117 Mich App 776; 324 NW2d 499 (1982); People v Jackson, 100 Mich App 146; 298 NW2d 694 (1980).
In the instant case, the statements made by defendant White were directed solely to his own situation. He made no reference to defendant Santana. We therefore conclude that the trial court did not abuse its discretion in denying defendant Santana’s motion for mistrial.
Finally, defendant Santana complains of the instructions on kidnapping given by the trial court. As Santana did not object at trial to the instructions as given, and since we find that no miscarriage of justice will result from our refusal to review the trial court’s basically correct instructions, we deem appellate review of this issue to be precluded. People v Dozier, supra; People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969). Defendant Santana is therefore not entitled to reversal of his conviction.
Both defendants’ convictions are affirmed.
Defendant White denied making the statement. He testified at trial that the nunchaku were not his and that he did not hear the chains or sounds of violence from the back seat. He also denied seeing a pair of nunchaku the night the complainant was beaten and kidnapped.
MRE 613 does not require the prosecutor to first make inquiry about a prior inconsistent statement out of the presence of the jury. Had the prosecutor done so here, the entire issue would have been removed from this appeal. It is therefore better practice to ask the court to excuse the jury before presenting the prior statement to the witness. In the absence of the safeguards placed in this record by the Court, this conviction might easily have been reversed again. In the future, defense counsel would, therefore, be well advised to determine whether the prosecution intends to use statements allegedly made by the defendant and, if so, to file a motion in limine to determine, outside the presence of the jury, if the statement can be used. If the defendant admits making the statement, the jury will be premitted to hear about it. If the defendant denies making the statement, the prosecutor would have to decide to prove it by extrinsic evidence before the defendant could be confronted with it in the presence of the jury. | [
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Per Curiam.
Respondent parents appeal as of right from the September 30, 1983, order of the Marquette Probate Court terminating their parental rights in their two daughters, Kristina and Crystal, pursuant to MCL 712A.19a, subds (e) and (f); MSA 27. 3178(598.19a), subds (e) and (f).
Respondents first argue that the admission of hearsay evidence during the hearing to terminate parental rights and the trial court’s reliance on that hearsay in ordering termination resulted in a denial of their due process rights. A hearing to terminate parental rights is within the dispositional phase of the proceedings, In the Matter of Rebecca Oakes, 53 Mich App 629; 220 NW2d 188 (1974); In the Matter of Taurus F, 415 Mich 512; 330 NW2d 33 (1982), reh den 417 Mich 1104 (1983), app dis — US —; 104 S Ct 323; 78 L Ed 2d 296 (1983), and, as such, is governed by JCR 1969, 8.3(b). That rule provides that relevant and material evidence may be considered by the judge. Thus, there is no bar to the admission and consideration of hearsay evidence during the dispositional phase. In the Matter of Hinson, 135 Mich App 472; NW2d (1984). The Hinson Court also considered a due process challenge to the admission of hearsay evidence and found it admissible where the evidence met the tests of fairness, reliability, and trustworthiness. We find no error in the admission of the challenged testimony nor do we find that the probate court erroneously considered such evidence. Moreover, the opinion of the court reveals that ample evidence, apart from any hearsay evidence, supported the termination order.
Next, respondents claim that the probate court proceedings were void ab initio because the court failed to take testimony at the September 10, 1981, preliminary hearing. Because the children had already been taken into custody, JCR 1969, 4.2 mandated that a preliminary hearing be held. Contrary to respondents’ claim, JCR 1969, 4.2(b)(6) does not require a finding of "probable cause” and does not require the swearing of witnesses and the taking of testimony. The preliminary hearing precedes the adjudicative hearing where it is determined whether the child comes within the jurisdiction of the probate court and is not a substitute for a full hearing on the substance of the complaint.
The purpose of this preliminary hearing is to "determine whether the interests of the public or of a child require that further action be taken”. MCL 712A.11; MSA 27.3178 (598.11). If the court determines that formal jurisdiction should be acquired, a petition is then authorized.
Our review of the preliminary hearing transcript reveals that the requirements of JCR 1969, 4.2 were met. Although the parents denied the allegations contained in the complaint, the probate judge found, and we agree, that the contents of the complaint and the offer of proof by the prosecutor provided sufficient grounds for the authorization for the filing of a petition. The language of JCR 1969, 4.2(b)(6) is fashioned in discretionary terms and indicates that the judge "may adjourn the preliminary hearing for the taking of testimony”. (Emphasis added.) This language may be contrasted to the language of JCR 1969, 8.2(e) which establishes the conduct of proceedings on the formal calendar and explicitly provides for the swearing of witnesses and indicates that the judge, at those proceedings, is to decide the issues upon "statements and proofs properly and legally presented”.
We find nothing in the language of JCR 1969, 4.2(b)(6) which mandates the taking of any testimony or which requires the prosecution to call its witnesses for the purpose of giving testimony. Rather, it appears that the rule allows the probate judge, in his discretion, to hear testimony from the parties or other witnesses to aid in making the determination of whether to authorize the filing of a petition. Clearly, a preliminary hearing does not constitute a final or binding resolution of the issues contained in the complaint or petition. Instead, the purpose is to determine if further action, perhaps in the nature of assumption of jurisdiction, might be warranted. The record establishes that grounds for authorizing a petition were demonstrated. The failure to require the prosecution to produce its witnesses was therefore not error.
The probate court found clear and convincing evidence to terminate respondents’ parental rights based upon MCL 712A. 19a, subds (e) and (f); MSA 27.3178(598.19a), subds (e) and (f). Those sections provide for termination where:
"(e) The parent or guardian is unable to provide a fit home for the child by reason of neglect.
"(f) The child has been in foster care in the temporary custody of the court on the basis of a neglect petition for a period of at least 2 years and upon rehearing the parents fail to establish a reasonable probability that they will be able to reestablish a proper home for the child within the following 12 months.”
The quantum of neglect necessary to justify termination of parental rights pursuant to subsection (e) is not capable of precise or exact definition. An order permanently terminating parental rights must be based upon circumstances which "establish or seriously threaten neglect of the child for the long-run future”. Fritts v Krugh, 354 Mich 97, 114; 92 NW2d 604 (1958). Subsection (f) indicates that termination may be ordered when the parents fail to establish a reasonable probability that they will be able to restablish a proper home after the child has been under the jurisdiction of the probate court for at least two years based on a neglect petition. The burden of going forward with evidence resides with the parents. In the Matter of LaFlure, 48 Mich App 377; 210 NW2d 482 (1973), lv den 390 Mich 814 (1973). Regardless of the statutory basis for the order, it is clear that termination may not be ordered unless there is clear and convincing evidence that such action is warranted. JCR 1969, 8.3(b); In the Matter of LaFlure, supra. We find that the findings of the probate court are not clearly erroneous and, thus, we affirm the termination of respondents’ parental rights. In the Matter of Irving, 134 Mich App 678; 352 NW2d 295 (1984).
Respondents place great weight upon the fact that another child, who had been under the jurisdiction of the probate court on the basis of a subsequent neglect petition, had been returned to their care and discharged from the court’s jurisdiction. Although evidence of how parents treat one child may be probative of their treatment of another, In re Dittrick Infant, 80 Mich App 219; 263 NW2d 37 (1977), such evidence is not conclusive or automatically determinative. A review of the record illustrates that the respondents’ son was the "favored” child and did not suffer the abuse which was inflicted upon his sisters. While evidence was brought forth to substantiate the sexual, emotional, physical and verbal abuse inflicted upon the two female children, there were no comparable allegations of either sexual or physical abuse of the male child. We agree with the probate court that, although respondents may be able to provide a fit home for their son, there continued to be a significant risk of recurring abuse to and neglect of respondents’ daughters.
At the time of the hearings to terminate parental rights, the two children had been in temporary foster care for two years. During this time period, respondents engaged in some counseling and attended classes. Numerous services were made available to respondents. While the court noted that some progress had initially been made, a significant amount of regression had occurred. Respondent father had not made a sustained effort to attend counseling to deal with the problem of sexual abuse and did not follow up on outpatient substance abuse counseling. Moreover, he had not made much progress in resolving the issues which necessitated the counseling in the first instance. Similarly, respondent mother had attended counseling sessions and had availed herself of the services of a parent aide. Again, the record establishes that she continued to have difficulty applying the techniques she had been taught. Even more troubling was her denial of the seriousness of the sexual abuse problem. In conclusion, the court noted the problems and difficulties which the children were facing and dealing with as a result of their family background. After hearing extensive testimony and observing the various parties and witnesses, the trial judge found that clear and convincing evidence to terminate respondents’ parental rights had been presented. We agree.
Affirmed.
While various panels of this Court have indicated that the standard of review in a parental termination case is unclear, In the Matter of Bailey, 125 Mich App 522; 336 NW2d 499 (1983), In the Matter of Mudge, 116 Mich App 159; 321 NW2d 878 (1982), lv den 417 Mich 963 (1983), and at least one panel has indicated that a de novo standard of review is to be applied, In the Matter of Schejbal, 131 Mich App 833; 346 NW2d 597 (1984), we agree that the "clearly erroneous” standard of review is appropriate. See, Irving, supra. | [
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Per Curiam.
Following a jury trial, defendant was convicted of fourth-degree child abuse, MCL 750.136b(5); MSA 28.331(2)(5), for abusing his four-year-old son. Defendant was sentenced to serve 120 days in jail. The trial court also placed defendant on probation for a period of eighteen months. Defendant now appeals as of right. We affirm.
i
Defendant struck the boy twice in the face and once in the leg while the boy was playing with some toy race cars. There is no indication why defendant struck the boy. The blows to the boy’s face caused blood blisters, bruises, and a hand-shaped welt on the side of the boy’s face. The bruises had lightened two days after the assault; however, the marks were still visible on the boy’s face one week after the assault.
Defendant moved in the trial court to set aside his conviction, arguing that MCL 750.136b(5); MSA 28.331(2)(5) was unconstitutionally vague and over-broad. The trial court denied the motion.
n
Defendant contends that the statute under which he was convicted is unconstitutional because it is impermissibly vague. We disagree.
Statutes are presumed to be constitutional, and courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent. Caterpillar, Inc v Dep’t of Treasury, 440 Mich 400, 413; 488 NW2d 182 (1992); People v Trinity, 189 Mich App 19, 21; 471 NW2d 626 (1991). The party challenging a statute’s constitutionality has the burden of proving its invalidity. Id.
A criminal statute may be challenged for vagueness on three grounds: (1) it does not provide fair notice of the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; and (3) its coverage is overly broad and impinges on First Amendment freedoms. Doe v Attorney General, 194 Mich App 432, 440; 487 NW2d 484 (1992). Defendant attacks MCL 750.136b(5); MSA 28.331(2)(5) on all three grounds.
