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Griffin, J.
We follow the precedent of People v Fish (On Remand), 207 Mich App 486; 525 NW2d 467 (1994), only because we are required to do so. In accordance with Fish, we remand for modification of defendant’s judgment of conviction and for resentencing. Were it not for Administrative Order No. 1994-4, we would affirm.
I
Defendant was charged and convicted of operating a motor vehicle while under the influence of intoxicating liquor (ouil) and while having an unlawful blood alcohol level in excess of 0.10 percent by weight of alcohol (ubal) in violation of MCL 257.625 et seq.; MSA 9.2325 et seq. In the information, the prosecutor listed defendant’s two previous ouil-ubal convictions and specified that the current charges were "third offense notice.” The prosecutor also gave notice of his intent to seek an enhanced sentence upon conviction:
Therefore, upon conviction upon the charged offense or the lesser offense of operating a vehicle while visibly impaired, the defendant will be subject to an enhanced sentence under MCL 257.625(6) or MCL 257.625(10).
At the close of proofs following a jury trial, defense counsel argued that the issue of defendant’s prior convictions should be submitted to the jury. The trial court responded that, pursuant to MCL 257.625(12); MSA 9.2325(12), it was the court’s function to make a determination regarding prior convictions. After the jury found defendant guilty of ouil and ubal, the prosecutor submitted certifications of defendant’s prior convictions to the court. On the basis of convic tion certificates, the trial court sentenced defendant to an enhanced sentence in accordance with MCL 257.625(6)(d); MSA 9.2325(6)(d).
II
On appeal, defendant asserts that he was denied his statutory right to receive a jury determination whether the prosecutor had sustained his burden of proving defendant’s prior convictions. In our view, the circuit court properly rejected defendant’s argument on the basis of the recent amendments of the anti-drunk-driving statute. Nevertheless, on the basis of the authority of Fish, supra, and pursuant to Administrative Order No. 1994-4, we reverse defendant’s sentence and remand for resentencing in accordance with the penalties authorized for ouil-ubal, first offense.
III
In 1991, the Michigan Legislature rewrote our drunk driving laws. One of the major changes accomplished by 1991 PA 98 (effective January 1, 1992) was the addition of subsections 11 and 12 to MCL 257.625; MSA 9.2325. These new subsections establish a procedure for the prosecutor to seek an enhanced sentence based upon one or more prior convictions. MCL 257.625; MSA 9.2325, as amended by 1991 PA 98, provides in pertinent part:
(11) If the prosecuting attorney intends to seek an enhanced sentence under subsection (6)(b) or (d) or (10)(b) or (c) based upon the defendant having 1 or more prior convictions, the prosecuting attorney shall include on the complaint and information filed in district court, circuit court, recorder’s court, municipal court, or probate court a statement listing the defendant’s prior convictions.
(12) A prior conviction shall be established at sentencing by 1 or more of the following:
(a) An abstract of conviction.
(b) A copy of the defendant’s driving record.
(c) An admission by the defendant.
The above-quoted amendments clearly provide that if a defendant has prior drunk driving convictions, the prosecutor may seek "an enhanced sentence.” Further, under the statute, proof of the prior convictions is adduced "at sentencing.” Such proofs "shall be established at sentencing” by an abstract of conviction, a copy of defendant’s driving record, or an admission by defendant. We conclude that under the present statute, the jury has no role in determining whether defendant has been convicted of prior drunk driving offenses.
Despite the above plain and unambiguous language, a panel of this Court in Fish, supra, relied upon preamendment case law in holding that "ouil-3” is a separate crime for which the prosecutor must prove defendant’s convictions to the trier of fact beyond a reasonable doubt. The Fish panel cited the preamendment authorities of People v Bewersdorf, 438 Mich 55, 68; 475 NW2d 231 (1991), and People v Raisanen, 114 Mich App 840, 846; 319 NW2d 639 (1982). The Fish panel, supra at 489, concluded:
Because the Legislature did not change the definition of ouil3, we conclude that it did not intend to change the requirement that prior convictions be treated as elements of the crime.
We respectfully disagree. It appears that the Fish panel was not cognizant of the substantive changes in the statute as specified by subsections 11 and 12. In this regard, we note that no reference or discussion of these changes is made in Fish.
In our view, the sentence enhancement provisions of the new anti-drunk-driving statute are analogous to the enhancement provisions of the controlled substances act, MCL 333.7413; MSA 14.15(7413). In People v Eason, 435 Mich 228, 232, 234; 458 NW2d 17 (1990), the Supreme Court construed the sentence enhancement provisions of the controlled substances act as not providing for a trial on the issue of prior convictions:
The sentence enhancement provision is a legislative authorization for judges to tailor punishment to the criminal on the basis of an objective factor, i.e., a prior conviction under the same statute.
Where the statute does not contemplate a separate trial-type proceeding but, rather, provides for sentence enhancement, due process requires a reasonable opportunity to challenge the accuracy of the information relied on in passing sentence.
Unlike the controlled substances act, our new drunk driving statute contains express notice requirements concerning prior convictions and the prosecutor’s intention to seek an enhanced sentence. However, in all other respects, we would construe the sentence enhancement provisions of the new drunk-driving statute in a manner consistent with Eason.
IV
The other issues raised by defendant are without merit. Defendant did not challenge the sufficiency of the information in the lower court and, therefore, has waived the issue absent manifest injustice. People v Covington, 132 Mich App 79, 86-87; 346 NW2d 903 (1994). We perceive no such injustice.
Finally, the seventy-seven-day rule asserted by defendant applies only if defendant is charged with a misdemeanor. MCL 257.625b(2); MSA 9.2325(2X2). In the present case, the information filed against defendant specified that the prosecutor was seeking felony penalties as an enhanced sentence. Because defendant was charged with a felony and was bound over to the circuit court, the seventy-seven-day rule for misdemeanors does not apply.
Defendant’s conviction of ouil-xjbal is affirmed. Defendant’s judgment of conviction is hereby ordered modified to ouil-ubal, first offense. Remanded for resentencing. We do not retain jurisdiction.
At trial, the present issue of statutory construction was not in dispute. Rather, the request for a jury determination of defendant’s prior convictions was based on constitutional grounds:
Mr. Kipley [defense counsel]: Judge, just briefly, as more of preserving the matter for appeal. I know that after the verdict, no matter which way it turns, there’s always some hustle and bustle and noise, and this and that.
I am certainly cognizant of the fact that the Legislature has seen ñt to change how the court deals with subsequent drunk driving offenses, and has taken that circumstance away from the perview [sic] of the jury, and has left that with the court in terms of a matter for sentencing.
I believe — and I’ll place this on the record at this point — that that is an unconstitutional delegation of authority by the Legislature in a criminal matter, and removes from this defendant the opportunity of having a jury of his peers determine the fact circumstances of whether he has, in fact, been convicted of drunk driving offenses in the past, as prescribed by the statute. We have the jury here, and it would be my intent to have the jury determine whether, in fact, Mr. Weatherholt has been convicted of these prior offenses before they leave here today.
Now, we can deal with that now. We can rule that now if — I want the jury to come in and make that verdict determination and have them deal with it after that circumstance, fine, but I am going to ask the jury be put back in the jury room and I’ll do. this again.
Mr. Gomery [assistant prosecutor]: Your Honor, I believe the statute is perfectly clear now, as amended in 1992, last year, there’s no bifurcated trials. It is now a matter of law for the judge to consider. I think it is clear, and I would not consent to having the jury hear the matter of the priors.
The Court: It is clear that the Legislature,, when they revised the drunk driving laws, specifically at MCLÁ 257.265(12) have established a procedure, whereby at sentencing the Court is to make a determination regarding prior convictions based upon submission of either an abstract of the convictions, a copy of the defendant’s driving record, or admissions by the defendant. The Court is not aware of any constitutional right that is being infringed here, especially, in view of recent Supreme Court precedent that no longer .allows the defendant to challenge the validity of a guilty plea, if no challenge was made within the prior proceeding. Here, it would appear that this a ministerial task, but counsel has noted an objection on behalf of his client for the record, and certainly that matter can be pursued and addressed by the appellate courts. This Court does intend to follow the procedure laid out by current statute, and will have the record so note the objection of the defendant.
Mr. Kipley: I am trying to preserve the issue for appeal, Judge. [Emphasis added.]
The statement in Bewersdorf that ouil-3 is a separate crime was dicta. Additionally, the reference was to the anti-drunk-driving statute before its 1991 amendments. | [
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] |
Per Curiam.
Plaintiff appeals as of right a verdict, entered by the trial court following a bench trial, that found no cause of action for ten of his eleven counts and awarded him $139,914.83 in restitution plus prejudgment interest.
Plaintiff and defendant Markovitz were equal partners in Malan Entertainment, a corporation operating "BT’s,” a topless bar. Plaintiff, Markovitz, and James Aboud formed ABT Corporation for the purpose of purchasing and operating "CanCan’s,” another topless bar. Each party had a one-third ownership interest in ABT. Before the Liquor Control Commission (lcc) approved ABT’s request for a liquor license and before the purchase of the topless bar was consummated, Markovitz, Aboud, and David Lachman incorporated defendant corporation, Almark, Inc., with the purpose of purchasing yet another topless bar, "Basin Street,” which eventually became know as "Trumpps.” The ABT project subsequently languished, and the sellers withdrew._
According to plaintiff, Markovitz led him to believe that Lachman was only a strawman used in plaintiff’s place at the time of Almark’s incorporation and promised plaintiff a one-third ownership interest in the corporation when Trumpps opened. Plaintiff further testified” that he contributed $165,000 to the construction costs of Trumpps in accordance with his one-third ownership interest in Almark and provided many hours of labor at the construction site in furtherance of Trumpps’ interest. Markovitz allegedly represented to others that plaintiff was an owner of Trumpps. Monies from BT’s were used to pay costs incurred in the construction of Trumpps.
Nonetheless, after receiving the lcc’s approval and closing the sale on Trumpps but before construction was completed, Markovitz offered plaintiff and Aboud a mere twenty percent interest in Almark, or twenty-five percent if they assigned Markovitz their voting rights. Plaintiff and Aboud subsequently filed the instant action for breach of contract to transfer shares, promissory estoppel, fraud and misrepresentation, breach of fiduciary duties, constructive trust, quantum meruit, and restitution. Aboud dismissed his claims when he learned that the shares representing his one-third interest already had been issued to him. The trial court found that no contract had been made and dismissed all the counts except for the one for restitution, which it limited to financial contributions admitted by defendants.
Plaintiff first argues that the trial court erred in finding that no enforceable agreement existed regarding his one-third ownership interest in Al-mark. Findings of fact by the trial court are reviewed for clear error. MCR 2.613(C). Our review of the evidence indicates that the trial court’s conclusion was clearly erroneous. Plaintiff and Aboud, two of the three parties to the alleged agreement, testified that an agreement was reached. Plaintiffs contributions to the Trumpps project, Lachman’s lack of contributions, and Markovitz’ representations about plaintiffs status as a partner lent further support to this testimony. Markovitz did not testify. Essentially, there was unrefuted evidence that an agreement existed. The fact that plaintiff was not listed on the lcc application, while perhaps improper, did not nullify, abrogate, or disprove the agreement.
Furthermore, plaintiff’s partial performance of the agreement was sufficient to remove it from the statute of frauds. See McDonald v Scheifler, 323 Mich 117; 34 NW2d 573 (1948); Madison Nat'l Bank v Lipin, 57 Mich App 706, 719; 226 NW2d 834 (1975). Plaintiffs infusion of $139,914.83 into the Trumpps project, conceded by defendants, was close to one-third of the $500,000 budgeted for acquisition and start-up.
We find unpersuasive defendants’ argument that the doctrine of part performance is inapplicable to agreements for the sale or subscription of securities in light of Dumas v Auto Club Ins Ass’n, 437 Mich 521, 540-541; 473 NW2d 652 (1991). The Dumas Court declined to apply the doctrine to the plaintiff’s employment contract primarily because it was covered by the statute of fraud’s prohibition regarding oral agreements incapable of performance within one year of being made:
” ’As the prohibition relates not to the subject matter, nor to the nature of the undertaking, but to the time of the performance itself, it seems impossible for any part performance to alter the relations of the parties, by rendering the contract one which, by its terms may be performed within one year.’ ” [Id., quoting Ordon v Johnson, 346 Mich 38, 46; 77 NW2d 377 (1956), quoting Pomeroy, Specific Performance (3d ed), § 100, p 241. Emphasis in original.]
In noting the lack of cases applying the doctrine of part performance to contracts other than for the sale of land, the Dumas Court did not hold that the doctrine applies only to real estate contracts. Rather, it essentially recognized that the real estate contract provision of the statute of frauds is one based on the subject matter of the contract and not on the time of performance. Here, whether falling under the statute of frauds provision of MCL 450.1305; MSA 21.200(305) (subscription agreements) or MCL 440.8319; MSA 19.8319 (agreements for the sale of securities), the agreement in this case is required to be in writing because of its subject matter, not because of its time frame.
In light of our holding that defendants breached an enforceable ownership agreement with plaintiff, we must also address the proper remedy. Plaintiff urges this Court to order specific enforcement of the agreement under principles of promissory estoppel. However, such a remedy requires a showing that enforcement of the promise is necessary to avoid injustice. Parkhurst Homes, Inc v McLaughlin, 187 Mich App 357, 360-361; 466 NW2d 404 (1991). In this case, there is no reason why money damages for plaintiff’s breach of contract claim would not be sufficient to avoid injustice. Further, the strained relations among the parties also renders specific performance inadvisable. We therefore remand for calculation of benefit-of-the-bargain damages. See Davidson v General Motors Corp, 119 Mich App 730, 733; 326 NW2d 625 (1982), modified on rehearing 136 Mich App 203; 357 NW2d 59 (1984).
Our holding regarding plaintiffs breach of contract claim obviates the need for decision of his remaining claims.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Markovitz’ unwillingness to have only a minority interest in Almark may have been related to a lawsuit filed against him at that time by his partners in another venture, Tycoons.
This issue was not reached by the trial court. However, because the issue is dispositive in light of our holding regarding the existence of an oral contract, and because the parties have discussed the issue in their briefs, we will address it for the first time on appeal. | [
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Montgomery, J.
The original bill in this case was filed by Cheever, as administrator of the estate of Leon-hard Gruner, and by the bondsmen of Leonhard Gruner, given as executor of the last will and testament of Joseph J. Ellis. The bill was filed against Caroline P. Ellis, co-executor with Gruner, and Hudson P. Ellis and John A. Ellis, legatees named in the will of Joseph J. Ellis, and prayed an accounting of Gruner’s transactions as executor. The answer and cross-bill sought to surcharge Gruner’s estate with certain items lost through his neglect. On the hearing in this court the account of Gruner was so ■surcharged with items amounting in the aggregate to a large sum. The case is reported in 134 Mich., at page 645. On the settlement of the decree it was ordered that such decree be without prejudice to the right of complainants, or any of them, to institute proceedings to enforce any rights of contribution from the coexecutrix which they might have; and upon further application a provision was inserted in the final decree as follows:
“Leave is hereby granted to the complainants to file a supplemental bill in the nature of a bill of review in this cause in said circuit court for the county of Washtenaw, in chancery, to enforce any rights of contribution from Caroline P. Ellis, coexecutrix of the estate of Joseph J. Ellis, deceased, that they may have.”
Such a bill has been filed, setting up no newly-discovered testimony, but amplifying the statements in the original bill, and setting up certain facts which are claimed to establish complainants’ right to contribution which were omitted from the original bill. To this supplemental bill the defendants demurred on numerous grounds, many of which relate to the propriety of adopting this remedy, and some go to the merits of the whole case as presented by the supplemental bill, so called. It is perhaps inaccurate to refer to this bill as a bill of supplement. It is manifest that when the original case was before us the aim of counsel for the complainant was to secure to his clients the right to have the question of Mrs. Ellis’ responsibility considered. It was quite within the power of the court to permit an amendment to the bill and to remand the case for that purpose. Instead of making the order in this form, the amended bill authorized was designated a supplemental bill. All parties understood, and the order recites, the purpose of the bill which was authorized. While that order stands the propriety of the practice is not open to collateral attack.
The question remains, Does the supplemental bill present a case entitling complainants to the relief sought ? as the complainants expressly state that no claim is made that there is any newly-discovered evidence, but insist rather that Mrs. Ellis was liable upon the record as it was presented in the original case, and that the order permitting the filing of a supplemental bill was asked for and granted for the purpose of presenting that question. As the complainants have made the former pleadings, and the testimony taken on the former hearing as well, a part of this bill, it would seem that the demurrer may well be treated as raising the question whether the whole record presents a case showing prima facie that Mrs. Ellis should be surcharged with any portion of the loss accruing to the estate through the default or fraud of French in connection with the Ogemaw securities.
The original bill averred that Mrs. Ellis was coexecu trix; that the inventory of the estate was a joint inventory; that joint annual accounts were filed down to 1898. The sixth paragraph reads as follows: .
“Your orators further show unto the court that while the said defendant Caroline P. Ellis was appointed coexecutor with the said Gruner of the estate of said Joseph J. Ellis, deceased, she entrusted practically the entire management of the affairs of said estate and trust to the said Gruner, except as hereinafter set forth, and that she expressed from time to time the utmost confidence in his integrity and ability and the utmost satisfaction with the manner in which the affairs of said trust were carried on.”
The important averments by way of supplement or amendment made in the supplemental bill are' briefly stated: That Myron H. French was, after due deliberation, appointed by Gruner and Mrs. Ellis as their joint agent in the management of the affairs of the estate in Ogemaw county, and that he acted as joint- agent and never as Gruner’s sole agent; that French frequently visited Ann Arbor, and at such times gave her all the information which Gruner possessed in regard to the affairs of the estate in Ogemaw county; that all the losses to the estate charged against Gruner in the. final decree were losses which were due to the conduct and acts of said Myron H. French; that Mrs. Ellis signed and swore to the annual accounts; that she participated in the management of the affairs of the estate, repeatedly signed discharges of mortgages and assignments of mortgages, and understood fully what was being done in the management of the affairs of the estate; that during the administration she received |900 as fees for her services as executrix. As to the averments in the sixth clause of the original bill, the supplemental bill avers that “while it was true that said Caroline P. Ellis, executrix, intrusted practically the entire management of the affairs of said estate and trust to said Gruner, * * * it is also equally true that said Gruner, as executor, never had the exclusive management of any of the affairs of said estate and trust, and that such affairs were managed jointly by said coexecutors ; that said Gruner and said Caroline P. Ellis frequently consulted together, and also advised together with legal counsel in regard to the affairs of said estatethat books of account were kept by said Gruner, and were open at all times to the inspection of said Caroline P. Ellis, executrix.
It is claimed by defendants’ counsel that the averments of the supplemental bill are wholly inconsistent with the averments of the sixth clause of the original bill and with repeated references in said bill to French as Gruner’s agent. We agree with counsel’s contention to this extent: We think the whole case as made by the original bill and by Gruner’s testimony showed that Gruner assumed to manage and control the Ogemaw securities through French. We quote from Gruner’s testimony, taken in another court and appearing in the former record:
“ Q. You may state whether or not you are executing the duties of executor at the present time ?
“A. I am.
“ Q. You may state who has exercised mainly these duties, yourself or Mrs. Ellis ?
“A. I have mainly exercised these duties, but Mrs. Ellis has been generally informed.
“ Q. But has taken no part in adjusting or taking care of the business ?
“A. Well, no direct part; no * * *
“ Q. Since you were appointed you have had the possession of all the notes and mortgages and other papers belonging to the estate, have you not ?
“A. Yes, sir.
“ Q. Including the notes and mortgages and other matters in Ogemaw county?
“A. Yes, sir.
“ Q. And during all the time since you have been executor you have kept possession of all the notes and mortgages that were made and executed on loans in Ogemaw county, have you not ?
“A. Yes, sir.
“ Q. You have also controlled what should be done with them, have you not ?
“A. Yes, sir.
“ Q. When anything was necessary to be done you have directed Mr. French or some one else to do it ?
“A. I have. * * *
“ Q. You kept control of these matters under your discretion ?
“A. Yes, sir; and I could accept or reject any of the mortgages that were sent in.
“ Q. You had the absolute control of the property in Ogemaw county ?
“A. Yes, sir.
“ Q. And the absolute control of what should be done with it ?
“A. Yes, sir.
“ Q. And kept them from the beginning of your administration up to the present ?
“A. Yes, sir.”
It is true that French testified that he talked to Mrs. Ellis about the Ogemaw investments in a general way, but there is nothing to indicate that any of the individual transactions were taken up or considered by her. In fact, the averments on the original record, and the testimony taken therein and made a part of the supplemental bill, negative this. It is not inconsistent with the averments of the original bill to assert that Mrs. Ellis joined in the first instance in constituting French agent. If the fault in management had consisted of making this appointment, it would be clear that Mrs. Ellis should share the loss. The decision of the original case shows that no fault was imputed to the executors in retaining French as agent. 134 Mich. 650.
The question here presented would therefore appear to be this: Where one of two coexecutors intrusts to the other practically the entire management of the affairs of an estate, or of. a particular part of it, and that other assumes to take practically complete charge of that part of the estate, and a loss occurs through his negligent performance of such assumed duty, shall the coexecutor be surcharged with any portion of the loss, in a case where the question arises between the two executors, and where no rights of creditors or legatees are involved ? And, secondly, if in general a negative answer should be returned to question 1, is the result different where the executor not in default is a legatee ? As the record shows the exact relations of the parties to the trust fund, the fact that the inventory was a joint one does not, as between the two executors, estop either. Hall v. Carter, 8 Ga. 407; Hilton v. Briggs, 54 Mich. 265. Nor does the filing of joint accounts conclude the executors. White v. Bullock, 20 Barb. (N. Y.) 91; Gaultney v. Nolan, 33 Miss. 569; Clarke v. Jenkins, 3 Rich. Eq. (S. C.) 318. The general rule of liability of executors for a devastavit is stated with clearness in Peter v. Beverly, 10 Pet. (U. S.) 532, as follows:
“ It is a well-settled rule that one executor is not responsible for the devastavit of his coexecutor any, farther than he is shown to have been knowing and assenting at the time to such devastavit or misapplication of the assets; and merely permitting his coexecutor to possess the assets, without going farther, and concurring in the application of them, does not render him answerable for the receipts of his coexecutor. Each executor is liable only for his own acts, and what he receives and applies, unless he joins in the direction and misapplication of the assets.”
See, also, Sutherland v. Brush, 7 Johns. Ch. (N. Y.) 17; Wilson’s Appeal, 115 Pa. 95; Myer v. Myer, 187 Pa. 247; Nanz v. Oakley, 120 N. Y. 84 (9 L. R. A. 223). On the other hand, an executor who assents to a certain course by his coexecutor is, at least in a suit by the legatees or creditors, chargeable equally with the active trustee. Irvine’s Estate, 203 Pa. 602; In re Niles, 113 N. Y. 547; In re Peck’s Estate, 31 App. Div. 407, 161 N. Y. 655. These cases are cited by complainant to sustain their contention that when one of two executors, who' is interested in the funds of the estate, turns them over to the other executor, and he is intrusted with the principal management of their investment, and a portion of the funds are lost, in an accounting between the coexecutors each will be surcharged with one-half the loss.
A careful examination of the cases cited satisfies us that they do not make for any such hard and fast rule. In re Niles, supra: The items with which Mrs. Miller sought to surcharge the.amount of her coexecutor were loans made in the name of Mrs. Miller. The rule for the retrial of the case was stated by Gray,-J., as follows:
“Where concurrence in the -action of Niles can be proved, or with adequate knowledge of it, she is proven to have assented expressly, or by her passiveness should be deemed to have acquiesced, in it as coadministratrix. She is chargeable with its consequences, and as beneficiary she is estopped from objecting to it.”
This falls far short of holding that the exclusive control of one of two executors may not, as between himself and an interested coexecutor, be such as to fix upon him the sole responsibility for a devastavit. Irvine’s Estate, supra: There were three executors.'. Ih determining that all were chargeable the court said: '
“It must be remembered that the executors were acting jointly. They were in constant contact, and the acts of each might easily have been known to the others by the exercise of reasonable diligence. Moneys were sometimes paid to one and sometimes to another, but it was the intention in all cases * * * that all collections were to be reported to Mr. Parmalee as the accountant, and the proceeds turned over to him as custodian of the funds of th.© ©stat© h» h*
'“As was said * * * in Weldy’s Appeal, 102 Pa. 461:
“ ‘However it may be as to the responsibility of one executor who has passed the money of the estate over to his coexecutor, there is not noV and never has been any difference of opinion as fo their joint responsibility for a loss resulting from their joipt negligence.’” *
In Re Peck’s Estate, 31 App. Div. 407, the appealing executor is stated to have “ admitted with commendable frankness that he should be charged personally with such ■of those investments as had been made upon his own re sponsibility and without the acquiescence of his coexecutor.” The rule, stated in Be Niles was reiterated.
In the present case it sufficiently appears that Gruner took upon himself the duty of caring for the Ogemaw securities. All the correspondence was with him. No fault is imputed to him in the fact of having selected French as agent, but the negligence for which his account was surcharged was after negligence in failing to give due and proper attention to the business which he assumed to control and did control without molestation from his co-executor. The negligence must be held to have been the sole negligence of Gruner. We cannot impute a fault to Mrs. Ellis in thus reposing confidence in Mr. Gruner. In re Daly’s Estate, Tuck. (N. Y.) 95; Cocks v. Haviland, 124 N. Y. 431; In re Hunt, 78 N. Y. Supp. 105. We are not able to see how the general rule is qualified by the circumstance that Mrs. Ellis was also a legatee. That circumstance would not relieve her coexeeutor from, the consequences of a devastavit. Nor would she be estopped by any other or different acts than would be effective to estop her in her capacity as executrix.
The decree is reversed, the demurrer is sustained, and, as the whole case is apparently stated, the proper decree would seem to be one dismissing the supplemental bill. The defendants will recover costs of both courts.
Blair, Ostrander, Hooker, and Moore, JJ., concurred. | [
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] |
Montgomery, J.
, The relators were defendants in an action of ejectment instituted in the Wayne circuit court. The plaintiff was Julia B. Warren. On the 5th day of February, 1905, the default of defendants in the action (relators) was entered. On the 25th of February, 1905, this default was, on motion of defendants, set aside on condition that a plea be entered forthwith, and the cause stand for trial at plaintiff’s election. The case was thereupon assigned to Judge Rohnert’s division for trial and. regularly reached on said 25th day of February. A jury was impaneled, and testimony taken on behalf of the plaintiff. A verdict was rendered for the plaintiff. No one appeared before Judge Rohnert on defendants’ behalf. Four days later judgment was entered on the verdict. The form of journal entry of the proceedings of the 25th of Feb ruary was that employed in ordinary trials and shows that both parties were in court by their respective attorneys. On March 1, 1905, defendants entered a motion reading as follows:
“Now come said defendants pursuant’ to the statute, and having paid the clerk of said court all the costs and damages recovered by said plaintiff by the judgment rendered in said cause on the 25th day of February, A. D. 1905, make application for an order vacating said judgment and granting a new trial of said cause.”
The motion was promptly granted. Another trial was had resulting in verdict and judgment for the plaintiff. Thereupon the defendants (relators) moved the court to correct the journal entry of February 25, 1905, so as to make the same show that defendants did not appear on the trial. This motion was denied, and the- relators ask for mandamus directing the correction of the journal entry.
As the first judgment is no longer in force it is obvious that it would be an idle proceeding to change its form unless the defendants’ rights would appear to be greater if the fact of their nonappearance was shown. This was evidently the view of the circuit judge, and he was also of the opinion that the recital in the journal entry did no harm to defendants. It is not claimed by defendants that the judgment was not properly taken. That is to say, there is no showing that plaintiff proceeded irregularly ; but the contention is that if the record were made .to show that defendants did not appear the judgment would in legal effect be a judgment by default. It is further insisted that as a result of this the defendants would be entitled to treat the judgment entered on the trial of the case after the vacation of the judgment of March 1st as the first judgment in the case and subject to vacation on motion on terms under section 10981, 3 Comp. Laws. At least we gather that this is the ultimate end aimed at, although in relators’ brief their position is stated as follows:
“The verdict rendered in said cause on February 25, 1905, and the judgment rendered thereon having been taken by default, relators are entitled to have the record therein corrected to correspond with the facts so as to enable them to make, application to have said judgment set aside under the section of the statute providing for the vacating of default judgments.” [3 Comp. Laws, § 10982.]
This section provides that a judgment in ejectment rendered by default shall be conclusive after three years; but that within five years after the rendering of such judgment on application of defendant, his heirs, executors, administrators or assigns the court may vacate such judgment and grant a new trial if such court is satisfied that justice will be thereby promoted and the rights of the parties more satisfactorily ascertained and established.
It is manifest that defendants did not, by their motion of March 1, 1905, proceed under this section, as no showing was made or attempted that justice' would be promoted by a new trial of the cause. On the contrary, with full knowledge of the facts, defendants saw fit to apply for a new trial, assuming that they were entitled to it as a matter of right which they only were if section 10981 controlled. Having elected to so treat this judgment, it would be an extraordinary proceeding to vacate the order vacating the judgment to enable defendants to attribute to the judgment a different character, and move to set it aside on a new and different showing, and this after the order vacating the judgment had been acted upon, and a new trial had. It is probably not deemed essential by defendants’ counsel tha,t a new order of vacation should be made. It'is doubtless conceived that if the judgment of February 25th is made to take the form of a judgment by default it would result that the motion for a new trial would be treated as made under section 10982, and not tinder section 10981. We do not think this would follow. The defendants have, by their action, in making their motion and taking a new trial thereunder, elected as definitely as it were possible to do to treat this judgment as a judg ment on trial. We are of the opinion that in so treating this judgment, they made no mistake. An issue of fact was joined between the parties, the case was regularly set •and called for trial. We do not understand that a judgment by default properly speaking is entered in such circumstances. It is incumbent upon the plaintiff, in such a case to make proof of his title. Such was the practice pursued in this case. Judgment was not pronounced upon defendants’ default, but upon the case made by •plaintiff’s proofs. The term “default” has been often loosely used. In its strict sense, however, a judgment, by default is rendered when the previous default of defendant has obviated the necessity of proof. A construction *of section 10982 which would admit of a defendant absenting himself from the trial and by so doing extend his time for moving for a new trial two years beyond the limit' fixed by section 10981, on the plea that a judgment in such case is a judgment by default, should not be adopted unless demanded by the language employed. We do not think it is required. In Anderson’s Law Dictionary, tit. “ Default,” it is said:
“When a defendant omits to plead within the time allowed for that purpose or fails to appear at the trial he ‘ makes default ’ and the judgment entered in the former case is a judgment by default.”
The same statement is found in Burrill.
It is true as contended by relators’ counsel that a default may occur after appearance. The default may consist in failing to plead. But judgment by default cannot be taken after issue joined.
In Strine v. Kaufman, 12 Neb. 423, a statute which gave the right to a defendant to have a judgment rendered against him in his absence set aside on certain terms was construed. It was held first that absence meant the same thing as default, and, second, that a defendant who had appeared and answered was not in default within the meaning of the statute. It will be seen that the case goes much further than we do in holding that judgment by default means a judgment on default for want of appearance or plea.
The supreme court of Kansas, in Covart v. Haskins, 39 Kan. 574, decline to accept the reasoning by which the Nebraska court reaches the conclusion that absence means the same thing as a failure to appear at any time, but also holds that default signifies that there has not been an appearance (answer) at any stage. See, also, Page v. Sutton, 29 Ark. 304; Carlon’s Adm’r v. Ruffner, 12 W. Va., at page 309. Cases which rest upon the peculiar phraseology of statutes differing essentially from ours cannot control. The relators have lost no substantial right by the action of the circuit judge.
The writ is denied.
Carpenter, C. J., and Ostrander, Hooker, and Moore, JJ., concurred. | [
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] |
Ostrander, J.
The declaration charges that on February 15, 1902, defendant, in answer to a question asked him by plaintiff’s husband, said: “Yes, she has it. I surely did not think it was possible she could do it. What I have seen, that I can swear to; and I also do swear to it, and I take nothing back.” The question was: “Are you positive in your mind that my wife has stolen the money ?” This occurred at the home of defendant, where the husband had called for the purpose of talking about the matter. No one else was present. It is also averred that on April 19, 1902, plaintiff’s husband asked defendant the following question: “ Do you yet say that my wife has stolen the money?” and was answered “Yes.” As to this alleged utterance, it was testified by plaintiff’s husband that he asked defendant to stop in front of his (witness’) house and he would ask his wife to come out. His wife did come out, and in her presence the conversation took place. No one but plaintiff, her husband, and defendant was present. The jury returned a verdict for $500, upon which judgment passed for plaintiff. The parties are neighbors, living some 40 or 50 rods from each other, are Germans, and speak the German language. The'questions and answers set out were in the German tongue. The plea was the general issue. Defendant’s motion for a new trial was denied.
Counsel for appellant discuss claimed errors under six heads, which may be stated under four, as follows:
(1) Plaintiff did not make out her case, and a verdict upon her case as made should have been directed for defendant. This includes as a separate proposition the claim that no recovery under the second count of the declaration was warranted.
(2) The court erred in saying to the jury in his charge that because defendant had filed no notice of justification — truth of the matter alleged to have been spoken — it must be conclusively presumed that defendant had nothing do with the loss of plaintiff’s money.
(3) There was no evidence of malice.
(4) The verdict was against the weight of the evidence.
The record discloses that difficulty was experienced in putting in some of the most important testimony, growing out of the fact that some witnesses could not express themselves in English and requiring that an interpreter be used. He (the interpreter) said, in response to a question •asked by the court, that plaintiff’s husband had a “dialect,” from which it is understood that he did not speak pure German, nor the ordinary German of conversation. A careful reading of so much of the testimony as is incorporated in the bill of exceptions leaves it doubtful what was said by defendant upon either of the occasions mentioned in the declaration. The jury has found, under instructions, that the words set out in the declaration, or the substance of them, were uttered, and that they amounted -to a charge of larceny.
1. Assuming the facts in this regard to be as found, the contention of appellant that the maxim, “ Vólenti non fit injuria,” should be applied to both occasions and both alleged publications, is considered. There is evidence tending to prove that a report or charge, for which defendant is responsible, came to the knowledge of plaintiff and her husband, in consequence of which, after some delay, the husband, to the knowledge of plaintiff, first called upon defendant. It-does not appear that she directed or encouraged the interview. According to her testimony, she rather discouraged it. The facts are not like those in the case of Shinglemeyer v. Wright, 124 Mich. 230 (50 L. R. A. 129), and we are unable to say that there was not, at the first interview, a publication of whatever charge defendant then made. And so of the second interview. The jury might have inferred that plaintiff knew the purpose for which her husband called her out of her house and into the presence of defendant and that she was, in effect, through her husband, asking defendant if he still made the charge against her. On the other hand, it is inferable, from the testimony, that she had no part in procuring or being present at the interview. The question was submitted to the jury ás-one of fact, in connec tion with the instruction that if they found the interviews to have taken place by direction of or by an understanding with plaintiff, and defendant made honest answers, then the communications were absolutely privileged. It was not made a distinct and single issue of fact, nor was the court requested to take the judgment of the jury thereon. I am not able to dispose of the case upon the reasons stated under the first head.
3. In the charge, the jury were told that, because no plea of justification had been filed and no claim made by-defendant that plaintiff did steal his money, it resulted, and was a conclusive presumption, that plaintiff had nothing to do with the loss of the money. In giving reasons for refusing a new trial, the learned judge says there was error in this portion of the charge, but that it was not prejudicial to defendant because, upon examination of all the evidence given upon the trial, he finds none tending to prove that plaintiff stole the money; that “if the court had recognized the right of the defendant to show, under his plea of the general issue, that plaintiff did actually steal his money, but had instructed the jury that it must find under the evidence that she did not do so, that she had proved as a fact that she had nothing to do with the larceny of the money, it would not have been error." The bill of exceptions is not certified as containing all of the evidence given upon the trial, so that an examination, to find whether the statement of the trial judge is supported, could not result in a verification of his statement. Counsel for appellant do not dispute the statement. I assume that he correctly stated the fact, and upon this assumption 'there was no error prejudicial to defendant committed.
3. It is said there was no evidence of malice. The trial judge was of‘opinion, and so charged the jury, that a qualified privilege attended the utterances complained about, and that if the statements were made in good faith, without malice, there could be no recovery. In this, the court was right. The circumstances were such as to preclude any presumption of malice, and defendant would be responsible only in case- both falsehood and malice were made affirmatively to appear. Cooley on Torts, p. 210; Howard v. Dickie, 120 Mich. 238. The charge states, generally, the rules of law upon this subject in a manner favorable to defendant. But the court also said to the jury:
“ In determining whether the defendant acted with malice in making these answers * * * you have a right to take into consideration other utterances of the defendant in regard to the subject made at other times and places. * * * You have a right to take into consideration the conduct of the defendant regarding this whole matter as you find it from the testimony. * * *
“If defendant communicated to plaintiff’s husband a criminal charge against the plaintiff, * * * and in so doing acted wantonly and recklessly, you may consider such reckless and wanton conduct as bearing upon the question of malice.”
Error is assigned upon this portion of the charge. This court has repeatedly affirmed the rule that it is the occasion which determines the question of privilege (Bacon v. Railroad Co., 66 Mich. 166; Garn v. Lockard, 108 Mich. 196); and the language is only proper to be considered in connection with the question of malice. In the case at bar, the circumstances of the publications negative malice. They were not publicly made, nor made at all, except in answer to questions asked by one who had the right to ask them and' to be answered. The occasion was not abused. The language used does not indicate hatred or ill will. If, however, they were known by defendant to' be untrue, and this is a question of fact, the jury might from this fact alone find malice. Howard v. Dickie, 120 Mich. 238; Harrison v. Howe, 109 Mich. 476. The jury were properly charged that the burden was upon plaintiff to prove defendant’s knowledge of the falsity of the charge made.
All of this, however, does not reach the point of determining whether evidence of other utterances of similar character, not privileged, was admissible for the purpose of proving malice. The general rule is not questioned. This, however, is not a case for its application without restrictions. Plaintiff had the burden of proving an abuse of privilege. Such abuse is not to be found in the words spoken, the manner of speech, or the presence in which they were spoken. Defendant is protected, unless the charge was false and he knew it to be false. Evidence that he repeated the charge does not tend to prove the fact that he knew the charge to be false, any more than it does to prove the fact that the charge was false; that is to say, not at all. The jury should have been required to find the proof that the defendant, upon the occasions selected and declared upon by plaintiff, knowingly published a false charge, in other evidence than that of mere repetitions of the charge.
The case does not demand further consideration. For the reason given, the charge was erroneous.
The judgment is reversed, and a new trial granted.
Me Alva y, Grant, Blair, and Montgomery, JJ., concurred. | [
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Carpenter, C. J.
Plaintiff brought this action of replevin to recover possession of 60 cords of wood held by the defendant as a constable by virtue of an execution issued out of a justice’s court on a judgment rendered in an attachment suit in favor of one George M. Brooks and against Frank Gilbert. The wood in controversy was a part of a larger quantity cut by Gilbert on the land of plaintiff. Early in December, 1904, Gilbert sold this wood to plaintiff at the agreed consideration of $1 per cord. This consideration was to be paid to creditors of Gilbert. One of these creditors was Brooks, the plaintiff in the attachment suit above mentioned. The amount to be paid him was only a part of the indebtedness due. Part of these claims had been paid before the commencement of the attachment suit.
It was the claim of defendant that the transfer to plaintiff was made in trust for the use of Gilbert, and that the same was therefore void by virtue of section 9514, 3 Comp. Laws. This claim is entirely unfounded. The •transaction was a sale, whereby plaintiff acquired the •complete title. There was no trust, and the section of the statute referred to does not apply.
It was also claimed that the sale was made with the intent to hinder, delay, or defraud creditors, and was therefore made void by section 9533, 3 Comp. Laws. This issue was submitted to a jury who rendered a verdict in favor of plaintiff. Defendant asks us to reverse the judgment entered on said verdict upon various’ grounds. It is unnecessary to state these grounds. It is sufficient to say that they are all answered by showing, as' we will endeavor to do, that there was no evidence of fraud and the trial court might very properly have directed a verdict in plaintiff’s favor. There is no evidence in this case tending to prove that the price that plaintiff agreed to pay for this wood was not afair price. There is no evidence in this case tending to prove that all of the debts of Gilbert which plaintiff promised to pay were not bona fide debts, and it is to be borne in mind that the entire amount for which this wood was sold was to be paid to such creditors. The transaction instead of being one calculated to hinder, delay, or defraud creditors, was one which had for its object the payment of said creditors. It is true that the arrangement did not provide for the payment of all creditors (it omitted •a portion of the indebtedness due Brooks), but this did not make the transaction fraudulent, for a debtor has aright to pay one creditor in preference to another. See Sheldon v. Mann, 85 Mich. 265; Warner v. Littlefield, 89 Mich. 329; National Bank of Oshkosh v. First Nat. Bank of Ironwood, 100 Mich. 485; McMorran v. Moore, 113 Mich. 101.
As evidence of fraud, defendant sought to prove that Gilbert perpetrated a fraud in cohtracting the indebtedness due Brooks, qnd complaint is made because the trial court struck out this evidence. It is to be doubted whether the evidence stricken out even tended to prove that said indebtedness was fraudulently contracted. If
so, it had no tendency whatever to prove that there was fraud in the sale from Gilbert to plaintiff. This case is not like that of Heath v. Koon, 130 Mich. 54. There a creditor who attacked as fraudulent a mortgage given by his debtor to his (the debtor’s) wife was permitted to show that his (the creditor’s) indebtedness was fraudulently contracted. In that case there was an intimate relation, between the act of the creditor in contracting said indebtedness and in giving said mortgage. There was evidence warranting the inference that those two acts were parts, of the same scheme of fraud. In the case at bar the act-of Gilbert in contracting the indebtedness to Brooks and. his act in making the sale to plaintiff had no relation whatever. In such cases the rule is well settled that, upon a charge of fraud, evidence of the commission of another and distinct fraud is inadmissible.
“A charge of fraud in a particular transaction cannot be proved by evidence of other and independent frauds * * * unless it appears that there is such a connection between the transactions as to authorize the inference that the frauds are both parts of a general scheme or purpose to defraud.” 14 Am. & Eng. Enc. Law (2d Ed.), p. 196.
“To render such evidence (evidence of other frauds) admissible * * * it must appear that they were so-connected in point of time and otherwise with the one in issue as to make it apparent that all were carried out in pursuance of a common fraudulent purpose.” 20 Cyc, pp. 769, 770.
See, also, Jordan v. Osgood, 109 Mass. 457; Edwards: v. Warner, 35 Conn. 517.
If there was any other evidence in the case tending to prove fraud it was this: After Brooks attached the property involved in this suit, Gilbert told plaintiff not to pay the indebtedness due Brooks, but to apply the same on an indebtedness due himself (plaintiff). While we might not approve this conduct of Gilbert, it obviously has no-tendency to prove that the original arrangement whereby plaintiff bought the wood was intended to defraud creditors. We conclude, as heretofore stated, that there was. no evidence which had any tendency to prove that the sale to plaintiff was fraudulent, and that a verdict should have been directed in his favor.
Judgment affirmed.
McAlvay, Blair, Hooker, and Moore,- JJ., concurred. | [
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] |
MoAlvay, J.
Defendant Judkins, having for several years operated under a land contract of purchase a certain flouring mill, on January 29, 1901, bought the property and received a deed therefor. It was situated in the village of Trenton, Wayne county. To make his final payment "he borrowed from complainant bank $2,000, and to secure such loan, and further loans which might thereafter be made by complainant to him to an amount not exceeding $2,500, Judkins and wife, on January 31, 1901, gave a warranty deed of said premises, including the flour mill building, machinery, engine, etc., to complainant, taking back an agreement in the nature of a land contract that the said premises would be reconveyed to him upon the repayment of all sums loaned as aforesaid according to the terms of the promissory notes representing the same, together with interest, insurance, and taxes, and other conditions usual in land contracts.- The deeds were both recorded March 1, 1901. The contract was not recorded. Judkins, who continued in possession of the property, soon took defendant Park into partnership with him under the firm name of Judkins & Park. On April 19, 1901, they borrowed an additional $1,000, giving Judkins’ note indorsed by Judkins & Park. On May 20, 1901, they borrowed $1,000, giving a similar note, and on August 5, 1902, they borrowed $400, giving Judkins’ note indorsed by Park, making the' total amount borrowed from the complainant bank $4,400. This was a custom flouring mill about 40 years old. The partnership business was not successful, and Judkins withdrew, turning the contract over to Park with a verbal agreement that when Park secured his release from all obligations to the bank he would assign it to him. This occurred in 1903, and before August of that year. The bank was not a party to the transaction, but it had knowledge of the withdrawal of Judkins. The mill did not run after January 1, 1903. Park interested certain parties in this property, who, to•"gether with him, organized defendant Trenton Milling -Company, a Michigan corporation, which went into pos session as successors of Park. On September 17, 1903, complainant bank filed its bill in the Wayne circuit court, in chancery, to foreclose the said land contract against Judkins and wife, Park, and the Trenton Milling Company, as defendants, which foreclosure suit was pending and undetermined at the time of the commencement of the suit at bar. After the Trenton Milling Company was organized and the foreclosure suit begun, some negotiations were had between the officers of the milling company and complainant bank relative to an extension of time on the indebtedness to the bank, a discontinuance of the foreclosure suit, in case insurance, interest, and back taxes were paid, and the milling company to make improvements upon the property. There is a sharp dispute in the testimony upon this matter; the milling company insisting that such an agreement was entered into between it and the bank, and that, relying upon it, interest, taxes, and insurance were paid by it to the amount of $349.67, and $1,500 in cash was expended in renovating and improving the flouring mill. Complainant denies that such agreement was made. The defendant Trenton Milling Company, October 15, 1903, entered into an agreement in writing with defendant Sprout, Waldron & Co., for the purchase of certain flouring mill machinery and material, to the amount of $1,064, to be accepted and paid for on certain terms when the same was operated so as to fulfill the milling guaranty provided in the agreement. On or about October 1, 1903, defendant milling company ordered from defendant Harmon-Whitmore Company certain other milling machinery and material for said mill, to the amount of $403.60, which was shipped to and delivered at the mill in October and November following, on 30 days’ trial and 60 days’ time. Nothing was paid on either •of these lots of machinery and material furnished by these ■defendants.
The milling company, ascertaining that the foreclosure suit had not been discontinued, and being unable to market its stock on that account, informed both of these de fendants of that fact and a representative of each came to Trenton. At this time none of this machinery had been operated or tested. Some of it was in crates and bundles in the mill. Some of the machines had been put into position, but not permanently attached to the premises. Some of it was standing in the mill not in position. None of it was connected up for use. The milling company made no claim to this property, and gave to each of these defendants an agreement in writing relative to removing the same.
Complainant bank, upon learning that they were about to take the machinery away, filed its bill of complaint in this case, setting up the facts herein related as to its relation to the property and its security thereon, the pendency of the foreclosure proceeding; alleging that, since the execution of the deed to it, Judkins, Park, and the milling company had been in possession operating the mill, that they had taken steps to put in new machinery, and to that end had removed a considerable quantity of old machinery, which, however, was fitted for the purpose of manufacturing flour, and put in new machinery for the same purpose, that the kind of machinery or the nature of the contracts of purchase from the companies furnishing the same was not known, but that said companies claimed title thereto, that the old machinery was taken out to furnish space for the installation of the new, that if the new machinery is removed the character of the property as a grist mill will be destroyed, that the same has been so attached to the realty that it has become a part thereof, and that the vendors claim such machinery and threaten to remove the same, in violation of the rights and interests of complainant, and to its great damage, and" the damage of the property; praying for an injunction to prevent the removal of the machinery, and that such machinery may be decreed to be a part of the premises and held to be security for complainant for the performance of the terms and conditions of the land contract. A preliminary injunction was granted as prayed for.
Issues were joined upon the answer of defendant Harmon-Whitmore. Company, and the answer and cross-bill of defendant Sprout, Waldron & Co., upon which an injunction had issued against defendant milling company and its officers. The cause was heard before the court, and a decree was granted dissolving the injunction in favor of complainant, and dismissing the bill of complaint, and making permanent the injunction in favor of defendant Sprout, Waldron & Co. declaring the machinery delivered by it to the inilling company to be personal property belonging to said defendant, and decreeing the same as to the property of Harmon-Whitmore Company, and the right and privilege of both defendants to enter upon the premises and remove their property.
Upon this appeal we are asked to reverse this decree, upon the ground that the machinery and materials in question became and were part of the realty, subject to the conditions of complainant’s contract. The relations of the complainant and all defendants, except these who claim this property in dispute as recognized by complainant in its foreclosure proceedings, are those of mortgagor and those holding under him in possession, and mortgagee. While it is true that, as far as the record shows, there had been no written assignment by Judkins to the other defendants holding under him of his interest in the premises under the land contract, yet the complainant had knowledge of their relations, and the possession of the property by defendants Park and the milling company, and had recognized whatever rights they had by receiving from them interest, insurance, and taxes claimed under the contract. There is abundant proof in the record to show that complainant did agree with defendant milling company, as claimed, to discontinue the foreclosure proceeding and extend the time of payment for one year, if interest, insurance, and taxes were paid, and improvements were put upon the property. That this was done is not disputed. Complainant bases its contention upon the claim that this was a going mill, that by taking out certain old machinery, if the new machinery to be substituted for it is not to remain, it is made a dead property, and its security is greatly depleted. If the proposition were supported by the facts, there might be force in the contention. The proofs show that this mill had been run at least 40 years; that the machinery was worn and out of date; that the changes made upon the old machinery and the additions by way of repairs and new shafting added to instead of decreased the value of this property. • Complainant knew that changes were being made and money expended in improving this property and consented thereto. The machinery in dispute was to be put in the mill for the purpose of increasing its capacity. It was negotiated for upon representations on the part of the milling company relying upon its agreement with complainant. The good faith of the parties is apparent. In the case of Sprout, Waldron & Co. there was a written guaranty of performance, the property not to be accepted and paid for until g,fter the test made; and in the case of Harmon-Whitmore Company a verbal guaranty upon 30 days’ trial. Neither of the lots of machinery was accepted under the agreements by the milling company, and permission was given to remove the same. When this permission was given much of this property was standing in the mill in crates and bundles as received from the shippers. Some had been uncrated and was standing on the floors of the mill. Some had been placed in position, but was not attached permanently to the premises. This was machinery and material manufactured for the trade, ready to be installed with but little trouble and expense. As between the sellers and purchaser of this property, it clearly appears that no title had passed; that the property had not been so attached to the realty as to become a part of it. This situation was recognized by both vendors and vendees when permission was given to remove it. The intention of these parties is perfectly clear, and in this State it has been.held that the intention of the parties must control in determining the character of the property which is claimed to be a fixture. Wheeler v. Bedell, 40 Mich. 693.
It remains to be determined whether any rights of complainant mortgagee intervene, and are paramount to the rights of the vendors of this property. We think they do not. Defendant milling company’s relation to the premises was that of a mortgagor in possession. Complainant, as a contract vendor, was an equitable mortgagee. It did not take its security with reference to this property as part of the real estate, and no claim can be made on that ground. Harris v. Hackley, 127 Mich. 46. Considering the fact that all of the old machinery of any value to the mill is still there, repaired, and in better condition and position than before, that new shafting has been put in, and repairs have been made of about $1,500 — all done with the consent and acquiescence of complainant — it •appears to us that the property has been largely increased in value, and that complainant’s contention to the contrary is without foundation. No title to this property having passed to the milling company, and it never having become attached to and a part of the realty, complainant acquired no right or interest therein.
The decree of the circuit court is affirmed, with costs.
Grant, Blair, Montgomery, and Ostrander, JJ., concurred. | [
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] |
Grant, J.
The Toledo, Ann Arbor & Detroit Railroad Company filed a petition for the appointment of commissioners to condemn certain lands in the county of Monroe, including lands owned by relator. Relator filed an affidavit for a change of venue under Act No. 309, Pub. Acts 1905, providing that “each of said courts * * * shall change the venue of any civil action pending therein upon application of either party, made upon affidavit, showing one or more of the following causes,” etc.
The affidavit is sufficient, provided that said act applies to condemnation proceedings. Condemnation proceedings may be commenced in any court of record in the county where the lands lie. It may be heard before the judge at chambers. The commissioners, when appointed, are not under the power or control of the court or judge. The judge appoints the time of 'their first meeting. The commissioners then adjourn from time to time, as they see fit, visit the premises, take proofs, and then report their proceedings to the court or the judge. They do not proceed according to. the course of the common law.
It was said in Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456:
“The proceedings to condemn lands, although made under the railroad laws subject to judicial review and supervision for certain purposes, are not in themselves and never have been regarded as judicial. . * * * The inquiry in this State, as elsewhere, is an appraisal or estimate of values, and not a contest on litigious rights, and includes, what is not elsewhere included, an inquiry into the necessity of the proposed taking for public purposes, which was never made by the courts, but always heretofore by the legislature or some unjudicial body of its creation. * * * But the nature of the proceeding remains as before, a special proceeding by a temporary tribunal selected for the occasion, and not a judicial proceeding in the ordinary sense.”
See, also, Port Huron, etc., R. Co. v. Voorheis, 50 Mich. 506, and Derby v. Saginaw Circuit Judge, 60 Mich. 4.
We hold, therefore, that the above statute, providing for a change of venue, does not apply to these proceedings, and the writ of mandamus is denied.
Blaie, Montgomeev, Osteandee, and Hookee, JJ., concurred. | [
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] |
Ostrander, J.
The opinion of the circuit judge states "briefly and clearly the case presented in the court below, and is here repeated:
“ This is an original bill filed to set aside tax titles held by defendant for the years 1895, 1896, 1897, and 1899 on the S. W. ^ of the S. E. J of section 16, town 26 N. of .range 2 E.
“ Complainant is the owner of the original title. He claims in his bill that each and all of the tax titles, are void, sets up the reasons therefor, and asks that they be .set aside.
“The defendant claims that its tax titles are valid.
“ The sale for taxes of 1897 was made to the State in May, 1900. The sale to the State for taxes of 1895, 1896, and 1899 was made in May, 1902.
“ Taxes of 1897.
“ The first ground of invalidity, relied upon by the complainant as to this sale, is that the report of sale by the county treasurer was not filed and not kept filed.
“The proofs show that when the annual sales by the ■county treasurer were closed, the deputy treasurer made ■out and signed four copies of report of sale in regular form, took them all to the county clerk, and had him indorse the filing on them; filed one with th'e clerk, attached one to the tax record, and forwarded two to the auditor general. At the trial one copy of the report of sale was found attached to the tax record, and-bore the clerk’s indorsement of filing as of May 19, 1900. No report of sale could be found in the files or in the clerk’s office at the time of the trial, and there was no minute in the calendar of one ever having been filed. A minute made by the clerk in a book called the “ Chancery Record ” showed that the report of ■sale was filed with the clerk on May 19, 1900. The present clerk recalled that there was a report of sale once ■on file.
“ I think it must be found from the proofs that a report of sale, regular in form, was seasonably made and filed with the county clerk, and that it has since been mislaid, or lost. On this showing the sale cannot be held void.. Hoffman v. Pack, Woods & Co., 123 Mich. 74.
“ It is next claimed that all the sales for all the years: are void for irregularities in the decrees; that the decrees were made and entered in vacation, and not made and entered in compliance with the statute. 3 Comp. Laws, §§ 10264, 10265.
“The proofs show, as to the tax of 1897, that the day-fixed for the hearing of the tax matter was February 6, 1900; that the court was in session on the 6th and 7th of February, 1900, and on the latter day adjourned sine die. The decree was made February 16, 1900, recites a session, of court February 7, 1900, and was filed February 17, 1900.
“ As to the taxes of 1895, 1896, and 1899, it appears-that the day fixed for the hearing of the tax matter was February 4, 1902, and that court was in session on the 4th and 5th and on March 3, 1902. The clerk’s journal shows the tax case submitted on February 5th and decree ordered; that adjournment was had to March 3d to enable landowners to file objections to taxes; no objections were filed; the decree was made March 7, 1902, and recites court in session March 3d. The court’s records for 1900 were enrolled March 17, 1900, and those for 1902 were enrolled April 15,1902.
“ Does this render the decree void ?
“ The tax law (1 Comp. Laws, § 3890) provides that in these tax proceedings the court proceedings shall, when no-other provision is made, follow the ordinary chancery practice.
“3 Comp. Laws, §§ 10264, 10265, provide that, in civil cases submitted to any circuit court in term time for decision, it shall be competent for the judge to transmit to the clerk or register, in vacation, his judgment, order, or decree in said cause; and that it shall be the duty of the clerk or register to enter in the proper record such judgment, order, or decree as of the last day of the preceding term, which judgment, order, or decree shall have the same force and effect as if rendered in term time. Notice of the entry of such judgment, order, or decree shall be given to the attorneys or parties by the clerk or register, and the time for appeal shall be computed from the time- the judgment, etc., is actually entered. 3 Comp. Laws, §§ 10264-10266.
“It is the practice, under this statute, for judges to sign, in vacation, decrees in cases submitted in term time, taken under advisement, and decided in vacation; and not only that, but to sign decrees in vacation, in cases that have been submitted and decided in open court, and perhaps where there has not been time after the decision to prepare a decree during the term.
“And I think this statute ought to be construed oO authorize the signing of decrees in vacation, both in cases submitted in term and decided in vacation, and in cases decided during the term, but where no decree has been made until vacation. In other words to give the judge authority to sign decrees in vacation generally, and in' all classes of cases.
‘ ‘ If this statute is held limited to cases that are submitted during term and decided in vacation, and held not to apply to the signing of decrees in vacation generally, it will destroy a convenient practice that has grown up under it, and run counter to the construction placed upon it by members of the bar in many important cases.
“ It must not be forgotten that this is not a proceeding in the tax cases themselves, nor one where complainant claims to have lost the right of appeal, by reason of not having notice of the decree. He never appeared in the original tax proceedings, but- his default was regularly taken therein. But this is a proceeding where complainant attacks the decrees collaterally on a technicality.
“For all that appears, he still has the statutory right to redeem from these tax sales.
“ The publication of the original tax petitions, list oí lands, and notice, gave the court jurisdiction, and, jurisdiction having once been acquired, it ought to be held to continue as against a technical objection to the decree, collaterally raised, such as this.'
“ The question being at most a doubtful one, it ought, in accordance with the best practice, to be solved in favor of the regularity and validity of the proceedings. The bill will be dismissed, with costs.”
The appellant presents in this court two main propositions: (1) That the practice pursued by him is proper;
(2) that there is no authority for the entry of a decree, in tax cases, in vacation — that the general chancery practice governs, according to which notice of the entry of the decree, if made in vacation, must be given by the register in chancery to the parties, their attorneys, or solicitors. 3 Comp. Laws, §§ 10264, 10265. It is said that Flint Land Co. v. Fochtman, 140 Mich. 341, is authority for the practice pursued. That was the case of an owner of land (by virtue of tax titles, it is true) who filed a bill to quiet his title against a mortgagee, who refused to disclaim or to discharge the mortgage. On demurrer, the bill was dismissed; the claim of defendants being that upon the face of the bill, which set out the title of the complainant, the defendant’s mortgage was not a cloud upon the title asserted — did not appear to be a hostile claim or assertion of a hostile interest.
In the case at bar, the bill of complaint avers ownership of the lands by complainant, that they were delinquent for the taxes of various years, that the lien of the State was attempted to be foreclosed and decrees were entered, that the decrees so entered were irregular and void for certain reasons set forth. The prayer is that the decrees be set aside, the complainant be permitted to pay the taxes to the county treasurer or auditor general, and the deeds of defendant be held to be a cloud upon the title of complainant- and canceled. This is a very different case from that set put in the opinion cited. It is a collateral attack upon decrees of a court of chancery, which court had jurisdiction of the subject-matter and the parties. It is true the complainant acquired his title to the premises after the decrees were made. This fact does not permit complainant to so attack the decrees in question. The importance of the fact may not require attention, but it is a fact that in the deed of the premises to complainant the covenant of warranty excepts “delinquent taxes and tax titles and claims arising therefrom.”
Were the decrees void ? The fault found with the decree of 1902 is that it was made in vacation, and that no notice of the entry thereof was given to interested parties. It appears that court opened on February 4th (the first day of the term), and that the petition of the auditor general •was presented and taken under advisement. On February 5th it was ordered that said petition be granted, and that decree be made for sale of said lands. Court then adjourned until March 3d for filing of further objections to said tax petition. Court opened March 3d, the circuit judge being absent, and the journal sets out an order to the effect that court having adjourned for the filing of further objections, and none having been filed, courtis adjourned without day. The decree recites that it was, made at the session of March 3d, and it was actually filed March 7th. The decree is not void. Upon its face, and in fact and in law, it is valid. The mere fact that the clerk did not enter it as of March 3d, the last day of the ■preceding term, does not make it a void decree; nor, if it is required in such cases* does the fact that notice of the entry of the decree was not given, or ordered to be given, render it void. If relief should be given to any one bound by the decree because of any irregularities in the entry thereof, or in failing to give notice, such relief must be sought by proceedings in the cause in which the decree was made.
It follows that the decree of the court below dismissing the bill must be affirmed, with costs to appellees.
Carpenter, C. J., and McAlvay, Montgomery, and Moore, JJ., concurred. | [
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Grant, J.
(after stating the facts). No such practice is known to the courts of this State. When defendants in a chancery suit have answered, and in their answer have inserted the usual demurrer clause, and replications have been filed, the case must go to a hearing upon the issues joined and a final decree rendered. It is neither proper nor good practice to permit parties to then take advantage of a demurrer and bring the case into this court by piecemeal. The result would be two trials, and possibly two appeals to this court to determine the issues, and great delay. We cannot sanction such a practice, even at the request of the parties litigant.
Without determining the questions raised, the order of the court will be set aside, and the case remanded for hearing upon proofs, should the parties desire to introduce any. No costs will be allowed.
McAlvay, Montgomery, Hooker, and Moore, JJ., concurred. | [
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] |
Grant, J.
(after stating the facts). The order striking the bill from the files was a final determination of the right of the complainant to pursue her remedy against the auditor general, and was, therefore, a final order from which an appeal will lie. Webster v. Hitchcock, 11 Mich. 56.
The decision of the court in sustaining the demurrer is not before us. Complainant, not having appealed from that decision, has acquiesced therein. Her amended bill,
except in one point, viz., in eliminating the State treasurer therefrom, does not remedy the other defects for which the demurrer was sustained. We may say that one of the main purposes of the bill is to set aside the decrees of the court in chancery under which the complainant’s lands were sold. This cannot be done by collateral attack. Cook v. Auditor General, 124 Mich. 430; Monroe v. Winegar, 128 Mich. 309.
The bill is not one for leave to file a bill of review or a petition to open the decree for the correction of errors. Neither does the complainant bring herself within section 70 of the general tax law (1 Comp. Laws, § 3893), which provides that no sale shall be set aside after confirmation, except where the taxes were paid or the property was exempt from taxation. Neither is any want of jurisdiction alleged in the court wherein the decree was made. Berkey v. Burchard, 119 Mich. 101. It follows that the amended bill of complaint was properly stricken from the files as to the auditor general.
As to the other defendants who have answered, or who have been defaulted, the suit remains in the court below for such action as the circuit court may deem proper. The auditor general was the only party making the motion to strike from the files, and is the only party affected by the granting of the motion. .
Decree affirmed.
Montgomery, Ostrander, Hooker, and Moore, JJ., concurred. | [
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] |
Carpenter, C. J.
On the 8th of September, 1902, the parties to this controversy entered' into a written contract of which the following are the material parts:
“Said party of the second part [plaintiff] agrees to furnish and deliver free on board cars, Atlanta, Ga., thirteen stories of elevator fronts (not facia or globes) to take in four elevators for the Century Building located at Atlanta, Ga., all to be made according to plans and specifications of architects Bruce and Morgan of Atlanta, Ga., and subject to the approval of the architects and owner. * * * Said second party further agrees to execute this contract with all diligence and to have all the fronts ready to put in place when the stairs are being put in — they do not furnish the stairs. In consideration of the above work being furnished and delivered at Atlanta in a condition acceptable to the architects and owner, said party of the first part [defendant] agrees to pay,” etc.
Plaintiff delivered said elevator fronts and brought this suit to recover the contract price. Defendant sought to recoup damages. The case was tried in the court below before a jury, who rendered a verdict for plaintiff for the full contract price.
Defendant asks us to reverse the judgment entered upon said verdict, upon the ground that the trial court placed a wrong construction upon the following provision of the contract, viz.:
‘ ‘ Said second party further agrees to execute this contract with all diligence and to have all the fronts ready to put in place when the stairs are being put in — they do not furnish the stairs.”
The trial court charged the jury:
“The time limit in the contract for the execution of this work was not later than when these stairs were ready to be put in, and, if they got them there in that time, they got them there in sufficient time to comply with the terms of this contract.”
Defendant’s counsel insist that this construction was erroneous; that, properly construed, the provision in question obligated plaintiff “to deliver the inclosures when the stairs were ready to be put in at all events, and to deliver them at an earlier date if by the exercise of all diligence he could do so.” We cannot agree with this contention. We think the trial court properly construed the contract. We agree with plaintiff “that the clause ‘ to have the fronts ready to put in place when the stairs were being put in ’ limited and defined the meaning of the expression ‘all diligence,’ used in connection with it.” Thus construed, the contract obligated plaintiff to execute it with the diligence necessary to have all fronts ready to put in place when the stairs are being put in. We think this construction is sustained by Grand Rapids, etc., R. Co. v. Van Deusen, 39 Mich. 441. The contract in question in that case contained the following provision, viz.:
“ Said parties of the second part [the contractors] agree to proceed with such diligence and with such force of laborers as the executive committee of said company may direct, to perform the work herein specified, and to complete the same according to the specifications as furnished by the engineer of said railroad company, and to the full satisfaction and acceptance of said engineer, and the executive committee, on or before 'the 1st day of August, 1873.”
The officers of the railroad company compelled the contractors to reduce their force of employes, and thereby prevented their performing the contract on or before the date specified. The trial court held that this conduct was not justified by the above-quoted provision. This court approved that decision, saying:
“ The time for completion seems tobe fixed, certain, and imperative, with nothing in the language, and we find nothing in the subject-matter indicating that this time could be prolonged by the company at their option, by the right of direction reserved. One of these provisions must, to avoid repugnancy, be subordinate to the other in its operation; and the order in which they are stated, the form of the language, the subject-matter and situation, and (so far as we can discover) the apparent objects of the company, all indicate that the discretion or right of direc 'tion was intended to be the subordinate or auxiliary provision, inserted for the purpose of securing beyond contingency the completion of the work within the prescribed time; the provision for which was to be primary and absolute.”
We think it follows from this reasoning that the provision in the contract in the case at bar that the plaintiff should “ execute the contract with all diligence” was subordinate to the provision that he should have “ the fronts ready to put in place when the stairs are being put in.”
Defendant contends that the construction we place on this contract is precisely the construction that would be placed on it had the expression “execute this contract with all diligence” been omitted, and that it therefore ■violates the rule which requires effect to be given to every provision in the contract. We answer this contention by saying that the rule which requires effect to be given to every provision of the contract is not inflexible. It must be made to harmonize with the rule which governs the construction of this contract, viz., that parties may by definite and particular language limit and define the meaning of more general language used by them. See Bock v. Perkins, 139 U. S. 628, and authorities there cited.
As no other error is claimed, the judgment is affirmed.
McAlvay, Grant, Blair, and Moore, JJ., concurred. | [
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] |
Carpenter, C. J.
Plaintiff brought this suit to recover for services rendered and expenditures made in clearing up the title to a piece of land owned by defendants. The trial court directed a verdict for defendants on the ground that they were under no obligation to pay for the services and expenditures sued for. Plaintiff asks us to reverse the judgment entered on said verdict. The sole question in this case is whether there was any contract between plaintiff and defendants. As all the dealings between the parties took place by correspondence, the proper construction of that correspondence will determine whether they entered into a contract. We state so much of the correspondence as is necessary to make such determination:
September 28, 1903, plaintiff wrote defendants as follows:
“ In looking over some records the other day I came across a parcel of land which ought to belong to you and' your sister. This land is in the name of your mother and has been for a great many years. * * * It was sold for taxes and bought in by one John Baxter. I find that in January, 1899, he had sold it to a Polander. * * * According to our law this would have to be taken up within five years from the date of sale, which would be January next, so would have to be attended to at once or before that time. The land is not of very great value and have no idea how much this would cost, as to getting the title straightened out. If you will quitclaim your interest over to me, I will see what can be done. * * * Upon receipt of answer from you, if agreeable, I will ascertain what the cost will be and let you know. Should the cost be too great, it would hardly be worth while, otherwise should be attended to at" once.”
The first named defendant answered this letter on the 26th of October, 1903,‘saying:
“Now, we did not know this land was within our reach until you wrote, but if there is anything in it for us we want it, of course; but, if it costs more than the land is worth, we don’t want to bother with it. Now, you have kindly offered to look it up for us. We will be glad to accept your offer, and if anything can be done it would be a good time just now while Manistee is booming. * * * We will be glad to have you to attend to this for us, and, if there is anything in it, you will get your share as well as my sister and I.”
November 28, 1903, plaintiff wrote defendants:
“ I have had an abstract made of the land. My attorney has been away, * * * and is expected home some time this or next week, when I will have him go over the abstract and get his opinion on the matter, and will then advise you.”
And again, on December l?, 1903, he wrote that his attorney advised him—
“That he could reclaim it [the land] without much doubt. * * * He told me that if it could be settled without suit, that for his services he would charge $35 in addition to the actual expenses which amount he could not state at this time, but if the thing had to go to suit, why the cost would be considerably more. * * * I assumed the authority to have him go ahead and start the thing, by having him notify the man who holds the land what we propose to do and see if he would be willing to relinquish for a small sum, which of course would be cheaper than commencing suit. * * * I will be willing to carry this thing through for you to pay all the actual costs, nothing allowed for my time, and, when the land is sold, to divide the proceeds equally between us, one-half to go to you girls and one-half to me * * * but will want a reply to this as to whether this will be agreeable or not.”
December 26th, defendant Jennie McGilvray wrote:
“Now, if you remember, I told you we-would be willing to give you one-third; that would be allowing you the same as ourselves. Now, I think this is only fair.”
On the 28th of December, before receiving defendant’s letter of December 26th, plaintiff wrote:
“ My attorney notified the man who has the land at the present time. Told him * * * that I would probably give him $50. * * * The limitation of time on this, in which to bring suit for recovery, expires January 4,1904. * * * Suit will have to be brought on next Saturday, January 2d, and I have so instructed the attorney, which will be brought in my name and thus save any extra expense of you coming here. I inclose you herewith a quitclaim deed from you and your sister to me of the land. * * * Do not cause any delay in executing this matter, as it must be back here by Saturday next.”
December 30, 1903, plaintiff wrote:
“ I note wbat you say in regard to my proposition to divide the proceeds of the land. * * * You state that you made a proposition in your former letter * * * to give me one-third of the net proceeds. In this you are mistaken. I still think my proposition a very fair one. * * * ' I trust you have used every effort to get the papers (quitclaim deed) back on time, otherwise what I have done would be of no avail whatever.”
To this letter defendants made no reply.
Plaintiff wrote again January 9, 1904, saying:
“ In case there is anything in this thing that you don’t want to do so as it can be carried through, kindly advise me at once, and I will drop the matter. * * * Court convenes on the 20th inst. I have started the case as I have already stated in my letter when I sent the deed, and I cannot go into court and carry this thing through without something to show' my authority to do so. I will be home again on Saturday next the 16th inst. and if the papers are not here at that time will have to drop it entirely.”
The statement in the foregoing letter that plaintiff had started a suit was untrue.
Defendants never answered this letter, and plaintiff wrote again on January 16, 1904:
“ I have heard nothing from you. * * * I think you are taking the wrong course in this matter. I am perfectly willing and will only be too glad to drop this matter at this point, as this thing concerns you and not me. * * * All that I ask is an answer to my letters.”
January 25, 1904, defendants wrote plaintiff:
“ An attorney advised us not to sign any Q. C. D. If you wanted to do us a kindness you could get it settled without it, so we wrote a friend of ours, and he advised us to let Hart and Swigart handle it, so we did, and to our satisfaction. It is all settled, and we are in possession of it, so I think this is all. ”
By the settlement above referred to, defendants, following the plan devised by plaintiff, purchased the tax titles on their property for $50.
No contract was entered into by the foregoing correspondence, unless defendants’ assent to that contract maybe found in their letter of October 26, 1903, their letter of December 26, 1903, or in their letter of January 25, 1904, for they wrote no other letter. It is clear that such assent cannot be found in the letter of December 26th or that of January 25th, for in each of those letters defendants rejected plaintiff’s proposition. It follows that there was no contract, unless defendants’ assent thereto may be found in their letter of October 26th. If we construe that letter most favorably to plaintiff, we find therein that defendants proposed to give plaintiff an interest in their land if he wóuld clear up their title. This proposition did not create a binding contract unless and until plaintiff accepted it. Did plaintiff accept it ? He certainly did not notify defendants that he accepted it: He notified them that he would clear up the title if they would give him a one-half interest in the land. This was certainly not an acceptance, for it cannot be claimed that the interest that defendants offered plaintiff was a one-half interest. It is argued that, notwithstanding this notice, it is to be inferred that plaintiff accepted defendants’ proposition. Before giving such notice plaintiff had, as the correspondence shows, performed some service for the purpose of clearing up defendants’ title. It is claimed, as we understand the brief of counsel, that plaintiff’s acceptance of defendants’ proposition is to be inferred from his performance of this service, “and whether or not he afterwards wanted one-half, or misunderstood defendants’ offer, does not alter the established contract.” For the purpose of this case it may be conceded that if plaintiff, on receipt of defendants’ letter, had not replied thereto, but had proceeded to clear up the title, his acceptance of the terms of that letter would be implied. There can, however, be no such implication where, as in this case, plaintiff notified defendants that those services were not rendered upon the terms proposed by them, but upon terms proposed by him to which he asked their assent. As was said in a similar case:
“ The law cannot imply that a person promised to do that which in express terms he refused to do.” Lamson Consolidated Store-Service Co. v. Weil, 15 Daly (N. Y.), 198.
I conclude, therefore, that plaintiff never accepted the proposition made by defendants in their letter of October '26th. Instead of accepting it, he made a counter proposition — a proposition which, as above stated, defendants rejected. It follows that the trial judge was right in deciding that there was no contract.
Plaintiff contends that he has a right to recover upon the quantum meruit because defendants received the benefit of his services and expenditures. We answer this in "the language of the trial judge:
“The right to recover at all must be based upon a contractual relation between these parties, and, as no such relation existed, it follows that no recovery can be had.”
Judgment affirmed.
Montgomery, Ostrander, Hooker, and Moore, JJ., •concurred. | [
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] |
Ostrander, J.
Relator was candidate for re-election to the office of mayor of the city of Marquette at the annual city election, held April 2, 1906, and, as shown by the returns from the several wards of the city, was defeated. He filed with the recorder of the city a petition for a recount of the votes cast for mayor at said election in the first, second, and fifth wards of said city, deposited the proper amount of money, and served upon the opposing candidate a copy of his said petition. The errors, mistakes, and frauds complained of were:
“(a) That in each of said wards, as your petitioner is informed and believes, votes were counted for said Culver in said canvass, which because of distinguishing marks, mutilations, and other invalidities appearing upon the face thereof, and elsewhere, ought not to have been counted.
“ (b) That in each of said wards, your petitioner is also informed and believes, votes cast for your petitioner for said office were thrown out and not counted for your petitioner because claimed to have some distinguishing mark, or to be mutilated or otherwise invalid, which ought to have been counted for your petitioner.
“ (c) That in each of said wards, as your petitioner is informed and believes, votes cast for your petitioner for said office were not counted and returned as cast for him.
“(<2) That in each of said wards, as your petitioner is informed and believes, votes were counted and returned as cast for said Rush Culver, for said office which were not in fact so cast.
“ (e) That in each of said wards, as your petitioner is informed and believes, the several boards of election inspectors returned a less number of votes as cast for your petitioner for said office, than were in fact cast for him.’’
The matter was presented to the common council at a meeting held April 5th to canvass the votes given in the several wards, and thereupon the council, by a divided vote, determined, first, that it was a.matter over which the common council had no jurisdiction; second, that -the petition was insufficient both in statements of errors complained of, and in that it did not state that in the belief of the petitioner, if the votes had been properly counted, the result would have been changed. The returns before said common council showed that relator had received 1,001 votes and the opposing candidate 1,008 votes. The council proceeded to examine the official returns of votes, determined that Eush Culver was duly elected, and so declared by a resolution duly adopted.
The first reason assigned by the common council for declining to entertain the petition for a recount is based apparently upon the idea that the common council of the city of- Marquette is not a canvassing board within the meaning of section 3725, 1 Comp. Laws. The charter provides:
‘ ‘ Upon the Thursday next following the day of said election the common council shall meet at the office of said recorder and thereupon determine who, by the greatest number of votés given in the several wards at such election, are duly elected to fill the respective city offices. ” Act No. 249, Local Acts 1891, chap. 5, § 1.
We have no doubt that the common council of the city is a board of canvassers within the meaning of the section referred to.
It is true the petition for a recount does not assert, upon the knowledge of relator, any errors in the count of votes. The averments made upon information and belief are very general. It is also true, however, that slight changes in one or all of the wards specified, if in relator’s favor, without corresponding changes in favor of Mr. Culver, tvill be sufficient to change the result announced. The petition is verified, the statute a beneficial one. Under all of the circumstances, we must decline to hold the petition insufficient.
It is further averred in the answer of the common council that the seals of the ballot box of the second ward of the said city, at the time it was delivered to the recorder of said city after the election, were broken in such a manner that full and complete access could be had to the box by any person having the key thereof, and said box fully opened without fear of detection, and without disturbing or breaking any other or further seals than those broken at that time; that the seals of the ballot box of the fifth ward were partially broken, but that respondents are not certain whether access could be had to the interior thereof without defacing or breaking other seals thereon. Various averments concerning' the condition of the ballot box in the seventh ward are contained in the answer, the materiality of which is not apparent. This court has held (Keith v. Wendt, ante,49) that it is a prerequisite to a recount that the board find that the ballot box has been sealed as the statute requires. Any other rule would result in confusion and permit boards of canvassers to variously determine whether the ballots cast had been so preserved that a recount of them could be had. It does not appear from the answer but that the ballots in'the first ward of the city of Marquette can be recounted, nor is it made certain that the ballot box of the fifth ward was not, after the election, properly closed as provided by law and has since remained closed.
The constitutionality of Act No. 208, Pub. Acts 1887, as amended by Act No. 267, Pub. Acts 1897 (section 3725, 1 Comp. Laws), is questioned by counsel for respondents, upon the ground, generally, not that the act is in direct conflict with the Constitution, but that it cannot be carried into execution unless by common consent, and reliance is placed upon the opinion of this court in Andrews v. Otsego Probate Judge, 74 Mich. 278. In that case, the court had under consideration Act No. 293, Pub. Acts 1887. The defects in that act pointed out by the court do not inhere in the statute which we are considering. The members of the board of canvassers of the city of Marquette are officers of. the city, bound by the oath of office, required to perform certain duties with respect to elections upon certain days.. It is true there is no express requirement that the inspectors intrusted in the various wards with the keys and election seals shall attend the board of canvassers. That it would be their duty to db so, upon notice, is clear, and the presumption that they will do so will be indulged.- It is hardly conceivable that examiners, selected by rival candidates will refuse to serve.
The writ will issue, commanding the common council to meet within ten days after notice of the issuing of the writ and within the same time proceed to a recount, according to the provisions of the statute, of the ballots cast for the office of mayor in the first ward of the city of Marquette, and the ballots cast for the same office in the fifth ward of the city of Marquette, provided an inspection of the ballot box of the fifth ward shall show that it was, after the election, fastened and sealed in the manner required by the statute, and that there has since been no tampering with the fastenings of the box.
Carpenter, C. J., and Montgomery, Hooker, and Moore, JJ., concurred. | [
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Grant, J.
(after stating the facts). There is no •evidence tending to show that a shock of electricity of 600 volts, the voltage in use upon this car, would produce any ■such injury as that which the plaintiff received. Neither .is there any evidence tending to show that any voltage would produce that result. The theory of his original declaration is reasonable. If his arm had been out of the window and struck the pole, which was within reach, his .injury is easily explained. Plaintiff introduced witnesses who were familiar with electricity and the construction and use of trolley cars. No one had ever known these two guard rods along the windows. to become charged with electricity. The ends were screwed into the wood, and had no connection with any of the electric wires or apparatus. Plaintiff’s own expert testimony showed that these rods cóuld not be charged with electricity from the poles or from the trolley. No other similar accident was shown. No defect was .shown in the construction or management of the car. On the contrary an immediate ■examination showed the car and its appliances to be in good condition, arid nothing out of order. If the plaintiff’s injury resulted from a shock of electricity, which is. very doubtful, the ^record fails to show any reasonable theory for it, or any negligence on the part of the defendant which caused it. Verdicts cannot be based upon mere conjecture or guess.