MCL 750.136b(5); MSA 28.331(2)(5) provides:
A person is guilty of child abuse in the fourth degree if the person’s omission or reckless act causes physical harm to a child. Child abuse in the fourth degree is a misdemeanor punishable by imprisonment for not more than 1 year.
A
Defendant claims that this statute fails to provide fair notice of what conduct is proscribed, because it uses a circuitous definition of "physical harm” that explains nothing because it could include anything from a paper cut to death. We disagree.
To be constitutional, a contested statutory phrase must give persons of ordinary intelligence notice of the conduct that will subject them to criminal liability. People v Hicks, 149 Mich App 737, 741; 386 NW2d 657 (1986). The term "physical harm” is defined by MCL 750.136b(1)(d); MSA 28.331(2)(1)(d) as "any injury to a child’s physical condition.” Viewing the term "physical harm” in the context of the fourth-degree child abuse statute taken as a whole, we find that the statute clearly provides fair notice to persons of ordinary intelligence of the conduct proscribed, namely, an omission or reckless act that causes any injury to a child’s physical condition. Defendant has failed to sustain his burden of proving the invalidity of MCL 750.136(b)(5); MSA 28.331(2)(5) on this basis.
B
Defendant next argues that the statute confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed, because there are no guidelines to ascertain what conduct is permitted or prohibited. In so arguing, defendant claims that the word "reckless,” as used in the statute, and the word "reasonable,” as used in the instructions to the jury, are undefined and their meanings are unknown.
We will not review defendant’s claim of error with regard to the jury instruction, because defendant expressed satisfaction at trial with the instructions given. People v Taylor, 159 Mich App 468, 488; 406 NW2d 859 (1987).
Unless defined in the statute, every word of the statute should be accorded its plain and ordinary meaning. MCL 8.3a; MSA 2.212(1); People v Tracy, 186 Mich App 171, 176; 463 NW2d 457 (1990). If a statute does not expressly define its terms, a court may consult dictionary definitions. People v Downey, 183 Mich App 405, 409; 454 NW2d 235 (1990).
Black’s Law Dictionary (6th ed) defines "reckless” as:
Not recking; careless, heedless, inattentive; indifferent to consequences. According to circumstances it may mean desperately heedless, wanton or willful, or it may mean only careless, inattentive, or negligent. For conduct to be "reckless” it must be such as to evince disregard of, or indifference to, consequences, under circumstances involving danger to life or safety to others, although no harm was intended.
The Random House College Dictionary, Revised Edition, defines "reckless” as:
1. utterly unconcerned about the consequences of some action; without caution; careless .... 2. characterized by or proceeding from such carelessness.
Given these dictionary definitions of the word "reckless” and applying its plain and ordinary meaning to the language of the statute, we find defendant’s claim that the statute confers upon the jury unstructured and unlimited discretion to determine whether an offense has been committed to be without merit. The statute prohibits the commission of a reckless act that causes physical harm to a child.
c
Defendant’s final claim is that the statute is overbroad and impinges on his First Amendment right to raise and reasonably discipline his child through the use of physical punishment. We disagree.
Statutory provisions must be read in the context of the entire statute so as to produce an harmonious whole. Downey, supra. Subsection 6 of the child abuse statute, MCL 750.136b(6); MSA 28.331(2)(6), expressly provides that the statute shall not be construed to prohibit a parent from taking steps to reasonably discipline a child, including using "reasonable force.” It states:
This section shall not be construed to prohibit a parent or guardian, or other person permitted by law or authorized by the parent or guardian, from taking steps to reasonably discipline a child, including the use of reasonable force.
"Reasonable” is defined by Black’s Law Dictionary (6th ed) as:
Fair, proper, just, moderate, suitable under the circumstances. Fit and appropriate to the end in view. Having the faculty of reason; rational; governed by reason; under the influence of reason; agreeable to reason. Thinking, speaking, or acting according to the dictates of reason. Not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable.
The term is also defined in The Random House College Dictionary, Revised Edition, as:
1. agreeable to or in accord with reason or sound judgment; logical. 2. not exceeding the limit prescribed by reason; not excessive ....
Given subsection 6 of the child abuse statute, which expressly provides that a parent may use "reasonable force” to discipline a child, defendant’s claim that the fourth-degree child abuse statute is overbroad and impinges on his right to discipline his child is clearly without merit.
Affirmed. | [
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Per Curiam.
Defendant pleaded guilty of intentional discharge of a firearm from a motor vehicle (idfmv), MCL 750.234a; MSA 28.431(1), carrying a concealed pistol in a motor vehicle (ccw), MCL 750.227(2); MSA 28.424(2), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The trial court sentenced defendant to concurrent prison terms of IV2 to 4 years for the idfmv conviction and IV2 to 5 years for the ccw conviction. These terms were to run consecutively to a two-year mandatory term for the felony-firearm conviction. Defendant appeals as of right.
These charges all arose out of a single shooting incident. Defendant argues that his conviction of both idfmv and ccw violates the Double Jeopardy Clauses of the United States and Michigan Constitutions. We disagree. In cases involving sentences for the same offense under different statutory provisions, this Court must determine whether the Legislature intended multiple punishment. People v Robideaux, 419 Mich 458, 485; 355 NW2d 592 (1984); People v Kaczorowski, 190 Mich App 165, 169; 475 NW2d 861 (1991). "[Statutes prohibiting conduct that violates distinct social norms can generally be viewed as separate and as permitting multiple punishment. The key is to identify the type of harm or conduct the Legislature intended to prevent.” Id., citation omitted. This Court cannot apply the "factual identity” test advocated by defendant, set forth in People v Jankowski, 408 Mich 79, 86; 289 NW2d 674 (1980), and rejected by the Supreme Court in Robideaux, supra, and People v Wakeford, 418 Mich 95; 341 NW2d 68 (1983).
The idfmv statute provides in relevant part: "[A]n individual who intentionally discharges a firearm from a motor vehicle ... in such a man ner as to endanger the safety of another individual is guilty of a felony . . . MCL 750.234a; MSA 28.431(1). The ccw provision at issue here reads as follows: "A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person . . . without a license to carry the pistol as provided by law . . . .” MCL 750.227(2); MSA 28.424(2).
We believe the idfmv and ccw statutes address different social norms. The ccw statute is designed to prevent the carrying of unlicensed pistols in motor vehicles. It recognizes the facility of motor vehicles for concealing and transporting arms. On the other hand, the idfmv statute is directed against the firing of a weapon from the vehicle. It addresses the particular danger posed by shootings in which rapid flight is possible for the shooter. Also relevant to the analysis is the fact that the sanction for the carrying of a concealed weapon is greater (five years or $2,500) than that for shooting the weapon (four years or $2,000, or both).
Another helpful tool in determining legislative intent is the test outlined in Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932). People v Sturgis, 427 Mich 392, 404-405; 397 NW2d 783 (1986); Kaczorowski, supra at 170-171. The Blockburger test focuses on whether two separate statutes each include an element the other does not. Sturgis, supra at 409. In this case, one statute does not simply build upon the other. The ccw provision at issue requires proof that the firearm was an unlicensed pistol. The idfmv statute requires proof that the firearm was discharged from a vehicle.
Accordingly, we conclude that defendant’s conviction on both the idfmv and ccw charges does not violate his constitutional rights against double jeopardy.
Defendant also contends that the trial court erred in ordering his felony-firearm sentence to run consecutively to the ccw sentence. We agree, and the prosecutor concedes this issue to defendant. Under MCL 750.227b(l); MSA 28.424(2)(1), a defendant is not guilty of felony-firearm if the underlying felony is the carrying of a concealed weapon. Although the presence of a second underlying felony allows defendant’s felony-firearm conviction to stand, Sturgis, supra at 410, it follows that the felony-firearm sentence may run consecutively only to that second underlying felony. We order defendant’s sentences amended accordingly. MCR 7.216(A)(1) and (A)(7); Brinson v Genesee Circuit Judge, 403 Mich 676, 687; 272 NW2d 513 (1978).
Affirmed as modified.
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Per Curiam.
In Docket No. 148323, appellant Attorney General claims an appeal from an order entered on December 19, 1991, by the Michigan Public Service Commission (psc) approving a settlement agreement between appellee Consumers Power Company and the psc’s staff. In Docket No. 152333, appellant Association of Businesses Advocating Tariff Equity (abate) claims an appeal from an order entered on April 15, 1992, by the psc denying rehearing of the December 19, 1991, order. We affirm both orders.
In 1991, the psc’s staff expressed concern regarding Consumers’ earnings level for its gas-producing business. Negotiations between the staff and Consumers resulted in the settlement agreement challenged here. While the settlement agreement continued the base rates for natural gas service established in Consumers’ 1989 general rate case, Consumers agreed to spend at least $200 million on other operation and maintenance (o & m) activities in 1992. The agreement provided that if Consumers failed to spend at least this amount in 1992, it would refund the amount by which its o & m expenditures were less than $200 million. The agreement also provided that if Consumers’ earnings on common equity exceeded 13.25 percent in 1992, Consumers would refund revenues equivalent to a portion of the excess. The amount to be refunded was to be determined according to a specified formula. The parties stipulated that the settlement agreement would not result in an increase in rates charged by Consumers.
Consumers filed an application with the psc requesting approval of the settlement agreement. The application stated that the settlement agreement would not result, in an increase in rates and, therefore, ex parte approval was sought pursuant to MCL 460.6a(l); MSA 22.13(6a)(l). At the time the orders were entered, § 6a(l) provided in pertinent part:
[A]ny alteration or amendment in rates or rates schedules . . . which will result in no increase in the cost of service to its customers may be authorized and approved without any notice or hearing.
Both the Attorney General and abate opposed the application.
In an order entered on December 19, 1991, the psc approved the settlement agreement. The psc determined that the agreement would not increase rates for any rate class. Consequently, pursuant to § 6a(l), notice and an evidentiary hearing was not required before approval of the agreement. The psc noted that the concerns expressed by the Attorney General and abate could be dealt with through separate complaint proceedings or in Consumers’ next general rate case.
Abate filed a verified petition for rehearing of the psc’s order of December 19, 1991. On April 15, 1992, the psc issued an order denying the petition. The psc held that the fact that abate did not participate in discussions leading to the settlement agreement, or the fact that a hearing was not held, did not render the process unlawful or unreasonable, and that approval of the settlement was not inconsistent with due process. The psc rejected the argument that it was required to make necessary findings of fact regarding the level of other o & m expenses, the authorized rate of return, the proper interest rate for refunds, and the refund allocation methods. The psc found no support for abate’s statement that the agreement had no independent legal significance.