The judgment is affirmed.
Hooker, J., concurred with Grant, J. | [
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Moore, J.
This is a suit brought to recover damages for personal injuries sustained by decedent June 27, 1901, which resulted in' his death the following day. Suit was begun by summons June 11, 1904. The return day of the summons was June 28, 1904. The summons was returned unserved, and filed June 29, 1904. An alias was issued September 16,1904, returnable October 4, 1904. It was returned served on defendant September 37, 1904. Defendants entered their appearance October 3, 1904. The declaration was filed October 17,1904. To this declaration defendants, October 36,1904, pleaded the general issue, with notice of the statute of limitations. Upon the trial some testimony was given by plaintiff, at which time defendant’s counsel objected to further testimony on the ground that the claim was barred by the statute of limitations. The court ruled .that the statute of limitations was an absolute bar to the plaintiff’s right of action, and directed the jury to return a verdict in favor of defendants. The case is brought here by writ of error.
In 1899 Act No. 155 was enacted, which reads as follows :
“Section 1. No action shall hereafter be brought in any courts of this State to recover damages for personal injuries, unless the saíne shall be brought within three years from the occurrence upon which the claim for liability is founded.
“Sec. 3. All acts or parts of acts in anywise contravening any of the provisions of this act are hereby repealed.”
The appellant argues that as the cause of action survived, and passed to the administratrix, upon her appointment, the running of the statute was suspended by the death of Mr. Colling, and did not begin to run again until the appointment of the administratrix, because of the provisions of section 9737, 3 Comp. Laws, which read as follows :
‘ ‘ If any person entitled to bring any of the actions before mentioned in this chapter, or liable to any such actions, shall die before the expiration of the time herein limited, or within thirty days after the expiration of the said time, and if the cause of action does by law survive, the action may be commenced by or against the executor or administrator of the deceased person, or the claim may be proved as a debt against the estate of the deceased person as the case may be, at any time within two years after granting letters testamentary or of administration, and not afterwards if barred by the provisions of this chapter.”
In support of this contention, counsel cite Field v. Loveridge, 114 Mich. 227; Dolson v. Railway Co., 128 Mich. 444, and a number of other cases. The causes of action in these cases all occurred before the passage of Act No. 155, Public Acts 1899. This act does not make an exception in favor of causes of action which survive, and as it was competent for the legislature to pass such a law we think? its provisions are controlling. Davidson v. City of Muskegon, 111 Mich. 454, and cases cited therein.
Did the failure to take out the second summons for more than two months after the return day of the first summons interrupt the continuity of the action? We think' this question must be answered in the affirmative under -the following decisions: Johnson v. Mead, 58 Mich. 67, 73 Mich. 326; Peck v. Insurance Co., 102 Mich. 52.
It is said that because defendants appeared in the case and pleaded they waived all questions of jurisdiction. Doubtless this would be a waiver of jurisdiction, but it is not a waiver of the defense of the statute of limitations. The summons did not advise defendants of the claim made against them. This was stated in the declaration, and when thus stated defendants had a right to plead and give notice of their defense.
Judgment is affirmed.
Carpenter, C. J., and McAlvay, Ostrander, and Hooker, JJ., concurred. | [
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McAlvay, J.
Relators have been sued in the circuit •court for Kalamazoo county by a resident plaintiff in an action of assumpsit brought under section 11207 of the •Compiled Laws of 1897, which provides:
“ In all cases where a party has a right of action for the taking of timber or other trespass on lands, or for any injury to lands, whether direct or consequential, it shall be lawful for the party having such right of action to waive the tort and bring assumpsit therefor.”
The declaration alleges that the action arises on account •of trespass to lands of plaintiff in Luce county, by defendants, in cutting and removing from said lands certain cedar timber, and selling and disposing of the same, and thereby greatly injuring and damaging said premises, whereby a cause of action accrued to plaintiff who elects and does avail himself of the provisions of section 11207, 3 Comp. Laws, to waive the tort and bring suit in assumpsit, to recover therefor. Otherwise said declaration proceeds as is usual in an action in assumpsit upon the common counts.
Defendants appeared and demanded a bill of particulars, which was furnished, showing that plaintiff claimed:
1. The value of 2,000 cedar trees, and 2,500 cedar posts, wrongfully cut by defendants and removed from plaintiff’s land, sold and disposed of by defendants, and the proceeds retained by them, $2,000.
2. To damages to plaintiff through the depreciation ■of the premises, and the value of the timber left thereon by the wrongful removal of said timber, $1,000.
Defendants then made a motion for a change of venue from Kalamazoo county to Luce county on the grounds:
1. The convenience of the parties and witnesses.
2. The law contemplates the action should b9 tried in. Luce county.
3. The law directs that under the showing made the cause shall be transferred.
The affidavit supporting the motion contained among other things the allegations required by section 10217, 3 Comp. Laws, as amended by Act No. 247, Pub. Acts 1903, relative to change of venue in trespass cases. Counter affidavits were filed, and the motion was heard and denied, the court, as to the convenience of the parties and witnesses under the showing made, holding upon the issue of fact against defendants, and also holding that the statute invoked did not apply to the case at bar.
Application is made for a writ of mandamus directing the court to transfer said cause for trial to Luce county. The reasons urged before the circuit court and in this court why such change of venue should be ordered are:
1. For the convenience of said parties and their witnesses. Upon this question an issue of fact was made by the affidavits presented. The court in the exercise of his judicial discretion found against defendants. The record shows that the court did not act arbitrarily, but that his decision was supported by evidence. This court has. always held that it will not interfere to control the judicial discretion of a trial judge.
2. The other reasons present a question of law and may be considered together. In this case the plaintiff, under section 11207, 3 Comp. Laws, has waived the tort and brought his suit in assumpsit. The act of which this section is a part is entitled ‘ ‘ An act to facilitate the collection of damages for trespass on or other injuries to lands,” and provides as follows:
“ In all cases where a party has a right of action for the taking of timber or other trespass on lands, or for any injury to lands, whether direct or consequential, it shall be lawful for the party having such right of action to waive the tort and bring assumpsit therefor.” Act No. 211, Pub. Acts 1881.
The next section provides that when the tort is waived the plaintiff may commence his suit by attachment as in other cases. Defendants do not dispute but that this statute gave the right to the plaintiff to waive the tort and sue in assumpsit, but' claim that the statute does not thereby make this statutory assumpsit a transitory action. That under section 10216, 3 Comp. Laws, actions for trespass on lands, and trespass on the case for injuries to real estate, shall be tried in the county where the subject of the action shall be situated, and that section 10217, which provides that when the defendant was not a resident of the county where the land was situated such actions may be commenced in any county where the defendant may be found, reserved by its proviso the right in the defendant to have the cause transferred to the county where the 'land was situated.
The material question before us is whether the election, of the plaintiff to take his remedy by an action of assumpsit brought the case within the rules of practice which in this State apply to actions of assumpsit. It-is not denied but that a recovery may be had in assumpsit if the proofs should warrant it. The construction of the statute (sections 11207,11208, 3 Comp. Laws), authorizing the waiver of the tort and bringing assumpsit is involved, and the precise question is for the first time before this court. No authorities are cited or found where the exact question has been passed upon. Section 1 of this statute provides that in all cases of the kind the tort may be waived and assumpsit brought, and section 2 provides that where the tort is waived the plaintiff may commence his suit by attachment as in other cases and the fact that the damages are unliquidated shall not prevent the bringing and maintaining such writ. In the case of Lockwood v. Boom Co., 42 Mich. 536, where this statute was discussed, Justice Campbell, who wrote the opinion, said:
“ This statute is very broad in its language. * * * But it does not purport to make contracts in fact or to allow anything to be sued for except as damages sustained by the trespass. It simply operated to provide that, when a trespass has been committed whereby damages accrue, the duty to pay those damages may be treated as a debt •or implied agreement.”
This statute then, creates a fiction, implying an indebtedness or promise to pay.
In Nield v. Burton, 49 Mich. 53, this court held that a party who had waived the tort and brought assumpsit against the trespasser who had cut*and carried away timber, amounted to an election to regard defendant as the owner of the property converted, and estopped plaintiff from afterwards bringing trover against defendant’s vendee, although the first suit had failed for want of jurisdiction. In the opinion, referring to the right to an attachment provided for in the statute, Justice Campbell said:
“The statute which allowed the action gave with it the right of suing out an attachment, and thus securing the claim. . * * * The waiver was not made as a mere election of equivalent remedies but as a means of getting an advantage of considerable importance, as the inducement to waive the tort.”
It is not contended that a plaintiff cannot commence such an action by attachment as in other cases, and it is admitted that under the attachment statute the action .might be brought in the county where either plaintiff or ■defendant resided, or in any county in the State where defendant may have property. It is urged that to this extent alone is plaintiff given a benefit by bringing assumpsit instead of trespass. The statute must be construed as a whole and with reference to existing statutes. We do not think it will bear the construction claimed. The statute gives the right to waive the tort and sue in assumpsit. It does not create a contract, but implies one. Our construction of the statute is that the legislative intent in giving the right to bring assumpsit was to make the action in such cases transitory as in other cases of assumpsit. Both statutes above cited, sections 10216, 10217, 3 Comp. Laws, were in force at the time this statute was enacted. This act is entitled: ‘ ‘ .An act to facilitate the collection of damages for trespass on or other injuries to lands.” The statute was for the benefit of the injured party whose lands had been trespassed upon and otherwise damaged. To avail himself of the advantages of bringing his action in assumpsit he must waive the tort, thereby foregoing the right to recover treble damages. If the contention of defendants is to be sustained as the legislative intent in enacting this law, then instead of gaining any advantage by bringing his suit in assumpsit a plaintiff is put to disadvantage and positive loss. Instead of facilitating the collection of damages for trespass on, and other injuries to, lands, such construction of the statute would have a directly opposite effect. The question involved is one of practice. It relates to the method of applying a remedy and not to the substantive law. The statute provides a remedy in this case by an action of assumpsit. The rules governing assumpsit, and not those governing actions of trespass, must apply.
The writ is denied, with costs.
Grant, Blair, Montgomery, and Ostrander, JJ., concurred. | [
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Ostrander, J.
To a bill to have a marriage declared void upon the ground that at the time of the marriage the wife had a living husband, the bill charging that he still is living and still her husband, the wife filed an answer in which she neither directly affirms nor denies the principal fact alleged, but asserts a valid and legal marriage to relator in Windsor, in the Province of Ontario, followed by eight years of cohabitation. She asks for affirmative relief by way of alimony, temporary and permanent, and a decree of divorce. To the answer a replication was filed, and to the cross-bill a demurrer was interposed. Upon petition, and after a hearing, the court made an order for the payment by complainant to defendant of a solicitor’s fee of $15. Complainant did not comply with this order, but brought on the demurrer for hearing, when the court refused to proceed until the order had been obeyed, and made an order denying the motion to proceed with the hearing. It is this order which is in question.
Relator contends that the court had no jurisdiction to make the order for expenses of defendant, because the provisions of 3 Comp. Laws, § 8628, have no application to proceedings under 3 Comp. Laws, § 8618. It is also •contended that the court has no discretion in the premises, because the answer of defendant, in substance and effect, •admits the invalidity of the marriage.
It is true that the statute does not in terms empower the court to require the husband to pay money to the wife to •enable her to carry on a suit like this one. Neither does it in terms embrace the subject of allowances for her support. The power to grant allowances, however, has been .held to be incident to divorce cases. Goldsmith v. Goldsmith, 6 Mich. 285; Ross v. Ross, 47 Mich. 185; Haines v. Haines, 35 Mich. 138. The reason asserted in Goldsmith v. Goldsmith, supra, and in Story v. Story, Walk. Ch. (Mich.) 421, for the exercise of this power, is that, without this power in the court, the wife who should have no separate property of her own would be without the requisite means of prosecuting or defending the suit and of supporting herself in the meantime. The same reasoning applies, with equal force, in cases like the present. The power of the court below to make the order is affirmed. The brief for relator admits that, if the court had jurisdiction to make the order, it was and is in force.
The writ is denied, and, as no brief has been filed on the part of respondent, without costs.
Carpenter, C. J., and McAlvay, Hooker, and Moore, JJ., concurred. | [
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Ostrander, J.
(after stating the facts). The legal theory of complainant is thus stated in the brief:
“The defendants, having deliberately entered into the ■contract with full knowledge of all the facts now relied upon by them, are not in position to repudiate their arrangement with complainant as one brought about by his fraud and misrepresentation. They may not appropriate the benefits of a contract so far as it is to their advantage and repudiate it as to the rest. They must repudiate the contract entirely or not at all, and if they enter into the contract and claim its benefits they are in the same position as though no misrepresentations had been made.”
And again:
“At the trial in the court below cases were cited on the subject of specific performance of contracts, but in the present case the complainant is not seeking to compel the defendants to enter into a contract nor really to perform a contract entered into. The defendants, without the consent of the complainant, entered into a contract and thereby appropriated the benefit of complainant’s services, which by the clear agreement and understanding of all the parties was to constitute the consideration of all these lands, over and above seven-eighths of 7,040 acres. The lands were conveyed to Stevenson as trustee, and thereby the case relieved of much uncertainty that might otherwise have resulted. All the complainant asks or needs to ask is that the amount of complainant’s interest, already held by Stevenson as trustee, be declared. * * *
“The relation between complainant and defendants clearly became a binding contract, either upon' the theory of the complainant or upon the history of the defendants. First, upon his own theory, he established a written proposition made by himself, adopted and acted upon by the defendants and himself, and ratified by the written agreement signed by them October 5th, to take the lands. These documents, together with the plat showing the description and location of the lands, constituted a complete written contract between the parties. Second, upon the admission of the defendants, a partly performed contract was established. The answers and the yellow letter supply everything needful to tne establishment of this fact. There was, therefore, a valid and binding contract relation existing between the parties, which might have been enforced either by the defendants upon their depositing their money in the bank, or by the complainant on the basis of the contract he made with defendants. Complainant, therefore, had a legal and equitable right to complain when defendants purchased the land directly from the owners and attempted to exclude him from the benefits.”
It is further said:
“The fact that he [complainant] had no title to the land and no valid contract with the owners for their purchase would not prevent him from making a binding contract for their sale. Such contract could be enforced if he had the lands, and he could be held in damages if he did not have them.”
It is sufficient to say of this last-stated proposition that complainant did not make a contract to sell to defendants any lands. The most that can be said of the testimony is that it is made to appear that upon the representations made by complainant defendants had agreed to purchase 7,040 acres of land for substantially $56,000, according to a corresponding option, and to give to complainant a one-eighth or equivalent interest, in consideration of his knowledge of the lands and of such an option, and his securing them the benefit of such option. There was no such option. The owners of the lands had not agreed to sell 7,040 acres for $56,000. Complainant did not procure nor secure to defendants the benefits of such an option. He did introduce defendants to a portion of the lands which were for sale. If, therefore, complainant is entitled to any consideration from defendants, it must be because they accepted the benefits of a different option, which the broker Hart was in duty bound to offer them, which came into existence, so far as the owners were concerned, because Hart represented that he had secured, according to the terms of his agency, purchasers of the lands.
I do not agree to the proposition advanced by counsel for complainant to the effect that, having discovered the terms of the option, defendants were, because of their relations with complainant, in duty bound to withdraw from its consideration and acceptance, with the alternative of paying the entire price asked for all the lands, giving to complainant a one-eighth interest in 7,040 acres and all of the remainder of the lands. The thing desired, the thing to be accomplished, was the sale and transfer of the lands. The terms according to which this transfer could be accomplished by the owners on the one side and the purchasers on the other were first discovered by the intending purchasers when the option was produced. This option was made after the fact, so far as any arrangement between complainant and defendants is concerned. The complainant had misrepresented to defendants the terms of sale which the owners proposed. The matter cannot be dismissed by the statement that the defendants were satisfied to pay for a part of the lands the price demanded for all of them. A different question would be presented if it could be found or assumed that, with knowledge of the price demanded for all the lands, they had agreed to accept fewer acres for themselves and give the remainder to complainant. The testimony strongly supports the. conclusion that the complainant had represented the fact to be that $56,000, substantially, was demanded by the-owners for 7,040 acres; that the price had been lately raised; that complainant was interested only to secure for himself an interest in the said 7,040 acres. The plats and estimates which he exhibited were of 7,040 acres only. To purchase those lands, and no others, he represented' would require $56,000, and he induced defendants to deposit one-tenth of this sum as an advance payment for the lands.
Treating complainant as an associate of defendants in the purchase of lands, the entire purchase price to be paid by defendants, we still are far from proper support for the decree. It is not claimed that defendants were to purchase more than 7,040 acres for the joint account. Suppose there had been no other lands, and, the deceit, not having been discovered, defendants had paid $56,000 for such lands, and the money in excess of $5.75 an acre had been taken by complainant. The fact being then discovered, would he be permitted to retain it ? Could he-have answered, legally, the demand for return of the money by saying that the transaction as made was a profitable one for defendants ? Or that, if they had never discovered the fraud, they would have been satisfied with the bargain ? And, if the deceit was discovered before payment of the purchase price, would the purchasers be precluded from acquiring the lands upon the terms of the owner because of their arrangement with their associate ?' The supposed case is not different, in substance and effect,, from the case presented. I know of no rule which requires, under the circumstances disclosed, that the associates, thus deceived, shall any longer recognize the deceitful associate or treat with him with reference to the subject-matter.
The argument that the letter, sent to Brewster on Octo ber 6th, was a confirmation of the option, and that, as the option ran to complainant, with others, this confirmation of the terms of the option, with knowledge of the deceit practiced, was in law a confirmation of the arrangement with complainant, or, what is the potential equivalent, it amounted to a waiver or forgiving of the deceit, and all effects of it, is not sound. It is clear that the interested and responsible parties did not in fact waive or forgive the deceit which had been practiced. They sought, as I think they had the right to do, to avail themselves of the terms of sale proposed in the option. Complainant did not propose to contribute as a party named in the option, and is not asserting rights based upon the action of either the owners or purchasers which excluded him from the benefits of the option according to its terms.
"Whether complainant be treated as an associate with defendants in the purchase of lands or a broker to invest their money, his relations were, in either case, fiduciary in character, requiring him to deal openly and truthfully with defendants. He did not do this. It should be said that but for the efforts of complainant it is probable that defendants would not have made a purchase, which, it may be assumed from the record, was profitable to them. It is, however, a long way from this fact to the conclusion, stated in the last paragraph of the bill of complaint, that—
“Your orator further shows that the said conveyance to the said Stevenson as trustee, aforesaid, was the sale procured by said Hart to your orator and the said Stevenson and his associates, and none other; that your orator actually paid the consideration for the conveyance of all of said lands [describing the 2,600 acres]; that the said conveyance was taken by the said Stevenson as trustee, without the consent and against the protest of your orator, and the said Stevenson holds all of the said lands last above mentioned as trustee for your orator, and also an undivided one-eighth part of all of said lands [the 7,040 acres].”
The decree is reversed, and a decree will be entered dismissing the bill of complaint, with costs of both courts to defendants.
Blair, Montgomery, Hooker, and Moore, JJ., concurred. | [
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] |
Marston, J.
The defendants, co-partners, were sued upon-a promissory note purporting to have been executed by and' in the name of the firm, and made payable to the order of John H. Parsons. They pleaded the general issue and denied the execution of the instrument. It appeared, and' was not disputed on the trial, that the note was given by one ■ member of the firm for his individual debt, and that the-other members gave no authority therefor.
There was evidence given tending to show that the American National • Bank was a bona fide holder of this paper?- and that after the note became due the bank transferred it to the plaintiff, who had notice that it was given without authority for the debt of one of the makers.
The court charged the jury in substance that if the bank was a bona fide holder, it could have recovered, and that the plaintiff would have a like right, notwithstanding the fact that he had notice of the infirmity. This ruling was correct. Kost v. Bender 25 Mich. 515.
The judgment must be affirmed with costs.
The other Justices concurf-ed. | [
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] |
Cooley, J.
The action in this case is upon a promissory note made by Hall & Parent payable to the order of Samuel Moore. On the back of it was the name of Samuel Louden, and Louden was made defendant as joint maker; his name having been placed upon the note before it was endorsed by the payee.
The note was sued by John A. Moore, who produced it. on the trial with the endorsement of the payee upon it. Respecting the plaintiff’s right to sue the following evidence was given by him : Samuel Moore, the payee, was his father. Shortly before the note became due, his father-endorsed the note and delivered it to him, and directed him to take it to the bank for collection; that he did take it there and on the day it fell due took it to Hall, one of the makers, who said he would fix it, and requested it should not be protested; that plaintiff nevertheless had it protested for non-payment, and afterwards brought suit upon it in his own name. The plaintiff further testified that his father was dead, and he had been appointed administrator upon the estate; the death taking place before and the appointment after the suit was instituted.
Upon this evidence the court was requested to charge the jury that as' the note belonged to the estate of Samuel Moore, the plaintiff could not recover upon it. This was refused, and plaintiff had judgment. .
It is not disputed that one who holds a negotiable note for collection may sue thereon in his own name. This was-decided in the case of Brigham v. Gurney 1 Mich. 349, and that case has always been followed without question. But it is contended that the evidence did not show authority in John A. Moore to make collection; it showed only that the note was delivered to him to be taken to the bank for that purpose. "We think it showed more than this, or, at least, it justified an inference that the father intended the plaintiff should receive payment; and if the evidence was ambiguous in that regard, the court would not be justified in taking the case from the jury. The jury would certainly have been well warranted in finding that the father intended,, by endorsing and, delivering the note to the plaintiff, to give him the ordinary authority of collection.
But it is further contended that the death of the father before suit was instituted was a revocation of the authority previously given. This would be so if it were a naked authority; but it was not. The endorsement and delivery for the purposes of collection passed the legal title in trust: Boyd v. Corbitt 37 Mich. 52; and the trust is not terminated by the death. It continues at least until the rightful owner intervenes; but in this case, by the subsequent appointment of administrator, that owner happens to be the plaintiff himself.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Coolev, J.
Guild brought ejectment against Kidd and: two others to recover possession of a certain eighty-acre lot of land. Kidd, claiming to have been in the peaceable possession of all the-land except five acres from the year 1869' to the time of the trial in 1878, and to have made valuable-improvements thereon, filed a claim to have the increased'! value of the premises, by reason of the improvements,, assessed. Plaintiff filed a counter-claim to have the value of' the land assessed as it would be if no buildings had been-erected or improvements made or waste committed thereon.. The case went to the jury, who found title in the plaintiff; that Kidd had been in possession of all but five acres continuously since 1869 ; that the increased value of the premises by reason of his improvements was $800, and that the-value of tlie premises if no improvements had been made,, or buildings erected or waste committed, would be $122.50. No judgment was at the time rendered on this finding, but at a subsequent term the ordinary judgment for recovery of possession was entered. Kidd removes the case to this-court by writ of error.
It is supposed by the appellant that the judgment as-entered does not protect him; that it should have expressly made the recovery of possession conditional on the assessment made in his favor being paid. In this we think he is-in error. The statutory provisions governing the ■ case are given in tbe margin and tbey plainly contemplate the ordinary judgment where plaintiff does not elect to abandon. The defendant is protected by the provision which makes -the default of the plaintiff to pay the assessment in favor of the defendant an abandonment of all claim of title. He needs nothing further. The abandonment in this case •would relate only to the land which appellant had occupied and improved.
, On the part of the plaintiff the question is raised whether the statute under which the assessment has been made is .applicable to the case. The statute was approved May 1, 1875, and it allows a recovery of improvements only in case “ the defendant or defendants, or the person [or persons] through whom he or they claim title, shall have been in the' actual, peaceable occupation of the premises recovered, for six years before the commencement of the action,” unless “ the same shall have been so occupied for a less time than six years under a color of title and in good faith.” Public Acts 1875, p. 207. The statute is not in terms retrospective, and it is contended that, under the general rule that statutes .are to have a prospective operation only when a different intent is not declared, the six years must have run after the passage of the act. . And the point is made that even if it had been intended to give the statute a different construction, it would not have been within the constitutional authority of the Legislature to do so. In other words that the • Legislature cannot under the Constitution compel one man to pay for improvements which another without his consent has made upon his lands at a time when no existing law provided for such payment.
This argument did not meet with approval when made in-Davis' Lessee v. Powell 13 Ohio 308. But it is not necessary to enter upon any examination of the constitutional question in this case, for a number of very obvious reasons.
One of these reasons is that the plaintiff is not here with any writ of error or assignment of errors; but ho has-acquiesced in the judgment of the court below, and is not therefore in position to have it set aside or modified in his-favor. Only the defendant Kidd complains of the judgment on this record, and if his complaint is not well founded, the proceedings cannot be disturbed. If for any reason the assessment made in this defendant’s favor is supposed to be illegal and void on the face of the record, the plaintiff may no doubt raise the question by claiming and endeavoring to obtain possession under his judgment; but in this court there can be no authority on the present writ of error to disturb the assessment.
But if the question of defendant’s right to an assessment was an open one now, the plaintiff fails to show that it was-not justified by the act of 1815 on any construction that can be given to it. That act does not require six-years’ possession in all cases, but expressly excepts cases where the defendant is in possession under color of title and in good faith. The record does not show that such was not the case here; and when an assessment is legally possible under any set of circumstances, a court of error must infer, in support of an assessment actually made, that the circumstances were shown to exist before the court below pronounced its judgment. ■
The plaintiff may perhaps have overlooked one fact which might be important in its bearing upon the constitutional question which he raises. That question has been presented under the act of 1815 as if that statute was the first legisla tion on the subject, and gave new rights where none existed before. The truth is, however, that the act of 1875 was restrictive in character, and imposed limitations upon the right to recover for improvements as it had been previously established. The Act of 1873, Laws 1873, vol. 1, p. 472, which was supplanted by that of 1875, did not require that possession should continue for any definite time before the right to the value of improvements should attach; and as this defendant appears to have been in possession while that act was in force he may have had and probably did have a right which was perfect under it. If therefore the Act of 1875 can as to cases situated like his be construed to require six years’ possession after its passage, it is manifest that the effect will be to take away pre-existing rights; and the power to do this is far more questionable than the power to give new rights upon pre-existing equities. For the reason above stated we have no occasion to consider the constitutional question in this case; but it seems proper to allude to these facts, as it is plain that the constitutional argument of the plaintiff, if accepted and applied, could not possibly be of service to him.
The judgment will stand affirmed with costs.
Campbell and Marston, JJ. concurred.
Compiled Laws, §§ 6354, 6355.
(6354.) Sec. 53. If, after the rendition of tlie verdict, the plaintiff shall, at the same or next subsequent term, of the court, make his election on record, to abandon the premises to the defendant at the value estimated by the jury, then judgment shall be rendered against the defend.ant for the sum so estimated by the jury, with costs of suit, which judgment shall be a lien upon the premises in question, and execution may issue on such judgment, and be levied upon such premises, and the same may be sold by virtue thereof, in the same manner and with the like effect as any other real estate of the defendant.
(6355.) Sec. 53. If the plaintiff shall not elect to abandon the premises to the defendant, he shall, within one year after the rendition of the judgment for the recovery of the premises, pay to the clerk of the court for the use of the defendant such sum as shall have been assessed for the buildings and improvements, with interest thereon; and no writ of possession shall issue on the judgment rendered on the verdict, nor any new-action be sustained for the land, until such sum is paid; and a default to pay to said clerk as aforesaid shall be deemed an abandonment of all .claim of title to the premises, and be a bar to the recovery thereof. | [
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] |
Marston, J.
The complainant loaned $4000 to the administratrix of the estate of Philip Aspinall, deceased, and under color of authority from the probate court, obtained a mortgage upon real estate, which, on an attempt to foreclose, was by this court held invalid for certain reasons set forth in the opinion in Detroit F. & M. Ins. Co. v. Aspinall 45 Mich. 332.
In the settlement of the estate of Philip Aspinall, certain claims were allowed against it, and among them one of $3215.17 upon a bond executed by him to Caleb and Albert Ives, and secured by mortgage upon certain Lafferty farm lots.
The money borrowed from the complainant was for the purpose of paying the debts allowed against the estate, and was used so far as necessary in the payment of the Ives mortgage then held by Joseph and James Aspinall. The loan was made by complainant February 25, 1867, and the Ives mortgage discharged of record March 16, 1867. TheLafferty farm lots were sold by the estate and bid in at a nominal sum by James P. Aspinall for the accommodation, use and benefit of the estate, and a part of said lots are still standing in his name.
The complainant now asks to be subrogated to the rights-which the holders of the Ives mortgage would have if not discharged, in the Lafferty farm lots still the property of the-estate.
The entire good faith of all the parties, in the proceedings-in probate court for authority to mortgage the estate of' Philip Aspinall, in supposing that such authority had been dilly given, in making the loan and executing the mortgage in conformity therewith and in the proper application of the proceeds of such loan in payment of the debts allowed against the estate, including the Ives debt, cannot be doubted. The estate therefore has received the full benefit of the loan made, and in so far as it was applied in payment of- a mortgage upon lands belonging to the estate and still held by it, well-settled equitable principles will justify the court in protecting the complainant, to the extent that an assignment of' the Ives mortgage if still in full force would do.
The complainant does not stand in the light of a stranger or volunteer paying the' debt of another without authority, nor as one merely loaning money to pay off a debt. The-complainant’s equities do not stand upon any such ground,. but because of the mistake of all parties, who, acting in good faith, and under color of authority, paid an existing obligation against the estate under an agreement that they should have security upon the estate, it is therefore equitable that the property thus saved to the estate should now, in part at least, respond to the claim of the complainant. The authorities cited in the brief of counsel for complainant fully sustain this .view.
The decree of the court below will be reversed with costs,, and one entered in accordance with this opinion.
The other Justices concurred. | [
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Campbell, J.
This bill was filed to prevent defendant Fletcher from interfering with or taking legal or other measures to get possession of certain logs which came into complainant’s possession by the misconduct of one Keating, who, having agreed to furnish a quantity of logs, cut a large amount from lands belonging — some to Fletcher, some to him in common with other parties including complainants, and some to other defendants in whole or in part. No legal proceeding had been commenced when the bill was filed. Beekman originally joined with Jesse P. Bishop, who is now deceased, as complainant, and they sued as assignees of the Alpena Lumber Company. The only ground of the bill seems to be the pendency of another suit originally brought by the Lumber Company, in which it is claimed by this bill the controversy includes any rights which may exist in this lumber. This fact is admitted in the answer, and the bill is claimed to be bad for want of equity and for the reason that the other suit must be determined in order to settle this controversy. No final relief is asked in the present bill, and nothing more than an injunction and receiver to abide the result.
A receiver was. appointed on the nomination and consent of both parties, and they also consented to a sale of the property. The court thereafter made a decree directing the receiver to pay most of the money to Fletcher — a portion absolutely, and a portion subject to the decree in the other case.
We cannot discover any equitable ground on which this bill can be sustained. So far as we can discover it is not in accordance with any known practice to file one bill in equity in aid of another bill in the same court. If this property is really subject to the litigation in the other suit, the court could have no difficulty in restraining the parties to that suit from any improper intermeddling, on an application made for the purpose. Whether such application would require a motion or petition, or whether supplemental procedure would be necessary, we need not inquire, as in some way or other relief must be had in connection with those proceedings. If the matter cannot be so disposed of the case is no better, for this bill contains no showing whatever for independent relief on the merits.
The bill should have been dismissed. The appointment of a receiver, if made by the court itself, might require some inquiry into the proper destination of the funds, but this would have had to be distinct. In .this case, however, the receiver got his appointment and all his powers from the consent of the parties and became their bailee; and there will be no difficulty in reaching a disposition of the funds when the parties have settled their rights, which could not be done in this suit.
The decree must be reversed, and the bill dismissed with costs of both courts.
The other Justices concurred. | [
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Campbell, J.
Plaintiff in error had judgment for damages rendered against him in the Superior Court of the city of Detroit and brought error to this court. It seems to-have been his purpose originally to rely on exceptions taken at the trial, but, although assigning errors on that theory, he announced on the hearing that he elected to waive his bill, of exceptions, and has not procured it to be signed or filed» lie now claims as the only error relied on, that the case had .been removed to the United States circuit court before trial, and the Superior Court lost jurisdiction.
A somewhat serious question might arise whether the plea below was sufficient to indicate any controversy under ■the act of Congress capable of removal, as relied upon. But as the record now stands we need not consider this, as we do not think, in the absence of such showing as might perhaps have been made by a bill of exceptions, that we have anything to act upon. So far as the common-law record is concerned it shows an issue, trial and judgment upon full appearance and intervention of both parties by their counsel, and with no objection to the procedure. By Coots not excepting'"it must be conclusively assumed that if jurisdiction continued the trial was valid and not objected to, as it cannot be presumed that the court below committed any error, or refused to recognize the legal force of any valid •objection brought to its notice.
Inasmuch as it has been ruled by the United States Supreme Court that in cases subject to removal the record stands practically entitled to be removed when a petition has been filed and a satisfactory bond given, we are disposed to consider that if all this appears in any responsible way on the record a writ of error might bring it up without a formal bill of exceptions. But as the act of Congress requires as a condition of removal, the filing of a bond “ with good and sufficient surety,” and neither that nor any ■other act of Congress fixes the amount, or method of determining the sufficiency of the surety, there can be no doubt it is necessary for some court to either fix or approve the bond and its surety, before-it can be held conclusively sufficient.
This record brings up — and we shall assume regularly— & bond of $1000 accompanying the petition of removal filed below. To the bond is attached an expa/rte affidavit of the surety’s responsibility, purporting to be sworn to before a notary, but the statute does not provide for any such method of determination and no further approval appears. All that further appears is that the ease was not transferred. It does not appear on what ground this was, and no objection or exception was taken to the negative action of the Superior Court which might throw light upon it. The. Court would unquestionably have embodied in its action the-ground of decision if asked to do so. It is as legally consistent with failure to regard the bond as satisfactory, as-with any other ground of disapproval. It has been distinctly held that the right of removal does not depend on-the action of the State court, if all conditions have been fulfilled, and there was no occasion to apply to the Superior-Court for any purpose but the approval of the bond, if the-case was otherwise proper. We are bound to assume that the court below put its action upon a legal ground and not an erroneous one, and it is for the party alleging error to-show error.
Plaintiff in error has seen fit to leave out from the record everything that would show — if such were the fact — thait the Superior Court ever passed on the question whether the-case was a proper one for removal, if the bond was satisfactory. We cannot review questions which have not been, decided by the action below. And therefore we shall not. be authorized to consider either whether the facts set up in the petition make out a case which is within the act of Congress or whether the plea below is sufficient in law to coveithat case.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
The plaintiff, a corporation organized under the act approved May 1st, 1875, providing for the incorporation of manufacturing companies, entered into an agreement with the defendant giving the latter the sole and exclusive license and right to manufacture and sell a certain patent rail upon a royalty to be paid therefor. The defendant manufactured and sold a certain number of tons and this action is brought to recover the royalty due therefor. The defendant alleges that the contract was one the plaintiff had no authority to enter into as it thereby abdicated a specific corporate function for a period of seven years.
The defendant should have thought of this sooner and not-waited until, after receiving the full benefit of the contract, it was called upon to perform on its part. Evidently the defendant does not set up this defense in the interests of the plaintiff or its stockholders, who seem to have been satisfied with the contract and made no objection thereto.
But was this contract an abdication of any of the plaintiff’s corporate powers?
The purposes for which the plaintiff was organized, were to engage in the manufacture and sale of this rail, and to sell rights and to grant license to manufacture on royalty or otherwise under the same, also buying, manufacturing and selling railroad rails, spikes, etc.
One of the objects specified was to sell rights and grant licenses to manufacture this rail on a royalty, and this was just what it did do in entering into this agreement with the defendant. In other words, it made a contract within the very letter of its charter. We think this contract was binding and that the defendant must carry out its part of the same.
It is in the second place said that this agreement was not made upon a valuable consideration, as the patent referred to was void.
This question we think is not open to controversy in the present case. The contract shows that'the defendant, at the time of this agreement, was the owner of the patent with which this is supposed to conflict, and that this agreement was entered into apparently to avoid any conflict, and in order that the royalty should be divided. The defendants therefore are in no position to question the validity of the plaintiff’s patent in the present action brought to recover a royalty earned or due on account of rails manufactured and sold thereunder.
The judgment will be affirmed with costs.
Cooley and Campbell, J J. concurred. | [
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Cooley, J.
A negotiable note given by tbe defendant and purchased by the plaintiff in good faith before it became due, is contested by the defendant on the ground that it was obtained from him by duress. The circuit court decided that the defence was not available. This was correct.
The cases of Gibbs v. Linabury 22 Mich. 479 and Anderson v. Walter 34 Mich. 113, which are supposed to countenance the defence, are different from this. The defence in each of those cases was that the party had never executed as a promissory note the instrument in that form which was-sued upon; and if the fact was established, the paper was no more his than- if his signature had been forged by another. In this case the making of the note was not disputed.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, J.
Gingrass recovered below a round sum of $10,000 under a bill of particulars including among other things an account for stripping the surface of an iron mine and certain work as overseer; the former in the year 1873, and the latter from February, 1873, to February, 1875. His claim for the former work is based on the ground that he did more than was necessary to work the mine on his-contract during the year 1873, in reliance on further similar work in the succeeding years, of which he was deprived by countermand at the close of that year. He insisted on the trial that it was agreed he should be paid for the work which became unnecessary for his own mining operations.
It appears that there was a written contract, confined to-one year, for getting out ore and work connected therewith, from October 1, 1872, to November, 1873, and that tbe stripping was done during this time. Gingrass undertook to show — and was so permitted — that he misunderstood this contract, which he was induced to believe was to run longer, and that he would not have done it unless he had so supposed. The superintendent’s work he claims to have done under employment of one of the company’s agents.
All of the stripping work, which was the chief ground of ¡recovery, was done long enough ago to have been barred by the Statute of Limitations, which was not pleaded for the ¡reason suggested by counsel that it was supposed the issues were the same in fact in this direction as in a ease formerly before us which was discontinued. And it was claimed on the trial that Gingrass had estopped himself, by a presentation and settlement of accounts in 1875, from now setting up any such claim as the present.
We think this ground well taken. In 1874 he presented a claim of $4240, which included among other things several charges for removal of dirt, and labor and outlays of ■various kinds, which was reduced by agreement to $3000, which was credited on account. In the latter part of 1875 a full account of nearly $40,000 was settled between the parties, leaving a balance due Gingrass of $367.57, against which there was a claim of rent as an offset, but no dispute as to the items of the account itself. It appeared from the •■testimony of Gingrass himself that he had quit his business with the company long before this, and that complaint was made to him not only that he had made charges that were not expected, but also that he had waited longer than he .should in presenting it. It further appeared from his own testimony that he did not present the principal claims now in suit at all, and never informed the company that he -claimed them before the trial of the suit formerly brought in 1877, and, as we understand him finally to admit, he never •did so until this suit was bi’ought in February, 1880.
It appears then from his own testimony that when he was called upon by all the usages of business to make a full •showing of his claims against his employers, for the pur poses of a complete settlement, he made no such claim as is now set up. It appears further that this was not caused by any understanding with the company that the comparison of accounts should embrace less than all his demands, and that he kept this back — if he had really any such claim in his mind — purposely. Ilis attention had also been called — ■ as he says himself — to the objection of the company to the delay already had, and its surprise at the extent of his demands. Under such circumstances we think he had no right to keep back anything whatever, and that the arrangement and comparison then had must be regarded as a final statement of his claims which it would be a fraud to disturb. See American National Bank v. Bushey 45 Mich. 135.
We have not found any admissible ground on any legal theory on which the judgment below could be allowed to stand, but we do not consider it necessary to discuss the other questions presented, because the views already given render it needless.
Judgment must be reversed with costs and a new trial granted.
Cooley and Marston, JJ. concurred. | [
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Campbell, J.
This is an action against a stockholder of the Grandville Plaster Company for what is claimed to be a debt for labor performed for the corporation. The amount due accrued under a written contract whereby Taylor agreed for one year, which was afterwards extended for five years, to take out and deliver the plaster rock from the quarry of the company at certain places and in a certain manner agreed upon. In doing this the plaintiff was to uncover the-rock and deposit the shale at his own expense in separate sheds to be provided by the company, and to leave uncovered at the end of his contract as much rock as was open when he began. For all this work he was to receive pay for so much plaster rock as he got out and delivered, at the rate of sixty cents a ton, estimated by measurement at six tons to the solid cord. Monthly estimates were- to be made and signed by plaintiff and the company superintendent, and payments made of all but ten per cent., which amount was to be reserved as security. Some other particulars are unimportant.
We do not think this arrangement can be properly treated us labor performed for the corporation, in the meaning of the Constitution and statutes declaring stockholders liable for labor debts. This was an independent contract whereby, instead of quarrying for themselves, the authorities of the corporation let out the entire work for a long time to plaintiff, who was to carry it on in his own way and by his own servants and agents over whom the company retained no control. It was neither more nor less than farming out the chief quarrying operations of the company to a stranger, who was no more the corporation servant than if the quarry had been leased to him on a royalty. His pay was received not for the amount of labor done but for the amount of stone delivered at the proper places provided for, and so long as he made this delivery and kept the refuse disposed of, the corporation had no voice in his proceedings. It is possible there may be labor within the statute in some cases where the work is done by the job, but where such an entire disposal of management exists as appears here we think the case is clearly not one of labor.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, C. J.
In January, 18Y9, the plaintiff and her husband William H. Stewart, who is now deceased, were indebted on note and chattel mortgage to Neil Stewart in the sum of $600. The property mortgaged consisted of certain farm and dairy stock and various inanimate chattels. On the 20th of that month the mortgagee assigned the mortgage to defendant Brown for $300, and on the 4th of April following Mrs. Stewart tendered him through Mr. Makin $311 to cancel the mortgage, and “the offer was refused. In the fore part of May the defendant took the property and sold it on the mortgage and Mrs. Stewart brought this action of trover and was allowed to recover the value. Brown insists that several rulings at the trial were erroneous and he asks to have them reviewed on writ of error and bill of exceptions.
At the time the mortgage was given the property was in paid owned by the plaintiff and in part by her husband, and it was a portion of her case to show that she subsequently became vested with her husband’s interest. In respect to this branch of the cause she gave evidence that her husband made her a bill of sale and that the instrument was lost. She was then asked what property it conveyed and the defendant objected on the ground that the question called for the witness’ conclusions; and observed, that if it was proper for her to testify on the subject at all, she should be required to state as near as she could what the paper contained. The objection was overruled and the witness replied, that it was the property that was in the mortgage. The defendant then moved to strike out the answer on the ground that it was not responsive to the question, and this-was refused. Error is assigned on these rulings.
It was the manifest object of this inquiry to make out that the bill of sale applied in fact to the husband’s interest in thé mortgaged property and the question and answer went directly to the result. The method was one of shorthand to show the fact to be proved. It would have been more in accord with practice and the better way to have called for the contents of the paper. But we cannot say it was not within the discretion of the trial judge to permit the examination in the form which was pursued, the defendant having the right to go into all particulars by cross-examination. There is no reason to conclude that the latter suffered the least detriment.
The contention between the parties involved conflicting theories. The plaintiff claimed that the mortgagee pressed for payment, but finally consented to accept fifty cents on the dollar or $300 in satisfaction of the debt, and that her husband thereupon resorted'to Brown to advance that sum and that the latter agreed to do it and take a new mortgage for the advance on all the property, with some specific exceptions, payable on the first of April with interest at twenty per cent. That the parties were to meet at an attorney’s office on the 20th of January to consummate the arrangement and that she and her husband went there for the purpose, but found that the mortgagee, who was in a hurry to leave for home on the morning train of cars, had already assigned the mortgage to Brown before their arrival and received from him the agreed sum of $300. That Brown then acknowledged that the transaction merely secured him for the $300 and interest at twenty per cent, and claimed that the matter might as well rest as it then was as in any other shape and declined to receive a new mortgage.. The defendant on the other hand denied that he took the mortgage in any other way than as absolute assignee, and insisted that he purchased it without being trammelled by conditions and on the terms of being entitled to get the entire debt if he could without any abatement.
The mortgagee, Neil Stewart, testified that about the time of tlie assignment of the mortgage and on the day preceding, he had a conversation on the subject with plaintiffs husband. lie was then ashed to state the conversation, and defendant objected. Plaintiffs counsel explained that the inquiry was merely introductory to what immediately followed on substantially the same occasion ; and that the purpose was°to show that it led to the defendant’s connection with the adjustment of the mortgage claim, and how it was that he became a party to the transaction, and what in fact the transaction was. The defendant’s counsel still insisted on the objection and explained that the ground of it was that defendant was not present.
The point was overruled and the witness proceeded to say in substance among other things that he told plaintiff’s husband he would accept $300 in satisfaction of the mortgage, and that the latter then observed that he thought he could get a man “ to take it,” and went out; and in a short time returned accompanied by defendant. That the business was resumed and defendant entered into the conversation and said finally that he would look at the property and if he found it satisfactory he would go into the arrangement, and that it was then agreed that all the parties should meet the next morning at an attorney’s office and close up the business.
No error was committed here. The conversation objected to was very closely connected with the facts in issue if not in itself an actual part of the res gestes. It was matter necessary to explain how it was that Brown came to be a party to what was done, and it belonged to those connected and illustrating facts which a full and just understanding of the case explicitly called for. Stephens Ev. art. 9; 1 Starkie Ev. 88-92; Deitsch v. Wiggins 15 Wall. 539; Crocker v. Lewis 3 Sumn. 1.
The objection that the tender was not good because the amount was less than the sum prima faoie due is fallacious. It begs the question and assumes that the defendant actually held the mortgage for the whole $600 and interest. But this was the material point in dispute and the jury rejected -the defendant’s version and found in favor of the explanation of the plaintiff and therefore that the mortgage was received and held by Brown for no more than $300 and interest. And no argument can be required to prove that it was unnecessary to offer more than the property was held for in order to effect .its release. When the tender was refused the lien was discharged and the mortgage gave no right thereafter to disturb her possession. Her right to the ■property was rendered plenary and was not dependent at .all on the tender being kept good. All objections concerning this branch of the case are fully answered by our own ■decisions. Fuller v. Parrish 3 Mich. 211; Moynahan v. Moore 9 Mich. 1; Caruthers v. Humphrey 12 Mich. 270; Van Husan v. Kanouse 13 Mich. 303; Eslow v. Mitchell 26 Mich. 500; Sager v. Tupper 35 Mich. 134; Johnson v. Cranage 45 Mich. 14.
It would be a waste of time to dwell on the comments •made on the way in which the case was given to the jury. The charge was plain and fair. It presented the opposing claims of the parties in a distinct and lucid manner and covered the whole ground. The criticism upon it seems to the ■court entirely devoid of merit, whilst the requests not met by it were either futile or inaecsurate.
There is no error and the judgment must be affirmed •with costs.
The other Justices concurred. | [
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] |
Marston, J.
The bill in this case sets forth that Ignatius J. Alterauge held a leasehold interest, renewable on the 1st day of July, 1859, and at the end of each five years thereafter, in lot 8, block 3, of the Brush farm, said lot being now designated as lot 1 of subdivision of lots 8, 9 and 10 in block 3, and that he was in possession thereof.
That he held an agreement for a parcel of land in "Wyandotte designated as lot 6, block 57, and lots 10,11 and 12 in block 106, and that the full purchase price thereof had not been paid.
That about the 27th of January, 1858, said Ignatius J. Alterauge died testate leaving surviving him Anna E., his widow, and five children. That by his will, which was duly admitted to probate, his widow Anna E. was named as executrix with Ferdinand E. Dunnebaeke as executor, who duly qualified as such.
That by the .will he gave to his wife, in lieu of dower, for her support and the support and maintenance of his children, the income of all his estate, so far as necessary, the surplus to be invested, and, subject to the interest, control and trust given his wife, all his estate he devised and bequeathed to his children share and share alike.
That afterwards and on the 2d day of March, 1858, the said Anna E. waived and renounced in writing the provision made for her, and elected to be endowed of the lands of which her husband died seized, and that she thereupon took upon herself the execution of said will and collected the moneys due and belonging to the estate and the rents thereof, and disposed of and converted into cash a large amount of personal property belonging thereto.
That from the money, income and effects of said estate belonging to said children she paid the balance of the purchase price on the Wyandotte property, and on the 29th day of July, 1859, and 24th day of February, 1860, by deeds of conveyance she took the title thereof to herself as executrix of the last will and testament of said Ignatius J. Alterauge deceased, in trust for his heirs and devisees, which deeds were duly recoi’ded on the 25th day of March, 1861.
That after the death of said Ignatius and the appointment of Anna E. as such executrix and before 1860, she caused to be erected on said lot 8 of the Brush farm, a four-story brick building, with the lower story and cellar arranged for a store or place of business, and the upper stories arranged and furnished as a dwelling ; that the cost of said building exceeded eight thousand dollars, and that she paid the whole amount thereof from the property and money of the estate belonging to said children.
That on the 1st day of May, 1868, she purchased of John T. Meldrum lot 9 on the north side of Congress street on the Antoine Beaubien farm for $3850 — and from the property and money of said estate paid $1850 of said purchase price, and took a conveyance of said lot to herself as grantee by the name and designation of Anna E. Alterauge, executrix of the last will and testament of Ignatius J. Alterauge deceased, and to her heirs and assigns forever and for their own proper use and benefit. And that she secured the balance of said purchase price by giving her bond and a mortgage on said lot, in which she was designated as executrix, etc., as in the deed to her.
That after the purchase thereof she had erected thereon a brick dwelling-house, at an expense of $5000, and paid the same out of the property and assets of said estate that had come into her hands as executrix, and that it was her intention to take and hold said lot and house as the property of said estate and in trust for said children, and that it was by inadvertence and mistake that such trust was not declared in the conveyance of said lot to her, and that at the time such conveyance was made, all of said children were under 21 years of age and had no knowledge of the form or effect of said conveyance.
Previous to' 1879, several of the heirs had conveyed 'their respective interests in all the above property, and in August, 1875, Henrietta A. Stoll, one of the heirs, mortgaged her interest to Isaac N. Ingersoll, who on foreclosure became the absolute owner thereof oh December 4, 1877.
In April, 1874, Ferdinand E. Dunnebacke, who in 1872 had acquired the interest of Ignatius J., one of the children of Ignatius J. deceased, commenced proceedings in the Wayne circuit court in chancery against Anna E. as having a dower interest in the Brush farm lot, and against the other heirs, except his grantor, as tenants in common owning four-fifths of the fee in all of said property, making the mortgagees parties, and praying for a partition of the property, and on the same day notice of lis pendens was filed. Personal service was obtained on all of the defendants, some of whom appeared, proofs were taken, and a decree rendered, recognizing the ownership in fee of the heirs in the lands conveyed to the widow Anna E. and that she held them in trust for the heirs.
That certain judgments were recovered against Anna E. in one of which Henrietta Stoll was a party defendant, and levies made upon their interest in all of said property. In the case in which Henrietta A. Stoll was a defendant, judgment was rendered April 24, 1876, and in the others subsequent thereto.
On May 1st, 1876, defendant Hooper levied on all the interest of AnnaE. and Henrietta A. Stoll. March 15,1877, ■defendant Noble made a levy upon all the interest of Anna E., and on June 16, 1877, defendant Christiansen levied upon all the interest of Anna E., a sale' was made thereunder, the property bid in by Christiansen and a certificate of sale made to him by the sheriff.
The bill farther alleges that the levies made and the sale to Christiansen and certificate of sale to him, throw doubts over the respective titles of the complainants, and are a cloud thereon which they ask to have removed; and for a decree that the title to lot 9 of the Beaubien farm is held by Anna E. in trust for the use and benefit of complainants- and for general relief.
The defendants demurred, and upon the same being overruled, Christiansen answered, which the others adopted, denying that it was the intent of Anna E. to take and hold lot 9 in trust, or that it was through inadvertence or mistake the trust was not declared; that he believing she was the owner of said lot endorsed paper for her, which he was' obliged to pay, and that she had used such money for the use and benefit of the estate, and denied that the court obtained jurisdiction in the Dunnebacke partition suit, and other matter not material to set forth.
The real contest in this case was narrowed down, on the facts, to the right to levy upon and sell lot 9 of the Beaubien farm, as the property of Anna E. upon the judgment recovered against her. And this question must be settled, from an inspection of the conveyance, and the testimony of Anna E., as no other evidence was given touching that matter.
An abstract of complainants’ exhibits is given in the printed record. The portion thereof relating to the deed of lot 9 is as follows, being Exhibit C. :
“ This is a deed from John T. Meldrum and wife to £ Anna E. Alterauge, executrix of the last will and testament of Ignatius J. Alterauge, deceased,’ is a warranty deed in the usual form, dated May 1, 1868, and for the consideration of $3850 conveys to her, to have and to hold to herself, her heirs and assigns forever, lot 9 north side of Congress street of the Antoine Beaubien farm, subject to a mortgage of $2000 given by Anna E. Alterauge, executrix as aforesaid, to said Meldrum for part of the purchase price. Mrs. Alterauge testified as follows:
“ I collected the money due Mr. Alterauge on accounts, notes and mortgages. I bought a lot of John T. Meldrum situate on the north side of Congress street on the A. Beaubien farm.”
Question. Eor whom or what did you intend to buy that lot; that is, for whose estate ?
Answer. Eor myself and for my family.
Q. Did you buy the lot for the estate of your husband or for anybody else ?
A. Certainly, I bought it for the estate; I paid $1850 on the lot.
Q. "With what money did you make that payment on the-lot?
A. I took that money from the estate’s money. I built a house on the lot: the money was also taken from the-estate’s, money. * * * Mr. Cullen drew the deed from Meldrum to me; he had charge of taking that deed.
Q. Did you look it over to see just how it was made ?
A. Mr. Cullen when he made something out, then he always says:' ‘Now, Mrs. Alterauge, sign this;’ I thought he would do the best for me. I found after that many times it wasn’t so; of course I didn’t know; I bought but one lot of Mr. Meldrum.”
In July, 1815, when Mrs. Alterauge was examined as witness in the partition suit, she gave similar testimony, in reference to purchasing this lot with the moneys of the estate.
When therefore it clearly appears, as it does in this case-,, that an executrix has' taken the moneys belonging to am estate, and without the knowledge or consent of the heirs or persons interested, has purchased real estate therewith,, and taken a conveyance thereof, with habenckim to herself, her heirs and assigns forever, can her creditors upon a judgment and execution issued thereon and a sale thereunder, acquire- and hold the title thereto as against the heirs of the deceased ?.' If this can be done, then the representative of an estate may so manage that his creditors shall have the benefit thereof,, and the rightful heirs be obliged to look to his bonds for protection.
The law has ever been very strict in not allowing a person who stands in a fiduciary relation to an estate, to become the owner thereof, either directly or indirectly. And it has been held that when a creditor levies upon a trust estate, of which his debtor is trustee, he will not be permitted to hold the same as against the cestui que trust, although when he levied upon the land he was ignorant of the trust. Shryock v. Waggoner 28 Penn. St. 430.
In this case the grant was to “ Anna E. Alterauge, executrix of the last will and testament of Ignatius J. Alterauge deceased.” And although the legal estate passed to Mrs. Alterauge and she could have conveyed a good title thereto, (Little v. Lesia 5 Mich. 119) yet it may admit of some question whether parties dealing with her in reference to this property would not be bound by what appears in the granting clause, to ascertain whether the premises were held in her own right or in trust for the estate.
It was urged that strong equities existed in favor of the defendant Christiansen for the reason that the money he ¡Loaned Mrs. Alterauge was used by her for the benefit of 'the estate. It is sufficient to say in answer to this, that Christiansen did not seek in the first instance a remedy against the estate. He pursued his remedy against Anna E. Alterauge and treated the loan as one made to her, and for which she, and not the estate, was liable.
In 1871, long before any of these judgments were recovered, Dunnebaeke, claiming an interest in this property through one of the heirs of Ignatius J. Alterauge, deceased, commenced proceedings for a partition of this property. Christiansen was examined as a witness in that case and testified that he knew the deceased, his widow and children; that he was familiar with the property sought to be partitioned, its situation and probable value, and that in his opinion the property could not, nor could any parcel of it, be divided into five parts without a sale. It may fairly be inferred from this that he had some knowledge that this lot was'not claimed by the widow, but that the children of the deceased had an interest therein.
A notice of the pendency of the chancery suit for a partition was filed in the register’s office for record in accordance with the provisions of Comp. L. § 5065. This, it is said, gave no notice of a trust. The object, as stated in the lis pendens, was as follows: “For the purpose of partitioning :and setting apart, either by division or by sale, and a division of the proceeds among the complainant and defendants of the hereinafter described lands and premises according to their respective titles and interests therein; the complainants’ interest being now claimed as an undivided fifth part thereof.” The statute requires the notice to set forth the title of the cause, and the general object thereof, together with a description of the lands to be affected thereby. It seems to me that this notice was full and specific as contemplated by the statute. The object which the statute has in ■view is the giving of such a notice as will enable parties to ascertain therefrom the persons and property affected by the bill with the general nature of the matters in controversy, leaving them to an examination of the court record to ascertain the details and particulars thereof. And where such a notice is given, parties are bound by what appears in the bill and proceedings thereunder.
It was also urged that the bill was multifarious, and that ;the demurrer thereto should have been sustained. In Hammontree v. Lott 40 Mich. 193, it was said that where a bill is filed by a person in possession, under the statute, to establish and quiet his title to the premises, it matters not through how many different sources, or under how many distinct and .separate instruments, defendants claim title thereto, all may be put in issue and disposed of in one ease; that if the •defendants severally claimed title to separate and distinct parcels of this land through different sources it might be •different.
After a consideration of all the matters and questions raised we are of opinion that the decree of the court below .should be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, J.
Plaintiff sues for a balance due him for services in the litigation connected with the controversy of Heath v. Waters 40 Mich. 457, formerly disposed of in this court. The defendants are the former administratrix of Elijah Waters, and two of his children and legatees. The court below found that Mr. Rogers had a meritorious claim., but that he could not recover in this action.
In this the ruling was correct. This is a suit at law, and can only be made out by a joint obligation. .The fact that several parties may have received benefit directly or indirectly from his services does not put them on a footing of joint parties or contractors. We find nothing to indicate a joint obligation or liability. The suit must be brought against some one who has expressly or impliedly become hound to pay plaintiff for his services. The children clearly, as minors, could not have incurred any obligation of that kind on which a suit in assumpsit would lie; neither could they possibly have become joint debtors with the administratrix.
While it is plain enough that Mr. Rogers should be paid, this action cannot be sustained to enforce payment.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
Plaintiff recovered judgment below against Brockway for a claim originating in goods furnished by the decedent to men employed in work on a railway belonging to Brockway. The course of business seems to have been this: Broekway had employed two men named Gibson and Aiathieson, either as agents or contractors to do work at a stipulated price per cubic yard. It was agreed that Brockway should pay the men within certain limits for work actually done. An arrangement was also made for giving orders on Mr. Bnil, the decedent, (with others,) and on the monthly settlements with the men the amount of such orders was to be deducted from their pay and paid to Bull. The pay-rolls were made out as betw -en Brockway and the men, and they settled with him, and the Bull orders were regularly deducted from their pay. Upon this there is no conflict. The action is brought on the common counts, and the judgment was rendered for the aggregate of three of these monthly balances of orders deducted from the men’s pay.
The court below confined the right of recovery — -first, to the theory that in these transactions Bro.ckway was directly liable to the men, and the goods were furnished under an arrangement that BulL should bo paid by Brock-way; or secondly, to the case of settlements, between Brockway and Bull, whereby an amount of indebtedness was recognized between them so as to be treated as an account stated.
The only questions presented by the assignments of error, which require serious consideration, relate to the substance •of these charges. It is claimed that there is no testimony which would warrant either charge.
¥e do not think the case is open, to this objection. There was testimony tending to show that the pay-rolls were all made out in the name of Brockway, and that the men received their pay monthly from him. This at any rate had a tendency to show contract relations between them, and the testimony also tended very clearly to show that Bull expected and had a right to expect payment of his bills out of the monthly deductions which Brockway had the benefit of as so much cash that would otherwise have to be paid by him to the men.
But the case established also the reception by these deductions by Brockway of the precise amount of Bull’s advances, and these fixed by the orders on which ho made them. It would be difficult to imagine any more precise way to state an account. It is also impossible for its to see why the mqneys thus detained were not. moneys had and received by Brockway for the use of Bull.
It may bo that the charge of the court was not strictly correct, but it erred if at all against plaintiff and not against defendant. A plaintiff in error cannot complain of a judgment that rests on charges too favorable for,him. Upon the testimony which was not disputed no other judgment would have been proper under any circumstances. But, as already suggested, we think even the rather limited rulings-of the court were not beyond the facts on the record.
The judgment must be affirmed with costs.
Graves, O. J. and Cooley, J. concurred. | [
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] |
Marston, J.
This action of ejectment was brought to recover possession of part of a lot of land in Bay City,' and the questions brought here ai’ose on a second trial, the defendant having paid costs and obtained a new trial under the statute.
Previous to the second and after the first trial, the defendant filed a claim to obtain compensation for improvements under Act No. 180 of the Laws of 1875, p. 207.
On the trial, upon offering evidence under this claim objection was made that this claim was not filed in time; that it should have been filed previous to the first trial. The court so held, and would not permit the claim to be filed nunc pro tunc, and upon these rulings error is alleged.
The statute requires that a copy of this claim, “'with notice of the filing thereof, shall be served on the plaintiff or his attorney, at least ten days before the first day of the term at which such cause may be tried.” Previous to the passage of this statute and the act of 1873, no such claim could have been made in this class of cases, so that a party in order to obtain the benefits of this statute must bring himself clearly within its provisions. The court should not enlarge it by construction. The effect of this claim when made is to ereate.an issue as to the value of the improvements, and this in many cases may prove to be of equal if not greater importance, than the mere question of title to the premises and much more difficult to establish or meet with counter-proofs. It may therefore admit of some doubt whether so important an issue should thus be brought in at such a stage of the case.
There is however another and still stronger reason against the defendant’s view. In actions of ejectment the party against whom judgment shall be rendered, upon payment of costs may have a new trial, as of course. If after a new trial has been obtained under this statute, new issues may be formed, and trial and judgment had thereon, a party may thus be deprived of a valuable right, as the vacation of such .judgment would be discretionary with the trial court and not a matter of right. 2 Comp. L. § 6238.
This notice must be served at least ten days before the first day of the term at which such cause may be tried. The word “may” as here used does not refer to the term at which the cause shall be tried, but the term after which the cause was at issue and at which it could have been tried. This usually would be the. first term after issue joined, and would have some reference to the buildings and improvements as they existed at the time suit was commenced.
This statute does not however in express terms limit the recovery to the value of the improvements made when the action was commenced, and if the view of the defendant is correct, he may go on and make valuable improvements on the premises, and when a second or subsequent trial is about to occur years thereafter, for the first time put in his claim and thus improve the plaintiff out of his property.
The plaintiff may file a request that the jury find and determine the value of the premises at the time of the trial,, if no buildings had been erected or improvements made. Act 180 of 1875. If therefore the defendant’s view is carried out to its full extent, he by his own act could, in effect, compel the plaintiff to abandon the premises, as he would be unable to pay the value of the improvements put on after the commencement of the suit. This we think was not the intention of the Legislature in the passage of the act referred to, and we are of opinion that the court did not err in rejecting the evidence offered.
A careful examination of the first request to charge, and of tlie charge as_ given, fails to show any -error committed upon that part of the case. The court closely followed the decision of this Court in Pratt v. Lewis 39 Mich. 7. It would be productive of very great mischief to attempt to go back of the practical construction and attempt from mere paper plats to locate premises therefrom. It is well known that where only boundary lines are surveyed, owing to inequalities in the ground and obstructions, strict accuracy cannot be obtained, and an attempt, therefrom to subdivide, on paper, the land so conveyed, into city lots and streets, will be quite likely to result in creating difficulties. "Where, however, streets have been opened and long acquiesced in, in supposed conformity to the plat, they should be accepted as fixed monuments- in locating lots or blocks contiguous thereto or fronting thereon.
There was evidence in the case that both parties claimed title from a common grantor, and evidence was also introduced showing that at the time he conveyed he was in possession of the premises. This would be sufficient if true to entitle plaintiff to maintain the action if he had a conveyance. Gamble v. Horr 40 Mich. 561; Bennett v. Horr 47 Mich. 221.
The question as to a division fence and thq effect thereof was fairly and properly submitted to the jury, and as this matter was covered by the charge it was not error to refuse the request of counsel upon the same matter.
As we discover no error the judgment must be affirmed with costs.
Coolet and Campbell'JJ., concurred.
Defendant requested, the court to charge that “Plaintiff has failed to show that defendant was in possession of the south half of lot three in block eleven, according to Parmer’s plat of Portsmouth, at the time this suit was commenced, and cannot therefore recover.”
[This was the description, as given in the declaration, of one of the parcels of land for which the action was brought.]
The trial judge said in his charge :
“ The plaintiff has described the property as lot 3 in block 11 of Parmer’s plat of Portsmouth. Parmer’s plat of Portsmouth, which is referred to, is the old plat of Portsmouth. That old plat has been introduced here in evidence. The first question is as to the location of this land, which upon this plat purports to he the south half of lot 3, of which the plaintiff claims the defendant withholds from him 23 feet on Water street, and 12$ feet along the bank of the river. Both parties derive titles to the lands and claim under the same grantor, which acknowledges and concedes 'the right of the grantor to convey. The grantor was Mr. Stevenson. In the first place you will consider whether this, as represented here, is in the locality of lot 3 of Parmer’s old plat of Portsmouth. Mr. Johnson, a surveyor, is called to testify upon that subject, and who made this plat after having the land surveyed, and he comes upon the stand and is asked whether that lot 3, according to Parmer’s map of Portsmouth, — the old map here in evidence, — embraces the south half of lot 3, — the land that Oorreon is shown to be in possession of by this survey. He tells you that, according to the width of the street and the blocks and lots, commencing at the south line or boundary of the plat, and going north, none of this would be in the south half, but a part of it would be in the north half of lot 3 ; but that all of the south half of lot 3 would be south of the south line occupied by Oorreon. And the counsel ask me to charge you that, that being the fact, this description does not cover the land actually in controversy here.
I cannot so charge you from the evidence. Mr. Johnson, if I understand his testimony, tolls you that he. has been a surveyor, and been acquainted with these lines and this plat for some 15 or 20 years; that by surveys made by him he has ascertained that the standard of measurement used in making this plat was larger than the legal standard by the proportion which he has given you, and that according to that standard this would be located as represented here. Twenty-second street, which is 100 feet north of lot 3, he takes as an established fact as being in its right position on Parmer’s plat. That being so, he finds this lot located as placed here. There is fifty feet in lot one in width; there is fifty feet in lot two; there is twenty-five feet of lot 3, and then comes the south half of that lot, and he has shown you how much of that, according to this mode of determining the location, is in the ó'ccupation of Mr. Correon. Now, if such a standard of measurement was used in actually platting the land, although the measurement as indicated in the plat, would bring the lots further south, — would bring all of them further- south (and according to this supposition it would bring all those lots further south), — yet these lots and lines are located as though that standard was right, having been adopted by the makers of this plat, and used by them, and they having established the streets and the lots by it, and the lots having been sold by the plat which was supposed to correspond with that measurement, you will have no difficulty, gentlemen, in settling this question. This has been settled by the Supreme Court upon a state of facts existing in ’ another case where the location of Twenty-second street was in controversy. If the proposition suggested here is the correct one, Twenty-second street should extend fifty feet further south, and so would every other street less the proportion down to the south line, and every street and every block and every lot would have to be changed in their boundary from Twenty-second street to the south line of this city, in what was" formerly Portsmouth. This question, as I say, has been settled by the Supreme Court in the case which has been referred to here. You will have no difficulty, gentlemen, upon this account in determining whether this is the "true location of lot 8 as supposed here by Mr. Johnson.”
Defendant requested the court to charge that
“If plaiutifE pointed out to defendant the fence he built as the true line, and defendant, not knowing to the contrary, acquiesced in this as being the true line, and both parties have actually occupied the premises up to this line for 13 or 15 years, they are bound by such conduct and plaintiff cannot recover.”
The judge charged that
“If they * * deliberately, for the purpose of settling a disputed line, agreed that where that fence was built.that was the line, and that they should respect it as the boundary line between them, then they are both bound by it if they went on afterwards and occupied, as claimed here, one on one side and the other on the other, each acquiescing in that settlement. There is no doubt about that, gentlemen, and in that case the question would arise, did these parties deliberately, in order to settle a dispute between themselves as to the true location of this line dividing the north from the south half of lot three, — did they settle upon where that fence was built ? There is some apparent discrepancy in the testimony in regard to what that fence was and how it was built. * * * Row if there was no such settlement of the division line by the understanding of the parties, they must be governed by the true line, whatever it is, unless there has been some occupancy which entitled Mr. Correon to claim the benefit of the statute of limitations, which is not pretended in this case. The longer people acquiesce in a supposed line, the stronger is the presumption that they have agreed to settle it as the true line. This, it is claimed upon the part of Mr. Correon, has been acquiesced in as the true line for a great many years. It is denied upon the part of Mr.'Yan Den Brooks that he ever acquiesced in it in any other way than that he has not taken possession. Row what was the testimony in regal’d to this supposed agreement. If I understand Mr. Correon, when he came back from fishing in 1863, a short time after Mr. Yan Den Brooks had bought this land, he found a fence there, and he inquired of Mr. Yan Den Brooks, who built it. He says, ‘I did.’ ‘Why?’ ‘Why, this is the line between us.’ That does not constitute any agreement. If Mr. Correon had said, ‘ Well, we will settle this, if you say so, as the true line,’ and Mr. Yan Den Brooks had said ‘ Yes,’ that would amount to an agreement. But Mr. Yan Den Brooks merely saying ‘ this is the line, — I put it there because this is the line,’ unless Correon acquiesced in it, unless he agreed that it should be considered and treated as the true line, so as to bind himself, he did not bind Mr. Yan Den Brooks to regard it as such. You are to consider the facts in reference to this, and determine whether there was really any deliberate settlement of this line here where the old fence was built as the true line between those separate parts of lot 3.” | [
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G-ravjcs, C. J.
In July, 1881, -one Frederick Speier «entered into a written contract with the defendant Dinan that he would erect three specified frame dwellings for Dinan and would “ well and sufficiently perform, finish and •complete all the work, included in the excavation, drain ■brick work, concreting, plastering, and all work included in and implied by mason’s specifications to plans ; also all carpenter and joiner work, iron and tin work, all plumbing and gas-fitting and painting and glazing, and all work indicated on and implied by plans and specifications for completion and entire finishing” of the buddings, “ and in strict accordance to and with the plans, specifications, conditions, «ste., furnished said contractor by W. G-. Malcomson, architect.” The contract provided that Speier should fully perform on or before the first day of November, 1881, and that Dinan' should pay therefor $4972.
It was also agreed that the round price so stipulated to be paid for the entire work and materials should be “ payable in manner following, viz., (when drains are in and brick work off::)
3881. August 18. 1. Cellars and foundation are completed, the sum of.........$500
August 18. 2. Frames up and sheaths, the sum of . . 700
September 7. 3. Roofs and cornices on, the sum of . 600
September 7. 4. Building enclosed, the sum of . . . 700
October 26. 5. Ready for lath, the sum of .... 800
•December 9. 6. Outside finished complete,building ready to plaster..........800
7. All completed and' accepted, . , . . 872 ”
There were other provisions which need not be quoted. According to one of them it was stipulated that Dinan should have $3 for each day the job should remain unfinished after November first.
The plaintiff brought assumpsit against Speier before a justice of the peace and in November, 1881, garnished JDinan as Speier’s debtor, and on the 2d of December he [Dinan] appeared before the justice and made-disclosure and! the written contract with Speier was made a part of it.. The time for completing had passed before the garnishment. On giving in his disclosure in December he stated that the-job was still unfinished, that the houses were not plastered and were not painted and that the sum behind was $1572, and that he was entitled to the $3 for every day the work-continued unfinished.
In January, 1882, he was summoned to show cause why judgment should not go against him. It appeared that' the-job was now cojnpleted. The justice rendered judgment in his favor but the circuit court reversed it with costs of both, courts.
’Whether Dinan was liable to be held or not depended'on. whether he was shown to be Speier’s debtor at the timer the proceeding was instituted. He was bound then, if at all; unless he was Speier’s debtor at that date it was not competent to hold him. His becoming debtor afterwardswould not avail. And there was no proof that a state of indebtedness existed at the time the writ was commenced,. An indebtedness might arise and might not.
Whether the job would be completed was uncertain,’ and unless it should be it did not appear that Speier would have-a right to claim anything more. It was not certain that what would be necessary to fix Dinan with' liability to pay Speier something more on the express contract would everoccur; and it was impossible to say that' a state of things-would arise in future to create a liability for anything outside the express contract on the theory of implied contract or liability.
The judgment of the justice was correct and that of the-circuit court wrong.
The judgment of the circuit court will be reversed and that of the justice affirmed, and the defendant will recover." his costs of this Court and of the circuit court.
The other Justices concurred. | [
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] |
Campbell, J.
This case comes up on error from the Superior Court of Grand Rapids, where Sligh was convicted of larceny from the person of one Leonard Tisdale, and sentenced to imprisonment in the State prison.
He was jointly informed against with one Prank Jones, but tried separately.
A motion to quash was made on the ground that the parties charged had- never had any preliminary examination, and also because the witnesses on the examination as returned by the police justice of Grand Rapids were sworn before John W. Holcomb, the assistant police justice, while the commitment-was made by John M. Harris, the police justice.
The complaint appears to have been made before Harris in February, 1880. The depositions all appear to have been taken in January, 1881, before Holcomb. But on the 25th of January, 1881, Harris certified that defendants waived further examination, and he committed them for trial.
Hnder the Police-Court Act of Grand Rapids the assistant justice is empowered to act in ease of the “ absence, inability, or disability ” of the police justice. Pub. Acts 1870, p. 70, § 12. By section 6 of the Police Court Act, the “ police court” is given exclusive jurisdiction of examinations. There is certainly some incongruity in having one justice act on depositions taken before another, but there is also difficulty under this statute in allowing one justice to act when the other is present and capable. We are inclined to think the examination should be treated as properly conducted, although both took consecutive parts in it. But inasmuch as there was an express waiver of any further examination before the police judge himself, and inasmuch as a commitment may be made where examination is waived, the difficulty suggested does not seem to arise, and the objection cannot stand.
On the trial the prosecuting attorney proposed to prove the death of Tisdale and to show by one Isaac Dement what Tisdale swore to on a former trial, and also the statement of the respondent on that trial, and that he ex]5ected to contradict that statement by other witnesses. Despondent objected that the testimony was incompetent, and that he was entitled to be confronted with the witness in person. The objection was overruled.
Before any testimony was given,, however, the witness was asked: “Will you tell this jury just what was said by Mr. Tisdale on direct and cross-examination, and the whole of it given on that trial ? ” To which the witness answered: “ I cannot do it without I can read it from my notes taken on that trial.” lie was then allowed to read his stenographic notes with no further explanation.
While the authorities are very much in conflict concerning the right to prove on a second criminal trial the testimony given by a deceased witness on a former trial, and with a good many dioía there are not many cases where the •question can be said to have been decided by authority, yet we think the prevailing opinion is that this constitutes one of the exceptions to the rule requiring witnesses in such cases to be confronted with the prisoner before the trial jury:
The exception, if justified at all, can only be maintained on the ground of necessity, and to prevent a failure of justice. The cases which sustain it on the ground that the rules of civil and criminal evidence are identical, are not, in our opinion, correct. There is no constitutional rule requiring the production of witnesses in open court in civil cases. In equity cases the prevailing practice is against it. The practice has always allowed the depositions of absent witnesses to be taken on either side in civil controversies. It cannot be claimed that this could be done under our Constitution in criminal cases. In the latter, too, a verdict cannot properly rest on a mere preponderance of conflicting evidence, but must be founded on proof which leaves no reasonable doubt of guilt. The production of witnesses in open court is one of the best means of trying their credit, and every one knows how difficult it is to judge from written testimony of the demeanor and appearance which would strike those who examined them. Still more difficult it must be to have the testimony reproduced from the memory of other persons, or from minutes that have never been corrected or compared by the witness at alL These considerations have led some very able courts and judges to the conclusion that the constitutional rule forbids secondary evidence of this kind altogether. Such was the intimation in People v. Newman 5 Hill 295; Finn v. Com. 5 Rand. 701; People v. Diaz 6 Cal. 248. The same ground is very strenuously urged in a very full and able dissenting opinion of Judge Ryland in State v. McO’Blenis 24 Mo. 402. See also 2 Evans’ Pothier pp. 200-201, 203.
It must be confessed also that although the English practice has always been to allow depositions of deceased witnesses in ordinary criminal cases, a contrary rule seems to be recognized in treason cases upon the 'ground that there the statutes provide — as they nowhere else provide — but as our Constitution provides in all cases, for confronting prisoner and witnesses on the trial. 1 Hale P. C. 306, 586; 2 Hale P. C. 286; Foster 236 et seq.; id. 328.
It is also to be remarked that the English cases usually rest the right to use the depositions of deceased witnesses on the statutes, and that cases of the use of parol evidence of what was sworn on a previous trial are not easily found in the reports. And there is certainly ground for reflection in the fact that a living witness may — as in this case — fail to' convince a jury, when the report of his testimony, to a jury who did not see him, leads to a conviction.
In reaching the conclusion sustained by most of our elementary writers as correctly admitting the testimony of a deceased witness, we do not feel that the doctrine is as well1 based on principle as is desirable.
But if admitted, it is very clear that there must be the utmost precaution taken to place it before the jury as nearly as possible as the witness, if living, would have done. The record does not show what Tisdale swore to on the first trial, but his deposition returned with the record is of very little, if any, value against any one but Jones. Thé necessity of very great caution is obvious.
We held‘in Misner v. Darling 44 Mich. 438 that stenographer’s minutes, unexplained, and not shown to be correct, could not be received to supply the testimony of a'witness not produced in court. That decision is sufficient to dispose of the present case, where no such proof was given.
The proceedings being erroneous for this reason we need not consider the objections to the charge at length. We adhere to our formerly-expressed views that it is not error to refuse specific requests if the charge as given brings out the same points clearly and definitely. In the present case the charge does not sufficiently caution the jury that the conviction of Jones was not to be considered in dealing with Sligh. We have heretofore held that such a caution should be given where defendants are charged as joint wrong-doers. People v. Stevens 47 Mich. 411. Neither do we think the jury were sufficiently cautioned in regard to the necessity of showing distinctly the complicity of Sligh in the .original taking of the stolen property from the person of Tisdale. The testimony is undisputed that Jones and not Sligh took the money, and that it was not found on Sligh. If he had it, it was received by him from Jones. The offense being statutory, and what would otherwise be petit' larceny being magnified into a State-prison offense by the • element of seizure from the person, it became very important to determine whether if Sligh was guilty at all it was of petit larceny or of the larger crime. To be guilty of the latter he must have conspired with Jones in the original talcing. If he merely aided him after the talcing was complete he was only guilty of larceny.
Under the original statute for the punishment of larceny from the person it was held that no one could be guilty of the complete offense except the actual taker, and that those who would usually be liable as principals in the second degree could only be held for simple larceny, although combining in the full design. Rex v. Innis Leach Cr. C. 9; Rex v. Murphey id. 302; Rex v. Sterne id. 531.
The more recent statutes include all persons in the same way as if it were a common-law felony. 2 Buss. Or. 132.
Our statute concerning principals and accessories is substantially like the later English statutes, and we think that where more than one person is concerned in the original guilty purpose, and is present' aiding and abetting, they are all principals. Comp. L. § 1934.
This, however, would not make one thus guilty who did nothing and had no part in procuring the original taking, and merely received the property after it had been already stolen. That would be larceny, but it would not be larceny from the person. This distinction - appears to have been disregarded and no charge was given covering the ground of the requests, while the charge actually given is too broad.
There are some similar matters to which we do not think it necessary now to refer, as they come within the same general doctrines as to the right to definite charges. In the absence of a full statement of the testimony connecting Sligh with the offense we cannot say there may not have been evidence sufficient, and therefore we cannot direct that the reversal shall be without a new trial. But as he has already been subjected to a severer punishment than would be proper in petit larceny, and there has been one disagreement, we deem it proper to say that he should not be further prosecuted without very clear proof. The judgment must be reversed and a new trial granted and tbe prisoner discharged from State Prison and remanded to the custody of the sheriff of Kent county, to be let to bail or discharged as the court below and the prosecuting authorities shall find to be in accordance with justice.
The other Justices concurred. | [
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] |
Campbell, J.
Tbe object of the bill in this case is to •compel the village of New Baltimore to resume possession •of a school house built with money bequeathed to the village “ to be used in the erection in said village of a school building, to be used as a high school, and to be suitable for that purpose, and to be known as the Hathaway school.” The will making this provision was sustained in Hatheway v. Sackett 32 Mich. 97, where the present complainant as residuary legatee sought to avoid it. In the present bill he •sues as a citizen of the village, in behalf of himself and the other inhabitants, but sets out as special reasons of grievance that he is the largest tax-payer, that he has a nephew in his family within the school ages, and that there are as many as fifty children in the village capable of entering a high school, and that the maintenance of a proper high school would in various ways suggested enhance the prosperity of the village.
The grievances set ont are, 1, that the village refuses-on his request to erect a building and maintain a high school; 2, that a building has been partly completed, not suited to a high school, but adapted for a primary school, and leased to the respondent school district in September, 1877, for ninety-nine years, and that it is used for a primary or common school, and not otherwise; 3, that all the fund has not been expended on the building, but some has been misappropriated, but how much or how is not shown.
The bill claims the lease to be invalid because the act of' the Legislature of March 22,1873 (Laws 1873, vol. 3, p. 66), is unconstitutional, for the reason that the'title says nothing about leasing, and because the Legislature' could not divert the trust.
The chief difficulty suggested in the matter of power is that the testator meant this school to be a school to be supported by tuition fees, and to receive paying pupils from other places as well as from the village, and that the district cannot lawfully establish such a school, and has not established any kind of high school properly so called.
The bill was dismissed for want of equity.
We are very strongly inclined to the opinion that if the complainant has any standing, the delay of some three years-after the lease was made and the building transferred would deprive him of any right to complain. But we do not think the bill sustainable on any ground.
In the first place the bequest to the village was not burdened with any conditions or regulations, and a desire or plan not expressed by the testator cannot interfere with the discretion which the will confers on the legatee as to-methods. And this will gave the village a discretion which cannot be interfered with by courts. Attorney General v. Soule 28 Mich. 153. The will does not confine the school to a paying school, and where the municipality is expected to establish a school, the presumption is at least, under our methods, as favorable to a free school as to any other.
•It would also be beyond the general powers of a court of chancery under its judicial powers to get up a scheme and undertake the enforcement of such a scheme specifically. If such a work is to be undertaken by the village through its ordinary jnunicipal authorities, it would probably require further legislation to vest them with the requisite means. The acceptance of a trust furnishing means to erect a building, with nothing to endow it or keep it in operation, would not under any power which has been pointed out to us as belonging to a court of equity enable such a court to compel the raising of funds or the other requisite action. Equity, when a-trust is as clearly defined as possible, cannot usually compel the trustee to assume additional personal burdens.
It is also very well settled that the power to complete and shape imperfect trusts does not belong to a court of equity as a judicial tribunal, but was in England a part of the sovereign prerogative of the crown, vested by law in the chancellor, although involving in the management the applicable forms of chancery procedure. 1 Spence 589, 590, etc.; Wheeler v. Smith 9 How. 55; Fontain v. Ravenel 17 How. 369.
The statute of charitable uses was never adopted in this State. Methodist Church v. Clark 41 Mich. 730. The legislative authority and not the judicial must be regarded as parens patrice, and if any help is needed in completing the trust or shaping its application so as to make it cai’ry out as nearly as possible the purposes of the testator, so much as is not within the discretion of the village must derive its aid from the statutes.
It has always been recognized as proper when power over a subject is given to any municipal or other body, to have such power carried out by any lawful instrumentalities within reach. Where, as is often the case, cities are given power over certain matters, it is very common and often necessary to have the immediate execution of such business confided to corporate or unincorporate agencies. The legislation of this State presents many illustrations of this, and some of them have come under consideration in this court. People v. Mahaney 13 Mich. 481; People v. Hurlbut 24 Mich. 44; Jones v. Water Com'rs 34 Mich. 273; Board of Education v. City of Detroit 30 Mich. 505: see particularly page 510, where the subject under discussion is quite analogous to the present. See also Riggs v. Board of Education 27 Mich. 262; Gray v. Forbes 5 Cl. & Finelly 356.
Whether without the act of 1873 the village could have selected the school district as its agent to keep up the school we need not inquire, as that statute gave the power to do precisely what has been done. And we cannot regard the section which furnishes this means of securing the creation and continuance of a high school as anything more than a natural supplement to the right of acceptance. It is not foreign to the title.
The leas‘e itself is very definite in providing that the building shall be used as a high school. Under our system it is common and convenient to have the various grades in one building, and we do not think the use for the mixed purpose illegal. Neither are we prepared to say that if it has not yet been found convenient to complete the building or open the higher department, the modified use in the meantime is improper. We must assume that in proper times and ways the lease will be complied with, or in default that the proper authorities will enforce their rights.
The bill was properly dismissed, and the decree must be affirmed with costs.
The other Justices concurred. | [
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McGregor, J.
This suit was commenced in circuit court, a jury trial demanded, and relief was sought under the theories of negligence and implied warranties for injuries sustained.
With a group of co-workers, plaintiff Carroll E. Jones rented several rooms in a motel from the defendants. While this group was in one of the motel rooms playing cards, the chair on which plaintiff Carroll E. Jones was seated collapsed and he injured his back in the resulting fall.
Defendants denied the allegations of liability and contended that Mrs. Keetch made daily rounds of the motel rooms for the purpose of cleaning and sweeping and that, during these rounds, she had occasion to notice loose chairs and tighten the same with tools which she carried with her. In addition, periodic inspections were made of all the motel rooms, usually about twice a year, for any deterioration or breakage of the equipment. The broken chair in question was not introduced in evidence, since it had been disposed of by the defendants, apparently without any intention of destroying it as evidence.
After plaintiffs had presented their case and rested, defendants advised the trial court that, since both defendants had testified during plaintiffs’ presentation, they had no further testimony to offer, and rested. Defense counsel moved for a directed verdict of no cause of action and the motion was granted.
On appeal, plaintiffs allege that an implied warranty of fitness for purposes intended was breached by the defendants. Piercefield v. Remington Arms Company, Inc. (1965), 375 Mich 85.
In this case we are not dealing with a product which was sold, as in Piercefield, supra, but rather with a piece of equipment, a chattel rented to the plaintiff Carroll E. Jones and other members of the public for use during their stay in a motel. We know of no Michigan case which has extended warranty of fitness into this area, and we choose not to so extend it at this time.
Plaintiffs contend further that they are entitled to jury consideration on the issue of negligence. This Court recognizes that negligence is rarely provable directly, but is a conclusion drawn from operative facts presented at trial. Barnowsky v. Helson (1891), 89 Mich 523; Patrick v. Pulte-Strang, Inc. (1967), 8 Mich App 487. Plaintiffs’ evidence showed that the chair was used in a reasonable, normal manner and that, without forewarning, the chair suddenly collapsed. Carroll E. Jones testified that he was sitting on the chair in a normal fashion, that the chair was not tilted or abused in any way, and that it suddenly collapsed.
In Muylaert v. Erickson (1969), 16 Mich App 167, Oscar F. Muylaert was injured when he fell from a ladder owned by the defendant while helping to paint defendant’s house. The ladder was destroyed shortly after the accident, precluding plaintiffs from producing it at trial and precluding any examination which might have disclosed the defect and led to a determination of whether such defect was discernible by the defendant in the exercise of reasonable care. At pages 171, 172, the Court said:
“Without deciding whether defendant destroyed the ladder for the purpose of destroying evidence, the fact is that plaintiff’s inability to produce the ladder was due to defendant’s act and this act may not operate to plaintiff’s detriment. We are thus not constrained to withdraw from the jury on the basis of insufficient evidence the question of whether defendant exercised ordinary care and prudence to render the ladder reasonably safe for plaintiff’s use.”
The present record discloses testimony by Carroll E. Jones that he informed the defendants that the chair had been broken and that he (Jones) expressed concern to the defendants about aggravation of prior back injury. The destruction of the chair thereafter by the defendants makes the language quoted above from Muylaert, supra, particularly applicable to the case at bar. We hold that plaintiffs were entitled to go to the jury on the issue of defendants’ negligence.
We have re-examined Rose v. McMahon (1968), 10 Mich App 104, cited as controlling by defendants, and find it to be inapposite. A chair in a barroom is not analogous to the ladder in Muylaert nor to the motel chair in the instant case.
Reversed and remanded for new trial on the theory of negligence. Affirmed as to the theory of implied warranty. Costs to plaintiffs.
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McGregor, J.
This case arose as the result of a rear-end automobile and bus collision which occurred November 13, 1965, in the city of East Detroit. Plaintiff automobile driver, Mr. Raleeh, appeals from a jury verdict of $1,000 claiming’ trial error and inadequacy of verdict. On a derivative action brought by plaintiff’s wife, the jury found no cause of action.
Plaintiffs claim as error the failure of the trial judge to grant a directed verdict on the issue of defendants’ negligence, and also allege that the judge erroneously interjected the issue of sudden emergency. This Court notes that no timely objection was made to the second error and it is, therefore, not considered on appeal in the absence of a miscarriage of justice. G-CR 1963, 516.2. Assuming for decisional purposes that the court failed to direct a verdict, in the light of O’Dell v. James (1970), 383 Mich 87, reversal is not warranted.
In the instant case, plaintiffs also argue that the jury verdict was grossly inadequate in light of the damages shown, citing Mosely v. Dati (1961), 363 Mich 690, and Fordon v. Bender (1961), 363 Mich 124.
Mr. Raleeh claimed medical expenses of $973 and the jury verdict was $27 over this amount. Defendants raised a legitimate factual question herein as to the cause of plaintiff’s medical damages. Defendants allege that a substantial portion of the medical expenses herein claimed were the result of an accident in which Mr. Raleeh had been injured when he jumped to grab his son who had fallen down the stairs. Defendants aptly point out that, while Mr. Raleeh may have injured his back in November, 1965, he apparently stopped seeing the doctor for these injuries around July, 1966, at which time he had little or no pain. The doctor testified that in July, 1966, Mr. Raleeh had recovered to a point that he had complete movement in his back area, which had been previously hampered; that his prognosis was good and there appeared to be no permanent damage.
Approximately one year later, in July, 1967, or 21 months after the car accident — very shortly after the accident in which Mr. Raleeh was injured with his son — he entered the hospital for back pains. The expenses stemming from this hospitalization amounted to approximately one-half of the claimed medical expenses.
Mr. Raleeh also had a claim of lost wages of approximately $2,300 which in a large part occurred after July, 1967. Again, these were seriously contested as being attributable to other causes; i.e., the accident with his son, that his high degree of absenteeism resulted from other causes, and further, that he missed practically no time at all from a second job at which he was working at this time. The testimony of Mr. Raleeh himself was that he missed something less than 19 days during the first seven months after the accident, only two days of which occurred during the first month immediately following the date of the accident. Mr. Raleeh admitted that not all these days of absence were due to the accident injuries; however, competent proof was not furnished in substantiation of those days which were claimed to be .attributable to these injuries. In addition, Mr. Raleeh claimed that his car was damaged to the extent of its value, $100.
In A’Eno v. Lowry (1962), 367 Mich 657, the jury returned a verdict for less than the claimed medical expenses, which was upheld on appeal. The plaintiff therein charged that the jury had returned a grossly inadequate verdict. The Court distinguished A’Eno from Fordon, supra, and held, in A’Eno, that there was an issue of fact as to whether plaintiff’s injuries were attributable to the negligence of the defendant or stemmed from other causes and, consequently, were not a part of the damages.
Consequently, we find that the damages shown in the instant case were of such a questionable nature that a legitimate factual question was raised, and that the jury did not return an inadequate verdict in light of the evidence shown.
The only testimony as to Mrs. Raleeh’s claimed loss of consortium was Mr. Raleeh’s unsupported statement that he was unable to perform his marital duties. There was no indication as to any loss in their marital relationship other than Mr. Raleeh’s being allegedly edgy and nervous. The jury may have inferred that there was no deterioration in the marital relationship as a result of the accident. Whitson v. Whiteley Poultry Co. (1968), 11 Mich App 598; Galvan v. Summers (1965), 375 Mich 285.
Affirmed. Costs to appellees.
All concurred. | [
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Per Curiam.
This appeal arises from the granting of defendant’s motion for summary judgment. Plaintiff Gloria Tugender was a social guest in the home of the defendant, Arthur Rosenblatt, in January of 1968. At about 11 o’clock of that evening, Mrs. Tugender left the home of the defendant and stepped upon the abutting public sidewalk. While on the public sidewalk which she claimed was icy she slipped, fell, and was injured. Gloria Tugender and her husband instituted suit against defendant in the Oakland County Circuit Court. The defendant filed a motion for summary judgment which was granted by the trial court. The trial court ruled that the law of Michigan was settled and clear that a private landowner does not owe any duty to keep the abutting public sidewalk free of ice and snow. Plaintiffs appeal and challenge this interpretation of Michigan law.
This Court is convinced that the trial court’s appraisal of defendant’s duty was correct. The general rule, of course, is that there is no common-law liability for maintenance of a sidewalk by an abutter. Grooms v. Union Guardian Trust Co. (1944), 309 Mich 437; Weider v. Goldsmith (1958), 353 Mich 339; Hughes v. City of Detroit (1953), 336 Mich 457; 82 ALR2d 995.
“In the absence of a statute or ordinance to the contrary, the general rule is that there is no duty on an adjoining owner to keep a sidewalk in repair.” Levendoski v. Geisenhaver (1965), 375 Mich 225, 227.
This Court recognized this rule of law in Berman v. LaRose (1969), 16 Mich App 55, 57. As plaintiffs recognize, the existence of an ordinance or statute does not alter the result. Grooms v. Union Guardian Trust Co., supra; Levendoski v. Geisenhaver, supra, p 227. This is true even though the injured party is a business invitee or a social guest.
“It is the generally recognized common-law rule * * # that the owner or occupant of property abutting on a public sidewalk does not, solely by reason of being an abutter, owe to the public, including invitees or business invitees of the abutter, a duty to keep the sidewalk in a safe condition.” 88 ALR2d 331, 337, 338. (Emphasis supplied.)
Affirmed. Costs to defendant. | [
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R. B. Burns, P. J.
Defendant issued plaintiff Dr. Thomas Arminski a family automobile insurance policy which covered two automobiles. The policy provided for family protection and uninsured motorist coverage. The policy states under limits of liability:
“The limit of bodily injury liability stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages, in- eluding damages for care and loss of services, arising out of bodily injury sustained by one person as the result of any one occurrence; the limit of such liability stated in the declarations as applicable to ‘each occurrence’ is, subject to the above provision respecting each person, the total limit of the company’s liability for all such damages arising out of bodily injury sustained by two or more persons as the result of any one occurrence.”
The declaration provides under the family protection clause for bodily injuries a limit of liability of $10,000 for each person and $20,000 for each accident.
Plaintiff Mark Arminski was a passenger in an automobile with no uninsured motorist coverage which was involved in an accident with a second vehicle which was uninsured. Plaintiffs instituted an action for a declaratory judgment asking the court to determine that defendant’s policy provided coverage of $20,000 for Mark’s injuries resulting from the accident with an uninsured motorist. It was conceded by defendant’s counsel that Mark’s injuries exceeded $20,000.
The trial court distinguished the present case from Horr v. Detroit Automobile Inter-Insurance Exchange (1967), 379 Mich 562, which involved two companies with similar limitations. In the Horr case the Court held that liability was limited to $10,000 for both companies and that each company was liable for its pro rata share. In distinguishing the Horr case the trial court said:
“In that case, there were two insurers. In this case, there is one insurer charging two premiums for this coverage.”
The trial court held the defendant liable in the present case for $20,000. Defendant appeals.
The precise problem has not been decided in Michigan although other states throughout the country have faced the issue. The courts who have decided this issue are not in agreement. Some courts, as the trial court in this case, have pyramided the coverage on the theory that the insured paid multiple premiums. Other courts have held that a literal reading of the insurance policy limited the liability to the amount stated on the face of the policy.
The Michigan Supreme Court in the Horr case gave a literal meaning to the language in the policy. A literal reading of the policy in the present case limits the defendant’s liability to $10,000 coverage for each person.
Reversed and remanded to the circuit court for an entry of a judgment in accordance with this opinion. Costs to defendant.
All concurred.
Bryant v. State Farm Mutual Automobile Insurance Co. (1965), 205 Va 897 (140 SE2d 817); Smith v. Pacific Automobile Insurance Co. (1965), 240 Or 167 (400 P2d 512); Safeco Insurance Company of America v. Robey (CA 8, 1968), 399 F2d 330; Government Employees Insurance Company v. Sweet (Fla, 1966), 186 So 2d 95; Sellers v. United States Fidelity & Guaranty Company (Fla, 1966), 185 So 2d 689.
Pacific Indemnity Company v. Thompson (1960), 56 Wash 2d 715 (355 P2d 12); Polland v. Allstate Insurance Co. (1966), 25 App Div 2d 16 (266 NYS2d 286); Hilton v. Citizens Insurance Co. of New Jersey (Fla App, 1967), 201 So 2d 904. | [
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Levin, P. J.
The question presented is whether an indigent parolee is entitled to have counsel provided at state expense to represent him at a parole revocation hearing.
Joseph H. Warren was sentenced in 1960 to serve 2 to 15 years for breaking and entering in the nighttime. He was paroled and in July, 1968 returned to prison charged with parole violation. He appeared before the parole board, claimed that he was indigent and requested the appointment of counsel to represent him at the statutory hearing on the parole violation charges. The request was denied. Following the hearing the board ordered that he be incarcerated for a minimum period of 18 months before his status would again be reviewed.
Upon Warren’s petition, our Court issued an order requiring the parole board to show cause why a writ of superintending control should not issue granting him the relief requested in his petition.
The pertinent statute provided:
“Whenever a parole prisoner is accused of a violation of his parole * * * he shall be entitled to a fair and impartial hearing of such charges. * * * Upon such hearing such parole prisoner shall he allowed to be heard by counsel of his own choice, at Ms own expense, and may defend himself.” MCLA §791.240 (Stat Ann 1954 Rev § 28.2310). (Emphasis supplied.)
In Saunders v. Department of Corrections, Parole Board (1968), 15 Mich App 183, leave to appeal denied (1969), 381 Mich 818, cert. den. (1970), 396 US 1025 (90 S Ct 602, 24 L Ed 2d 520), we held that the Due Process Clause does not require the appointment of counsel at public expense to represent indigent parolees at parole revocation hearings. An additional issue had been raised relating to the Equal Protection of the Laws Clause, but we said that it was unnecessary to consider the issue on the merits because even if it was decided that the provision of our statute permitting representation by an attorney when the parolee has sufficient financial resources to hire one unconstitutionally discriminates against an indigent person, such a decision would not benefit Saunders. We said, “We find it unnecessary to consider this issue raised on its merits. Whether this Court held such portion of the statute constitutional or unconstitutional would afford no relief to plaintiff”.
Judges of our Court have declared that we are not hound by the decisions of our brothers and that one panel of our Court is, therefore, free to decide a question differently than it has already been decided by a panel to which the question has previously been presented.
We think there are compelling reasons to reexamine the issue presented in Saunders. The Michigan legislature has declared that parolees may be represented by counsel at parole revocation hearings. Thus, even if the Due Process Clause does not require that parolees in every jurisdiction be permitted to appear with counsel, the question remains whether Michigan denies indigent parolees equal protection of the laws when it permits parolees who can afford counsel to be represented by counsel and refuses to assign counsel for the indigent.
A decision on the merits cannot be avoided by assuming that a finding of unconstitutionality would not profit the parolee. Although a declaration of unconstitutionality could be viewed as depriving both nonindigent and indigent parolees of the right to counsel, that has not been the path that has been followed by the Supreme Court of the United States in dealing with similar questions.
In Griffin v. Illinois (1956), 351 US 12, 18 (76 S Ct 585, 100 L Ed 891), the Court acknowledged that:
“It is true that a state is not required by the Federal constitution to provide appellate courts or a right to appellate review at all.”
Nevertheless, it held that it was a denial of due process and of equal protection for a state to deny appellate review solely on account of a defendant’s inability to pay for a transcript. The remedy fashioned was not to eliminate appellate review altogether but rather to require the state to provide adequate and effective appellate review to indigent defendants; Similarly, in Douglas v. California (1963), 372 US 353 (83 S Ct 814, 9 L Ed 2d 811), reh. den. 373 US 905 (83 S Ct 1288, 10 L Ed 2d 200), the Court held that appellate counsel must be provided an indigent person where a man of means is entitled to be represented upon appeal by a lawyer.
In Saunders we concluded (p 185):
_ “Plaintiff herein appeared before an administrative board under a statutory procedure. Parole revocation proceedings are not ‘judicial proceedings’ requiring counsel under due process. Jones v. Rivers (CA 4, 1964), 338 F2d 862; Rose v. Haskins ([CA 6, 1968], 388 F2d 91, 97); Wingo v. Lyons (Ky 1968), 432 SW2d 821.”
None of the three cases so cited in Saunders dealt with the issue in terms of a possible denial of equal protection of the laws. They hold, rather, that it is not a denial of due process to revoke a parole without a hearing (Rose v. Haskins, supra), that due process does not require that counsel he provided an indigent parolee (Jones v. Rivers, supra), and that a parole revocation hearing is not a critical stage requiring the appointment of counsel (Wingo v. Lyons, supra).
The equal protection question was not squarely presented in Jones v. Rivers. That case arose under a Federal parole statute; the Equal Protection of the Laws Clause of the Fourteenth Amendment is a limitation on state, not Federal, action. In both Rose and Wingo, which did arise under state statutes, the issue was whether the statutory provisions concerning parole revocation satisfied minimal requirements of due process; there was no claim that poor parolees were accorded a different process than those with financial means.
In our research we have found not a single case, other than Saunders, arising under a statute such as ours (expressly permitting or interpreted as permitting parolees to appear with counsel) where the question decided was whether it is a denial of equal protection to refuse to provide counsel at state expense to indigent parolees.
Procedural claims advanced by parolees have, as in the cases relied on in Saunders, been largely analyzed in terms of whether parolees have rights, or just privileges, whether the due process clause provides any protection to parolees and whether revocation is a “critical stage.” Little attention has been given to the issue before us of whether the disparity in the representation of nonindigent and indigent parolees constitutes an invidious, and, therefore, unconstitutional discrimination against the poor.
Two judicial opinions which have played a leading role in the development of the law concerning the right of counsel in parole revocation proceedings are Jones v. Rivers, supra, and Hyser v. Reed (1963), 115 App DC 254 (318 F2d 225). Jones in turn is based on Hyser. And Hyser was influenced by earlier opinions of the United States Supreme Court, particularly Escoe v. Zerbst (1935), 295 US 490, 493 (55 S Ct 818, 79 L Ed 1566). There the United States Supreme Court held that it would not violate the constitution to revoke probation without a hearing.
The force of the majority opinion in Hyser v. Reed, and of Jones which followed it, and of the state court decisions based on Hyser and Jones, have been largely undermined by Mempa v. Rhay (1967), 389 US 128 (88 S Ct 254, 19 L Ed 2d 336), where the United States Supreme Court held that when a con victed person is placed on probation and imposition of sentence is deferred, counsel must be offered and provided indigents at a hearing to consider revocation of probation and sentencing. Mempa manifestly modifies, perhaps overrules sub silentio, Escoe v. Zerbst; if there is a constitutional right to counsel at a probation revocation hearing, then clearly there must be a right to a hearing,
In Jones v. Rivers, supra, there are three opinions. In the lead opinion, unequivocably signed by only one judge (Judge Boreman), the Court reviews earlier United States Court of Appeals decisions concerning parole revocation hearings under Federal statutes. In Hyser v. Reed, supra, the Court sat en banc. There are four separate opinions in addition to the majority opinion. The majority held that neither a Federal statute, which provides that a retaken prisoner shall be given an opportunity to appear before the board, nor the Due Process Clause requires the board to allow cross-examination of its sources of information, discovery of its files or a right of compulsory process, and that an indigent prisoner is not entitled to be furnished with counsel even though the Court had earlier construed the statute as allowing a parolee who could afford to pay a lawyer’s fee to appear with counsel (see footnote 14).
In Jones v. Rivers, supra, which, like Hyser v. Reed, was decided before Mempa v. Rhay, supra, the issue of the right to counsel was presented in a case involving the construction of the parole statute applicable in the District of Columbia. While the lead opinion in Jones v. Rivers aligns itself conceptually with the majority opinion in Hyser v. Reed, it is apparent that the Court was also heavily influenced by its recognition of how incongruous it would appear if a decision of the Fourth Circuit construed the District of Columbia statute differently than it would clearly (in the light of Hyser v. Reed) be construed by the Court of Appeals for the District of Columbia. One of the judges (judge Haynsworth) separately concurred, saying that, in a case where the absence of counsel would impair the “fairness” of the revocation hearing, counsel might be required, but not in a “routine case,” such as the one there at hand, where the parolee pleads guilty to the parole violation charges. The third judge (Judge Sobeloff) would require that counsel be provided indigents whenever there is a factual dispute as to the violation charges, but agreed that, since Jones had pled guilty, the failure to have provided him counsel did not deprive him of constitutional rights.
Although in both Hyser v. Reed and Jones v. Rivers the question of the indigent’s right to the appointment of counsel arose in the context of a statute which had been construed as conferring a right of appearance with counsel by those who could afford to hire a lawyer, in neither the majority opinion in Hyser nor the lead opinion in Jones did the court address itself to the issue of possible invidious discrimination in allowing parolees of means to appear with counsel and not providing counsel for indigent parolees, and even the concurring opinions in Jones v. Rivers dealt with the question more in terms of the function of counsel than in terms of possible discrimination.
It is understandable that when probationers did not have a constitutional right to a hearing, as held in Escoe v. Zerbst, supra, courts would be reluctant to recognize greater rights in parolees and would conclude that what need not be permitted need not be provided, that if a probation can be revoked without a hearing, so too can a parole; and that since this could constitutionally be done without a hearing, to take the next step and conclude that counsel need not be assigned indigent parolees. This analysis is seriously undermined by the decision in Mempa v. Rlnay, and also by other decisions of the United States Supreme Court which have held that stages even before charges are filed, e.g., lineup and custodial interrogation, are critical, and, therefore, counsel must he assigned indigents.
Mempa v. Rhay arose under Washington’s indeterminate sentence law. In that state the sentencing judge decides whether to place the convicted person on probation, but does not set either the maximum or minimum sentence of those sent to prison. The maximum is established by law, the minimum by the parole board. The hearing at which Mempa was denied counsel was a hearing to determine the trial court’s recommendation to the parole board concerning the minimum sentence. If, as held in Mem,pa, a hearing to determine a recommendation by a judge to a parole board concerning sentence length is critical, requiring the appointment of counsel, it is somewhat difficult to understand why it is not just as important to provide counsel when the issue is whether a parole should be revoked and the parolee incarcerated, especially in cases where there is a factual dispute as to whether or not there has been a violation of parole.
However, most courts, including Wingo v. Lyons (relied on in Saunders), that have considered the question have held Mempa inapplicable to parole revocation proceedings. We have found but one case where Mempa was read differently. In Commonwealth v. Tinson (1969), 433 Pa 328 (249 A2d 549), the Supreme Court of Pennsylvania concluded, on the authority of Mempa, that parole revocation is a critical stage and parolees henceforth must be given an opportunity to appear with counsel.
In Perry v. Williard (1967), 247 Or 145 (427 P2d 1020), — a pr e-Mempa case — the Oregon Supreme Court held, on the authority of Griffin v. Illinois, supra, that counsel must be provided an indigent in probation revocation proceedings even though the defendant had previously been sentenced. The Court considered the opinions in Jones v. Rivers and Hyser v. Reed and expressly aligned itself with the views of Judges Bazelon and Edgerton, in dissent in Hyser v. Reed, who would provide indigent parolees with counsel. The Oregon Supreme Court declared (p 149) :
“We are aware that a proceeding to review performance on probation is not a criminal trial, but that distinction does not justify the denial of equal protection of the laws when liberty is concerned.”
The Federal parole board administratively adopted the view of the Court of Appeals of the District of Columbia that under the Federal statute those financially able to retain counsel were entitled to appear with counsel at a revocation hearing. In Earnest v. Willingham (CA10, 1969), 406 F2d 681, the United States Court of Appeals for the Tenth Circuit declared that in Hyser v. Reed the Court of Appeals for the District of Columbia “did not face the issue [of discrimination against indigent parolees] which is squarely presented to us and which we must decide”. The Court ruled that the Federal government could no longer permit discrimination against those who could not afford to retain counsel (pp 683, 684):
“To pose the question is to answer it, for Griffin and its progeny have made it clear beyond doubt that where liberty is at stake a state may not grant to one even a nonconstitutional statutory right such as here involved and deny it to another because of poverty. And it goes without saying that a Federal agency may not consistently with Fifth Amendment due process, do that which a state is forbidden to do by Fourteenth Amendment due process.”
In Puchalski v. New Jersey State Parole Board (1969), 104 NJ Super 294 (250 A2d 19), the superior court of New Jersey, in an instructive opinion, held that equal protection does not require that counsel be assigned at public expense to assist a prisoner in making a plea for parole. The court noted that in Griffin and Douglas the United States Supreme Court rested its decisions requiring that free transcripts and assigned appellate counsel be provided to indigent appellants on both the equal protection and due process clauses of the Fourteenth Amendment without stating the standards by which these provisions were applied. The Court observed (pp 298, 299):
“Certainly not all disadvantages of the poor are denials of equal protection. Nor do all burdens under which the poor labor because of their poverty constitute denials of due process of law. The question becomes, under both the Equal Protection and Due Process Clauses, whether the particular ‘right’ (or ‘privilege’) is of such fundamental importance that it should not be denied anyone because of lack of funds. See ‘Discrimination Against the Poor and the Fourteenth Amendment,’ 81 Harv L Rev 435, 437, 438 (1967); Gardner v. California ([1969], 393 US 367 [89 S Ct 580, 21 L Ed 2d 601]).
“The question is, therefore, whether the aid of counsel in seeking a parole is of such importance that the state should be required to furnish counsel for this purpose to those who cannot afford to pay for it.” (Emphasis supplied.)
The New Jersey Court concluded that since a plea for parole does not ordinarily present a fact issue to be resolved, and there is no adjudication of guilt or innocence, counsel would be of limited assistance and, therefore, was not of such fundamental importance that equal protection requires that free counsel be assigned indigents. The Court went on, however, to say, in dictum (p 301):
“[i]n revocation proceedings — both as to probation and parole — there are usually specific factual allegations concerning the conduct of the probationer or parolee said to constitute a violation of probation or parole. An attorney could prove most useful, even essential in defending against such allegations of misconduct — presenting contrary evidence or cross-examining adverse witnesses if necessary.” (Emphasis supplied.)
There are disputed factual issues in the case at hand. Warren was charged with failing to notify his parole agent of a change of address, failing to furnish written reports once a month, and failing to be off the street by 11 p.m. unless his employment required that he be out later. He pled not guilty to each of those charges. The parole board found him guilty after a hearing at which he was unrepresented despite his request for counsel.
The analysis of the Tenth Circuit and of the New Jersey Court is similar to that of Judges Haynsworth and Sobeloff in Jones v. Rivers, who also would have the right of the indigent parolee to counsel turn on the importance of counsel in the particular proceeding — Haynsworth on whether the absence of counsel impairs the fairness of the proceedings ; Sobeloff on whether there is a factual dispute. In our opinion their analyses are essentially correct. Where, as here, there is a factual dispute, counsel is of fundamental importance, the absence of counsel impairs the fairness of the proceedings, the stage is critical, and the refusal to appoint counsel for indigent parolees is, therefore, a denial of equal protection of the laws.
We recognize that counsel might be of assistance even in a case where the parole violation is admitted. An advocate might succeed in dissuading the parole board from revoking parole or in otherwise ameliorating the length or place of the renewed incarceration. To decide this case, it is not, however, necessary to express an opinion whether the denial of counsel denies equal protection in a case where his function might be limited to a plea to discretion. To decide that question would require a better understanding of the role and possible effectiveness of counsel in such a case than we are now in a position to make either from the record presented or based on our own personal knowledge. Having in mind the reservations implicit in the opinions we rely on, we hesitate to now define the indigent parolee’s right to counsel more broadly than to say that there is such a right where there is a factual dispute.
Like the Earnest v. Willingham Court, we are aware that our parole board may lack express authority or funds with which to provide counsel for indigent parolees. We, nevertheless, say, with that Court, that where constitutional rights are involved the courts are not impotent to take whatever steps are necessary to protect constitutional guarantees. Within ten days of our mandate the parole board shall either provide Warren with counsel and schedule a new hearing on the parole violation charges, to be held within 30 days, or the attorney general shall file an alternative proposal for the implementation of this decision.
There is an additional issue which requires discussion. The parole board advised Warren that with special good time the maximum expiration date of his sentence is March 16, 1970 and, with regular good time, April 16, 1972. Warren contends these dates are inaccurate and the parole board responds that they were correctly computed and suggests as a possible explanation for the differing views concerning expiration dates that good time may have been forfeited as a penalty for parole violation. This, of coarse, presents a factual issue, one which we would not hesitate to consider and decide, as we have in the past. To the extent the record is inadequate, it could be supplemented by requesting a more specific response from the parole board and a precise calculation of the good time allowed and of any good time forfeited.
However, since there must be another hearing on the issue whether Warren’s parole should be revoked, at which Warren is represented by counsel, the facts in regard to his claim that his sentence has already expired and that his maximum expiration dates have been incorrectly computed can be developed at the hearing.
An appropriate writ of superintending control shall issue if necessary.
Bronson, J., concurred.
This statutory provision was repealed by PA 1968, No 192, which also reenacted as CL 1948, § 791.240a (Stat Ann 1970 Cum Supp § 28.2310[1]) the substance of the quoted language but eliminated the “at his own expense” clause. The reenacted provision in relevant part now provides that “the accused prisoner shall be given an opportunity to appear personally or with counsel and answer to the charges placed against him.” See Hoffman v. Alaska (Alaska, 1965), 404 P2d 644, construing an Alaska statute providing that in probation revocation proceedings the defendant has “the right to be represented by counsel” as requiring the appointment of- counsel for indigents.
The denial of leave to appeal or of certiorari imparts no expression of opinion upon the merits of the case. See Frishett v. State Farm Mutual Automobile Insurance Company (1967), 378 Mich 733.
Contrast People v. Braziel (1969), 17 Mich App 411.
Hackett v. Ferndale City Clerk (1965), 1 Mich App 6; Buscaino v. Rhodes (1969), 20 Mich App 329, 333 (Gillis, J.); People v. Barker (1969), 18 Mich App 544, 553 (Levin, J.). Compare People v. LaRoe (1969), 18 Mich App 262, with People v. Totty (1968), 10 Mich App 462.
We are aware that a failure to follow our own decisions creates precedential uncertainty. Nevertheless, most persons would agree that litigants should not be barred from challenging any precedent. The question is thus how, not whether, our decisions can be challenged in our Court. We have informally considered the practices of other jurisdictions: en banc hearings, certification of questions to the Supreme Court and appeal as of right to the Supreme Court when a dissenting opinion is filed. Each technique has its advantages and disadvantages. Some, or perhaps all, would require rule-making by the Supreme Court. As to en banc hearings, the time consumed in deciding whether to convene our court en banc, and in hearing en banc cases (including, for a number of the members of our Court, traveling to the place of hearing) and preparing, circulating and considering the completed opinions might prove unwarranted in view of the work load of the Court and the availability of review by the Supreme Court to resolve conflicts.
Similarly, see Lane v. Brown (1956), 372 US 477 (83 S Ct 768, 9 L Ed 2d 892); Burns v. Ohio (1959), 360 US 252 (79 S Ct 1164, 3 L Ed 2d 1209).
The Kentucky statute (KES 439.440), construed in Wingo v. Lyons, provides for a hearing before the parole board whenever a parolee is returned to prison, but is silent as to whether the parolee may appear with counsel.
Cf. Beal v. Turner (1969), 22 Utah 2d 418 (454 P2d 624); State v. LeVier (1969), 203 Kan 626 (455 P2d 534); People, ex rel. Smith, v. Deegan (1969), 32 App Div 2d 940 (303 NYS2d 789).
See, generally, Notes, Freedom and Eehabilitat'ion in Parole Revocation Hearings, 72 Yale LJ 368 (1962); Parole Status and Privilege Concept, Duke LJ 139 (1969).
We recognize that the United States Supreme Court has held that discrimination may be so unjustifiable as to violate due process and that the Federal courts have not hesitated to relieve against such discrimination even though there is no equal protection clause restraining Federal action. See Bolling v. Sharpe (1954), 347 US 497, 499 (74 S Ct 693, 98 L Ed 884); Schneider v. Rusk (1964), 377 US 163 (84 S Ct 1187, 12 L Ed 2d 218); Fernandez v. Meier (CA 9, 1969), 408 F2d 974; Miller v. United States (CA 9, 1967), 388 F2d 973, 976, 977. See Earnest v. Willingham (CA 10, 1969), 406 F2d 681, discussed infra.
In Lawson v. Coiner (D W Va, 1968), 291 F Supp 79, relied on by our Court in Saunders, the prisoner contended that (p 81) “he was denied his right to appointed counsel at the parole revocation hearing in violation of the Sixth Amendment as applied through the Due Process Clause of the Fourteenth Amendment.” Under West Virginia law the parolee “and his counsel” are entitled to a hearing on parole violation charges. The United States District Court held that parole revocation is not a critical stage and that indigents do not have a right to the appointment of assigned counsel. The equal protection question was neither adverted to nor discussed in the opinion.
In 21 States the statute regarding parole revocation does not expressly require a hearing. In 20 States there is a statutory right to a hearing, but no express statutory right to appear with counsel. In two States the statute specifically precludes representation by counsel, and in one State the statute provides that no hearing shall be held.
In State v. Boggs (1955), 49 Del (10 Terry) 277 (114 A2d 663), the court construed its statute, under which the returned parolee is to be given an opportunity of appearing before the board, as conferring a right to appear with counsel. Similarly, Warden of Maryland Penitentiary v. Palumbo (1957), 214 Md 407 (135 A2d 439). Contrast Mottram v. State (Me S Ct, 1967), 232 A2d 908.
Six States (Alabama, Code of Alabama, 1958, Title 42, § 12; Florida Stats Ann § 947.23; Louisiana Rev Stats Ann § 15.574.9; Montana Rev Code, 1947, §§ 94-9835; West Virginia Code, § 62-12-19; New Jersey Stats Ann § 2A: 168-4), like Michigan, authorize representation by counsel at a statutory hearing.
There are surprisingly few cases interpreting these statutory provisions.
See, e.g., Rose v. Haskins (CA 6, 1968), 388 F2d 91, and cases cited in footnote 12.
Pertinent is the following observation: “While one on parole is not completely free, being theoretically in legal custody, there is still a vast difference between a state of such restricted freedom and actual imprisonment.” Jones v. Rivers, p 862 (Sobeloff, J.).
See Ferguson v. Skrupa (1963), 372 US 726, 732 (83 S Ct 1028, 10 L Ed 2d 93); Douglas v. California (1963), 372 US 353, 356 (83 S Ct 814, 9 L Ed 2d 811), reh. den. 373 US 905 (83 S Ct 1288, 10 L Ed 2d 200).
See Robinson v. Cox (1966), 77 NM 55 (419 P2d 253); Johnson v. Stuckey (1969), 203 Kan 253 (453 P2d 35); Rose v. Haskins (CA 6, 1968), 388 F2d 91; Richardson v. Markley (CA 7, 1965), 339 F2d 967; Williams v. Dunbar (CA 9, 1967), 377 F2d 505; Lawson v. Coiner, supra, fn. 8. In these cases the parolee did not claim that he had suffered discrimination because of indigency but rather that due process required procedures that had not been followed. These claims were in each instance rejected in part on the authority of Jones and Hyser.
In Escoe v. Zerbst the applicable statute provided that a probationer arrested by a parole officer shall be taken before the court which may revoke the probation and impose any sentence that might originally have been imposed. Escoe had been placed on probation, arrested on a charge of probation violation and transported to prison without being brought before the court. The United States Supreme Court ruled that the requirement that the arrested probationer be brought before the court was mandatory and that he was entitled to a “hearing,” but (p 493) “not a trial in any strict or formal sense — rather, an inquiry so set in its range to the needs of the case as to justify the conclusion that discretion had not been abused by the failure of the inquisitor to carry the probe deeper.”
The statute applicable in the District of Columbia (DC Code, § 24-206) provided that when a parolee “has been retaken under a warrant issued by the board of parole, he shall be given an opportunity to appear before the board.” The United States Court of Appeals for the District of Columbia held that under this statute the parolee had the right to be represented by counsel of his own choice and employment (Fleming v. Tate [1946], 81 App DC 205 [156 F2d 848]). The same Court [Robbins v. Reed [1957] 106 App DC 1951 [269 F2d 242]) similarly construed the comparable Federal statute applicable to Federal prisoners generally outside the District of Columbia. (18 USC, § 4207.) The right thus recognized could be availed of only by those who had the financial means to exercise it.
In Hyser v. Reed the Court of Appeals for the District of Columbia construed the Federal parole statute generally applicable outside the District of Columbia. Both that statute and the statute applicable in the District are alike in relevant part; see footnote 14.
“Thus it would seem presumptuous for this court to undertake tb lay down requirements for the governance of the District of Columbia parole board which are at variance with those laid down by the Court of Appeals of the District of Columbia.” Jones v. Rivers, p 875 (Boreman, J.).
Judge Haynsworth, speaking for the Court in Boddie v. Weakley (CA 4, 1966), 356 F2d 242, 243, in an opinion also signed by Judge Boreman, described Jones v. Miners as holding only that “a District of Columbia prisoner is not entitled to the services of appointed counsel in a routine parole revocation hearing”. (Emphasis supplied.) He again spoke of a requirement of “fundamental fairness”. The prisoner in that case had, however, waived appointment of counsel and no relief was granted him. Similarly, in Gaskins v. Kennedy (CA 4, 1965), 350 F2d 311, the Court carefully described its limited holding in Jones v. Rivers, noting the qualifications in the two concurring opinions.
United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149).
Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974).
While the traditional view is that parole is not part of the criminal adjudicatory process (see eases cited in footnote 11), more recent decisions suggest that the artificial designation of certain proceedings as “administrative” will not withstand judicial scrutiny where the challenged tribunal has the power to incarcerate the accused. See In re Gault (1967), 387 US 1 (87 S Ct 1428, 18 L Ed 2d 527).
The Washington rules of criminal procedure require the trial court to sentence those convicted persons not placed on probation to the maximum term provided by law for the offense of which they are found guilty (Washington Revised Code, § 9.95.010). The actual determination of the time to be served is made by the Board of Prison Terms and Paroles within six months after the prisoner is admitted to prison (Washington Revised Code, § 9.95.040). The trial judge is required by a statute to furnish the parole board with a recommendation as to the length of time to be served (Washington Revised Code, § 9.95.030). The Supreme Court was advised that these recommendations are accorded great weight by the board (389 US 135).
We are mindful of the peculiar status of the paroled prisoner. Technically he occupies a different place in the law than the probationer — the principal difference being that he is subject to supervision from an administrative agency, while probation is generally within the province of the trial court. Yet when the parolee and the probationer are accused of violations of their conditional status, the differences between them assume insignificant proportions.
Of paramount concern to both of them is the impending loss of their liberty. It simply is not reasonable to suggest that in the face of this common threat to a constitutionally protected interest— liberty — the parolee should be denied procedural safeguards now freely available to the probationer.
In Lane v. Department of Corrections, Parole Board (1970), 383 Mich 50, 61, the Michigan Supreme Court recently recognized the similarity between the sentencing powers of the trial courts and the discretionary powers of the parole board:
“The trial court possesses the discretionary right to determine minimum sentences and, within the statutes, the parole board possesses the same discretion in determining .the length of parole.” (Emphasis supplied.) This correspondence serves to emphasize the incongruity of refusing to apply to parole revocation procedures the constitutional guarantees which accompany deferred sentencing.
In a number of cases it has been held that the ambit of Mempa is to be confined to proceedings for the revocation of probation in cases where sentencing has been deferred. Beal v. Turner (1969), 22 Utah 2d 418 (454 P2d 624); Williams v. Patterson (CA 10, 1968), 389 F2d 374; Johnson v. Stricker (1969), 203 Kan 253 (453 P2d 35).
“The point is that counsel is required at the hearing before the parole board to insure that that hearing is constitutionally valid. The fact that courts have a limited power of review of parole board proceedings makes the need for counsel at the parole hearing all the more important. The recommitment hearing determined whether or not appellant would be returned to prison. There can be no question that a proceeding at which a determination of that kind was made was a ‘critical stage’.” (Emphasis by the Court.) 249 A2d 552.
It appears that the Pennsylvania legislature responded by requiring the public defender to appear and represent those unable to obtain legal counsel because of insufficient funds at both probation and parole proceedings and revocations thereof. See Commonwealth, ex rel. Patterson, v. Pennsylvania Board of Probation and Parole (1969), 215 Pa Super 532 (258 A2d 693).
Many courts (see fn. 23) distinguish Mempa on the ground that there the defendant had not been sentenced, a factor mentioned by the Supreme Court in requiring counsel.
The Oregon Supreme Court expressly recognized and rejected this possible distinction in this pr e-Mempa case.
Similarly, see Hoffman v. Alaska (Alaska, 1965), 404 P2d 644; Hewett v. North Carolina (CA 4, 1969), 415 F2d 1316.
See footnote 7.
Cf. Miller v. Department of Treasury, Revenue Division (1969), 18 Mich App 145, 170, 171 (Levin, J., dissenting); see, also, footnote 32.
Compare Warden of Maryland Penitentiary v. Palumbo (1957), 214 Md 407 (135 A2d 439, 442).
It appears from the record in this case that a somewhat different procedure is followed by the Michigan parole board in violation hearings depending on whether or not the parolee is represented by counsel. Whether these differences significantly affect the fairness of the hearing does not appear. Despite exhortation from this Court, the parole board has never seen fit formally to promulgate and adopt rules and regulations regarding its procedures and to publish them in the manner provided by law. See Lane v. Department of Corrections, Parole Board (1968), 14 Mich App 557, 564.
In Coiner v. United States (CA 10, 1969), 409 F2d 853, the United States Court of Appeals appeared to limit its holding in Earnest v. Willingham to eases where there is a factual dispute. In that ease the parolee admitted violation of parole; it was held that the failure to appoint counsel in such a ease did not constitute a violation of the parolee’s constitutional rights. See, also, Wilkerson v. Patterson (DC Colo, 1969), 303 F Supp 665.
“The law does not undertake to redress all imbalances between rich and poor, but it can be said that when it is alleged and denied that the retaken prisoner has violated the conditions of his parole, and representation by retained counsel is permitted, this advantage should not be denied solely because of poverty.” Jones v. Rivers, supra, p 876 (Sobeloff, J.).
See footnote 22.
Similarly, see the opinion of Judge Skelly Wright in Hyser v. Reed, supra, p 261.
In Petition of Finley (1969), — Mont — (460 P2d 267), the Supreme Court of Montana dismissed a petition for the appointment of counsel upon being informed by the Montana defender project that the parole board had “after meeting with him, decided to grant hearings in all revocation cases and to permit indigent persons to be represented at such hearings by the defender project.” See, also, footnote 24.
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Per Curiam.
Defendant was convicted by a jury of armed robbery and assault with intent to do great bodily harm less than murder. MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797); MCLA § 750.84 (Stat Ann 1962 Rev § 28.279). None of defendant’s allegations of error have merit. A careful review of the briefs and records reveals no error.
Affirmed. | [
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Per Curiam.
This is an action, in equity, to determine the respective property interests of the plaintiffs, Tony P. Sokolowski and Juliana Sokolowski, who contracted to have a house built, defendant Norman Stroebel, builder, and defendant Peoples Savings & Loan, who financed the project. Plaintiffs and defendant Stroebel entered into an agreement for the construction of a house on plaintiffs’ lot. Stroebel, lacking capital, applied to Peoples for a loan. It was agreed that a loan of $23,550 would be approved if Stroebel could get plaintiffs to deed their lot to Peoples as security for advancements to Stroebel. Thereafter, plaintiffs executed a warranty deed to Peoples, who recorded it on March 17, 1965. Plaintiffs and Stroebel agreed that the house when completed would have a value of $31,360, including the lot valued at $6,500, and that the cost of construction would be $24,860. Upon completion, the lot was to be reconveyed to plaintiffs by Stroebel. The building was to conform to set plans and specifications and a copy of these requirements was sent to Peoples. Stroebel started construction and Peoples advanced the building costs. There was a deviation both in materials and workmanship by Stroebel. After Peoples had advanced the full $23,550 and Stroebel had defaulted, the Stroebel-Peoples contract was rescinded. The record indicates that plaintiffs’ first direct oral complaint to Peoples concerning the poor workmanship was during* July, 1965. Copies of complaint letters addressed to Stroebel were forwarded to Peoples during* the last stages of construction. On August 1, 1965, plaintiffs moved into the almost completed house. Plaintiffs commenced this action seeking* a determination that the deed to Peoples was null and void on the grounds of nondelivery and failure of consideration, and a money judgment in the amount of $20,000 based upon the failure of Peoples to require conformity with the plans and specifications, to enforce satisfactory workmanship by Stroebel and to complete the construction of the residence.
The trial court held there was a valid title transfer to Peoples and through construction of the two contracts, determined that Peoples did not owe plaintiff a duty to supervise. Judgment was for defendants subject to a vendor’s lien in favor of plaintiffs for the $6,500 lot value. Plaintiffs were granted a judgment for $7,000 against defendant Stroebel, a bankrupt. The court denied plaintiffs’ petition for a new trial based upon an affidavit of a witness who allegedly notified an officer of Peoples that the materials and workmanship were inadequate and that the job was underbid. The court held this information was cumulative and would not change either of his findings or the judgment. Plaintiffs appeal and defendant Peoples cross-appeals.
This Court is to determine whether there was a valid transfer of legal title and ownership from plaintiffs to Peoples, whether Peoples owed plaintiffs a duty to supervise the construction, and whether the denial of plaintiffs’ petition for a new trial was justified.
On the surface, the two contracts expressed a very workable plan. If it were properly carried out, all parties would be satisfied. Unfortunately, Stroebel did not comply with the plans and specifications and became a bankrupt. Because of this, plaintiffs are unable to successfully collect from Stroebel for negligent construction or for their deed which he does not have. Peoples cannot recover their cash advancements for the same reason. As the trial court stated, “This law suit, in essence, is a contest as to where a loss should fall between two relatively innocent parties”.
It is the historic function of equity to give such relief as justice and good conscience require. It is the province of equity to afford full relief and to protect all rights. Barnard v. Huff (1930), 252 Mich 258, 264; Ehinger v. Fiske (1933), 261 Mich 240, 245. Equity molds its relief according to the character of each case. Seifert v. Keating (1955), 344 Mich 456; Farrell v. Nutter (1961), 362 Mich 639.
At the request of Stroebel, plaintiffs deeded their property to Peoples in the form of a warranty deed with no restrictions. Plaintiffs had no contract with Peoples. It is clear that the entire transaction was a security transaction and was understood to be such by all concerned. There was no agreement between plaintiffs and Peoples concerning redelivery of the deed. Any return was to be made by Stroebel under a separate contract. The trial court correctly found that a valid delivery of the deed from plaintiffs through Stroebel to Peoples had been effected, and was subject only to the written agreement between Peoples and Stroebel, and the equitable interests of the plaintiffs.
At this point, plaintiffs have unintentionally lost their lot valued at $6,500 and Peoples, although they have plaintiffs’ deed, still stand to lose most of the $23,550 advanced to Stroebel. It is evident, in this case, that the trial court fully recognized the equities involved, the possible losses and the requirements of justice.
The court, in an honest effort to return the parties, as nearly as possible, to status quo, impressed a vendor’s lien in favor of plaintiffs on the basis of Lavin v. Lynch (1918), 203 Mich 143, and Paternoster v. Van Meaghen (1941), 298 Mich 274.
It is clear from the record that plaintiffs contracted with Stroebel to build them a house; how it was built was controlled by their contract. Peoples, in a contract distinct and for a different purpose, agreed to advance construction costs to Stroebel. Under these circumstances, the court properly held there was no duty to plaintiffs, implied or otherwise, intended, or arising from the contracts as written to supervise the building of the house. Peoples only interest was to advance the funds and protect their investment. Stroebel’s negligence cannot be imputed to Peoples.
All parties agree that Stroebel violated the provisions in the plans and specifications. An affidavit from a witness to this effect in plaintiffs’ motion for a new trial does not change this fact. Peoples had no contractual duty to supervise construction for the benefit of plaintiffs. For this reason the affidavit is, as the court held, cumulative and insufficient to alter or change the court’s decision. No abuse of discretion was committed by the court in denying plaintiffs’ motion.
The court’s finding that Peoples should convey the property to plaintiffs subject to a lien for the full amount of money invested, or as an alternative, Peoples should pay plaintiffs for the lot and if neither disposition is feasible to sell both house and lot at public sale with a split of the proceeds is in harmony with the principles of equity and the proofs presented.
Prom an examination of this record, we are persuaded that the decision rendered is in accordance with the just rights of the parties. We are not convinced that this court would have ruled differently, Wells v. Wells (1951), 330 Mich 448; Ethridge v. Ethridge (1948), 322 Mich 578; or that the findings made are clearly erroneous; GrCR 1963, 517.1; Tann v. Allied Van Lines, Inc. (1966), 5 Mich App 309; State Bank of Sandusky v. Boddy (1969), 17 Mich App 466.
Affirmed. No costs, neither party prevailing on appeal.
“That the vendor of real estate who takes no security for the payment of the purchase price has an equitable lien for such purchase money upon the lands so sold has long been the established rule.” | [
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Holbrook, P. J.
This case involves a claimed easement of a trail road traversing plaintiff’s land to defendants’ land. The litigants own parcels of land which adjoin each other. Defendants’ land lies north and east of plaintiff’s property. There is a 50-or-more-year-old trail road that enters from the south end of plaintiff’s club property travelling northeasterly across a bridge and creek to defendants’ land, thence north across defendants’ property turning westerly near the north boundary back onto plaintiff’s northwest property. Prom 1956 until commencement of this action the parties agreed to the mutual use of the road across each other’s property for purposes of access. Plaintiff built a new access road into its northwest property and no longer needed the trail road. Thereafter, an attempt was made to block defendants’ use of the trail road by locking a road gate located at the south line of plaintiff’s land. Defendants, having no other access to their property, broke the lock and entered. Plaintiff started this action for trespass damages and for permanent injunction against defendants’ use of the road. Plaintiff contends the road it shut off is a private road and that defendants have no right to travel over it to their property. Defendants contend: (1) it was a public road, (2) they had gained a permanent easement by adverse possession, (3) they owned an easement over the trail road by necessity, and (4) that the agreement between the parties and the resulting uses to which the trail road were put, together with the acts and conduct of the parties, now estops plaintiff from denying the defendants the use of the trail road.
The learned trial judge, after a full trial, determined that the trail road was not a public road and that the defendants had failed to prove an easement by adverse possession. No appeal is taken from these rulings. The court further determined that defendants had established an easement in the trail road by necessity and also found that equitable estoppel was applicable to plaintiff and entered judgment for defendants. Plaintiff appeals both findings.
Plaintiff raises two issues on appeal: (1) Was there sufficient, credible evidence to establish an easement by necessity over the trail road? (2) Was equitable estoppel properly applied under the facts in this case?
I.
Plaintiff purchased the northwest quarter of section 25, Sylvan Township, Osceola County, Michigan, from Edgar Wise in 1956. It was over this piece of property that the trail road was located and used by defendants for ingress and egress to their land described as the south half of the southwest quarter of section 24, of the same township. Defendants purchased their 80 acres in 1951 from Hoag and Gwin, who had previously purchased the land in 1941. Title to both the 160- and 80-acre pieces of land at one time was in the name of a common grantor.
Hoag and Gwin, while they owned the present Rose property, improved the trail road by having a bridge built over the Doc and Tom Creek on the 160-acre piece of land. At the time of the building of the bridge Mr. Wise, the owner, was present and gave his permission. After the defendants purchased the property in 1951, they kept up the trail road and in 1953 made major repairs to the bridge and dragged the road on occasion as needed.
The defendants and Hoag and G-win used this trail road for ingress and egress to the 80 acres continuously from 1941 until shortly before this suit was started. This use could be termed as one of permission or it could be more rightly construed to be an easement by necessity. There was testimony by one of the early settlers that at one time many years ago there was a cabin on the present Rose property and that the trail road in question was the only road to that property.
The trial court ruled that at the time of the commencement of this action this trail road was the only road to defendants’ home and land. That there was an easement by necessity under the facts in this case is obvious.
Some time after the suit was commenced the plaintiff made some kind of an offer to defendants of a right-of-way 33 feet wide and three-fourths of a mile long whereby it claimed that defendants could gain access to their land from the north.
The leading case in this area of easement by necessity is Waubun Beach Association v. Wilson (1936), 274 Mich 598. Plaintiff points out that this case holds that a right-of-way of necessity continues until some other lawful way has been acquired and the fact that a former way of necessity continues to be the most convenient way will not prevent its extinguishment when it ceases to be absolutely necessary. Plaintiff maintains that the proposed grant of a 33-foot strip by plaintiff to defendants allowing access from the north fulfills this obligation. The complaint was filed February 14, 1968. No mention or offer of the 33-foot strip was made until August 8, 1968, in reply to an affirmative defense. The Waubun case also holds that the rights of the re spective parties are to be determined on the facts as they stood when the suit was brought or complaint issued. To hold that one may sue first and obtain his cause of action afterwards is to set aside a rule of long standing in this state. When the complaint was filed in this case, the trail road was truly the only means of access to defendants’ property. According to the rule in Waubun, after suit is commenced, it is too late to suggest or provide an alternative access route. The Waubun case is also distinguishable for other reasons. In Waubun there was in existence an alternate road across other premises which was open and used. In the instant case there is no alternate road in existence, no dedication or. grant, only an offer. Waubun holds that a right-of-way of necessity continues until some other lawful way has been acquired. At the time of this suit, and as far as can be determined, still, there is no lawful alternate means of entry. A mere offer to grant or sell a right-of-way over other land is not material. Moore v. White (1909), 159 Mich 460.
Waubun defines a way of necessity on p 608 as follows:
“* * * a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use. The basis of a way by prescription is adverse possession and use and the basis of a way by necessity is the implication of permissive use.”
The trial court found that the trail road was in fact the only right-of-way to defendants’ property; and that requiring defendants to build a road from the north was not feasible and is, “in fact”, no right at all.
As to issue 1, the trial judge’s determination of the law is correct and his findings of fact are sup ported by sufficient and credible evidence in the record.
II.
The vital principle of equitable estoppel is that he who by his language or conduct leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Holt v. Stofflet (1953), 338 Mich 115; Frosh v. Sportsman’s Showcase, Incorporated (1966), 4 Mich App 408.
The president of plaintiff Birch Forest Club testified that an agreement existed concerning the mutual use of the road, vis.:
“Q. And what was the subject matter of the agreement that was discussed with Mr. Rose?
“A. Well, the subject matter was his using ours and we would use his. We at that time didn’t have any other access to the north end of our property— or, the west end of our property.
“Q. And did you continue for a period of time to go up through that way into your property?
“A. We did for several years.
“Q. And he came in through your property?
“A. Correct.”
Plaintiff’s president also testified in answer to a question posed by the court:
“The Court: * * * you had no need then for the original agreement which you made with Mr. Rose after you built the new road. Is that correct?
“Witness: Correct.”
The record clearly indicates the existence of a mutual oral agreement concerning the use of the trail road.
In the case of Bentley v. Cam (1960), 362 Mich 78, 82, 84 it is stated in part as follows:
“ ‘A person who knows the facts, and who, without objection permits another to make improvements or expenditures on, or in connection with, his property, or in derogation of his rights under a claim of title or right, will be estopped to deny such title or right to the prejudice of the other. 31 CJS, Estoppel, § 94, p 314; Denler & Denler Land Co. v. Eby (1936), 277 Mich 360; Johnson v. Hogan (1909), 158 Mich 635 (37 LRA NS 889).’
# #
“This Court has adhered to the view that title to real estate may not, in the absence of fraud not shown here, rest on estoppel. Bruun v. Hansen (1937), 281 Mich 362; Nowlin Lumber Co. v. Wilson (1899), 119 Mich 406; Huyck v. Bailey (1894), 100 Mich 223; Wilson v. Muskegon, G. R. & I. R. Co. (1903), 132 Mich 469; McVannel v. Pure Oil Co. (1933), 262 Mich 518.”
What are the facts governing equitable estoppel in this case? Plaintiff and defendants agreed verbally to use the trail road over their properties for their joint benefit. In this oral agreement there was no mention of how long the arrangement would continue. Mr. Bose did not rely upon this agreement to his detriment, for it was his position and belief that he had a right to use the road without the agreement. It is true that Mr. Bose thought his rights were based upon the fact that the trail road was a public road instead of the correct position that he had an easement over the road by necessity. After the arrangement between plaintiff and defendants, defendants did not alter their manner of maintaining the trail road. They commenced their work on the road in 1951. In 1953 they made major repairs to the bridge, thereafter until 1960 when plaintiff rebuilt the bridge, defendants’ work on the road was more or less routine. Mr. Bose testified:
“Q. Did you continue after that time, after 1960, to assist in maintaining the road?
“A. Generally speaking, no. If we found some soft spots here and there, we might have entered club — the portion of the road on club property and filled it slightly, here and there. I had a little physical exercise myself — I had one of these switch cutters where I would cut the weeds on the sides here and again, just to make a little more clearance. But generally speaking, I wouldn’t consider that maintenance.”
We are constrained to conclude that there was no fraud present, or misrepresentations made by plaintiff to defendants concerning the agreement, that the expenditures upon and maintenance of the trail road by defendants after their arrangement with plaintiff did not differ from those accomplished before the agreement. Such maintenance by defendants was a continuance of their past practice. We further conclude that the expenditures made by the defendants on the trail road after 1956 were not substantial and actually were considerably smaller than those expended between 1951 and 1956.
Chancery cases are reviewed de novo, and we do not disturb the findings of the trial judge unless, after an examination of the entire record, we are persuaded that we would have arrived at a different ruling had we been in the position of the trial judge. Mousseau v. Walker (1959), 356 Mich 373; Wells v. Wells (1951), 330 Mich 448; and Ethridge v. Ethridge (1948), 322 Mich 578. As to the ruling of the trial court on equitable estoppel we are persuaded that we would have come to a different conclusion.
All of the actions of the parties concerning the trail road including the plaintiff and its predecessors in title, and defendants and their predecessors in title,- were consistent with the establishment of an easement by necessity. This determination of the trial judge was eminently fair and proper. We find no fraud on the part of plaintiff or no reliance upon the oral agreement by defendants to their detriment. As to issue 2 we rule that equitable estoppel was not present in this case.
Affirmed as modified. Costs to defendants.
All concurred. | [
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] |
T. M. Burns, P. J.
This appeal arises ont of an accident which occurred on July 26, 1965. Plaintiff was injured when he either ran into defendant’s car or was struck by defendant’s car on a public street in Pontiac, Michigan, while riding a bicycle.
At that time, defendant was insured by Allstate Insurance Co. On July 27, 1965, defendant telephoned Allstate’s office in Southfield and reported the accident. Allstate then set up a file and assigned it to an investigator. Upon completion of the investigation, the file was turned over to an Allstate negotiator, Harold Stevens, in Southfield.
Negotiations between Mr. Stevens and plaintiff’s attorney continued through August 17, 1966. Allstate denied liability hut assigned a $500 nuisance value to the claim. This offer was rejected by the plaintiff.
The file was subsequently transferred to Allstate’s central office in Detroit on December 13,1966.
Suit was started in Oakland County Circuit Court on December 27, 1967. Defendant was personally served on January 5,1968.
Upon receipt of the summons and complaint, defendant’s wife called the insurance salesman who had sold them the policy at the Sears store in Pontiac. The salesman instructed her to mail the pleadings to their Southfield office. These were mailed either by her or her father-in-law. The envelope was never returned.
Defendant heard nothing more about the matter until December, 1968, when he received a letter from plaintiff’s attorney advising him that a default judgment had been rendered against him and garnishee defendant, Allstate, for $3,118 plus $71 in costs, with, interest at five percent.
Allstate asserts that its file does not contain the pleadings and it denies that it had notice of the suit. It also denies having in its file a letter which plaintiff’s attorney allegedly sent to Mr. Stevens on December 27, 1967 advising him of commencement of the suit. Allstate does not deny, however, that Mr. Stevens could have received the letter.
At the hearing on the motion to set aside the default, Mr. Stevens was not called to testify although he was still in Allstate’s employ.
Allstate claims that its first notice of the judgment came when it was served with a writ of garnishment in December of 1968. Default was taken on February 1,1968. Default judgment was entered on October 9,1968.
On February 14, 1969, defendant filed a motion to set aside the default judgment alleging lack of knowledge of the suit until November, 1968, and asserting an affirmative defense of contributory negligence on the part of plaintiff.
A hearing was held before the Honorable Philip Pratt who denied the motion. Judge Pratt stated that defendant might have had a good and valid defense but the facts remained that there was at least notice to an agent of the insurer, that the pleadings were properly served and that an additional letter was sent notifying the insurer of commencement of suit. Judge Pratt felt that plaintiffs did everything that they were required to do and that he would be abusing his discretion by setting aside the default judgment.
The sole issue on appeal is whether the trial court abused its discretion in denying defendants’ motion to set aside the default judgment.
GCR 1963, 520.4, allows a trial court to set aside a default judgment in accordance with Rule 528, and upon a showing of a meritorious defense. Subrule 528.3 provides in part:
“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, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under subrule 527.2; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”
In alleging abuse of discretion by the trial judge, defendant initially relies on Bednarsh v. Winshall (1961), 364 Mich 113. In that case defendant appealed a default judgment which was based on a claim of money due in assumpsit. The Supreme Court held, in reversing the lower court, that affidavits filed by defendant presented a serious question of fact as to whether defendant did or did not owe the amount for which judgment was taken. Further, the default occurred because there was a change of defense attorneys with resultant confusion which was seized upon with undue haste by plaintiff. Thus, Avith the combination of a possible meritorious defense and plaintiffs’ precipitate action, the Supreme Court felt compelled to set aside the default and judgment.
Yet here, as plaintiff points out, there was no changing of lawyers by defendants nor was there any undue haste since the default judgment was entered eight months after the entry of the default.
Defendant also relies on McDonough v. General Motors Corporation (1967), 6 Mich App 239, where a wrongful death action was commenced against General Motors and Unit Crane and Shovel Corporation. Default judgment was subsequently entered against Unit Crane, who appealed. It appears that the default arose because Unit Crane’s insurer, Travelers Insurance Company, had misfiled this matter. An affidavit included in the motion for relief from judgment indicated that the derrick involved in the accident was not manufactured by defendant Unit Crane Co., but rather by another company.
Because of the fact that a default judgment was rendered against Unit Crane in the amount of $125,-000 when Unit Crane was not a proper party to the lawsuit, this Court was compelled to reverse.
Defendant contends that Walters v. Arenac Circuit Judge (1966), 377 Mich 37, presents a factual situation virtually indistinguishable from the case at bar. In that case, a default order was entered against defendant which was subsequently set aside by the lower court. The Supreme Court, in affirming, was decidedly split; three signed the Court’s opinion, two concurred in result, and three dissented. Justice O’Hara, writing for the Court, however, captures the current trend in the law. At pages 46, 47 of Walters, Justice O’Hara says:
“The doctor averred he did what any reasonably prudent person would do under the circumstances when he was personally served. He turned the ‘papers’ over to his insurance company. We do not consider him obligated to call daily to see whether the insurer did what it had contracted and accepted a premium to do. We find no neglect on his part disclosed by the record before us.
“The culpable negligence was that of the involved insurer. The question is then whether that negligence of the unnamed defendant liability insurer, should be imputed to and be conclusive upon the defendant doctor.
“We recognize that in the realities of this situation, irrespective of the named defendant, the real defendant, to the extent of the policy provisions, was the insurer. This conclusion is record-supported by the fact that when counsel received the term calendar showing the named doctor-defendant to be in default, he communicated not with the doctor but with his insurer. It seems an inescapable conclusion that the insurer directed the communicating counsel to appear and answer.
“On the merits of the main case, the doctor-defendant may have been blameless beyond question. He may have been in legal dimension answerable. The question is not before us. It has not been meritoriously litigated under our system of determination of that issue.
“The trend of our jurisprudence is toward meritorious determination of issues. The complexities of our economic system placed the named defendant-doctor in the position of having no way to reach trial on the merits because his insurer was negligent. The money judgment, if such resulted, might have to be paid in full or in part by the insurer. Absent doing violence to the rules of the jurisprudential game, we think the doctor should be entitled to his day in court.
“By this holding we would not be understood to dilute the well-settled law of this jurisdiction that the neglect of a personally served defendant, nor that of his counsel, may not ordinarily be grounds for setting aside a default regularly entered. See White v. Sadler, supra, at p 522.
“However, plaintiffs, too, who proceeded in the prescribed manner should not be penalized by rea son of the insurer’s negligence. Having concluded that the insurer selected and retained the doctor’s counsel, we conclude it will likewise be obligated to pay the counsel fees and costs arising out of the litigation.
“We conclude that the circuit court did not abuse its discretion in setting aside the default.”
Although we agree with the defendant that the “trend of our jurisprudence is towards meritorious determination of issues” (Walters, supra, p 47), we conclude, given the facts and circumstances here presented, that the trial court did not abuse its discretion in refusing to set aside the default judgment. See Hartman v. Roberts-Walby Enterprises, Incorporated (1969), 17 Mich App 724, 726.
In deciding as we do, we consider the words of Justice O’Hara’s opinion in Walters, supra, at p 47 to be crucial:
“We approved in Crew v. Zabowsky, 357 Mich 606, 610, the language in Kirn v. Ioor, 266 Mich 335, 338:
“ ‘It is long-settled textbook law, sustained by abundant decisions in this Court and elsewhere that, in cases within jurisdiction of the trial court, its ruling on application for an order setting aside a judgment or decree is strictly discretionary and will not be disturbed by an appellate court, unless a clear instance of abuse of discretion is shown.’
“The scope of review of an order setting aside only a default is certainly no greater than that of an order setting aside a judgment or decree.”
Finding no clear abuse of discretion in the trial court’s refusal to set aside the default judgment, we affirm.
Affirmed. Costs to plaintiff.
All concurred. | [
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Zahra, J.
Plaintiff Jacqueline Rinas, personal representative of the Estate of John B. Rinas, IV, deceased, instituted and dismissed two actions before bringing a third action against the same defendants, Diane Mercer, personal representative of the estate of David Quiroz, Jr.; Earl Hargrove, Jr.; Celadon Trucking; JG’s Lounge; and Southern Dreams, alleging the same claims asserted in the prior actions. When plaintiff dismissed her second action, the trial court entered an order of dismissal stating that the dismissal was “without prejudice and without costs to any party.” Thereafter, the trial court granted defendants’ motions for summary disposition and dismissed plaintiff’s third action, concluding that plaintiff’s claims were barred by the doctrine of res judicata, because the dismissal of the second action constituted an adjudication on the merits under MCR 2.504(A)(1). We are called upon to interpret MCR 2.504(A). We conclude that under the facts presented in this case, subrule (A)(1) does not bar plaintiffs third action. Subrale (A)(1) provides that a second dismissal of an action constitutes an adjudication on the merits only when the dismissal is accomplished by filing a notice of dismissal without an order of the court and on the payment of costs. Here, the second action was dismissed by an order of the court expressly providing that the dismissal of plaintiffs claims was without prejudice and without costs. Such a dismissal is not a dismissal pursuant to subrule (A)(1). We reverse and remand for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURE
On March 17, 1999, plaintiff filed a complaint against defendants. Plaintiff brought claims of negligence against the estate of Quiroz, negligence and gross negligence against Hargrove and Celadon Trucking Service, and dramshop act claims against JG’s Lounge and Southern Dreams. When plaintiff realized that she had filed her complaint before Mercer had been appointed personal representative of the estate of Quiroz, she submitted to the trial court an order of dismissal “without prejudice and without costs to any party.” The trial court entered this order of dismissal. Plaintiff later filed a second complaint against the same defendants that asserted claims identical to the first complaint. This time, plaintiff properly named Mercer as the personal representative of the estate of Quiroz. However, when plaintiff failed to serve all defendants with a copy of the second complaint before the expiration of the summons, plaintiff again submitted to the trial court an order of dismissal “without prejudice and without costs to any party.” The trial court again accepted and entered plaintiff’s order of dismissal.
On January 12, 2000, plaintiff filed a third complaint against defendants, alleging claims identical to the first two complaints. On July 7, 2000, the trial court entered a notice of default against JG’s Lounge for evading service and failing to answer plaintiff’s third complaint. Defendants Mercer, Hargrove, Celadon Trucking Service, and Southern Dreams moved for summary disposition under MCR 2.116(C)(7), arguing that, under MCR 2.504(A)(1), plaintiff’s second voluntary dismissal constituted an adjudication on the merits and barred plaintiff from bringing another action under the doctrine of res judicata. Plaintiff opposed the motions for summary disposition and moved for relief from the prior orders of dismissal under MCR 2.612(A). In August 2000, the trial court denied plaintiff’s motion for relief from the prior orders, and granted defendants’ motions for summary disposition, reasoning that dismissal of plaintiffs second action constituted an adjudication on the merits under MCR 2.504(A)(1). The trial court then entered orders dismissing, with prejudice, plaintiffs claims against defendants Mercer, Hargrove, Celadon Trucking Service, and Southern Dreams. The trial court later entered an order denying plaintiffs motion for a default judgment against JG’s Lounge and dismissing plaintiff’s claims against JG’s Lounge for the same reason it had dismissed plaintiff’s claims against the other defendants. Plaintiff appeals as of right.
n. ANALYSIS
A. STANDARD OF REVIEW
The trial court granted summary disposition for defendants Mercer, Hargrove, Celadon Trucking Service, and Southern Dreams under MCR 2.116(C)(7) after determining that plaintiff’s claims were barred under the doctrine of res judicata. The trial court also dismissed the claims against JG’s Lounge under the doctrine of res judicata.
This Court reviews a trial court’s decision on a motion for summary disposition pursuant to MCR 2.116(C)(7) de novo to determine whether the moving party was entitled to judgment as a matter of law. The applicability of the doctrine of res judicata is a question of law that is also reviewed de novo. [Stoudemire v Stoudemire, 248 Mich App 325, 332; 639 NW2d 274 (2001) (citations omitted).]
“Similarly, interpretation of a court rule, like a matter of statutory interpretation, is a question of law that this Court reviews de novo.” CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich 549, 553; 640 NW2d 256 (2002).
B. PLAINTIFF’S SECOND VOLUNTARY DISMISSAL DID NOT ACT AS AN ADJUDICATION ON THE MERITS UNDER MCR 2.504(A)(1)
Plaintiff argues that the trial court erred in dismissing her claims against defendants, because dismissal of her second action did not constitute an adjudication on the merits under MCR 2.504(A)(1). Plaintiff argues that the second action was not dismissed “without an order of the court and on the payment of costs,” as set forth in the subrule (A)(1)(a). We agree. In addressing plaintiffs argument, we must interpret MCR 2.504(A). Our Supreme Court has articulated the proper method for interpreting a court rule:
“When called on to construe a court rule, this Court applies the legal principles that govern the construction and application of statutes. McAuley v General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). Accordingly, we begin with the plain language of the court rule. When that language is unambiguous, we must enforce the meaning expressed, without further judicial construction or interpretation. See Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). Similarly, common words must be understood to have their everyday, plain meaning. See MCL 8.3a; see also Perez v Keeler Brass Co, 461 Mich 602, 609; 608 NW2d 45 (2000).” [CAM Constr, supra at 554, quoting Grievance Administrator v Underwood, 462 Mich 188, 193-194; 612 NW2d 116 (2000).]
MCR 2.504(A)(1) provides:
Subject to the provisions of MCR 2.420 and MCR 3.501(E), an action may be dismissed by the plaintiff without an order of the court and on the payment of costs
(a) by filing a notice of dismissal before service by the adverse party of an answer or of a motion under MCR 2.116, whichever first occurs; or
(b) by filing a stipulation of dismissal signed by all the parties.
Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a dismissal under subrule (A)(1)(a) operates as an adjudication on the merits when filed by a plaintiff who has previously dismissed an action in any court based on or including the same claim.
Pursuant to the language of subrule (A)(1), a plaintiff’s dismissal of claims previously asserted and dismissed constitutes an adjudication on the merits only when it is a dismissal under subrule (A)(1)(a). Sub-rule (A)(1)(a) provides, in pertinent part, that “an action may be dismissed by the plaintiff without an order of the court and on payment of costs by filing a notice of dismissal . . . .” (Emphasis added.) Here, plaintiff’s second action was not dismissed by plaintiff “without an order of the court and on payment of costs,” as set forth in subrule (A)(1)(a). Our conclusion is not altered by use of the permissive term “may” in this subsection of the rule. Mandatory language could not be used in this rule because it addresses voluntary, rather than mandatory, dismissals of actions. Stated differently, a plaintiff may or may not dismiss a suit voluntarily — a plaintiff is never required to dismiss a suit voluntarily. To the extent the plaintiff seeks to effectuate a voluntary dismissal, it is only a dismissal pursuant to subrule (A)(1)(a) if it is accomplished “without an order of the court and on payment of costs by filing a notice of dismissal ”
We also find unpersuasive defendants’ argument that, because the trial court entered this order of dismissal without conducting a hearing and without requiring plaintiff to file a motion for dismissal, the entry of the order by the trial court should be deemed an administrative function that does not preclude the res judicata effect of subrule (A)(1)(a). Subrule (A)(1)(a) does not provide that an action may be dismissed by court order as long as there was no motion and hearing before the court. Instead, the rule expressly provides that the dismissal under subrule (A)(1)(a) be accomplished without an order of the court. Plaintiff submitted to the court an order of voluntary dismissal that expressly provided the dismissal was without prejudice and without payment of costs. The trial court accepted plaintiff’s proposed order and dismissed the suit on the terms plainly expressed in the order — without prejudice and without payment of costs to any party. When a dismissal is pursuant to subrule (A)(1)(a), the trial court does not enter an order. Rather, the dismissal is effectuated by the filing of a notice of dismissal through the clerk of the court.
Plaintiff’s second dismissal was not a dismissal under subrule (A)(1)(a). Dismissal of plaintiff’s second action falls squarely under MCR 2.504(A)(2), which provides, “[e]xcept as provided in subrule (A)(1), an action may not be dismissed at the plaintiffs request except by order of the court on terms and conditions the court deems proper.” A dismissal under subrule (A)(2) is without prejudice unless the order specifies otherwise. MCR 2.504(A)(2)(b). A dismissal under subrule (A)(2) does not operate as an adjudication on the merits pursuant to subrule (A)(1).
We recognize that subrule (A)(1) is inartfully worded and difficult to comprehend. Still, a court rule, like a statute or a contract, may not be declared ambiguous or void merely because its meaning is difficult to discern. Where, as here, the language of a court rule leads to a single reasonable interpretation, courts are required to implement the court rule as written. Colucci v McMillin, 256 Mich App 88, 94; 662 NW2d 87 (2003).
We further recognize that this court rule lacks effectiveness, at best. As a general matter, courts operate through written orders. MCR 2.602(A); Tiedman v Tiedman, 400 Mich 571, 576; 255 NW2d 632 (1977). Most practitioners dismiss an action by submitting an order of dismissal to the court. We also recognize that a plaintiff would rarely consent to pay undetermined costs to a party or parties who have not been served as a condition precedent to the privilege of voluntarily dismissing an action by notice. Nonetheless, the fact that the effectiveness of a court rule is diminished by the enforcement of the plain meaning of that rule does not justify modification of the rule by judicial fiat.
Reversed and remanded. We do not retain jurisdiction.
Schuette, J., concurred.
Plaintiff alleged that Celadon Trucking Service was vicariously liable for Hargrove’s negligence and gross negligence.
Formerly MCL 436.22, repealed by 1998 PA 58.
As a condition of maintaining a dramshop action, plaintiff was required to “name and retain” the alleged intoxicated person until the litigation is concluded. MCL 436.22(6), repealed by 1998 PA 58; Green v Wilson, 455 Mich 342, 353; 565 NW2d 813 (1997). In this case, plaintiff named Mercer, as personal representative of the estate of Quiroz, as the alleged intoxicated person in her initial complaint. But because Mercer had not yet been appointed as personal representative when plaintiff filed her complaint, the alleged intoxicated person was not properly named in plaintiff’s first complaint.
A voluntary dismissal by stipulation is governed by MCR 2.504(A)(1)(b), and a voluntary dismissal by order of the court is governed by MCR 2.504(A)(2).
Further, the notice of dismissal pursuant to subrule (A)(1)(a) must include a commitment by plaintiff to pay as yet undetermined costs.
We are unaware of any court rule or statute that requires dismissal of actions be accomplished only by court order. Significantly, subrule (A)(1) expressly states that a dismissal may be obtained without an order of the court by filing a notice of dismissal.
In light of our disposition above, we need not address plaintiff’s other arguments on appeal. | [
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Per Curiam.