The appellants raise similar issues on appeal. For convenience, and to avoid repetition, the following analysis parallels the structure of abate’s arguments, with reference to the Attorney General’s arguments when appropriate.
The standard of review for psc orders is narrow and well established. Pursuant to MCL 462.25; MSA 22.44, all rates, fares, charges, classification and joint rates, regulations, practices, and services prescribed by the psc are presumed, prima facie, to be lawful and reasonable. Michigan Consolidated Gas Co v Public Service Comm, 389 Mich 624; 209 NW2d 210 (1973). A party aggrieved by an order of the psc bears the burden of proving by clear and satisfactory evidence that the order is unlawful or unreasonable. MCL 462.26(8); MSA 22.45(8). The term "unlawful” has been defined as an erroneous interpretation or application of the law, and the term "unreasonable” has been defined as unsupported by the evidence. Associated Truck Lines, Inc v Public Service Comm, 377 Mich 259; 140 NW2d 515 (1966).
Pursuant to Const 1963, art 6, §28, a final agency order shall be reviewed to determine whether it is authorized by law and, in cases where a hearing is required, whether it is supported by competent, material, and substantial evidence on the whole record. The same standard of review applies to a final order of the psc. See Attorney General v Public Service Comm, 165 Mich App 230, 235; 418 NW2d 660 (1987). A reviewing court gives due deference to the psc’s administrative expertise and is not to substitute its judgment for that of the psc. Yankoviak v Public Service Comm, 349 Mich 641, 648; 85 NW2d 75 (1975); Building Owners & Managers Ass’n of Metropolitan Detroit v Public Service Comm, 131 Mich App 504, 517; 346 NW2d 581 (1984), aff’d 424 Mich 494 (1986).
Both abate and the Attorney General argue that the psc’s orders must be reversed because the psc approved Consumers’ application, authorizing an increase in rates, without providing notice and an opportunity for interested parties to be heard as required by § 6a. The appellants argue that the settlement agreement increases the cost of service to customers by requiring Consumers to spend at least $200 million on o & m expenses, which was more than was specified in Consumers’ 1989 general rate case. They also contend that the agreement alters rates by requiring refunds under specific circumstances, and that refunds effectively change the rates paid by customers.
We reject these arguments. The agreement was reached at Consumers’ request "and with its approval. The agreement provides alternative methods for Consumers to reduce its profits. Consumers had the option to spend $200 million on o & m expenses and avoid paying a refund, or paying a refund if that full amount is not spent. A potential refund does not increase the rate charged to customers. The order approving the agreement did not increase the rates. Therefore, no hearing was required under § 6a(l).
Abate also argues that the psc’s orders must be reversed because they are not supported by competent, material, and substantial evidence on the whole record. Additionally, abate contends that the psc orders do not discuss the underlying facts that form the basis for approval of the agreement and, therefore, cannot be properly reviewed. Consumers Power Co v Public Service Comm, 78 Mich App 581, 585; 261 NW2d 10 (1977).
Abate’s argument is without merit. The require ment that the psc support its findings by competent, material, and substantial evidence on the whole record applies only to orders issued in a contested case where a hearing is required. Const 1963, art 6, §28; MCL 24.306; MSA 3.560(206); MCL 24.285; MSA 3.560(185); MCL 460.6a(l); MSA 22.13(6a)(l). As stated above, Consumers’ application and the settlement agreement did not involve a rate increase. Therefore, the psc was not required to hold an evidentiary hearing before approving the agreement.
Next, abate argues that the psc’s orders must be reversed because they are arbitrary and capricious. We disagree. MCL 462.26(8); MSA 22.45(8) requires a reviewing court to determine only whether an order is unlawful or unreasonable, not whether it is arbitrary and capricious. In any event, contrary to abate’s claim, the voluntary agreement does not require Consumers to spend $200 million on o & m expenses. Because such spending is not mandated, it cannot be said to be unreasonable to have omitted detailed spending requirements. Further, the potential refunds, including interest, which benefit the customers, would not be possible absent Consumers’ consent. Abate does not demonstrate that the refund mechanism complained of is prohibited by statute or rule. The orders did not set rates to be charged by Consumers. Therefore, abate’s characterization of the provisions of the agreement as "departures from traditional ratemaking” is inaccurate. Abate has not demonstrated that the psc’s orders are unreasonable.
Both abate and the Attorney General argue that the agreement’s refund mechanism is illegal because it retroactively adjusts the price paid by Consumers’ customers for natural gas and constitutes retroactive ratemaking. Again, we disagree.
Retroactive ratemaking applies to a change, either upward or downward, in the rates charged by a utility for its service under a lawful order. Michigan Bell Telephone Co v Public Service Comm, 315 Mich 533, 547; 24 NW2d 200 (1946). Retroactive ratemaking is prohibited by law. Building Homeowners & Managers Ass’n of Metropolitan Detroit v Public Service Comm, 424 Mich 494; 383 NW2d 72 (1986).
The psc’s orders do not constitute the retroactive ratemaking prohibited in Michigan Bell, supra, because the agreement between Consumers and the psc does not change the rates established in the 1989 general rate case. Unlike in Michigan Bell, supra, the agreement here is consensual, applies on a prospective basis only, and the onetime refunds are merely potential, not guaranteed.
Both abate and the Attorney General argue that by approving the agreement, the psc approved an adjustment clause without providing notice and an opportunity for a hearing, contrary to MCL 460.6a(2); MSA 22.13(6a)(2). They contend that the agreement increased Consumers’ o & m expenses above the level approved in the 1989 general rate case, and conditioned rates upon the new level by providing for refunds. This argument is also without merit. The refund mechanism in the settlement agreement does not constitute an adjustment clause. See Detroit Edison Co v Michigan Public Service Comm, 416 Mich 510; 331 NW2d 159 (1982).
Finally, the Attorney General argues that the psc can modify the rate charged by a utility by considering either an application for modification or a complaint, but the psc has no statutory authority to establish rates by negotiation.
Again, we point out that the possibility of a voluntary one-time refund to customers is not the establishment of a rate. Further, the Attorney General cites no authority to support his assertion that the psc was not authorized under § 6a(l) to engage in negotiations with Consumers. The psc’s interpretation and application of § 6a(l), allowing negotiation when rates are not changed, should be given deference. Yankoviak, supra.
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Corrigan, P.J.
In this action under the Employee Retirement Income Security Act (erisa), 29 USC 1001 et seq., as amended by the Comprehensive Omnibus Budget Reconciliation Act of 1986, 29 USC 1161 et seq. (cobra), plaintiff appeals as of right the judgment of no cause of action. We affirm.
Within fourteen days after plaintiffs husband ceased employment with defendant, defendant sent the required notice of cobra rights to the couple’s last known address, in compliance with 29 USC 1166(4). Because plaintiff and her husband had moved and had provided no forwarding address, they did not receive the first notice and a later follow-up notice. Plaintiff subsequently suffered a heart attack and incurred substantial medical expenses. She learned about her cobra rights from an insurance agent and contacted defendant by telephone, seeking immediate delivery of the forms necessary to elect continuation coverage. Plaintiff informed defendant that she sought immediate payment of her medical bills. The necessary forms were sent out, accompanied by a note that plaintiff should forward her application and premium payment as soon as possible. Neither party disputed that plaintiff then made a timely application for continuation coverage. However, defendant denied that the required premium payment accompanied the completed forms. Plaintiff testified that she had mailed a check in payment of the premium, but also acknowledged that her check was never cashed. Thereafter, plaintiff was given opportunities to pay the premium, but never did so. The court found as a matter of fact that plaintiff had failed to include the premium payment with her election and never had made the necessary payment to continue coverage.
In her complaint, plaintiff alleged that defendant improperly denied her application and premium payment for continuation coverage to which she was entitled pursuant to 29 USC 1162, 1165. She sought reinstatement of health insurance benefits, costs and attorney fees, reimbursement of medical bills less premium amounts, and penalty damages of $100 a day for noncompliance with cobra provisions. She made no claim of equitable estoppel, nor did she assert that defendant violated the disclosure and notice provisions of the cobra.
Section 502 of the erisa, codified at 29 USC 1132, expressly prescribes the remedies available to plan beneficiaries and designates which courts have jurisdiction over such claims. Plaintiffs complaint falls within the provisions of 29 USC 1132(a)(1)(B) insofar as it seeks recovery of benefits under the terms of an erisa plan. Because state and federal courts have concurrent jurisdiction over actions pursuant to subsection a(1)(B), the circuit court properly exercised jurisdiction over plaintiffs complaint. 29 USC 1132(e)(1); McMartin v Central States, Southeast & Southwest Areas Pension Fund, 159 Mich App 1, 4; 406 NW2d 219 (1987); Bradwell v Silk Greenhouse, Inc, 828 F Supp 940, 944 (MD Fla, 1993). Plaintiffs additional claims of violation of fiduciary duties and equitable estoppel are the exclusive province of the federal courts.
Plaintiff first claims that the circuit court erroneously determined that defendant had no duty to notify plaintiff of the forty-five day grace period within which a beneficiary may make premium payments after having elected continuation health coverage. We disagree. During trial, plaintiff expanded her theories to allege that defendant specifically violated its notification duties under the cobra amendments of the erisa, 29 USC 1161 et seq., by failing to advise her that she had forty-five days within which to make the required premium payments. The circuit court rejected this argument. On appeal, plaintiff also contends that defendant violated its notification obligations under the cobra. State courts lack subject-matter juris diction over this claim of breach of fiduciary duty. 29 USC 1132(e)(1) grants exclusive jurisdiction over all erisa claims, except those brought under 29 USC 1132(a)(1)(B), to federal district courts. McMartin, supra; Gorman v Life Ins Co of North America, 811 SW2d 542, 547 (Tex, 1991); Summers v United States Tobacco Co, 214 Ill App 3d 878, 883; 574 NE2d 206 (1991). Plaintiff does not identify the statutory basis (nor, indeed, case authority) for her claim that defendant violated the notice provisions of the cobra. However, her claim that defendant breached its fiduciary duties plainly falls within the purview of 29 USC 1132(a) (1)(A) and is subject to the exclusive jurisdiction of the federal district courts.
Subsections a(1)(A) and c(1) of 29 USC 1132 provide a cause of action for violations of the reporting and disclosure provisions of the cobra set forth in 29 USC 1166(a)(1) and (a)(4), which require that (1) an erisa health plan include written notice of a covered employee’s rights under the cobra at the time coverage commences, and (2) in the case of a qualifying event, any qualified beneficiary receive the same written notice of the cobra rights. Moreover, the erisa provides no remedy for a violation of 29 USC 1166(a)(1) and (a) (4) other than that expressly provided in 29 USC 1132(c)(1). Lewandowski v Occidental Chemical Corp, 986 F2d 1006, 1009-1010 (CA 6, 1993). Plaintiff’s allegation that defendant failed to disclose or to notify plaintiff of her rights under the cobra falls squarely within subsection a(1)(A). Hozier v Midwest Fasteners, Inc, 908 F2d 1155, 1166-1167 (CA 3, 1990); Gresham v Massachusetts Mutual Life Ins Co, 248 NJ Super 64; 590 A2d 241 (1991). Both the circuit court and this Court are without jurisdiction to entertain plaintiffs claim that defendant violated the notice provisions of the
COBRA.