Plaintiff appeals by leave granted an opinion and order of the Worker’s Compensation Appellate Commission (WCAC) affirming a magistrate’s decision to deny plaintiff’s claim for benefits as untimely. We affirm.
This matter arises out of a tragic accident at plaintiff’s brother’s (defendant Terry Mercier’s) sawmill, where plaintiff worked. On July 12, 1988, plaintiff brought her eleven-year-old son to work. While her son attempted to remove debris from underneath an “edger” saw, he raised his head and was struck by the saw blade. He died from the resulting injuries. Plaintiff witnessed all of this, blamed herself for her son’s death, and understandably suffered great emotional difficulties from this tragedy. On February 12, 1991, plaintiff filed a worker’s compensation claim, seeking to recover wage loss and medical expenses for an alleged mental disability resulting from the accident. She contended that she was unable to file her claim within the applicable two-year period of limitation because there was “just too much guilt.” The magistrate noted plaintiff’s testimony that she was unable to file a claim in 1988-1990 because of her guilt; her testimony that she was aware of civil litigation arising out of her son’s death but “didn’t think she deserved anything because she felt that she was responsible for his death”; and her psychologist’s testimony that she had a “ ‘selective’ mental incapacity to benefit in any way from the death of her son.” The magistrate concluded in pertinent part:
Despite the obvious anguish and distress plaintiff felt, her testimony indicates that she was able to function at least on a part-time basis in a work place setting approximately two months after the July, 1988 death of her son. She was aware in 1988 that the death of her son was causing her grief and emotional difficulties and despite her testimony and that of psychologist Weiss, I find that she was not physically or mentally incapacitated from filing a workers’ disability compensation claim within the meaning of MCLA 418.381. As much as I deeply sympathize with the pain and stress that this particular episode has caused plaintiff, I find that plaintiff’s claim for compensation benefits is barred because of her failure to file her claim for compensation benefits within two years of the injury date and/or last day of work.
The WCAC affirmed, specifically stating that the magistrate’s finding that plaintiff was not physically or mentally incapacitated from filing a worker’s compensation claim within the meaning of MCL 418.381(1); MSA 17.237(381)(1) was supported by the requisite evidence.
This Court’s review in worker’s compensation cases is limited to questions of law. Findings of fact made or adopted by the wcac are conclusive on appeal, absent fraud, if there is any competent evidence in the record to support them, but a decision of the wcac is subject to reversal if the wcac operated within the wrong legal framework or its decision was based on erroneous legal reasoning. York v Wayne Co Sheriffs Dep’t, 219 Mich App 370; 556 NW2d 882 (1996); Matney v Southfield Bowl, 218 Mich App 475, 484; 554 NW2d 356 (1996).
Here, the issue on appeal is a legal question: whether plaintiffs psychological aversion to filing a claim constituted a “mental incapacity” that tolled the two-year period of limitation under MCL 418.381; MSA 17.237(381). Section 381 states in pertinent part:
(1) A proceeding for compensation for an injury under this act shall not be maintained unless a claim for compensation for the injury, which claim may be either oral or in writing, has been made to the employer or a written claim has been made to the bureau on forms prescribed by the director, within 2 years after the occurrence of the injury...
. In the event of physical or mental incapacity of the employee, the notice and claim shall be made within 2 years from the time the injured employee is not physically or mentally incapacitated from making the claim.
In Turner v Auto Club Ins Ass’n, 448 Mich 22, 27-28; 528 NW2d 681 (1995), the Court set forth basic rules for statutory construction.
The cardinal rule of statutory construction is to identify and to give effect to the intent of the Legislature. The first step in ascertaining such intent is to focus on the language in the statute itself. If the statutory language is certain and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written.
Where the meaning of statutory language is not clear, judicial construction becomes necessary. Courts are to accord statutory words their ordinary and generally accepted meaning. Moreover, when courts interpret a particular phrase in a statute, they must, whenever possible, construe the phrase in such a way that the interpretation does not conflict with, or deny effect to, other portions of the statute. [Citations omitted.]
We first focus on the language of § 381(1). “Incapacity” is defined as “lack of ability, qualification, or strength; incapability; lack of legal power to act.” Random House Webster’s College Dictionary (1992). Here, plaintiff alleges that, after the accident at issue, she was mentally incapable of pursuing the present claim because there was “just too much guilt.” She does not claim that she was unable to understand that her son’s death was causing her emotional distress. Nor does she claim that she was unable to understand her legal rights. She testified that her husband pursued a civil action in connection with her son’s death but that she refused to participate in the action. She further testified that, initially, she could not file the present claim because there was “just too much guilt”; however, even her psychologist testified that plaintiff was mentally capable of filing the present claim by late autumn 1990. This testimony demonstrates that plaintiff was aware of the possibility of worker’s compensation recovery for this tragic accident and chose consciously to forgo it for a time because of her guilt. Plaintiff’s strong aversion to compensation in connection with her son’s death is more accurately described as an unwillingness to pursue the present claim rather than as an incapacity to pursue it. Accordingly, the plain meaning of the word “incapacity” indicates that plaintiff’s psychological aversion to pursuing the present claim would not constitute a mental incapacity that would toll the statute of limitations under § 381(1).
We also find guidance regarding the meaning of “mental incapacity” in the Revised Judicature Act’s provisions for tolling statutes of limitation on the basis of mental disorders. MCL 600.5851; MSA 27A.5851 states in pertinent part:
(1) [I]f the person first entitled to make an entry or bring an action under this act is . . . insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed ... to make the entry or bring the action although the period of limitations has run. . . .
(2) The term insane as employed in this chapter means a condition of mental derangement such as to prevent the sufferer from comprehending rights he or she is otherwise bound to know and is not dependent on whether or not the person has been judicially declared to be insane.
Section 5851(2) differs from § 381(1) in that the former focuses on “mental derangement” while the latter focuses on “mental incapacity.” “Derange” means “to throw into disorder; disarrange; to disturb the condition, action, or function of.” Random House Webster College Dictionary (1992). Thus, “mental derangement” appears to be a broader term than “mental incapacity” in that it would include disturbances less than complete incapability. In order to toll the applicable period of limitation, § 5851(2) requires mental derangement sufficient to prevent the sufferer from “comprehending” the sufferer’s rights. A fortiori, a statute, such as § 381(1), that requires “mental incapacity” to toll the period of limitation would also seem to require that the sufferer be unable to “comprehend” his legal rights. Here, plaintiff’s allegations indicate that she clearly understood her legal rights but was unwilling to pursue them. While her reasons for failing to pursue a claim are understandable — and indeed speak well about plaintiff’s character — this is not the equivalent of indicating an “incapacity” on her part to pursue the claim.
The purposes of statutes of limitation also provide guidance in interpreting the tolling provisions of § 381(1). In Lemmerman v Fealk, 449 Mich 56, 65; 534 NW2d 695 (1995), the Court summarized the primary purposes behind statutes of limitation as: “1) to encourage plaintiffs to pursue claims diligently, and 2) to protect defendants from having to defend against stale and fraudulent claims.” Lemmerman addressed whether the common-law discovery rule or § 5851 extended the limitation period for a tort action allegedly delayed because of “repressed memory.” The Lemmerman Court held that neither provision of law was available to extend the limitation period in such cases. Id. at 76-77. In reaching this conclusion, the Court stated at 76:
Adoption of the plaintiffs’ position would leave a determination of the onset of a limitation period an open question within the subjective control of the plaintiff. Placing a plaintiff in this discretionary position to allege the onset of the disability of repressed memory and the termination of that condition within an applicable grace period would “vitiate the statute of limitations as a defense” and is a circumstance we have rejected in the past.
Here, adoption of plaintiff’s position that a psychological aversion to filing a claim constitutes a mental incapacity would make the onset and termination of the tolling provision of § 381(1) a matter within the subjective control of a worker’s compensation claimant. Psychological aversion to file a claim is not readily ascertainable from objective manifestations. A definition of mental incapacity for purposes of § 381(1) that includes psychological aversion to file a claim would dilute considerably the two-year statute of limitations because a claimant could strategically allege the onset and termination of such a psychological aversion to avoid any statute-of-limitations defense. Specifically, we note that worker’s compensation claims commonly arise from unexpected events that will often involve some related emotional trauma. A determination that psychological responses to such trauma, short of an inability to comprehend one’s legal rights, constitute a “mental incapacity” under § 381(1) would potentially open the door to tolling under § 381(1) in a large number of cases in which this is currently barred by a statute of limitations. Such a broad reading of the tolling provisions of § 381(1) would be inconsistent with its articulation of a clear two-year statute of limitations.
For these reasons, we conclude that, as a matter of law, “mental incapacity” under § 381(1) does not include psychological aversion to filing a claim. Accordingly, we affirm the wcac’s order finding that plaintiff was not mentally incapacitated from filing the present claim and therefore that her claim was barred by the statute of limitations. Our resolution of this issue makes it unnecessary for us to reach the other issues raised by plaintiff.
Affirmed.
We are aware that in Wilkins v General Motors Corp, 204 Mich App 693, 701; 517 NW2d 40 (1994), this Court found a psychological aversion to constitute a "disability” under the Worker’s Disability Compensation Act. That a psychological aversion may, in some circumstances, constitute a “disability” does not address whether a psychological aversion to filing a claim can constitute a “mental incapacity” under § 381(1).
We hasten to add that we do not characterize the instant case in this manner. | [
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Hood, J.
Plaintiffs appeal as of right from the judgment entered in their favor following a jury trial and from the order awarding defendant mediation sanctions. We affirm in part, reverse in part, and remand.
Plaintiff Douglas J. Joerger (hereinafter Joerger) worked as a controller for Schwinn Bicycle Company during 1989 and 1990, and earned an annual salary of $55,000. He also received a benefits package valued at $4,500. During that time, Joerger developed a business concept that he named “Parents’ Pantry.” Parents’ Pantry involved the sale of grocery items once a month at or below retail prices through schools and churches with a ten percent commission being returned to the schools or churches. Joerger’s role in the operation of Parents’ Pantry would be limited to sales, marketing, and administrative activities. Joerger chose Michigan and northern Indiana as the market for this product-based fundraising business.
Joerger approached defendant about supplying the products and distribution services needed for the company. Defendant is the largest independent food distributor in the United States with $1,000,000,000 in annual sales. Defendant’s headquarters are in Grand Rapids. Defendant’s customer base consists primarily of restaurants, hospitals, nursing homes, schools, government agencies, and prisons located in Michigan, Ohio, Indiana, and Illinois.
Joerger and a business friend, Morris Bilskie, met with Ronald Miller, defendant’s director of marketing. At that meeting, Joerger explained the purpose and operation of Parents’ Pantry and projected annual sales of $100,000,000 within five years of operation. Joerger gave Miller a presentation package to show to other executives of defendant.
Joerger and Bilskie had a second meeting with Miller, Patrick Cady, the assistant marketing manager for defendant, and David Dow, a sales manager for defendant. Joerger testified that at the end of the meeting, Miller indicated that defendant would sell products to Parents’ Pantry and deliver the products to Parents’ Pantry’s clients. The agreement was not in writing, because, according to the testimony, defendant does business on a “handshake” basis.
By September 1991, the date Parents’ Pantry placed its first order with defendant, Joerger had met with Cady and others to finalize issues concerning product selection, package size, and delivery dates and times. Joerger had also secured nine accounts and quit his job. By November 1991, Joerger added five additional accounts. During the period from September 1991 through January 1992, Parents’ Pantry had problems securing timely deliveries of the products ordered, and it received shipments that contained product shortages. Upon Cady’s suggestion, Joerger ceased seeking any further accounts until certain problems with the delivery process were resolved.
In late January 1992, Cady informed Joerger that at the end of March 1992 defendant would no longer supply Parents’ Pantry. As a result, Joerger ceased conducting business as Parents’ Pantry in early March 1992. The only month Parents’ Pantry made a profit was November 1991.
Plaintiffs sued defendant, alleging breach of the oral contract, innocent misrepresentation, and promissory estoppel. The trial court granted defendant’s motion for summary disposition with respect to plaintiffs’ innocent misrepresentation claim, and directed a verdict against plaintiffs with respect to their breach of the oral contract claim. No appeal has been taken from these rulings. Following trial, the jury returned a verdict for plaintiffs, but made no damage award. The trial court denied plaintiffs’ motion for additur or, in the alternative, for a new trial with respect to damages, finding that the verdict was justified. The trial court also granted defendant’s motion for mediation sanctions of $131,540 in attorney fees and $7,348.95 in costs.
I
Plaintiffs argue that the trial court erred in denying their motion for additur or, in the alternative, for a new trial with respect to damages. We are not compelled to review this issue because it is not identified in plaintiffs’ statement of questions presented as required by MCR 7.212(C)(5). Lansing v Hartstuff, 213 Mich App 338, 351; 539 NW2d 781 (1995). For the same reason, we are not compelled to review plaintiffs’ argument that the jury’s verdict was inconsistent because a finding of liability requires an award of damages. Id. In any event, we conclude that neither issue has merit.
This Court accords due deference to a trial court’s decision regarding the grant or denial of additur and reverses a trial court’s decision only if an abuse of discretion is shown. Arnold v Darczy, 208 Mich App 638, 639; 528 NW2d 199 (1995). Likewise, trial courts have discretion in granting a new trial, and appellate courts will not interfere absent a palpable abuse of discretion. Id. The proper consideration in granting or denying additur is whether the jury award is supported by the evidence. Flones v Dalman, 199 Mich App 396, 406; 502 NW2d 725 (1993). The record supports the trial court’s conclusion that in this case damages were controverted. The evidence demonstrated that plaintiffs’ testimony regarding damages was scant and that plaintiffs failed to rebut the overwhelming testimony concerning plaintiffs’ failure to mitigate. The jury was free to accept or reject plaintiffs’ testimony regarding their damages. Id. We conclude that the trial court did not abuse its discretion in denying plaintiffs’ posttrial motions.
In addition, there is no merit to plaintiffs’ assertion that the verdict was inconsistent. There is no legal requirement that a jury award damages simply because liability was found. Indeed, before damages can be awarded, they must be proved. Again, plaintiffs failed to prove their alleged damages or rebut the substantial testimony regarding mitigation.
n
Plaintiffs also argue that the trial court improperly instructed the jury concerning the proper measure of damages in a claim of promissory estoppel. We review this issue for an abuse of discretion. Bordeaux v Celotex Corp, 203 Mich App 158, 168-169; 511 NW2d 899 (1993). Jury instructions are reviewed by this Court in their entirety and should not be extracted piecemeal. Id. at 169. Reversal is not required if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury. Id.
Promissory estoppel was the only claim submitted to the jury. The elements of promissory estoppel are: (1) a promise, (2) that the promisor should reasonably have expected to induce action of a definite and substantial character on the part of the promisee, (3) which in fact produced reliance or forbearance of that nature, and (4) in circumstances such that the promise must be enforced if injustice is to be avoided. Meerman v Murco, Inc, 205 Mich App 610, 616; 517 NW2d 832 (1994).
In a promissory estoppel action, the “ ‘remedy granted for breach may be limited as justice requires.’ ” State Bank of Standish v Curry, 442 Mich 76, 83; 500 NW2d 104 (1993), quoting 1 Restatement Contracts, 2d, § 90, p 242. The guiding principle in determining an appropriate measure of damages is to ensure that the promisee is compensated for the loss suffered to the extent of the promisee’s reliance. Cyberchron Corp v Calladata Systems Development, Inc, 47 F3d 39, 46 (CA 2, 1995); Mahoney v Delaware McDonald’s Corp, 770 F2d 123, 127-128 (CA 8, 1985). Damages awarded in promissory estoppel actions may include an award of lost profits, Calamari & Perillo, The Law of Contracts (3d ed), § 6.6, p 291, and out-of-pocket expenses incurred in preparation for performance or in the performing of the work that was induced by the promisor, Cyberchron, supra, Mahoney, supra.
We have reviewed the instructions in their entirety and find that the appropriate measure of damages was adequately and fairly presented to the jury. Plaintiffs made specific requests for damages, and the instructions were broad enough to cover every dollar amount sought by plaintiffs had the jury found their damage request credible and supported by the evidence. Indeed, the court’s instruction that the jury was to measure damages by ascertaining “what, if anything, plaintiffs lost by relying on the commitments [of defendant]” unambiguously conveyed to the jury the guiding principle in determining an appropriate measure of damages — to ensure the promisee is compensated for the loss suffered to the extent of the promisee’s reliance. We therefore conclude that, given the specificity of plaintiffs’ damage request to the jury and the generality of the court’s damage instruction, plaintiffs’ argument is without merit.
in
Plaintiffs also challenge the trial court’s decision to preclude Joerger from testifying regarding Parents’ Pantry’s lost profits. We disagree. The qualification of a witness as an expert and the admissibility of the expert’s testimony are within the trial court’s discretion. Mulholland v DEC Int’l Corp, 432 Mich 395, 402; 443 NW2d 340 (1989); Dean v Tucker, 205 Mich App 547, 550; 517 NW2d 835 (1994).
The trial court on the basis of MRE 703 and 403, granted defendant’s motion in limine to exclude Joerger’s proposed expert testimony concerning his projection of lost profits after making extensive findings. In essence, the trial court concluded that Joerger’s testimony regarding plaintiffs’ damage claim lacked an adequate foundation and amounted to impermissible “rank speculation.”
We initially note that for most of the arguments presented in this issue plaintiffs failed to address the basis of the trial court’s decision. This Court, therefore, need not even consider granting plaintiffs the relief they seek. See Roberts & Son Contracting, Inc v North Oakland Development Corp, 163 Mich App 109, 113; 413 NW2d 744 (1987). We nevertheless address the propriety of the trial court’s ruling.
In order to recover prospective profits, a plaintiff must establish proof of lost profits with a reasonable degree of certainty. Fera v Village Plaza, Inc, 396 Mich 639, 643; 242 NW2d 372 (1976), citing 5 Corbin on Contracts, § 1020, p 124; Nat'l Pharmaceutical Services, Inc v Harrison Community Hosp, 67 Mich App 286, 293-294; 241 NW2d 76 (1976). Where the proof is available, prospective profits may be recovered, when proved, as other damages. Nevertheless, as in all cases, “ ‘[t]he jury should not be allowed to speculate or guess [with regard to] the amount of loss of profits.’ ” Fern, supra at 643, quoting Kezeli v River Rouge Lodge, IOOF, 195 Mich 181, 188; 161 NW 838 (1917).
In examining a new business versus an interrupted business, the Supreme Court has indicated that “ ‘[i]f the business . . . has not had such a history as to make it possible to prove with reasonable accuracy what its profits have been in fact, the profits prevented are often but not necessarily too uncertain for recovery.’ ” Fera, supra at 645, quoting 5 Corbin on Contracts, § 1023, pp 150-151. Several cases have allowed a party to prove loss of future profits by pointing to profits made in previous months or years. See, e.g., Stimac v Wissman, 342 Mich 20, 28; 69 NW2d 151 (1955); Nat’l Pharmaceutical Services, supra at 293; Gongola v Yaksich, 3 Mich App 676; 143 NW2d 601 (1966). The instant case, however, is easily distinguishable.
Here, the trial court correctly determined that the data generated by Parents’ Pantry was too scant to support Joerger’s proposed lost profits testimony. Parents’ Pantry operated for six months, but earned no overall profits. Profitability was limited solely to the month of November 1991. Furthermore, Joerger testified that his lost profit figures were based on projected monthly sales of $5,000 a school and a client base of one hundred schools. Yet, Parents’ Pantry’s sales were averaging only between $1,500 and $1,600 a month a school and Parents’ Pantry’s client base never exceeded fifteen or sixteen schools.
Furthermore, plaintiffs’ argument that Joerger properly could base his proposed testimony on another operation known as the “Market Day” program because that business operation and this business operation were “substantially similar” is without merit. We agree with the trial court’s finding that Market Day and Parents’ Pantry were not identical business operations. Parents’ Pantry was designed to operate differently than Market Day. Testimony demonstrated that Parents’ Pantry relied on defendant to supply and deliver the grocery items whereas Market Day owned its own warehouse and handled all its own deliveries. Moreover, plaintiffs failed to present any information concerning the profitability of Market Day during its first five years of operation, or present any witnesses, from Market Day or elsewhere, with personal knowledge regarding Market Days’ sales or profits. Joerger even conceded that he did not have any information regarding Market Day’s accounts or monthly sales during its first five years of operation. He also admitted that he never reviewed any financial information regarding Market Day for its first five years of operation. We therefore find that there was no foundation for Joerger’s proposed opinion that Parents’ Pantry would experience profits similar to those of Market Day. The trial court did not abuse its discretion when it precluded Joerger’s proposed expert testimony as to prospective profits.
rv
Plaintiffs’ final argument is that the trial court abused its discretion when it awarded defendant mediation sanctions following this ten-day jury trial. Whether a party is entitled to sanctions and the amount of actual costs are to be determined by the trial court within its discretion. Dean, supra at 551. Likewise, a trial court’s award of attorney fees will be set aside only if it constitutes an abuse of discretion. Beach v State Farm Mutual Automobile Ins Co, 216 Mich App 612, 625-626; 550 NW2d 580 (1996).
We first note that we need not address plaintiffs’ argument that the trial court awarded “clearly excessive” expert witness costs. Plaintiffs failed to support this assertion with sufficient evidence to address this issue. A party may not merely announce a position and leave it to the Court of Appeals to discover and rationalize the basis for the claim. Goolsby v Detroit, 419 Mich 651, 655, n 1; 358 NW2d 856 (1984); In re Toler, 193 Mich App 474, 477; 484 NW2d 672 (1992).
Concerning the rest of the sanctions, MCR 2.403(O)(1) states that if a party has rejected an evaluation and the action proceeds to trial, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. Actual costs are defined by MCR 2.403(O)(6) as
(a) those costs taxable in any civil action, and
(b) a reasonable attorney fee based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the mediation evaluation.
Plaintiffs argue that the mediation sanctions must be reduced because defendant’s itemized billing listed $14,116.25 more than the figures contained in the billing total. Contrary to plaintiffs’ argument, the record reveals that defendant explained the discrepancy by indicating that the $14,116.25 figure represented fees incurred in March and April 1995 for a posttrial motion, which had not yet been billed to defendant when the computer billing sheets were created. MCR 2.403 does not limit an award to attorney fees for services performed only at the trial. Rather, the rule states that attorney fees may be awarded for all services necessitated by the rejection of the mediation award. Troyanowski v Village of Kent City, 175 Mich App 217, 226-227; 437 NW2d 266 (1988). Accordingly, taxable costs can include fees incurred posttrial. Id. at 226. Under the circumstances of this case, we believe the court’s award was justified.
Plaintiffs also argue that the 716.75 hours billed by defense counsel are unreasonable. We disagree. Plaintiffs do not contest specific items billed, but only argue that too many hours were expended in the defense of the case. We have reviewed the itemized invoice and find that the hours billed were not necessarily unreasonable given the nature and complexity of this case. As the trial court indicated “[o]nce you sue a corporate defendant for millions of dollars, you have to expect that the law firm representing them is going to work hard defending the case because you never know how it could turn out.” The trial court carefully considered plaintiffs’ objections to the hours spent and concluded that they were reasonable. The trial court did not abuse its discretion.
Plaintiffs also challenge the billings attributable to two individuals identified only by the initials “nas” and “lad.” Plaintiffs argue that the individuals were not identified and no billing rate was provided for these individuals. Contrary to plaintiffs’ assertions, the record reveals that these individuals were identified, by name, as two paralegals employed by defense counsel. Defendant also informed plaintiffs and the court that their hourly rate was $75. Accordingly, these arguments are without merit.
We do find merit, however, in plaintiffs’ argument that the independent expenses attributable to the use of paralegals is not recoverable as costs. For purposes of mediation sanctions, “actual costs” include “those costs taxable in any civil action.” MCR 2.403(O)(6). Chapter 24 of the Revised Judicature Act, MCL 600.2401 et seq.) MSA 27A.2401 et seq., governs costs. Taylor v Anesthesia Associates of Muskegon, PC, 179 Mich App 384, 387; 445 NW2d 525 (1989). MCL 600.2405; MSA 27A.2405 provides that the following items may be taxed and awarded unless otherwise directed:
(1) Any of the fees of officers, witnesses, or other persons mentioned in this chapter or [MCL 600.2501 et seq.) MSA 27A.2501 et seq.] unless a contrary intention is stated.
(2) Matters specially made taxable elsewhere in the statutes or rules.
(3) The legal fees for any newspaper publication required by law.
(4) The reasonable expense of printing any required brief and appendix in the supreme court, including any brief on motion for leave to appeal.
(5) The reasonable costs of any bond required by law, including any stay of proceeding or appeal bond.
(6) Any attorney fees authorized by statute or by court rule.
Our review of the provisions of the statute indicates nothing supporting an award of costs for expenses generated by paralegals. In the absence of statutory authorization, costs may not be awarded to recompense for a claimed litigation expense. Taylor, supra at 387-388.
Expenses generated by paralegals are also not recoverable as a separate component of mediation sanctions. MCR 2.403(O)(6) and MCL 600.2405; MSA 27A.2405 use the phrases “attorney fee” and “attorney fees.” Although those phrases are not defined, the Supreme Court has provided guidance by stating the relevant factors to be considered in determining the reasonableness of attorney fees: (1) the professional standing and experience of the attorney; (2) the skill, time, and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred-, and (6) the nature and length of the professional relationship with the client. Wood v DAIIE, 413 Mich 573, 588; 321 NW2d 653 (1982).
Clearly, attorney fees are not meant to compensate only work performed personally by members of the bar. Rather, the term must refer to a reasonable fee for the work product of an attorney that necessarily includes support staff. The rule allowing an award of attorney fees has traditionally anticipated the allowance of a fee sufficient to cover the office overhead of an attorney together with a reasonable profit. The inclusion of factor 5, the expenses incurred, reflects the traditional understanding that attorney fees should be sufficient to recoup at least a portion of overhead costs. Johnston v Detroit Hoist & Crane Co, 142 Mich App 597, 601; 370 NW2d 1 (1985); Detroit Bank & Trust Co v Coopes, 93 Mich App 459, 468; 287 NW2d 266 (1979). Fixed overhead costs include such items as employee wages, rent, equip ment rental, and so forth. Id. Thus, until a statute or a court rule specifies otherwise, the attorney fees must take into account the work not only of attorneys, but also of secretaries, messengers, paralegals, and others whose labor contributes to the work product for which an attorney bills a client, and it must also take account of other expenses and profit. We therefore must rule, albeit reluctantly, that the reasonable “attorney fees” should already include the work of paralegals, as well as that of attorneys and other factors underlying the fee. Accordingly, we remand in order for the trial court to reduce the award of attorney fees by the amount attributable to the independent paralegal billings.
We, however, find it noteworthy that a growing number of our sister states have allowed an independent recovery of paralegal or legal assistant time in attorney fee awards under statute, rules of court, or decisional law authorizing awards of attorney fees. In most cases, with respect to paralegals and legal assistants, recovery is available “if a legal assistant performs work that has traditionally been done by any attorney.” See, e.g., Gill Savings Ass’n v Int’l Supply Co, Inc, 759 SW2d 697, 702 (Tex App, 1988). To qualify for such recovery, the evidence must establish: (1) that the legal assistant is qualified through education, training, or work experience to perform substantive legal work; (2) that substantive legal work was performed under the direction and supervision of an attorney; (3) the nature of the legal work that was performed; (4) the hourly rate being charged for the legal assistant; and (5) the number of hours expended by the legal assistant. Id.
We find that the increasing practice of allowing an independent recovery of paralegal or legal assistant time in attorney fee awards has merit. We recognize that the day-to-day duties of a legal assistant will vary from law firm to law firm. If, however, the paralegal performs work that has traditionally been done by an attorney, we believe that it follows that a separate expense should be allowable. Neither statute nor court rule, however, currently allows such expenses as separate billable items. It is not our task to rewrite statutes. We therefore encourage the Legislature to change the statute or the Supreme Court to change the court rule to provide for appropriate billing for paralegal fees.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
Gribbs, J., concurred.
“Market Day” is a “food-fundraising” program at the school Joerger’s son attends in suburban Chicago, Illinois.
The trial judge noted that he practiced law for sixteen years in a firm similar to the firm that represented defendant and was familiar with the innerworkings and billing of such firms.
See, e.g., Attorneys’ fees: cost of services provided by paralegals or the like as compensable element of award in state court, 73 ALR4th 938, § 3, pp 949-950, and cases cited therein; Gill Savings Ass’n v Int’l Supply Co, Inc, 759 SW2d 697, 702 (Tex App, 1988), and cases cited therein; Jacobs v Mancuso, 825 F2d 559, 563 (CA 1, 1987), both the body of the text and footnote 6 and cases cited therein; Spanish Action Committee of Chicago v Chicago, 811 F2d 1129, 1138 (CA 7, 1987); Ramos v Lamm, 713 F2d 546, 558-559 (CA 10, 1983). | [
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Per Curiam.
Plaintiffs appeal as of right from a February 16, 1996, order of the Jackson Circuit Court granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(7) (claim barred by statute of limitations) and MCR 2.116(C)(8) (failure to state a claim upon which relief can be granted). We affirm in part and remand for further proceedings.
This case arises out of a dispute concerning certain land located in Henrietta Township. Specifically, this case concerns certain plats located in the Pleasant Bay Estates. Kerry and Christine Frey, who are married, are owners of lot 89 and lot 90. With respect to lot 89, the deed is dated August 23, 1993, and the deed was given in fulfillment of a land contract dated April 10, 1987. The Freys own lot 90 through a land contract dated April 24, 1987. Louis Szepietowski is the owner of lot 91, the deed to which was recorded on June 20, 1978.
North of plaintiffs’ land is a small strip of land referred to as outlot C. Outlot C was deeded to the State of Michigan on June 3, 1985. Bertine Carpenter had previously owned outlot C. Carpenter, John C. Barnes, Jr., Delores Barnes, and the J. C. Barnes Construction Co., Inc., as proprietors, jointly dedicated the plat of Pleasant Bay Estates on July 22, 1964. That dedication included a private easement for a twenty-foot-wide section for ingress and egress for lots 82 through 89. Further, outlot C was for the exclusive use of owners of lots in the Pleasant Bay Estates. However, outlot C was deeded to the state following a tax sale. Notice of the tax sale was given only to the J. C. Barnes Construction Co., Inc., although it was never a record title holder of outlot C. Plaintiffs did not receive notice of the tax sale. The state then held a scavenger’s sale, and Donald and Richard Scott purchased outlot C at the sale from the Department of Natural Resources (dnr). The Scotts’ deed is dated March 16, 1989.
Outlot C provides lots 89, 90, and 91 access to Clyde James Road, which is the nearest public street within the plat. Therefore, the most reasonable means of ingress and egress from lots 89, 90, and 91 to a public street is by outlot C. The Scotts had denied plaintiffs use of outlot C to gain access to their lots. Apparently, plaintiffs wished to cut down trees and build a driveway for access to their lots. The Scotts would not permit such action on their property. Plaintiffs filed suit on November 30, 1994, alleging that they have an equitable right to use outlot C for ingress and egress to each of their lots. The Scotts moved for summary disposition on August 23, 1995. The trial court granted summary disposition in favor of all defendants, ruling that plaintiffs could not challenge the validity of the deed from the DNR to the Scotts because the six-month statute of limitations found in MCL 211.358e; MSA 7.958(5) barred plaintiffs’ claim and that the deed to the state terminated the plat covenants granting an easement to plaintiffs.
We agree with the trial court that the six-month period of limitation barred plaintiffs’ claim. MCL 211.358e; MSA 7.958(5) provided:
After the expiration of 6 months from the date of any deed or contract executed under this act, no suit or proceeding shall be instituted by any person to set aside the same or the sale pursuant to which the same was executed by reason of any defect in the procedure therefor: Provided, however, That this limitation shall not apply to any deed or contract executed under this act prior to the effective date of this amendment until after the expiration of 6 months from the date this amendatory act becomes effective.
Similarly, MCL 211.431; MSA 7.661 provides that after the expiration of six months from the time a deed is made to the state pursuant to a tax sale (nonredemption), no action may be commenced to set it aside.
Plaintiffs’ claim is clearly outside the six-month period of limitation because their complaint was filed on November 30, 1994, the deed to the state is dated June 3, 1985, and the deed to the Scotts is dated March 16, 1989. Accordingly, the trial court properly granted summary disposition in favor of defendants on the basis that plaintiffs’ claim was time-barred by MCL 211.358e; MSA 7.958(5) and MCL 211.431; MSA 7.661.
To the extent that plaintiffs argue that the state’s deed is void or voidable because Bertine Carpenter never received notice of the tax sale, we must reject that argument because plaintiffs do not have standing to assert such a claim on behalf of another. In any event, plaintiffs’ claim is clearly barred by the statute of limitations.
Next, the trial court found that plaintiffs had no cause of action because their easement was extinguished when the Scotts received title to the property. In other words, the trial court ruled that the deed terminated the plat covenants granting an easement in outlot C.
Our Supreme Court has held that an easement is terminated when the servient tenement is conveyed to the state. Moceri v St Clair Shores, 366 Mich 380; 115 NW2d 103 (1962) (even if the defendant still had an easement arising out of a dedication to the public in a subdivision plat, then it was extinguished when the subdivision became the property of the state because of nonpayment of taxes); Young v Thendara, Inc, 328 Mich 42; 43 NW2d 58 (1950) (the property rights of the subdivision lot owners to a subdivision park were properly characterized as easements, but such easements were extinguished when the state acquired absolute title to the property).
Additionally, MCL 211.67b; MSA 7.112(2) provides:
Notwithstanding any other provision of law, any land sold for taxes shall remain subject to any visible or recorded easement, right of way or permit in favor of the United States, the state or any political subdivision or agency thereof or any public authority or drainage district, or granted or dedicated for public use or for use by a public utility.
This statute was enacted after the Moceri decision as a remedial measure to preserve easements existing in favor of the government or public utilities when the land was sold for taxes. Boyne City v Crain, 179 Mich App 738, 745; 446 NW2d 348 (1989). Thus, outlot C was subject to the easement in favor of the state, but not in favor of plaintiffs. Although the statute was amended to add § 67b(2) (“Notwithstanding any other provision of law, any land sold for taxes shall remain subject to any visible or recorded easement.”), that provision did not become effective until December 14, 1990, which was after the state acquired outlot C. Accordingly, the trial court properly ruled that the easement was extinguished with respect to plaintiffs in this case, because only the state’s easement survived the transfer of outlot C to the state.
Next, plaintiffs argue that the trial court erred in granting an easement by necessity in a limited fashion. The trial court ruled that plaintiffs were entitled to an easement by necessity, but limited the use of the easement to foot traffic only.
None of the parties disputes that plaintiffs are entitled to an easement by necessity across outlot C. Plaintiffs’ land is surrounded by water and the property of others. Thus, access to a public road is limited to ingress and egress across the property of others or across the channel. The trial court granted an ease ment by necessity, but limited it to foot traffic and did not permit vehicular traffic, tree cutting, or the creation of a driveway. Plaintiffs contend that the trial court erred in limiting the easement in this manner. We find that the lower court record has not been developed enough factually for us to review the trial court’s ruling. For example, the parties did not submit proposed uses of outlot C, they did not raise the prospect of tree cutting, and there is no evidence regarding how the Scotts utilize outlot C.
Therefore, we must remand the matter to the trial court for further proceedings. The parties shall be permitted to submit evidence regarding the use and proposed use of outlot C. The trial court should measure and define the purpose and character of the easement so that there is reasonable enjoyment by both parties. Cantieny v Friebe, 341 Mich 143; 67 NW2d 102 (1954). The use exercised by the holders of the easement must be reasonably necessary and convenient to the proper enjoyment of the easement, with as little burden as possible to the fee owner of the land. Id. Although the Scotts raise valid points that the easement was intended to be limited in nature, there is simply not enough record evidence for us to effectively review the trial court’s decision in this regard.
Accordingly, we remand the matter to the trial court for the parties to present evidence regarding the purpose, character, and scope of the easement so that there is reasonable enjoyment by both parties. We do not intimate that the trial court’s original decision was incorrect, only that we do not have sufficient evidence in the record before us to review this question.
Last, plaintiffs claim that the trial court erred in limiting enforcement of rights of ingress and egress reserved in a deed granted by the dnr to the Scotts.
The deed from the DNR to the Scotts contains the following clause:
[Slaving and reserving unto the people of the state of Michigan the rights of ingress and egress over and across all of the above-mentioned descriptions of land, lying along any watercourse or stream pursuant to the provisions of Section 12, of Act 280, RA. of 1909, as amended.
Plaintiffs again contend that the trial court erred in limiting the scope of the easement. However, there is insufficient evidence in the lower court record for us to effectively review this issue. Accordingly, on remand, the parties are permitted to present evidence regarding this issue as well. The trial court should determine whether Pleasant Lake is a watercourse within the meaning of MCL 322.212; MSA 13.441, and, if so, it should then determine the public’s rights of access. If the trial court determines that Pleasant Lake is a dead-end lake, then the public has no rights of access. See McCardel v Smolen, 404 Mich 89; 273 NW2d 3 (1978); Bott v Natural Resources Comm, 415 Mich 45; 327 NW2d 838 (1982); Thies v Howland, 424 Mich 282; 380 NW2d 463 (1985).
The trial court’s grant of summary disposition in favor of defendants is affirmed in part, and we remand for further factual development regarding the scope of the easement. Summary disposition in favor of defendants Michigan Department of Treasury and the Jackson County Treasurer is affirmed in its entirety because those defendants have no interest in the nature or scope of the easement. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, a question of public policy being involved.
Richard Scott quitclaimed outlot C to his wife, Peggy Scott, in a deed dated October 8, 1992.
This statute was repealed by 1994 PA 451, effective March 30, 1995. However, the deed to the state was dated June 3, 1985, and the deed to the Scotts is dated March 16, 1989. Therefore, the statute was in effect when the deeds were issued. | [
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Per Curiam.
The Wayne County Prosecutor appeals as of right from an action of the Wayne Circuit Court, purportedly “correcting” the verdict rendered at the conclusion of a bench trial so as to find defendant guilty only of attempted possession of more than 650 grams of cocaine, rather than actual possession. The substantive difference is that the penalty for possession of more than 650 grams of cocaine is a mandatory sentence of life imprisonment, MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i), whereas attempted possession is punishable by a maximum of five years’ imprisonment, MCL 750.92; MSA 28.287. This case is being decided without oral argument pursuant to MCR 7.214(E).
The principal thrust of the defense at trial was lack of proof that defendant knew the large quantity of cocaine was present in the motor vehicle he was driving when arrested, despite the fact that he was the sole occupant of the vehicle. At the conclusion of the original bench trial, the trial court rejected defendant’s testimony as completely incredible, calling defendant a “big liar.” Although persuaded beyond a reasonable doubt that defendant knew of the cocaine in the vehicle he was driving and was likewise knowingly exercising dominion and control over the cocaine, the court nonetheless found that defendant did not intend to deliver the more than 650 grams of cocaine found in his possession — together with a pager and a large quantity of cash — but then went on to “find the defendant guilty of possession of 650 or more grams of a controlled substance, cocaine, contrary to the statute.”
More than nine months later, after sentencing had been delayed several times at the request of defendant, the trial court appears to have concluded sua sponte that it had intended only to find the defendant guilty of attempted possession. Despite no support for such a revisionary view in either the audio or stenographic recording of the trial, the court asserted the record failed to reflect its intent to find defendant guilty only of attempted possession. In making this statement, the trial court referred to no facts or circumstances that would logically justify a finding of only attempted possession on any basis other than a desire for leniency. But trial courts in bench trials are both required to render logical verdicts and precluded from exercising a jury’s capacity for lenity. People v Burgess, 419 Mich 305, 310-311; 353 NW2d 444 (1984). Leniency is an exclusive prerogative of the executive branch. Const 1963, art 3, § 2; People v Fox, 312 Mich 577, 581-582; 20 NW2d 732; 168 ALR 703 (1945). The trial court proffered no reasoned explanation that would justify a finding of guilty of only attempted possession, in the face of proofs establishing only actual possession, either on the basis of the facts originally found or any subsequent clarification.
Such alteration of the original reasoned verdict of guilty is precluded on both double jeopardy principles and public policy grounds. A trial court in this respect has no greater prerogatives than a jury. People v Jones, 203 Mich App 74, 82; 512 NW2d 26 (1993). Double jeopardy subsumes the notion of autrefois convict as well as autrefois acquit, Kring v Missouri, 107 US (17 Otto) 221, 225; 25 S Ct 443; 27 L Ed 506 (1883), and pardon. United States v Scott, 437 US 82, 87; 98 S Ct 2187; 57 L Ed 2d 65 (1978). Accordingly, the original verdict of guilty of possession of more than 650 grams of cocaine is reinstated, and the cause is remanded to the Wayne Circuit Court for resentencing.
Defendant’s challenge to the right of the prosecutor to invoke this Court’s jurisdiction is without merit for the reasons set forth in People v Jones, supra at 78-79:
The people may appeal only to the extent provided by statute. People v Cooke, 419 Mich 420, 425; 355 NW2d 88 (1984). In Cooke, the Michigan Supreme Court held that § 12 of the Code of Criminal Procedure does not authorize an appeal from an order of acquittal made after the defendant has been put in jeopardy. Id.; MCL 770.12; MSA 28.1109. In Cooke, after the jury found the defendant guilty, the trial court reversed and acquitted him. Cooke, 424.
Section 12 has been amended since Cooke was decided. It now provides that the people may take an appeal in any case if the Double Jeopardy Clause would not bar further proceedings. [People v] Caballero [437 Mich 884, 885 (1990)]; People v Reynolds, 181 Mich App 185, 187-188; 448 NW2d 774 (1989); US Const, Am V; Const 1963, art 1, § 15. In Reynolds, we held that a prosecutor’s appeal of a sentence does not subject the defendant to a second trial. Therefore, appealing the sentence did not present double jeopardy implications and was permissible under § 12. Reynolds, 188.
Likewise, the appeal in this case does not subject defendant to a second trial and does not present double jeopardy implications. If the prosecution prevails, the original verdict will be reinstated. If defendant prevails, the judgment will be affirmed. Neither requires a second trial. Consequently, we conclude that we have jurisdiction to hear this appeal.
Reversed and remanded for farther proceedings consistent with this opinion. We do not retain jurisdiction.
Although retrial following acquittal is barred under the Double Jeopardy Clause, the government may appeal if reinstatement of the jury’s verdict of conviction, rather than retrial, is sought. See People v Anderson, 409 Mich 474, 483, n 10; 295 NW2d 482 (1980), cert den 449 US 1101 (1981), citing United States v Wilson, 420 US 332; 95 S Ct 1013; 43 L Ed 2d 232 (1975). | [
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Per Curiam.
Defendant pleaded guilty of possession with intent to deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and was sentenced to 2 /2 to 20 years’ imprisonment under the name of “Chris Thomas,” which had been provided by defendant. More than one year later, an employee of the Department of Corrections sent a letter to the trial court stating that a consecutive sentence should have been imposed because defendant was on escape status from the Department of Corrections at the time of the instant offense. The trial court, upon learning that the Department of Corrections believed that defendant’s true identity was “Mar cus Harris,” forwarded the letter to the prosecutor’s office for review. The prosecutor subsequently moved for resentencing, alleging that defendant was, in fact, “Marcus Harris.” Following an evidentiary hearing, the trial court found that defendant’s true identity was “Marcus Harris” and that “Marcus Harris” had a prior criminal record and was on escape status from the Department of Corrections when he committed the instant offense. Further, the trial court held that the sentence that had been imposed for this offense was invalid because it was based on inaccurate information and did not comport with the requirements of the law. After affording defendant a resentencing hearing, the trial court resentenced defendant to eight to twenty years’ imprisonment, to be served consecutively to the sentences that defendant was then serving in prior cases. Defendant appeals as of right. We affirm.
Defendant first contends that the trial court lacked jurisdiction to order resentencing. We consider this question de novo because a question of law is involved. People v Medlyn, 215 Mich App 338, 340; 544 NW2d 759 (1996). In so doing, we find that the trial court erred in looking to MCR 2.612(C)(3) as authority for it to order resentencing at any time on the basis of its finding that defendant had committed a fraud on the court relative to his true identity. Pursuant to MCR 6.001(D), we hold that MCR 2.612(C)(3) is inapplicable to resentencing issues because MCR 6.429(A) governs the issue whether the trial court can correct the sentence.
However, the trial court reached the right result because MCR 6.429(A) gave the trial court authority to correct an invalid sentence. People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997). A sentence may be invalid no matter who is benefited by the error, because sentencing not only must be tailored to each defendant, but also must satisfy society’s need for protection and interest in maximizing the offender’s rehabilitative potential. Id., p 98. In the case at bar, resentencing was ordered because the original sentence did not comport with the requirements of the law and was based on inaccurate information regarding the defendant’s criminal background. Our Supreme Court has repeatedly held that a sentence based on inaccurate information is invalid. Id., p 96. Therefore, the threshold requirement of MCR 6.429(A) that a sentence be invalid was satisfied in the case at bar. The material question, thus, becomes whether there was any time restriction that precluded the trial court from exercising its authority to correct the sentence.
We do not agree with defendant’s argument that the trial court’s authority to order resentencing ended when the appeal period for the original sentence expired. In this regard, we note that MCR 6.429(B) and (C), as amended effective April 1, 1996, set forth procedures for parties to preserve certain issues for appeal, to move for resentencing, and to seek relief from the judgment pursuant to subchapter 6.500. In the case at bar, the trial court expressed concern regarding whether the failure of a party to file a motion for resentencing within the forty-two-day time limit for a motion for resentencing in MCR 6.429(B) would preclude it from exercising its authority to resentence defendant.
However, a motion for resentencing is not a condition precedent for a trial court to correct an invalid sentence under MCR 6.429(A), although a defendant’s right to due process must be satisfied. See, e.g., Miles, supra. Further, MCR 6.429(A) does not set time limits with respect to a trial court’s authority to correct an invalid sentence.
If the language of the court rule is clear, this Court should apply it as written. Bruwer v Oaks (On Remand), 218 Mich App 392, 397; 554 NW2d 345 (1996). There being no time restrictions specified in MCR 6.429(A), we decline to construe this court rule as containing a jurisdictional time limitation. Therefore, there was no impediment relative to the time of the trial court’s decision in the case at bar that would preclude it from ordering a resentencing pursuant to MCR 6.429(A).
Further, we find that defendant’s reliance on People v Fox, 312 Mich 577; 20 NW2d 732 (1945), to argue that the trial court’s correction of a sentence would infringe upon the Governor’s exclusive power to commute a sentence, once part of the sentence has been served, is misplaced. Our Supreme Court’s concern in Fox was that a trial court was amending a valid sentence. This concern is not implicated where a trial court corrects an invalid sentence and the facts do not involve any executive commutation of the original sentence. See People v Lamb (After Remand), 201 Mich App 178; 506 NW2d 7 (1993). Hence, given the particular facts of this case, we hold that the trial court was not precluded from exercising its authority under MCR 6.429(A) to correct defendant’s invalid sentence.
Defendant next contends that he is entitled to resentencing. We disagree. Resentencing requires a showing that a sentence is invalid. In re Jenkins, 438 Mich 364, 369, n 3; 475 NW2d 279 (1991). In the case at bar, neither the trial court’s explanation for the sentence, the presumption of vindictiveness that arises when a court imposes an increased sentence at a resentencing hearing, nor the principle of proportionality provides a basis for holding that the sentence of eight to twenty years’ imprisonment is invalid. People v Adams, 430 Mich 679; 425 NW2d 437 (1988); People v Mazzie, 429 Mich 29; 413 NW2d 1 (1987); People v Dukes, 189 Mich App 262, 266; 471 NW2d 651 (1991).
Affirmed.
It is the invalidity of the sentence in the case at bar that distinguishes it from this Court’s recent decision in People v Wybrecht, 222 Mich App 160; 564 NW2d 903 (1997), where this Court reversed the trial court’s order granting resentencing. This Court held that a trial court only has authority to order resentencing under MCR 6.429(A) if the original sentence is invalid. | [
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Neff, P.J.
Plaintiff appeals as of right from an order of the Court of Claims granting summary disposition to defendant and dismissing plaintiff’s complaint. We affirm.
I
The facts of this case are not in dispute. Plaintiff is a Michigan corporation that, in part, conducts an interstate trucking. business. As part of its business, plaintiff purchases tractor trucks in Michigan. In the past, plaintiff, on the basis of defendant’s Position Statement SUW 84-003, had received a partial refund of the sales tax it paid on the purchase of these trucks. Pursuant to SUW 84-003, the refund, amount was based on the percentage of miles the vehicles were used out of state.
Plaintiff filed its complaint in the instant matter when it was not granted what it concluded was the proper sales tax refund for certain tax years. In response, defendant moved for summary disposition pursuant to MCR 2.116(C)(8), claiming that SUW 84-003 was illegal in that the creation of this policy statement was an ultra vires act. Defendant claimed it had no statutory authority to grant this type of tax refund. The lower court agreed and granted defendant’s motion.
II
Plaintiff argues on appeal that the lower court’s ruling was improper. We disagree.
We review de novo the lower court’s grant of summary disposition to defendant. Kellogg Co v Dep’t of Treasury, 204 Mich App 489, 492; 516 NW2d 108 (1994). A summary disposition motion pursuant to MCR 2.116(C)(8) will be granted only where, after the pleadings are examined, the claim is so clearly unenforceable that no amount of factual development could justify a right of recovery. Eaton Co Bd of Rd Comm’rs v Schultz, 205 Mich App 371, 378; 521 NW2d 847 (1994).
A
Liability for the payment of sales taxes and the determination of the amount thereof is dependent on the General Sales Tax Act, MCL 205.51 et seq.; MSA 7.521 et seq., and this liability may not be imposed by rules made by defendant, nor may liability for the tax imposed by the statute be obviated by such administrative action, Howard Pore, Inc v Comm’r of Revenue, 322 Mich 49, 65-66; 33 NW2d 657 (1948); Michigan Sportservice, Inc v Comm’r of Revenue, 319 Mich 561, 566; 30 NW2d 281 (1948). In other words, tax exemptions must rest on legislative enactment, and tax collectors such as defendant can only act within the express authority conferred by law. Garavaglia v Dep’t of Revenue, 338 Mich 467, 470; 61 NW2d 612 (1953).
In order to determine whether defendant was empowered to grant the refund in question, two statutes must be examined. First is defendant’s enabling legislation, MCL 205.1 et seq.; MSA 7.657(1) et seq. That statute provides that the defendant was created for the following purposes:
(a) Coordinated collection of. . . state taxes ....
(b) Specialized service for tax enforcement....
(c) Avoidance of duplication in state facilities for tax collections ....
(d) Safeguarding tax and other collections ....
(e) Providing an advisory service on fiscal status ...
(f) Development of a state revenue enforcement service .... [MCL 205.1; MSA 7.657(1).]
This enabling statute does not grant defendant the authority to effectuate a tax refund policy, nor does it empower defendant to create tax exemptions.
The other relevant statute is the Generál Sales Tax Act. That act sets forth certain transactions for which sales taxes need not be paid. MCL 205.54a; MSA 7.525. There is no mention in that provision of an exemption or refund for sales taxes paid on retail sales of tractor trucks. Id.
Thus, pursuant to this statutory scheme, defendant did not have the statutory authority to grant the type of refund in question and, without more, SUW 84-003 is illegal.
B
In order to get around defendant’s lack of express authority, plaintiff next argues that SUW 84-003 impliedly is proper pursuant to 1979 AC, R 205.91, which provides in part that sales and use taxes do not apply when such taxes are prohibited by the constitution or laws of the United States. According to plaintiff, SUW 84-003 was necessary in order to effectuate 1979 AC, R 205.91. Plaintiff claims that the refund is required to properly apportion the sales tax on what plaintiff terms is an interstate transaction. Without the refund, according to plaintiff, our sales tax would violate the Commerce Clause of the United States Constitution, US Const, art I, § 8, cl 3.
The United States Supreme Court in Complete Auto Transit, Inc v Brady, 430 US 274; 97 S Ct 1076; 51 L Ed 2d 326 (1977), set out a four-part test for determining whether a state tax is constitutional. See also Kellogg, supra at 494-495. The four factors are: (1) the activity taxed must have a substantial nexus to the taxing state; (2) the tax must be fairly apportioned; (3) it may not discriminate against interstate commerce; and (4) it must be fairly related to services provided by the state. 430 US 287. Plaintiff only attacks the second prong of this test.
In order for a tax to be fairly apportioned, it must be internally and externally consistent. Goldberg v Sweet, 488 US 252; 109 S Ct 582; 102 L Ed 2d 607 (1989). The internal consistency test focuses on the text of the tax law and hypothesizes a situation where other states have passed an identical statute. Id. at 261. The tax is internally consis tent if it is structured in a way that, if every state were to impose an identical tax, no multiple taxation would result. Id.
The Michigan general sales tax is internally consistent because most states have imposed sales taxes on retail sales, and only one state can charge a sales tax on transactions similar to the one in question here, i.e., the state in which the retail sale is consummated.
The external consistency test determines whether the state has taxed only that portion of the revenues from the interstate activity that reasonably reflects the intrastate component of the activity being taxed. Id. at 262. This requires examination of the in-state activity that triggers the taxable event.
Here, the sales tax is triggered only by an instate sale of tangible personal property, not by any out-of-state event. Accordingly, the tax is externally consistent as well.
Because we have determined that the sales tax in question is fairly apportioned, it follows that plaintiffs reliance on 1979 AC, R 205.91 is misplaced.
C
Plaintiff next argues that because the General Sales Tax Act has been amended many times since SUW 84-003 was promulgated, the Legislature, by acquiescence, has sanctioned the refund policy.
Although we recognize legislative acquiescence as a proper method of statutory construction, we will not read into this statute that which is not within the manifest intention of the Legislature as gathered from the act itself. In re Marin, 198 Mich App 560, 564; 499 NW2d 400 (1993). Because the intention of the Legislature has already been dis covered, that is, that defendant may not obviate a tax liability imposed by statute absent express statutory authority, that intent must prevail regardless of any conflicting rule of statutory construction. See Attorney General v American Way Life Ins Co, 186 Mich App 679, 682; 465 NW2d 56 (1991).
D
Similarly, we reject plaintiffs argument that because great deference must be accorded defendant’s original interpretation of the General Sales Tax Act, defendant’s interpretation of that act, in the form of 1979 AC, R 205.91 and SUW 84-003, should be upheld.
Although plaintiff correctly states that defendant’s interpretation of the act, as the agency legislatively chosen to enforce it, is afforded deference, Michigan ex rel Oakland Co Prosecutor v Dep’t of Corrections, 199 Mich App 681, 691-692; 503 NW2d 465 (1993), the intent of the Legislature is clear, and there simply is no authority for defendant to grant the tax refund in question.
Accordingly, we conclude that the lower court properly granted summary disposition to defendant and dismissed plaintiff’s complaint on the basis of the illegality of SUW 84-003.
Affirmed. | [
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Per Curiam.
This appeal arises out of a legal malpractice action. Plaintiff Orville Mino appeals as of right from an order granting defendant Michael McCarthy’s motion for summary disposition. We affirm.
Defendant represented plaintiff in a criminal matter that resulted in plaintiff pleading guilty of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and of being an habitual offender, third offense, MCL 769.11; MSA 28.1083. Plaintiff received a sentence of seventeen to fifty years’ imprisonment. Plaintiff pleaded guilty of the offenses on February 8, 1988, and was sentenced on March 1, 1988.
Shortly after sentencing, on September 6, 1988, plaintiff’s newly appointed appellate counsel filed a motion for withdrawal of the guilty plea or resentencing. Along with this motion, plaintiff signed an affidavit stating that he pleaded guilty because his attorney told him he would receive a sentence of five to eight years’ imprisonment and that he was not mentally competent when he pleaded guilty because of his medical condition of diabetes. On May 15, 1989, Oakland Circuit Judge Richard D. Kuhn denied plaintiff’s motion. On June 22, 1990, this Court affirmed the judgment of the trial court in an unpublished opinion per curiam. This Court found that there was no merit to plaintiff’s claims. The Michigan Supreme Court denied leave on April 29, 1991.
On May 17, 1991, plaintiff filed the instant case. He claimed malpractice by defendant. Defendant moved for summary disposition based on the statute of limitations and collateral estoppel. Plaintiff filed a motion for summary disposition claiming that defendant had failed to present a valid defense. On October 4, 1991, the trial court entered an opinion and order granting defendant’s motion for summary. disposition, finding that plaintiff’s claim was barred by the statute of limitations. The trial court found that the complaint should have been filed no later than March 11, 1990.
On appeal, plaintiff’s sole claim is that the trial court erred in finding that the statute of limitations barred him from filing his complaint. Plaintiff argues that a person’s incarceration in a county jail following sentencing and before being transferred to a state prison constitutes imprisonment for purposes of the statute of limitations. We disagree.
MCL 600.5851(3); MSA 27A.5851(3) states:
To be considered a disability, the infancy, insanity, or imprisonment must exist at the time the claim accrues. If the disability comes into existence after the claim has accrued, a court shall not recognize the disability under this section for the purpose of modifying the period of limitations.
The primary goal of statutory construction is to give effect to the Legislature’s intent. Joy Management Co v Detroit, 176 Mich App 722, 730; 440 NW2d 654 (1989). Where a statute is clear and unambiguous, judicial construction or interpretation is precluded. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992); Glazer v Lamkin, 201 Mich App 432, 435-436; 506 NW2d 570 (1993). If judicial construction or interpreta tion is necessary, the court must ascertain and give effect to the intent of the Legislature, assigning words their ordinary, normally accepted meanings. Glazer, supra at 436. In determining legislative intent, courts should give statutory language a reasonable construction that best accomplishes the purpose of the statute. Id.
In Evans v Hebert, 203 Mich App 392; 513 NW2d 164 (1994), this Court thoroughly reviewed the law regarding the statutory provision at issue in this case and determined that pretrial detention does not constitute imprisonment for purposes of MCL 600.5851; MSA 27A.5851. Evans at 403. This Court expressly held that nothing in the legislative history indicated that the Legislature intended to enlarge the scope of the disabilities that extend statutes of limitation to include persons incarcerated in a county facility. Id.
Applying the reasoning in Evans to the instant case, we conclude that the trial court did not err in determining that plaintiff was hot "imprisoned” for purposes of the statute at the time the claim accrued. A cause of action for legal malpractice accrues on the last day of the attorney’s representation of the client. Gebhardt v O’Rourke, 444 Mich 535, 554; 510 NW2d 900 (1994). Plaintiff’s cause of action, therefore, accrued on March 1, 1988, the day on which he was sentenced. Because he was not in a state facility at the time the claim. accrued, he was not disabled for purposes of the statute and, consequently, his suit filed on May 17, 1991, was clearly barred by the two-year statute of limitations. MCL 600.5838; MSA 27A.5838. Accordingly, we hold that the trial court did not err in granting defendant’s motion for summary disposition.
Affirmed. | [
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L. V. Bucci, J.
Olena Smith (hereafter claimant) appeals as of right from an order forfeiting $19,-250. We affirm.
The forfeited money was seized from Derrick Smith and Patricia Rose Daniels at Detroit Metropolitan Airport on April 2, 1987. Derrick Smith is the son of claimant. Patricia Rose Daniels was Derrick Smith’s girl friend.
When Derrick Smith and Daniels arrived at the airport, they checked their bags in for their flight but were told that their bags might not make the flight because the bags were unusually heavy. They left the bags with the airline and then purchased tickets with cash for another flight to Los Angeles. When purchasing the tickets, Daniels showed identification that indicated her name was Joni Smith Talbert. Derrick Smith’s sister’s name is Joni Talbert. Smith’s ticket was purchased in the name of Anthony Fleming.
The Wayne County Sheriff’s Department was notified of Smith and Daniels’ activities at the airport and officers observed that Daniels went into the restroom. When she came out, an officer saw her place something into Smith’s right hand. Sheriff’s deputies approached the pair. Smith identified himself as Dwayne Richards and Daniels identified herself as Joni Talbert. Smith and Dan iels consented to be searched and the officers found a white container labeled "quinine” and a mortar and pestle in Smith’s right jacket pocket. The officers testified at trial that quinine is a known mixer for heroin and that a mortar and pestle can be used to mix heroin and quinine together. The officers also found $19,250 in cash. Most of the cash was wrapped in a plastic bag in Daniels’ purse. The police also found drugs that were in containers that did not have valid prescriptions.
Smith and Daniels were told they were free to leave but the cash was retained. Later, the deputies tested the cash with a police dog trained to detect the scent of drugs. The dog reacted positively to the cash, indicating that it had been close to or had touched narcotics.
Derrick Smith and Daniels subsequently were observed at the airport by deputies on two separate occasions. On one of these occasions, the deputies seized 816 pills containing Dilaudid, a synthetic form of heroin. Testimony was presented that the street value of the Dilaudid was over $30,000.
In early July 1987, the Wayne County Prosecutor’s Office filed a complaint for an order of forfeiture of the currency. The complaint named Derrick Smith and Joni Smith Talbert. Daniels filed an answer under the name of Joni Smith Talbert. In the answer she claimed that Derrick Smith was her brother. Daniels claimed the money came from the estate of Callener McKinney, allegedly her grandmother. When the answer was filed, Daniels was represented by James D. O’Connell, the attorney currently representing claimant.
At a pretrial conference held on September 11, 1987, Daniels testified that her name was Joni Talbert. The prosecutor indicated Daniels was represented by O’Connell and that he had supplied O’Connell with a set of'interrogatories on July 7, 1987, but had not received a reply. Daniels testified that she had never been contacted by Mr. O’Connell. Derrick Smith was present and indicated that he was Talbert’s brother. Daniels told the court that the money seized by the sheriffs deputies on April 2, 1987, was their mother’s. Because Daniels admitted that she did not have an interest in the money, the lower court granted summary judgment, finding that she was not a proper claimant.
Approximately ten days later, O’Connell filed a motion to set aside summary disposition along with an application to intervene on behalf of claimant, which were both denied. In the application to intervene, claimant contended that she had legitimately obtained the money and had entrusted it to her daughter, Joni Smith Talbert, on or about April 2, 1987, for making repairs to a house in California. Claimant further asserted that she learned during the week of September 14, 1987, that the money she had entrusted to her daughter, Joni Smith Talbert, had been seized and was subject to forfeiture.
In an opinion dated April 27, 1989, this Court, acting under the impression that Daniels was the daughter of claimant, reversed the trial court’s order granting summary disposition against Daniels and the order denying claimant’s motion to intervene.
Following remand, the lower court conducted a bench trial. The prosecution presented the testimony of Derrick Smith, who admitted that he used many aliases. He also admitted that the pills and the mortar and pestle that were seized at the airport were his. However, Smith claimed that he had a prescription for the pills and used the mortar and pestle to crush his medicine because he had trouble swallowing pills. Smith admitted that the pills were not in containers with valid prescriptions but claimed that Daniels must have put the pills in another container. Daniels was not present at the trial and Smith did not know her whereabouts.
Smith claimed that his mother had approximately $20,000 in life savings in a small unlocked metal box in her house. Smith testified that he took the money without his mother’s consent to fix a house in Los Angeles his mother had inherited.
Police officers then testified regarding the seizure of the money and their contacts with Smith and Daniels at the airport. Officers testified that Los Angeles was a "drug source” city and Detroit was a "demand” city. They further testified that Smith and Daniels appeared to be acting as drug couriers.
Claimant testified that she had retired from Chrysler Corporation and that the cash seized at the airport was her life savings. She claimed that although she had a bank account, she kept the cash in a small unlocked metal box in her house. She further claimed that she noticed that the cash was missing shortly after her son, Derrick Smith, visited her in April 1987. She asked a few family members about the money and came to the conclusion that Derrick had taken it. She claimed that she first talked about this matter with Derrick while the forfeiture proceedings were pending. She claimed that she had discussed fixing the house in Los Angeles with Derrick and said that she would have given him the money to do so.
At the conclusion of the trial, the lower court concluded that the cash was subject to forfeiture. The lower court correctly noted the primary issue in this case was credibility. In its findings of fact, the trial court concluded that the testimony pre sented by the claimant was not truthful. The lower court believed that the cash was used for drug trafficking and that the original claimant, Daniels, was the party to whom the money actually belonged. The lower court felt there was an effort to try to put a person with some modicum of legitimacy by way of employment before the court to establish a third-party claim.
On appeal, claimant first argues that the cash must be returned to her because the state failed to comply with the notice requirement set forth in the forfeiture statute. The forfeiture proceedings were conducted pursuant to the controlled substances act, MCL 333.7101 et seq.; MSA 14.15(7101) et seq. If property with a value that does not exceed $50,000 is seized pursuant to the act, the local unit of government that seized the property is required to give notice to the owner of the property:
The local unit of government that seized the property, or, if the property was seized by the state, the state shall notify the owner of the property that the property has been seized, and that the local unit of government or, if applicable, the state intends to forfeit and dispose of the property by delivering a written notice to the owner of the property or by sending the notice to the owner by certified mail. If the name and address of the owner are not reasonably ascertainable, or delivery of the notice cannot be reasonably accomplished, the notice shall be published in a newspaper of general circulation in the county in which the property was seized, for 10 successive publishing days. MCL 333.7523(l)(a); MSA 14.15(7523) (l)(a).
The goal of statutory construction is to effectuate legislative intent. In re Forfeiture of One 1987 Chevrolet Blazer, 183 Mich App 182, 184; 454 NW2d 201 (1990). Although forfeitures generally are not favored in the law, the forfeiture provisions of the controlled substances act are embodied in the Public Health Code and, therefore, must be interpreted liberally in order to promote the health, safety, and welfare of Michigan’s citizens. Id. However, the requirements of the forfeiture provisions may be construed strictly to ensure that the due process rights of claimants are protected. Const 1963, art 1, § 17; In re Forfeiture of One 1983 Cadillac, 176 Mich App 277, 280; 439 NW2d 346 (1989).
United States currency normally is considered to be a bearer instrument. See Ramirez v Bureau of State Lottery, 186 Mich App 275, 278-279; 463 NW2d 245 (1990). Possession of such property is prima facie evidence of ownership and the burden of producing evidence regarding ownership rests upon the person disputing such ownership. Barnes v Detroit, 379 Mich 169, 177; 150 NW2d 740 (1967); Glass v Crossman, 289 Mich 130, 138; 286 NW 184 (1939).
Although claimant fails to cite any case law regarding the adequacy of notice in forfeiture proceedings, federal courts have found that notice was defective when the government knew at the time the notice was sent that the notice was likely to be ineffective. See Sarit v United States Drug Enforcement Administration, 987 F2d 10, 15 (CA 1, 1993). Federal courts have implied a bad-faith standard to determine the adequacy of notice. In applying this standard, a court determines the notifying party’s knowledge of the likely effectiveness of notice from the moment at which notice is sent. Courts are reluctant to extend a notifying party’s duty beyond the initial notice absent exceptional circumstances. Id. at 14-15.
Smith and Daniels were in possession of the currency. The deputies could properly rely on the presumption of ownership. The notice sent to Smith and Daniels complied with MCL 333.7523; MSA 14.15(7523). There were no exceptional circumstances that would have required the deputies to notify claimant. There is no credible evidence that Smith and Daniels properly identified claimant as the owner of the cash when it was seized. While they claimed they obtained the cash from their mother, they were using aliases. Claimant is not Daniels’ mother. The prosecutor served interrogatories to Daniels requesting the identity of all claimants, but Daniels did not answer them. Considering these circumstances, the deputies did not have a duty to extend notice to claimant. Claimant received sufficient notice of this action and was given an adequate opportunity to claim that she owned the currency.
Claimant next argues that the prosecutor was improperly allowed to impeach its own witness, Derrick Smith, because it failed to call Mr. Smith as an adverse witness and therefore the prosecution is bound by Derrick Smith’s testimony. Derrick Smith, however, was not an adverse witness because he was not the opposing party or an employee or agent of the opposing party. MCL 600.2161; MSA 27A.2161. Pursuant to MRE 607, the credibility of a witness may be attacked by any party, including the party calling the witness. Claimant’s argument is without merit.
Claimant next argues that the lower court’s decision must be reversed because it was based on facts that were not established by the evidence. Claimant argues that there was insufficient evidence to support the trial court’s findings.
The trial court’s duty to make specific factual findings is satisfied where it is manifest that the trial court was aware of factual issues and cor rectly applied the law. People v Porter, 169 Mich App 190, 194; 425 NW2d 514 (1988). Findings of fact by the trial court will not be set aside unless clearly erroneous. MCR 2.613(C); In re Forfeiture of United States Currency, 164 Mich App 171, 179; 416 NW2d 700 (1987). A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Contel Systems Corp v Gores, 183 Mich App 706, 711; 455 NW2d 398 (1990). In applying the clearly erroneous standard, regard is given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it. MCR 2.613(C). In this case, the trial court found that claimant and Derrick Smith were not credible.
Claimant distorts the record in making this argument. The record amply supports the trial court’s finding that the testimony of claimant and Smith was not credible. The record established that Smith and Daniels frequently traveled between Los Angeles, a drug source city, and Detroit, a demand city. While traveling, they used numerous aliases and carried large amounts of cash, large amounts of narcotics in containers that did not have prescriptions affixed to them, and paraphernalia used for preparing drugs for sale. The record supports the trial court’s conclusion that Smith and Daniels tried to use claimant as a straw person because she had some modicum of legitimacy by way of employment, in an attempt to regain the money that had been seized.
Claimant also argues that the trial court was barred by the law of the case doctrine from finding that Daniels owned the currency. Claimant argues that because the trial court found Daniels was not the owner of the currency when it granted sum mary disposition at the pretrial conference, it could not later find, after its decision granting summary disposition was reversed by this Court and after a trial had been conducted, that Daniels was the owner of the currency.
The thrust of the law of the case doctrine is that an inferior court is bound by the rulings of a superior court and that decisions made during a prior appeal are not open to review in a subsequent appeal. People v Wells, 103 Mich App 455, 462; 303 NW2d 226 (1981). This doctrine exists primarily to maintain consistency and avoid reconsideration of matters previously decided in the course of a single continuous lawsuit. Marysville v Pate, Hirn & Bogue, Inc, 196 Mich App 32, 34; 492 NW2d 481 (1992). The law of the case doctrine merely reflects the general practice of courts to refuse to reopen what has been decided; it is not a limit on their power. Id.
The law of the case doctrine does not apply to the lower court’s original ruling granting summary disposition against Smith and Daniels because the doctrine applies to rulings from appellate courts. This Court’s prior ruling merely reversed the trial court’s grant of summary disposition and required the lower court to allow claimant to intervene. This Court did not restrict the lower court’s discretion to determine the ownership of the currency. We also do not believe that the law of the case doctrine should apply because the prior decision was based in part on fraudulent statements made by claimant and Daniels. The lower court was not precluded by the law of the case doctrine from determining that Daniels was the owner of the currency.
Claimant next argues that the prosecutor improperly impeached claimant and Derrick Smith with evidence of prior arrests and convictions. Derrick Smith testified that during the five years he lived in Los Angeles he was involved in two drug cases and pleaded guilty to one charge of "internal” possession. After this information was elicited, claimant’s counsel stated that he should interpose an objection and that the prosecutor was attempting to impeach its own witness and referred to People v Allen, 429 Mich 558; 420 NW2d 499 (1988).
Counsel’s mere reference to Allen was insufficient to preserve this issue, for appeal. The Court in Allen discussed the differing interpretations of the application of MRE 609(a) to the practice of impeaching criminal defendants with evidence of prior convictions. Allen, supra at 563. This is not a criminal case. It was incumbent on claimant’s counsel to specify the nature of the objection. An issue is not properly preserved without a specific and clear objection for stated reasons that enables a trial judge to rule clearly and definitively on an assignment of error. Wade v Bay City, 57 Mich App 581, 588; 226 NW2d 569 (1975). While claimant’s counsel referred to Allen, he failed to specify the grounds for his objection and therefore failed to preserve this issue for review.
However, if this issue were properly preserved we would find that admission of evidence of Smith’s prior convictions was harmless error. This was a bench trial and the judge, sitting as fact-finder, is presumed to possess an understanding of the law that allows him to understand the difference between admissible and inadmissible evidence or statements of counsel. People v Wofford, 196 Mich App 275, 282; 492 NW2d 747 (1992). Any error in the admission of this testimony was also harmless because Smith’s testimony was incredible. See Allen, supra at 612.
Claimant also contends that she was improperly impeached with evidence regarding a prior arrest for larceny and possession of marijuana. Claimant’s counsel failed to object to these questions at trial. Objections to the admission of evidence may not be raised for the first time on appeal absent manifest injustice. People v Stimage, 202 Mich App 28, 29; 507 NW2d 778 (1993). Even if this issue was properly preserved, any error would be harmless because there was ample other evidence to support the trial court’s findings regarding credibility.
Claimant next argues that the Wayne County Sheriffs Department was not authorized under the controlled substances act to seize the currency. Claimant ‘first raises this issue on appeal. This Court need not review issues that are initially raised on appeal. Deal v Deal, 197 Mich App 739, 741; 496 NW2d 403 (1993). Moreover, claimant fails to cite any authority to support her contention that the sheriffs department is not empowered to seize property under the controlled substances act. Claimant merely refers to several sections of the act and argues that these specific sections do not empower the sheriff to forfeit property.
The Wayne County Sheriffs Department clearly had the authority to seize the cash under the forfeiture provisions of the controlled substances act. Several of the forfeiture provisions refer to the "local unit of government that seized the property.” MCL 333.7523; MSA 14.15(7523); MCL 333.7524; MSA 14.15(7524); MCL 333.7524a; MSA 14.15(7524a). The Wayne County Sheriffs Department is a local unit of government. Natl Union of Police Officers Local 502-M, AFL-CIO v Wayne Co Bd of Comm’rs, 93 Mich App 76, 82; 286 NW2d 242 (1979). This issue is without merit.
On the totality of the record we find no basis for reversal. The judgment of forfeiture is affirmed. Costs to appellee.
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Per Curiam.
Plaintiff appeals as of right from the trial court’s order granting defendant’s motion for summary disposition pursuant to MCR 2.116(C) (5) on the ground that plaintiff, a putative father, does not have standing to bring an action under the Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq., or under the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq., to determine the paternity and custody of a child born while the mother was married to another man. We affirm in part and reverse in part.
I
Jessica Angeline Zamarron was born on September 16, 1987, while defendant was married to Jose Zamarron. Jose Zamarron filed for divorce in August 1989, alleging in his complaint that blood tests revealed that he could not be the child’s father. Defendant admitted these facts in her answer to the complaint for divorce. Jose and Martha Zamarron’s judgment of divorce made no provision for the custody or support of the child.
Defendant and Jessica lived with plaintiff from May 1990 to July 1991. Plaintiff continued to have extensive visitation with the child from July 1991 through August 1992. The child recognized plaintiff as her father and, in April 1992, the parties signed an extrajudicial agreement acknowledging plaintiffs paternity. Defendant remarried in July 1992 and shortly thereafter refused plaintiff any contact with the child. A determination at law of the child’s paternity has not been made.
On September 8, 1992, plaintiff filed a "Complaint for Custody” pursuant to the Child Custody Act, wherein he requested joint legal custody with specific rights of visitation. In her answer to the complaint, defendant neither admitted nor denied that plaintiff was the child’s father and averred that whether plaintiff was the child’s father was the subject of the present lawsuit. Defendant also asserted the affirmative defense that plaintiff did not have standing, because defendant had been a married woman at the time the child was conceived and born.
Subsequently, plaintiff was granted leave to amend his complaint to allege, inter alia, that there had been acknowledgment of paternity by virtue of plaintiff and defendant’s "Agreement Acknowledging Paternity,” as well as by Jose Zamarron’s complaint for divorce and defendant’s answer to the complaint for divorce whereby both Jose and defendant admitted that Jose was not the child’s father. In the amended complaint, plaintiff sought a determination of paternity, in addition to joint legal custody and specific rights of visitation.
In April 1993, defendant filed a motion for summary disposition on the ground that plaintiff had not alleged that the child was "born out of wedlock” as that term is defined in the Paternity Act and, therefore, that plaintiff did not have standing to file a complaint under the Paternity Act or the Child Custody Act. The trial court agreed and granted defendant’s motion for summary disposition on the basis of Girard v Wagenmaker, 437 Mich 231; 470 NW2d 372 (1991). The trial court subsequently granted in part and denied in part plaintiff’s motion for clarification or to amend his complaint.
II
A proper action to determine paternity should be brought under and governed by the provisions of the Paternity Act. Id. at 251. Absent a determination that a putative father is the natural or biological father of a child, a claim under the Child Custody Act is barred. Id. It is undisputed that plaintiff did not seek a determination of paternity or an order of filiation under the Paternity Act before filing a complaint for custody under the Child Custody Act. Hence, the trial court properly determined that plaintiff did not have standing to bring an action under the Child Custody Act. We disagree, however, with the trial court’s finding that plaintiff did not allege sufficient facts to establish standing under the Paternity Act.
A putative father may maintain an action under the Paternity Act only if the child is born out of wedlock. Girard, supra at 243; MCL 722.714(6); MSA 25.494(6). The Paternity Act defines a child born out of wedlock as:
[A] child begotten and born to a woman who was not married from the conception to the date of birth of the child, or a child which the court has determined to be a child born or conceived during a marriage but not the issue of that marriage. [MCL 722.711(a); MSA 25.491(a).]
In this action, we focus on the second definition of "born out of wedlock,” namely, where a court previously has determined that a child born to a married woman is not issue of the marriage. In an action under this clause, a prior determination that the child is not issue of the marriage is required at the time of the filing of the complaint. Girard, supra. Although not artfully drawn, plaintiffs complaint essentially alleged that it was determined in the divorce action between Jose and defendant that the child was not issue of the marriage. Indeed, at the hearing on defendant’s motion for summary disposition, defendant argued that the judgment of divorce provided for the custody and support of the biological child of Jose and defendant but made no provision for the custody and support of Jessica._
In Dep’t of Social Services v Baayoun, 204 Mich App 170; 514 NW2d 522 (1994), the Department of Social Services, on behalf of a minor child and Loretta Mathieu, the child’s mother, brought an action in the circuit court seeking an order of filiation and support. The plaintiffs alleged that the child was conceived during the marriage of Loretta to Joseph Mathieu, but that Loretta was not married when the child was born and that the child was not issue of the marriage. The trial court denied summary disposition for the defendant, rejecting the defendant’s assertion that the plaintiffs lacked standing under the Paternity Act because the child was not born out of wedlock within the meaning of the act. Following court-ordered blood tests that tended to establish that the defendant was the father of the child, the court again denied summary disposition for the defendant. This Court reversed, holding that, because it was uncontroverted that the child was conceived while his mother was married and because at the time of the filing of the complaint there had been no judicial determination that the child was not issue of the marriage, the child was not a child born out of wedlock within the meaning of the Paternity Act and the plaintiffs lacked standing to proceed under that act.
In Baayoun, the plaintiffs argued that the default judgment of divorce determined that the child was not an issue of the marriage. In rejecting the plaintiffs’ argument, this Court noted that, because Joseph was not aware that Loretta was pregnant at the time of the divorce action, a divorce judgment that was silent with regard to the question of paternity and child support cannot be deemed to have determined the issue of paternity.
In contrast, a divorce judgment that is specific with regard to the question of custody and support of one minor child of the marriage and that is silent with regard to another child may, under appropriate circumstances, be deemed to have determined the issue of paternity. The present case presents an example of such circumstances. Jose alleged in his complaint that he could not be Jessica’s biological .father and submitted blood test results in support of the allegation. Defendant admitted the allegation. In a recorded divorce settlement, the parties acknowledged that there was only one minor child of the marriage. The judgment of divorce provides for the custody and support of that child but not for Jessica. Although the judgment of divorce makes no specific finding with regard to Jessica’s paternity, the determination that Jessica is not issue of the marriage is implicit in the judgment of divorce.
Accordingly, we hold that plaintiff has established standing to maintain this action pursuant to the second clause of § 1(a) of the Paternity Act. If it is determined on remand that plaintiff is the child’s natural or biological father, plaintiff then will have standing to bring an action under the Child Custody Act. See Girard, supra at, 251.
III
Plaintiff also contends that the trial court abused its discretion in granting defendant’s oral motion for attorney fees incurred as a result of opposing plaintiff’s motion for clarification or for leave to amend the complaint. MCR 2.114. We agree. Neither the trial court’s remarks at the motion hearing nor the order granting summary disposition clearly identifies the ground on which summary disposition was granted. Indeed, the trial court granted plaintiff’s motion for clarification. Under these circumstances, we conclude that the trial court abused its discretion in finding that plaintiff’s motion was frivolous and that attorney fees were warranted. Wojas v Rosati, 182 Mich App 477, 480; 452 NW2d 864 (1990).
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
Although defendant’s motion for summary disposition was brought under MCR 2.116(C)(5) and (C)(8), following plaintiffs motion for clarification the trial court clarified that summary disposition was granted solely on the ground that plaintiff did not have standing. MCR 2.116(C)(5).
The Agreement Acknowledging Paternity is attached as Appendix A.
It appears that plaintiff originally brought his complaint for custody under the Child Custody Act on the basis of a belief that the written acknowledgment by both himself and defendant that he is the child’s father legally established him as the child’s father.
Plaintiffs complaint does not utilize the phrase "born out of wedlock,” but it can be discerned from the allegations in the complaint that plaintiff was alleging that it was determined in a prior judicial proceeding that the child was not issue of the marriage and, therefore, was born out of wedlock.
In divorce proceedings where the paternity of a child born in wedlock is at issue, the trial court should make an explicit factual finding whether the child is issue of the marriage. See Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977).
Effective October 1, 1995, if the court makes a determination of paternity and there is a dispute between the parties concerning custody or visitation, the court shall immediately enter an order that temporarily establishes custody and visitation of the child. The court shall then conduct a hearing as provided in the Child Custody Act to resolve the dispute. See § 7b of the Paternity Act, MCL 722.717b; MSA 25.497(2), as added by 1994 PA 388. We fully expect the dispute in the present case to be resolved before the effective date of § 7b.
We feel compelled to express our dislike of the requirement that á putative father obtain a determination of paternity under the Paternity Act before bringing an action for custody under the Child Custody Act in situations where the mother of the child has unequivo cally acknowledged the putative father as the natural father of the child. We invite the Legislature to modify the Paternity Act to provide that a written acknowledgment by both the man and the woman that the man is the father of a named child born out of wedlock legally establishes the man as the father of the child for all-purposes. This modification would work to prevent the undeniable harm to a child that results when a mother unilaterally decides to terminate the child’s contact with the putative father and the father is forced to seek a judicial determination that he is the natural father before bringing an action for custody or visitation.
Specifically, it is unclear whether the trial court found that plaintiff failed to allege that the child was born out of wedlock, MCR 2.116(C)(8), or failed to establish that the child was born out. of wedlock, MCR 2.116(C)(5).
Given our resolution of this case, we need not decide the remainder of the issues raised by plaintiff. | [
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Per Curiam.
These consolidated appeals arise out of a decision of respondent Michigan Department of Public Health (mdph) finding that petitioner Janice Smith, a certified nurse’s aide, had mentally abused a patient at the Gogebic Medical Care Facility. In Docket No. 168368, defendant AFSCME Local 992, AFL-CIO, appeals as of right an order of the circuit court vacating the arbitration opinion and award in which Smith was cleared of abuse charges and ordered reinstated. In Docket No. 168369, petitioner Janice Smith appeals as of right an order of the circuit court affirming the mdph’s finding that she had engaged in the mental abuse of a patient. We affirm.
We first address petitioner Janice Smith’s argument on appeal that the mdph’s finding that she engaged in the mental and emotional abuse of a patient was tainted by a substantial and material error of law. Smith asserts that the agency improperly relied on a definition of the term "abuse” that exceeded the statutory definition contained in MCL 400.11(a); MSA 16.411(a). This argument is without merit.
Section 11(a) of the Social Welfare Act sets forth the statutory definition of abuse as it relates to a licensed health care provider:
"Abuse” means harm or threatened harm to an adult’s health or welfare caused by another person. Abuse includes, but is not limited to, nonaccidental physical or mental injury, sexual abuse, or maltreatment. [MCL 400.11(a); MSA 16.411(a).]
In determining that Smith had abused a resident, the mdph relied on subsection b of the illustrations of mental and emotional abuse contained in the "working draft” of the "Bureau of Health Systems Policy & Procedure”:
General Standard
There is no fixed rule on when an interaction between an individual and a patient or resident is serious enough to warrant a finding of mental or emotional abuse. Even minimal psychological harm may be enough; the answer always depends on the circumstances of the individual case. However, the following factual situations would provide a reasonable basis for concluding thát a finding of mental or emotional abuse is warranted:
a. The interaction coerces or intimidates the patient or resident into surrendering his or her money or personal belongings; or
b. The interaction subjects the patient or resident to scorn, ridicule or humiliation; or
c. The interaction produces a noticeable level of fear, anxiety, agitation, withdrawal or other emotional distress in the patient or resident which is not otherwise explainable.
d. The interaction involves a threat of physical harm, punishment, or deprivation.
In arguing that the illustration relied on by the mdph exceeded the statutory definition of abuse in § 11(a), Smith contends that "abuse”, is limited to harm or threatened harm to a patient’s or resident’s health or welfare. In essence, Smith claims that behavior that subjects a patient or resident to scorn, ridicule, or humiliation does not constitute "abuse.”
It is well settled that agencies are allowed "to interpret the statutes they are bound to administer and enforce.” Clonlara, Inc v State Bd of Ed, 442 Mich 230, 240; 501 NW2d 88 (1993). In our view, the illustration relied on by the mdph is supported by the statute. We find unpersuasive Smith’s narrow construction of the term "abuse” in light of its statutory definition. Contrary to Smith’s argument on appeal, the statute includes "rionaccidental mental injury” and "maltreatment” as forms of abuse. Because scorn, ridicule, or humiliation are all forms of mental injury and maltreatment, we conclude that the mdph’s decision does not represent an error of law. Further, we conclude that the decision was supported by competent, material, and substantial evidence on the entire record.
In regard to the afscme’s claim that the circuit court erred in vacating the arbitration award in Smith’s favor, we note that judicial review of an arbitrator’s decision is narrowly circumscribed. In Lincoln Park v Lincoln Park Police Officers Ass’n, 176 Mich App 1, 4; 438 NW2d 875 (1989), we set forth the limited scope of judicial review of an arbitrator’s award:
The necessary inquiry for this Court’s determination is whether the award was beyond the contractual authority of the arbitrator. Labor arbitration is a product of contract and an arbitrator’s authority to resolve a dispute arising out of the appropriate interpretation of a collective bargaining agreement is derived exclusively from the contractual agreement of the parties. Port Huron Area School Dist v Port Huron Ed Ass’n, 426 Mich 143; 393 NW2d 811 (1986). It is well settled that judicial review of an arbitrator’s decision is limited. A court may not review an arbitrator’s factual findings or decision on the merits. Port Huron, supra. Rather, a court may only decide whether the arbitrator’s award "draws its essence” from the contract. If the arbitrator in granting the award did not disregard the terms of his employment and the scope of his authority as expressly circumscribed in the contract, judicial review effectively ceases.
As an exception to the general rule of judicial deference, we have recognized that a court may refuse to enforce an arbitrator’s decision when it is contrary to public policy. Lincoln Park, supra at 6-7, citing United Paperworkers Int'l Union, AFL-CIO v Misco, Inc, 484 US 29; 108 S Ct 364; 98 L Ed 2d 286 (1987); Saginaw v Michigan Law Enforcement Union, Teamsters Local 129, 136 Mich App 542; 358 NW2d 356 (1984). In United Paperworkers Int'l, supra, however, the United States Supreme Court cautioned that this exception "is limited to situations where the contract as interpreted would violate 'some explicit public policy’ that is 'well defined and dominant, and is to be ascertained "by reference to the laws and legal precedent and not from general considerations of supposed public interest.” ’ ” Id. at 43, quoting W R Grace & Co v Rubber Workers, 461 US 757, 766; 103 S Ct 2177; 76 L Ed 2d 298 (1983), quoting Muscahy v United States, 324 US 49, 66; 65 S Ct 442; 89 L Ed 2d 744 (1945).
In arguing for the application of this exception, plaintiff Gogebic Medical Care Facility relies on 42 CFR 483.13(c)(1)(ii), which prevents a medical care facility from employing individuals who have been:
(A) Found guilty of abusing, neglecting, or mistreating individuals by a court of law; or
(B) Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property ....
Plaintiff argues that because the mdph has concluded that Smith committed abuse of a resident and flagged her name in the State Nurse Aide Registry, the arbitration award would violate 42 CFR 483.13(c)(1)(ii). We agree with plaintiff’s argument. The arbitration award, if enforced, would cause plaintiff to act unlawfully. We believe that this regulation reflects a "well defined” and "dominant” public policy in favor of protecting residents of long-term care facilities from abusive treatment by nurse’s aides. In light of our decision upholding the mdph’s determination that Smith had committed abuse, we conclude that the arbitrator’s award reinstating Smith was properly set aside.
Finally, we consider Smith’s claim that she was deprived of her constitutional right to a meaningful review of the mdph’s decision because the lower court ruled on her appeal without benefit of a verbatim record of her hearing. However, petitioner failed to object or request that the administrative hearing be tape-recorded. Further, petitioner failed to timely raise this issue in her petition for review as required by MCR 7.105(1). Therefore, we conclude that petitioner has waived appellate review of this issue.
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MacKenzie, J.
Plaintiff appeals as of right from an order granting partial summary disposition in favor of defendants Mercury Marine, a division of Brunswick Corporation; Bayliner Marine Corporation; and Blue Fin Marina pursuant to MCR 2.116(C)(4) and (8). We affirm.
Plaintiffs decedent died from injuries sustained when he was struck by the propeller of a powerboat that ran over him while he was swimming. In this wrongful death action, plaintiff alleged in relevant part that Bayliner, Mercury, and Brunswick, as manufacturers of the boat and its inboard motor and propeller, and Blue Fin Marina, as installer of the propeller, were negligent in failing to design, manufacture, and equip the boat and motor with a propeller guard and in failing to warn of the dangers of an unguarded propeller. The trial court granted summary disposition in favor of defendants on these claims; the parties stipulated the dismissal with prejudice of plaintiff’s additional claims, including breach of express and implied warranties.
In granting partial summary disposition in favor of defendants, the trial court concluded that it lacked subject-matter jurisdiction over plaintiff’s propeller guard claims because they were preempted by the Federal Boat Safety Act (fbsa), 46 USC 4301 et seq. Plaintiff contends that the trial court erred in reaching this conclusion. While the question is one of first impression in Michigan, the majority of other jurisdictions that have considered the issue have held that state tort claims based on injuries resulting from unguarded boat propellers are preempted by the fbsa. We agree with that conclusion.
The Supremacy Clause of the United States Constitution provides that the laws of the United States "shall be the supreme Law of the Land” and grants Congress the power to preempt state law. US Const, art VI, cl 2; Mowery v Mercury Marine, Division of Brunswick Corp, 773 F Supp 1012, 1013 (ND Ohio, 1991). Consideration of any issue arising under the Supremacy Clause begins with the assumption that the historic police powers of the state are not to be superseded by federal law unless that is the clear and manifest purpose of Congress. Cipollone v Liggett Group, Inc, 505 US —; 112 S Ct 2608; 120 L Ed 2d 407, 422 (1992). Accordingly, central to any preemption analysis is a determination of congressional intent. Id.
Congress’ intent to preempt state law may be explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Id. at 120 L Ed 2d 422-423. When Congress has consid ered the issue of preemption and has included in the enacted legislation a provision that explicitly addresses that issue and provides a reliable indicium of congressional intent with respect to state authority, there is no need to infer congressional intent to preempt state laws. Id. at 423. The preemption doctrine applies not only to state laws and regulations, but to the imposition of damages under state tort law as well, because an award of damages also acts as a form of regulation and can frustrate congressional objectives. San Diego Building Trades Council v Garmon, 359 US 236, 247; 79 S Ct 773; 3 L Ed 2d 775 (1959); Cipollone, supra at 120 L Ed 2d 426; Shields v Outboard Marine Corp, 776 F Supp 1579 (MD Ga, 1991). But see Moore v Brunswick Bowling & Billiards Corp, 889 SW2d 246 (Tex, 1994).
The pbsa contains an express preemption clause, codified at 46 USC 4306, that provides in relevant part:
Unless permitted by the Secretary [of Transportation] under section 4305 of this title, a State or political subdivision of a State may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment performance or other safety standard or imposing a requirement for associated equipment . . . that is not identical to a regulation prescribed under section 4302 of this title.
Section 4302 authorizes the Secretary of Transportation to prescribe regulations requiring the installation of certain equipment on recreational vessels and prohibiting the installation of equipment that does not conform with federal safety standards.
The express language of 46 USC 4306 makes it clear that Congress intended to forbid state boat equipment regulations that are not identical to the federal rules. Mowery, supra at 1014; Shields, supra at 1581; Farner v Brunswick Corp, 239 Ill App 3d 885; 180 Ill Dec 493; 607 NE2d 562, 567 (1992). Further, the statute’s legislative history also indicates Congress’ intent to preempt state boat equipment regulations except where they are parallel to federal regulations. Mowery, supra at 1014, citing S Rep No 248, 92nd Cong, 1st Sess, reprinted in 1971 US Code Cong & Admin News 1333, 1341; Davis v Brunswick Corp, 854 F Supp 1574, 1580 (ND Ga, 1993), citing H R Rep No 338, 98th Cong, at 160, reprinted in 1983 US Code Cong & Admin News 924, 972. An award of damages to plaintiff for the failure to install a propeller guard would be the equivalent of a state regulation requiring propeller guards on motors of recreational boats. Mowery, supra at 1016-1017; Davis, supra at 1580; Farner, supra at 607 NE2d 566-567. Thus, the question becomes whether a propeller guard requirement is identical to the federal requirements for equipment on recreational boats. See Shields, supra at 1581. If it is not, then plaintiffs claims are preempted under 46 USC 4306. See Shield v Bayliner Marine Corp, 822 F Supp 81, 84 (D Conn, 1993) ("State laws that prescribe different safety measures are preempted by the FBSA.”).
The Secretary of Transportation’s regulatory authority under the fbsa has been legislatively delegated to the United States Coast Guard. Mowery, supra at 1015; Shields, supra at 1581. On the basis of recommendations of the National Boating Safety Advisory Council and its Propeller Guard Subcommittee, the Coast Guard has adopted the official position that "[available data do not support imposition of a regulation requiring propeller guards on motorboats.” Mowery, supra at 1015- 1016. See also Shields, supra at 1581; Farner, supra at 607 NE2d 566.
The Coast Guard’s decision not to regulate the installation and use of propeller guards is the functional equivalent of a rule prohibiting states from requiring them:
[The decision of the Coast Guard not to regulate the use of propeller guards] has the same legal consequence as if the Coast Guard had issued a safety standard declaring that the states are prohibited from adopting a regulation requiring propeller guards on recreational boats. See Arkansas Electric Cooperative Corp v Arkansas Public Service Comm, 461 US 375, 384; 103 S Ct 1905, 1912; 76 L Ed 2d 1 (1983) ("[A] federal decision to forego regulation in a given area may imply an authoritative federal determination that the area is best left unregulated, and in that event would have as much pre-emptive force as a decision to regulate”).
Congress has determined, through its statutory delegation of its regulatory authority to the Secretary of Transportation (and then delegated by the Secretary to the Coast Guard), that there shall be no federal propeller guard requirement. Therefore, in the absence of a federal requirement, manufacturers are given the choice whether to install them. Any state requirement compelling them to do so would be preempted under the fbsa. [Mowery, supra at 1016; emphasis added.]
Accord Shields, supra at 1581; Farner, supra at 607 NE2d 566.
In this case, any award of damages to plaintiff would be based on a determination that Michigan law requires the installation and use of propeller guards on recreational boats. Such a requirement is not identical to the Coast Guard’s regulations, however. Plaintiffs claims regarding defendants’ failure to install a propeller guard are therefore preempted under the fbsa. Mowery, supra at 1016; Farner, supra at 607 NE2d 567; Shields, supra at 1581; Shield, supra at 84; Davis, supra at 1580. But see Moore, supra. The same analysis applies to plaintiffs failure to warn claims: if an award of damages were allowed for defendants’ failure to warn of the dangers of an unguarded propeller, it would be tantamount to a state requirement that explicit warnings be given. Davis, supra at 1583-1584. Such an explicit warning would be beyond the requirements specified by the federal government. Id. at 1584. Plaintiffs failure to warn claims are therefore also preempted. Id.
Federal preemption deprives a state court of subject-matter jurisdiction. Cuffe v General Motors Corp, 166 Mich App 766, 771; 420 NW2d 874 (1988). Accordingly, we find no error in the trial court’s order granting defendants partial summary disposition of plaintiff’s propeller guard and failure to warn claims pursuant to MCR 2.116(C)(4).
In the alternative, plaintiff contends that summary disposition was improper under MCR 2.116(C)(8) because defendants had a duty to design a motor with a propeller guard and a duty to warn of the dangers of an unguarded propeller. This argument also is without merit. Under the reasoning of Mowery, Shields, Shield, Farner, and Davis, supra, defendants did not have a duty to install a propeller guard or a duty to warn because the fbsa does not require propeller guards or warnings, and the state is preempted from imposing such duties. Had the trial court determined that defendants owed such duties, "it would be tantamount to recognition of a state requirement that they be installed — an act explicitly forbidden by the fbsa’s preemption clause. Mowery, supra at 1016. Accordingly, summary disposition under MCR 2.116(C)(8) was proper. See Moody v Chevron Chemical Co, 201 Mich App 232, 237; 505 NW2d 900 (1993).
Affirmed.
J. R. Chylinski, J., concurred.
Although not raised by plaintiff, we note that the fbsa contains a "savings clause” stating that compliance with the law will not relieve a person from liability at either common or state law. 46 USC 4311(g). Arguments that this clause preserves a state tort claim for failure to equip a boat motor with a propeller guard were rejected in Mowery, supra at 1017; Shields, supra at 1581-1582; and Farner, supra at 607 NE2d 567. We agree with those cases. The purpose of the savings clause is to prevent a manufacturer from using compliance with the safety standards of the act as a defense against defectively designed products that are actually installed; it has no application to claims that a manufacturer is liable for not installing a device it had a choice not to install. Farner, supra at 607 NE2d 567.
Plaintiff contends that under Cipollone, supra, her express warranty claim is not preempted by federal law and therefore should have survived defendants’ motions for summary disposition. However, defendants did not move for summary disposition of plaintiff’s warranty claims, arid the trial court’s order of partial summary disposition did not dismiss her warranty claims. Instead, plaintiffs warranty claims were dismissed by stipulation of the entry of an order dismissing with prejudice all of the claims in plaintiff’s complaint or which could have been added to plaintiff’s complaint, other than the claims based on failure to equip the boat motor with a propeller guard and failure to warn. Because plaintiff stipulated the entry of an order dismissing her warranty claims, she is not in a position to challenge that dismissal on appeal. | [
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Per Curiam.
Defendant appeals by leave granted from the October 30, 2000, order of the Worker’s Compensation Appellate Commission (wcac) that affirmed the magistrate’s open award of disability benefits. We affirm.
On January 22, 1997, plaintiff sustained a crushing injury during the course of his employment when his right hand became caught between two bottle carts. Within two weeks of his injury, plaintiff stopped working. He has undergone four surgeries on his hand. Additionally, he has experienced depression, anxiety, and panic attacks since his accident. According to plaintiffs testimony before the magistrate, his panic attacks are triggered whenever he hears anyone mention Meijer or he sees a Meijer logo. He takes antianxiety and antidepression medications. He has also undergone psychiatric hospitalization.
Plaintiff commenced the instant worker’s compensation claim, alleging a disability based on fractured bones in his right hand, as well as depression. In a written opinion dated September 29, 1999, the magistrate concluded that plaintiff suffered from a compensable mental disability arising from his physical iiyury because he suffers from panic attacks whenever is he exposed to anything associated with Meyer. The magistrate further found that plaintiff cannot return to work at Meijer because of his “substantial feelings of anxiety relative to Meijer.” The magistrate also found that this mental disability arose from the actual events of employment that occurred on January 22, 1997, and that work events significantly contributed to plaintiffs mental disability.
The magistrate also found as a matter of fact that plaintiff’s mental disability provided him with reasonable cause for refusing defendant’s bona fide offers of reasonable employment. Finally, the magistrate concluded that plaintiffs disability benefits should be reduced on the basis of a work-avoidance theory. Specifically, the magistrate reasoned as follows:
The final issue in this case is whether the plaintiff’s entitlement to wage loss benefits should be reduced on the theory of work avoidance. Under Haske [v Transport Leasing, Inc, Indiana, 455 Mich 628; 566 NW2d 896 (1997)], plaintiff must establish a causal link between work injury and actual wage loss. Defendant may refute the causal link by showing that plaintiff is avoiding work or actual wages. Based on the above analysis, I find that the plaintiff initially established a causal link between work injury and actual wage loss. However, I also find that the defendant presented evidence which severed the causal link as of the date of trial based on the theory of work avoidance.
In arriving at this opinion, I find plaintiff’s claim that he cannot return to work at Mejjer credible. However, I find plaintiffs claim that he cannot return to work with another employer is not credible. Plaintiff has no expert testimony which supports his position that he cannot return to work with another employer. Moreover, the plaintiff testified that his panic attacks can be controlled with medication. These factors suggest that the plaintiff is capable of returning to employment, except at Mejjer.
My finding that the plaintiff is capable of returning to work with another employer, coupled with the evidence provided by defendant’s vocational expert, Ms. Davis, establishes that the plaintiff is avoiding work and/or actual wages. I find that the plaintiff can return to work within the restrictions imposed by Dr. Burke. The plaintiff and his attorney received Ms. Davis’s analysis regarding work available within the plaintiff’s restrictions from Attorney Beidelman in early September. There were several jobs available to the plaintiff, within his restrictions, located within a reasonable distance of his residence. Despite having this information for at least two weeks prior to the trial, plaintiff failed to follow-up on any of these job opportunities. I find that since plaintiff was capable of performing these jobs, had adequate time to look into employment opportunities, yet failed to do so, establishes that the plaintiff was avoiding work as of the date of trial, September 20, 1999. Therefore, I find that the defendant is entitled to a reduction of wage loss benefits as of the trial date. See Mayse v Wirt Transport Co, 1997 ACO #528.
The magistrate further found that work paying $7 to $9 an hour was available to plaintiff, and therefore reduced his award of benefits using an average of $8 an hour. Specifically, the magistrate found that plaintiff was avoiding $320 a week in wages, and therefore reduced plaintiff’s benefits accordingly.
Defendant subsequently appealed to the wcac, arguing that plaintiff’s work avoidance required a total suspension of benefits. Plaintiff cross appealed, arguing that the magistrate’s determination that he was avoiding work was not supported by the record. The WCAC affirmed the magistrate’s conclusion that plaintiff’s work avoidance required a reduction, and not a complete suspension, of benefits, opining:
Defendant [argues] plaintiff’s weekly benefits should be suspended altogether. Defendant maintains that its proofs regarding work avoidance go “to entitlement, not rate.” Haske, [defendant] states, at footnote 38, equates work avoidance with [MCL 418.301(5)(a)] which says that refusing a bona fide offer of reasonable employment results in suspension, not reduction, of benefits. The footnote in Haske reads in part:
“An employer may refute the causal connection between the partial disability and the employee’s unemployment with evidence that other factors are the cause of the unemployment, e.g., an employee’s ailments that are unrelated to his previous employment or malingering. . . . However, where the employer chooses to produce evidence regarding the availability of specific employment, such evidence is admissible solely to refute the causal connection.”
Defendant adds that this rule is in accordance with public policy: “It is consistent with the fact that the statute pays partial benefits to those who actually perform work for lesser wages is [sic] entitled to differential benefits, but denies all wage loss benefits to those who refuse lesser paying work.”
We read Haske differently than does defendant. There were no actual offers of employment in Haske, nor was there a demonstration of reasonable employment which either plaintiff was avoiding. We observe that footnote 38 continues by adding this comment, “The result under subsection 301(5)(a), when an employee refuses a reasonable offer of work, is to deny benefits.” Mayse, just as the instant case, does not concern any [MCL 418.]301(5)(a) actual offer of employment. Rather, the statutory construction at issue is of [MCL 418.]301(4); Magistrate Quist was satisfied with defendant Meijer’s proofs that there were available jobs that suited plaintiff’s restrictions, which plaintiff was capable of performing. Mayse recognizes this dichotomy: refusing an actual offer of reasonable employment [under] (301(5)) carries a greater penalty than failing in general to seek reasonable employment (301(4)).
The WCAC also rejected defendant’s argument that the magistrate erroneously determined that plaintiff’s mental disability arose out of and in the course of employment. Finally, the wcac rejected defendant’s argument that the magistrate misapplied the significant-contribution component of the test enunciated in Gardner v Van Buren Public Schools, 445 Mich 23, 48-49; 517 NW2d 1 (1994). This Court granted defendant’s application for leave to appeal in an order entered May 24, 2001.
Our review in worker’s compensation cases is limited. Maxwell v Procter & Gamble, 188 Mich App 260, 265; 468 NW2d 921 (1991). “Our review of the wcac’s findings of fact is extremely deferential,” George v Burlington Coat Factory Warehouse of Southfield (On Remand), 250 Mich App 83; 645 NW2d 722 (2002), and in the absence of fraud, we must accept the wcac’s findings of fact as conclusive if there is any competent evidence in the record to support them. Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 701; 614 NW2d 607 (2000). However, questions of law in a worker’s compensation case are reviewed de novo and the wcac’s decision may be reversed if based on erroneous legal reasoning or the wrong legal framework. DiBenedetto v West Shore Hosp, 461 Mich 394, 401-402; 605 NW2d 300 (2000); MCL 418.861a(14).
On appeal to this Court, defendant first argues that the magistrate’s determination that plaintiff was avoiding available employment should have resulted in the total suspension of wage-loss benefits. We disagree.
In rejecting defendant’s argument, the magistrate and the WCAC relied on the wcac’s earlier decision in Mayse v Wirt Transport Co, 1997 Mich ACO 528. In Mayse, the magistrate found that the employee was able to work within the restrictions placed on him by his treating neurosurgeon and that the employee was avoiding actual wages. Id. Specifically, the employee refused to contact potential employers outside his hometown of Shelby, Michigan, if it required a long-distance telephone call. Id. The employee also refused to travel to his rehabilitation counselor’s office to make job inquiries. Id. As a result, the magistrate in Mayse determined the employee’s postinjury earning capacity and reduced his benefits by the amount of actual wages he was avoiding. Id.
On appeal the wcac affirmed, concluding that an employee who avoids work breaks the causal link between the work-related injury and the reduction in earning capacity. Id. In reaching this conclusion, the wcac quoted the following language from Haske, supra at 658-659: “Unemployment or reduced wages must be causally linked to work-related injury, and a plaintiff may not reject actual wages reasonably offered or avoid or refuse actual wages.”
In Haske, supra at 643, our Supreme Court undertook an analysis of how an individual could demonstrate a compensable disability as contemplated by the Worker’s Disability Compensation Act (wdca), MCL 418.101 et seq. Specifically, our Supreme Court reviewed the language of MCL 418.301(4), which provides: “As used in this chapter, ‘disability’ means a limitation of an employee’s wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work related disease. The establishment of disability does not create a presumption of wage loss.”
Reviewing the above statutory language, the Haske Court ruled that to prove a compensable disability, an applicant must be able to prove wage loss. Haske, supra at 634. Wage loss is proved by establishing a reduction in earning capacity. Id. at 654.
To prove wage loss, an employee demonstrates that, as a consequence of work-related injury or disease, he has suffered a reduction in his earning capacity. The amount of benefits is based on the employee’s actual wage loss.
In application, these basic principles operate to require that an employee must establish (1) a work-related injury, (2) subsequent loss in actual wages, and (3) a causal link between the two. Proof of the three elements will establish that an employee can no longer perform at least a single job within his qualifications and training, thus satisfying the first sentence of subsection 301(4), and that he has suffered a loss in wages, satisfying the second sentence of subsection 301(4). Consistent with the language of subsection 301(4) proofs sufficient to permit the magistrate to find that the subsequent wage loss is attributable to the work-related injury establish a compensable disability. Absence of residual earning capacity is not part of the threshold definition of disability. [Haske, supra at 634-635 (emphasis in original).]
The Haske Court went on to conclude that where “the employee has carried his burden of proving wage loss, he will, as a practical matter, have proven that he is unable to perform a single job within his qualifications and training, and therefore, that he is disabled.” Id. at 662. Further, the Court noted that the plaintiff employee is only required to show that there is a direct link between lost wages and the work-related injury, and that a plaintiff need not demonstrate an absence of residual earning capacity. Id. at 661. “Whether disability is total or partial, actual loss of wages causally linked to a work-related injury is loss of wage-earning capacity” as contemplated by MCL 418.301(4). Haske, supra at 662.
At issue in the present case is the Haske Court’s following statement, by way of footnote:
An employer may refute the causal connection between the partial disability and the employee’s unemployment with evidence that other factors are the cause of the unemployment, e.g., an employee’s ailments that are unrelated to his previous employment or malingering. [Sobotka v Chrysler Corp (After Remand), 447 Mich 1,] 22, and 26, n 26; 523 NW2d 454 (1994) (Boyle, J., lead opinion) (relying on 1C Larson, Workmen’s Compensation, § 57.12[e], p 10-56), 53 (Brickley J., dissenting). However, where the employer chooses to produce evidence regarding the availability of specific employment, such evidence is admissible solely to refute the causal connection.
Where the plaintiff is unemployed and the magistrate credits a link between disability and actual lost wages, evidence of residual earning capacity is not probative of any material issue.
The result under subsection 301(5)(a) when an employee refuses a reasonable offer of work, is to deny benefits. Cf. Gillman, The rise and fall of reasonableness: Favored employment in Michigan workers’ compensation, 1 Cooley L R 177, 208 (1982) (citing case law before the enactment of subsection 301 [5] [a] reducing benefits where an employee refused favored work within his capacity). [Haske, supra at 662, n 38.]
Moreover, Justice Riley, in a partial concurrence and dissent, expounded on Justice Boyle’s reasoning in Haske by way of footnote:
Therefore, if the employee did not seek out the lesser-paying positions because of malingering, and was unemployed as a consequence, the employee would only receive worker’s compensation for the reduction in his earning capacity that he suffered because of his injury, but he would not recover the remaining lesser wage that he could have earned had he sought work. See, e.g., Williams v Blitz Construction Co, 1995 Mich ACO 1169 (reducing an award for an unemployed, injured claimant from $250 a week to $100 a week where there was a lesser paying job actually available within the claimant’s qualifications and training that he was not performing). The majority appears to reject this possibility by requiring that either this employee receive his full previous wage or nothing. See n 38 on p 662 (“Where the plaintiff is unemployed and the magistrate credits a link between disability and actual wage loss, evidence of residual earning capacity is not probative of any material issue”). This is not, in my opinion, consistent with the act’s requirement that the employee demonstrate wage loss by proving a reduction in earning capacity. [Haske, supra at 684-685, n 8.]
In Haske, our Supreme Court did not address the precise question defendant raises here, namely, whether a plaintiff employee’s work avoidance must translate into a suspension of wage-loss benefits. Indeed, the Haske Court’s comments appeared confined to the question whether a plaintiff employee had demonstrated the requisite causal link between a work-related injury and wage loss to the extent that a compensable disability was proved.
However, several panels of the WCAC have applied Mayse and Haske to support a conclusion that a partial rate of compensation may be available on a showing that a claimant is avoiding work. See Welch, Worker’s Compensation in Michigan: Law & Practice, § 8.2; Korson v Gray & Co, 2000 Mich ACO 542 (Commissioner Kent concurring); Reder v RC Hendrick & Sons, Inc, 1998 Mich ACO 290. The wcac relied on Mayse to conclude that plaintiff’s wage-loss benefits should not be completely suspended. Defendant contends that this was error. We disagree and hold that the wcac did not commit an error in legal reasoning to the extent that reversal is warranted. Indeed, the wcac correctly observed that this case implicates MCL 418.301(4), rather than MCL 418.301(5)(a). The latter statutory provision proscribes an award of benefits where a claimant “refuses” a bona fide offer of reasonable employment without good and reasonable cause during the period of such refusal. In the instant case, the record is devoid of any evidence of a bona fide offer of reasonable employment by another employer or of a refusal by plaintiff of any such offer. Under such circumstances, we cannot conclude that the wcac’s decision to award partially reduced benefits is inappropriate where there has not been an overt refusal of reasonable employment, but instead only a failure to seek reasonable employment. We defer to the wcac’s expertise because we are not persuaded that its decision was based on erroneous legal reasoning. Mudel, supra at 703; Jones-Jennings v Hutzel Hosp (On Remand), 223 Mich App 94, 105; 565 NW2d 680 (1997). On the basis of the foregoing, we reject defendant’s claim that plaintiff’s wage-loss benefits should have been completely suspended.
Defendant next argues that the wcac erred as a matter of law in affirming what defendant characterizes as the magistrate’s misapplication of the significant-contribution standard of Gardner, supra. According to defendant, plaintiff’s psychological disability is compensable only if the work contribution to this disability was greater than the nonwork contribution. We reject defendant’s interpretation of the standard.
MCL 418.301(2) provides in pertinent part: “Mental disabilities . . . shall be compensable if contributed to or aggravated or accelerated by the employment in a significant manner. Mental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof.”
To establish a compensable mental disability under the statute, a claimant must prove (1) a mental disability, (2) which arises out of actual events of employment, not unfounded perceptions thereof, and (3) that those events contributed to or aggravated the mental disability in a significant manner. Gardner, supra at 52. To determine “whether specific events of employment contribute [d] to, aggravate [d], or accelerate^] a mental disability in a significant manner, the factfinder must consider the totality of the occupational circumstances along with the totality of a claimant’s mental health in general.” Id. at 47. The Gardner Court further explained:
The analysis must focus on whether actual events of employment affected the mental health of the claimant in a significant manner. This analysis will, by necessity, require a comparison of nonemployment and employment factors. Once actual employment events have been shown to have occurred, the significance of those events to the particular claimant must be judged against ail the circumstances to determine whether the resulting mental disability is compensable. [id.]
Defendant argues that for employment to have significantly contributed to or aggravated or accelerated a mental disability, employment factors must outweigh nonemployment factors. In other words, defendant claims that either occupational or nonoccupational factors, but not both, may be deemed significant under MCL 418.301(2). We disagree.
As then Chief Justice Cavanagh explained in Gardner, supra at 46-47, the “significant manner” requirement “forces a claimant to actually prove a significant factual causal connection between the actual events of employment and the mental disability.” The significant manner requirement imposes a high standard of proof on the claimant. Id. at 47-48. We do not agree with defendant’s contention that the employment factors must necessarily outweigh other factors to be deemed “significant.” Because MCL 418.301(2) does not define the term “significant,” we may properly turn to the dictionary to ascertain its plain meaning. Ryant v Cleveland Twp, 239 Mich App 430, 434; 608 NW2d 101 (2000). The word “significant” is defined as “important; [of] consequence.” Random House Webster’s College Dictionary (1992), p 1246. Further, “a” is an indefinite article often used in the sense of “any” and applied to more than one individual object. Allstate Ins Co v Freeman, 432 Mich 656, 698; 443 NW2d 734 (1989) (Riley, C.J.). Accordingly, we are of the view that the phrase “a significant manner” in MCL 418.301(2) means any important manner or any manner that is of consequence.
This definition conflicts with defendant’s claim that the employment factors must make more than a fifty percent contribution to the mental disability. Instead, the statutory language indicates that it is sufficient that employment factors make an important or consequential contribution to the mental illness. As our Supreme Court articulated in Gardner, supra at 50, the relevant inquiry for the significant manner requirement has a “substantial subjective element,” and focuses on whether, “[g]iven actual events and a particular claimant, with all the claimant’s preexisting mental frailties, can the actual events objectively be said to have contributed to, aggravated, or accelerated the claimant’s mental disability in a significant manner?” We are satisfied that the magistrate and the wcac correctly concluded that the pertinent employment events bore a “significant relationship” to plaintiff’s ensuing mental disability. Zgnilec v General Motors Corp (On Remand, After Remand), 239 Mich App 152, 156; 607 NW2d 755 (1999). Accordingly, the wcac correctly applied the significant-contribution standard of Gardner.
Finally, defendant seeks a remand for a factual determination whether plaintiff’s mental disability arose out of and in the course of employment or whether it was due to brooding and worrying over the effects of the injury. We are not persuaded that defendant is entitled to a remand. Indeed, defendant is correct that the mental disability must arise out of and in the course of employment to be compensable. Corbett v Plymouth Twp, 453 Mich 522, 550-551; 556 NW2d 478 (1996). However, a review of the magistrate’s opinion reveals that the magistrate was aware of this rule and applied it. Because the magistrate found that the mental disability arose out of plaintiff’s employment, defendant’s argument lacks record support and the wcac did not err in rejecting defendant’s appellate challenge.
Affirmed.
The wcac affirmed the magistrate’s finding that plaintiff was avoiding work. Plaintiff has not cross appealed from the wcac’s decision.
In the present appeal, plaintiff contends in his appellate brief that the magistrate and the wcac “properly reduced . . . Plaintiffs right to continuing weekly benefits, consistent with the Commission’s own decisions on point.” Thus, the precise issue whether the work-avoidance doctrine developed by the wcac is viable and has a proper basis in Michigan’s worker’s compensation jurisprudence is not before us. However, we note that there are conflicting opinions in the wcac regarding whether benefits should be suspended or reduced on the basis of work avoidance, depending on the factual circumstances of each case. For instance, in Shrider v Michigan Motor Exchange, 2000 Mich ACO 504, a split two-to-one panel of the wcac concluded that a claimant who avoided work was not entitled to an award of benefits where a causal link did not exist between the claimant’s wage loss and the work-related injury. Commissioner Kent dissented from the majority’s holding. See also Pacheo v Sam’s Club, 2001 Mich ACO 245 (recognizing that “an employee has an obligation to mitigate the employer’s loss from a work injury As part of this obligation an employee may not engage in conduct which forecloses an employment offer[,]” or the employee will be denied benefits for the duration of the refusal); Rich v Cold Springs Farm, Inc, 2001 Mich ACO 134.
MCL 418.301(5)(a) provides:
(5) If disability is established pursuant to subsection (4), entitlement to weekly wage loss benefits shall be determined pursuant to this section and as follows:
(a) If an employee receives a bona fide offer of reasonable employment from the previous employer, another employer, or through the Michigan employment security commission and the employee refuses that employment without good and reasonable cause, the employee shall be considered to have voluntarily removed himself or herself from the work force and is no longer entitled to any wage loss benefits under this act during the period of such refusal. | [
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Per Curiam.
Defendant Thomas James Colon was charged with assault with intent to commit murder, MCL 750.83, assault with intent to do great bodily harm less than murder, MCL 750.84, armed robbery, MCL 750.529, breaking and entering, MCL 750.110, unlawfully driving away an automobile (udaa), MCL 750.413, and possession of a firearm during the commission of a felony, MCL 750.227b. After a jury trial, defendant was convicted as charged.
Defendant, a third-offense habitual offender, MCL 769.11, was sentenced as follows: 60 to 90 years’ imprisonment for the assault with intent to murder conviction; 160 to 240 months’ imprisonment for the assault with intent to do great bodily harm less than murder conviction; 360 to 540 months’ imprisonment for the armed robbery conviction; 20 to 30 years’ imprisonment for the breaking and entering conviction; 80 to 120 months’ imprisonment for the UDAA conviction; and two years’ imprisonment for the felony-firearm conviction. Defendant appeals as of right. We affirm.
Defendant and Richard Scott Coopes broke into the home of seventy-eight-year-old James Coss in the late evening hours of September 14, 1994. During the break-in, defendant and Coopes ransacked Coss’ home looking for money. Coss was repeatedly questioned about where he had his money hidden and when he replied that he did not have any money, Coss was beaten, pistol-whipped, stabbed, kicked, and struck in the eye with a dresser drawer. Before defendant and Coopes left Coss’ home, Coss’ wrists and ankles were bound and Coss was tied to the leg of a table. Defendant and Coopes left in Coss’ automobile after taking a television, a computer, an answering machine, and $3 or $4 in cash. The police arrested Coopes later that night when he was found asleep in Coss’ automobile. The police located defendant, a few days later, attempting to board a Greyhound bus to Florida .
Defendant argues that his convictions of assault with intent to murder and assault with intent to do great bodily harm less than murder violated prohibitions against double jeopardy. We disagree.
We review a double jeopardy issue regardless of whether the defendant has raised the issue before the trial court because it involves a “significant constitutional question.” People v Lugo, 214 Mich App 699, 705; 542 NW2d 921 (1995), lv den 453 Mich 919 (1996). Further, we review de novo a double jeopardy issue. People v Herron, 464 Mich 593, 599; 628 NW2d 528 (2001).
The United States and the Michigan Constitutions prohibit placing a defendant twice in jeopardy for a single offense. US Const, Am V; Const 1963, art 1, § 15. In other words, the Double Jeopardy Clause “protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” People v Squires, 240 Mich App 454, 456; 613 NW2d 361 (2000).
Defendant argues that his convictions of assault with intent to do great bodily harm less than murder and assault with intent to murder punish the commission of the same offense and violate double jeopardy principles. Essentially, defendant argues that he is being subjected to multiple punishments for the same offense. Defendant is mistaken.
We have held that “[t]here is no violation of double jeopardy protections if one crime is complete before the other takes place, even if the offenses share common elements or one constitutes a lesser offense of the other.” Lugo, supra at 708. This is precisely the case here. Coss testified regarding the details of the act, which supported defendant’s conviction of assault with intent to murder. While rifling through Coss’ dresser drawers looking for money, defendant found a gun. After tormenting Coss with the gun, defendant told Coss that Coss had lived long enough and pulled the trigger several times while pointing the gun at Coss’ head. This incident was distinct and separate from the other instances where defendant brutally and savagely beat Coss by hitting him in the face, throwing a dresser drawer at him, and stabbing him in the hands. Indeed, the beating of Coss composed the separate offense of assault with intent to do great bodily harm less than murder. As Coss explained, he was beaten over the course of IV2 hours and the beatings were interspersed with defendant’s searching for money; defendant would look for money and when his search proved unsuccessful he would return to Coss and try to beat out of him an admission regarding where he had his money hidden. Thus, the incidents composing these crimes were sep arate and distinct, and double jeopardy principles were not offended.
Next, defendant argues that his sentence for the conviction of assault with intent to murder is excessive, violates the principle of proportionality, and constitutes cruel and unusual punishment.
We review the sentencing of an habitual offender for an abuse of discretion. People v Reynolds, 240 Mich App 250, 252; 611 NW2d 316 (2000). Here, we do not agree that defendant’s sentence is excessive, constitutes cruel and unusual punishment, or is disproportionate.
First, defendant argues that his sentence is excessive because Coopes, his codefendant, was also a third-offense habitual offender and was sentenced to only 20 to 30 years’ imprisonment.
Our Supreme Court in In re Dana Jenkins, 438 Mich 364, 376; 475 NW2d 279 (1991), considered this precise issue and explained that the trial court is not required to consider the sentence of a codefendant. “Sentences must be individualized and tailored to fit the circumstances of the defendant and the case.” Id. Furthermore, we note that defendant’s harsher sentence was also justified, given the facts of this case. Defendant was primarily responsible for the excessive brutality involved in this case. Indeed, Coss’ testimony made it clear that defendant put the gun to Coss’ head and pulled the trigger. It is true that Coopes tied Coss’ wrists and ankles, but it was defendant who punched, kicked, and stabbed Coss. Thus, even if we were required to consider Coopes’ sentence, defendant’s harsher sentence was justified given the facts of this case.
Second, defendant argues that his sentence for the conviction of assault with intent to commit murder is disproportionate and constitutes cruel and unusual punishment.
The sentencing guidelines do not apply to defendant because he is an habitual offender. People v Hansford (After Remand), 454 Mich 320, 324; 562 NW2d 460 (1997). Nonetheless, “[a] sentence must be proportionate to the seriousness of the crime and the defendant’s prior record. If an habitual offender’s underlying felony and criminal history demonstrate that he is unable to conform his conduct to the law, a sentence within the statutory limit is proportionate.” People v Compeau, 244 Mich App 595, 598-599; 625 NW2d 120 (2001) (citation omitted).
In this case, we find defendant’s sentence proportionate. Defendant essentially received 60 to 90 years’ imprisonment. Defendant, a third-offense habitual offender, could have received a life sentence. MCL 769.11(l)(b). In addition, defendant has demonstrated an inability to conform his behavior to the laws of this state. Defendant was convicted of assault and battery in 1979, invasion of privacy in 1980, armed robbery in 1980, assault and battery in 1984, and felonious assault in 1984. Defendant also has a theft conviction from Georgia in 1992. Thus, defendant’s criminal history is extensive.
Further, as the trial court emphasized, the circumstances surrounding this incident are particularly violent. This attack occurred in the early morning hours after defendant and Coopes entered Coss’ home. Defendant beat Coss, a seventy-eight-year-old man, for approximately IV2 hours in an effort to locate any money that may have been kept in Coss’ home. Defendant struck Coss in the head with a gun, kicked Coss, and stabbed Coss’ hands. Defendant also aimed the gun at Coss’ head, told Coss he had lived long enough, and repeatedly pulled the trigger. Defendant directed Coopes to tie Coss’ hands and feet before they left. Coss, who was bleeding profusely at that time, was then tied to a table leg and left for dead. There is no doubt that, given the circumstances of this crime and defendant’s inability to conform his conduct to the laws of this state, defendant’s sentence was proportionate.
Likewise, we reject defendant’s argument that his sentence constitutes cruel and unusual punishment. As we have recognized, “a proportionate sentence is not cruel and unusual.” People v Terry, 224 Mich App 447, 456; 569 NW2d 641 (1997). Thus, defendant’s argument that his sentence constitutes cruel and unusual punishment fails because we have already concluded that defendant’s sentence is proportionate.
Finally, defendant argues that he is entitled to resentencing because his sentence after the first trial was 30 to 45 years’ imprisonment, whereas his sentence after this trial was 60 to 90 years’ imprisonment. Defendant argues that he was essentially punished for a successful appeal and that this is impermissible.
“When a defendant is resentenced by the same judge and the second sentence is longer than the first, there is a presumption of vindictiveness. That presumption may be overcome if the trial court enunciates reasons for doing so at resentencing.” People v Lyons (After Remand), 222 Mich App 319, 323; 564 NW2d 114 (1997) (citations omitted). However, that presumption does not apply when the sentences are imposed by different judges. People v Mazzie, 429 Mich 29, 33; 413 NW2d 1 (1987); People v Grady, 204 Mich App 314, 317; 514 NW2d 541 (1994).
Here, we note that there is no presumption of vindictiveness. Defendant was first sentenced to 30 to 45 years’ imprisonment by Judge Chad C. Schmucker. After a successful appeal, defendant was again convicted and was sentenced to 60 to 90 years’ imprisonment by Judge Edward J. Grant. Moreover, even if there were such a presumption, it could be successfully rebutted. Defendant’s sentence of 60 to 90 years’ imprisonment was for his assault with intent to murder conviction. At defendant’s first trial, he was not convicted of assault with intent to murder. People v Colon, 233 Mich App 295, 297; 591 NW2d 692 (1998). Thus, the increase of this sentence is entirely based on this additional conviction .
Affirmed.
This is the second time this case is before us. We granted defendant a new trial after concluding that the trial court’s method of jury selection entitled defendant to a new trial. See People v Colon, 233 Mich App 295; 591 NW2d 692 (1998). In addition, we note that defendant’s codefendant Coopes also appealed to this Court from his convictions and sentences and this Court affirmed the convictions and sentences. See People v Coopes, unpublished opinion per curiam of the Court of Appeals, issued May 16, 1997 (Docket No. 185721).
In fact, defendant’s sentences for his convictions after the first trial were identical to his sentences for his convictions after the second trial. In each instance, defendant was sentenced to 80 to 120 months’ imprisonment for the udaa conviction, 20 to 30 years’ imprisonment for the breaking and entering conviction, 160 to 240 months’ imprisonment for the assault with intent to do great bodily harm less than murder conviction, 360 to 540 months’ imprisonment for the armed robbery conviction, and two years’ imprisonment for the felony-firearm conviction. | [
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Saad, J.
Pursuant to MCR 7.215(I)(1), this Court convened a special panel to resolve the conflict between Estes v Idea Engineering & Fabricating, Inc, 245 Mich App 328; 631 NW2d 89 (2001), vacated in part 245 Mich App 801 (2001), and Baks v Moroun, 227 Mich App 472; 576 NW2d 413 (1998).
I. NATURE OF THE CASE
This case presents the following issue for our review: Does MCL 450.1489 (hereinafter § 489) of the Michigan Business Corporation Act (mbca) create a cause of action and, if so, what is the applicable statute of limitations for a § 489 suit? Our Court in Baks held that § 489 does not create a cause of action, and borrowed the two-year period of limitation in MCL 450.1541a(4) (hereinafter § 541a). Were it not for the precedential effect of Baks, 3our Court in Estes would have adopted the reasoning of Judge Hoekstra’s dissent in Baks and would have held that § 489 does create a statutory cause of action, with a residual six-year limitation period set forth in MCL 600.5813. We agree with Estes and hold that § 489 does create a cause of action and, accordingly, that the residual six-year limitation period applies to this case.
rr. facts
The following recitation of facts is taken directly from our Court’s opinion in Estes, swpra at 330-335:
Plaintiffs Larry Estes and Janice Estes appeal as of right the order denying their motions for summary disposition and for leave to file an amended complaint and granting defendants’ motion for summary disposition on the basis of the statute of limitations. We affirm in part, reverse in part, and remand. Were we not bound by the decision in Baks v Moroun, 227 Mich App 472; 576 NW2d 413 (1998), we would additionally reverse the trial court’s grant of summary disposition on count n of plaintiffs’ complaint. MCR 7.215(H).
Plaintiffs owned 42,000 shares of stock in defendant Idea Engineering & Fabricating, Inc. (Idea), a closely held corporation. The stock had been acquired by Larry Estes during his employment with Idea pursuant to Idea’s “1983 Employee Stock Purchase Plan” and various written stock purchase agreements, the last of which, executed on December 12, 1988, was for 10,000 shares at $5.44 a share. The purchase agreement provided that the stock could not be sold, transferred, or disposed of for three years after the date of purchase, that Idea could redeem the stock within that three-year restricted period if the purchaser’s employment was terminated or if the purchaser attempted to sell, transfer, or dispose of the stock before the end of the three-year period, and that, after the three-year restricted period, Idea was obligated to redeem the purchaser’s shares if the purchaser requested the redemption in writing. The agreement was silent with regard to Idea’s right to redeem the stock following the expiration of the three-year restricted period.
Larry Estes left Idea in May 1992, some five months after the restricted period had expired on his last stock purchase. In a letter dated October 26, 1993, Idea informed plaintiffs that their shares had no value and were being redeemed.1 Plaintiffs immediately retained counsel and disputed both the company’s right to redeem the stock2 and its zero valuation. In the fall of 1995, plaintiffs learned that Dunville had sold one hundred percent of the shares, and on March 6, 1996, plaintiffs filed a five-count complaint.
In count i, entitled “Right to Inspect Corporate Books,” plaintiffs alleged that Idea had improperly denied them their right as shareholders to inspect Idea’s books and records pursuant to MCL 450.1487, and sought equitable relief in the form of an order compelling Idea, by its president, defendant Tony Fortin, to permit that inspection. In count H, entitled “Violation of MCL 450.1489; Oppressive Acts,” plaintiffs alleged that Idea and the individual defendants engaged in unfair and illegal acts by refusing to provide notice of shareholder meetings, including the October 29, 1993, meeting wherein plaintiffs’ stock shares were canceled, in violation of MCL 450.1404 (which requires written notice “not less than 10” days before the date of the meeting), and by attempting to defraud plaintiffs of their stock by exercising a nonexistent right to redeem the stock, which defendants claimed had no value notwithstanding that Idea had a net income for the year ending October 31, 1993, in excess of $5 million and “greatly improving” prospects for future earnings. Plaintiffs further alleged that, in 1995, defendant Dunville, representing that he owned one hundred percent of the shares of Idea, sold the shares and, along with those shares, control of Idea,3 for his personal benefit in violation of MCL 450.1489 (hereinafter § 489, which by its terms is limited to closely held corporations) and MCL 450.1541a (hereinafter § 541a). In addition to damages, plaintiffs sought equitable relief including an order canceling the redemption of their shares, appointing a receiver, and placing all payments to Dunville for the sale of his shares into an escrow account during the pendency of the action.
In count m, entitled “Breach of Contract,” plaintiffs alleged that, by exercising a nonexistent right of redemption and canceling plaintiffs’ stock on its records,, thereby depriving plaintiffs of the economic rights of their stock ownership, Idea breached the written stock purchase agreements. Count iv, entitled “Breach of Fiduciary Duty,” alleged that the three individual defendants breached their fiduciary duty to act in the best interest of the company. Count v, entitled “Fraud,” alleged that Idea and Dunville engaged in fraud by misrepresenting that the stock was redeemable for no value and thereby depriving plaintiffs of their stock shares for the personal benefit of Dunville. Plaintiffs sought damages with regard to counts hi, iv, and v. In answer to plaintiffs’ complaint, defendants asserted that plaintiffs “agreed ... to modify the terms of any of the subscription and purchase agreements between them and Idea so as to permit redemption of the stock upon the termination of employment at any time,” and “had . . . agreed that such stock would be redeemable by the company upon the termination of then employment.”
On May 12, 1997, plaintiffs filed a motion for summary disposition claiming that any unwritten agreement was invalid under the statute of frauds, MCL 440.8319, and that parol evidence was not admissible to modify the terms of the written subscription agreement. Plaintiffs also filed the affidavit of Larry Estes, in which he denied ever having agreed to any modification of the subscription agreements. In response, defendants moved for summary disposition pursuant to MCR 2.116(C)(7), asserting that counts I, n, iv, and v were barred by § 541a’s two-year period of limitation. With regard to count m, defendants asserted that, because the subscription agreement did not address Idea’s right to redeem the shares after the three-year restricted period, plaintiffs had failed to state a claim for breach of contract. Defendants further claimed that the agreement could be amended by oral agreement. Finally, defendants claimed that plaintiffs’ claims were barred by laches.
Plaintiffs moved to amend their complaint as follows: rename their count v fraud count to common-law fraud (alleging their loss to be in excess of $3.4 million); add count vi for a declaratory judgment (that the cancellation of their shares was void pursuant to the statute of frauds and was without legally sufficient consideration); add count vn for wrongful transfer of securities in violation of MCL 440.8315; add count vm for continued violations of § 489 (specifically, continuing failure to give notice of shareholder meetings or access to books and records, misrepresenting that the stock had no value, illegally using Idea to launder drug money, and Dunville’s wrongful sale of one hundred percent of Idea’s shares for his own personal benefit); add count ix for breach of common-law fiduciary duty; and add a count (labeled count xi) for conversion. The trial court made various rulings from the bench, some of which are supported only by unsigned orders, but ultimately issued an opinion and order denying plaintiffs’ motions for summary disposition and to file an amended complaint, and granting defendants’ motion for summary disposition on the basis of the statute of limitations. Relying in part on the then newly issued opinion in Bales, supra, the court found that all plaintiffs’ claims were barred by the statute of limitations set forth in § 541a and dismissed plaintiffs’ motion to amend as futile.
We now turn to our analysis of the legal issue,
ffl. ANALYSIS
Because this is a case of statutory interpretation, we necessarily examine the words that the Legislature chose in crafting § 489 of the MBCA:
(1) A shareholder may bring an action in the circuit court of the county in which the principal place of business or registered office of the corporation is located to establish that the acts of the directors or those in control of the corporation are illegal, fraudulent, or willfully unfair and oppressive to the corporation or to the shareholder. If the shareholder establishes grounds for relief, the circuit court may make an order or grant relief as it considers appropriate, including, without limitation, an order providing for any of the following:
(a) The dissolution and liquidation of the assets and business of the corporation.
(b) The cancellation or alteration of a provision contained in the articles of incorporation, an amendment of the articles of incorporation, or the bylaws of the corporation.
(c) The cancellation, alteration, or injunction against a resolution or other act of the corporation.
(d) The direction or prohibition of an act of the corporation or of shareholders, directors, officers, or other persons party to the action.
(e) The purchase at fair value of the shares of a shareholder, either by the corporation or by the officers, directors, or other shareholders responsible for the wrongful acts.
(f) Award of damages to the corporation or a shareholder.
(2) No action under this section shall be brought by a shareholder whose shares are listed on a national securities exchange or regularly traded in a market maintained by 1 or more members of a national or affiliated securities association.
It is the judgment of this Court that § 489 is quite clear in its mandate: § 489 creates a statutory cause of action along with flexible discretionary remedies to shareholders of closely held corporations. Moreover, it is clear that this statutory cause of action for “oppression” in favor of minority shareholders who are abused by “controlling” persons, is a direct cause of action, not derivative, and though similar to a common-law shareholder equitable action, provides a separate, independent, and statutory basis for a cause of action. We come to this conclusion on the basis of the plain reading of the statute. Moreover, we note as the majority in Estes does, that MCL 450.1103 of the mbca states, in pertinent part, that the act “ ‘shall be liberally construed . . . (c) [t]o give special recognition to the legitimate needs of close corporations.’ ”
Our Court’s majority opinion in Bales, which we reject, found that § 541a of the mbca also did not create a cause of action, but the Bales majority found § 541a’s two-year period of limitation to be applicable to the plaintiffs’ claim in count n under § 489. Because the statutory language of § 489 is clear, we need not review legislative history to determine “legislative intent.” However, we believe that the dissent in Bales properly analyzed the differences between § 541a and § 489, and properly concluded that § 489 creates a separate cause of action. Accordingly, we quote Judge Hoekstra’s dissent at length and adopt its language and reasoning as our own, Baks, supra at 501-506:
The majority states that § 489 does not by its terms create a new cause of action. The majority posits that § 489 merely grants shareholders in a closely held corporation standing to bring a derivative action when a director breaches the duty of care described in § 541a and that § 489 sets forth the jurisdiction and venue in which to bring suit. In my view, § 489 creates a new cause of action. Where reasonable minds can differ with regard to the meaning of a statute, judicial construction is appropriate. Heinz v Chicago Rd Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996).
If the majority’s view is correct, then the Legislature could have merely referenced the standard of care established in § 541a for directors of publicly held corporations. Instead, the Legislature provided a different standard of care in § 489. The omission of a provision in one part of a statute that is included in another part should be construed as intentional, Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993), and seeming inconsistencies should be reconciled if possible, Gross v General Motors Corp, 448 Mich 147, 164; 528 NW2d 707 (1995). To maintain a suit pursuant to § 489, a plaintiff must show misconduct that is “illegal, fraudulent, or willfully unfair and oppressive.” In contrast, to maintain a suit pursuant to § 541a(1), a plaintiff must show conduct that did not conform to three requirements, including that a director act in “good faith,” “[w]ith the care [of] an ordinarily prudent person,” and in the “best interests of the corporation.” These differences belie the majority’s conclusion that the holding in Detroit Foundries fixes § 541a as providing the definitive standard of care and thereby § 541a(4) as providing the definitive period of limitation for actions involving either a closely held, or a publicly held corporation. Indeed, another section of the act, which specifically references the standard of care described in § 541a(l), nonetheless supplies its own limitation period. See MCL 450.1551; MSA 21.200(551) (establishing a three-year limitation period in § 554, MCL 450.1554; MSA 21.200[544], for suits arising from certain corporate actions).
Moreover, if the majority’s view is correct, then the jurisdiction and venue provisions in § 489(1) would merely supplement implicit references to jurisdiction and venue in the act, MCL 450.1514; MSA 21.200(514), MCL 450.1773; MSA 21.200(773), MCL 450.1851; MSA 21.200(851), and more explicit references elsewhere, MCL 600.711; MSA 27A.711, MCL 600.715; MSA 27A.715. In construing a statute, this Court should presume that every word has some meaning and should avoid any construction that would render a statute, or any part of it, surplusage or nugatory. Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992). As far as possible, effect should be given to every phrase, clause, and word. Gebhardt v O’Rourke, 444 Mich 535, 542; 510 NW2d 900 (1994). The inclusion of the jurisdiction and venue provisions in § 489(1) indicates to me that the Legislature was establishing a new and separate cause of action for shareholders in closely held corporations.
I am additionally persuaded that the unique characteristics of a suit brought pursuant to § 489 compel this construction. This Court is required to look at the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the purpose of the statute. People v Adair, 452 Mich 473, 479-480; 550 NW2d 505 (1996). In general, a closely held corporation differs from a publicly held corporation in two ways. See Henn & Alexander, Corporations (3d ed), § 257, p 696; 1 O’Neal’s Close Corporations (3d ed), §§ 1.02, 1.08, pp 4-7, 31-34. The most obvious difference is that a shareholder who may pursue a suit under § 489 is unable to escape an oppressive situation by dispensing with shares of ownership in the public arena. MCL 450.1489(2); MSA 21.200(489)(2). Instead, the shareholder seeking relief is required to seek a judicial dissolution of the closely held corporation or another remedy within the statute. MCL 450.1489(l)(a)-(f); MSA 21.200(489)(l)(a)-(f).
A second obvious difference is that the shareholders of a closely held corporation participate in the management of the corporation, whereas the management of a publicly held corporation represents the shareholders. One tool of a dissatisfied shareholder in a publicly held corporation is the ability to bring a lawsuit against a director. In this regard, our Supreme Court speculated in Detroit Foundries, supra at 217, that the legislative intent in establishing the statute of limitations in § 541a(4) may have been to ensure that persons qualified to be directors of Michigan corporations would step forward because their corporate conduct would not be challenged after two years following disclosure to interested parties, or within six years after the conduct occurred. Thus, the shorter statute of limitation period in MCL 450.1541a(4); MSA 21.200(541a)(4) curbs the number of suits brought for harassment purposes and protects directors of publicly held corporations from any languishing fear of such suits. Nonetheless, in those cases where a director commits misconduct, a shareholder has an appropriate amount of time to discover the facts of the single instance and seek relief pursuant to § 541a.
In contrast, because the shareholders participate in the management of the corporation, the relationship among those in control of a closely held corporation requires a higher standard of fiduciary responsibility, a standard more akin to partnership law. Henn & Alexander, § 268; O’Neal’s, §§ 1.02, 1.08. The Legislature highlighted this special duty of care in the language of § 489(1) when it chose the words “illegal, fraudulent, or willfully unfair and oppressive” to describe the “acts” of the defendants. This language does not indicate that a shareholder would be successful on a suit based on one instance of misconduct; rather, a shareholder who would be likely to prevail under this statute is one who presented an ongoing pattern of oppressive misconduct.
These two differences lead me to believe, first, that the Legislature intended to provide shareholders of closely held corporations special relief from ongoing oppression, and second, that the Legislature did not simultaneously intend for such relief to be available only to those shareholders who could satisfy the burden of proof within a short period. The six-year period of limitation in MCL 600.5813; MSA 27A.5813 provides a shareholder an appropriate amount of time to produce proof of a pattern of oppressive conduct and seek relief pursuant to § 489. Therefore, this limitations period best accomplishes the legislative purpose in enacting § 489.
Not only are the purposes of a § 489 suit different from a § 541a suit, but many concrete differences between the two suits also exist. First, as already stated, suits brought pursuant to §§ 489 and 541a redress different injuries. A § 489 suit seeks to redress oppression that injures either the corporation or the shareholder, whereas a § 541a suit seeks to redress wrongs to the corporation. See, e.g., Moore v Carney, 84 Mich App 399, 407; 269 NW2d 614 (1978) (analyzing whether attorney fees may be awarded in a suit brought pursuant to the predecessor of § 489 because such fees are awarded only where the suit benefits the corporation). Second, a suit brought pursuant to § 489 is decided differently from a suit brought pursuant to § 541a, which is governed by the standard of conduct explained in Detroit Foundries, supra. Although Michigan courts have yet to consider what action constitutes “willfully unfair and oppressive conduct” in suits brought pursuant to § 489, several other states’ courts have applied an objective test based on the shareholder’s reasonable expectations. Bruno, “Reasonable Expectations"—A Primer on an Oppressive Standard, 71 Mich B J 434 (1992). See, e.g., In re Kemp & Beatley, Inc, 64 NY2d 63, 73; 473 NE2d 1173 (1984).
Third, §§ 489 and 541a suits involve different parties. The defendants in a § 489 suit may be either the directors or “those in control of the corporation,” whereas the defendants in a § 541a suit are only the directors or officers who have breached their fiduciary duty of care. Application of § 492a of the act, MCL 450.1492a; MSA 21.200(492a), to § 541a means that the plaintiffs in a § 541a suit may be either current or former shareholders, whereas the plaintiffs in a § 489 suit may only be current shareholders. Last, the parties in §§ 489 and 541a suits arrive in different procedural postures. The plaintiffs in a § 489 suit may represent themselves and other similarly situated shareholders and bring their suits as individual or direct actions. The plaintiffs in § 541a suits typically represent the corporation and bring their suits as derivative actions pursuant to § 492a.
In summary, both the language of § 489 and the unique characteristics of § 489 suits compel me to dissent from the majority in this case. I do not believe that the Legislature intended for the statute of limitations governing a cause of action brought by shareholders of a publicly held corporation to also apply to a cause of action brought by shareholders of a closely held corporation. This Court has found that the six-year “catch-all” period of limitation of MCL 600.5813; MSA 27A.5813 applies when the right to recovery arises from a statute. Nat’l Sand, Inc v Nagel Constr, Inc, 182 Mich App 327, 337, n 7; 451 NW2d 618 (1990). [Emphasis added.]
We find that the foregoing analysis accurately states the law and the rationale supporting our decision. Also, we asked the Business Law Section of the State Bar of Michigan to provide this Court with an amicus curiae brief and we received and considered the brief filed by the Corporation Law Committee of the Business Law Section. We further note that the Corporation Law Committee participated in the legislative review and drafting of § 489 of the mbca and similarly participated in the 2001 recent amendments of § 489. On the basis of an exhaustive historical review of § 489 and § 541a, the Corporation Law Committee’s amicus curiae brief fully endorses and agrees with Judge Hoekstra’s dissent in Bales. As noted in the Corporation Law Committee’s amicus curiae brief:
Based on the history of section 489, its language and place in the statutory scheme, the fundamental assumption made in the Baks’ decision is incorrect, as is its reference to a derivative action. Section 489 and its predecessor section 825 were added to the Michigan statutes to give a statutory cause of action to shareholders who are abused by controlling persons. The claim under section 489 is direct, not derivative. The statutory cause of action is, of course, similar to the common law shareholder equitable action for dissolution, but is independent of that traditionally limited and uncertain cause of action. [Emphasis added.]
In further support of its opinion that, in passing § 489, the Legislature created a separate cause of action, the amicus curiae brief points out that the 2001 amendment of subsection 489(l)(f) uses the specific phrase “cause of action” twice referencing actions under § 489.
Again, we reiterate that the dissent in Baks and the history of §§ 489 and 541a demonstrate clearly that § 489 and § 541a have different standards, different parties, different purposes, and different relief provisions. Section 541a applies to all Michigan corpora tions; § 489 is available only to shareholders of Michigan corporations whose shares are not listed on national securities exchange and are not regularly traded in a market maintained by one or more members of a national or affiliated securities association. Section 489 provides a cause of action for illegal or wilfully unfair and oppressive conduct. This is a different standard of relief than the reasonable person standard set forth in § 541a. Further, as pointed out in the Baks dissent, the plaintiff in the § 489 case is a shareholder suing directly whereas a plaintiff in a § 541a action is a corporation suing for breach of a duty to the corporation or a shareholder suing derivatively on behalf of the corporation. Also, the remedy for a breach of a § 541a cause of action is mandatory whereas the remedy for oppressive conduct under § 489 is discretionary. Additionally, the remedy under § 541a is for the benefit of the corporation and the harm done to it whereas certain of the remedies contained in § 489 are specifically for the benefit of the shareholder, and may not necessarily benefit and could impose obligations on the corporation.
Furthermore, as set forth in the Baks dissent, because § 489 creates a separate cause of action and does not contain its own statute of limitations, the catch-all six-year period of limitation set forth in MCL 600.5813 applies.
IV. CONCLUSION
For the foregoing reasons, we hold that § 489 creates a separate and independent statutory cause of action and that the six-year period of limitation contained in the residual statute applies. MCL 600.5813. Accordingly, in this case, count n of plaintiffs’ complaint, which alleges wilful, illegal, and oppressive acts by “those in control,” states a cause of action under § 489 and is governed by the six-year limitation period of the catch-all provision. We therefore conclude that the trial court erred in dismissing count II of plaintiffs’ complaint and we reverse and remand with instructions to proceed in accordance with this opinion. We do not retain jurisdiction.
Reversed in part and remanded.
Baks, supra at 484-485.
See MCR 7.215(I)(1).
Estes, supra at 339, 342-345.
Though not applicable to this appeal, we note that the Legislature, in 2001 PA 57, amended subsection 489(1)(f) in 2001 to provide:
An award of damages to the corporation or a shareholder. An action seeking an award of damages must be commenced within 3 years after the cause of action under this section has accrued, or within 2 years after the shareholder discovers or reasonably should have discovered the cause of action under this section, whichever occurs first.
Shortly after plaintiffs filed their complaint, the case was stayed for approximately nine months to protect the Fifth Amendment rights of defendant Dunville, who was under federal indictment for laundering drug money during the years 1991-93 through both Idea and through another company he owned. On May 19, 1997, which was approximately ten months before the trial court’s opinion and order, on the basis of stipulated facts, Dunville pleaded guilty to the charges.
Estes, supra at 340.
Chmielewski v Xermac, Inc, 457 Mich 593, 608; 580 NW2d 817 (1998).
7 Detroit Gray Iron & Steel Foundries, Inc v Martin, 362 Mich 205; 106 NW2d 793 (1961).
In addition to the amendment of subsection 489(l)(f) set forth in footnote 4, supra, in the same act the Legislature amended the statute to define “willfully unfair and oppressive conduct” under subsection 489(3).
See subsection 489(l)(f) set forth in footnote 4, supra. As the amicus curiae’s brief indicates:
As a result of the 2001 Amendments, section 489 contains an express limitations period for damage claims under a cause of action under that section. In most cases, section 489 is intended to be used as a remedy for a continuing wrong, such as a “squeeze out” of a minority shareholder, where an injunction, mandatory buyout or other equitable type relief would apply. Where the claim is for money damages and the 2001 Amendments are not applicable, the residual six year statute of limitations is the proper statutory guide to limitations period. [Emphasis added.]
See the 2001 amendment of subsection 489(1)(f), 2001 PA 57.
In an affidavit dated November 12, 1993, Idea’s founder, chief executive officer, and majority shareholder, defendant Joseph Dunville, stated, “.. . on or about November 5,1992, (‘Redemption Date’) [Idea] notified the Former Employee of its election to exercise its rights of redemption . . . .” [emphasis added]. However, there is nothing in the record to substantiate that date. Further, defendants argued both before the trial court and on appeal that the material facts were undisputed and that the first notification to plaintiffs of Idea’s intention to redeem their shares was the October 26, 1993, letter from defendants’ counsel advising plaintiffs that their shares had no value and, if they did not tender their shares, Idea would cancel the shares effective November 1, 1993.
During his June 17, 1997, deposition, Dunville testified that, as of that date, other than himself, there was one other shareholder, Karen Stankevich, who also had received a letter in 1993 advising her that her shares had been redeemed. However, she had not yet executed a written agreement and therefore, according to Dunville, was still a shareholder in the company.
That sale was subsequently rescinded approximately one year after the filing of plaintiffs’ complaint. | [
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Gage, P.J.
In these consolidated cases, plaintiff appeals as of right the trial court’s order granting defendants summary disposition with respect to plaintiffs claims seeking to enforce noncompetition agreements. We reverse and remand.
i
Plaintiff is a company that offers for sale to residential homeowners various home improvement products including windows, doors, and siding. Each individual defendant worked for plaintiff as an “independent sales representative” or “self-employed sales representative” until defendants all ceased working for plaintiff and directed their efforts toward establishing a competing home improvement business. Plaintiff filed separate complaints against each defendant, alleging that defendants misappropriated trade secrets and that defendants’ acts of participation in a competing business and disparagement of plaintiff “to its business contacts and accounts” and other independent sales representatives of plaintiff violated the terms of a noncompetition provision within the parties’ contract:
Non-Complete [sic] agreement: In consideration of this agreement I the Representative hereby agree that upon termination of this agreement and not-withstanding the cause of termination of this agreement I the undersigned, shall not compete with the business of the Company, or its successors or assigns. The term “Non-Compete,” as used in this agreement means that I shall not directly or indirectly own, be employed by or work on behalf of any firms engaged in a business substantially similar or competitive with the company. I further agree that this agreement shall be extended only for the State of Michigan and shall be in full force and effect for a period of three (3) years from the date of my termination. Furthermore, the undersigned hereby agrees not to induce or attempt to induce any employee to leave the Company or interfere with or disrupt the Company relationship with any of its employees, customers, clients, suppliers, or vendors; or solicit or employ any person employed by the Company.
Defendants filed counterclaims arguing that the non-competition agreements constituted unreasonable restraints of trade in violation of the Michigan Antitrust Reform Act (mara), MCL 445.771 et seq.
After the trial court consolidated the cases, defendants sought partial summary disposition pursuant to MCR 2.116(C)(8) and (10) on the basis that the non-competition agreements were invalid under the mara, asserting that the mara plainly permits noncompetition agreements only within the scope of an employer-employee relationship. Defendants undisputedly worked for plaintiff as independent contractors. The trial court concurred with defendants, reasoning as follows:
The question is, whether covenants not to compete may be lawfully exacted of independent contractors in the manner which is sought by the plaintiff in the present case and, to my knowledge, this is a matter of first impression under the current Michigan statute [the MARA], . . .
The absence of specific case authority under the current statute naturally drives us back to the statutory language itself. And it has to be said in that connection that the statute seems clearly limited to employer-employee relationships. It would also seem that since the statute in question is an exception to the general policy which prohibits any agreement in restraintive [sic] trade, that as such it must be limited in its enforceability to the specific language that it employees [sic]. Had the Legislature intended a broader viability for covenants not to compete, it seems the Legislature could have expressed itself in language which would be easily understood and applied.
The choice by the Legislature of employer-employee language seems, to the Court, to suggest that it did not intend for covenants not to compete to be enforceable in other contexts]. Since we have manifestly before us another context, namely, independent contractors and not employees, it seems to me that the statute is not available to bring legal force to a covenant not to compete in such a relationship and since the covenants not to compete are not recognized for independent contractor relationships, they are beyond the sweep of the exception and, therefore, caught by the general rule that any agreement in restraintive [sic] trade is a violation of this state’s policy and unlawful.
Consequently, the court dismissed plaintiff’s claims alleging violations of the noncompetition agreements.
Defendants later filed a motion for summary disposition pursuant to MCR 2.116(C)(10) with respect to plaintiff’s remaining claims that defendants interfered with plaintiff’s customer and employee relationships and misappropriated trade secrets. According to defendants, plaintiff had produced no evidence substantiating these claims. After plaintiff failed to respond to defendants’ motion, the trial court granted defendants summary disposition with respect to plaintiff’s remaining claims, which axe not at issue in this appeal.
n
A
Plaintiff contends that the trial court erroneously granted defendants summary disposition because the court mistakenly interpreted the mara to preclude the utilization of noncompetition agreements beyond the employer-employee context. We review de novo the trial court’s summary disposition ruling. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). The trial court apparently granted defendants sum mary disposition pursuant to MCR 2.116(C)(10), which tests the factual sufficiency of a claim. In reviewing a motion based on this subrule, we consider the pleadings and relevant documentary evidence submitted by the parties in the light most favorable to the party opposing the motion to determine whether any genuine issue of fact exists to warrant a trial, or whether the moving party is entitled to judgment as a matter of law. Maiden, supra at 120.
This case involves questions of statutory interpretation that we also review de novo. In re MCI Telecommunications Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999). The primary goal of statutory interpretation is to give effect to the intent of the Legislature, and the first step in that determination is to review the statutory language. Id. at 411. If the statutory language is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). If reasonable minds can differ regarding its meaning, then judicial construction is appropriate. Adrian School Dist v Michigan Public School Employees’ Retirement Sys, 458 Mich 326, 332; 582 NW2d 767 (1998). The language of a statute should be read in light of previously established rules of the common law, including common-law adjudicatory principles. B & B Investment Group v Gitler, 229 Mich App 1, 7; 581 NW2d 17 (1998). A phrase or word that has acquired a unique meaning at common law is interpreted to have the same meaning when used in a statute dealing with the same subject. Daniel v Dep’t of Corrections, 248 Mich App 95, 103; 638 NW2d 175 (2001).
Our resolution of this case requires that we consider two provisions of the mara. Section 2 of the MARA, MCL 445.772, which was derived from the Uniform State Antitrust Act, sets forth the following general proposition: “A contract, combination, or conspiracy between 2 or more persons in restraint of, or to monopolize, trade or commerce in a relevant market is unlawful.” A subsequent provision of the MARA that specifically addresses covenants not to compete § 4a, MCL 445.744a, states, in relevant part, as follows:
(1) An employer may obtain from an employee an agreement or covenant which protects an employer’s reasonable competitive business interests and expressly prohibits an employee from engaging in employment or a line of busi ness after termination of employment if the agreement or covenant is reasonable as to its duration, geographical area, and the type of employment or line of business. To the extent any such agreement or covenant is found to be unreasonable in any respect, a court may limit the agreement to render it reasonable in light of the circumstances in which it was made and specifically enforce the agreement as limited.
The Legislature enacted § 4a more than two years after the rest of the MARA had taken effect, but provided that § 4a “shall apply to covenants and agreements which are entered into after March 29, 1985.” MCL 445.774a(2). While the language of these provisions at first glance appears plain, the parties and the trial court reached different conclusions regarding the meaning of these sections.
B
An understanding of the history of antitrust law in Michigan will enhance our analysis of the current provisions of the MARA. Long ago, before any statutory scheme of business regulation existed in Michigan, a common-law rule of reason governed what constituted a permissible restraint of trade. In Hubbard v Miller, 27 Mich 15, 16-17 (1873), the Michigan Supreme Court considered the propriety of a noncom-petition agreement entered into when the plaintiff purchased the defendants’ well excavation business. The defendants had agreed “ ‘not to keep well-drivers’ tools or fixtures, and not to engage in the business of well-driving after’ ” the date of the sale. Id. at 17. In response to the defendants’ argument that the agreement represented an unenforceable restraint of trade, the Supreme Court explained as follows:
It has sometimes been said by text writers, and even by courts, that all contracts in restraint of trade, whether general or limited, are prima facie void, or that they are to be presumed void, until it be shown, not only that there was an adequate consideration, but that the circumstances under which the contract was made were such as to render the restraint reasonable. But the rule to be drawn from a careful analysis of the adjudged cases and the reasons upon which they are founded, does not seem to us to involve any such presumption in the accurate or legal sense of the term, and may be more correctly stated to be, that all contracts in restraint of trade are void, if considered only in the abstract, and without reference to the situation or objects of the parties or other circumstances under or with reference to which they were made .... [Emphasis in original.] But if, considered with reference to the situation, business and objects of the parties, and in the light of all the surrounding circumstances with reference to which the contract was made, the restraint contracted for appears to have been for a just and honest purpose, for the protection of the legitimate interests of the party in whose favor it is imposed, reasonable as between them and not specifically injurious to the public, the restraint will be held valid. [Emphasis added.] [Id. at 19.]
The Michigan Supreme Court’s application of a common-law rule of reason in passing on potential restraints of trade predated the 1910 adoption of the rule of reason by the United States Supreme Court in Standard Oil Co of New Jersey v United States, 221 US 1; 31 S Ct 502; 55 L Ed 619 (1911). In Standard Oil, the United States Supreme Court interpreted the Sherman Act’s prohibition against restraints of trade, which currently is codified at 15 USC l. The Supreme Court summarized the relevant preexisting common law and concluded as follows:
Without going into detail, and but very briefly surveying the whole field, it may be with accuracy said that the dread of enhancement of prices and of other wrongs which it was thought would flow from the undue limitation on competitive conditions caused by contracts or other acts of individuals or corporations, led, as a matter of public policy, to the prohibition or treating as illegal all contracts or acts which were unreasonably restrictive of competitive conditions, either from the nature or character of the contract or act or where the surrounding circumstances were such as to justify the conclusion that they had not been entered into or performed with the legitimate purpose of reasonably forwarding personal interest and developing trade, but on the contrary were of such a character as to give rise to the inference or presumption that they had been entered into or done with the intent to do wrong to the general public and to limit the right of individuals, thus restraining the free flow of commerce and tending to bring about the evils, such as enhancement of prices, which were considered to be against public policy.
* * *
In view of the common law and the law in this country as to restraint of trade, which we have reviewed, and the illuminating effect which that history must have under the rule to which we have referred, we think it results:
* * *
C. And as the contracts or acts embraced in [§ 1 of the Sherman Act] were not expressly defined, since the enumeration addressed itself simply to classes of acts, those classes being broad enough to embrace every conceivable contract or combination which could be made concerning trade or commerce or the subjects of such commerce, and thus caused any act done by any of the enumerated methods anywhere in the whole field of human activity to be illegal if in restraint of trade, it inevitably follows that the provision necessarily called for the exercise of judgment which required that some standard should be resorted to for the purpose of determining whether the prohibition contained in the statute had or had not in any given case been violated. ... [I]t follows that it was intended that the standard of reason which had been applied at the common law and in this country in dealing with subjects of the character embraced by the statute was intended to be the measure used for the purpose of determining whether, in a given case, a particular act had or had not brought about the wrong against which the statute provided. [Standard Oil, supra at 58, 59, 60 (emphasis added).]