Assuming that state courts enjoy any subject-matter jurisdiction, we would conclude that the circuit court properly rejected this argument. An administrator of an erisa plan must provide qualified beneficiaries with adequate notice of their rights under the cobra. 29 USC 1166(a)(4); Lincoln General Hosp v Blue Cross/Blue Shield of Nebraska, 963 F2d 1136, 1139-1140 (CA 8, 1992); Meadows v Cagle’s, Inc, 954 F2d 686, 690-691 (CA 11, 1992). An administrator fulfills its obligations under 29 USC 1166 when it provides the qualified beneficiary with enough information to make an intelligent decision regarding election of continuation coverage. Lincoln General Hosp, supra at 1140.
Defendant provided plaintiff with adequate information to decide to elect continuation coverage. Defendant sent notice of plaintiff’s cobra rights to her husband’s last known address pursuant to 29 USC 1166(a)(4). Plaintiff applied for coverage within the sixty-day period. Plaintiff contends that the cobra also required defendant to notify her of the forty-five-day grace period for the payment of premiums. Plaintiff, however, fails to show why such information was necessary for her to make an intelligent decision to elect, coverage when she had already indicated a desire for immediate coverage. Before the expiration of the grace period, plaintiff was aware of her right to make the premium payment, but did not make the required payment. Long after the forty-five-day period expired, defendant offered to accept payment, but again plaintiff declined to pay the premium. De fendant adequately preserved plaintiff’s right to elect and receive continuation coverage under the COBRA.
Moreover, the cobra does not require specifically that a plan administrator provide notice of the forty-five-day grace period to effect premium payments. Even if we had jurisdiction over the matter, we would decline to extend an employer’s obligations under the notice and disclosure provisions of the cobra beyond those already promulgated by the Secretary of Labor. The circuit court properly concluded that defendant satisfied its obligations under 29 USC 1166. We find no error warranting reversal.
Plaintiff also argues that the trial court erred in refusing to apply principles of equitable estoppel. We disagree. Once again, state courts lack jurisdiction to entertain claims of equitable estoppel in the context of the erisa. McMartin, supra at 6; 29 USC 1132(e)(1); Gresham, supra at 69-70. Moreover, plaintiff failed to preserve this issue. Our failure to review it will not result in manifest injustice, inasmuch as the record does not support plaintiff’s claim.
Lastly, plaintiff asserts that the circuit court erroneously found that defendant did not foreclose plaintiff from paying the initial premium necessary to receive continuation coverage. We disagree. Findings of fact by the trial court may not be set aside unless clearly erroneous. MCR 2.613(C); Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990). A finding of fact is not clearly erroneous unless there is no evidence to support it or the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed. Tallman v Cheboygan Area Schools, 183 Mich App 123, 126; 454 NW2d 171 (1990).
Whether defendant prevented plaintiff from paying the premium ultimately turned on the resolution of a credibility contest between defendant’s representative, Paul Fisher, and plaintiff. Fisher testified that he informed plaintiff on several occasions that defendant would continue her group health coverage if she would send the premium payment. Although plaintiff vigorously disputed Fisher’s testimony, she conceded that she never mailed a second check, although she knew that the first check had never been cashed. The court concluded that defendant had not prevented plaintiff from making the necessary payment. This Court affords great deference to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it. MCR 2.613(C). The trial court’s findings of fact were not clearly erroneous.
Affirmed.
For purposes of this action, 29 USC 1163(2) provides in part that a “qualifying event” means the termination of the covered employee’s employment that, but for the continuation coverage required under the cobra, would result in the loss of coverage of a qualified beneficiary. | [
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Doctoroff, C.J.
Defendant appeals an order of the circuit court granting plaintiff’s motion for summary disposition. The sole issue on appeal is whether the alimony in the divorce settlement reached by the parties and relied upon by the circuit court in its judgment of divorce is nonmodifiable as alimony in gross. The circuit court concluded that it is. We affirm.
The judgment of divorce included the following alimony provision:
In full discharge of the Husband’s obligation to provide for the support and maintenance of the Defendant. . . the Plaintiff shall pay to the Defendant . . . the sum of $1,083.33 every month commencing on September 11, 1987, and continuing until the death or remarriage of the Defendant or the expiration of four years, whichever first occurs. Thereafter alimony for the Defendant shall be forever barred. Alimony payments shall be excludable to Plaintiff and includable by Defendant in their respective income tax returns.
At the time of the divorce, December 23, 1987, the parties had been married for twenty-one years. Defendant was fifty-one years old. During the marriage defendant worked only sporadically. After the divorce, she returned to college to obtain a master’s degree and pursue a career in psychology. However, she suffered various health problems and was involved in an accident that required surgery. Her mental health also deteriorated after the divorce.
In January 1991, defendant filed a motion seeking an extension and increase in alimony based upon a change of circumstances. A hearing was held before a friend of the court referee, who recommended an extension of alimony, which plaintiff rejected. Plaintiff then moved for summary disposition, which the circuit court granted on the basis that the alimony order was nonmodifiable.
In determining whether an alimony agreement or order provides for periodic alimony, which is modifiable, MCL 552.28; MSA 25.106, or alimony in gross, which is nonmodifiable, Tomblinson v Tomblinson, 183 Mich App 589, 593; 455 NW2d 346 (1990), this Court generally construes the agreement to give effect to the parties’ intent expressed in that agreement. Id.
In Tomblinson, supra at 594, this Court held that the alimony order was modifiable because the consent judgment of divorce provided that the alimony payments would continue until the wife’s death or remarriage, the expiration of ten years, or "until the further Order of this Court.” It was the inclusion of this final contingency that persuaded this Court ■ to conclude that the parties intended the alimony to be periodic and, therefore, modifiable.
In this case, plaintiff argues that the absence of such language indicates an intent by both parties to make the alimony nonmodifiable. While we cannot agree that the absence of a provision requires us to read in a provision to the contrary, we nevertheless arrive at plaintiffs conclusion for other reasons. The judgment of divorce provided, first, that plaintiff would provide the alimony payments "[i]n full discharge of [his] obligation to provide for the support and maintenance of the Defendant,” and, second, that "[thereafter alimony for the Defendant shall be forever barred.” Such language indicates an intent to make the alimony award final.
Defendant argues in response that the contingencies attached to plaintiffs duty to pay alimony —in this case, death or remarriage of defendant— are determinative of a finding of periodic, modifiable alimony. Defendant cites Hall v Hall, 157 Mich App 239, 242; 403 NW2d 530 (1987), for the proposition that such contingencies show that "the actual amount of the obligation was not specifically ascertainable and, therefore, the obligation itself cannot be considered alimony in gross.” See also Van Houten v Van Houten, 159 Mich App 713, 717; 407 NW2d 69 (1987); Couzens v Couzens, 140 Mich App 423, 428; 364 NW2d 340 (1985); Welch v Welch, 112 Mich App 524, 526; 316 NW2d 258 (1982).
However, subsequent decisions of this Court have rejected such a bright-line approach. In Turner v Turner, 180 Mich App 170, 174; 446 NW2d 608 (1989), this Court held that the intent of the parties should be the overriding concern, while the number and type of contingencies should be considered only as factors in determining intent. Essentially, the Turner panel, which included a member of the Hall majority, rejected the majority opinion in Hall in favor of the concurring opinion. Turner, supra at 173-174, 175, n 1. The Turner Court concluded that the contingencies of death and remarriage did not show an intent to create periodic alimony in that case. Id. at 175. See also Blake v Blake, 178 Mich App 315, 317-318; 443 NW2d 408 (1989); Pierce v Pierce, 166 Mich App 579, 582; 420 NW2d 855 (1988); Macoit v Macoit, 165 Mich App 390, 392-393; 418 NW2d 476 (1988).
This Court adopted the Turner approach in Bonfiglio v Pring, 202 Mich App 61; 507 NW2d 759 (1993), which we must follow pursuant to Administrative Order No. 1994-4. Bonfiglio concerned an alimony order very much like the one in this case —a series of payments over a set period of time, subject to early termination upon the death or remarriage of the recipient. The Court found the following factors determinative of the parties’ intent to create alimony in gross: the specificity of the amount to be paid each month; the fact the purpose of the alimony was to provide the recipient support until she found gainful employment; and the fact the alimony award was not subject to further order of the court, as in Tomblinson, supra.
Because these same factors are present in this case, and because we see no other unusual circumstances to suggest otherwise, we conclude that the parties in this case intended to create alimony in gross. The trial court did not err in denying defendant’s motion to modify the alimony award.
Having reached a resolution regarding the intent of the parties, we now express our conviction that it is a waste of precious judicial and client resources for the parties to leave to this Court the determination of the parties’ intent regarding whether the alimony is in gross or ■ periodic. In order to prevent this very type of protracted litigation, the parties’ or the court’s intent should be clearly and unequivocally expressed upon the record and in the ultimate instrument that incorporates the alimony provision.
All too often, the parties involved have no idea what the differences are between alimony in gross and periodic alimony, much less how those intentions should be expressed in the judgment. Accordingly, it should be incumbent upon the bench and bar to make it crystal clear to the parties what it is they are agreeing to and what the implications of their acquiescence may be. In cases where the parties agree to provide for alimony in gross, the payee should clearly articulate, through testimony or otherwise, that the payee understands that the alimony is in gross and therefore nonmodifiable. In cases where the alimony is periodic, the payor should clearly articulate that the payor fully understands that a change in circumstances may cause the award to be modified.
It does not seem overly burdensome to request that the bench and bar conduct a full inquiry regarding the nature of the award at the time the parties express their agreement. That inquiry could easily be expressed at the time the judgment is entered, through affidavits filed with the judgment or, better yet, within the judgment itself. If the parties agree that the alimony is in gross, it would be prudent to use those exact words within the divorce judgment. If the parties agree that the alimony will be periodic, then that should be clearly articulated in the judgment. At a time when this Court and the trial courts of this state are feeling the heavy burdens of backlog, it is unfortunate that our dockets must become cluttered with litigation that could well have been averted had the parties and the trial court insisted upon clarity and simplicity.
We thus direct the bench and bar to make it absolutely clear in future cases of this nature that the alimony is in gross or periodic.