The rule of reason remains vital to restraint of trade analysis under the Sherman Act. See State Oil Co v Khan, 522 US 3, 10; 118 S Ct 275; 139 L Ed 2d 199 (1997) (observing that “[although the Sherman Act, by its terms, prohibits every agreement ‘in restraint of trade,’ this Court has long recognized that Congress intended to outlaw only unreasonable restraints”).
The rule of reason remained valid in Michigan even after the Michigan Legislature enacted statutes regulating the formation of trusts and other restraints on trade, notwithstanding that the relevant statutory language did not explicitly refer to a reasonableness standard. In Staebler-Kempf Oil Co v Mac’s Auto Mart, Inc, 329 Mich 351, 353; 45 NW2d 316 (1951), the Michigan Supreme Court considered the enforceability of a gasoline retailer’s agreement with an oil com pany to sell the oil company’s gasoline exclusively and at the same price as that charged by the other gasoline retailers that the oil company supplied. The applicable provision of the antitrust act of 1899, 1899 PA 255, § 1, as amended, 1948 CL 445.701, then in effect did not expressly describe a reasonableness standard, but provided, in relevant part, as follows:
That a trust is a combination of capital, skill or arts by 2 or more persons, firms, partnerships, corporations or associations of persons, or of any 2 or more of them, for either, any or all of the following purposes:
1. To create or carry out restrictions in trade or commerce;
5. It shall hereafter be unlawful for 2 or more persons, firms, partnerships, corporations or associations of persons ... to make or enter into . . . agreements of any kind ... by which they shall bind . . . themselves not to sell, dispose of or transport any article or any commodity . . . below a common standard figure or fixed value, or by which they shall agree in any manner to keep the price of such article, commodity or transportation at a fixed or graduated figure, or by which they shall in any manner establish or settle the price of any article, commodity, or transportation between them ... so as to directly or indirectly preclude a free and unrestricted competition among themselves ... or by which they shall agree to pool, combine, or directly or indirectly unite any interests that they may have connected with the sale or transportation of any such article or commodity, that its price might in any manner be affected. Every such trust as defined herein is declared to be unlawful, against public policy and void. [Emphasis added.]
The Supreme Court conceded that a literal application of the statute might render the parties’ agreement invalid, but explained that the enforceability of the agreement depended on its reasonableness:
The statute, if read literally, would seem to support the defendant’s contentions. However, the statute does not define restraint of trade, and the definition has been judicially supplied. It has long been held that a contract would not be construed as in restraint of trade unless the restraint was unreasonable. Standard Oil Co of New Jersey, [supra]; People ex rel Attorney General v Detroit Asphalt Paving Co, 244 Mich 119 [221 NW 122 (1928)]. [Staebler-Kempf supra at 356-357.]
The Staebler-Kempf Court, id. at 357, then quoted and applied the reasonableness standard set forth in Hubbard, supra at 19.
As we have indicated, the Michigan Supreme Court in Hubbard, supra, applied the rule of reason to determine the enforceability of a noncompetition agreement even before the enactment of statutes regulating antitrust practices, and the Supreme Court in Staebler-Kempf, supra, applied the rule of reason in addressing the validity of a restraint on trade under the then existing statutory scheme. Until the enactment of the MARA, however, the Michigan statutes explicitly set forth a general prohibition against non-competition agreements irrespective of their reasonableness. In 1905 PA 329, § 1, 1948 CL 445.761, the Legislature adopted a general rule rendering illegal non-competition agreements:
All agreements and contracts by which any person, co-partnership or corporation promises or agrees not to engage in any avocation, employment, pursuit, trade, profession or business, whether reasonable or unreasonable, partial or general, limited or unlimited, are hereby declared to be against public policy and illegal and void.
The Legislature authorized exceptions to the general prohibition against noncompetition agreements when the agreements arose in the context of a business transfer or between an employer and his employees.
This act shall not apply to any contract mentioned in this act, nor in restraint of trade where the only object of restraint imposed by the contract is to protect the vendee, or transferee, of a trade pursuit, avocation, profession or business, or the good will thereof, sold and transferred for a valuable consideration in good faith, and without any intent to create, build up, establish or maintain a monopoly; nor to any contract of employment under which the employer furnishes or discloses to the employe[e] a list of customers or patrons, commonly called a route list, within certain territory in which such employe [e] is to work, in which contract the employe [e] agrees not to perform similar services in such territory for himself or another engaged in a like or competing line of business for a period of 90 days after the termination of such contract or services. [1905 PA 329, § 6, as amended by 1917 PA 171, 1948 CL 445.766.]
The general statutory prohibition against noncompetition agreements, irrespective of their reasonableness, existed until the mara became effective in 1985.
The mara repealed the statutory provisions addressing noncompetition agreements and, at least when enacted, contained no sections specifically addressing noncompetition agreements. Accordingly, as this Court explained in Compton v Joseph Lepak, DDS, PC, 154 Mich App 360; 397 NW2d 311 (1986), the general antitrust provision of the mara, MCL 445.772, and the rule of reason historically employed thereunder, governed the enforceability of all agreements in restraint of trade, including noncompetition agreements. In Compton, this Court considered the validity of a noncompetition clause within an “independent contract of employment” between the defendant dental service corporation and the plaintiff dentist. Id. at 362-363. The Court observed that in light of the repeal of the specific provisions formerly controlling the question of the validity of a noncompetition agreement, MCL 445.761 and 445.766, § 2 of the mara constituted the controlling provision. Compton, supra at 365. After noting that § 2 of the mara was derived from the Uniform State Antitrust Act, which adopted Sherman Act language and standards of legality, the Court reasoned as follows:
Unlike former MCL 445.761 . . . , which declared void any agreement not to compete, whether reasonable or unreasonable, § 2 of mara only makes unlawful any contract which is an unreasonable restraint of trade, as under the common law or § 1 of the Sherman Act or monopolized trade under § 2 of the Sherman Act. [Compton, supra at 366 (emphasis added).]
Although the noncompetition agreement at issue in Compton contained no limitation of its duration, this Court, citing the weight of authority from other jurisdictions, federal precedent, and Michigan law, concluded that the agreement should be enforced to the extent reasonable according to “the developed common law.” Id. at 367-368. We reiterate that the Court reached its conclusion despite that § 2 of the mara makes no explicit reference to a standard of reasonableness.
We find it abundantly clear therefore that at the time of the Compton decision, the instant noncom-petition agreement would have been deemed enforceable according to the common-law rule of reason embodied within § 2 of the mara. The general restraint of trade provision within § 2 of the mara continued to embody the common-law rule of reason. Daniel, supra at 103; Compton, supra at 366.
Defendants, however, argued, and the trial court agreed, that an amendment of the MARA altered the analysis contained in Compton. In 1987, the Legislature enacted § 4a of the MARA, which, in subsection 1, MCL 455.774a(l), explicitly permits reasonable non-competition agreements between employers and employees. The trial court reasoned that the Legislature’s failure to authorize explicitly within § 4a non-competition agreements arising in other contexts, including between employers and independent contractors, reflected the Legislature’s intent that all other noncompetition agreements would constitute unlawful restraints of trade pursuant to § 2 of the MARA.
The existing legislative history indicates that “the repeal of the old law left a gap in” the MARA and that § 4a was proposed “to clarify . . . the permissible uses of restrictive covenants for employees who leave employment” under the MARA. House Legislative Analysis, HB 4072, December 18, 1987. The argument against the bill deemed § 4a unnecessary in light of the existing common-law rule of reason. Apparently, however, a majority of the Legislature’s members felt § 4a necessary to clarify whether noncompetition agreements between employers and employees “were . . . legal or not and under what conditions.” House Legislative Analysis, supra.
As our review of the history of restraint of trade law in Michigan makes clear, the common law in Michigan contemplated the enforceability of noncom-petition agreements that qualified as reasonable. Hubbard, supra at 19; Cardiology Associates of Southwestern Michigan, PC v Zencka, 155 Mich App 632, 636; 400 NW2d 606 (1985). The Legislature’s enactment of former MCL 445.761 altered the common-law rule from 1905 until 1985, when the MARA replaced it. Cardiology Associates, supra at 636-637. The Legislature’s repeal of and decision not to reenact former MCL 445.761, which was in derogation of the common law, clearly demonstrates the Legislature’s intent to revive the common-law rule set forth in Hubbard, supra at 19, that the enforceability of noncompetition agreements depends on their reasonableness. People v Reeves, 448 Mich 1, 8; 528 NW2d 160 (1995), superseded by statute on other grounds as recognized in People v Nowack, 462 Mich 392, 400-401; 614 NW2d 78 (2000) (explaining that “[t]he repeal of a statute revives the common-law rule as it was before the statute was enacted”).
In reaching its conclusion that the Legislature’s enactment of a provision specifically authorizing only noncompetition agreements entered into within the employer-employee context signified that the Legislature intended to prohibit noncompetition agreements between employers and independent contractors, the trial court apparently relied on the statutory interpretation maxim that “the expression of one thing is the exclusion of another.” This maxim only provides an aid to interpreting legislative intent; however, it cannot be employed where its application would defeat otherwise evident legislative intent. Grand Rapids Employees Independent Union v Grand Rapids, 235 Mich App 398, 406; 597 NW2d 284 (1999). The Legislature’s repeal of former MCL 445.761 and the commentary accompanying § 2 of the Uniform State Antitrust Act, with which the Legislature replaced the prior act, plainly indicate the Legislature’s intent to return to the common-law rule of reason with respect to noncompetition agreements. We emphasize that absolutely nothing -within the legislative history of § 4a or within the language of that section itself suggests that the Legislature intended to prohibit, as it had in 1905, the application of the common-law rule of reason to noncompetition agreements. We are convinced that had the Legislature intended its enactment of § 4a to generally prohibit all noncompetition agreements other than those between employers and employees, only two years after having repealed such a general prohibition against noncompetition agreements with the enactment of the mara, the Legislature would have done so expressly with a provision similar to 1948 CL 445.761.
Furthermore, our acceptance of the conclusion reached by the trial court would categorically render unenforceable any other conceivable noncompetition agreement. For example, the seller and purchaser of a business would not be able to contract not to compete against each other even though reasonable non-competition agreements between such buyers and sellers have been upheld in Michigan for well over a century. Hubbard, supra at 21 (upholding a reasonably constructed noncompetition agreement arising in the business sale context, consistent with “principles as recognized by all the authorities for the last one hundred and fifty years, at least”); see also 1948 CL 445.766 (excepting from the then existing general prohibition against noncompetition agreements those agreements that “protected] the vendee ... of a trade pursuit, avocation, profession or business, or the good will thereof”). We reject the suggestion that with its enactment of § 4a of the MARA the Legislature intended by implication to prohibit all noncompetition agreements entered into outside the employer-employee context, including those reasonable covenants recognized and accepted apparently for at least 279 years, see Hubbard, supra at 21. See Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 576; 548 NW2d 900 (1996) (noting this Court “begins with the axiom that repeals by implication are disfavored” and presumes, in most circumstances, that “if the Legislature had intended to repeal a statute or statutory provision, it would have done so explicitly”); B & B Investment, supra at 7 (observing that well-settled common-law principles are not to be abolished by implication).
We conclude that the trial court erred in construing §§ 2 and 4a of the MARA as a prohibition against all noncompetition agreements except those between employers and employees and in failing to apply the common-law rule of reason embodied within § 2 of the MARA when ruling with respect to the enforce ability of the noncompetition agreements between plaintiff employer and defendant independent contractors. Compton, supra at 364-368.
We reverse the trial court’s order granting defendants summary disposition and remand this case for further proceedings consistent with this opinion. We do not retain jurisdiction.
Defendants Hoogenstyn and Sanford additionally asserted that plaintiff owed them commissions.
The trial court’s order granting defendants partial summary disposition stated that it was based on MCR 2.116(C)(10). While the trial court indicated at the hearing on defendants’ motion that it found summary disposition appropriate pursuant to MCR 2.116(C)(8), we note that the trial court’s ruling rested on the fact that defendants were independent contractors of plaintiff, which fact defendants proved by referring to documents outside the pleadings, i.e., to plaintiffs responses to defendants’ requests to admit. Accordingly, we construe defendants’ motion as being granted pursuant to MCR 2.116(C)(10). Krass v Tri-County Security, Inc, 233 Mich App 661, 664-665; 593 NW2d 578 (1999).
Section 2 of the mara was derived from section 2 of the Uniform State Antitrust Act, the comment to which provides, in relevant part, as follows:
This section gathers together and proscribes all concerted or collusive conduct in unreasonable restraint of trade, as under the common law and section 1 of the Sherman Act [15 USC 1], and to monopolize trade, as under section 2 of the Sherman Act [15 USC 2]. In adopting the Sherman Act terms, “contract combination, or conspiracy,” this section is designed to cover all concerted activities, formal or informal, including sale, contract to sell, purchase, contract to purchase, lease, contract to lease, license, contract to license, trust, pool, or holding company. The adoption of Sherman Act language establishes its general standards of legality, provides needed flexibility, and makes available to state courts the relevant body of federal precedent. [7C ULA (Master Edition, 2000), p 357.]
The language of § 1 of the Sherman Act quoted in Standard Oil, supra at 49-50, appears substantially similar to the current language of 15 USC 1. Section 1 of the Sherman Act currently provides as follows:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.
The detractors of HB 4072 explained as follows:
The bill is not necessary. The public interest and rights of employees and employers would be sufficiently well served, as they are in many other states, by the common law test of reasonableness, which courts would employ in the absence of a specific statute on post-employment covenants. This test would weigh the various interests of employer, employee, and the public on a case-by-case basis. As articulated in a dissenting opinion filed with a 1976 Michigan Supreme Court decision, “a non-competition forfeiture clause is a reasonable restraint of trade only if it 1) is no greater than necessary for the protection of the legitimate interests of the employer; 2) does not impose undue hardship on the employee; and 3) is not injurious to the interests of the public.” Indeed, the bill’s vagueness and reliance on a general test of reasonableness ensure that disputes will continue to arise and be resolved by the courts. [House Legislative Analysis, supra.]
As the comment explains, the drafters of § 2 of the Uniform State Antitrust Act modeled it on the Sherman Act’s restraint of trade provision, intending to "make[] available to state courts the relevant body of federal precedent.” 7C ULA, supra at 357. As we have examined, the rule of reason has constituted a part of decisions under the Sherman Act for nearly one hundred years. | [
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Saad, P. J.
Defendant appeals as of right a jury trial conviction of solicitation to commit murder, MCL 750.157b, conspiracy to commit murder, MCL 750.157a(a) and MCL 750.316, conspiracy to obstruct justice, MCL 750.157a(a) and MCL 750.505, and common-law obstruction of justice, MCL 750.505. The trial court sentenced defendant to concurrent terms of life imprisonment for both the solicitation and conspiracy to commit murder convictions, and one to five years each for the conspiracy to obstruct justice and obstruction of justice convictions.
I. FACTS AND PROCEDURAL HISTORY
In March 1999, the Gibraltar Police arrested both defendant Kent Sexton and Frank Slavik after the police received information from Brian Gross that the two robbed a Total gasoline station in 1997. The record indicates that the prosecutor also considered charging Gross with participating in the robbery, but that the charge was dropped after Gross assisted in the robbery investigation and subsequent court proceedings. Gross testified as a key witness against defendant and Slavik at their preliminary examination on March 30, 1999, after which both defendant and Slavik were bound over for trial on armed robbery charges. Slavik posted bond later that day and defendant was released on bond on April 19, 1999.
Several witnesses testified at trial regarding the events surrounding the charges in this case. Slavik testified that he and defendant became friends after defendant started working at a car audio store Slavik managed in 1994. The two worked together for approximately four years and, after Slavik left his job to start his own roofing business, the two maintained a friendship. According to Slavik’s testimony and his statements to the police, on May 5, 1999, Slavik visited defendant at his workplace, Palco Electronics, in Southgate. While talking about the armed robbery charges, defendant commented to Slavik that the charges would be much more difficult to prove if Gross did not testify at trial. Defendant further stated that his friend “Charlie” was interested in “taking the job.”
During their conversation, defendant asked if Slavik remembered seeing a man in the courtroom during their preliminary examination, whom defendant identified as “Charlie.” Slavik recalled seeing the man in court and identified him during this trial as Charles Milstead. Defendant further told Slavik that Milstead was at the preliminary examination to kill Gross, but that he was unable to do so on that day. However, defendant explained that the preliminary examination allowed Milstead to identify and gather information about Gross in order to kill him.
According to Slavik, he told his attorney about defendant’s comments to avoid being implicated if someone murdered Gross. Slavik testified that he also told his attorney that, at a motion hearing on May 17, 1999, defendant again talked about eliminating Gross and asked Slavik if he had $7,500, which Milstead demanded to be paid in two installments to perform the killing. Slavik’s attorney notified Gibraltar Police Lieutenant George Hammerle about defendant’s statements and, after talking to Slavik on May 24, 1999, Lieutenant Hammerle contacted the Michigan State Police. On June 3, 1999, Slavik repeated his conversation with defendant to Lieutenant Hammerle and state police Detective Sergeant Norman Lipscomb. Lieutenant Hammerle also provided Sergeant Lipscomb with a picture of Charles Milstead, whom he suspected was the man Slavik saw at the preliminary examination.
Later that day, June 3, 1999, Sergeant Lipscomb asked Slavik to meet with defendant while wearing a hidden recording device in order to gather more information about the potential murder. Slavik complied and, wearing a wire, he went to Palco Electronics to talk to defendant. During the recorded conversation, which was also videotaped by Sergeant Lipscomb, defendant and Slavik talked about Milstead’s involvement and defendant unsuccessfully tried to reach Milstead by telephone. After Slavik left, Sergeant Lipscomb told Slavik to notify him if either Mil-stead or defendant tried to contact him. Over the next week, Slavik testified that he notified Sergeant Lipscomb after defendant left messages on his answering machine, including one letting Slavik know when Mil-stead would contact him
On June 10, 1999, Slavik allowed Sergeant Lipscomb to connect a recording device to his home telephone to record conversations and messages. Over the next four days, Slavik recorded several telephone calls, all of which were played for the jury at trial. At various times, defendant left messages for Slavik to call him and Milstead left a message for Slavik to contact defendant. During one conversation on June 14, 1999, defendant instructed Slavik that Milstead would call Slavik at 11:30 P.M., and that if he did not call, Slavik should call Milstead. That night, Slavik did not receive Milstead’s call, so Slavik called Milstead twice and left messages. Milstead returned Slavik’s call after 1:00 A.M. and offered to meet Slavik at Elizabeth Park in Trenton the next day.
Before the appointed time on May 15, 1999, Slavik met Sergeant Lipscomb at the state police post and was outfitted with a recording device. Sergeant Lipscomb also provided Slavik with $3,500 in marked currency and followed Slavik to the park where several other officers were already positioned. Milstead arrived shortly after Slavik drove into the parking lot and the two talked for an hour to an hour and a half, all of which was recorded on audio and video tape by the state police. During the conversation, Milstead described several methods he might use to kill Gross. Milstead also recounted his involvement in several prior violent incidents involving unrelated parties. Milstead also told Slavik that he planned to kill Gross in two or three weeks, after he gathered more information. Near the end of the encounter, Slavik opened his trunk and handed Milstead an envelope containing $3,500. Milstead took the envelope and Slavik told Milstead he could sit inside Slavik’s car to count the money. As Slavik and Milstead sat in Slavik’s car, the police approached and placed Milstead and Slavik under arrest. The police arrested defendant at his home later that day.
Following a preliminary examination before 33rd District Court Judge Donald L. Swank on June 29, 1999, defendant was bound over for trial on charges of solicitation to commit murder, conspiracy to commit murder, conspiracy to obstruct justice, and common-law obstruction of justice. Thereafter, defendant filed in the Wayne Circuit Court a motion to quash the information and to dismiss the charges. Following a hearing on September 21, 1999, the trial court denied defendant’s motions. Defendant and Milstead were tried together before one jury, and the jury found defendant guilty of the above charges on November 9, 1999.
II. ANALYSIS
A. ENTRAPMENT
Defendant contends that the trial court erred in denying his motion to dismiss, which was brought on the ground of entrapment. We disagree.
As this Court recently explained in People v McGee, 247 Mich App 325, 344; 636 NW2d 531 (2001):
Whether entrapment occurred must be determined by considering the facts of each case and is a question of law for the court to decide. People v Patrick, 178 Mich App 152, 154; 443 NW2d 499 (1989). The trial court must make specific findings regarding entrapment, and we review its findings under the clearly erroneous standard. People v Juillet, 439 Mich 34, 61; 475 NW2d 786 (1991); People v Connolly, 232 Mich App 425, 428; 591 NW2d 340 (1998). The findings are clearly erroneous if this Court is left with a firm conviction that a mistake was made. Id. at 429.
Entrapment occurs if “(1) the police engage in impermissible conduct that would induce an otherwise law-abiding person to commit a crime in similar circumstances, or (2) the police engage in conduct so reprehensible that it cannot be tolerated by the court.” McGee, supra at 344-345. The defendant bears the burden of proving entrapment by a preponderance of the evidence. People v Pegenau, 447 Mich 278, 294; 523 NW2d 325 (1994). The test for entrapment is objective and “focuses on the propriety of the government’s conduct that resulted in the charges against the defendant rather than on the defendant’s predisposition to commit the crime.” People v Hampton, 237 Mich App 143, 156; 603 NW2d 270 (1999). “Entrapment will not be found where the police did nothing more than present the defendant with the opportunity to commit the crime of which he was convicted.” McGee, supra at 345.
Here, the trial court decided the question of entrapment at a pretrial hearing after reviewing the transcripts of the preliminary examination, five audiovisual exhibits, and after hearing two five witnesses, defendant and his mother. Defendant denied any conspiracy to commit murder, and insisted that Slavik lied at the preliminary examination about defendant’s involvement. Defendant further testified that Slavik called him repeatedly about contacting Milstead, and that defendant finally gave Slavik Milstead’s telephone number without asking why he needed it.
We reject defendant’s contention that the police exerted excessive control over Slavik. First, the Michigan State Police became involved in this case only after Slavik sought guidance from his attorney, his attorney initiated contact with the police, and Slavik agreed to cooperate with the investigation to prevent Gross’ death. No evidence suggests that the police controlled Slavik’s activities or behavior or that they pressured him to take part in the investigation. Further, though Sergeant Lipscomb asked Slavik to talk to defendant, Slavik specifically testified that Sergeant Lipscomb did not tell him what to say to defendant or what information he should try to elicit. Indeed, the police were involved only to the extent that they listened to defendant talk about his plan to have Gross killed, without prompting or coercion by Slavik. Thus, evidence strongly repudiates any indication that the police used Slavik to manufacture a crime or to induce defendant to discuss his role in it.
For similar reasons, we find no merit to defendant’s claim that the police used Slavik to exert pressure on defendant or to take advantage of their friendship. At Slavik’s meeting with defendant on June 3, 1999, Slavik followed Sergeant Lipscomb’s instruction by not prompting defendant to discuss the killing. Thereafter, defendant initiated contact with Slavik regarding the plan and Milstead’s involvement. Contrary to defendant’s claims, the evidence clearly preponderates against a finding that Slavik continuously called defendant at the behest of the police or encouraged him to further his plans. Furthermore, while evidence confirmed that defendant and Slavik were friends, the record clearly shows that the police became involved only after defendant twice initiated discussions with Slavik about hiring Milstead to kill Gross. Thus, the police did not encourage Slavik to implore defendant to join in a criminal enterprise; defendant established the plan before any police involvement. Moreover, when Slavik talked to defendant on June 3, 1999, he was merely confirming what defendant had already discussed regarding Gross’ murder. Indeed, as the trial court observed, if defendant had not already planned to have Gross murdered, he would have expressed surprise, confusion, or resistance about the topic during the videotaped visit by Slavik. Instead, defendant expressed his familiarity with the plan and discussed it openly with Slavik without prompting or appeals to friendship.
We also disagree with defendant’s allegation that the police conduct would have induced an otherwise law-abiding citizen to engage in criminal behavior. Not only did defendant introduce the plan to have Gross murdered, Slavik exerted no pressure on defendant to initiate or carry out his plan to murder Gross. Further, while Slavik agreed to talk to Milstead and also agreed to provide at least part of the money Mil-stead demanded for the killing, this was clearly “ ‘insufficient to induce or instigate the commission of a crime by the average person, similarly situated to these defendants, who is not ready and willing to commit it.’ ” Juillet, supra at 55, quoting People v Jamieson, 436 Mich 61, 90; 461 NW2d 884 (1990). The record reflects that the police did “nothing more than present the defendant with the opportunity to commit the crime of which he was convicted,” which is insufficient to support a finding of entrapment. McGee, supra at 345.
Accordingly, the trial court did not clearly err in finding that no entrapment occurred.
B. DEFENSE COUNSEL’S CROSS-EXAMINATION OF SLAVIK
Defendant argues that the trial court erred in preventing defense counsel from cross-examining Slavik regarding his fear of going to trial on the armed robbery charge.
“A trial court’s limitation of cross-examination is reviewed for an abuse of discretion.” People v Crawford, 232 Mich App 608, 620; 591 NW2d 669 (1998).
The trial court sustained the prosecutor’s objection when defense counsel asked Slavik about a statement he allegedly made to defendant’s mother that he was nervous about his girlfriend’s potential testimony during the armed robbery trial. The prosecutor objected and argued that the questioning was irrelevant because Slavik’s girlfriend had nothing to do with defendant’s plan to kill Gross. In response, defense counsel argued that the testimony would show Slavik’s fear about going to trial and, thus, his motivation to lie about his claims against defendant.
The trial court did not abuse its discretion by limiting defense counsel’s cross-examination of Slavik on this issue. By that point, Slavik had answered numerous questions regarding his motivation for alerting the police to defendant’s plot to kill Gross. Slavik also admitted that his armed robbery charges were dropped in exchange for his assistance in this case. Further, Slavik’s anxiety about his girlfriend’s testimony is only remotely relevant to whether defendant participated in a plan to kill Gross, particularly in light of the overwhelming tape-recorded evidence of defendant’s participation. Moreover, were we to find that Slavik’s alleged statement to defendant’s mother had some minimal relevance, the transcript clearly shows that Slavik stated that he had no recollection of making it. Indeed, Slavik repeatedly told defense counsel that he did not recall any such conversation with defendant’s mother. Thus, defense counsel tried and failed to elicit an admission from Slavik that he confessed some apprehension about the trial, not merely because the trial court sustained the prosecutor’s objection, but because Slavik had no memory of the event. Accordingly, any error by the trial court in curtailing defense counsel’s question was clearly harmless.
C. OBSTRUCTION OF JUSTICE
Defendant challenges the sufficiency of the evidence and the trial court’s denial of his motion for a directed verdict on the obstruction of justice charge.
When reviewing a trial court’s decision on a motion for a directed verdict, this Court reviews the record de novo to determine whether the evidence presented by the prosecutor, viewed in the light most favorable to the prosecutor, could persuade a rational trier of fact that the essential elements of the crime charged were proved beyond a reasonable doubt. [People v Aldrich, 246 Mich App 101, 122; 631 NW2d 67 (2001).]
Further, “[t]he test for determining the sufficiency of evidence in a criminal case is whether the evidence, viewed in a light most favorable to the people, would warrant a reasonable juror in finding guilt beyond a reasonable doubt.” People v Nowack, 462 Mich 392, 399; 614 NW2d 78 (2000).
Our Supreme Court set forth the common-law offense of obstruction of justice in People v Thomas, 438 Mich 448, 455-456; 475 NW2d 288 (1991):
Obstruction of justice is generally understood as an interference with the orderly administration of justice. This Court, in People v Ormsby, 310 Mich 291, 300; 17 NW2d 187 (1945), defined obstruction of justice as “ ‘impeding or obstructing those who seek justice in a court, or those who have duties or powers of administering justice therein.’ ” In People v Coleman, 350 Mich 268, 274; 86 NW2d 281 (1957), this Court stated that obstruction of justice is “committed when the effort is made to thwart or impede the administration of justice.” While these definitions adequately summarize the essential concept of obstruction of justice, we believe they lack the specificity necessary to sustain a criminal conviction.
The Thomas Court went on to further clarify the crime:
Like breach of the peace, at common law obstruction of justice was not a single offense but a category of offenses that interfered with public justice. Blackstone discusses twenty-two separate offenses under the heading “Offences against Public Justice.” If we now simply define obstruction of justice as an interference with the orderly administration of justice, we would fail to recognize or distinguish it as a category of separate offenses. We find no basis for this at common law.
To warrant the charge of common-law obstruction of justice, defendant’s conduct must have been recognized as one of the offenses falling within the category “obstruction of justice.” [Thomas, supra at 456-458, citing 4 Blackstone, Commentaries (1890), pp 161-177.]
“Intimidation of a witness in judicial proceedings is an indictable offense at common law, associated with the concept of obstructing justice.” People v Vallance, 216 Mich App 415, 419; 548 NW2d 718 (1996). Obviously, therefore, physically interfering with the witness’ ability to testify, especially by murdering the witness, clearly is an offense recognized at common law that constitutes obstruction of justice.
As the Court stated in Thomas, the crime of obstruction of justice occurs “ ‘when the effort is made to thwart or impede the administration of justice.’ ” Thomas, supra at 455 (citation omitted). For example, in obstructing justice through coercion, the “crime is complete with the attempt” and “[w]hether the attempt succeeds in dissuading the witness is immaterial.” People v Tower, 215 Mich App 318, 320; 544 NW2d 752 (1996). Thus, if a defendant harasses or physically prevents a witness from appearing or testifying, or attempts to do so, such actions constitute obstruction of justice, regardless of whether the witness ultimately appears or testifies. Id.
In a case involving the obstruction of justice by physically preventing a witness from testifying in court, for actual obstruction to occur, the defendant must have committed an act in an effort to physically prevent the witness from testifying. Similarly, the crime of obstruction of justice through coercion is complete once the defendant attempts to intimidate a witness, but the defendant must actually make some oral or physical threat in order to commit the crime. Likewise, here, if defendant attempted to physically harm or disable Gross, the crime of obstruction of justice would be complete, regardless of whether defendant succeeded in ultimately preventing Gross from testifying. Moreover, if Milstead made such an attempt at defendant’s behest, this would be sufficient to convict defendant of obstruction of justice.
However, the prosecutor presented no evidence of such an attempt. Though overwhelming evidence showed that defendant solicited Milstead and conspired with Milstead to kill Gross, no actual attempt was made on Gross’ life or his physical well-being. Therefore, this was not simply an unsuccessful attempt to obstruct justice, which is punishable as obstruction of justice, but a conspiracy thwarted before the coconspirators made an attempt at Gross’ life. Therefore, we agree with defendant that the trial court erred in ruling that defendant “committed] the crime of Obstruction of Justice by soliciting murder or conspiring to murder or both, to prevent the testimony of Brian Gross.” Solicitation or conspiracy alone is insufficient to establish actual obstruction of justice of this kind because some act in furtherance of that goal must be present. Accordingly, the trial court should have granted defendant’s motion for a directed verdict on this issue and his conviction and sentence for the obstruction of justice charge are hereby vacated. We emphasize, however, that ample evidence supported defendant’s conviction of conspiracy to obstruct justice, for which defendant was properly convicted and sentenced.
D. ELEMENTS OF SOLICITATION OF FIRST-DEGREE MURDER
Defendant next contends that insufficient evidence supported his conviction of solicitation of first-degree murder because the prosecutor failed to present evidence of imminence. MCL 750.157b.
To support his claim, defendant relies on a case interpreting the former solicitation of murder statute, which applied to a “person who incites, induces or exhorts” another to commit murder. As defendant correctly observes, in People v Salazar, 140 Mich App 137, 144-145; 362 NW2d 913 (1985), this Court held that the words “incites, induces or exhorts” established an element of imminence. However, defendant was convicted under the current version of MCL 750.157b(2), which provides: “A person who solicits another person to commit murder, or who solicits another person to do or omit to do an act which if completed would constitute murder, is guilty of a felony punishable by imprisonment for life or any term of years.” The statute also states: “For purposes of this section, ‘solicit’ means to offer to give, promise to give, or give any money, services, or anything of value, or to forgive or promise to forgive a debt or obligation.” [MCL 750.157b(l).] As is clear from the current version of the statute, the Legislature removed the words “incites, induces or exhorts” from the crime.
“The fundamental rule of statutory construction is to discern and give effect to the intent of the Legislature.” People v Venticinque, 459 Mich 90, 99; 586 NW2d 732 (1998). Accordingly, as a rule, “ [i]f statutory language is clear and unambiguous, the Legislature must have intended the meaning it expressed, and the statute must be enforced as written.” Id. at 99-100. Nonetheless, defendant argues that this Court cited Salazar with approval in a case construing the current solicitation statute, Crawford, supra at 616. However, contrary to defendant’s contention, Crawford cites Salazar for the proposition that, to be found guilty of solicitation, a solicitor need not achieve his goal. In fact, Crawford sets forth the elements of solicitation to commit murder under the current statute, and implies no element of imminence:
Solicitation to commit murder occurs when (1) the solicitor purposely seeks to have someone killed and (2) tries to engage someone to do the killing. Solicitation is complete when the solicitation is made. A contingency in the plan may affect whether the victim will be murdered, but does not change the solicitor’s intent that the victim be murdered. Actual incitement is not necessary for conviction. [Crawford, supra at 616 (citations omitted).]
Accordingly, consistent with the plain language of MCL 750.157b(2) and the elements set forth in Crawford, the prosecutor was not required to present evidence of imminence and defendant’s claim on this issue is without merit.
E. SENTENCE FOR SOLICITATION OF FIRST-DEGREE MURDER
Defendant claims he is entitled to resentencing because the trial court mistakenly believed that it was required to sentence defendant to life imprisonment.
This Court reviews a trial court’s sentencing decisions for an abuse of discretion. People v Cain, 238 Mich App 95, 130; 605 NW2d 28 (1999). However, here, defense counsel failed to object at the sentencing hearing and thus failed to preserve this issue. Therefore, a defendant pressing an unpreserved claim of error “must show a plain error that affected substantial rights.” People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).
Generally, “a defendant is entitled to resentencing where a sentencing court fails to exercise its discretion because of a mistaken belief in the law.” People v Green, 205 Mich App 342, 346; 517 NW2d 782 (1994).
For conspiracy to commit a crime that, if completed, would subject the offender to imprisonment for one year or more, “the person convicted . . . shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit. . . .” MCL 750.157a(a). Thus, because first-degree murder requires a sentence of life imprisonment, MCL 750.316(1), so must a sentence for conspiracy to commit first-degree murder. However, the solicitation statute at issue here does not adopt the sentencing provisions of the crime solicited; instead, the penalty for soliciting another person to commit murder is “imprisonment for life or any term of years.” MCL 750.157b(2).
We interpret the trial court’s statement, “the penalty is life, it’s not any number of years up to life, it’s life,” as indicating that the court elected to impose a life sentence, not a term of years for the minimum with life as the maximum. Indeed, a “trial judge is presumed to know the law,” People v Garfield, 166 Mich App 66, 79; 420 NW2d 124 (1988), and we, therefore, hold that the court’s statements reflect its discretion in imposing a life sentence, not a misunderstanding of the law. Accordingly, we affirm defendant’s sentence for solicitation of first-degree murder.
Affirmed in part and vacated in part.
The record further indicates that defendant and Slavik roomed together from early 1998 until October of the same year. Slavik also roomed with Gross for approximately five months in 1997.
The jury also convicted Milstead in this matter, and his appeal is currently pending before this Court, People v Milstead, 250 Mich App 391; 648 NW2d 648 (2002).
We also reject defendant’s argument that his own testimony was sufficiently exculpatory so that the trial court should have granted his motion to dismiss. As the trier of fact in an entrapment hearing, the trial court is in the best position to determine the credibility of the witnesses and we will not resolve that issue anew. See People v Jamieson, 168 Mich App 332, 338; 423 NW2d 655 (1988); People v Vaughn, 186 Mich App 376, 380; 465 NW2d 365 (1990). For the same reason, we reject defendant’s assertion that the trial court gave insufficient weight to evidence that Slavik had an interest in helping the police because he hoped his armed robbery charge would be dropped.
Defendant further claims that “[t]he prosecution presented no evidence that Defendant was known to them to commit crimes similar to the charges at issue in this case.” Contrary to defendant’s implication, it is not the prosecutor’s burden to prove that no entrapment occurred. Moreover, this is merely one factor that the court may consider in deciding whether entrapment occurred. In light of the overwhelming lack of evidence of entrapment, we are not persuaded by defendant’s assertion regarding this factor.
Though the statute does not apply to this case, our state Legislature recently codified the crime of obstruction of justice in 2000 PA 452, MCL 750.122(6), effective March 28, 2001: “A person shall not willfully impede, interfere with, prevent, or obstruct or attempt to willfully impede, interfere with, prevent, or obstruct the ability of a witness to attend, testify, or provide information in or for a present or future official proceeding.” | [
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Fitzgerald, J.
The Attorney General appeals by leave granted the circuit court order reversing a district court order allowing the Attorney General to unseal documents seized from Kent Community Hospital pursuant to a search warrant. The circuit court also reversed the decision of the district court by requiring the Attorney General to disclose the complete statements of certain witnesses that the Attorney General had previously disclosed only in part. We affirm.
FACTS
Ruth Lieberman was a long-term patient receiving nursing care at Kent Community Hospital. On July 9, 1997, Lieberman fell and injured her head while unattended. She died on July 30, 1997, apparently as a result of complications from the fall.
The Attorney General commenced a criminal investigation into Lieberman’s death in March 1998. An investigator from the criminal division of the Attorney General’s office spoke with employees of the hospital and obtained many documents from the hospital. More than fifteen employees were questioned or deposed by the Attorney General and the hospital turned over almost seven thousand documents.
The Attorney General obtained and executed an investigatory search warrant for documents on May 28, 1998. Thousands of documents were apparently seized. Before the documents left the hospital’s premises, however, some of the documents were “sealed” because the hospital deemed them privileged “peer review” documents. While there was some informal agreement that the documents would not be revealed until the hospital’s claim of privilege was resolved, it appears that the Attorney General has reviewed the documents and resealed them and that at least one of the documents was in effect made public when the Attorney General attached it as an appendix to a reply brief filed in the district court.
A hearing was held in the district court regarding the Attorney General’s motion for permission to unseal the documents seized. The district court apparently was persuaded that the privilege statute asserted by the hospital did not apply because the documents were seized pursuant to a search warrant rather than pursuant to a subpoena. The district court allowed the Attorney General to unseal the documents, but the district court stayed the decision to give the hospital an opportunity to appeal to the circuit court.
On appeal, the circuit court ruled that the peer review documents were protected by the peer review privilege and that the privilege could be enforced even against documents seized pursuant to a search warrant. The court determined that our Legislature intended the privilege to apply regardless of whether the documents were seized pursuant to a subpoena or a search warrant and could see no reason for making a distinction on the basis of whether the documents were seized pursuant to a search warrant or a subpoena. In addition, the circuit court ruled that the hospital was entitled to a copy of the full statements of certain witnesses where the Attorney General had relied on selected portions of those statements in support of the Attorney General’s motion. Specifically, the circuit court opined:
The Attorney General argues that the phrase, quote, “shall not be available for court subpoena,” close quote, protects these documents at issue in this case from disclosure only against a subpoena and not against a search warrant, but if I accept that argument, it means that the Attorney General may use a search warrant but not an investigative subpoena to obtain and review exactly the same documents described by exactly the same words. It’s simply a matter of crossing out the title “subpoena” and typing in the new title, “search warrant.” The relevancy requirements would be exactly the same. The fact that a district judge would have to approve the warrant makes no meaningful difference to me when we are talking about documents generated within the health care facility.
It is, therefore, my opinion that the legislature did intend to create a class of documents which are privileged even against a criminal search warrant. This privilege may be unique in the law, but health care quality assurance is uniquely important and uniquely fragile. The free and candid exchange of facts necessary to meaningful quality assurance or peer review cannot exist... without a guarantee of confidentiality.
Having said this, I must also recognize that this privilege, like all privileges, must be narrowly construed ....
... I would limit the privilege to documents which—provisionally which fit the following definitions: Number one, a document created by a peer review body or quality assurance body for peer review purposes; number two, a document created exclusively for a peer review body either at its express request or as required by law or written policy of the health care facility. A document which was created for other purposes, but which is utilized by the peer review body, does not have the advantage of this privilege. When a question arises as to whether a particular document meets these definitions, in-camera review may be necessary.
As for the other issue in the case, I believe that a party has a fundamental right to see the full statement of the witness when part of that statement is used against that party in court proceedings. When the Attorney General used an excerpt from the statement of an immunized witness, she waived the confidentiality which had attached to the full statement and, therefore, I believe [Kent Community Hospital] in this case is entitled to see the full statement.
I
The Attorney General argues that the circuit court erred in ruling that documents privileged under MCL 333.21515 are not subject to disclosure pursuant to a search warrant in a criminal investigation.
MCL 333.21515 provides:
The records, data, and knowledge collected for or by individuals or committees assigned a review function described in this article are confidential and shall be used only for the purposes provided in this article, shall not be public records, and shall not be available for court subpoena.
This language is not narrowly limited to procedures attendant to discovery in civil litigation, but applies also to investigations by the Board of Medicine and the Department of Licensing and Regulation. Attorney General v Bruce, 422 Mich 157, 161-169; 369 NW2d 826 (1985). The question presented in this case is whether the privilege additionally insulates peer review materials from discovery pursuant to criminal investigations.
The primary purpose of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Haworth, Inc v Wickes Mfg Co, 210 Mich App 222, 227; 532 NW2d 903 (1995). The language of the statute itself is the primary indicator of legislative intent. Folands Jewelry Brokers, Inc v City of Warren, 210 Mich App 304, 307; 532 NW2d 920 (1995). When construing a statute, a court should presume that every word has some meaning. Tiger Stadium Fan Club, Inc v Governor, 217 Mich App 439, 457; 553 NW2d 7 (1996). Statutes should be read to avoid absurd results. Colbert v Conybeare Law Office, 239 Mich App 608, 616; 609 NW2d 208 (2000).
The clear language of § 21515 provides: (1) peer review information is confidential, (2) peer review information is to be used “only for the purposes provided in this article,” (3) peer review information is not to be a public record, and (4) peer review information is not subject to subpoena. Section 21515 demonstrates that the Legislature has imposed a comprehensive ban on the disclosure of any information collected by, or records of the proceedings of, committees assigned a professional review function in hospitals and health facilities. If the specific mention of a court subpoena meant that the privilege existed only as a defense against a subpoena, the statute’s general language stating that peer review materials are confidential would become nearly meaningless. Although the statute does not refer to search warrants, it would be inconsistent with the stated purposes of the privilege to find that peer review information could be obtained pursuant to an investigatory search warrant. The protection against discovery through subpoena would effectively evaporate if an investigator needed only to obtain a search warrant instead.
Underscoring the high level of confidentiality attendant to peer review documents is the statutory admonishment that such information is to be used only for the reasons set forth in the legislative article including that privilege. See article 17 of the Public Health Code, MCL 333.20101 to 333.22260. Within that article, § 21513(d), MCL 333.21513(d), which appears in the section immediately preceding § 21515, imposes on the operator of a hospital the duty to “assure that physicians . . . admitted to practice in the hospital are organized into a medical staff to enable an effective review of the professional practices in the hospital for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients.” The same subsection further states, “This review shall include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital.” The legislation commands that a hospital maintain a peer review process for the purpose of improving patient care, and further commands that such peer review documentation be used for no purpose other than those prescribed within the article. The Attorney General does not suggest that article 17 includes any provision for use of peer review materials in furtherance of a criminal investigation. In other words, the search warrant here, while not an investigative tool specifically mentioned in the statute, nonetheless does not seek peer review information for “purposes provided in this article” and thus does not satisfy a necessary precondition for permitting disclosure. Allowing a prosecutor to obtain a hospital’s peer review materials pursuant to a search warrant would be to allow the prosecutor’s general investigative powers to override the specific privilege of confidentiality that covers such materials. See Gebhardt v O’Rourke, 444 Mich 535, 542-543; 510 NW2d 900 (1994) (specific statutory provisions trump general provisions). Accordingly, we conclude that docu merits created by a peer review body exclusively for peer review purposes are not subject to disclosure pursuant to a search warrant in a criminal investigation.
n
The Attorney General asserts that compelling policy considerations militate in favor of holding the statutory privilege narrowly to its terms and allowing the material here sought to be discovered pursuant to criminal investigations. A proper, objective reading of the statute, however, must be considered the Legislature’s statement of public policy. Because the Legislature protected peer review documents in broad terms, the public policy argument must be resolved in favor of confidentiality. Our Supreme Court has acknowledged that the Legislature chose to put a premium on hospitals’ maintaining effective internal review processes. See Bruce, supra at 170, n 7 and accompanying text. Peer review material is simply not available to assist in a criminal investigation; rather, it is available only for purposes indicated in article 17 of the Public Health Code. Indeed, such information would not exist in the first place but for the legislative requirement in furtherance of improving health care.* *
in
The Attorney General argues that the circuit court erred in ordering disclosure of the complete statements, of which the Attorney General only used parts against the hospital in response to the hospital’s reply to the Attorney General’s motion to unseal the peer review documents. The hospital apparently wanted to review the entire statements to determine whether to raise an issue in the trial court regarding probable cause to issue the search warrant with regard to the peer review documents. Because we have concluded that a search warrant cannot be used to acquire the peer review documents, this evidentiary issue is moot at this time because the hospital’s challenge to the seizure of the peer review documents has been resolved in the hospital’s favor.
Affirmed.
Lieberman’s estate is not a party to this proceeding.
The circuit court recognized that if there was a question regarding whether a particular document was a peer review document, then an in camera review would be in order.
The circuit court held that a “party has a fundamental right to see the full statement of the witness when part of that statement is used against the party in court proceedings.”
The Attorney General raises arguments challenging plaintiff’s status as a hospital and the status of the documents as privileged peer review materials. The Attorney General did not raise these factual arguments in the district court and, therefore, we consider these arguments forfeited.
The federal statutory provisions cited by the Attorney General do not spell out a duty to disclose peer review materials in criminal investigations, and do not include language suggesting that the federal provisions should preempt state law in this regard. Thus, the circuit court correctly held that this case should be decided purely on the basis of Michigan law.
The prosecutor nonetheless remains free to investigate and interview the persons who participated in the peer review process. | [
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] |
Per Curiam.
Plaintiff appealed by leave granted from an order of the Worker’s Compensation Appellate Commission (wcac) modifying the magistrate’s award to reflect a weekly benefit rate of zero. In George v Burlington Coat Factory Warehouse of Southfield, unpublished opinion per curiam of the Court of Appeals, issued March 21, 2000 (Docket No. 212968), we reversed in part, vacated in part, and remanded for further proceedings. In lieu of granting defendants’ application for leave to appeal, our Supreme Court remanded this matter back to us for reconsideration in light of Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691; 614 NW2d 607 (2000). George v Burlington Coat Factory Warehouse of Southfield, 463 Mich 980 (2001). On reconsideration, we conclude that the wcac’s findings of fact were supported by evidence of record and are, therefore, conclusive. Accordingly, we vacate our previous opinion and affirm the holding of the WCAC.
In light of the protracted history of this case, we need not provide a lengthy recitation of the facts. In summary, plaintiff was injured in 1992 during the course of his employment with defendant Burlington Coat Factory Warehouse of Southfield. After unsuccessfully attempting to return to work for Burlington, in 1994, plaintiff began working for three temporary-employment companies. Plaintiff also operated a sole proprietorship dedicated to selling insurance.
When plaintiff applied for worker’s compensation benefits, the magistrate found plaintiff partially disabled and that he both could and had performed sedentary work. The magistrate also found that plaintiff failed to prove that he left the temporary-employment positions because of his work-related injury. Thereafter, the magistrate determined that plaintiff was entitled to about $23 a week in benefits, based on the difference between plaintiff’s earnings from Burlington and the amount he earned while employed at the temporary-employment companies.
On administrative appeal, the WCAC affirmed the magistrate’s finding that plaintiff retained a postinjury wage-earning capacity. However, the WCAC further found that the magistrate should have also taken into account plaintiff’s earnings from his insurance business. After combining the average weekly wages plaintiff earned from both employments, the resulting average weekly wage exceeded plaintiff’s average weekly wage earned from Burlington. Accordingly, the WCAC held that, as a matter of law, plaintiff was not entitled to weekly benefits and modified the magistrate’s decision to reflect a weekly benefit rate of zero. Thereafter, following this Court’s directive, the wcac reconsidered its decision and held that plaintiff failed to prove a compensable disability because he failed to establish a causal link between his injury and his wage loss.
On appeal, plaintiff primarily argues that the wcac erred in finding that plaintiff failed to establish a compensable disability and in modifying the magistrate’s decision, reducing his award of benefits to zero. We disagree. Our review of the wcac’s findings of fact is extremely deferential and such findings of fact are conclusive, in the absence of fraud, if there is any competent evidence to support them and the wcac did not misapprehend its administrative appellate role. Mudel, supra at 701-704, quoting Holden v Ford Motor Co, 439 Mich 257, 263; 484 NW2d 227 (1992).
An employee is entitled to worker’s compensation benefits if he proves that he sustained a work-related disability that resulted in actual wage loss. Haske v Transport Leasing, Inc, Indiana, 455 Mich 628, 634; 566 NW2d 896 (1997). An employee is considered “disabled” when “he can no longer perform a job suit able to his qualifications and training as a result of his injury.” Id. at 655. An employee is “partially disabled” when “he is unable to perform a single [i.e., at least one] position within his qualifications and training.” Id. However, an employee’s disability is compensable only when he proves wage loss by showing a reduction in his wage-earning capacity. Id. at 665. A reduction in wage-earning capacity is demonstrated when the employee establishes, to the factfinder’s satisfaction, a causal link between the work-related disability and the subsequent loss in actual wages, i.e., that the wage loss is attributable to the injury. Id. at 634, 662.
In this case, the record evidence included that (1) plaintiff was rendered partially disabled by his work-related injury, (2) plaintiff was subsequently employed at three temporary-employment companies, (3) plaintiff did not leave his temporary positions because of his work-related disability, (4) plaintiff operated a life insurance business, and (5) plaintiff’s average weekly wage exceeded the average weekly wage he earned while working for Burlington. We conclude that there is evidence to support the wcac’s finding that plaintiff failed to establish a compensable disability.
It is the employee’s burden to prove a causal link between wage loss and the work-related injury. Id. at 662; Sobotka v Chrysler Corp (After Remand), 447 Mich 1, 25; 523 NW2d 454 (1994). “The factfinder is free to accept or reject evidence of actual wages earned, avoided, or refused, or other factors affecting an employee’s actual as opposed to theoretical, employability.” McKissack v Comprehensive Health Services of Detroit, 447 Mich 57, 71; 523 NW2d 444 (1994). Here, although the wcac found that plaintiff was partially disabled because of a work-related injury, it concluded that any subsequently lost wages were not attributable to the injury. Because this finding is supported by evidence, including that plaintiff chose to work for temporary-employment companies and did not leave these positions because of his work-related injury, the wcac’s finding is conclusive and binding on this Court. See Mudel, supra at 703-704. Accordingly, we conclude that the wcac acted within its authority and we affirm its holding. Our resolution of this dispositive issue obviates the need to consider the issue regarding computation of a weekly benefit rate.
Affirmed.
George v Burlington Coat Factory Warehouse of Southfield, unpublished order of the Court of Appeals, entered February 25, 1998 (Docket No. 204629). | [
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Markey, J.
Plaintiffs appeal by leave granted the trial court’s order denying plaintiffs’ and defendants’ motions for summary disposition. Plaintiffs’ action seeks a declaration that the intergovernmental transfers of functions and responsibilities act (itfra), MCL 124.531 el seq., required defendants in determining tenure eligibility to recognize and credit plaintiffs’ service as teachers with an adult education consortium of which defendants were members, but not the fiscal agent. We affirm in part, reverse in part, and remand.
I. FACTS AND PROCEDURAL HISTORY
The parties have submitted stipulated facts. Plaintiffs’ complaint alleged, and defendants admitted, that before the 1998-99 school year, defendants belonged to a decentralized adult education consortium with other school districts for which Willow Run Community Schools served as fiscal agent. Defendants denied plaintiffs’ allegations that defendants had administrative responsibility or authority to hire or discipline consortium employees. The parties, however, stipulated that defendants, as a “home district,” had some administrative responsibilities for the adult education program operated within defendants’ jurisdiction, including interviewing and recommending employees, determining seniority of consortium employees, developing the program, evaluating the staff, and participating in the grievance process. At the end of the 1997- 98 school year, defendants discontinued their association with the consortium but began to independently operate an adult education program within the district commencing with the 1998-99 school year.
Before defendants hired them as teachers for the 1998- 99 school year, each plaintiff had varying years of service as teachers employed by the consortium working within defendants’ district. Defendants admitted that they hired plaintiffs as teachers for the 1998-99 school year and claimed a lack of sufficient knowledge to either admit or deny plaintiffs’ previous service as teachers, which served as a denial, MCR 2.111(C)(3). Defendants, however, acknowledged in the parties’ stipulation of facts that plaintiffs served as teachers who were employed by the consortium and worked within defendants’ “home district.”
Plaintiffs requested that defendants credit plaintiffs’ service with the consortium toward the period of service with defendants required to achieve tenure under the teachers’ tenure act (tta), MCL 38.71 et seq. Plaintiffs alleged that the itfra, specifically MCL 124.534(d)(ii), required defendants to recognize plaintiffs’ service with the consortium toward completion of the probationary period necessary to achieve tenure with defendants. Defendants refused, asserting that plaintiffs were required to serve a new four-year probationary period according to MCL 38.81.
After filing a lawsuit, plaintiffs moved for summary disposition pursuant to MCR 2.116(C)(9) (the opposing party has failed to state a valid defense to the claim asserted against it). Defendants answered that the trial court should enter judgment in their favor pursuant to MCR 2.116(I)(2) (the court may render judgment in favor of the nonmoving party if it appears the nonmoving party is so entitled). The trial court found that neither the itfra nor the tta “specifically dictate the result in this case.” The trial court reasoned that an employee “benefit” under MCL 124.534(d)(ii) did not include tenure under the rule of statutory construction that the express mention of one thing generally implies the exclusion of other things. Further, the trial court reasoned that even if tenure were included in the benefits contemplated by the itfra, MCL 124.534(d) (ii) did not specifically provide for achieving tenure in a consortium as did MCL 38.91(3) of the tta.
On the other hand, the trial court noted that the TTA did not cover the instant situation where “a probationary period is interrupted by a transfer to a different district.” The trial court referred to the case of Sara Mayman v Ann Arbor Bd of Ed, opinion of the State Tenure Commission (Docket No. 98-44, November 8, 1999), for the proposition that the tta does not dictate the length of probation when there are “simultaneous employing boards” as in the present case and reasoned that MCL 38.91(3) requires that a teacher’s probationary service in a consortium be applied to only one district (the fiscal agent, absent a written agreement between the teacher and another district) only where the teacher satisfactorily completes probation. The trial court further applied a rule of “fairness” and found that extending plaintiffs’ probationary period beyond four years from their date of hire (with the consortium) would contravene the tta, specifically MCL 38.81 (which requires a four-year probationary period to achieve tenure).
The trial court, having in essence found in favor of each side in this case, denied summary disposition to both and required “the parties to employ the services of a facilitator to assist in resolution of this dispute . . . .” The trial court further encouraged the parties, especially defendants, to seek advisory opinions from the State Tenure Commission or the Office of the Attorney General to help determine the length of plaintiffs’ probationary period (to achieve tenure). Thereafter, this Court granted plaintiffs’ application for leave to appeal.
n. analysis
Plaintiffs argue that school districts are included within the definition of “political subdivision” covered by the itfra, which requires that an employee acquired in the “transfer” of a governmental program is not to suffer adverse employment consequences regarding “workmen’s compensation, pension, seniority, wages, sick leave, vacation, health and welfare insurance or any other benefits . . . .” MCL 124.534(d)(ii). Plaintiffs claim that their satisfactory service as probationary teachers employed by a con sortium, with Willow Run as fiscal agent and defendants as a member district, is a benefit that must transfer with them when defendants hired them to continue teaching in the adult education program. Plaintiffs assert that they will be denied the protection of the tta and be required to serve a period of probation longer than required by the tta (i.e., four years) because defendants refuse to credit plaintiffs’ service with the consortium toward the period of probation required to achieve tenure. We conclude that the trial court properly denied plaintiffs’ motion for summary disposition, albeit for the wrong reasons, because a “transfer” of governmental functions or responsibilities did not occur in this case. For the same reason, the trial court erred in not granting defendants’ motion for judgment pursuant to MCR 2.116(0(2)-
This Court reviews de novo the trial court’s grant or denial of a motion for summary disposition. Schulz v Northville Public Schools, 247 Mich App 178, 182; 635 NW2d 508 (2001). When deciding a motion under MCR 2.116(C)(9), which tests the sufficiency of a defendant’s pleadings, the trial court must accept as true all well-pleaded allegations and properly grants summary disposition where a defendant fails to plead a valid defense to a claim. Village of Dimondale v Grable, 240 Mich App 553, 564; 618 NW2d 23 (2000). The parties’ “stipulation of facts” is not a “pleading.” Pleadings include only complaints, cross-claims, counterclaims, third-party complaints, answers to any of these, and replies to answers. Id. at 565; MCR 2.110(A). Summary disposition under MCR 2.116(C)(9) is proper when the defendant’s pleadings are so clearly untenable that as a matter of law no factual development could possibly deny the plaintiffs right to recovery. Alcona Co v Wolverine Environmental Production, Inc, 233 Mich App 238, 245-246; 590 NW2d 586 (1998). Statutory interpretation is a question of law also reviewed de novo on appeal. Id. at 246.
Subsection 4(d) of the itfra, MCL 124.534(d), requires that a contract to transfer a function or responsibility shall include:
(d) The maimer in which the affected employees, if any, of the participating political subdivisions shall be transferred, reassigned or otherwise treated subject to the following:
(i) Such employees as are necessary for the operation thereof shall be transferred to and appointed as employees subject to all rights and benefits. These employees shall be given seniority credits and sick leave, vacation, insurance and pension credits in accordance with the records or labor agreements from the acquired system. Members and beneficiaries of any pension or retirement system or other benefits established by the acquired system shall continue to have rights, privileges, benefits, obligations and status with respect to such established system. The political subdivision to which the functions or responsibilities have been transferred shall assume the obligations of any system acquired by it with regard to wages, salaries, hours, working conditions, sick leave, health and welfare and pension or retirement provisions for employees. If the employees of an acquired system were not guaranteed sick leave, health and welfare and pension or retirement pay based on seniority, the political subdivision shall not be required to provide these benefits retroactively.
(ii) No employee who is transferred to a position with the political subdivision shall by reason of such transfer be placed in any worse position with respect to workmen’s compensation, pension, seniority, wages, sick leave, vacation, health and welfare insurance or any other benefits that he enjoyed as an employee of such acquired system.
In response to plaintiffs’ argument, defendants argue persuasively that the more recent and specific provisions of the tta govern; consequently, plaintiffs’ service with the consortium could be credited only toward earning tenure with the fiscal agent of the consortium, absent a specific contract to the contrary, which is not present in the instant case. Specifically, defendants argue that MCL 38.91(3) controls. Subsection 1(3) provides:
If a teacher employed in a program operated by a consortium of school districts was not previously on continuing tenure in a school district that participates in the consortium and satisfactorily completes the probationary period, the teacher shall be considered to be on continuing tenure only in the school district that is the fiscal agent for the consortium. However, if there is a written agreement between the teacher and another participating school district that provides that the teacher will have continuing tenure in that school district, the teacher shall be considered to be on continuing tenure only in that school district and shall not be considered to be on continuing tenure in the school district that is the fiscal agent for the consortium.
Plaintiffs’ claim is based on the premise that the ITFRA applies to the facts of this case. Plaintiffs and defendants do not dispute the basic facts. Defendants hired plaintiffs to continue teaching in the adult education program formerly operated by the consortium. However, plaintiffs’ complaint does not allege a written contract effecting a transfer of the adult education program. A copy of a “memorandum of agreement” between Willow Run and defendant Ann Arbor Public Schools is attached to plaintiffs’ complaint (and the parties’ stipulation of facts) as an exhibit. An exhibit attached or referred to in a pleading becomes “a part of the pleading for all purposes.” MCR 2.113(F)(2). The memorandum provides that the adult education consortium operated within the two school districts would end after the 1997-98 school year, but that defendants would continue to operate an adult education program to meet the needs of its community. The memorandum also provides that defendants will hire, on or before July 1, 1998, all consortium employees who worked at defendants’ work site and that defendants will assume full responsibility for any unemployment benefits to which such employees may become entitled.
Because defendants dispute plaintiffs’ legal conclusion that credit toward tenure must be awarded to plaintiffs and dispute the assertion that a transfer of functions within the meaning of the itfra occurred when the consortium dissolved, this Court must construe the statutes. Where reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate. Adrian School Dist v Michigan Public School Employees’ Retirement System, 458 Mich 326, 332; 582 NW2d 767 (1998). The primary goal in construing a statute is to ascertain and effectuate the intent of the Legislature. Alcona Co, supra at 246; VanGessel v Lakewood Public Schools, 220 Mich App 37, 40; 558 NW2d 248 (1996). The first step in determining the intent of the Legislature is to review the specific wording of the statute itself. In re MCI Telecommunications Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999); Alcona Co, supra at 246. Where the plain and ordinary meaning of the language of the statute is clear and unambiguous, no further interpretation is necessary. VanGessel, supra at 40. In this regard, every word or phrase of a statute should be accorded its plain and ordinary meaning. MCL 8.3a; Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 539; 565 NW2d 828 (1997). Likewise, parts of a statute should be construed together in the context of the whole statute, bearing in mind the purpose of the Legislature, to arrive at an harmonious whole. VanGessel, supra at 41. We have found no published cases that provide guidance in interpreting the itfra.
The title of the itfra and its preamble, “an act to provide for intergovernmental transfers of functions and responsibilities,” both clearly express the purpose and limit the scope of the statute, which is to allow and regulate transfers of “functions and responsibilities” between governments. Malcolm v East Detroit, 437 Mich 132, 143; 468 NW2d 479 (1991); Knight v Limbert, 170 Mich App 410, 414; 427 NW2d 637 (1988). Consistent with the title and preamble, § 2 of the itfra, MCL 124.532, provides that “[t]wo or more political subdivisions are authorized to enter into a contract with each other providing for the transfer of functions or responsibilities to one another or any combination thereof upon the consent of each political subdivision involved.” The itfra thus contemplates that a power, right, or ability of at least one governmental unit to perform a function or responsibility can be transferred to at least one other governmental unit that previously did not possess the power, right, or ability to perfomi the transferred function or responsibility within the jurisdiction of the transferring unit (otherwise, why contract to transfer the function or responsibility).
Plaintiffs contend that the adult education program operated within defendants’ district was the “function or responsibility” transferred in this case. The ques tion facing this Court is whether the “memorandum of agreement” between Willow Rim and defendants is a contract that transfers a “function or responsibility” within the meaning of the itfra. The memorandum states that “Ann Arbor Public Schools will continue to operate an adult education program in the future to meet the needs of its community.” The memorandum does not, however, otherwise satisfy the requirements of the ITFRA: it lacks a provision for financing defendants’ future adult education program, MCL 124.534(f), provides no “term of operation,” MCL 124.534(c), or other legal, financial, and administrative arrangements required to effectuate the undertaking, MCL 124.534(g). Therefore, the memorandum of agreement simply does not contain terms expressly required by the itfra, regardless of whether it complied with the formal procedural requirements of MCL 124.533.
Moreover, the memorandum of agreement did not transfer a function or responsibility of Willow Rim or the consortium to defendants for several reasons. First, Willow Run, without a grant of authority from defendants, does not independently possess the power or authority to operate an adult education program within defendants’ geographic boundaries and therefore could not transfer such a “function or responsibility” to defendants. Second, because defendants at all times, had the authority to operate an adult education program in its own right within its own district, MCL 380.11a(3)(a), no transfer of that “function or responsibility” was necessary. Finally, it is unreasonable to construe defendants’ withdrawal of consent from the consortium to operate adult edu cation programs within defendants’ district as a “transfer” within the meaning of the itfra.
The itfra, however, does provide for the termination of a contract involving the transfer of functions or responsibilities, most of which have existed to establish the consortium. It is fair and reasonable to interpret the memorandum of agreement in this case as a termination of the prior transfer. MCL 124.536. The memorandum of agreement is simply a division of the residual revenues of the consortium (state aid) and an assignment of the residual liabilities of the consortium (unemployment compensation for affected teachers if not hired by defendants for their own program). Thus, no transfer of a “function or responsibility” as contemplated by the ITFRA, i.e., the adult education program, occurred. Because no transfer within the meaning of the statute occurred, MCL 124.534(d) does not apply on the facts of this case to plaintiffs.
Although we found no published cases in Michigan interpreting the ITFRA, an unpublished decision by this Court analyzed an analogous situation similarly and supports our conclusion that no transfer occurred under the itfra. In Hemstreet v Grand Rapids, unpublished opinion per curiam of the Court of Appeals, issued April 10, 1998 (Docket No. 202424), the plaintiffs were prison security officers employed by the police department of the city of Grand Rapids who were terminated when the city police stopped housing arrested persons in a city-operated lockup and instead utilized the jail operated by Kent County. The county subsequently hired a number of new corrections officers equal to or greater in number than the discharged plaintiffs. Id. The plaintiffs brought a wrongful discharge suit against the city, county, and sheriffs department when they were not transferred to or hired as county jail guards, alleging a violation of MCL 124.534(d). This Court disagreed that a “transfer” within the meaning of the ITFRA occurred:
As explained below, although defendant city undertook the maintenance of a jail or lockup before July 1, 1993, it did not “transfer” that function, as envisioned by § 2 of the ITFRA, MCL 124.532; MSA 5.4087(2), because defendant Kent County was statutorily required to perform this same function, and, in fact did so. Subsequently [sic], plaintiffs do not fall within the class of “affected employees” identified in MCL 124.534(d); MSA 5.4087(4)(d).
More explicitly, this Court held:
Without a transfer of functions as contemplated by the ITFRA, defendants were not required to enter a contract with defendant Kent County before the county could house individuals arrested by defendant city’s police department. Likewise, in the absence of a transferred function, plaintiffs do not qualify as “affected employees” and are not entitled to the protections afforded by the itfra.
Although Hemstreet, supra, is an unpublished opinion and has no binding precedential effect under the rule of stare decisis, MCR 7.215(C)(1), its reasoning is persuasive, and it is a reasonable construction of the statute. A transfer of a “function or responsibility” within the meaning of the itfra does not occur when one unit of government begins (or as in Hemstreet, supra, increases) a “function or responsibility” where that unit of government already possessed the authority to perform the “function or responsibility” in question. Without a transfer within the meaning of the itfra, the employee protections of MCL 124.543(d) do not apply.
Moreover, even if a transfer within the meaning of the itfra occurred in this case, defendants’ statutory construction argument that teacher tenure does not come within the meaning of “benefit” found in MCL 124.534(d)(ii) is persuasive. As the State Tenure Commission noted when addressing this same issue in Mayman, supra at 7-8, the Legislature has specifically listed tenure as an entitlement that follows the transfer of special education personnel from one district to another, MCL 388.1651a(10), but it has not expressly included tenure as a named benefit in MCL 124.534(d)(ii). The State Tenure Commission, in reaching its conclusion that tenure was not included within the meaning of “benefit” in MCL 124.534(d)(ii), correctly stated in Mayman, supra at 7-8, that the express mention of one thing in a statute implies the exclusion of other similar things, expressio unius est exclusio alterius.” Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 298; 565 NW2d 650 (1997). Thus, although earned probationary service resulting in tenure must transfer with special education personnel, the same is not true for other personnel because of that rule. Furthermore, while an administrative agency’s construction of a statute is not controlling and cannot overcome the plain meaning of a statute, it is generally entitled to deference. Western Michigan Univ Bd of Control, supra at 544.
Another doctrine of statutory construction, ejusdem generis, provides that if a law contains general words that follow a designation of particular subjects, those general words are presumed to include only things of the same kind, class, character, or nature as the subjects enumerated. Sands Appliance Services, Inc v Wilson, 463 Mich 231, 242; 615 NW2d 241 (2000), quoting People v Brown, 406 Mich 215, 221; 277 NW2d 155 (1979); Belanger v Warren Consol School Dist, Bd of Ed, 432 Mich 575, 583; 443 NW2d 372 (1989). The items listed in MCL 124.534(d)(ii), including wages, sick leave, vacation, health insurance, and pension, are all types of traditional employment compensation, and are often the subjects of collective bargaining. Tenure under the tta, however, is an extraordinary statutory right that only teachers, out of all government employees, enjoy. If a teacher has acquired tenure, the right may not be waived or bargained away. MCL 38.172; Waits v Ann Arbor Public Schools, 221 Mich App 183, 188-189; 561 NW2d 851 (1997). Clearly, tenure is not of the same kind, class, character, or nature as employee “benefits” generally considered employment compensation and which are subject to mandatory collective bargaining. See MCL 380.483a(l)(d), 423.215; Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 54-55; 214 NW2d 803 (1974).
Furthermore, the TTA (1937 PA 4) predates the ITFRA (1967 PA 8). The later adopted MCL 38.91(3) (added by 1993 PA 59, effective June 11, 1993) of the tta, specifically addresses tenure for teachers employed by consortiums. It provides that a consortium teacher can earn tenure in only one district, which is the fiscal agent of the district (here, Willow Run), or the district otherwise specified by written agreement (none exists in this case). Thus, even assuming that MCL 124.534(d) and MCL 38.91(3) both apply to the present facts, where two statutes or provisions conflict and one is specific to the subject matter while the other is only generally applicable, the specific statute prevails. In re Brown, 229 Mich App 496, 501; 582 NW2d 530 (1998). Similarly, a later statute will control over an earlier one, especially if the later statute is more specific, as in this case. People v Ellis, 224 Mich App 752, 756; 569 NW2d 917 (1997). Therefore, MCL 38.91(3) prevails in the present case.
Plaintiffs’ argument that MCL 38.91(3) applies only if a probationary teacher attains tenure is unavailing and would lead to the absurd situation where a tenured teacher could be in a worse position than a probationary teacher if both were hired by a district that is not the fiscal agent of a dissolving consortium. Even if we were to assume that an ambiguity may be created out of the plain language of the statute to support plaintiffs’ position, we must avoid such an absurd result. McAuley v General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998).
For the foregoing reasons, the trial correctly denied plaintiffs’ motion for summary disposition but erred in not granting defendants counterrequest for judgment in their favor pursuant to MCR 2.116(I)(2).
We affirm in part, reverse in part, and remand to the trial court for entry of judgment in favor of defendants. We do not retain jurisdiction.
Defendants also argued below that the trial court lacked subject-matter jurisdiction because the State Tenure Commission must first address the issue whether a probationary teacher has achieved tenure. In response, the trial court noted that the State Tenure Commission did not have jurisdiction over the present dispute because “[a]II of plaintiffs here are probationary teachers without continuing tenure,” citing MCL 38.84, MCL 38.121, and Lipka v Brown City Community Schools (On Rehearing), 403 Mich 554, 559; 271 NW2d 771 (1978). However, defendants have not raised this issue on appeal; therefore, this argument has been abandoned.- Caldwell v Chapman, 240 Mich App 124, 132; 610 NW2d 264 (2000). In any event, because jurisdiction over the underlying controversy has not been withheld from the circuit court by statute or the Michigan Constitution, nor has jurisdiction been granted exclusively to another court or agency (e.g., the State Tenure Commission), the circuit court had subject-matter jurisdiction. MCL 600.605; People v Goecke, 457 Mich 442, 458; 579 NW2d 868 (1998); DNR v Holloway Constr Co, 191 Mich App 704, 705; 478 NW2d 677 (1991). However, we note that in some disputes involving tenure, the circuit court should decline to exercise jurisdiction until completion of administrative proceedings in the first instance. See, e.g., Slocum v Littlefield Public Schools Bd of Ed, 127 Mich App 183, 189; 338 NW2d 907 (1983) (State Tenure Commission has jurisdiction to determine whether a probationary teacher has achieved tenure), and Elgammal v Macomb Co Intermediate School Dist Bd of Ed, 83 Mich App 444, 449-450; 268 NW2d 679 (1978) (doctrine of exhaustion of administrative remedies). | [
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Murphy, J.
Plaintiffs appeal as of right from a judgment granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7). The trial court dismissed plaintiffs’ legal malpractice action on the ground that it was time-barred by the applicable statute of limitations. We reverse and remand.
I. basic facts and procedural history
Plaintiffs filed a complaint alleging three separate instances of legal malpractice committed by defendants in two circuit court cases and in an appeal to this Court. In the appeal before us now, plaintiffs only challenge the dismissal of the claim related to alleged malpractice arising out of defendants’ representation of plaintiffs in an action in the Washtenaw Circuit Court, file number 96-6366-CH. There is no dispute that defendants’ representation of plaintiffs in that matter was terminated on June 17, 1997.
Plaintiffs filed the instant complaint on May 4, 1999. However, the complaint was not delivered to an officer for service until July 16, 1999, and the complaint was actually served on defendants on July 30, 1999. There is no dispute regarding the dates concerning the filing of the complaint, the delivery of the complaint to the officer, and the service of the complaint. The narrow issue presented to us, as agreed on by the parties, is whether the statute of limitations barred plaintiffs’ cause of action where the complaint was filed within the two-year limitation period but was not placed with an officer for service, and service was not effectuated, until after the limitation period had expired.
Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(7) and (10), arguing that the statute of limitations barred plaintiffs’ action, and the trial court granted the motion pursuant to MCR 2.116(C)(7). The trial court ruled that pursuant to MCL 600.5856, plaintiffs’ failure to deliver the complaint to an officer until after the expiration of the statute of limitations barred the action despite the language in MCR 2.101(B) and the timely filing of the complaint. We disagree because MCL 600.5856 is not applicable under the facts of this case.
H. APPLICABLE LAW
A. MCR 2.116(C)(7) AND STANDARD OP REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition under MCR 2.116(C)(7). DiPonio Constr Co, Inc v Rosati Masonry Co, Inc, 246 Mich App 43, 46; 631 NW2d 59 (2001). In detennining whether a party is entitled to judgment as a matter of law pursuant to MCR 2.116(C)(7), a court must accept as true a plaintiff’s well-pleaded factual allegations, affidavits, or other documentary evidence and construe them in the plaintiff’s favor. Brennan v Edward D Jones & Co, 245 Mich App 156, 157; 626 NW2d 917 (2001). Where there are no factual disputes and reasonable minds cannot differ on the legal effect of the facts, the decision regarding whether a plaintiff’s claim is barred by the statute of limitations is a question of law that this Court reviews de novo. Id.
B. STATUTE OF LIMITATIONS
MCL 600.5805 and MCL 600.5838 require “a plaintiff in a legal malpractice action to file suit within two years of the attorney’s last day of service, or within six months of when the plaintiff discovered, or should have discovered the claim.” Gebhardt v O'Rourke, 444 Mich 535, 539; 510 NW2d 900 (1994).
C. MCR 2.101(B) AND MCL 600.5856
MCR 2.101(B) provides that “[a] civil action is commenced by filing a complaint with a court.” MCL 600.5856 provides, in relevant part:
The statutes of limitations or repose are tolled:
(a) At the time the complaint is filed and a copy of the summons and complaint are served on the defendant.
(b) At the time jurisdiction over the defendant is otherwise acquired.
(c) At the time the complaint is filed and a copy of the summons and complaint in good faith are placed in the hands of an officer for immediate service, but in this case the statute is not tolled longer than 90 days after the copy of the summons and complaint is received by the officer.
HI. TRIAL COURT’S RULING AND THE PARTIES’ ARGUMENTS ON APPEAL
The trial court specifically found that MCR 2.101(B) and MCL 600.5856 conflict, and that the Legislature considered public policy concerns in enacting MCL 600.5856, rather than the judicial dispatch of litigation; therefore, pursuant to McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999), MCR 2.101(B) must yield to MCL 600.5856. The trial court concluded that because the complaint was not served or placed with an officer for service until after the limitation period expired, plaintiffs’ action was time-barred.
Plaintiffs argue that MCR 2.101(B) and MCL 600.5856 do not conflict and that even if they do conflict, the court rule still prevails. Plaintiffs rely on Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971), partially overruled in McDougall, supra at 32, in support of their position, and they contend that McDougall, on which the trial court relied, should not be applied retroactively.
Defendants argue that MCR 2.101(B) and MCL 600.5856 do conflict, and that § 5856 controls because it was an enactment of substantive rather than procedural law. Defendants further argue that McDougall overruled Buscaino, that McDougall should be applied retroactively, and that plaintiffs waived any argument regarding the retroactive application of McDougall.
Defendants misinterpret, as did the trial court, the Buscaino decision, and the effect the McDougall decision had on Buscaino. We shall now address those cases, along with additional relevant case law.
IV. ANALYSIS
A. BUSCAINO v RHODES
In Buscaino, supra at 477, our Supreme Court addressed a case in which the plaintiffs filed a complaint six days before the expiration of the period of limitation. The plaintiffs gave the summons and complaint to a deputy sheriff for service on the same date the complaint was filed; however, the plaintiffs instructed the deputy to wait to serve the defendants until one of the defendants returned to Michigan. Id. Service on the defendants was made approximately two months after the limitation period expired. Id. The trial court and this Court ruled that the plaintiffs’ action was time-barred pursuant to MCL 600.5856. Id.
The Buscaino Court first noted its constitutional authority to implement general rules pertaining to practice and procedure in all courts throughout Michigan. Id. at 478. The Court further noted that statutes of limitation are considered to be procedural. Id. at 480. Our Supreme Court then cited GCR 1963, 101, which provided that “[a] civil action is commenced by filing a complaint with the court.” Buscaino, supra at 480. The language is virtually identical to that found in MCR 2.101(B). The Supreme Court stated that GCR 1963, 101 has meaning within the context of the statute of limitations, as well as every other context. Buscaino, supra at 481. The Court acknowledged the Legislature’s enactment of MCL 600.5856 and stated that “we have a seeming conflict between the Court Rule and the legislative act. . . Buscaino, supra at 480 (emphasis added).
The Buscaino Court went on to state that MCL 600.5856 has nothing to do with when an action is commenced, but instead has to do with when the statute of limitations is tolled. Id. The Court further stated:
“To toll the statute of limitations means to show facts which remove its bar of the action.” Black’s Law Dictionary (4th ed), p 1658.
Since there can be no question of “removing” the bar of the statute of limitations unless and until, in the absence of tolling[,! the statute would have barred the action, there can be no issue of “tolling” in any case where the action is commenced within the statutory period of limitation.
It is only when the action is not commenced within the statutory period—as determined by consulting the date of the claim, the date of filing the complaint and a calendar— it is only when a prima facie bar of the statute appears, that tolling comes into play. [Buscaino, supra at 481 (emphasis in original).]
Our Supreme Court, having found that the action was filed within the limitation period and that there was no tolling issue under MCL 600.5856, discussed the purpose of MCL 600.5856. Buscaino, supra at 481-484. The Court ruled that MCL 600.5856 “deals only with prior lawsuits between the parties which have not adjudicated the merits of the action.” Buscaino, supra at 482. The Supreme Court further explained, quoting the Committee Comment on the statute:
“In the event of the dismissal, on some ground other than on the merits (as for example—lack of jurisdiction over the subject matter) of an action in which jurisdiction over the defendant is acquired, the period of time from the time of service or the acquisition of jurisdiction over the defendant until dismissal will not count as a part of the time of limitation, for during such time the statute has been tolled.” [Id. at 482-483.]
The Buscaino Court concluded that it had the authority to enact GCR 1963, 101 and that the court rule controlled the Court’s decision; therefore, the statute of limitations did not bar the plaintiffs’ cause of action. Buscaino, supra at 483-484.
We believe that Buscaino supports the proposition that where a party, for the first time, files suit against a defendant, the limitation period is measured at the time the complaint was filed pursuant to MCR 2.101(B). We further believe, pursuant to Buscaino, that MCL 600.5856 comes into play where a party files suit beyond the limitation period and seeks to toll the time that elapsed during a previously dismissed lawsuit against the same defendant from the date of service, acquisition of jurisdiction, or placement of process with an officer for delivery until a dismissal that is not based on the merits of the action. Here, plaintiffs’ complaint was an original filing, and there had been no previous complaint or dismissal involving defendants. Therefore, Buscaino directs us to conclude that plaintiffs’ complaint was filed in accordance with MCR 2.101(B) within the statutory period, thereby precluding summary disposition under MCR 2.116(C)(7). The question becomes whether our Supreme Court’s decision in McDougall makes inapplicable the relevant principles found in Buscaino.
B. MCDOUGALL v SCHANZ
In McDougall, supra at 18, our Supreme Court held that MCL 600.2169, which provides strict requirements for the admission of expert testimony in medical malpractice cases, was an enactment of substantive law; therefore, the statute was a valid exercise of the Legislature’s prerogative to make public policy. The Supreme Court found that MRE 702, concerning expert testimony, conflicted with MCL 600.2169; however, because MCL 600.2169 was an enactment of substantive law, it did not impermissibly infringe the Court’s constitutional rule-making authority over matters of practice and procedure. McDougall, supra at 26, 37.