Affirmed. | [
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The Judges of this Court having been polled pursuant to Administrative Order No. 1994-4, and the result of the poll being that sixteen Judges opposed convening a special panel, seven were in favor, and one abstained, it is ordered that a special panel shall not be convened. | [
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Murphy, J.
A jury convicted defendant of two counts of child sexually abusive activity, MCL 750.145c(2); MSA 28.342a(2). Defendant pleaded guilty of being an habitual offender, second conviction, under MCL 769.10; MSA 28.1082. The trial court imposed two concurrent sentences of 24 to 360 months’ imprisonment with credit for 195 days. Defendant appeals as of right from his conviction and sentence. The prosecutor cross appeals from the trial court’s granting 195 days of credit for time served in jail before sentencing.
This case arose from the allegations of defendant’s sixteen-year-old niece that on two occasions defendant had taken photographs of her with her exposed breasts for the purpose of making pornographic material. Defendant testified at trial and denied the accusations, specifically denying taking photographs of his niece. The jury apparently found the niece’s testimony more credible.
Defendant argues on appeal that the child sexually abusive activity statute, MCL 750.145c(2); MSA 28.342a(2), is unconstitutionally vague because a person of common intelligence could not possibly know what activity is criminal under the statute. Appellate review of this issue normally would be precluded because defendant failed to challenge the constitutionality of this statute before the trial court. People v Gezelman (On Rehearing), 202 Mich App 172, 174; 507 NW2d 744 (1993). However, we will review this issue because it involves an important constitutional question. Id.
A statute may be challenged for vagueness on three grounds: (1) it is overbroad and impinges on First Amendment freedoms; (2) it does not provide fair notice of the conduct proscribed; or (3) it is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed. E.g., People v Hayes, 421 Mich 271, 283; 364 NW2d 635 (1984). In this case, defendant challenges MCL 750.145c(2); MSA 28.342a(2) on the ground that it does not provide fair notice of the conduct proscribed.
At one point in his brief, defendant characterizes the statute as being "overbroad” as well as being vague. The reference to the statute being overbroad is inappropriate in this case because defendant does not argue that the statute impinges on his First Amendment freedoms. See Hayes, supra. Moreover, this Court has rejected the argument that MCL 750.145c(2); MSA 28.342a(2) is unconstitutional because it is over-broad. Gezelman, supra.
We disagree with defendant’s argument that MCL 750.145c(2); MSA 28.342a(2) is unconstitutionally vague. MCL 750.145c(2); MSA 28.342a(2) provides in relevant part:
A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony ....
Subsection one of this statute, MCL 750.145c(1); MSA 28.342a(1), defines "child sexually abusive activity” and "child sexually abusive material,” as well as the relevant terms that are a part of these two definitions. In light of these definitions, the statute expressly prohibits persuading a child to engage in erotic nudity, which may mean the display of a female breast, in order to make a developed or undeveloped photograph that appeals to prurient interests. The language used to prohibit the act is not so vague that a person of common intelligence must necessarily guess at its meaning. See People v Munn, 198 Mich App 726, 727; 499 NW2d 459 (1993). Certainly, the language provides fair notice that taking photographs of a sixteen-year-old girl’s exposed breasts for the purpose of making pornographic materials is a prohibited act.
Defendant raises several other issues in his brief and supplemental brief that challenge the validity of his conviction and sentence. After reviewing the record, we conclude that these claimed errors do not warrant a new trial or resentencing.
The prosecutor argues on cross appeal that the 195 days of credit defendant received against his current sentences erroneously included twenty-six days that he had served for an unrelated offense. We agree. See MCL 769.11b; MSA 28.1083(2); Peo ple v Prieskorn, 424 Mich 327, 341; 381 NW2d 646 (1985). Accordingly, we remand this case to the trial court for a recomputation of sentence credit.
Affirmed in part and remanded for a recomputation of sentence credit. We do not retain jurisdiction. | [
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Jansen, P.J.
Defendant Kent County Education Association appeals as of right from a February 14, 1992, order of the Kent Circuit Court granting plaintiffs motion for summary disposition pursuant to MCR 2.116(0(10). We reverse.
This case arises out of the trial court’s order enjoining arbitration of a grievance proceeding between plaintiff and defendant. Rebecca Wingeier was a probationary teacher under a contract with the Kentwood Public Schools for the 1991-92 school year. On March 19, 1991, the school board notified her pursuant to the teacher tenure act, MCL 38.81-38.83; MSA 15.1981-15.1983, that the contract would not be renewed because of unsatisfactory service. Defendant then filed a grievance on her behalf under the collective bargaining agreement between it and the Kentwood Board of Education. Specifically, defendant alleged: (1) it did not approve an appointment to the faculty tenure advisory committee, which reviews the performance of probationary teachers, in violation of article 10(A)(l)(b)(3) of the bargaining agreement; (2) Wingeier’s nonrenewal breached article 10(B)(2) of the bargaining agreement that no teacher shall be disciplined without just cause; and (3) Wingeier was given only a one-week notice regarding her performance in violation of article 11(C)(3). The school board denied the grievance.
Defendant then filed a demand for arbitration. However, the school district filed a complaint in the circuit court, seeking to enjoin the arbitration on the basis that the grievance was not subject to arbitration under the terms of the bargaining agreement. The trial court agreed and enjoined the arbitration. Defendant contends on appeal that the grievance was subject to arbitration under the bargaining agreement. We agree with defendant.
Appellate review of a motion for summary disposition is de novo because this Court must review the record to determine if the moving party is entitled to judgment as a matter of law. Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992); Coleman-Nichols v Tixon Corp, 203 Mich App 645, 650; 513 NW2d 441 (1994). A motion under MCR 2.116(0(10) tests the factual basis underlying a plaintiffs claim. MCR 2.116(0(10) permits summary disposition when, except with regard to the amount of damages, there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A court reviewing such a motion must consider the affidavits, depositions, admissions, pleadings, and any other evidence in favor of the party opposing the motion and grant the benefit of any reasonable doubt to the opposing party. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993).
The question whether a dispute is arbitrable is for the court’s determination. Kaleva-Norman-Dickson School Dist No 6 v Kaleva-Norman-Dickson School Teachers’ Ass’n, 393 Mich 583, 591; 227 NW2d 500 (1975). The court’s inquiry " 'is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator.’ ” Id., quoting United Steelworkers of America v American Mfg Co, 363 US 564, 568; 80 S Ct 1343; 4 L Ed 2d 1403 (1960). Absent an express provision excluding a particular grievance from arbitration, or the most forceful evidence of a purpose to exclude the claim, the matter should go to arbitration. Kaleva, supra, p 592.
The relevant provisions of the collective bargaining agreement provide:
ARTICLE 2
BOARD RIGHTS
A. The Board, on its own behalf on behalf of the electors of the district, hereby retains and reserves unto itself, without limitation, all powers, rights, authority, duties, and responsibilities conferred upon and vested in it by the laws and the Constitution of the State of Michigan, and of the United States including, and without limiting the generality of the foregoing, the right:
2. To hire all employees, and subject to the provisions of law, to determine their qualification and the conditions for their continued employment, or their dismissal, or demotion; and to promote, and transfer all such employees;
ARTICLE 10
CONTRACTUAL RELATIONS
A - TENURE COMMITTEE
1. All probationary teachers eligible for tenure with initial employment dates as of the first day of school in September shall have their performance records (formal observations and evaluation) reviewed by a faculty tenure advisory screening committee and results made known to the probationary teacher prior to March 1. Those probationary teachers whose initial employment date other than the first day of September shall have their performance records (defined above) reviewed and the results made known to the teacher at least 90 days prior to the completion of the probationary period.
a. The committee shall have the responsibility of recommending either dismissal proceedings, third year probationary status, or tenure to the princi pal who in turn shall recommend to the Superintendent of Schools.
b. The committee shall consist of the cognizant principal as the non-voting chairperson, one teacher with a comparable assignment, one teacher from the same building, and one teacher-at-large.
(1) The building Association representatives shall appoint the teacher-at-large.
(2) Thé chairperson shall appoint all other members and convene the committee.
(3) If a teacher with a comparable assignment is not assigned to the building, the chairperson shall appoint this member of the tenure committee; this appointment shall be approved by the building Association representative.
(4) The Tenure Committee shall be appointed and notified of their responsibilities within two weeks after the start of school or within two weeks of the date of hire of the individual concerned.
c. The approval or disapproval of the recommendation of the tenure committee by the Superintendent of Schools shall be final, subject only to the review and final action of the Board of Education.
B - DISMISSALS
1. All dismissals shall be handled in accordance with the Michigan Tenure Act as amended.
2. No teacher shall be disciplined, reprimanded, reduced in rank or compensation without just cause.
ARTICLE 11
TEACHER EVALUATION
C - OBSERVATIONS
1. There shall be at least one extended evaluative observation of classroom teaching for 30 consecutive minutes.
2. All monitoring or observation of the work performance of a teacher shall be conducted openly and with full knowledge of the teacher.
3. When improvement is needed the principal shall provide suggestions for improvement with a copy to the teacher.
ARTICLE 13
GRIEVANCE PROCEDURE AND ARBITRATION
A - GRIEVANCE DEFINITION
1. A grievance shall be defined as a complaint of an alleged violation, misinterpretation, or misapplication of provisions of the Master Agreement, Board Policy, or Administrative and Building Regulations as described in sections 2, 3, and 4 of this article.
2. Class I - Grievance - Master Agreement - Any teacher or group of teachers believing that there has been a violation, misinterpretation, or misapplication of any provision of this Agreement may process the complaint of the alleged violation through Step 5.
B - GRIEVANCE STEPS
Step 5. (Arbitration)
a. If a satisfactory disposition of the grievance is not made as a result of the meeting provided for in Step 4, the Association shall have the right to appeal the dispute to an impartial arbitrator who may be selected in accordance with the rules of the American Arbitration Association.
G - POWERS OF THE ARBITRATOR
It shall be the function of the arbitrator, and he shall be empowered, except as his powers are limited below, after due investigation, to make a decision in cases of alleged violation of the specific articles and sections of this Agreement.
1. He shall have no power to add to, subtract from, disregard, alter, or modify any of the terms of this Agreement.
2. He shall have no power to rule on any claim or complaint for which there is another remedial procedure or forum established by law or by regu lation having the force of law, including any matter subject to the procedures specified in the Teacher’s Tenure Act [Act IV Public Acts (extra session), of 1937 of Michigan, as amended.].