Our Supreme Court, as part of its analysis, stated:
Since Perin [v Peuler (On Rehearing), 373 Mich 531; 130 NW2d 4 (1964)], this Court, again without any apparent consideration of the meaning of “practice and procedure” as stated in [Const 1963,] art 6, § 5, has reaffirmed Perin’s broad statement of our authority over all matters relating to the admission of evidence. See, e.g., People v Mitchell, 402 Mich 506; 265 NW2d 163 (1978); People v Jackson, 391 Mich 323; 217 NW2d 22 (1974); Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971). [McDougall, supra at 29 (emphasis added).]
The McDougall Court further ruled that “[t]o the extent that this Court’s prior decision in Perin and its progeny suggest that all statutes affecting the admis sion of evidence are procedural, they are overruled.” Id. at 32.
The McDougall decision did not overrule the Buscaino Court’s determination that MCL 600.5856 applies to cases where a prior lawsuit was involved between the parties, nor did it overrule the determination that the date of filing a complaint measured the time frame on which to determine whether the statute of limitations barred a claim. The Buscaino decision did not involve a conflict between the court rule and MCL 600.5856 because the statute was not applicable. At most, McDougall simply overruled the language in Buscaino that touched on the Perin decision, which the Buscaino Court cited in support of its position that, pursuant to the Michigan Constitution, the Legislature must defer to the Michigan Supreme Court on the matter regarding when an action is commenced for purposes of the statute of limitations. Ultimately, however, Buscaino was not decided on those grounds because MCL 600.5856 was not in conflict with the court rule or applicable to the case. In McDougall, supra at 24, the Supreme Court noted that it is not necessary to determine whether a statute is a legislative attempt to supplant the Court’s authority where there is no inherent conflict with a court rule.
Any question regarding the effect of McDougall on Buscaino, in regard to the date a court must rely on in general in addressing a statute of limitations defense, was answered by our Supreme Court in Scarsella v Pollak, 461 Mich 547, 552, n 3; 607 NW2d 711 (2000), wherein the Court stated:
In general, of course, a statute of limitations requires only that a complaint be filed within the limitation period. Bus- . caino v Rhodes, 385 Mich 474, 481; 189 NW2d 202 (1971), partially overruled on other grounds, McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999).
Here, plaintiffs’ complaint was filed within the two-year limitation period.
V. CONCLUSION
Because plaintiffs’ action was never dismissed and refiled, MCL 600.5856 has no application to this case, in that there is no “tolling” issue. Accordingly, we hold that plaintiffs complied with the limitation period by filing their complaint pursuant to MCR 2.101(B) within two years of the termination of the attorney-client relationship and the fact of subsequent placement of process with an officer and service of the complaint after the limitation period can in no way result in the action being time-barred.
Reversed and remanded for proceedings consistent ■with this opinion. We do not retain jurisdiction.
In Lausman v Benton Twp, 169 Mich App 625, 630; 426 NW2d 729 (1988), this Court, addressing MCL 600.5856 and citing Buscaino, stated that “the provision deals only with prior lawsuits which have not adjudicated the merits of the action and does not come into play unless the present action was not commenced within the limitation period.” We note that where tolling is premised on placement of a complaint with an officer, tolling could end before a dismissal without prejudice because the tolling period is limited to ninety days in that circumstance. MCL 600.5856(c). | [
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Fitzgerald, P.J.
In Docket No. 226214, plaintiff Genesco, Inc., appeals as of right the Ingham Circuit Court order granting summary disposition of its com plaint seeking judicial review of defendant Michigan Department of Environmental Quality’s (mdeq) failure to approve its environmental remedial action plan. In Docket No. 227466, defendant Genesco, Inc., appeals by leave granted the Muskegon Circuit Court order granting summary disposition of its counterclaims against the MDEQ seeking declaratory relief under the Natural Resources and Environmental Protection Act (nrepa), MCL 324.101 et seq., and common-law property rights. In each case, the trial court granted summary disposition under MCR 2.116(C)(4) on the ground that subsection 20137(4) of the nrepa, MCL 324.20137(4), deprived the court of jurisdiction to review preenforcement “response activity selected or approved” by the MDEQ. We consolidated the appeals. We affirm.
FACTS
Since 1944, Genesco has operated a leather tannery in the city of Whitehall that is located along the shores of White Lake in an area known as “Tannery Bay.” Other entities operated a tannery at the same site since 1865. These other entities discharged untreated tannery water into White Lake, but Genesco began a staged lagoon treatment operation and, in 1974, connected to the Muskegon wastewater treatment system. It is undisputed that the bottom of White Lake adjacent to Genesco’s tannery, including its riparian bottomlands, is contaminated with various toxic chemicals as a result of historic tannery operations. The best course of remedial action is disputed, with Genesco favoring containment through a restrictive covenant barring the disturbance of its riparian bottomlands and the mdeq and the city of Whitehall (the city) insisting that active remediation in the form of dredging occur.
On June 1, 1999, Genesco filed a “Declaration of Restrictive Covenants” with the Muskegon County Register of Deeds. Making the restrictive covenant its centerpiece, Genesco filed a proposed remedial action plan with the mdeq on June 25, 1999, pursuant to MCL 324.20114. On July 2, 1999, the city filed an action in the Muskegon Circuit Court, seeking a judicial determination about the applicability of part 201, MCL 324.20101 et seq., of the nrepa and part 17, MCL 324.1701 et seq., of the nrepa to these facts. The city also alleged public nuisance per se attributable to the violation of certain city ordinances and public nuisance in fact.
Genesco, in turn, filed a three-count counterclaim under part 17 against the city and a new party, the mdeq. Genesco alleged that if Genesco is liable for remediation of the sediments, then the city is liable for contribution, and that removal of sediments will violate part 17 because extensive studies performed on the sediments reveal that dredging the bay will destroy the White Lake ecosystem. Genesco also sought declaratory relief against the city and the MDEQ under the nrepa and property law.
Additionally, Genesco filed a separate suit against the MDEQ in the Ingham Circuit Court. In each case, the trial court granted summary disposition under MCR 2.116(C)(4), finding that the court lacked subject-matter jurisdiction under MCL 324.20137(4).
i
At issue is whether a circuit court has subject-matter jurisdiction to conduct preenforcement review of a “response activity selected or approved” by the MDEQ within the ambit of part 201, MCL 324.20101 et seq. Genesco argues that the dredging of White Lake “will pollute, impair, or destroy the environment” in violation of part 17, MCL 324.1701 et seq. Thus, Genesco argues that part 17 prevails over part 201’s preenforcement bar to judicial review.
Both part 17 and part 201 were previously separate acts that were recodified by 1994 PA 451 into parts of the nrepa. Both have a common goal of protecting the environment. However, the approach of part 17 is to preserve the environment through the obtaining of declaratory and injunctive relief in court, while part 201 encourages the prompt cleanup of hazardous substances through administrative or private action and assignment of financial liability. Cipri v Bellingham Frozen Foods, Inc, 235 Mich App 1, 4-7; 596 NW2d 620 (1999).
The approaches these two parts of the nrepa take to accomplish their goals through judicial action are very different. Part 17 permits any person to seek declaratory and injunctive relief, MCL 324.1701(1), on “a prima facie showing that the conduct of the defendant has polluted, impaired, or destroyed or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources . . . MCL 324.1703(1); City of Jackson v Thompson-McCully Co, LLC, 239 Mich App 482, 487; 608 NW2d 531 (2000). It provides a direct method for enforcing environmental regulations and challenging an administrative agency’s decision without exhausting administrative remedies. Addison Twp v Gout, 171 Mich App 122, 127; 429 NW2d 612 (1988), rev’d on other grounds (On Rehearing), 435 Mich 809; 460 NW2d 215 (1990). It is expressly supplementary to other administrative and regulatory procedures provided by law. MCL 324.1706. In granting relief, if there is a standard for pollution or for an antipollution device or procedure, fixed by rule or otherwise, by the state or an instrumentality, agency, or political subdivision of the state, then the court may determine the validity, applicability, and reasonableness of the standard. MCL 324.1701(2). If the court finds the standard to be deficient, then the court may direct the adoption of a standard approved and specified by the court. Id.
Part 201 was modeled after the federal Comprehensive Environmental Response, Compensation, and Liability Act (cercla), 42 USC 9601 et seq. Flanders Industries, Inc v Michigan, 203 Mich App 15, 21; 512 NW2d 328 (1993). Both the federal and state statutes provide for identification of contaminated sites and for prompt remediation. Port Huron v Amoco Oil Co, Inc, 229 Mich App 616, 622; 583 NW2d 215 (1998). Both part 201 and the cercla create a private cause of action to establish liability for costs of investigation and remediation of contaminated sites. Pitsch v ESE Michigan, Inc, 233 Mich App 578, 589; 593 NW2d 565 (1999). Both statutes generally defer to administrative agencies to determine the appropriate response to contaminated sites and limit preenforcement judicial review. MCL 324.20137(4); 42 USC 9613(h). Indeed, part 201 provides that a state court does not have jurisdiction to review challenges to a “response activity selected or approved by the department under this part” except in certain enumerated situations, none of which is applicable here. MCL 324.20137(4).
In Flanders, supra at 19, an industrial company sought declaratory relief under the Michigan Environmental Response Act (mera) after being identified as a “potentially responsible party” liable for costs to clean up paint sludge discharged to the bottom of Lake Michigan in Green Bay. The trial court had dismissed the complaint under MCR 2.116(C)(4) for lack of subject-matter jurisdiction. This Court first affirmed the trial court’s analysis that an actual controversy did not exist because a declaratory judgment was not necessary to guide the plaintiff’s actions to preserve its legal rights. Flanders, supra at 20. This Court also reviewed federal cases that held that the intent of Congress in barring preenforcement judicial review under the cercla was to encourage cleanup of contaminated sites without being delayed by litigation. Id. at 21-22. This Court concluded that the mera (now part 201) should be likewise interpreted, opining, id. at 22-23:
We endorse the various federal courts’ analyses of the timing provisions of the CERCLA and apply their analytic approaches in construing the mera. The mera, a remedial statute, must be interpreted to minimize delay in removing environmental contamination. If the DNR [Department of Natural Resources] decides to institute a cost recovery action against plaintiff pursuant to MCL 299.616(1)(b); MSA 13.32(16)(1)(b), plaintiff will have ample opportunity to present the defenses outlined in its complaint. Before the commencement of such an action, a circuit court lacks jurisdiction to hear and decide the matter. Summary disposition under MCR 2.116(C)(4) (lack of subject matter jurisdiction), was proper.
Plaintiff did not need the circuit court’s direction to “guide [its] future conduct in order to preserve [its] legal rights.” Fieger [v Comm’r of Ins, 174 Mich App 467, 470; 437 MW2d 271 1988]. Plaintiff obviously did not and does not want to pay for the remediation of the contaminated site; however, at this stage, it does not require court intercession to preserve its rights. Its “right” to avoid liability for the clean-up costs can be determined just as effectively after the dnr has instituted a cost recovery action as before. Our conclusion, on review de novo, on this record is the same as the trial court’s—no actual controversy yet existed at the time of the suit.
This Court went on in Flanders, supra at 24, to hold that the part of the plaintiffs complaint that also requested declaratory relief under the Michigan Environmental Protection Act (mepa) (now part 17) was properly dismissed under MCR 2.116(C)(8) because the plaintiff had not pleaded that the defendant was about to impair or destroy a natural resource. Thus, the question whether Genesco’s counterclaim under part 17 against the mdeq, which does allege likely destruction and impairment of the aquatic environment, squarely raises the question whether such a claim may pierce the preenforcement bar of subsection 20137(4) of part 201.
The plain language of parts 17 and 201, and the differing approaches to judicial review and participation, seemingly conflict. Statutory construction is thus necessary to resolve the inteiplay between part 17 and part 201. Parts 17 and 201 must be read in pari materia because they both have the same general purpose of protecting the environment. State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998). Parts 17 and 201 must also be read as supplementing each other, as the Legislature has expressly declared in MCL 324.1706 and MCL 324.20102(d), and must be read in the context of the entire statute so as to produce an harmonious whole. Macomb Co Prosecutor v Murphy, 464 Mich 149, 159-160; 627 NW2d 247 (2001). Seeming inconsistencies should be reconciled if possible. Gross v General Motors Corp, 448 Mich 147, 164; 528 NW2d 707 (1995).
The above principles of statutory construction dictate that claims under part 17 may not be brought where the underlying controversy is over a “response activity” as defined in part 201. Otherwise, the MDEQ’s efforts to clean up toxic sites might often be delayed by preenforcement litigation and the intent of the Legislature expressed in subsection 20137(4), as well as subsection 20137(5), would be frustrated. This conclusion is further buttressed by the rule of statutory construction that provides that where two statutes or provisions conflict, and one is specific to the subject matter while the other is only generally applicable, the specific statute prevails. Gebhardt v O’Rourke, 444 Mich 535, 542-543; 510 NW2d 900 (1994).
Moreover, a review of federal authority is instructive in light of the similar purposes of the nrepa and the cercla. Flanders, supra at 21. Federal courts have rejected environmental protection claims for want of subject-matter jurisdiction under 42 USC 9613(h) where toxic cleanup remedial action is involved. Clinton Co Comm’rs v United States Environmental Protection Agency, 116 F3d 1018 (CA 3, 1997) (citizens could not litigate whether the Environmental Protection Agency’s incineration cleanup remedy for former chemical manufacturing site violated federal environmental laws); Oil, Chemical & Atomic Workers Int’l Union v Pena, 62 F Supp 2d 1 (D DC, 1999) (citizens could not litigate whether the Environmental Protection Agency’s cleanup plan to recycle contaminated metal, as an integral part of removal action under the cercla, required an environmental impact statement under the federal National Environmental Policy Act, 42 USC 4321).
Further, this interpretation does not abrogate part 17 where an mdeq response activity under part 201 is involved. In State Hwy Comm v Vanderkloot, 392 Mich 159, 178-179; 220 NW2d 416 (1974), the Court held that Const 1963, art 4, § 52 creates a mandatory duty on the Legislature to protect Michigan’s natural resources. However, the Legislature need not specifically provide for the protection of natural resources in every legislative act. Vanderkloot, supra at 182. Thus, the Court, id. at 189, found that the legislation under review, the highway condemnation act, MCL 213.361 et seq., did not violate Const 1963, art 4, § 52. Further, the Court found that the Legislature’s main response to Const 1963, art 4, § 52 was adoption of the mepa, which applied to the state, and all political subdivisions or agencies of the state, including the highway commissioner. Vanderkloot, supra at 183-184. Finally, our Supreme Court held that the requirements of Const 1963, art 4, § 52 and of the mepa must be read into the judicial review standard of the commissioner’s administrative action, which was subject to judicial review for fraud or abuse of discretion. Vanderkloot, supra at 170, 190.
The Court’s opinion in Vanderkloot, supra at 189, on the effect of the mepa on judicial review of the administrative determination of the “necessity” for taking property for highway purposes is instructive on the question presented in the present case:
ProceduráUy, then, highway condemnation act necessity hearings under MCLA 213.368 should proceed as they have in the past. The legislative intent that EPA [Environmental Protection Act, 1970 PA 127, MCL 691.1201 et seq.} not supplant the highway condemnation act judicial review section is made explicit in § 6 of epa:
“This act shall be supplementary to existing administrative and regulatory procedures provided by law.” MCLA 691.1206; MSA 14.528(206). [Emphasis in the original.]
Thus, the Court in Vanderkloot, supra at 190, concluded: “We further hold that the substantive environmental duties placed on the Commission by epa are relevant to MCLA 213.368; MSA 8.261(8) judicial review in that failure by the Commission to reasonably comply with those duties may be the basis for a finding of fraud or abuse of discretion.”
As applied, part 17 supplements, but does not supplant, the denial of subject-matter jurisdiction found in MCL 324.20137(4). The mdeq must comply with part 17, but judicial review is delayed until after response activity is completed. Judicial review under MCL 324.20137(5) to determine if the mdeq’s “decision was arbitrary and capricious or otherwise not in accordance with law” would then include the standards of MCL 324.1703(1) “that there is no feasible and prudent alternative to defendant’s conduct and that his or her conduct is consistent with the promotion of the public health, safety, and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment, or destruction.” Accordingly, we conclude that the trial courts properly dismissed Genesco’s mepa claim for lack of subject-matter jurisdiction pursuant to MCL 324.20137(4).
n
Genesco’s argument that deferring judicial review until after the mdeq completes response activity denies it due process is without merit. While Genesco holds riparian rights to the bottomlands of White Lake contiguous with its “upland” property, Thies v Howland, 424 Mich 282; 380 NW2d 463 (1985), it has no property right in the animals inhabiting the lake bottom or the fishery in White Lake, which are the property of the state. MCL 324.40105. Here Genesco does not claim that its riparian rights will be taken without due process, Dohany v Birmingham, 301 Mich 30, 41; 2 NW2d 907 (1942), only that removing sediments would “destroy the existing benthic and aquatic environment,” property that Genesco does not own.
Moreover, the process due under the state and federal constitutions is flexible and satisfied as long as fundamental fairness is observed. Dobrzenski v Dobrzenski, 208 Mich App 514, 515; 528 NW2d 827 (1995). Fundamental fairness is determined by “consideration of the private interest at stake, the risk of an erroneous deprivation of such interest through the procedures used, the probable value of additional or substitute procedures, and the state or government interest, including the function involved and the fiscal or administrative burdens imposed by substitute procedures.” Id. Here, the private property interest at stake is small (the right to keep contaminated sediment at the bottom of White Lake), the risk of erroneous deprivation is correspondingly small, substitute administrative procedures are available for Genesco to provide input to the MDEQ before approval of a remedial action plan as well as judicial review after response activity (albeit deferential and generally limited to the administrative record), and the interest of the government in promptly implementing a remedy for contaminated sites (the health, safety, and welfare of the public) is enormous. The flexible approach to affording due process is not offended on these facts. Detroit Bd of Ed v Parks, 98 Mich App 22, 41-42; 296 NW2d 815 (1980), aff’d in part 417 Mich 268; 335 NW2d 641 (1983).
m
In Docket No. 226214, Genesco contends that the mdeq’s failure to respond to Genesco’s remedial action plan as either an approval or a denial is subject to judicial review by the circuit court. We disagree.
In the present case, the mdeq responded to Genesco’s submission of a remedial action plan with a letter indicating that it neither approved nor denied Genesco’s remedial action plan because it lacked “the information necessary or required for deq to make its decision.” The mdeq instead made comments designed to facilitate the development of a remedial action plan by Genesco that would be acceptable to the mdeq. The lack of provision for active remediation was a prime concern of the mdeq. The mdeq also noted that it would develop a “work plan to perform response activities on the sediments.” The MDEQ further requested that Genesco submit a “work plan to perform the necessary response activities to support interim source control activities” and “to address remedial investigation activities necessary to more fully define soil, groundwater, sediment, and overland flow conditions.”
The mdeq’s response to Genesco’s remedial action plan, outlining the need for active remediation and requesting “work plans” and “remedial investigation,” falls within the definitions of “response activity” as provided in part 201. MCL 324.20101. The MDEQ determined it did not have required information necessary to make a decision on Genesco’s remedial action plan and outlined steps Genesco should take under part 201. Therefore, the pre-enforcement bar to judicial review deprived the circuit courts of jurisdiction. MCL 324.20137(4); Flanders, supra at 20-23.
Affirmed.
1994 PA 451, effective March 30, 1995, codified the Michigan Environmental Protection Act, as Part 17 of the nrepa, MCL 324.1701-324.1706. Cipri v Bellingham Frozen Foods, Inc, 235 Mich App 1, 4, n 2; 596 NW2d 620 (1999). Part 31 of the nrepa is titled “Water Resources Protection” (wrp), MCL 324.3101-324.3133. Part 201 of the nrepa is titled “Environmental Remediation,” MCL 324.20101-324.20302, and formerly was the Michigan Environmental Response Act. Cipri, supra.
These chemicals include arsenic, chromium, and mercury. | [
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Kavanagh, J.
The issue in this case is whether plaintiff-employee’s allegation that he was discharged as a result of an absence from work because of a work-related injury constitutes a cause of action as a public policy exception to the employment-at-will doctrine.
We hold that plaintiff has not pleaded a public policy exception to the employment-at-will doc-, trine and we reverse the judgment of the Court of Appeals, Clifford v Cactus Drilling Corp, 109 Mich App 776; 312 NW2d 380 (1981), and reinstate the trial court’s order of summary judgment in favor of defendant. Accordingly, it is unnecessary to address the question whether this action is barred by the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131).
The facts of this case are adequately stated in the dissenting opinion of Judge R. B. Burns in the Court of Appeals:
"Plaintiff alleged that defendant fired him for missing work. Plaintiff further alleged that defendant had no right to so fire him since his absence from work was due to a disability arising from a work-related injury for which he had received workers’ compensation benefits.
"The record reveals that plaintiff was injured on the job on December 20, 1977. He received workers’ compensation benefits for a period of five weeks. He returned to work, but a recurrence of the pain caused by the injury forced him to call in sick on February 14, 1978. He was fired the next day. Plaintiff commenced suit, and defendant moved for summary judgment on the ground that plaintiff had failed to state a claim upon which relief could be granted. The motion was granted by the trial court.”
The employment-at-will doctrine was recently restated by this Court in Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 694-695; 316 NW2d 710 (1982): "In general, in the absence of a contractual basis for holding otherwise, either party to an employment contract for an indefinite term may terminate it at any time for any, or no, reason”. The Court went on to explain that exceptions have been engrafted onto the rule on the basis of "the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable”. One such exception was established by the Court of Appeals in Sventko v Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976). In Sventko, the plaintiff alleged that she was discharged solely in retaliation for her filing of a workers’ compensation claim. The Court held that a retaliatory discharge for the filing of a workers’ compensation claim is in contravention of public policy and as such constitutes an exception to the employment-at-will doctrine.
We cannot agree, however, that an employee’s protection from discharge in retaliation for filing a workers’ compensation claim necessarily includes protection from discharge because of an absence from work because of a work-related injury.
Certainly an employer’s power to discharge an employee at will should not prevail when that power is exercised to prevent an employee from asserting his statutory rights under the Worker’s Disability Compensation Act. The case before us presented no evidence or reason to infer that plaintiff’s statutorily conferred right to. claim workers’ disability compensation benefits was chilled in any way. Plaintiff made no claim that he was deprived of his legal rights under the Worker’s Disability Compensation Act. Plaintiff did not allege that he was discharged in retaliation for filing a claim for compensation. Plaintiff alleged that he was fired because he missed work because of a work-related injury for which he had already received workers’ disability compensation benefits. Plaintiff has stated that he has no further claim.
Reversed.
Levin, Ryan, Brickley, Cavanagh, and Boyle, JJ., concurred with Kavanagh, J. | [
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Neff, P.J.
We granted plaintiff Tammy Roberts’ delayed application for leave to appeal the trial court’s denial of her motion for relief from a consent judgment entered in 1989 following her paternity action against defendant. We reverse and remand for further proceedings.
i
Following the birth of her son out of wedlock in April 1986, plaintiff filed a paternity action against defendant, alleging that he was the child’s father. According to defendant, the case was “litigated extensively,” and “blood and tissue typing tests were performed.” In 1989, the parties agreed to a settlement, in which defendant acknowledged paternity. The trial court entered a consent judgment based on the parties’ settlement.
A
The essentials of the parties’ settlement agreement were that defendant acknowledged paternity and agreed to pay past child support, consent to an anticipated stepparent adoption, provide an annuity to benefit the child, and be relieved of any future support obligations. Accordingly, the consent judgment ordered that defendant “shall acknowledge paternity of the minor child,” and “is determined by this Court to be the father of the minor child.” The judgment required that defendant purchase an annuity policy guaranteeing payouts to the child beginning either at age eighteen or age twenty-one. The judgment ordered that defendant reimburse the Macomb County Department of Social Services (mcdss) $6,500 for costs of confinement and past support. It further provided that defendant “shall not be liable for future support or maintenance regarding the minor child, and that the defendant shall have no further obligations, financial, support, medical expenses, maintenance or otherwise, to the minor child or any of the parties hereto, except as provided for in this Judgment.”
It is undisputed that defendant purchased an annuity policy and made payment to the mcdss as required under the consent judgment. However, the anticipated stepparent adoption did not occur, and plaintiff subsequently divorced. In March 1991, plaintiff again began receiving public assistance for the minor child.
B
The mcdss brought the present action for support and restitution on behalf of plaintiff in September 1992, pursuant to MCL 722.3 and MCL 552.454, after the child began receiving public assistance. The mcdss sought child support of $163 a month and reimbursement of over $3,000 for past public assistance. The trial court granted summary disposition for defendant, on the ground that the consent judgment was a nonmodifiable settlement agreement in a paternity action pursuant to MCL 722.713(b), which barred the mcdss from seeking additional support from defendant absent rescission or modification of the original agreement and judgment.
In 1999, plaintiff filed a motion in the circuit court to rescind the consent judgment under MCR 2.612(C)(1)(f). The circuit court denied plaintiffs motion, finding that defendant had completely performed his obligations under the consent judgment, and thus, the court was unable to modify it because, under the terms of the judgment, the court had retained jurisdiction only until the parties had performed their obligations. This Court granted plaintiffs delayed application for leave to appeal the order denying her motion to rescind the consent judgment.
n
Plaintiff argues that although the parties entered into the consent judgment pursuant to MCL 722.713, which allows for the parties to a paternity action to enter into a nonmodifiable support agreement, MCL 722.713 was thereafter declared unconstitutional by the Court of Appeals, Dones v Thomas, 210 Mich App 674; 534 NW2d 221 (1995), and repealed, 1996 PA 308. Thus, plaintiff alleges the parties’ agreement is modifiable, and the circuit court has continuing jurisdiction over the issue of child support. We agree, although under different reasoning, that the parties’ child support agreement is modifiable and that the circuit court has jurisdiction over the issue of child support.
Since the circuit court’s opinion in this matter, and after the submission of plaintiff’s brief on appeal, the Supreme Court issued a decision clarifying the circumstances under which a settlement agreement under MCL 722.713 is nonmodifiable, Crego v Coleman, 463 Mich 248, 252, n 1; 615 NW2d 218 (2000). Under the analysis in Crego, id. at 256-257, 276-277, we conclude that the parties’ agreement is not a nonmodifiable settlement agreement under MCL 722.713 because defendant acknowledged paternity, and thus his child is entitled to modifiable support, just as any other child whose paternity has been ascertained.
m
Biological parents have an inherent obligation to support their children. Evink v Evink, 214 Mich App 172, 175-176; 542 NW2d 328 (1995). A biological parent must support a minor child unless a court of competent jurisdiction modifies or terminates the obligation or the child is emancipated. MCL 722.3. The purpose of child support is to provide for the needs of a child. Evink, supra at 176. The parents of a child are not permitted to bargain away a child’s right to receive adequate support. Id. This Court has stated that it has “a dim view of agreements purporting to sign away the rights of a child, particularly when the result of such an agreement may be that the child becomes a public charge . . . .” Van Loar v Rozema, 94 Mich App 619, 624; 288 NW2d 667 (1980).
MCL 722.713 allowed for nonmodifiable child support in the settlement of a paternity action:
(a) An agreement or compromise made by the mother or child or by some authorized person on their behalf with the father concerning the support and education of the child shall be binding upon the mother and the child only when the court having jurisdiction to compel support and education of the child shall have determined that adequate provision is reasonably secured by payment or otherwise and has approved the agreement or compromise.
(b) The performance of the agreement or compromise, when so approved, shall bar other remedies of the mother or child for the support and education of the child.
However, in 1996 PA 308, the statutory provision was repealed after this Court, in Dones, supra, found that it was an unconstitutional denial of equal protection. Sturak v Ozomaro, 238 Mich App 549, 556; 606 NW2d 411 (1999). Nonetheless, our Supreme Court in Crego, supra at 281, has since declared that the statute does not violate constitutional guarantees of equal protection and that child support agreements pursuant to MCL 722.713 may be valid and nonmodifiable under the following conditions:
(1) a paternity action was filed; (2) the child’s mother and putative father voluntarily entered into an agreement regarding child support, in lieu of a judicial determination of paternity; (3) the circuit court made a determination that the agreement secured “adequate provision” for the child’s needs; and (4) the agreement failed to include language pre serving the right to modify support levels at a later time. [Crego, supra at 255.]
Only where paternity is uncertain and the parties have entered into an agreement regarding child support, in lieu of a judicial determination of paternity, is nonmodifiable child support allowed under MCL 722.713. Crego, supra at 255, 276.
In this case, defendant acknowledged paternity, and the court determined that he was the father of the minor child. “[0]nce a putative father has acknowledged paternity, his child is entitled to fully modifiable support, just as any other child whose paternity has been ascertained.” Id. at 276; see also id. at 256-257.
If a defendant in a paternity action “acknowledges paternity either orally to the court or by filing with the court a written acknowledgment of paternity,” the court shall enter an order of filiation declaring paternity and providing for the support of the child. MCL 722.717(l)(b). The court has continuing jurisdiction over proceedings brought pursuant to the Paternity Act to increase or decrease the amount of support fixed by an order of filiation. MCL 722.720.
According to the consent judgment, defendant acknowledged paternity before the circuit court at the time of the parties’ settlement agreement. However, we are unable to determine from the record in this particular action whether the court entered an order of filiation. We therefore remand for further proceedings.
On remand, the court shall determine whether entry of a filiation order is necessary, and, if so, shall enter the proper order. Child support in this case is modifiable
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
The present action and the 1989 paternity action were brought by the Macomb County Department of Social Services on behalf of Tammy Jo Roberts. For the sake of clarity, we will refer to Tammy Jo Roberts as the “plaintiff,” unless otherwise indicated.
The Legislature, in 1996 PA 308, has since repealed this statutory provision, effective June 1, 1997. Crego v Coleman, 463 Mich 248, 252, n 1; 615 NW2d 218 (2000).
The decision in Crego addressed the constitutionality of the statute with regard to the tíme frame in which the settlement agreement in Crego occurred and did not decide whether the statute, had it not been repealed, would remain constitutional in today’s technological context. Crego, supra at 277, n 16.
We recognize that various statutes governing the acknowledgement of paternity have been amended since defendant acknowledged paternity in this case. Further, Michigan has enacted the Acknowledgment of Parent age Act, MCL 722.1001 et seq., which may govern aspects of this case. E.g., MCL 722.1012. Because the limited record in this action does not include the original documents and record concerning defendant’s acknowledgement, any issues concerning the appropriate proceedings are best resolved by the circuit court, under the guidance of Crego, supra, and the relevant statutes. | [
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Ostrander, J.
(after stating the facts). The first question presented is whether or not an appeal lies from the order of the circuit court. This question is answered when it is determined whether the demurrer is general or special. Previous to September 8, 1883, appeals from orders overruling demurrers were not permitted. Bennett v. Nichols, 12 Mich. 22; Kirchner v. Wood, 48 Mich. 199. The amendment of 1883 (1 Comp. Laws, § 549) gives the right to appeal from an order overruling a general demurrer. Chancery Rule 9 requires that the causes of demurrer be, in all cases, plainly specified. The rule does not enlarge the statute, nor in any manner change the classification of demurrers as general and special. Daschke v. Schellenberg, 124 Mich. 16. The demurrer in the instant case is a special demurrer. I refer for authority to elementary treatises and to definitions found in them. Story on Equity Pleadings, § 527, having first divided demurrers into two classes of general and ¡special, says:
“Secondly. We come, in the next place, to objections fo the frame and form of the bill, which may be taken by demurrer. These are: (1) Defects of form; (2) multifariousness; and (3) want of proper parties, or misjoinder •of parties. * * *
“§ 530. (2) In the next place, as to multifariousness. '* * * The only way of reconciling the authorities upon the subject is by adverting to the fact that, although the books speak generally of demurrers for multifariousness, yet, in truth, such demurrers may be divided into two kinds: (l) Frequently the objection raised to a bill, though termed multifarious, is, in fact, properly speaking, a misjoinder of causes of suit; that is to say, the cases or claims, asserted in the bill, are of so different a character that the court will not permit them to be litigated in one record. It may be that the plaintiffs and the defendants are parties to the whole transactions, which form the subject of the suit; but, nevertheless, those transactions may be so dissimilar that the court will not allow them to be joined together, but will require distinct records. (2) But what is more familiarly understood by multifariousness, as applied to a bill, is where a party is brought as a defendant upon a record, with a large portion of which, and of the case made by which, he has no connection whatsoever. In such a case,.he has a right to demur and to state the evil of thus uniting distinct matters in one record to be (and so the old form of demurrer was), that it put the parties to great and useless expense. Such an objection could have no application to the case of a mere misjoinder of different causes of action between the same parties, plaintiffs and defendants, and none others.”
Clearly, under the classification made by Judge Story, a demurrer for multifariousness was required to set out the special ground of demurrer. Since the adoption of Chancery Rule 9, the character of the demurrer is determined by the special reasons therein assigned and this demurrer cannot be considered as- both a general and a special demurrer. See Ideal Clothing Co. v. Hazle, 126 Mich. 262. That it concludes with the form used for a general demurrer does not aid it. It is said, by counsel for appellants, that it has been the practice of this court to review by appeal cases in which demurrers assigning multifariousness have been overruled by the lower court, beginning with Hunton v. Platt, 11 Mich. 264, and continuing to Douglass v. Boardman, 113 Mich. 618. This statement is, to some extent, supported by the facts. In Douglass v. Boardman the appeal was from an order overruling a demurrer, and this court determined the demurrer well grounded, reversed the order, and dismissed the bill. An examination of the briefs in that case shows that counsel for complainants were contending that a general demurrer to the bill was bad for various reasons stated, and the following, constituting all that is said upon either side upon the subject:
“But defendants may urge that their demurrers are not general. In that case we answer that this appeal should be forthwith dismissed, as under the statute * * * and under the decisions of this court, no appeal can be taken from an order overruling a special demurrer.”
In each of the cases cited in the opinion in that case the appeal was from a final decree. Again, in Stone v. Rail road Co., 139 Mich. 265, the appeal was from an order overruling demurrers, and one ground of demurrer was that the bill was multifarious. The opinion, to some extent, discusses the objection that the bill was multifarious, concluding by affirming the order appealed from. The briefs do not raise the question here presented. In no other cases which have come to our attention has this court assumed to review the determination of the court below in overruling special demurrers, and in Douglass v. Boardman, only,.has it sustained a special demurrer on such an appeal.
The opinion in Schaub v. Welded Barrel Co., 130 Mich. 606, is clearly not a precedent for reviewing an order overruling a special demurrer. But, whether or not there are other cáses, we are all agreed upon the propositions (1) that the demurrer of the defendants is special, and not general; (2) that no appeal lies or will be entertained from an order overruling such a demurrer. There is no occasion to adopt, for the purpose of permitting appeals, a new classification of demurrers. The power to dismiss bills for multifariousness has always been sparingly exercised. It is proper practice to raise the objection, in the court of original jurisdiction, by demurrer.' The matter of proper relief is so completely within the control of the court on final hearing that no hardship is likely to arise from answering over and proceeding to the merits of the controversy, or in standing upon the demurrer and appealing from the final decree.
The appeal is dismissed. Costs are awarded to appellees for the expenses of printing, with a solicitor’s fee of $10. Defendants will be allowed 20 days in which to answer the bill of complaint.
Carpenter, C. J., and McAlvay, Hooker, and Moore, JJ., concurred. | [
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Blair, J.
(after stating the facts). We agree with the circuit judge that only such objections as were presented to the clerk could be considered on the application for retaxation. This leaves for our consideration the objections to the item of $73.10 for certified copies, etc.,, and the September term fee of $5. Relators contend that, since'section 4346, 2 Comp. Laws, provides that the same practice shall be followed in reviewing drain proceedings on certiorari as is required for reviewing judgments of justices of the peace on certiorari, as near as may be, and since section 942, 1 Comp. Laws, provides that “ the sum of two dollars shall be paid to the justice of the peace for his fees for making a return to the certiorari,” it follows that the $2 fee which was paid to the probate judge was in full of all services performed by him in making his return to the writ. The certified copies and exemplifications were made and returned under the following order for a further return, viz.:
“ It satisfactorily appearing to the court from the record and files of said cause that the respondent, William A. Lane, judge of probate of Calhoun county, has not certified the writ of certiorari and the copy of affidavit therefor, heretofore served upon him, and that he had not certified transcripts of all the papers, orders or proceedings had before him and of record in the probate office of Calhoun county mentioned in said affidavit for said writ, and that in some matters he has returned the original papers and files of the said probate court instead of copies therefrom, on motion of John C. Patterson, attorney for said relators in said cause, it is ordered that the said respondent, William A. Lane, judge of probate of Calhoun county, be and is hereby permitted to withdraw from the files and records of this court all the papers, orders and proceedings which have been heretofore filed in the said probate court and returned by him to this court.
“ It is further ordered that the said respondent, William A. Lane, be and he is hereby required to certify and return the writ of certiorari and the copy of affidavit therefor heretofore served upon him, together with a correct transcript of all the petitions, orders, citations, motions, affidavits, rulings, exceptions, testimony, venire, awards, papers and proceedings, and filed, made or recorded in said probate court and mentioned in said affidavit for writ of certiorari and the'practice of this court, on or before the first day of next term of this court.”
Respondent contends that the allowance of the item of $73.10 was justified and required by section 4392, 2 Comp. Laws, and section 11297, 3 Comp. Laws. That portion of section 4346 necessary to be considered is, as amended by Act No. 272, Pub. Acts 1899, as follows: .
“ Provided, That the proceedings in establishing' any drain shall be subject to review on certiorari as herein provided. Notice of such certiorari shall be served upon the county drain commissioner within ten days after the copy of the final order of determination of such commissioner in establishing any drain has been filed with the county clerk as provided in section one of chapter four, in the same manner as notice is required to be given of certiorari for reviewing judgments rendered by justices of the peace and the writ shall be issued and served and bond given and approved and the subject-matter brought to issue in the same time and manner as near as may be as in such cases provided, except * * *. If the proceedings be sustained, the party bringing the certiorari ■shall be liable for the costs thereof and if they be not sustained, the parties making application for the drain shall be liable for thé costs.”
Sections4392 and 11297 are as follows:
“(4392) Juries and special commissioners shall receive the same compensation as the county drain commissioners, and newspaper publishers shall receive legal rates for advertising. The judge of probate shall receive ten cents per folio for making exemplified copies of any proceedings had in the probate court, two dollars for the appointment of special commissioners, including the certified copy of the order of their appointment and three dollars for all services performed in case a jury is had. For all services mentioned in this section, the county drain commissioner shall draw orders on the funds of the several drains for which said services were performed.”
“ (11297) When there shall be charges in á bill of costs for the attendance of any witness or for copies or exemplifications ' of documents or papers, or for any other disbursements, except to officers for services rendered, such charges for witnesses shall not be taxed without an affidavit stating the distance they respectively traveled and the days they actually attended; and such charges for copies shall not be taxed without an affidavit that such copies were actually and necessarily used or necessarily obtained for use; nor shall such disbursements be allowed without an affidavit specifying the items thereof particularly, nor unless they appear to have been necessary and reasonable in amount, when in any case a party is entitled to charge witness fees, and his bill of costs shall contain an item or items for the attendance and travel of the party himself as a witness, such item or items shall be taxed upon affidavit that the party was in attendance upon the court for the time charged for the purpose of being sworn as a witness and not to assist in the management of the cause, and that the travel was for the purpose of giving his evidence.”
Sections 942 and 944, 1 Comp. Laws, are as follows:
“ (942) Such writ of' certiorari shall, within ten days after it shall have been issued, or within such other time as the officer allowing the same shall direct at the time of allowing the certiorari, be served upon the justice by whom the judgment was rendered, together with the bond given, and a copy of the affidavit on which the certiorari was allowed; and the sum of two dollars shall be paid to the justice for his fees for making a return to the certiorari, and no certiorari shall be of any effect until all the preceding requisitions shall have been complied with.”
“ (944) The justice, before the return day of such certiorari, or within ten days after the service of such certiorari, shall make return thereto in writing, and file the same; in which return he shall truly and fully answer to all the facts set forth in the copy of the affidavit on which the certiorari was allowed.”
Section 2551 1 Comp. Laws, provides that judges of probate—
“Shall make no charge to any person for any paper drawn or service performed by them or any person or clerk connected with their office except for copies of records or papers on file and certificates and exemplifications of records or papers in his office, which shall be furnished for ten cents per folio and twenty-five cents for certifying, sealing and attesting the same.”
We are of the opinion that section 4392 does not apply to copies of proceedings in the probate court required by law to be set forth in the return to the writ of certiorari by the judge of probate himself, but that it was intended to apply to copies furnished prior to the issuance of the writ, as under sections 4314, 4325, 4327, and 4328, for which services the section requires that the commissioner “ shall draw orders on the funds of the several drains for which said services were performed.” It was the duty of the judge of probate to, return a transcript of the record without any order to that effect. It was certainly his duty to do so after the order of the court to that effect.
“ The return should consist of a full and complete transcript of the record of the proceedings of which a review is sought, since the trial is had by an inspection of the record as returned, and not on any issue of fact. Although the command of the writ is that the record of the inferior court or tribunal shall be sent up, it is not proper to send up the record itself, but a transcript should be returned; unless there is an unmistakable command made, to suit the exigencies of the particular case, that the record itself shall be sent up and not a transcript, in which ■case the writ must be obeyed literally.” 4 Enc. Pl. & Prac. p. 217.
2 Stevens’ Mich. Practice, § 534, p. 508. We think it was the intention of the legislature, in adopting the practice provided for justices"’ courts, to adopt also the provision for fees for making the return, and that the trial judge erred in allowing the item of $73.10.
The record does not contain sufficient allegations or admissions of facts to enable us to determine whether the objection to the September term fee as made before the clerk was valid or not.
The writ will issue, directing the respondent to strike out and disallow the item of $73.10.
Montgomery, Ostrander, Hooker, and Moore, JJ., concurred. | [
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Blair, J.
The respondent -was convicted, December 13, 1904, of forging a deed on January 13, 1903, and was thereupon sentenced, under the indeterminate sentence law of 1903, ‘ ‘ for a period of not less than eight nor more than ten years.” Respondent has removed the record to this court for review upon writ of error, assigning the following errors, viz.:
“ First. That said circuit judge erred in sentencing the said Joseph Fisher under'the provisions of Act No. 136 of the Public Acts of the State of Michigan of the year 1903, for a crime alleged to have been committed on January 13, 1903.
“ Second. The said circuit judge erred in pronouncing any sentence in said cause for the reason that the record fails to show that Joseph Fisher was arraigned and requested to plead to any information filed in said cause, because the record fails to show that Joseph Fisher was present during the trial and at the time the jury rendered the verdict.
‘ ‘ Third. The court erred in pronouncing sentence in said cause, for the reason that on the 6th, 7th, 8th, 9th, 12th, and 13th days of December, 1904, the record fails to show that any person was tried in the circuit court for the county of Calhoun.
“Fourth. The circuit court erred in sentencing John M. Beckman after his plea of nonidentity without issue having been joined by the prosecuting attorney.
“ Fifth. The court erred in sentencing John M. Beck-man for a crime committed by Joseph Fisher.
“Sixth. The court erred in permitting the indorsement of the names of George Brunner, Rose Brunner, and Belle M. Coleman on the information filed in said cause, against the objection and exception of respondent and his attorneys, and permitting them to be sworn.”
First. This assignment is disposed of by our previous decisions. The sentence was valid for the minimum period thereof. In re Lambrecht, 137 Mich. 450; In re Marion, 140 Mich. 219.
Second and Third. The record shows the following entry on November 21, 1904:
“ The People of the State of Michigan
v.
“ Joseph Fisher.
“ Joseph Fisher, the respondent in this cause, having been arraigned at the bar in open court, and the information having been read to him by Craig C. Miller, assistant prosecuting attorney, stood mute, whereupon a plea of not guilty was entered by order of the court.
“Joel C. Hopkins,
“ Circuit Judge.”
Also the following on December 5, 1904:
“ The People of the State of Michigan
v.
“Joseph Fisher.
“Joseph Fisher, the respondent in this cause, being present in court and trial ordered. Thereupon a jury was called and examined in part.
“Joel C. Hopkins,
“Circuit Judge.”
And, upon December 6th, the following:
“ The People of the State of Michigan
v.
“Joseph Fisher.
“ In this cause the jury heretofore called were more fully examined, and as accepted were as follows, to wit: Andrew Harrigan, Nelson Palmiter, Dwight Peters, Ciar ence Castle, John Finley, Charles Bull, John F. Hartung, Wm. E. Ansterburg, William Henson, Frederick May, Will H. Ives, and Warren Archer, who were duly impaneled, tried and sworn, well and truly to try, and true deliverance made between the people of this State ana the prisoner at the bar whom they should have in charge, according to the evidence and the laws of this State, sat together and heard the proofs and allegations of the parties in part.”
The record shows the acceptance, impaneling, and swearing of the jury upon December 6th in the presence of “the prisoner at the bar” and the progress of the trial from day to day thereafter to the 13th of December, but does not affirmatively allege the presence of the respondent. On the 13th of December, the following entry appears:
“The People of the State of Michigan
v.
“Joseph Fisher.
“Joseph Fisher, thé respondent in this cause, having been, by the verdict of the jury, duly convicted of the crime of forgery, as appears by the record thereof, and having been, upon motion of Joseph L. Hooper, prosecuting attorney, brought to the bar for sentence, and having been.there asked if he had anything to say why judgment should not be pronounced against him, and alleging no good reason to the contrary, therefore, be it ordered and adjudged by the court now here that the said Joseph Fisher be and remain confined in the branch State prison, at Marquette, for a period of not less than eight years nor more than ten years from and including this day.
“Joel C. Hopkins,
“ Circuit Judge.”
This record clearly shows the arraignment of the respondent, and that the information was read to him. The recital that he stood mute clearly imports that he was requested to plead and declined to do so, “whereupon a plea of not guilty was entered by the court.” There was no showing of this kind in Grigg v. People, 31 Mich. 471. The record also affirmatively shows the respondent’s presence on the first day, and when the jury was impaneled and sworn, and when the judgment was rendered, and is sufficient to sustain the judgment. Grimm v. People, 14 Mich. 300; People v. Ormsby, 48 Mich. 494.
Fourth. The record does not disclose that any person by the name of John M. Beckman was in any way connected with the proceedings, nor does it show any plea of nonidentity.
Fifth. There is no foundation in the record for this assignment.
Sixth. There is no testimony set forth in the bill of exceptions, and nothing therein or in the record, to show that the witnesses referred to gave any testimony whatever. The bill of exceptions merely shows that their names were indorsed on the information against respondent’s objection, and that:
“Said witnesses, Belle M. Coleman, George and Rosa Brunner, were sworn as witnesses for the people in said cause, and, when sworn, the objection 'above made was renewed.”
We cannot presume that, after the objection, the witnesses testified or that their testimony was material and unfavorable to respondent. In the state of the record, we cannot consider this assignment.
The judgment is affirmed for the minimum term of eight years.
McAlvay, Montgomery, Ostrander, and Hooker, JJ., concurred. | [
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Hooker J.
At.its 1905 session the legislature passed a law making it a penal offense for any person to keep a saloon where spirituous or intoxicating liquors are sold within 100 rods of any public school in Berrien county. See Act No. 663, Local Acts 1905.
The respondent/ a magistrate, was asked to issue a warrant against a person charged with violating that law, but refused to do so, whereupon he was proceeded against by mandamus to compel such action. The. circuit court ordered a peremptory writ to issue, and the cause is now before us on certiorari.
The only question in the case is whether the act is constitutional. It is too late to seriously question the power of the legislature to prohibit the manufacture or sale, in this State, of spirituous or intoxicating liquor. Since 1859 an uninterrupted line of cases have so held. We need not consider the arguments, that this legislation infringes the right of “incorporated villages and cities to maintain saloons,” without the wishes of the inhabitants of the locality being considered, or what the effect will be upon owners of orchards and vineyards. The only questionable point is whether this act, being legislation pertaining to a portion of the State, is private legislation of a' class which infringes constitutional rights of persons residing in Berrien county. In discussing the question of ‘ ‘ unequal or partial legislation,” Mr. Justice Cooley has said:
“ Laws public in their objects may, unless express constitutional provision forbids, be either general or local in their application; they may embrace many subjects or one, and they may extend to all citizens, or be confined to particular classes, as minors or married women, bankers or traders, and the like. The authority that legislates for the State at large must determine whether particular rules shall extend to the whole State and all its citizens, or, on the other hand, to a subdivision of the State or a single class of its citizens only. The circumstances of a particular locality, or the prevailing public sentiment in that section of the State, may require or make acceptable different police regulations from those demanded in another, or call for different taxation, and a different application of the public moneys. The legislature may there* fore prescribe or authorize different laws of police, allow the right of eminent domain to be exercised in different cases and through different agencies, and prescribe peculiar restrictions upon taxation in each distinct municipality, provided the State Constitution does not forbid. These discriminations are made constantly; and the fact that the laws are of local or special operation only is not supposed to render them obnoxious in principle. The legislature may also deem it desirable to prescribe peculiar rules for the several occupations, and to establish distinctions in the rights, obligations, duties, and capacities of citizens. The business of common carriers, for instance, or of bankers, may require special statutory regulations for the general benefit, and it may be matter of public policy to give laborers in one business a specific lien for their wages, when it would be impracticable or impolitic to do the same for persons engaged in some other employments.. If the laws be otherwise unobjectionable, all that can be required in these cases is, that they be general in their application to the class or locality to which they apply; and they are then public in character, and of their propriety and policy the legislature must judge.”, Cooley on Constitutional Limitations (6th Ed.), p. 479.
This law is general in the sense that the author indicates. It applies to every one who lives or comes within the State. It is not limited to citizens of Berrien county. It is true that it prohibits saloons only in that county, and it may be that there is not the same necessity for that particular prohibition elsewhere. Innumerable instances of such legislation can be found. All of our local option laws involve this principle, and it is a common thing for the legislature to pass special acts, establishing exceptional municipal bodies, such as cities, villages, and school districts. A recent case-sustained such action in relation to a school district in Hillsdale county. See Attorney General, ex rel. Kies, v. Lowrey, 131 Mich. 639, affirmed 199 U. S. 233.
Again, the legislature has passed many laws regulating or restraining the taking of fish in particular lakes or streams. All of these laws apply to all persons, though they apply to limited territory. It is manifest that the necessity for a law may depend upon local conditions, of which the legislature must judge. Among the cases apropos to the subject are Haskel v. City of Burlington, 30 Iowa, 232, and Iowa Railroad Land Co. v. Soper, 39 Iowa, 115.
In Harrison v. Gordy, 57 Ala. 49, it was held that “the legislature may, by a special or local.act, prohibit -the sale of vinous or spirituous liquor, within a town and territory adjacent thereto.”
In Block v. State, 66 Ala. 493, a law prohibiting the ■sale of liquor within a specified distance from two churches (naming them) situated in different counties was held valid.
In State v. Berlin, 21 S. C. 292, a law which permitted the sale of spirituous liquors in cities and villages, and prohibited it elsewhere in the State, was attacked, both .as violating the State Constitution and the Fourteenth Amendment. The court held it valid, saying:
“The practical question, therefore, presented in this case, is whether the legislature can, in the exercise of the police power, prescribe different regulations for the sale of -spirituous liquors in different localities within its borders. It is quite clear that regulations which might prove very effective in one locality, might be found very inefficient in another, and it would seem, therefore, that to render the exercise of this admitted power most effective the regulations should be adapted to the wants and conditions •of the different localities to which they are to be applied.”
Again, in Georgia (Howell v. State, 71 Ga. 224) a law was sustained forbidding such a sale within two miles of two specified academies, in a particular county. Both of these cases refer with approval to the language of Mr. Justice Cooley above quoted. See, also, Marmet v. State, 45 Ohio St. 63; State v. Baltimore County Com'rs, 29 Md. 516; and Unity v. Burrage, 103 U. S. 455.
The claim that such statutes do not violate the Fourteenth Amendment is equally well supported. Thus in Missouri v. Lewis, 101 U. S. 31, the court said:
“We might go still further and say, with undoubted truth, that there is nothing in the Constitution to prevent .any State from adopting any system of laws or adjudicature it sees fit for all or any part of its territory. If the State of New York, for example, should see fit to adopt the civil law and its method of procedure for New York •City, and the surrounding counties, and the common law and its methods of procedure for the rest of the State, there is nothing in the Constitution of the United States to prevent its doing so. This would not, of itself, within the meaning of the Fourteenth Amendment, be a denial to any person of the equal protection of the laws. If every person residing or being in either portion of the State should be accorded the equal protection of the laws prevailing there, he could not justly complain of a violation of the clause referred to. For, as before said, it has respect to persons and classes of persons. It means that no person or class of persons shall be deniód the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances.
“ The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each State prescribes its own modes of judicial proceeding. If diversities of laws and judicial proceedings may exist in the several States without violating the equality clause in the Fourteenth Amendment, there is no solid reason why there may not be such diversities in different parts of the same State. A uniformity which is not essential as regards different States cannot be essential as regards different parts of a State, provided that in each and all there is no infraction of the constitutional provision. Diversities which are allowable in different States are allowable in different parts of the same State. Where part of a State is thickly settled, and another part has but few inhabitants, it may be desirable to have different systems of judicature for the two portions — trial by jury in one, for example, and not in the other. Large cities may require a multiplication of courts and a peculiar arrangement of jurisdiction. It would be an unfortunate restriction of the powers of the State government if it could not, in its discretion, provide for these various exigencies.
“ If a Mexican State should be acquired by treaty and added to an adjoining State, or part of a State, in the United States, and the two should be erected into a new State, it cannot be doubted that such new State might allow the Mexican laws and judicature to continue unchanged in the one portion, and the common law and its corresponding judicature in the other portion. Such an arrangement would not be prohibited by any fair construction of the Fourteenth Amendment. It would not be based on any respect of persons or classes, but on municipal considerations alone, and a regard to the welfare of all classes within the particular territory or jurisdiction.”
Again, in Unity v. Burrage, 103 U. S. 455, it was said:
“The courts said: ‘Statutes incorporating counties, fixing their boundaries, establishing court-houses, canals, turnpikes, railroads, etc., for public uses, all operate upon local subjects. They are not for that reason special or private acts.’ [West v. Blake, 4 Blackf. (Ind.) 234.] In this country the disposition has been on the whole to enlarge the limits of this class of public acts, and to bring within it all enactments of a general character, or which in any way affect the community at large. Pierce v. Kimball, 9 Me. 54; Inhabitants of New Portland v. Inhabitants of New Vineyard, 16 Me. 69; Inhabitants of Gorham v. Inhabitants of Springfield, 21 Me. 58; Burnham v. Webster, 5 Mass. 266; Com. v. McCurdy, 5 Mass. 324; Com. v. Inhabitants of Springfield, 7 Mass. 9; Bac. Abr. 'Statute,’ F. On these and many other authorities which might be cited, we think that the act by which the issue of the bonds sued on was authorized'is a public act, of which the courts are bound to take judicial notice, and that it need not be specially pleaded.”
In Davis v. State, 68 Ala. 58, it was held that a statute making it unlawful to transport or remove cotton in the seed, in certain counties, after sunset and before sunrise -of the succeeding day, was not in conflict with any provision of the State or Federal Constitution. We need not discuss the Michigan cases of Whitney v. Grand Rapids Township Board, 71 Mich. 234, and Feek v. Bloomingdale Township Board, 82 Mich. 393 (10 L. R. A. 69), further than to say that they are not authority for a contrary doctrine. Many authorities similar to the above are cited in the opinion of the learned circuit judge.
The order is affirmed.
Carpenter, C. J., and McAlvay, Blair, and Moore, JJ.j concurred. | [
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McAlvay, J.
This is the second time this case has been before this court. A reference to Seitz v. Starks, 136 Mich. 90, will disclose the questions passed upon at that time. From a judgment in favor of plaintiffs, defendants have again brought the case here upon writ of error, claiming that the present record differs from the former one in several important particulars, and wff are asked to reverse the judgment of the lower court on account of errors claimed to have been committed as to those matters. The principal dispute in the case is whether these garnishee defendants were in fact indebted to Edgcumbe & Sons, principal defendants. The principal defendants were engaged in the grocery business, and also carried a stock of wall paper. Plaintiffs claim that the garnishee defendants were indebted to the principal defendants at the time suit was commenced for the stock of groceries and fixtures purchased by them from the principal defendants. The defense is that no sale was made to the garnishee defendants, but that the sale was made to another party, the Kidd, Dater & Price Company, from which the garnishee defendants purchased said stock. Plaintiffs insist that this defense is a subterfuge and a pretense, made for the purpose of defeating the garnishee proceedings. This, is obviously an issue of fact for the jury.
We will consider the matters which are claimed by defendants to be errors not arising in the former case, in the order presented:
1. That the court erred in admitting testimony relative to the sale, inventory, and delivery of the stock of wall paper to one Rice. The sale of the wall paper was not connected with the sale of the groceries and fixtures. These defendants are not shown to have had any knowledge of that sale. It occurred evidently after this suit was commenced, as the garnishment is mentioned by Rice in his testimony. Defendants insist that it is immaterial. It is claimed as admissible because referred to by Edgcumbe, defendants’ witness, upon direct examination. He was cross-examined at length upon the matter, as was' also his son, who was one of the firm, who had not referred to the transaction upon direct examination, and the witness Rice was produced by plaintiffs for the purpose of discrediting the Edgcumbes. The testimony of Rice tended to prove that this sale was made in the manner he described for the purpose of avoiding garnishment and in fraud of creditors. The matter was immaterial to this issue, and therefore not proper as cross-examination or for purposes of impeachment. Its effect was certainly prejudicial to these defendants who could not be bound by fraudulent conduct in a transaction, occurring after their purchase, to which they were not parties, and of which they were not shown to have any knowledge. The court was in error in permitting the introduction of this evidence.
2. The unsigned paper claimed by plaintiffs to be a memorandum of the actual transaction between Edgcumbe & Sons and the garnishee defendants was considered in the former opinion, and was held properly admitted as a circumstance tending to show the relation of vendors and vendees between these parties. It is claimed that this record shows that the Edgcumbes had no knowledge that this paper was made by Kidd, Dater & Price Company’s bookkeeper, and delivered to garnishee defendants, and it was therefore error' to allow it in evidence. Plaintiffs’ evidence tended to show that Dater, of this company, negotiated this sale between Edgcumbe & Sons and defendants ; that he was acting for Edgcumbe & Sons; that such part of the stock of groceries as defendants did not need Kidd, Dater & Price Company would take; that •part of the fixtures were purchased by defendants from. Edgcumbe & Sons later when the inventory was completed; that defendants admit they did not know it was claimed they were purchasing from the Kidd, Dater & Price Company until after service of the garnishee process. Under plaintiffs’ theory the paper was admissible. The relation of Dater to the transaction is in dispute. From the evidence the jury could find that he was acting for the principal defendants in making the sale to the garnishee defendants, and his testimony shows that he directed his bookkeeper to draw a paper; that he saw this paper, heard it read, and approved it, but claims that he did not give it much attention; and that the instructions he gave the bookkeeper were to draw a memorandum between the Edgcumbes and his company. This paper was in fact delivered to these garnishee defendants and kept by them until after process in this suit was served.
3. It is claimed that, as to the sale of the groceries and fixtures being made at the same time by one sale, the evidence is undisputed, and that the court should have so charged the jury. The requests referred to assumed what was not true as to the evidence. There was a dispute as to the facts mentioned. The requests were properly refused.
4. The court properly refused to instruct the jury reíative to the effect of a judgment in this suit against the garnishee defendants and paid by them, as a defense against any indebtedness Kidd, Dater & Price Company might claim on account of this transaction. See former opinion in this case.
5. The other errors claimed refer to the reception and rejection of testimony and the charge of the court. As to these rulings of the court upon the evidence we do not find anything to the prejudice of defendants. We find no error in giving the requests to charge on the part of plaintiffs. It is claimed that in his main charge the court was argumentative, and was in error in saying, among other things: “ It is therefore important for you to de termine whether Mr. Dater is testifying to the truth. As I say, if he is testifying to the truth, then the effect of this contract is entirely destroyed ” — and also: ‘ ‘ These par-
ties,. being interested, take the stand and testify positively to those facts.” The court should have avoided calling attention so specifically to the truth or falsity of Dater’s testimony and the interest of the parties on one side. We do not find any testimony of such statements made by Mr. Edgcumbe relative to this sale as appeared in the former trial and were held to be improper, nor is any such testimony pointed out by defendants’ counsel. The trial judge, in referring to his statement, either did so inadvertently, or referred to statements made by him in the presence of, or to, the defendants. We think the case warranted the language of the court in referring to the contradictory statements of defendants made out of court and on the witness stand. With the exception above stated, the charge by the court fairly submitted the case to the jury.
For the errors pointed out, the judgment is reversed, and a new trial ordered.
Grant, Ostrander, Hooker, and Moore, JJ., concurred. | [
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] |
Hooker, J.
Under the laws of this State in force at the time of the assessment of the taxes complained of in this proceeding, railroads were taxed specifically upon their gross earnings, and relieved from other taxes, except as follows:
“The taxes so paid shall be in lieu of all other taxes upon the properties of such companies, except such real estate as is owned and can be conveyed by such corporations under the laws of this State, and not actually occupied in the exercise of its franchises, and not necessary or in use in the proper operation of its road, but such real estate so excepted shall be liable to taxation in the same manner and for the same purposes, and to the same extent, and subject to the same conditions and limitations as to the collection and return of taxes thereon, as is other real estate in the several townships or municipalities within which the same may be situated.” Section 6277, 2 Comp. Laws.
' And again:
“ The real property of corporations exempt under the laws of this State, by reason of paying specific taxes in lieu of all other taxes for the support of the State: Provided, The track, right of way, depot grounds and buildings, machine shops, rolling stock, and all other property necessarily used in operating any railroad in this State belonging to any railroad company, shall henceforth remain exempt from taxation for any purpose, except that the same shall be subject to special assessments for local improvements in cities and villages, and all lands owned or claimed by any such railroad company not adjoining the track of such'company, shall be subject to all taxes.” 1 Comp. Laws, § 3830, subd. 8.
The relator purchased its railroad, together with the lots over which this controversy has arisen, and it claims that they have been at all times since its purchase used by it in connection with its business of railroading. The land was assessed upon the theory that it was not entitled to be included in relator’s property properly subject to a specific tax. It was assessed as lots 1, 4, and 5, block 5, etc., and, after the usual proceedings, it was sold, under decrees entered by the circuit court in the delinquent tax cases, instituted by the auditor general. Being bid'in for the State, the property was subsequently sold and deeded to the Flint Land Company, according to statute. That company caused the service of the statutory notice of its purchase, and, though the period of six months fixed by law has expired, the time within which the relator might repurchase under the statute has been extended to a time subsequent to the final determination of this cause. The occupancy of the land is somewhat similar to that shown in the case of Grand Rapids, etc., R. Co. v. City of Grand Rapids, 137 Mich. 587, and it is claimed, on behalf of respondent, that, under the proofs, all was properly taxed in accordance with the rule in that case, while relator insists that this record clearly shows (which it is said that the former case does not) that none of the land was in the exclusive possession of others, and that all is shown to have been occupied by the relator “in the exercise of its franchises ” and contributing to its earnings, which were taxed specifically. We are able to say from the record in the proceeding that a portion of the lands was not exempt from taxation, and no portion of the tax levied thereon has been paid. In Grand Rapids, etc., R. Co. v. City of Grand Rapids, supra, it was held that “where a portion of the tax is just, the owner is not entitled to relief in equity by a stay of collection of the tax unless he pays or offers to pay the part equitably due.”
We are of the opinion that the record before us shows that relator has not paid or offered to pay any portion of the tax, and, therefore, that he is not entitled to a cancellation of said tax, a part of which, at all events, was a just obligation. In the chancery cause hereinbefore mentioned, it was held that equity would not relieve the complainant under similar circumstances. Grand Rapids, etc., R. Co. v. City of Grand Rapids, supra.
Mandamus is a discretionary writ, and it will be issued only in furtherance of justice. Tennant v. Crocker, 85 Mich. 328; MacKinnon v. Auditor General, 130 Mich. 556; O’Brien v. Wayne Circuit Judge, 131 Mich. 67; Van Akin v. Dunn, 117 Mich. 421.
The writ is denied.
Carpenter, C. J., and McAlvay, Grant, Blair, .Montgomery, Ostrander, and Moore, JJ., concurred. | [
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Blair, J.
An examination of the printed and manu- • script record in this case discloses that no judgment has been returned. . There is, therefore, nothing for this court to consider, and the writ of error is dismissed, with costs to appellees.
McAlvay, Grant, Montgomery, and Moore, JJ.„ concurred. | [
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Ostrander, J.
The last decree of this court in this cause was made on July 1, 1904, upon appeals heard in April, 1903, determined in February, 1904. An application for rehearing was denied June 18, 1904. Campau v. Detroit Driving Club, 135 Mich. 575. Pursuant to the decree then entered, the record was remanded, with directions to require the receiver to account, and, upon such accounting being made, to ascertain and determine the liens and priorities of the parties in and upon the income and earnings of the corpus of the real and personal property of the Detroit Driving Club, and the dispositions to be made of the fund. The receiver filed two accounts, one covering the period from his appointment,.December 7, 1899, to October 31, 1904, the other the period from November 1,1904, to January 31, 1905. They do not appear in the printed record, but were produced in typewritten form at the hearing. Objections to the account were filed, the receiver was examined before the referee and, pending the making of a report, by an order of the court below, the referee was directed to report the testimony taken and was discharged from further consideration of the case. The Hon. Morse Rohnert, one of the circuit judges for Wayne county, proceeded to pass upon the accounts and to determine the liens, and priorities of the parties, and on September 30, 1905, he made and filed a report which was later on, with certain changes, made the decree of the court. By the same order, the fifth petition of intervening creditors, filed July 31, 1905, was denied. From this decree, Daniel J. Campau, as receiver and as one of the complainants, and the interveners, have appealed. Interveners moved to dismiss the appeal of Daniel J. Campau, as one of the complainants, and his appeal as receiver. These motions were brought on and argued at the hearing. Since the hearing, there has been filed by the receiver a third account, for the period from February 1, 1905, to October 31, 1905. To this account the interveners filed objections and have moved this court to refer the account to a commissioner with the usual directions and to direct said commissioner, further, to take testimony and report the extent to which counsel for coni plain ants and counsel for interveners have acted as counsel for the Detroit Driving Club; that independent counsel be appointed by this court to represent the receiver on ■such reference and in all future proceedings in which the receiver is interested. It appears, also, that in June, 1905, and after a decree had been entered for a sale of the property of the Detroit Driving Club in foreclosure proceedings, an order was made for certain repairs to be paid for out of the income and profits, from which order intervening petitioners appealed to this court. While considerable portions of the earlier history of this case are recited in the opinions of this court in Moran v. Wayne Circuit Judge, 125 Mich. 6; Campau v. Detroit Driving Club, 130 Mich. 417, 135 Mich. 575, it is 'still necessary to an understanding of questions now presented that some of the facts be, as briefly as possible, restated in connection with other facts not then before the court.
The Detroit Driving Club is a corporation organized in 1893 under Act 22, Pub. Acts 1883 (chapter 211, 2 Comp. Laws), with a capital stock of $150,000, in shares of the par value of $100. Complainants are officers of the club. Mr. Campau, before and at the time of the beginning of this litigation, was its president and chief executive officer. The other complainants were, respectively, its vice president and treasurer. Before and at the time the complainants filed their bill (a judgment creditor’s bill) in this cause, which was April 24, 1899, the prop'erty of’the club was incumbered by a first mortgage, given to the Union Trust Company, trustee, securing the holders of bonds of the club to the amount of $75,000, and by a second mortgage, given to and owned by Daniel J. Campau, securing notes or bonds of the club to the amount of about $60,000. Complainants were also plaintiffs in an execution levied upon the real and personal property of the club. A second execution, issued upon another judgment in their favor, had been returned unsatisfied by the sheriff and was the foundation for the bill in the present ■case. The ‘ interveners, Moran and Churchill, are as signees of a judgment and of the execution levy made thereunder upon the real estate of the Detroit Driving Club. It is a part of the important history of the case that after the receiver had been appointed in this suit, the personal property upon which the first execution had been levied was, on March 29, 1900, sold by the sheriff to complainants for $1,089. The sheriff also sold upon said execution, April 3, 1900, all of the real estate to complainants for $18,692.47, and, later, returned the execution satisfied. Both of these sales were later, and on objection of the intervening creditors, set aside, and the receiver, who had relinquished possession, again assumed control of the property. By these sales, all of the property of the debtor, real and personal, excepting some accounts receivable, of doubtful value, was bid in by complainants. No proceedings have ever been taken to enforce the execution, levy made by the assignor of interveners.
The bill of complaint is in the usual form; sets out the judgment, issue, and return of execution unsatisfied, negatives collusion with the debtor or any other persons, avers that the bill is not exhibited to protect the property of the debtor against the claims of other creditors, and charges that complainants have reason to believe and do believe .that the debtor has equitable interests, things in action, or other property of the value of upwards of $10,000, which complainants had not been able to discover and reach by execution; that the said Detroit Driving Club has “a considerable amount of money and of legal and equitable debts, claims, and demands due to it from different persons (whose names are unknown to your orators), and that it has money and other personal property either in possession or held in trust for it, * * * the situation, value, and particulars of which are unknown to your orators.” The bill is signed and verified by Daniel J. Campau and was taken as confessed December 6, 1899, and on December 7, 1899, Daniel J. Campau, one of the complainants and president of defendant, was appointed receiver. The order appointing him required the driving club to execute, and it did execute, to him, a general assignment on oath of all its property, debts, equitable interests, etc. The receiver has used, repaired, insured the same, given race meetings at the track, paid interest on the first mortgage, and paid faxes upon the property..
It is seen from this statement that Mr. Campan is, and from the time of his appointment has been, interested in the property of this insolvent corporation as second mortgagee of the property, as a judgment creditor with a levy, as a judgment creditor seeking equitable assets through a receivership, and as receiver. This omits mention of any interest as director and president of the judgment debtor. It now appears that nothing in the way of property of the debtor has been discovered or reached in these proceedings, and that the fund which has been created has come from a continuance of the business of the debtor, using the property of the debtor under protection of the court. It further appears from his testimony and accounts that he knew exactly the situation and condition of the property of the debtor, and knew there were no assets of the kind mentioned in his bill of complaint nor any method of accumulating funds which was not available to the Detroit Driving Club, if the rights of other creditors were effectively postponed. It is stated in the brief for complainants:
“ The record shows that the Detroit Driving Club grounds, standing alone, had but very little earning power, and in order to realize any earnings it was necessary, in addition to making large investments and taking great risks, to secure and retain what are called in the record ‘ franchises,”’etc. '
In a petition to the court on December 28, 1899, the receiver set out—
“That there is a small amount of personal property, worth a few hundred dollars, but which is also incumbered for more than'it is worth. Your petitioner says that the only available asset assigned to him by said defendant is the equity of said defendant in said race track, buildings and grounds. That said defendant has heretofore made considerable sums of money by giving races on said grounds during tbe summer and fall of the years, and that in the opinion of your petitioner he could, as such-receiver, operate said track during the calendar year 1900, and realize several thousand dollars net profit out of said operation for the benefit of the complainants herein, and to apply upon their claim.”
He reported to the court, as the result of his receivership for the period ending October 31, 1904, net profits of $5,578.15; from November 1, 1904, to January 31, 1905, $5,713.75; from February 1, 1905, to October 31, 1905, $8,345.48. He has paid himself a salary at the rate of' $2,500 per annum, with some additions for extra race meetings, amounting in all to $14,583.31; for interest on the first mortgage, $22,549,64; for repairs, ordinary and extraordinary, $18,790.70; for attorneys’ fees, $5,415.14; for taxes, $4,521.21; for insurance, $6,661.82.. The total receipts have been, $119,479.20; the total disbursements, $99,841.82. It should be further stated, in. view of the decree which was made, that the real estate of' the debtor has been, since the case was last in this court,, sold in proceedings in chancery to foreclose the first mortgage. The details are not before us. It was stated at the hearing that $160,000 was the consideration paid at the sale.
That part of the decree below which is here important is:
“ The court * * * finds that said account and each and every item thereof should be allowed except the item:
“ ‘December 27, 1900, checkto D. J. Campau for D. J. Campau, F. F. Palms, and G. M. Vail for use of personal property for one year, ending December 7, 1900, $500.’
“ And excepting further, that there should be deducted from the total of $4,899.14, charged as expenses for attorney’s fees and disbursements, the sum of $2,035.06, so that the amount credited to the receiver for fees and disbursements of attorneys shall be the sum of $2,864.08. These two items of $500 and .$2,035.06 it was agreed by all of the parties should be disallowed.
“And excepting, further, that there should be disallowed from said account the item:
“‘April 1, 1903, check to John Bornman & Son, for 32-page brief, including index, in suit of F. T. Moran and W. L. Churchill v. D. J. Campau, F. F. Palms, and Gr. M. Vail, $28.80.’ %
“And excepting, further, that the $2,250 paid for interest on July 1, 1904, the $1,002.03 paid for taxes on August 27, 1904, and the $1,026 paid for taxes on December 31, 1904, is disallowed as a charge against the income, but is allowed as a charge against and a lien upon the real property of the Detroit Driving Club next to the lien of the first mortgage as more particularly hereinafter stated, and said charge and lien is given for the purpose of reimbursing said Campau for said sums.
“ The court therefore finds that the amount of cash now in the hands of the receiver is the sum of $20,361.19. That the unpaid claims against the receiver, including those disputed and those undisputed, amount to the sum of $4,407.05, which when determined shall be paid out of the income account as first claims thereon.
“ In regard to the lien upon the real property of the Detroit Driving Club.
“ 1. The court finds that the Union Trust Company of Detroit, Michigan, as trustee for the bondholders, has a first lien upon the real estate of said Detroit Driving Club to secure bonds to the amount of $75,000, bearing interest at the rate of 6 per cent, per annum, payable semi-annually, on the 1st day of July and January of each year; that the principal secured by said mortgage matured July 1, 1904, shortly after which time said Union Trust Company instituted mortgage foreclosure proceedings, and that there was due upon said mortgage for principal, interest, and costs on the 11th day of September, 1905, the sum of $80,521.01, and that said mortgage was and is a first lien on said real estate.
“2. The court further finds that said D. J. Campau, receiver, has a lien on said real estate for interest paid on said first, mortgage on July 1, 1905, to the amount of $2,250; for taxes paid on said real estate on the 27th day of August, 1904, to the amount of $1,002.03, and for taxes paid on said real estate on the 31st day of December, 1904, to the amount of $1,026, making a total of $4,278.03, which said lien is a second lien and subject only to said first mortgage.
“3. The court further finds that said Daniel J. Campau has a mortgage upon the real property of said Detroit Driving Club to secure a debt now due him, which debt on September 11,1905, amounted to the Sum of $74,812.37, and is a third lien on said real property, subject only to the two preceding liens.
“ 4. The court further finds that complainants Campau, Palms, and Vail have a lien upon the real and personal property owned by said Detroit Driving Club, which they acquired under and by virtue of an execution issued out of the circuit court for the county of Wayne against said Detroit Driving Club, and under which a levy was made on the real and personal property of said club, amounting, on the 11th day of September, 1905, to the sum of $25,498.32. And that said interveners, Moran and Churchill, have a lien upon said real and personal property which they acquired under and by virtue of a levy made thereon by the People’s Savings Bank and assigned to them, which said lien amounted; on the 11th day of September, 1905, to the sum of $18,758.64.
“5. The court further finds that said two last-mentioned liens are simultaneous liens on the real and personal property of said Detroit Driving Club.
“6. In regard to the liens on the income, rents, and profits, the court further finds that the complainants Campau, Palms, and Vail secured, by virtue of their judgment creditors’ proceedings, a prior lien on the income, rents, and profits derived from the property of the Detroit Driving Club while in the hands of the receiver, for the amount of the judgment upon which said judgment creditors’ bill was filed, and that said judgmenij on September 11, 1905, for principal, interest and costs amounted to the sum of $14,342.24.
‘ ‘ 7. The court further finds that there are no other specific liens on said income, rents, and profits, but that any surplus remaining in the hands of the receiver shall be distributed pro rata among all the creditors of said Detroit Driving Club, unsecured and secured, as far as they have not been otherwise satisfied, and that the testimony shows that there are some claims now existing against said Detroit Driving Club which are not before this court, but that the parties holding said claims should have a reasonable opportunity to appear and ask for their pro rata share, if any, of said surplus. ”
The fifth intervening petition of interveners asked the court to find ■:
“1. That Daniel J. Campau, as receiver, has the first lien on the corpus of the real and personal estate of the Detroit Driving Club after and subject to the first mortgage for the amounts paid by him for interest on said first mortgage, and for taxes, insurance, and repairs, amounting in the aggregate to the sum of $47,347.69.
“■2. That the intervening petitioners are entitled to be subrogated to said lien to the amount of the judgment against the Detroit Driving Club held by them, the same amounting July 1, 1905, to $19,500.60.
3. That the real and personal property of the Detroit Driving Club be sold free and clear of all liens and incumbrances, except said first mortgage, for the purpose of satisfying and paying your petitioners the amount due on their said judgment.
“ 4. That the proceeds of such sale may be ordered paid into court to abide the result of the issue joined on your petitioners’ third intervening petition now pending before Hon. Morse Rohnert, circuit judge.
“5. That the sale of said Detroit Driving Club’s title and right to redeem may be made with all convenient «peed, so that the purchaser’s title thereto will be complete and perfect before said right to redeem expires.”
The exceptions filed by interveners to the report, which embody their objections to the decree, allege error as follows :
“1. In finding that the original and supplementary accounts of Daniel J. Campau, as receiver, should be allowed, except the items disallowed in said report.
“2. In finding that the unpaid claims against the receiver, including those disputed and those undisputed, amount to the sum of $4,407.05; and in finding that said claims, when determined, should be paid out of the income, as first claims thereon.
“ 3. In finding and reporting that the Union Trust Company of Detroit, as trustee for bondholders, has a first. lien upon the real estate of the Detroit Driving Club to secure bonds to the amount of $75,000, and that the amount due upon the mortgage and bonds held by said Union Trust Company on the 11th day of September, 1905, was the sum of $80,521.01. The ground of this ob jection is that the matter of said lien is not covered by, and is not within, the order of reference under which the learned circuit judge was proceeding.
“4. In finding that Daniel J. Campau, as receiver, has a lien on the real estate of the Detroit Driving Club for the interest paid by him on the first mortgage on the 1st day of July, 1904, to the amount of $2,250; for taxes paid on the real estate on the 27th of August, 1904, to the amount of $1,002.03, and for taxes paid on said real estate on the 31st day of December, 1904, to the amount of $1,026, making a total of $4,278.03. The ground of this exception is that the receiver should also have been given a lien for the payments of interest on the first mortgage previously made by him, as receiver, as shown by his account, and for the taxes previously paid by him, as so shown, and for the insurance premiums previously paid by him, as so shown, and for repairs to real estate made by him, as receiver, as so shown. The items which should have been added to the said receiver’s lien are as follows
Interest on the first mortgage__________________$20,307 20
Taxes on real estate..............-......--- 1,933 89
Special taxes on real estate .................... 559 28
Insurance..................................... 5,768 55
Repairs to real estate.....................-•____ 14,508 29
$43,077 21
—which amount, added to the lien found and reported by the circuit judge, makes the total amount for which the receiver should have been given a lien on the corpus of the estate, subject only to the first mortgage, the sum of $47,355.24. . On any possible view of the case, the circuit judge should have added to said receiver’s lien the lien of $17,546.04, fixed by the report of Commissioner May of August 6, 1902, as confirmed by Judge Carpenter’s decree of November 5, 1902.
“5. In finding and reporting that Daniel J. Campau has a mortgage upon the real estate of the Detroit Driving Club, upon which there was due September 11, 1905, the sum of $74,812.37, and that said mortgage is the third, lien on said real property, subject only to the two preceding liens.
“6. In finding that the complainants Campau, Palms, and Vail have a lien upon the real and personal property of the Detroit Driving Club, which they acquired under and by virtue of an execution issued out of the circuit. court for the county of Wayne against said Detroit Driving Club, and under which a levy was made on the real and personal property of said club, amounting, on the 11th day of September, 1905, to the sum of $25,498.32; and that the interveners, Moran and Churchill, have a lien on said real and personal property, which they acquired under and by virtue of a levy made thereon by the People’s Savings Bank and assigned to them, which said lien amounted, on the 11th day of September, 1905, to the sum of $18,758.64, and that said judgment liens are simultaneous on the real and personal property of the Detroit Driving Club. One ground of this exception is that the matter of said judgment and execution liens is not covered' by, and is not within, the order of reference of August 26, 1904. Another ground is that the amount due upon said execution levies and liens is not correctly found and stated in said report.