Plaintiff argues that the teacher tenure act includes probationary teachers and that the dismissal of probationary teachers is regulated by that act. The applicable provisions of the teacher tenure act provide (1) that all teachers are probationary teachers during their first two years of teaching, MCL 38.81; MSA 15.1981; (2) that no teacher shall be required to serve more than one probationary period in any one school district or institution, although a third year of probation may be granted in certain circumstances, MCL 38.82; MSA 15.1982; and (3) that at least sixty days before the close of the school year the board shall provide the probationary teacher with a statement indicating whether the teacher’s work is satisfactory and that any probationary teacher not notified in writing within at least sixty days before the close of the school year shall be employed for the ensuing year, MCL 38.83; MSA 15.1983.
There is no dispute that Wingeier did not complete a two-year probationary period and therefore did not acquire tenure. MCL 38.91; MSA 15.1991. In Cantu v Grand Rapids Public Schools Bd of Ed, 186 Mich App 488, 491; 464 NW2d 900 (1990), this Court held that an uncertified teacher does not fall under the provisions of the teacher tenure act and therefore could not seek a remedy under the act. Similarly, Wingeier, as a probationary teacher is not tenured and cannot seek a remedy under the teacher tenure act. MCL 38.101; MSA 15.2001; MCL 38.121; MSA 15.2021. Therefore, Wingeier’s claim is not exempted by article 13(G)(2) because there is not "another remedial procedure or forum established by law” under which Wingeier may seek her remedy.
Plaintiffs reliance on Lanting v Jenison Public Schools, 103 Mich App 165; 302 NW2d 631 (1981), is misplaced. In Lanting, the only possible provision under which the arbitration could have been filed was one that stated that no teacher shall be disciplined without just cause. However, the teacher in Lanting had been dismissed and was not merely disciplined. Further, the provision came under the heading of "Teacher Evaluation and Progress.” This Court held that only if the clause was taken completely out of context could it apply to a discharge. Id., p 174. In the instant case, 'defendant contends not only that Wingeier’s dismissal violated a clause that no teacher shall be disciplined without just case (under a heading of "Dismissals”), but also that the association did not approve an appointment to the faculty tenure advisory committee in violation of article 10(A)(1) (b)(3) and that Wingeier was not given sufficient notice under article 11(C)(3).
Accordingly, we find that Wingeier was not exempted from seeking to arbitrate her claim pursuant to article 13 of the collective bargaining agreement because her claim is not within the purview of the teacher tenure act. There is no express provision in the collective bargaining agreement excluding a nonprobationary dismissal grievance from arbitration, nor is there forceful evidence of a purpose to exclude the issue of a probationary teacher’s dismissal. Kaleva, supra, p 592. Defendant’s claim that the dismissal violated articles 10(A)(l)(b)(3), 10(B)(2), and 11(C)(3) is on its face governed by the contract. This is especially so because any doubts about the arbitrability of an issue should be resolved in favor of arbitration. Huntington Woods v Ajax Paving Industries, Inc (After Remand), 196 Mich App 71, 75; 492 NW2d 463 (1992). Whether defendant is correct that the dismissal violated these provisions is for the arbitrator to determine. Kaleva, supra, p 591..
The trial court’s order granting plaintiff summary disposition and enjoining arbitration is vacated. Defendant may submit its claim to arbitration. We retain no further jurisdiction.
Fitzgerald, J., concurred. | [
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] |
Michael J. Kelly, J.
Plaintiffs appeal as of right a circuit court order granting defendants’ motion to dismiss for failure to obey a discovery order. We affirm in part and reverse in part.
This action arises out of an incident that occurred on January 14, 1988, at Comerica Bank in Ferndale, Michigan. Plaintiffs claim that they were detained wrongfully by off-duty Ferndale police officer Paul Gheldorf after cashing their paychecks. Although certain items were confiscated, including plaintiff Massey’s knife, they were allowed to leave and at that time were not charged with any crime.
On June 22, 1988, plaintiffs commenced an action against defendants alleging false arrest or imprisonment, intentional infliction of emotional distress, slander, false light invasion of privacy, and violations of constitutional rights. Plaintiffs claimed the search was racially motivated. Notice of the lawsuit was served on Officer Gheldorf at the end of September or beginning of October 1988. On October 12, 1988, Gheldorf prepared a police report regarding the January incident at the bank. A warrant was issued against plaintiff Massey, who ultimately was charged with carrying a concealed weapon. No charges were filed against plaintiff Johnson.
Both plaintiffs subsequently asserted the Fifth Amendment privilege against self-incrimination and thereby refused to participate in any discovery in the civil action. On May 5, 1989, the criminal charges against plaintiff Massey were dismissed on the basis that the prosecution was untimely. The prosecution appealed the dismissal to this Court.
On July 24, 1989, an order staying the proceedings in the civil action for six months was entered by the trial court at plaintiffs’ request. Two stipulated orders continuing the stay for one year (or six months each) were entered on January 30, 1990, and August 1, 1990. At a pretrial conference on August 21, 1990, the court indicated that it would not allow any further stays. The court entered a calendar conference order setting discovery cutoff and mediation for December 1990 and trial for February 4, 1991. This Court, Murphy, P.J., and Mackenzie and Griffin, JJ., denied plaintiffs’ application for leave to appeal the conference order in an order entered on October 15, 1990 (Docket No. 132332)._
Plaintiffs subsequently refused to participate in discovery because the prosecution’s appeal in the criminal case was pending. An order compelling answers to defendants’ interrogatories was entered on September 26, 1990. Following a hearing regarding defendants’ motion to dismiss with prejudice on October 17, 1990, the trial court entered an order dismissing the case without prejudice and assessing costs payable only in the event that the plaintiffs refiled their complaint.
This Court then affirmed the dismissal of the criminal charge against plaintiff Massey. People v Massey, unpublished opinion per curiam, decided December 20, 1990 (Docket No. 118486). The Supreme Court denied the prosecution’s application for leave to appeal on April 16, 1991. 437 Mich 974 (1991).
A trial court is authorized to impose sanctions as it deems just where a party fails to obey an order to provide or permit discovery. MCR 2.313(B). However, the court may not impose substantial penalties because a witness elects to exercise his Fifth Amendment privilege against self-incrimination. Lefkowitz v Cunningham, 431 US 801, 805; 97 S Ct 2132; 53 L Ed 2d 1 (1977). The court’s decision will not be overturned on appeal absent an abuse of discretion. Barlow v John Crane-Houdaille, Inc, 191 Mich App 244, 251; 477 NW2d 133 (1991).
Here, the trial court’s decision to dismiss without prejudice did not constitute an abuse of discretion. The court protected plaintiffs’ Fifth Amendment rights by issuing stays during the pendency of the criminal proceedings. Only after the crimi nal proceedings were concluded at the trial level did the court call a halt to further delays and refuse to permit stays in thé civil case while the criminal proceedings were appealed, whether as of right or by application for leave by the prosecutor. Because plaintiffs obviously refused to obey a proper discovery order, the court was entitled to impose sanctions pursuant to MCR 2.313(B). The sanction of dismissal without prejudice was reasonable because it left neither party disadvantaged. See McKelvie v Mount Clemens, 193 Mich App 81, 86; 483 NW2d 442 (1992); Bruce v Grace Hosp, 96 Mich App 627, 631-632; 293 NW2d 654 (1980).
Plaintiffs’ argument that possible operation of the statute of limitation might prejudice their ability to refile their complaint if criminal proceedings became lengthy is moot because this Court affirmed the dismissal of the criminal charge on December 20, 1990, and the Supreme Court denied leave to appeal four months later.
Our conclusion that the trial court did not abuse its discretion rests on the fact that dismissal was without prejudice. Another part of the dismissal order, however, assessed costs against plaintiffs in the event they refiled their complaint. This part of the order essentially operated as a tax upon the exercise of plaintiffs’ Fifth Amendment rights and, even after their statute-of-limitations and self-incrimination concerns became moot, as a deterrent against refiling the complaint. Effectively, the assessment of costs made the dismissal order with prejudice. We therefore reverse the part of the order assessing costs against plaintiffs.
Affirmed in part and reversed in part.
Connor, J., concurred.
Plaintiffs also named Comerica Bank and Lawrence Wolf Properties as defendants. A stipulation to dismiss those parties was entered after oral argument on March 1, 1993.
The right against self-incrimination is guaranteed by both the United States and Michigan Constitutions, US Const, Am V; Const 1963, art 1, § 17, and protects an accused from being compelled to testify against himself or provide evidence of a testimonial or communicative nature. People v Burhans, 166 Mich App 758, 761-762; 421 NW2d 285 (1988). The constitutional privilege against self-incrimination applies to evidence in a civil proceeding that might subject the witness to criminal prosecution. Malloy v Hogan, 378 US 1, 11; 84 S Ct 1489; 12 L Ed 2d 653 (1964); Paramount Pictures Corp v Miskinis, 418 Mich 708; 344 NW2d 788 (1984).
Before filing this motion, plaintiffs filed a motion for voluntary dismissal without prejudice on October 5, 1990, and set the hearing for October 24, 1990. This motion was not addressed at the hearing on October 17, 1990. | [
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] |
Per Curiam.
This case involves the sale of an allegedly defective home. Plaintiff appeals as of right from the trial court’s order granting defendant’s motion for summary disposition under MCR 2.116(0(10). We reverse.
Plaintiff bought defendant’s home in 1988 without having it inspected. The basement started leaking in 1989. In 1991, she had the paneling removed from the basement walls and discovered that the walls were bowed-in and cracked. She sued.
Plaintiff’s amended complaint alleged fraud and misrepresentation by nondisclosure and, in a separate count, fraud and mutual mistake. She prayed for either rescission or damages. Plaintiff argues that the trial court erred in finding that there were no questions of material fact and that defendant was entitled to judgment as a matter of law. We agree in part.
The beginnings of the "silent-fraud” doctrine alleged by plaintiff have been traced as far back as 1886: " 'A fraud arising from the suppression of the truth is as prejudicial as that which springs from the assertion of a falsehood, and courts have not hesitated to sustain recoveries where the truth has been suppressed with the intent to defraud.’ ” Williams v Benson, 3 Mich App 9, 18-19; 141 NW2d 650 (1966), quoting Tompkins v Hollister, 60 Mich 470, 483; 27 NW 651 (1886). Thus, "the suppression of a material fact, which a party in good faith is duty-bound to disclose, is equivalent to a false representation and will support an action in fraud.” Williams at 19.
In Williams, the sellers failed to inform the buyers that the premises had once been infested by termites. Id. at 13. When the sellers themselves purchased the motel, four years earlier, they had been informed of the infestation by the previous owner. Id. at 12-13. It was this previous owner who had discovered and assertedly exterminated the termites. Id. This Court held that the trial court properly granted summary disposition to the buyers regarding the question of liability premised on the "silent-fraud” doctrine; the Supreme Court reversed and remanded for trial in 378 Mich 721 (1966).
In Ball v Sweeney, 354 Mich 616; 93 NW2d 298 (1958), the sellers of a resort neglected to inform the buyers that they had been having problems with the Department of Health because the sewer system had been installed improperly. Although the Court did not discuss the "silent-fraud” doctrine, it noted that the plaintiffs’ complaint alleged fraud on the basis of the sellers’ "failure to inform” the buyers of the sewer problem. Id. at 618. The Supreme Court affirmed the trial court’s decision to permit rescission of the contract.
A similar doctrine has been applied in the negligence area in the context of determining whether the former owner of land owes a duty to subvendees injured by a dangerous condition (contaminated water) that the seller failed to disclose to the original buyer. See Christy v Prestige Builders, Inc, 415 Mich 684, 693-694; 329 NW2d 748 (1982). The Christy Court noted that, at "common law, a land vendor who surrenders title, possession, and control of property shifts all responsibility for the land’s condition to the purchaser. Caveat emptor prevails in land sales, and the vendor, with two exceptions, is not liable for any harm due to defects existing at the time of sale.” Id. at 694. "The first exception is the vendor’s duty to disclose to the purchaser any concealed condition known to him which involves an unreasonable danger.” Id. "Failure to make such a disclosure or efforts to actively conceal a dangerous condition render the vendor liable for resulting injuries.” Id. "The second exception is that a vendor is liable to those outside the land for a dangerous condition on the land after the sale until the purchaser discovers or should have discovered it.” Id. "Once the purchaser discovers the defect and has had a reasonable opportunity to take precautions, third parties such as subvendees have no further recourse against the vendor. Under both exceptions, then, knowledge of the defect on the part of the purchaser relieves the vendor of any duty or liability.” Id. at 694-695.
This language has been relied upon in real estate cases that involve neither negligence claims nor third-party buyers. See, e.g., Clemens v Lesnek, 200 Mich App 456, 459; 505 NW2d 283 (1993); Conahan v Fisher, 186 Mich App 48; 463 NW2d 118 (1990); Farm Bureau Mutual Ins Co v Wood, 165 Mich App 9, 16; 418 NW2d 408 (1987); Stewart v Isbell, 155 Mich App 65, 75; 399 NW2d 440 (1986).
Wood and Stewart involved arguably dangerous conditions: an improperly installed wood-burning stove and an improperly capped artesian well. Conahan involved termites but was decided on other grounds. However, Clemens involved improper roof repairs and a defective septic system. The Clemens Court, without discussion, held that a buyer need not establish that a defect was unreasonably dangerous in order to show liability. Id. at 460-461. We agree with Clemens that, in the con text of a real estate action between a buyer and a seller based on fraud, not negligence, an unreasonable danger need not be shown.
Defendant argues, however, that the "as is” clause in the purchase agreement bars plaintiffs action in this case. We disagree.
"As is” clauses allocate the risk of loss arising from conditions unknown to the parties. See Lenawee Co Bd of Health v Messerly, 417 Mich 17, 32-33; 331 NW2d 203 (1982). Thus, plaintiffs mutual mistake claim is therefore barred. "As is” clauses also transfer the risk of loss where the defect should have reasonably been discovered upon inspection, but was not. See Conahan, supra at 49-50. They do not, however,, transfer the risk of loss where "a seller makes fraudulent representations before a purchaser signs a binding agreement.” Clemens, supra at 460. That is, at least arguably, what happened here.
Plaintiff submitted the affidavit of Leon Mancour, a licensed contractor, who indicated that he inspected plaintiffs leaky basement after the wall paneling was removed. He found that the stud wall onto which the paneling was nailed had been built two inches away from the wall to accommodate the inward bowing of the basement walls. He found large cracks in the walls behind the paneling that had been filled and painted over before the installation of the stud wall. Some of the studs had been shimmed to accommodate the bowing of the walls. Mr. Mancour further found evidence that the walls had continued to bow since the installation of the paneling, including separation of the caulk and paint previously applied, damage to the studs, and evidence of movement in the furring strips to which the paneling was nailed.
Theodore Dziurman, a civil engineer, also inspected the house after the paneling was removed. He found severe cracks and bowing in the basement walls and considerable evidence of long-term water leakage. He also observed evidence that the cracks had been caulked and painted over before the paneling was installed. He concluded that "[t]he wall failure had existed for at least thirty (30) years” and that the "basement walls [were] structurally unsound and should be repaired as soon as possible.”
Defendant’s claim that she knew nothing of the defective condition of the basement walls, rather than entitling her to summary disposition, creates a question of fact. The same is true of conflicting evidence given by two of defendant’s experts. One indicated that there were cracks and bowing above grade that were obvious from outside the house. The other indicated that the home looked good and fully square from the outside.
The trial court erred in granting defendant’s motion for summary disposition regarding the claim of misrepresentation by nondisclosure.
Reversed and remanded. We do not retain jurisdiction.
Gribes, P.J., concurred in the result only._
Plaintiff has abandoned any claims relating to the allegedly defective condition of the attic.
We note, however, that the bowing of the basement walls involved in this case could result in the collapse of the structure and therefore is, at least arguably, an unreasonably dangerous condition.
Contrary to defendant’s assertions, signed and notarized originals of affidavits by Leon Mancour and Theodore Dziurman submitted by plaintiff were filed with the trial court before the hearing regarding defendant’s motion.
Counsel acknowledged at oral argument that some exhibits presented to this Court were not a part of the record below. Such documents were not considered. MCR 7.210(A)(1). | [
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] |
Cooley, J:
The only question in this case is whether the sale was invalid because of its being made after the time when it was advertised to take place. The defendant plants himself upon strict legal rights, and making no showing or claim of equities, insists that when the land is struck off to him, and then time is given him to produce the money in, he may, if he shall please, decline to give it any further attention* and the proceedings are at an end, -so that no sale can take place without a new advertisement of the time and place.
' We have looked into the cases cited for the defendant and find none of them supporting such a doctrine. Nor is it a reasonable doctrine. The sale has been regularly advertised; the land is offered to bidders in pursuance of the notice, and is struck off to the defendant. He insisting upon a day in which to make the payment, the claim is conceded, and the sale is held open till the second day for the purpose. But the proceedings are not suffered to go down; on the contrary they are held open, and for no other conceivable purpose but to enable the commissioner to put up the lands a second time if the bid is not paid. Notifying the persons who were brought together by the published notice, that the sale would be thus held open, was all that would be requisite; and this would enable every one of them to appear and bid if he saw fit, and thus would accomplish all the purpose of the original notice. There can, therefore, be no presumption that the defendant or any one else has lost any thing by the course adopted. In strict law the practice was justifiable ; and as already said, strict law is all the defendant has demanded in his motion to set aside the sale. The order denying the application must therefore be affirmed, with costs.
What we -have said would have no bearing upon a case •where the defendant comes with a showing of equities, or that the land was sold at a price grossly inadequate.
The other Justices concurred. | [
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] |
Cooley, Ch. J:
Where, under a contract for the purchase of personal property something remains to be done to identify the property, or to put it in condition for delivery, or to determine the sum that shall be paid for it, the presumption is always very strong that by the understanding of the parties the title was not to pass until such act had been fully done and accomplished. But the presumption is by no means conclusive. If one bargains with another for the purchase of property, and that is done in respect to it which the parties agree shall pass the title, nothing more is generally requisite. The question is only one of mutual assent; whether the minds of the parties have met, and by their understanding the purchaser has now become owner. This is the general rule where the case is not within the statute of frauds. If one purchases gold bullion by weight and receives delivery before it has become convenient to weigh it, and on the understanding that the weighing shall be done afterwards, thefe can be no reasonable doubt, unless there are some qualifying circumstances in the case, that the bullion has now become his property and is at his risk. — Lingham v. Eggleston, 27 Mich., 324.
But we do not see how the judge could say, as matter of law, that delivery according to the understanding passed the title to the logs in this case. Delivery is usually the most significant fact in such a transaction, but it is not conclusive. One may receive delivery of something he has bargained for on the express understanding that the title shall not pass until the weighing or measuring which is to determine the price has been done. And if there may be an express understanding to that effect, so there may be an implied understanding of a like character. In this case delivery was to be made, not to the purchaser, but to the booming company, and the question at issue really is, for whom was the company bailee after the logs had been so delivered. The fact that the defendant was to pay the company’s charges raised a strong presumption that they were held for him, and that the company was his bailee. But,'on the other hand, the fact that the logs were to be subsequently scaled in order to determine how much should be paid, had a tendency to rebut this presumption. Moreover, no credit appears to have been agreed upon, and the legal inference is, where that is the case, that payment was to be made before the purchaser was to be at liberty to remove the property. This fact would also tend to show that while the booming company should hold the logs they would hold them for the seller.
The charge of the judge assumed that the title to the logs passed to the purchaser as soon as they had been delivered at the place in the river which the jury should find was the one agreed upon. Perhaps the jury may have reached this conclusion as an inference of fact from the evidence, but we cannot say that the opposite conclusion would have been unwarranted. However this may be, the question was one of fact, not of law.
The judgment must be reversed, with costs, and a new trial ordered. •
The other Justices concurred. | [
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Marston, J:
Fries and Vilas brought an action of assumpsit against Kling to recover the amount due upon two promissory notes made by the latter and payable to the order of V. Fries & Co.
The defendant pleaded the general issue, with notice that the notes sued upon were given for intoxicating liquor purchased from plaintiffs, and that they were by reason thereof null and void.
The cause was tried by the court, who found the facts to be, that in 1872 and 1873 the plaintiffs were wholesale dealers in liquors at Cleveland, in the state of Ohio; that the defendant was engaged in the same business at Ionia in this state; that in October, 1872, the plaintiffs’ agent, at defendant’s place of business, took defendant’s verbal order for a quantity of liquors, and transmitted said order to the plaintiffs in Ohio for their approval; that the plaintiffs approved of defendant’s order and consigned the goods to a common carrier in the city of Cleveland; that defendant took the goods from tlio carrier in Michigan, and paid the freight. Other facts were forbid as to the making and delivery of the notes,'and the amount due thereon, but it is unnecessary to set forth the same in detail.
From the facts found, the court held the contract and sale was not made in Michigan, nor in violation of the laws of this state; that the plaintiffs were therefore entitled to recover; and judgment was rendered accordingly.
Counsel for plaintiff in error discussed several questions which we think are not raised by this record. It is not denied but that there was evidence given on the trial tending to prove the facts found by the court, and the only question for us to determine is, whether the facts as found support the judgment.
It is insisted that because plaintiffs’ agent, as found by the court, solicited and obtained the order in this state, and the defendant afterwards received the liquors from the carrier in this state, and paid the freight thereon, the contract ivas therefore a Michigan contract, notwithstanding the fact that the order ivas by the agent sent to Ohio for approval, approved there, and the goods then shipped to defendant.
It is certainly quite clear that no agreement ivas entered into between the parties at the time the order ivas given. The court does not find that an agreement ivas then made, or that the agent did any thing beyond soliciting the order and sending it forward for approval by his principals. Had the order been for some other kind of goods, taken and sent forward for approval as this ivas, no one will contend that Kling could have sustained an action against Fries & Co. for a failure on their part to approve the order and ship the goods, and this irrespective of any question that might be raised under the statute of frauds. Until the order was approved or accepted by tlio plaintiffs, there ivas no agreement made. The order ivas not. binding until accepted; but wdien accepted the contract then became complete and binding. The order might have been in writing and sent to Fries & Co. by mail; or Kling might have sent a verbal order by some person going to Cleveland; or be might have gone there and given tho order himself; in either event, the acceptance of tho order would have been necessary to have made a valid contract, -which must be founded on mutual assent. Tho minds of the parties for tho first time met on the approval of the order in Ohio. The contract was then entered into, made complete and binding, and nuist therefore be considered as having been made at that place. See this question discussed, and the authorities collected in 1 Parsons on Contracts, pp. 480, 485.
The offer and acceptance being verbal, and the goods purchased exceeding in value the sum o£ fifty dollars, was the contract within the statute of frauds, so that an acceptance of the liquors by Kling was necessary to its validity? Illegality will not be presumed. In order to show that tho contract was illegal, it was incumbent on the defendant below to prove that it came within the statute. There was no evidence introduced, nor did the court find what tho law of the state of Ohio required as essential to the validity of such a contract, or that under the laws of that state such a contract .was void. At common law this contract would have been valid: delivery of tho liquors would not have been essential to its validity. It is said to be “a general rule of the common law, that a mere contract for the sale of goods, where nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid, nor the thing sold delivered to the purchaser.” — Whitcomb v. Whitney, 19 Mich., 490. We cannot presume that the statute of Ohio is similar to ours. If, under the statute of that state, something else besides the acceptance of the order was essential to make the contract valid and binding, the statute should have been introduced in this case. In the absence of such proof, we must presume that the contract was valid when tho order was approved and accepted. — Cummings v. Stone, 13 Mich., 72; Ellis v. Maxson, 19 Mich., 186.
It is said, however, that plaintiffs intended to place this liquor in. the hands of Kling to be sold in violation of the law of this state, and therefore they cannot recover. It would be a sufficient answer to tbis position to say, that the court has not found that the plaintiffs had any such intention. As already said, we cannot presume illegality. There being no evidence or finding in the case as to what the actual intention of the plaintiffs was, we cannot presume that the plaintiffs in making a sale which we must presume was valid in the state Where they resided, and where the contract was entered into, thereby intended to assist the purchaser in violating the law of this state.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Mabston, J:
If the object of counsel in this case in not preparing a proper bill of exceptions was to mystify and hide the questions intended to be raised, if any, we must say he has succeeded admirably. What purports to be a bill of exceptions-is nothing but a verbatim copy of the stenographer’s minutes taken on the trial. We have question and answer throughout, objections on both sides, and exceptions taken, conversations of counsel and court, a great deal of which can have no possible bearing in the case. And this mass of immaterial matter, this bushel of chaff, we are expected to search through to see if we cannot find a single grain of wheat stowed away somewhere. We have in this case a printed bill of exceptions covering thirty-five pages, whereas, if properly prepared by counsel, five pages would have been ample to have enabled them to raise all the material questions presented in the case, and that too in a manner that would have enabled us to pass upon the same. If the stenographer’s minutes are to be certified up as the bill of exceptions, it is very evident that in cases which may have occupied one or more weeks in the circuit, we will have records ponderous in size, at least, but almost wholly valueless for any other purpose. We do not wish to be understood as saying that it may not be necessary to sometimes incorporate in the bill of exceptions the entire testimony which it is claimed tends to establish a material fact, and upon which a request was given or refused, but such instances are rare, and we trust we will not again be under the painful necessity of referring to such matters.
There were also in this case twenty questions submitted to the jury upon which they were requested to find specially. Most of these questions seem to be wholly inconclusive, and the circuit judge should not have permitted them to have been submitted to the jury. — Crane v. Reeder, 25 Mich., 303; Sheahan v. Barry, 27 Mich., 217.
This seems to have been an action brought by the bank to recover the amount of a check drawn by Frankenberg in favor of Chadwick upon the bank and paid by it, although Frankenberg had no funds in the bank at the time the check was drawn and paid. It seems to have been contended on the trial that the check grew out of an intended horse trade which was not consummated, _ and that Frankenberg notified the bank not to pay the check. The jury, however, found specially that the check was to be paid even if there had been no horse trade, and that the cashier of the bank, before the check was paid, had not received any notice not to pay it. Under such circumstances the bank was entitled to recover. And taking into consideration the manner in which this case is presented, we do not feel justified in seeking any further for supposed errors.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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] |
Cooley, J:
The suit between these parties is upon a promissory note given by the defendants in closing up with plaintiff a contract they had made with one Newton for the purchase of lands, and which had been assigned to the plaintiff. Two defenses were made to the note. First, That by reason of defects in Newton’s title at the time the contract was entered into, they were, deprived of the occupation of the land, and of the opportunity to take timber from it as they desired, for a considerable period, until the title was perfected; and second, that there was included in the note a sum for interest on the last instalment of the land contract, when the contract called for none.
The first defense was properly overruled. It appears by the contract that the purchasers were to keep the premises “in as good condition” as they were at the date of the contract, until by their payments they became entitled to a deed; and this would preclude their taking off timber until that time. The damages they claimed were for loss of the opportunity to lumber upon the premises prior to that period, and when, consequently, there could have been no legal damages. A man cannot be damnified by being deprived of the opportunity of doing what he has no right to do.
The second defense seems to have been rejected on the ground that the note sued upon was given on a settlement between the parties, and after pfiaintiff had refused to settle with defendants except for the amount promised to be paid by it. If the facts were that this note was given in settlement of conflicting claims of these parties, then, under the previous rulings of this court, we should not inquire into the equities, even though it should be asserted or made to appear that something was included in it which the plaintiff had no lawful right to. — Moore v. Detroit Locomotive Works, 14 Mich., 266. But if defendants should be able to show that the facts were as they claim, this would not be such a case. They offered to show that when the note was given they expressly claimed and insisted that the sum included therein as interest on the last instalment of the land contract was not demandable on the contract, and that they gave the note after being assured by counsel present representing both parties, that their defense to the note to that extent would be valid if it should pjrove that they were not liable for tlie interest in dispute. This evidence would show that the defendants did not give the note in settlement, or understand that it was so taken.
Had the note in suit included nothing but this item of interest, which turns out by the contract not to have been payable, it would have been a plain case of a contract without consideration. Parol evidence is always admissible to show that a contract,-though apparently valid, has nothing to support it. “Some consideration there must be, or it will be void as a nuckmi factum between the parties.” — Parsons, Ch. J., in Fowler v. Shearer, 7 Mass., 14-22. It is not sufficient that the contract imports a consideration; there must be one in fact. Here the land contract fails to supply the consideration, and the plaintiff would be compelled to fall back upon the alleged settlement. But that is no settlement where what the party gives is given under protest that it is not payable, and with an understanding that he reserves his defense to it. A settlement in the nature of a compromise must be made as such, and so understood on both sides.
It is immaterial that in this case tlie note included something further. This fact only makes it a case of partial failure of consideration, instead of total.
Judgment reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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] |
Cooley, Oh. J:
We think the-circuit judge was entirely right in the view he seems to have taken of the legal effect of the contract between defendant in error and J. W. and L. L. Phillips. Such a contract, if made in good faith, is perfectly legal, and requires no filing with the town clerk to preserve the rights of parties under it. It is not a chattel mortgage, but an agreement under which land was to be worked for the benefit of defendant in error, the crops to be his.
But wo also think the plaintiff in error was entitled to show that this agreement was made to protect the property for Levi Phillips, and without any honest intent that it should have effect according to its apparent purpose. Defendant justified under a judgment rendered before the agreement was made, and was therefore in position to assail its lona fieles. If its real intent was merely to protect for Levi Phillips the fruits of his labor against pre-existing creditors, it was fraudulent as to them; and this intent was a question of fact for the jury.
An inspection of the record shows also that the judge applied a rule of cross-examination not consistent with previous decisions of this court. We refer here particularly to what was said in Chandler v. Allison, 10 Mich., 460; Thompson v. Richards, 14 Mich., 172; Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich., 99, all of which, and many others, are inconsistent with the ruling of the. court on some questions. The question put to Levi Phillips as to the person who paid for the purchase of the Walker interest may be taken as an illustration. This was not foreign to the subject matter of the testimony given by the same witness in chief; and the benefits of cross-examination may be, and must be almost nullified if such questions must be rejected because that precise subject was not called to the attention of the witness by the - party who called him. It cannot be necessary to repeat what we have previously said on this subject, as this case, we think, is clearly within the prior rulings.
The judgment should be reversed, with costs, and a new trial ordered.
The other Justices concurred.
The contract referred to reads as follows:
“ This agreement made and entered into by and between William B. Ledyard, of the city of Grand Rapids, Michigan, of the first part, and John W. and Levi L. Phillips of the second part, witnesseth as follows:
“ Whereas, The said Ledyard holds a real estate mortgage upon certain lands and premises, situate and being in the county of Kent, town of Plainfield, state of Michigan, and now occupied as a farm by said J. W. and L. Phillips; And whereas, said Ledyard also holds a certain chattel mortgage given by said Phillips, upon certain personal property belonging to said Phillips, said mortgage being dated about November 1st, 1872, and given for the sum of about six thousand nine hundred dollars; And whereas, said Phillips are raising crops on said farm, now have some harvesting, others nearly ready for harvest, and other crops sowed, and propose to put in more, with the consent of said Ledyard, for the years 1873 and 1874;
“Now therefore, in consideration of the premises, the said John W. and Levi L. Phillips hereby sell, assign, transfer and set over unto said Ledyard all said crops now harvested or growing, or to be raised hereafter, and the entire avails of said farm, and the stock thereon, and the increase of said stock, reserving enough thereof to pay the expenses of raising and harvesting the same, feeding the stock thereon, and conducting and carrying on said farm generally; and said Ledyard in consideration thereof hereby agrees to apply the proceeds thereof upon said mortgages as follows: First, the sum of fifteen hundred dollars upon said chattel mortgage, and after that, upon one or the other of said mortgages, as said Ledyard may think proper and best to make good and safe Ms security.
“ In witness whereof the said parties have hereunto set their hands this fourteenth day of July, eighteen hundred and seventy-three.
“ (Signed) John W. Phillips,
L. L. Phillips,
W. B. Ledyaed.” | [
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] |
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