“ 7. In finding that Campau, Palms, and Yail secured, by virtue of their judgment creditors’ proceedings, a prior and first and paramount lien on the income, rents, and profits derived from the property of the Detroit Driving Club while in the hands of the receiver .for the amount of the judgment upon which their judgment creditors’ bill was filed, and that said judgment, on the 11th of September, 1905, for principal, and interest, and costs, amounted to the sum of $14,342.24. The grounds of this exception are that Campau, Palms, and Yail acquired no such lien, and that the amount due upon their said judgment is not accurately ascertained and determined.
“8. In finding that there are no other specific liens on said income, rents, and profits, but that any surplus remaining in the hands of the receiver shall be distributed pro rata among all .the creditors of said Detroit Driving Club, unsecured and secured, as far as they have not been otherwise satisfied, and that the testimony shows that there are some claims now existing against said Detroit Driving Club which were not before this court, and that the parties holding said claims should have a reasonable opportunity to appear and ask for their pro rata share, if any, of said surplus. The grounds of this exception are that the intervening petitioners in virtue of the writs of garnishment sued out by them, and their third and fourth intervening petitions in this cause, did acquire a first lien upon the income, earnings, rents, and profits of the corpus of the real and personal property of the Detroit Driv ing Club while in the hands of the receiver foT the amount of the judgment held by them, and if they did not acquire a first lien upon said income, earnings, rents, and profits, they did acquire a second lien thereon, the same being subject to the lien alleged to have been acquired by the complainants in virtue of their judgment creditors’ bill, and that under said creditors’ bill, the court had no jurisdiction or power to make a general distribution of the estate and assets of the Detroit Driving Club among its creditors.
“9. In overruling the objections to the accounts of the receiver, filed by the intervening petitioners on the 11th day of March, 1905, and in overruling each and every of said objections. The intervening petitioners claim the benefit of said objections the same as if they were here repeated.
‘ ‘ 10. In refusing to make, sign, and file the report proposed and submitted by the intervening petitioners to the circuit court commissioner, and to the circuit judge; and in refusing to disallow each and every of the items claimed by the intervening petitioners in their said proposed report as not properly or legally allowable. The intervening petitioners claim the benefit of their said proposed report, as showing the items in the receiver’s account, which they claim should be disallowed the same as if said items were here repeated.
“11. In refusing to hold that Daniel J. Campau, as receiver, is chargeable with the amounts paid out by him as president and manager of the Detroit Driving Club in the year 1899, and before he was appointed receiver, namely: Interest on the $18,000 note of Campau, Palms, and Vail, paid April 22, August 14, and December 1, 1899, amounting to $1,149; and for the payment made by him November 29, 1899, a few days before he was appointed receiver, on an alleged claim of the old driving club, of $914. Both of these items, aggregating $2,063, the intervening petitioners claim should be added to the amount of moneys chargeable to the receiver.
“12. In allowing, as properly payable out of the income and earnings account, the interest paid by the receiver on the first mortgage for 4-|- years, commencing January 1, 1900, and ending January 1, 1904, being nine semi-annual payments of $2,250 each, aggregating $20,250.
“13. In allowing, as properly payable out of the income, the item of $39.38, as interest paid to D. J. Campau for advancing an installment on interest on the first mortgage.
“14. In allowing, as properly payable out of the income account, the taxes on the real estate of the Detroit Driving Club for the years 1900 to 1903, inclusive, as follows:
1900 ____________________________________________ $140 00
1901 ............................................ 533 54
1902 ____________________________________________ 402 98
1903 ____________________________________________ 856 97
Special tax' in 1904 of the village of Fairview____ ■ 559 28
$2,492 77
“15. In allowing, as properly payable out of the income account, the insurance premiums paid by the receiver for insuring the buildings constituting part of the real estate of the Detroit Driving Club, said payments, by years, being as follows:
1900 ........;..................................$1,205 64
1901 ........................................... 1,266 39
1902 ......-------------------.............’ .1,155 06
1903 ........................................... 914 33
1904 -......................................... 1,227 13,
$5,768 55
“16. In allowing, as properly payable out of the income account, the disbursements made by the receiver for repairs to the buildings and real estate of the Detroit Driving Club, said payments, by years, being as follows:
1900 $683 02
1901 2,288 22
1902 2,652 43
1903 593 73
1904 1,203 07
1904 Drain________ 1,271 41
1904 Extraordinary 5,4f7 65
1905 _______________ 398 76
$14,508 29
' “And in ruling that the income account .was chargeable with more than 10 per cent, a year during the continuance of the receivership for the use of the repairs made by the receiver, and in refusing to reduce the repair account chargeable to the income account to the sum of $4,411.30.
”17. In refusing to disallow, and in allowing the payments made by the receiver to himself for his salary at the rate of $2,500 a year, said payments, as shown by the receiver’s accounts, amounting to the sum of $12,708.31; and in allowing the additional salary paid by the receiver to himself August 10, 1903, of $600.
”18. In allowing the disbursements made by the receiver to Otto Kirchner and to Moore & Moore, the solicitors for the complainants, for their professional services, as shown by the receiver’s accounts, the same amounting to $4,899.14, and in refusing to disallow the whole of the attorney’s fees account of the receiver, except the payment to Bowen, Douglas, Whiting & Murfin, October 9, of $10.
”19. In allowing, as properly payable out of the income account, the payment made by the receiver June 18, 1904, of $1,000 for initiation fee and annual dues in 1904 in the grand circuit.
”20. In ref using to disallow the disbursements made by the receiver for his traveling expenses outside of the State, as shown by his accounts, as follows:
1900.
March 7. Check to D. J. Campau for expenses to New York, attending meeting of Nat’l Trott. Ass’n--------$55 00
1902.
Jan. 6. Check to D. J. Campau for expenses attending joint rules meeting in New York of Nat’l and Amer. Trott. Ass’n.............................. 60 00
1908.
Feb. 18. Check to D. J. Campau for expenses to Boston and New York and return, Jan. 26, ’03, meeting of stewards in Boston and soliciting entries in New York.............-..........................- 128 30
Expenses to New Yorkin Feb., 1902, meeting called by Mr. Hanna at Cleveland.................... 75' 00
1904.
Feb. 18. Check to D. J. Campau, for R. R. fare to St. Loui$. to New York and return to
Detroit............................-.....$48 50
Hotel bills.............................. 68 00
Incidental expenses..................... 25 00
- 141 50
Dec. 31. To D. J. Campau, Dec. 6, expenses to Chicago and return, attending meet. Amer. Trott. Ass’n----- 33 50
Dec. 12. For expenses to N. Y. and return attending meet ing stewards Grand Circuit____________________$68 00
. Jan. 20. Check to D. J. Campau, for expenses to New York and return attending meeting of stewards of Grand Circuit.....................-........... 67 00
$628 30
“ 21.’ In allowing the receiver the amounts disbursed by him for entertainments as shown by his accounts, as ■follows:
1900.
-June 31. Wine cards, $26.70; cigars, $5.00 — Hotel Cadillac in full of acct. rendered_________________r_____ $3170
.June 27. Check to D. J. Campau, for amt. advanced for theater tickets for entertainment of stewards Grand Cir. meet______$15 00
For sundry expenses___________________ 6 00
--21 00
-Aug. 16. Check to D. O. L. for 12 passenger brakes to races and 10 passenger brakes to waterworks........ 15 00
1901.
Mar. 20. Check to Hotel Cadillac acct. rendered for entertainment of stewards of Grand Circuit, dinner, etc...................._...................... 78 33
1902.
Feb. 15. Check to Hotel Cadillac acct. rendered for entertainment stewards of Grand Circuit___________ 54 10
■ July 22. Check to Hotel Cadillac for entertaining
guests and oficiáis____________________$17 50
Carriage hire........... 1100
-- 28 50
June 27. Check to D. O. L. carriage.......... $1 00
12 passenger brakes.................... 10 00
12 passenger brakes____________________ 10 00
12 passenger brakes.................... 10 00
-- ' 31 00
1904.
Aúg. 6. Check to Swan & Norton, for refreshments, sandwiches, beer, lemonade, cigars, etc......____ ■ 81 30
$340 93
“ 22. In allowing the payments made by the receiver for work in the construction and repairing of drains at, the Detroit Driving Club, as included by the receiver in ..his expense accounts, as follows;
1904
Oct. 31. To amount of drain acct. transferred-----------§1,371 41
Nov. 5. Check to W. E. Ellair, for pay roll, working on drain from Oct. 28 to Nov. 4, inclusive.......- 98 65
Nov. 19. Check to W. E. Ellair, for pay roll, two weeks, from Nov. 4 to Nov. 18___________!____________ 196 00'
Nov. 28. Check to W. E. Ellair, for pay roll for work on drain, Nov. 19 to 28 —....................... 121 80
Dec. 13. To Luke Crossley, for bal. due for work superintending the construction and repairing drain at Det. Driv. Club track grounds............. 122 50
§1,810 36
“23. In refusing to make the finding of facts submitted by the intervening petitioners in the report proposed by them.
“24. In refusing to make the rulings and conclusions of law requested by the intervening petitioners, in their said proposed report, Nos. 1 to 5 inclusive, and in refusing each one of said conclusions or rulings.
“25. In allowing the payments made by the receiver to the Pinkerton National Detective Agency, as follows:
1900 .................-...............-..........- §341 20
1901 ............................................ 372 62
1902 ............................................ 499 00
1903 .......................-.............-..... 818 25
1904 ............-.....-......................... 396 00
§2,627 07
“26. In not finding and stating the aggregate amount of the receipts of the receiver, and the aggregate amount of the disbursements allowed, so as to show the correct amount in the hands and due from the receiver.”
The provision of the decree which is challenged by the appeals of Mr. Campau is found in paragraph 2. The appealing interveners challenge, as the exceptions which have been set out show, the theory upon which the accounting proceeded and, substantially, all the conclusions arrived at in the court below. The various contentions which are made will be better understood if the theories of the parties and of the trial court are contrasted. The accounting proceeded, and the decree is made precisely as though the receiver had been appointed in a proceeding instituted under the general jurisdiction and powers of a court of equity, as though he was himself neutral and had managed an estate or created and safeguarded a fund for the use and benefit of another; with the exception that complainants are declared, in the decree, to have a first lien upon the fund. If this general theory was supported by the facts, the appeal of the receiver would not have been taken, nor would that of Mr. Campau', as one of the complainants. The receiver has been allowed all of his disbursements, including his compensation. Mr. Campau, as a complainant, will, if the decree stands, realize, with the other complainants, the principal and interest of the judgment upon which this proceeding is founded.
It is the theory of counsel for interveners that this, proceeding, which is in some respects, at least, a special and statutory one, was fraudulently and collusively instituted; that a judgment creditor cannot by means of a judgment creditors’ bill reach rents and profits of the real estate of his debtor when title to such real estate, at the time execution is issued and returned, to the knowledge of the creditor, stands of record in the debtor and there is no obstacle to a levy and sale by virtue of the execution; in any event, that the judgment creditor in this case secured no more than a first lien upon the income; interveners secured a second lien by the filing of their third intervening petition and are entitled to have their judgment paid out of income without any diminution of the fund to pay interest upon the first mortgage, for taxes, insurance, and repairs; that Campau, as receiver, has a first lien upon the proceeds of the sale of the property on the foreclosure of the first mortgage, after satisfaction of that mortgage, for all disbursements for interest on said mortgage, for taxes, insurance, and repairs, and that interveners are entitled to be subrogated to such receiver’s lien. It is strongly urged that the facts require the court to find that the bill was collusively filed and the execution returned unsatisfied by direction of the attorneys for plaintiffs; that, as a result, the receiver should be paid no compensation; the disbursements made to his counsel not approved. Certain items in the account are attacked, and it is sought to surcharge the receipts reported to the amount of $2,063. We may dismiss this last matter from further consideration by saying that we do not find that the money came to the possession of the receiver.
In reply to the other contentions of interveners, it is asserted by complainant that the status of the receiver, the good faith of complainants in instituting this proceeding, and the right of complainants to have their judgment first paid out of the income, have all been heretofore determined, against the objections now made, by this court. Examination of the various records presented to this court and of the opinions and decrees of this and of the trial court does not show these assertions to be warranted, beyond this, that the jurisdiction of the court to make the appointment of a receiver, the facts that Mr. Campau was regularly appointed, assumed the position, and has been since recognized as the officer having charge of the property, are not open to question. There is language used in the opinion in 135 Mich. 575, at page 578, which affords some basis for the argument that the other questions now raised, save only the question of the right to pay certain items from the income fund, are res ad judicata. But, read in connection with the context, and the decree of this court made thereafter and after a motion for rehearing had been heard, it is clear that the points had not been decided when the decree now appealed from was made. If it were less clear, previous decisions having been made before any account had been filed by the receiver, and upon records much less complete than the one now presented, we should be inclined to hold that the court was not precluded from now examining the whole matter upon the merits. We do not, however, base any conclusion we have reached upon the fact that the bill in this case was collusively filed. We do treat the fact that complainants had exact knowledge of the property of defendant and that all of it could be reached in proceedings at law as important. The complainants have discovered by this proceeding no property of the debtor. This fact is now for the first time, in this court, conclusively established. It further appears that they had no expectation of discovering any property, and from the beginning designed to continue, through the receiver, the business of the debtor corporation. It would be presumed from the bill and from what was done that they designed to acquire the title to the property by means of the execution sales, and, meantime, to conduct by the receiver the usual race meetings upon the property, securing the avails of the season of 1900 for themselves. Because the sales to themselves, on execution, were considered to have been void for the reason that the property was in custodia legis and no permission to sell had been obtained, they failed to secure title to the property. The receiver thereupon resumed possession and has continued to hold race meetings until and during the season of 1905. There is no •money in the fund which the receiver holds not derived, directly or indirectly, from the continuance of the debt- or’s business, using its property.
The statute (1 Comp. Laws, §§ 436, 437) prescribes the conditions warranting the institution of a proceeding like this one. Strict observance of the statute in the framing of the bill has uniformly been required. Thayer v. Swift, Har. Ch. (Mich.) 430; Smith v. Thompson, Walk. Ch. (Mich.) 1; Beach v. White, Walk. Ch. (Mich.) 496; First National Bank v. Dwight, 83 Mich. 189; Vanderpool v. Notley, 71 Mich. 422; McCullough v. Day, 45 Mich. 554. The bill being formally sufficient, the power of the court to proceed to appoint a receiver, oven in the face of denials, by the debtor, that any property reachable by the bill existed, has been many times asserted. Turnbull v. Lumber Co., 55 Mich. 387, and cases cited in the opinion. In support of the exercise of such power, it is said that if the denial ultimately prove true, the complainant has proceeded at the peril of being obliged to pay costs. Bloodgood v. Clark, 4 Paige (N. Y.), 574; Fitzburgh v. Everingham, 6 Paige (N. Y.), 29; Turnbull v. Lumber Co., supra. The statute (1 Comp. Laws, § 437) recites (whether or not it confers, or limits) the power “to decree satisfaction of the amount remaining due on such judgment, out of any property, money, or other things in action belonging to the defendant, or held in trust for him, * * * which shall be discovered by proceedings in chancery, whether the same were originally liable to be taken in execution at law or not.” No authority has been presented, and it is likely that none can be found, supporting the proposition that, under the provisions of the statute quoted, a court of chancery may properly turn over to that creditor of a corporation which first asks permission all of the property of the corporation, to be used in continuing the business of the corporation for the benefit of such, creditor, to the exclusion of other creditors. It was held in New York (Farnham v. Campbell, 10 Paige [N. Y.], 598 [1844]) that a judgment creditor, after exhausting his remedy at law, might file his bill to obtain satisfaction of his debt out of any beneficial interest of his debtor in real property which could not be reached by execution at law, and that such a bill being filed, the judgment creditor might obtain satisfaction out of rents and profits of real estate accruing during the 15 months allowed by law to redeem from a sheriff’s sale on execution. The report does not disclose the nature of the rents and profits accruing. Whatever may be said of this case as authority (see Congden v. Lee, 3 Edw. Ch. [N. Y.] 304), it does not meet the facts here. Whether complainants believed, or were advised, that in such a proceeding the business of the debtor might be conducted by a receiver and if a profit was realized used in payment of their judgment, or whether they intended an abuse of the process and powers of the court, the result is the same. In the view we have taken of the matter, neither complainants nor the interveners have any lien upon the fund. It should be distributed, and the court having jurisdiction over the receiver and the property will order it to be distributed, to creditors of the judgment debtor, as though it had been accumulated by the debtor. Applying these conclusions to the account of the receiver, we are able, with no particular difficulty, to dispose of all the controversies. The fund in question having been derived from adventures of the receiver, in which the property of the debtor was used, all disbursements connected with and necessary to the conduct of the business engaged in should be allowed.
The question whether the moneys disbursed to pay interest upon the first mortgage, and to pay taxes and insurance premiums, should be charged to the income, has been at all previous hearings expressly reserved. The decree below allows such disbursements as proper charges to the income fund, with the exception of the last payment of interest and the last two payments of taxes. For these, the receiver is given a lien upon the proceeds of the sale in the foreclosure proceedings. The reason for this is that no benefit to the fund resulted from such payments. Payment of the interest was authorized to be made üpon •condition that foreclosure of the first mortgage was deferred. It was paid without securing such postponement. The taxes, also, were paid when their payment could in no way increase the fund. It may be said of all other payments for interest, taxes, and for insurance, that probably nonpayment of them would have resulted in diminishing the fund. Some of the payments were expressly ordered by the court below. The theory upon which we appropriate the fund warrants affirmance, in this respect, of the decree.
As to the disbursements for repairs, for attorney’s fees, and for the salary of the receiver, entirely different considerations are presented. It is true that it may be, and perhaps ought to be, assumed that the court below was informed concerning the various interests which Mr. Campau had in the property in question. The interest, and we must presume the inclination, of the receiver, favored the collection of the largest possible sum upon his own mortgage. Measured in dollars, it was his most considerable interest. It is not possible to now ascertain the extent that expenditures upon the property might have been reduced with production of the same income. It is not possible to estimate, accurately, to what extent the price received on the sale, upon foreclosure of the first mortgage, was augmented by the betterments made by the receiver. From the account, it appears there was disbursed for repairs, ordinary and extraordinary, in 1900, $683.02; in 1901, $2,288.22; in 1902, $2,652.43; in 1903, $593.73; in 1904, $1,203.07, $1,271.41, and $5,417.65; in 1905, $4,681.17. We are asked by counsel for interveners to determine that the repairs made would last, on the average, 10 years; were an enhancement, of the value of the property, primarily payable out of the proceeds of the sale on the first mortgage, but that 10 per cent, per annum of the cost thereof should be charged to the income fund. We are not advised as to the time when the bill was filed to foreclose the first mortgage. We are advised that on June 24, 1905, a decree of foreclosure had been entered. It has already been stated that a payment of interest, made July 1, 1904, and of taxes, made August 27, 1904, were regarded by the trial court as not properly chargeable to the income account. It appears that in 1904, previous to a race meeting which began in July, the pumping station on the grounds was burned. Pumping apparatus, of considerable capacity, is, by the testimony, shown to be necessary to get rid of water and permit the race track to be used. The record also discloses that an order was made by the court, upon a petition of the receiver, giving permission to rebuild the pumping station at an expense not exceeding $3,000, and that the question whether the cost should be paid out of rents and profits or out of the corpus of the property was expressly reserved. The cost of rebuilding was more than $5,000, was paid out of the income, and has been allowed in the decree as a proper charge to that account. The order of June 24, 1905, permitting repairs to be made, directed that one-third of the cost of a new slate roof for the grand stand be refunded to the receiver out of the surplus of the proceeds of the sale on the first mortgage, the whole cost to be paid in the first instance out of the income. Although interveners appealed from the order last mentioned, the record does not contain the testimony upon which the court proceeded. An examination of the voluminous account of the receiver and of the testimony which is returned has not convinced us that we should do more with respect to the account for repairs than this: Allow the receiver’s account for repairs as presented, except the expenditures in 1904 for a pumping station, and in 1905 for the cost of a roof for the grand stand. As to the cost of the pumping station, testimony must be taken concerning the life of the plant as installed, and a proper annual charge, proportioned to the cost and the life of the plant, will be allowed as a disbursement from the income fund for the years 1904 and 1905. The remainder of the cost of said plant will be allowed to the receiver as a lien upon the surplus produced upon the foreclosure sale. As to the roof for the grand stand, the apparently permanent character of the improvement impresses us as requiring that a smaller proportion than two-thirds of its cost should be charged to the income account. In form, the decree as to this item will be reversed, and, upon remand of the record, a new reference will be made with regard to this item, to be finally disposed of upon the same theory as is above applied to the account for the pumping station.
The receiver should be allowed no compensation. One reason for this ruling is that he has discovered no property of the debtor nor reached any assets properly reachable in a judgment creditors’ proceeding. To the argument that he has performed the duties of a receiver and has, in fact, accumulated a fund for distribution to creditors, it is replied that he cannot be permitted to support his appointment to the office nor enlarge the duties of the office upon any theory of the jurisdiction and power of the court other than the one asserted in the bill of complaint. He was not appointed to manage the business of the debtor and to accumulate, by such management, a fund for creditors. He has, it is true, applied for and obtained permission of court to conduct some of the race meetings. If we were required to consider the effect of such orders, we should be compelled to find (and this is a further reason for refusing him compensation) that his purpose in continuing the receivership, in securing such permission, and in conducting such business, was not to accumulate a fund for creditors, nor, primarily, to secure a fund out of which to pay the judgment upon which his suit is founded, but that it was to preserve, keep in condition and repair, the property o£ the debtor, maintain the standing and reputation of the property of the debtor as a place for race meetings, postpone the foreclosure of the senior security as long as possible and produce, ryhen enforcement of that security occurred, the largest possible sum. As early as the month of March, 1900, in a pleading filed in the cause, the receiver asserted upon oath that “the net result of the club’s business during the last four years was a loss. He denies that during the last four years the gross receipts of the club exceeded the operating expenses and fixed charges.” At the end of five years, during which the receiver continued to defend his official position in the courts, he reported to the court, as the net results of his stewardship, assets of $10,991.68 and liabilities of $5,413.53. That this was not the net result or the result most desired and sought is conclusively established. From the brief of counsel for the receiver, we take the following statement of the gross and the net receipts of different race meetings:
1900 Gross receipts.. .$55,404 00 Net receipts..........$13,193 48
1901 “ “ ... 67,911 55 “ " 17,150 44
1903 “ “ ... 57,035 85 “ “ 13,310 55
1903 “ “ ... 63,333 93 “ “ 16,431 88
1904 “ “ ... 61,956 50 “ “ 18,104 67
Jockey Club Meeting.
1903 Gross receipts.. .$45,381 00 Net receipts.......... $1,479 35
It is impossible to escape the conclusion that out of the "business conducted the receiver might have early paid the judgment by virtue of which he secured his appointment, if his single purpose was so to do. The reasons for denying compensation to the receiver are controlling with respect to the disbursements made to his attorneys. They are disallowed.
As to all other matters in the account, the action of the court below is affirmed. A decree will be entered in this court in accordance with this opinion, which shall, also, in terms, operate to abate and discontinue all pending petitions, suits in garnishment, and other proceedings, seeking directions for the disposition of the fund and payment therefrom. The record will be remanded, with directions to refer the account to a master for a restatement thereof in accordance with this opinion and the testimony by this opinion and by the decree below required to be taken. Upon the settlement of the decree of this court, upon the hearing before the commissioner and final hearing in the court below, the receiver will be permitted to employ counsel, whose reasonable charges shall be paid out of the fund in the receiver’s hands. And upon the coming in and confirmation of the master’s report, a decree will be entered distributing the fund among the creditors of the Detroit Driving Club, as their interests may appear, but without preferences. For this purpose, the second mortgagee shall be treated as a creditor if the proceeds of the sale of property on the first mortgage shall be insufficient to discharge his lien, but to the extent only of the balance remaining after application of such proceeds. Interveners will recover from Mr. Campau the costs of this áppeal.
McAlvay, Montgomery, Hooker, and Moore, JJ., concurred. | [
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Ostrander, J.
Act No. 577, Local Acts 1905, is entitled “An act to disorganize and vacate the township of Atkinson, in the county of Iron, and to incorporate its territory within the adjoining township of Iron River, in the county of Iron.” By the terms of the act the township of Iron River is made the legal successor of the’ township of Atkinson to all property, and is made liable to pay the lawful indebtedness and claims against the township of Atkinson; the township officers of Atkinson are required, as soon as the act shall take effect, to turn over and deliver to the proper officers of the township of Iron River, the same as if said officers were their successors in office, all moneys, funds, books, papers, files, records, and other property and effects belonging to the township of Atkinson and belonging to their several offices; the township treasurer of Iron River is invested with authority to collect all taxes due and unpaid upon any property in the township of Atkinson, and to enforce the payment of delinquent and other taxes and to credit the township of Iron River with moneys thus collected. The act was ordered to take effect April 1, 1906. That day was Sunday. The following Monday was the day for holding the annual township meeting, and on that day an election was held in the township of Iron River," in which the inhabitants of the territory theretofore constituting the township of Atkinson declined to participate, but, on the contrary, proceeded to hold an election as though that township were still in existence, and, upon demand being made by the officers comprising the township board of Iron River, the officers comprising the township board of the township of Atkinson declined to turn over money, books, or papers. Thereupon the attorney general, upon the relation of the members of the township board of Iron River, applied for a writ of mandamus, to be directed to the persons constituting the township board of the township of Atkinson, requiring them and each of them to deliver the money, books, and papers according to the terms of the act referred to. For answer to the order to show cause, which was granted, the respondents set out that the act of the legislature referred to was void because contravening the provisions of section 1 of article 7 of the Constitution of the State, in that it operated to disfranchise the electors of the township of Atkinson by providing for the disorganization of that township one day previous to the annual township election without providing any machinery or method by which the electors of Atkinson township could participate in the voting of the taxes or in the election of officers in the township of Iron River, nor was provision made for the registration of the electors of the township of Atkinson in the township of Iron River or the completion or revision of the registration lists in said township of Atkinson. ¡
The reasonable intention of the legislature was that the business of the township of Atkinson, including the registration of its qualified electors, should proceed in the usual way so long as it remained, a township. On Sunday, April 1st, by operation of the law, the same people, including the electors, became inhabitants of and electors in the township of Iron River, an organized township possessing the officers and all the machinery of government, and they had the undoubted right to exercise as inhabitants of that township all the rights of citizens possessed by other inhabitants of the same township. The argument that the qualified electors of Atkinson township were disfranchised because they had not for 30 days been inhabitants of the township of Iron River is without force. They had been inhabitants of the territory comprising the township of Iron River. Gibson v. Wood, 105 Ky. 740 (43 L. R. A. 699); Renner v. Bennett, 31 Ohio St. 431. No political right of any inhabitant was or was intended to be abridged. We think all the contentions made against the act and its constitutionality are determined by Attorney General, ex rel. Battishill, v. Township Board of Springwells, 143 Mich. 533.
But respondents further in their answer call attention to the fact that at the same session of the legislature Act No. 596, Local Acts 1905, "was adopted, entitled “An act to provide for a new voting precinct to be known as voting precinct number two, in the township of Iron River, in the county of Iron,” section 1 of which reads:
“ All that territory in the township of Iron River, county of Iron, lying north of the north line of township forty-three, range thirty-five and thirty-six thereof, shall constitute a separate voting precinct, to be known as voting precinct number two, Iron River township.”
It is pointed out that three sections of the original township of Atkinson lie south of the north line of township 43 N., range 36 W., and that entire surveyed township 46 N., range 37 W., was apart of the original township of Atkinson; that Act No. 596 took effect March 1, 1906, and can be held to apply only to the territory at that time within the organized territory of Iron River. It is argued that the inhabitants of the three sections and those of the entire surveyed township mentioned, being thus omitted from the territory included within said election district No; 2, were, under any construction of said Act No. 596, disfranchised, because no provision was made for their registration within the township of Iron River. It is made to appear, also, that there were electors residing within the said excepted territory. It is contended that Act No. 596 must be read in connection with and as supplementary to Act No. 577, and that, as so read, the earlier act must be found to be unconstitutional.
This contention has been for the most part already disposed of. There was territory in the township of Iron River at the time Act No. 596 was passed and given effect, both north and south of the north line of township 43 N., and by this act that territory north of the line and east of the west line of range 36 was organized into a separate voting precinct. The remainder of the territory in the township would necessarily be in election precinct No. 1. It is true that the act could have no effect, at the time of its passage, upon any territory, lying either north or south of said line, not a part of said township of Iron River. But on April 1st the inhabitants of Atkinson township became inhabitants of Iron River township, and were, of necessity, if outside of the boundaries of precinct No. 2, within the boundaries of election precinct No. 1. ' A study of the map shows that the electors of the township of Atkinson, as well as those of Iron River, living north of the north line of township 43 and west of the west line of •range 36, may have been put to some inconvenience in being required to vote in election" precinct No. 1, in the township of Iron River; this depending, however, in degree, upon where the polls were located. That the operation of either statute interfered with the exercise of political rights by any inhabitant of the township of Atkinson is not made to appear.
The writ must issue as prayed.
Carpenter, C. J., and McAlvay, Hooker, and Moore, JJ., concurred. | [
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] |
Montgomery, J.
The respondent was convicted of the offense of assault with intent to do great bodily harm less than the crime of murder. The case comes before us on exceptions before judgment.
The information charged an assault on James A. Penny in admittedly sufficient detail, and added, “with intent then and there to commit the crime of murder.” It was contended that under this information the respondent could properly be convicted of no greater offense than assault, for the reason that the information, in so far as it attempts to charge the intent to commit the aggravated offense, fails to aver willfulness or malice aforethought. The obj'ection is without force. The information followed the language of the statute, and this is sufficient. Rice v. People, 15 Mich. 9; People v. Taylor, 96 Mich. 576 (21 L. R. A. 287).
The circumstances of the assault as detailed by the people’s witnesses were as follows: On June 25, 1905, re spondent, in company with one Rosetta Tisman, called at the home of James A. Penny, in the city of Port Huron, about the hour of 6 o’clock in the evening. The claimed purpose of the visit of respondent to the home of Penny was to obtain possession of a watch which had been by respondent left with one John Pariso, son-in-law of Penny. Some months prior to the date in question Pariso had delivered possession of the watch to Penny, and at some time between the date Pariso obtained the watch and June 25th the watch had been broken and Penny had paid the bill for having the watch repaired, amounting to $1. At the time respondent let Pariso have this watch he obtained a loan on the same of 25 cents. When respondent made a demand for the watch upon James Penny, he (Penny) at first informed Wright that he had #1.25 against it, but later in the conversation Penny tendered the watch to the respondent without the repayment of any money whatsoever. Before any controversy arose between the respondent and Penny, Rosetta Tisman stated to Penny that the watch in controversy was one which belonged to her husband, and that Penny had no right thereto. To this Penny replied that, if the watch belonged to her husband, respondent had no right to pawn it. Rosetta Tisman then turned to respondent and said, “ Jim, did you hear him swearing at me ?” Penny denied having sworn at Rosetta Tisman, and stated that, if he had done so, he was sorry for it. At this respondent handed his overcoat and umbrella to Rosetta Tisman, and started toward James Penny. Penny then began backing up away from respondent, who followed him up. Rosetta Tisman then said: “Look out! He is drawing a knife.” At this respondent drew a gun out of his pocket and said: “You old son of a bitch, you would cut me, would you ?” When respondent started toward Penny, he was away a distance of from 10 to 12 feet. The revolver was fired off, inflicting a wound to Penny’s scalp.
Respondent testified that he saw Penny take out of his pocket a knife, open it, and attempt to strike him (respondent) with it. Penny testified that he had no knife in his hand at any time.
The circuit judge charged the jury as follows:
“ The respondent does not deny that he fired a revolver shot which struck James A. Penny, but admits that he did so, and claims that he did so in self-defense. He claims that James A. Penny assaulted him with a knife, and that he (the respondent) only took such defensive and aggressive measures towards James A. Penny that at the time and under the circumstances he considered necessary in order to protect himself from injury. If you find that James A. Penny did assault the respondent with a knife, and if you further find that the respondent, under all the circumstances of the case as they appeared to him at the time, honestly believed that he was in danger of his life or of great bodily harm, and honestly believing that it was necessary for him to do what the evidence shows he did do in order to save himself from such apparent or threatened danger, then you should find him not guilty of any of the charges here made against him. However, if James A. Penny did not assault the respondent with a knife, then the defense here made of self-defense fails; for it is not claimed that Mr. Penny did any other act to respondent which justified the use of the revolver as the respondent did use it, except to assault the respondent with a knife. Hence it becomes an important matter for you to determine whether or not James A. Penny assaulted the respondent with a knife on the occasion in question. In determining this question of self-defense, you should take into consideration the question of whether James A. Penny or the respondent was the aggressor, so far as an assault made by either on the other is concerned.
“ Mr. Cady: I think the court should instruct the jury that it was as it occurred to the defendant there.
“ The Court: I think I have covered it thoroughly.”
Error is assigned on that portion of the charge which in effect withdraws from the consideration of the jury the defense of self-defense in case the jury should find that Penny had no knife. The record shows that the respondent’s counsel contended to the jury that, even though Mr. Penny did not have a knife, if the circumstances were such that the respondent had reason to believe that he did have a knife, and that respondent was in fear of his life or great bodily harm, he was justified in using such force in self-defense as appeared necessary at the time.
The circuit judge certifies that he heard no such argument, and that counsel’s argument was not taken down-by the stenographer, and that that theory of defense was not presented to the circuit judge on the trial, by request to charge or otherwise. The certificate does not negative the fact that such argument was made to the jury. At the most it cannot be said that respondent waived any defense which the testimony left him open to make. The ■charge was erroneous in making the question of self-defense turn wholly upon the question of whether Penny had a knife. The rule that the respondent had the right to act upon the circumstances as they reasonably appeared to him was recognized in one portion of the charge, but this portion of the charge ignores this rule. See Hurd v. People, 25 Mich. 405; People v. Lilly, 38 Mich. 270.
We think the rulings admitting testimony as to the relations between Rosetta Tisman and respondent, and permitting inquiry into the past life of respondent, were within the discretion of the trial judge.
For the error pointed out, the conviction is set aside, and a new trial ordered.
McAlvay, Blair, Ostrander, and Hooker, JJ., concurred. | [
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] |
Cooley, J.
The respondent in this case was found guilty upon the following information:
Slate of Michigan, Gonnty of Musltegon. ss.
The circuit court for the county of Muskegon.
Nelson De Long, prosecuting attorney for the county of Muskegon aforesaid, for and in behalf of the People of the State of Michigan, comes into said court in the January term thereof, A. D. 1882, and gives it here to understand and be informed that Robert M. Donald, late of the city of Muskegon in the county of Muskegon and State of Michigan, heretofore, to wit, on the first day of November, in the year one thousand eight hundred and eighty-one, at the city of Muskegon in said Muskegon county, being then and there an agent and employee of the Muskegon Wood Package and Basket Company, a corporation organized and doing business at said city of Muskegon under the laws of the State of Michigan, and not then and there being an apprentice or other person under sixteen years of age, did by virtue of his said employment, then and there and while he was agent and employee as aforesaid, receive into his possession a large sum of money, to wit, the sum of fifteen hundred dollars ($1500), the property of the Muskegon Wood Package and Basket Company, and did then and there fraudulently and feloniously, embezzle and convert the same to his own use without the consent of his employers, and the said Robert M. Donald then and there feloniously, in the manner and form aforesaid, the said sum of fifteen hundred dollars did steal, take, and carry away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the ¡átate of Michigan.
Nelson De Long
Prosecuting Attorney for the County of Muskegon.”
The evidence tended to show the employment of the respondent as alleged; that he received by virtue of his employment a check for $98.93 which he feloniously converted June 8, 1881; a certificate of deposit for $100 which he converted June 21,1881, and a check for $132.62 which he converted some time between the first and the twentieth of September, 1881. These acts constituted the offence of which the jury found him guilty. The conversion in each •case consisted in making use of the check or certificate as money. When the case went to the jury counsel for the respondent requested instruction that there could be no conviction because the information contained no averment of value. This was refused.
The refusal was error. The offence charged is a statutory larceny. Comp. L. § 7580. As'in other cases of larceny the grade of the offence depends on the value of the property feloniously converted; if over $25 the case is one of felony'; if under $25 it is a misdemeanor only. The punishment is essentially different in the two cases; Comp. L. § 7569; and the misdemeanor may be tried in justice’s court; Comp. L. § 5525. For the purposes of a description of the offence in the information, bank notes, checks, bills of exchange and other securities for money may be treated and described as money; Comp. L. § 7811. But such securities are or may be of uncertain value ; there is no-legal presumption that their actual value corresponds to the sum which they nominally represent, or to any other sum whatsoever. It becomes just as necessary to allege value, therefore, when securities were the subject of the larceny, as in other cases. The fact of their being called money in the information can make no difference. They are not money in fact; they may not have had the value of money; and there is nothing in the absence of the allegation and proof of value which can determine the grade of the offence.
This defect was no doubt amendable; but unfortunately the evidence disclosed the fact that an amendment in this case could have been of no avail. On referring to the statute it is seen that this peculiar statutory offence is permitted to, be made out by evidence “ of any such embezzlement committed within six months next after the time stated in the indictment.” Comp. L. § 7811. There was no attempt whatever to prove an embezzlement after the time stated in the information; all the evidence given was of previous acts. The prosecution under the statute was therefore not. sustained; and as the evidence would not support the information as a common-law charge, the respondent was entitled to a discharge. It must be certified accordingly.
Marston and Campbell, JJ. concur. | [
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Marston, J.
The respondent was charged with obtain? 5ng the endorsement of Martin Kline to a promissory note Iby false pretenses, and upon trial had was convicted. The ■case comes here upon exceptions before judgment. Quite a number of errors are alleged :
First. The court refused to instruct the jury, that the proof offered by the People did not establish beyond a rea sonable doubt the guilt of tbe accused. The weight to be given the testimony, wherd conflicting, should be left to the jury. If at a subsequent time the trial court is of opinion that the verdict was not in accordance with the evidence introduced and that injustice has been done thereby, full power is possessed by the court to correct the error or mistake of the jury by granting a new trial. This Court cannot however review the evidence for a like purpose. It is only where there is a total want of evidence upon some essential point that this court can interpose, and then it is not to correct the mistaken judgment of a jury upon a question of fact, but the error of' law in the court’s not instructing the jury that the evidence would not authorize a conviction.
Second. That if Kline endorsed the note for an unlawful and immoral purpose, he was not within the protection of the statute, and the respondent should be acquitted. This objection as we understand it, under the facts in this case, means that if the money to be obtained from a negotiation of the note after its endorsement, was to be used by the respondent for an unlawful or immoral purpose, and such fact was known to the person before endorsing, there could be no conviction. This position is based upon the theory that the statute upon which this prosecution was founded, was in some way intended to protect the party deceived and defrauded but not to punish the party guilty thereof. When a crime has been committed the law seeks to punish the party guilty thereof. The injured individual has been wronged, and his object, motive or complicity therein may affect any remedy that he might have against the perpetrator thereof. In every crime there is in addition to this wrong done the individual, also a public wrong. This the State punishes, and except in certain trivial cases, the person injured has no control over and cannot prevent or interfere with the public prosecution by the State authorities. The penalty attached to the commission of the offense charged in the information is imposed upon public grounds, and the fact that the party deceived or defrauded may have supposed or known the money obtained on his endorsement would be used for immoral or unlawful purposes would nob-purge tbe guilt of the accused. Has offense was not lessened by the fact that he intended to put the money, when obtained, to a bad use.
Third. In permitting the prosecuting officer in his opening to state that he would show, and afterwards in introducing evidence tending to prove, that the respondent had obtained from Kline different sums of money prior to the-offense charged, by false pretenses similar* to those alleged in the information. *
The court distinctly ruled and held that the prosecution* could only prove the offense charged.
The general rule undoubtedly is that in criminal cases-evidence of another and distinct offense, though of the same-kind with - that charged, cannot be given in evidence, and yet in many cases exceptions to this rule are recognized and1 established. Where it is necessary to show a particular-intent in order to establish the offense charged, proof of previous acts of the same kind is admissible, for the purpose of' proving guilty knowledge or intent. In cases of uttering-forged instruments; receiving stolen property; passing-worthless bank bills. These and many other cases might be-referred to. See People v. Schweitzer 23 Mich. 301 (2d ed.) and note.
In this case the false pretense charged, was that the proceeds of the note were to be paid over to a particular person whose name did not appear in or upon the note, but who, it' was represented, would pay the same at maturity, and the-evidence of other acts was in obtaining from Kline other-sums to be paid to and which it was claimed had been paid to the same person — and who testified that no such moneys, coming from such source, had been paid to or received by him. This evidence therefore tended to show a purpose or sclieme on the part of the accused by which he could by making a false representation of a certain character obtain the money or endorsement of Kline. That from his success-in making similar false representations to Kline on previous-occasions, he had reason to believe the representation which* he was about to and did make in the present instance would mislead and deceive and enable him to obtain the endorsement. For this purpose I am of opinion the evidence was .admissible.
Foxvrth. That the pretences charged were not such as would impose upon persons of ordinary prudence. The statute does not attempt to define what shall or shall not be considered as falling within it. There are many cases where the alleged pretences consist of mere matter of judgment or ■opinion, although positive in form, where both parties have equal means of ascertaining the facts, and which have been held as not falling within the statute. This however is not' .a case of that character. A positive statement of fact was here made, and the surrounding and concurrent appearances gave color thereto, and the court could not, as matter of law, instruct the jury that, if true, still no offense was committed. The fact that other considerations also operated upon and ■assisted in inducing Kline to endorse the note, would not •excuse the respondent. Those considerations or inducements were well known to the respondent, and it undoubtedly was in the light thereof that he made his false representations. In other words, he had reason to believe, that because of •certain existing facts, and from his previous experience, the representations he was about to make would be sufficient to induce Kline to endorse the note.
Fifth. That the court erred in permitting the information to be amended by correcting the date and name of the payee of the note to correspond with the facts. It is not pretended that the amendment was not such an one as the statute expressly authorizes, but that the amendment was made by the assistant prosecuting attorney, when that officer, — the prosecuting attorney, — was not present. This objection we think has no force. In very many cases the prosecuting attorney cannot be personally present during the trial of criminal cases. "When such is the fact, the person who in his stead appears for the people, must, from necessity, have power, with the permission of the court, to make at least .such amendments as the statute expressly authorizes. Any other view would render it exceedingly dangerous to enter upon the trial of a criminal cause in the absence of that officer, and would leave the case in jeopardy should he during the trial be necessarily or unavoidably called away on account of important official business, sickness or otherwise.
As we discover no error in the record, the Recorder must be instructed to proceed to judgment.
The other Justices concurred. | [
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Makston, J.
The respondent was convicted of murder in the first degree. The case comes up on exceptions before sentence. The first exceptions discussed by counsel relate to the admissibility of certain dying declarations, and it is claimed that this evidence was not competent because not made under the solemn belief of impending death.
It is incumbent upon the prosecution, before offering what is claimed to have been dying declarations, to show that they were made under a sense of impending death. It is not necessary to show that the injured party so stated at or about the time, or that any person in his or her presence and hearing said that death must speedily ensue.
The fact may be proved, like any other fact in the case and in the light of the existing an'd surrounding circumstances. The question is from the character and nature of the injury, whether slight, severe* or necessarily mortal; from what was said, if anything, by the injured person, or by the physicians or attendants in her hearing; what evidently was the state of the injured person’s mind at the time the declarations were made. If the injured party had no hopes of recovery, and made the declarations under the impression that death was imminent, they are admissible, even though others may have thought differently and so expressed in her hearing, and even though death may not have ensued for some time thereafter. 1 Greenleafis Ev. § 158, and note.
In this case there certainly was evidence from which the court below, under the ruling made, must have been satisfied that the deceased was under the impression that death was impending; and the case would require to be a very strong one to justify this Court, who did not see the witnesses, in arriving at a different conclusion. In this connection we may also refer to the cn-or assigned upon the refusal of the court to instruct the jury that if they did not believe the testimony of Sarah Wiimot, the so-cahed declarations must be rejected.
Where facts and circumstances are testified to by several witnesses, no one witness can be singled out and the jury instructed what conclusion they must arrive at if they do not believe such witness to have testified truly. The real question is, has a particular fact been established, looking at all the testimony touching thereon, and the jury cannot be instructed to take the witnesses one by one and lay them one side or the other. It might be quite difficult to establish facts under the application of such a rule. The testimony of a single witness while standing alone may be highly improbable, and yet in the light of corroborating circumstances, the truthfulness thereof may become clear and convincing. Neither would the prosecution be confined to proving declarations made at one time, if made at more than one, and each otherwise competent, or to' proving what ■was said at one time, because at another the statement was reduced to writing and signed. To so hold would be to compel the prosecutor to act at his peril, as, were all testified to, the jury might believe one and reject the others ; and it would also put it in the power of the prosecuting officer to offer such as were unfavorable to the respondent, and suppress, or compel the defendant to offer, those more favorable to him. It must of course appear that each declaration was made m extremis, but each is admissible when shown to have been thus made.
Exceptions were taken to the testimony of Lizzie Short and Anthony Trollope as to declarations made by the deceased at the time and shortly after she received the injury.
Lizzie Short was walking with the deceased at the time she was shot. She testified that “ immediately after the shot was fired deceased exclaimed ‘ My Gfod, Simpson, you have shot me,’ and witness saw her turn slowly around and clasp the board next to_ the top one in the fence with her left hand; that witness turned immediately after the shooting, when she saw a short thick-set man dressed in dark clothes distant about forty feet running across the vacant lot.” Trollope testified “ that he lived a block distant from the corner in question on the opposite side of Leib street; that he was in the house when he heard the pistol-shot in question, and ran to the corner in question, whereupon he found a woman leaning against the fence; ” that he went over as quick as he could and said to this woman, “Who shot you, madam?” She said it was John Simpson.
No possible doubt can arise as to the admissibility of the declaration made to Lizzie Short or in her hearing, and it is very evident that the question asked by Trollope and answer thereto, were within a very few minutes after the shooting and while the injured person was still leaning upon the fence as testified to by both these witnesses.
Were these declarations contemporaneous with the shooting, and so connected with injury as to illustrate its character ? The declaration of a person wounded and bleeding, that the defendant had stabbed her, made immediately after the occurrence, though with such an interval of time as to allow her to go up stairs from her room to another room, was held admissible after her death as part of the res gestae. Com. v. M’Pike, 3 Cush. 181. The present case resembles very closely Lambert v. People, 20 Mich. 71, where parties-came up within three minutes after a robbery, and the complaint then made was held admissible as a part of the res gestes.
Seventy-nine exceptions were taken in this case. They relate mostly to rulings upon the admissibility of testimony. Most of them require little or no examination at our hands.
The respondent and deceased when living were husband and wife, and it was competent for the prosecution to -show that for a reasonable time previous to this occurrence they did not live peaceably together, and that respondent had threatened to shoot or kill the deceased; and we discover nothing in the form of the questions asked the witness, Ilenry Simpson, as to a statement previously made by him, or to the witness Welch, whether respondent could have at a certain time been in certain rooms she had passed through and she not see him.
The questions asked for the purposes of eliciting testimony tending to show the relations that had existed between the deceased and certain third parties of questionable reputation were properly excluded. There was no pretence that these parties were guilty of the offence, and although such facts, had they been on trial, might have been shown to establish a motive, in the present case they were inadmissible.
The testimony of the Sergeant of Police Berger, giving a conversation had with the accused after his arrest, was admissible. It does not appear that any undue influence was resorted to, in order to obtain evidence from the respondent on the contrary he was cautioned and warned to be careful, as his statements would be used against him.
The questions asked the witness Baxter as to the manner in which the deceased had treated the respondent within two years prec ding the shooting were properly excluded and for the reason given, viz., that witness had not seen them together in five years. And the questions asked Nicholson and Thomas as to the general disposition of the deceased being bitter and vindictive were properly ruled out. The object of such evidence is not apparent; it would not tend to show that respondent treated her kindly, or that he had not threatened her, or tend to show that he had no motive for injuring her. If such evidence would prove anything it would more likely establish the contrary. And such evidence would not be admissible as tending to affect her credibility for truth and veracity, and therefore likely to affect her declarations.
The questions asked as to the clothing worn by the respondent at the time of the coroner’s inquest would have no> tendency to prove that he was not the man who committed the offence, because not dressed as the witnesses testified the party was who fired the shot. No offer was made to show that he did not have opportunity to and did not change his clothing before the inquest was held, and bearing in mind the fact that parties about to commit a felony frequently disguise themselves for the very purpose, but little reliance could be placed upon such evidence standing alone.
The other exceptions worthy of consideration relate to the charge and refusals to charge. The court declined to give any of the requests separately, but incorporated such ef them as were deemed proper in a connected form in his charge. We have carefully compared the requests made with the charge given, and find every request fairly included therein, except such parts of the eighth as asked for an acquittal in case the jury have doubts as to the testimony of certain witnesses. The eighth and ninth requests are somewhat peculiar in form and ambiguous, and the court clearly and distinctly charged that in case of reasonable doubt it was their duty to acquit; and that all the testimony must be carefully considered, reconciled if possible and weighed.
It would serve no useful purpose to here copy the requests and parts of the charge covering the same, inasmuch as we find such to be the fact, and this leaves no question of law. open for discussion concerning the same.
The offence charged and of which the respondent has been found guilty, in view of the punishment attached thereto, is most serious, and we have in consequence thereof carefully examined the record and exceptions taken, to see if any error had been committed to the respondent’s prejudice, but have discovered none, and it must be certified accordingly, and that the case proceed to judgment.
Cooley and Campbell JJ. concurred. | [
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Cooley, J.
The legal questions raised by the record in this case are of no general importance, and could not be understood without a full statement of the facts as they were developed on the trial, and of the opposing theories of the parties in respect to them. Their discussion would, therefore, be without value. We have been unable to discover any ruling or any instruction by the trial judge which appears to us clearly erroneous, or any failure to submit the ease fairly to the jury.
The judgment must therefore be affirmed with costs.
Campbell and Marston, JJ. concurred. | [
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] |
Campbell, J.
Plaintiffs sued Hotchkiss (and a special partner as to whom there was afterwards a discontinuance) ior an alleged balance due for handling certain logs which had been cut and skidded by one Wilder under a special •contract, which he did not further complete. The controversy was whether plaintiffs were entitled to pay according to a contract for similar work which provided larger compensation than the Wilder contract, or whether they were bound as to these particular logs to be governed by that. In the circuit court they recovered on the larger basis.
It appears that in November, 1879, Wilder made an agreement with Hotchkiss & Co. (defendant being the only general partner) to cut, deliver and run all logs from four lots of land named, for the sum of $3.10 per thousand, of which price $1.25 was to be paid as fast as logs were skidded, 75 cents when hauled to the stream, and the balance when the logs were driven into the boom limits in the Au Gres river. In November, 1880, an amount of logs, being 509,122 feet cut by Wilder, remained on the skids. On November 13, 1880, an agreement was made between plaintiffs, Hotchkiss & Co., and Wilder, whereby — as therein somewhat awkwardly expressed — plaintiffs agreed to buy of Wilder these logs which are mentioned as belonging to Hotchkiss & Co., paying therefor $1.25 a thousand, — “ the intention being that Carney & Bogue shall finish the lumbering job commenced by L. F. Wilder aforesaid; and that •Carney & Bogue pay the said Wilder the value of the skidding of the logs. Carney & Bogue agree to first pay L. L. Hotchkiss & Co. the amount due them by L. F. Wilder,' and when the amount of balance due L. F. Wilder shall be ascertained, they will give the said Wilder their note at three months for the same,”
This agreement was only to be binding in case a lumbering contract should be made for 1880-1881 between Hotchkiss & Co. and plaintiffs. Such a contract was made two days thereafter, which provided for cutting all the timber from a large amount of lands, in lengths and manner specified, and for skidding, drawing, marking, delivering in the river and running to the boom limits all the logs which they should so cut. For this they were to be paid $4.00 per thousand, divided as follows : $1.50 as fast as skidded, $2.00 as fast as hauled and banked, and the balance of 50 cents on completion of final delivery. At the close of the contract is this sentence: “ It is understood that there are no verbal .agreements which apply hereto.”
In January, 1881, the amounts due Wilder and Hotchkiss & Co. respectively under the first contract were settled and a note given to Wilder for the balance. The matter in difference in the present litigation is the difference in price for handling the Wilder logs between what was to have been paid under the Wilder contract, and what would be due if the price is governed by the last contract. The former price has been settled for.
The pleadings were the common counts, and the general issue with notice of set-off.
When plaintiffs opened their case they proved the two November contracts of 1880, the settlement with Wilder and the delivery of the skidded logs at their proper destination. Here they rested.
Defendant introduced testimony of the value of hauling the logs from the skids to the river, and showed the Wilder contract and the state of accounts under it, and proved a considerable amount of roads and facilities prepared by Wilder, of which plaintiffs obtained the benefit. Wilder testified to his negotiations with plaintiffs for the surrender of his contract, and informing them of the price of the work.
Defendant also introduced evidence of an order drawn on him as “ general partner ” by plaintiffs to the order of Seligman & Rossman for $170 on their account, which was accepted conditionally, and the conditions performed; and that this order was still held by the payees. This was ruled out apparently on the ground that it was not drawn on the partnership. But it was addressed to “L. L. Hotchkiss, General Partner,” and accepted in the firm name. Such an address indicated clearly that it was a firm and not a separate transaction, and we think it should not have been ruled out. The payees saw fit to take a qualified acceptance and made no objection or resort to the plaintiffs, and the acceptance was sufficient.
The plaintiffs were allowed in rebuttal to show conversations prior to the making of their contract of November loth, which plaintiffs inferred meant to include the "Wilder logs under the terms of the large contract. Hotchkiss denied any such understanding. There was more or less testimony bearing on the probabilities.
The charge of the court left the recovery to be had under the alleged verbal contract that the skidded logs should be delivered under the contract of November 15, 1880, if any such was made, and held that the provision against verbal arrangements, although made before the execution of this contract, did not stand in the way.
"Without attempting to determine how far in the absence of written contracts there was proof of any definite arrangement, we do not think the case was open to any such inquiry. The plaintiffs had rested their case upon their rights under the written agreements, and it would be irregular to make a new case in rebuttal. But aside from this mere matter of practice we think the written contract left no room for parol evidence. The contract ol; November 13th was_ made expressly dependent on the making of a further contract, and it covered by its terms the whole "Wilder contract and provided that plaintiffs should carry it out. This unless changed would have required them to do the whole work at the same price. But the contract of the 15th made a change so far as future cutting of lumber was concerned and as to that raised the price. But it did not purport to change the price as to the lumber already skidded. It cannot be supposed this was accidental, and the parties took more than usual pains to exclude any parol evidence which should change the last contract. We need not speculate on the reasons, but there is enough in the case to indicate that in all probability the plaintiffs got some advantage by not having to pay more than $1.25 per thousand to secure all of Wilder’s rights, which seem to have been more valuable, and which by the agreement of November 13 were kept alive. But however this may be the contracts are not ambiguous, and cover the case.
Judgment must be reversed with costs and new trial.
Cooley and Marston, JJ. concurred. | [
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Cooley, J.
To the bill in this case the- defendants demurred generally. The court overruled the demurrer, and gave the defendants leave to answer within ten days. They did not answer, and after the ten days had expired^ appealed to this court.
Held, that the order or decree overruling the demurrer was not a final decree, and therefore not appealable under the statute. Whether the defendants did- or did not exercise their right to answer is immaterial on this question. Overruling the demurrer gave no relief to complainant, and decided nothing but the sufficiency of the pleading.
Appeal dismissed.* | [
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Cooley, J.
Ejectment. On March 30, 1868, Ann and Charles Ewing conveyed to James and Charles Richardson lands situated in the county of St. Joseph described in the deed as “ the cast half of the northwest quarter and the east half of the southwest fractional quarter, all in section 36 in-, township J south, of range 11 west, containing one hundred acres.” The first of these parcels was an eighty-acre lot in' regular and customary form; the second was made fractional by a small lake which formed its southern boundary, the shore of which appears to have been variable, but at that time ran in a southeasterly and northwesterly direction.. This parcel contained not quite twenty acres. The United1 States survey was not put in evidence to show either the-lines or the quantity.
May 20, 1872, James Richardson conveyed to Charles Richardson his interest in “the west half of the east half of the northwest quarter and the west half of the southwest-fractional quarter” of said section thirty-six; “containing fifty acres of land, being the west half of one hundred aeresof land,” deeded as aforesaid. On the same day Charles-Richardson conveyed to James Richardson his interest in. the east half of the same lands, describing it as containing fifty acres. James Richardson conveyed by the same-description to Robert Mandigo, October 5,1872, and Robert Mandigo conveyed to Robinson Pashby, January 30, 1875-This last conveyance was made to secure the payment of an indebtedness, and Pashby afterwards proceeded in chancery for a foreclosure, making the plaintiffs in this suit parties-as subsequent incumbrancers. He obtained decree June 15, 1878, under which the lands were sold and bid in by himself.
After this sale had been made a controversy sprung up-respecting the dividing line between the east and west halves of the lands described in the Ewing deed. If that line were run equidistant between the east and west boundary lines of the tract, the east parcel would contain-five acres and upwards more than the other. It was agreed by all parties that the north parcel must be so divided as to-make two 40-acre lots in regular form; and Pashby contended that the same line which divided the north parcel should be extended through the south parcel also. Those-interested in the west half on the other hand insisted that the south parcel should be divided by a north and south-line giving equal quantities on either side of it. Acting, upon this claim the plaintiffs in this suit took from Charles- Richardson a deed of the land on the south parcel lying ¡between the line dividing that parcel through the center, .and the line which would make of the parcel two equal portions, and brought ejectment for it. A diagram of the parcel, showing the land in dispute, is given in the margin.' 'The principal value of the land in controversy consists in a ¡building known as the Lake View House, which was built ■by Mandigo as a summer resort before he conveyed to Pashby.
From this statement of facts it will be seen that the controversy involves the proper construction of the deeds executed by Charles and James Richardson for the purpose of partitioning the lands between them. If by those deeds the two parcels of land were to be divided by a line running through them north and south, equidistant from the east and west sides, then defendants would seem to be entitled
to judgment; but if the purpose was to divide the land into-parcels equal in quantity, the result should be different.No doubt the word “half” when used in describing lands should be understood literally when nothing appears to the contrary. Au Gres Boom Co. v. Whitney 26 Mich. 42; Dart v. Barbour 32 Mich. 267. But there can be no universal rule that the word shall be so interpreted, for it is-often used in conveyances when the context indicates a sense quite different. Two parts of a farm separated by a-river or a highway may be called the two halves without much regard to their relative quantity; and in surveys the-word “ half ” is often used quite as loosely, but without the-least confusion. In all such cases the word must be taken in the sense intended if that is evident, and if not, the-accompanying circumstances and the subsequent acts of the-parties may perhaps direct us to the true meaning.
In this case both parties put in evidence to show a practical construction of the Bichardson deeds by the parties-concerned; but this is so conflicting as to be of little value. The most important fact in the case is the building of the-Lake Yiew House by Mandigo on land which, according to-plaintiffs’ construction of the deeds, he did not own; but the value of this is greatly weakened, if not destroyed, by' evidence that Mandigo at the time did not understand that he owned the land, but expected to purchase it afterwards..
The foreclosure suit, however, furnishes evidence of a. practical construction which we think it impossible for plaintiffs to overcome. It has been stated already that plaintiffs were defendants in that suit. Pashby had been in-possession under his deed, and the defendants in the foreclosure made it a part of their defence that he should account for the rents and profits. They went into evidence to show what the fair value of the rents and profits was: and for this purpose the Lake Yiew House was taken and deemed to be a part of the mortgaged property. The adjudication was made upon that assumption; and we must therefore suppose that when the land was sold under the-foreclosure decree, it was purchased by Pashby on the- understanding, which had accompanied the proceedings throughout, that the Lake Yiew House was included. These plaintiffs therefore had the benefit in the foreclosure suit of the construction of the Richardson deeds which Pasliby now relies upon, and they are not at liberty to contend now that dlie basis upon which the adjudication in the foreclosure .suit proceeded was erroneous.
This was the view taken by the circuit judge, and the judgment must be affirmed with costs.
The other Justices concurred.
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] |
Campbell, J.
As the question raised by this certiorari can be raised by certiorari or appeal after the inquest, the more convenient practice in most cases is to postpone the-granting of appellate process in such matters as the present, where there is likely to be danger of protracted delays, until the final action below; and while the writ is not beyond the power of the court, it is not deemed wise to retain it. This-is not, therefore, a proper occasion to consider the asserted rights of the company to assume possession in case of a. favorable verdict by a jury and an appeal from its confirmation. Adequate means can usually be found to prevent unlawful invasions of possession ; and we do not think the-retention of tire present writ will probably be necessary to-protect the interests of the land-owner in case they should be unlawfully jeoparded. We are not to be understood as determining any tiling more now than the general impolicy of issuing writs of certiorari in the earlier stages of railroad. inquests, and the present case does not differ from many others in regard to the matters in dispute, on which our opinion will be reserved. The writ will therefore be dismissed as improvidently granted, but with'out prejudice to future proceedings.
Oooley, J. and Graves, C. J. concurred. | [
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] |
Graves, C. J.
Crawford sued out an attachment against George L. Hart, and Newton, acting as sheriff, levied it on certain personal property. Peter C. Hart, the debtor’s father, claimed the property as his own and brought replevin for it and recovered. He based his title on a purchase from his son in payment of a debt due him from the latter.
The subject of controversy on the trial was the question of good faith in the alleged transfer, it being urged by the attaching creditor and the sheriff that the transaction set up as a change of title was colorable and fraudulent against creditors. The business was arranged and executed with the assistance of a neighboring justice, and he was made a witness and examined at much length. In the course of his examination Hart’s counsel asked him if on that occasion there was any suggestion by the Harts that they were seeking to avoid creditors or anything of that kind, and the defendants objected that the question was leading and incompetent. The reason first given was not correct, and no other was mentioned to disclose the nature of the alleged incompetency. This is 'a sufficient answer to the point. Put we have no doubt that the inquiry was wholly unobjec tionable. The manifest purpose was to ascertain whether any design was expressed to defraud or delay creditors, and this related to the very heart of the issue. The terms of the question were plain enough. No, complaint was made against the answer. The attachment debtor being sworn the circuit judge allowed the plaintiffs’ counsel to ask him whether in making the transfer any portion of his object was to delay, hinder or defraud creditors. This was competent. Watkins v. Wallace 19 Mich. 57.
Certain portions of the charge aré separated from the context and objected to as conveying a wrong view of the character and measure of the evidence requisite to establish the fraud. The argument is that the instructions called for a degree of proof which was unreasonably rigid. No doubt this criticism would be warranted if the parts of the charge referred to were not qualified by other expressions. But they are so qualified, and the whole must be taken together, ■ and the jury must be deemed to have had sufficient intelligence to understand the significance and application of the •several propositions. They were told that “if the facts and circumstances satisfied them that there was fraud, they would of course find that it existed — that if the parties intended a fraud and if they meant to beat George’s creditors it would be natural for them to cover .their tracks in the best manner possible; ” and again, that “ if it was believed that the transfer was not an honest one, given and received for a fair, honest consideration and for an honest purpose, but was intended by the parties thereto to put George’s property in his father’s name and thus hindering, defrauding and defeating his creditors in the collection of their •debts, then the transfer is fraudulent and the verdict should be for defendants.”
¥e must assume that all the instructions were respected by the jury, these as well as the others, and if such was the case the defendants have no valid ground of complaint, and the judgment should be affirmed with- costs.
The other Justices concurred. | [
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] |
Cooley, J".
This suit is upon a note given by defendant Smith to Fletcher Benedict and by him endorsed to the plaintiff. The plea of Smith is the general issue, with special plea of discharge in bankruptcy. Special pleas are not allowed in this State: Comp. L. § 5794; but where one ■is put in it is customary to allow it to stand as a notice of ■defence ; and there can be no valid objection to that course. ■Special pleas were abolished to avoid technicality and prolixity, but notices containing the substance of special pleas are required where such pleas were formerly essential, and if the one is put in where the other should have been, the difference, being in matter of form only, may be disregarded, and the general purpose the statute had in view will be advanced by that course.
In support of the special plea or notice Smith introduced the records of the bankruptcy court, and they showed a full discharge granted October 22,1879. But it appeared from the files that the name of Fletcher Benedict did not appear as a creditor anywhere in the proceedings, although he then held this note; and he was not shown to have been served with any notice as was required by the bankrupt law. On this showing the plaintiff claimed that the discharge in bankruptcy was void as to Fletcher Benedict for the reason that the bankruptcy court never'obtained jurisdiction of his person.
If bankruptcy proceedings were strictly proceedings in personam this view would be unanswerable; but this is not the case. Jurisdiction over the estate empowers the court .to make decree, and the decree is conclusive upon claims unless attacked for fraud in the bankrupt court itself. R. S. of U. S. (1878), § 5120. It cannot be attacked collaterally in other courts.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
This case comes here on error assigned on the record, no bill of exceptions having been settled. It isnrged here that the declaration would not sustain the judgment, as counts in assumpsit and counts in tort were joined in the same declaration and that such a joinder was fatal, and that upon this declaration a general verdict \was rendered.
There was no such joinder; each and every count was in assumpsit, in some of which matters by way of aggravation were set forth. This does not change the form of the count from assumpsit to tort. The other objections we cannot consider on this record.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Graves, C. J.
It was decided by the probate court that an instrument made by the intestate in 1862 was his last will and testament, and the contestants appealed from this decision and the proceedings had on the trial in the appellate court are now before us for review. No question arises on tlie formalities of the instrument exhibited for probate. The position taken against it is that the decedent a few months before his death, which occurred in December, 1879, made another and later will which cannot now be found, but which contained an express revocation of the earlier will. The real issue was therefore whether there had been such second will.
The chief evidence for contestants on this issue was the deposition of Mr. Wood, who swore to the drawing and execution of such second will and to the surrounding circumstances and to the fact that it contained a clause of revocation.
The counsel for proponents raised several objections to parol evidence of the contents of this document, because it was not the best evidence; which amounted to an assumption that the will itself, whose existence they denied, was to be deemed producible for the purpose of showing what it contained. These objections were all improper because it was a part of the proponents’ case that no such will had ever existed and of course could not be produced. They served, in connection with the rulings made upon them, to perplex the investigation and swell the record with improper matter. No fatal consequences seem to have followed, because the facts were at last got before the jury. It is entirely plain that the event of the contest depended on the evidence of Wood. If that was believed it would follow that there was a second will which expressly revoked the instrument offered for probate. If it was not believed, there was nothing to hinder the last-named paper from being established as the final instrument.
By a special finding the jury determined against Wood’s testimony and found that it was not true that a second will was made.
Many points in the case which otherwise would be sifbjeet to grave criticism are either not excepted to, or are rendered practically immaterial by this finding; and unless some substantial error was committed in rejecting or admitting evidence bearing on the subject, or in charging or' refusing to charge in relation thereto, the result ought not to be disturbed ; because we are not satisfied that any other rulings are (shown which the contestants are in a situation on this record to insist on, and in regard to the charges and refusals bearing on this finding we are inclined to think that none are pointed out by exceptions which amount to prejudicial error. The case is, however, different in respect to the rulings on the evidence. We have seen how much depended ou Wood’s credit, and wo have also seen that the jury, acting on the case given to them, rejected his statement.
The contestants offered to show certain declarations of decedent made shortly before his death indicating that his mind had undergone a change in regard to the disposal of his property since the first will, and that he had in fact altered the disposition. This evidence if admitted would not have been weighty, but it would have tended to corroborate Wood, and for that purpose it was admissible. But the court on objection excluded it. This is not all, however. Evidence was subsequently offered by proponents of the same nature, but tending against the correctness of Wood’s testimony, and notwithstanding the former ruling the court set aside contestants’ objection and admitted it. Those rulings cannot be reconciled, and they were prejudicial to contestants.
The case must be reversed with costs and a new trial granted.
Campbell J. and Cooley J. concurred. | [
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Cooley, J.
Replevin for a quantity of wheat. The following facts were developed on the trial:
The fi.m of Hibbard & Graff, composed of Wellington Hibbard and Peter Graff, Jr., were merchant millers in Grand Rapids, owning and operating two mills, known respectively as the Orescent and the Yalley City. With each mill was an elevator in which they stored wheat for their own pur poses, and also received and stored for fanners and others. Plaintiff, from time to time, from March, 1878, to March, 1880, delivered to them wheat which they received into their elevators. The manner of doing the business was as follows: The wheat was drawn from the plaintiff’s farm in wagons, discharged into the weighing hopper and elevated into the mills, where it was deposited in bins with other wheat of like kind and quality. A slip or ticket specifying the -weight of the load was delivered to the driver or the team, and when a sufficient number of these were gotten together the plaintiff surrendered them to the firm, and] received in lieu a receipt on a printed blank. The receipts taken were all of the same form, and the following is a copy of one of them: ,
“Wo. 96. 820 bus. Crescent Mills.
Grand Rapids, Micii., March 26, 1878.
Received of "William B. Ledyard by L. Byrne 820 bushels number! One wheat at owner’s risk from elements, at 10 cents less Detroit quotations-for same grade when sold to us.
Stored for--days.
IIibbard & Graff.”
The wheat was all stored with plaintiff’s knowledge in bins, from which the firm drew from day to day for the purposes of their business and manufacture. The quantity in the bins changed from day to day as it was depleted by drafts and replenished by new deposits. No storage was ever charged, and the dealings bet|«in the parties remained entirely, unsettled and open until tire failure of Iiibb'ard & Graff in Marin, 1880. Plaintiff, according to his evidence, then demanded liis wheat, and failing to obtain it brought this suit. The defendants undertook to show that he demanded not the wheat but the price of it; but on this point the verdict of the jury was against them.
Upon the facts the question of law is presented whether the receipts which the plaintiff took from the firm evidenced a sale or a bailment. If the wheat was sold to Hibbard & Graff when it was delivered to them, it was not pretended that this action would lie; but the plaintiff contended that the delivery of the wheat constituted a bail ment, and. tliat it was at his option afterwards to talcé the value at ten cents less than Detroit quotations, or to receive back the wheat or an equal quantity of the same kind and quality. Storage in the elevators with other wheat, it was claimed, only makes the plaintiff owner in common with others, and he had a right to reclaim his own at any time, , so long as the requisite quantity remained. The defendants ! on the other hand contended that the case differed radically from the ordinary case of the storage of grain in elevators. The wheat deposited in this case became part of a common stock with the wheat of the millers themselves, and was in their hands for consumption in their discretion; the millers might use and consume as their own the whole;-it was not delivered to them for the primary purpose of storage simplioiler, but in addition to the bailment it was with the understanding that it might be and would be put into the current conisumable stock. And the general proposition is asserted that where grain is deposited with any person with the understanding that he may use it on his own account, and when the depositor desires to sell, that the other will pay the highest price, or return a like quantity or quality, the transaction, if not an immediate sale, is a sale at the option of the receiver. Nelson v. Brown 44 Iowa 455; Sexton v. Graham 53 Iowa 181; Nelson v. Brown 53 Iowa 555.
It was agreed on both sides that the “ owner” mentioned in the receipt must be understood to be the depositor — the plaintiff. As by the receipt the grain was declared to be at his risk, for the time being, it must have continued to be at his risk until some act was afterwards done by one party or the other to convert what at first was manifestly a bailment into a sale. The plaintiff could not be creditor for the purchase price so long as he remained owner, and the receiptors could not be debtors for the purchase price so long as the risks of accidental destruction remained upon the depositor. The depositor would convert the bailment into a sale by notifying the receiptors of-t his election to receive the price fixed according to the terms of the contract; and the receiptors, it is claimed, would convert it into a sale by con suming the wheat in the regular course of their business, as the parties must have understood it was likely they would do.
The question now made could not have arisen if the ware-housemen had not been millers as well. But unless the local usage, or the course of dealings between the parties referred to further on, shall be found to affect the case, the fact that the receiptors for the wheat transacted business in the two capacities of warehousemen and millers, would not be of importance, and certainly could not affect the construction of their business contracts. If as warehousemen they gave warehouse receipts for grain received in store, the receipts must be construed by their terms and by commercial usage; in commercial circles they would be understood to represent the title to the quantity of grain specified ; and though the quantity in store might fluctuate from dáy to day as grain would be received and delivered out, this would not affect the title of' the holder of receipts, who would be at liberty to demand and receive his proper quantity at any time, if so much remained in store. But if the quantity in store is reduced by consumption instead of by shipment or sale, it is not apparent that the rights of the holder of the receipts should be any different. It is true if the wheat is all consumed, and the amoimt in store is not kept good so that a demand fdr the wheat can be responded to, and if the consumption is by. consent of the owner, express or implied, the consumption under such circumstances may be justly regarded as a meeting of the minds of the parties upon a sale; but so long as grain is kept in store from which the receipts may be met, the fair presumption is that it is intended they shall be so met; and this presumption would only be overcome by some act unequivocal in its nature.
The circuit judge instructed the jury that in the absence of any election by the plaintiff to take the price, the bailment continued so long as any portion of the wheat deposited by the plaintiff remained in store, and he was entitled to take the quantity specified in his receipts from any that remained in store with which his own wheat had been mingled. The judge may perhaps have erred in attaching importance to the question whether any portion of the identical grain deposited by the plaintiff remained in store, but if so the error favored the defendants and they cannot complain of it.
There are other questions, however, arising upon an offer of defendants to show a local usage, in the light of which they claim the receipts are to be construed; and also a course of dealing between the parties which it is supposed will bear upon the construction. The evidence upon these subjects was received by the circuit judge provisionally, but afterwards stricken out.
The evidence as to the dealings between the parties was not very conclusive in its tendency. Mr. Hibbard testified, that he had received wheat from the plaintiff in the same way ever since 1874, and that always -when the plaintiff got ready to sell, he called for his pay and received it. Every bailment thus became a sale. His testimony tended to show, also, that Hibbard & .Graff were never storers of grain except for the purposes of manufacture. The plaintiff himself testified that he never sold to Hibbard & Graff but twice; the last time being in 1877. But if the receipts which are in evidence imply, as we think they do, an option in the holder to name his time and take the price, or instead thereof to demand the wheat, it cannot be important that under two or many similar receipts the plaintiff had on previous occasions elected to sell. If he found millers here with storage facilities, aud stored his grain with them under contracts which reserved to him an option, the reservation of the option implied that he might on different occasions exercise it differently. An option is reserved to give that liberty; and however often the choice may be exercised the same way, the liberty will still remain while the same contract continues to be entered into. Choosing alike many times can imply no promise or understanding that the sa:ne choice shall be made always.
The evidence of local usage was altogether insufficient to establish a custom. It was testified that the millers of Grand Bapids were accustomed to receive wheat in their mills from farmers and others, and that the depositors called when they pleased and took the market price. But there was no evidence of any general usage in Grand Bapids for the millers to receive wheat in store and issue for it receipts like those issued by Hibbard & Graff and which are in question here. The evidence on the other hand rather tended to show that these receipts were in some respects peculiar, and especially in the clause which provided that the wheat should' be at the owner’s risk. Usage can never change the written stipulations of parties, though it may aid in the explanation of their terms, and perhaps add incidents in respect to which they are silent: Eager v. Atlas Ins. Co. 14 Pick. 141; Pavey v. Burch 3 Mo. 447; Farrar v. Stackpole 6 Me. 154; Randall v. Smith 63 Me. 105; s. c. 18 Am. Rep. 200; Boorman v. Jenkins 12 Wend. 566; Dawson v. Kittle 4 Hill 107; Erwin v. Clark 13 Mich. 10; N. Y. Iron Mine v. Citizens’ Bank 44 Mich. 345; and the requirement that it shall be certain, definite, uniform and notorious is imperative. Kendall v. Russell 5 Dana 501; Parrott v. Thacher 6 Pick. 426; Thwing v. Great Western Ins. Co. 111 Mass. 109. ‘£ Doubt must be wholly eliminated from the evidence adduced, or the usage is not well proved.” Adams v. Pittsburg Ins. Co. 76 Penn. St. 411, 414. This general principle is illustrated by numerous cases among which are Whitney v. Ocean Ins. Co. 14 La. 485 : s. c. 33 Am. Dec. 598; Patton v. Magrath Dudley 159: s. c. 31 Am. Dec. 552; Touro v. Cassin 1 Nott & MeC. 173 : S. C. 9 Am. Dec. 680; Walls v. Bailey 49 N. Y. 464; Harris v. Tumbridge 83 N. Y. 92; Isham v. Fox 7 Ohio St. 321; Harper v. Pound 10 Ind. 32; Lamb v. Klaus 30 Wis. 94; Hinton v. Coleman 45 Wis. 165; Kilgore v. Bulkley 14 Conn. 390; Bissell v. Ryan 23 Ill. 566; Leggat v. Sands Ale Co. 60 Ill. 158; Walsh v. Mississippi &c. Co. 52 Mo. 434; Ober v. Carson 62 Mo. 209; Smith v. Gibbs 44 N. H. 335; McMasters v. Railroad Co. 69 Penn. St. 374; Potts v. Aechternmacht 93 Penn. St. 138.
The jury gave their verdict for the plaintiff under instructions which were unexceptionable, and the judgment in his favor must be affirmed with costs.
Campbell and Marston, JJ. concurred. | [
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] |
Cooley, J.
The merits of this suit involve the title to & farm in the county of Genesee which is claimed by the parties respectively. When the suit was instituted complainant was in possession, and defendant was prosecuting a suit in ejectment to recover it. The bill in this case seeks a perpetual injunction against the suit at law, and a decree-quieting complainant’s title as against defendant’s claim.
Both parties claim under Enoch N. Chambers, who died seized of the lands in September, 1860, leaving a will of which the important provision is the following:
“ I give and bequeath to my wife, Mary E. Chambers, all my real estate, land, tenements, etc., together with all my chattels, personal moneys, credits, etc., that shall remain after discharging my legal debts; to have and hold the same-in sole possession, and to enjoy the sole use and benefit thereof, during the term of her natural life: provided, that if any heir or heirs of my body shall hereafter be born to her, such heir or heirs shall receive out of such property above named, or out of the proceeds or annual income thereof, all needful and proper support, maintenance and education, during the minority of such heir or heirs, and until it or they shall have attained unto legal age. I do-hereby further direct that, in case of the birth and arrival at legal age of any such heir or heirs above named, such of the above-described property, or of the proceeds thereof, as shall remain at that time unexpended, shall be then divided and given, the one-half thereof to such heir or heirs, and one-half thereof to its (their) mother, the said Mary E. Chambers: provided that if the said Mary E. Chambers shall be at that time deceased, then no division of said property shall be made, but the whole thereof shall be given into» and remain in the possession of such heir or heirs. And I do hereby further direct, that for the more .efficient execution of the above provisions, and for the purpose of securing a larger income unto and a better support for the said Mary E. Chambers, and the said heir or heirs (if any), that the above-described property, real and personal, shall be exchanged by the administrator of this instrument for money or for interest-bearing securities, bonds, mortgages, etc., at such times and in such manner as shall be in their discretion desirable.” The will was duly probated.
The testator left no child surviving him, but a posthumous son was born in December, 1860, to whom the name of Enoch A. Chambers was given. This son died April 3, 1862. Mrs. Chambers survived both husband and son, and died September 29, 1863, leaving a will which was duly probated, whereby she devised the land in question to her sister Ann McAllister. McAllister • went into possession under the devise, and in December, 1865, sold and conveyed the land to Allen B. Jones, who in turn sold and conveyed to complainant in June, 1872. This constitutes complainant’s title, which he avers in the bill to be a title in fee-simple under the will of Enoch N. Chambers.
When Enoch N. Chambers deceased, several brothers and sisters and children of deceased brothers and sisters survived him. Defendant is one of the brothers, and he has obtained from the other brothers and sisters, and from the heirs of those deceased, a conveyance of such rights as they may have in the land in controversy. His claim is that by the Statute of Descents the inheritance passed on the death of Enoch N. Chambers to the brothers and sisters, subject to the devise of a life estate to the widow, and to the further and contingent devise which was to take effect on a child arriving at legal age, and which was defeated by the death of Mrs. Chambers and the child. This constitutes the title of defendant upon which he relied in his action of ejectment.
Besides relying upon his supposed legal title, complainant sets up as against defendant matter of estoppel m pais. He avers that before Jones purchased of McAllistei he went to defendant and inquired of him if he had any claim or interest in the land, or if any one other than McAllister had any interest, claim or title; saying to him that he desired to know before accepting a deed or making any payment ; and that defendant expressly and distinctly assured him that he had no interest in or claim or right in or to the land, and that he said to Jones in substance “we make no claim to the land; go on and buy it and pay for it: wo have found out we cannot hold it.” He further avers that in reliance upon these representations Jones made his purchase and paid the price.
The prayer of the bill is that defendant be perpetually restrained and enjoined from setting up any claim to said land, and from assorting title to or claiming possession thereof, and from further prosecuting the suit in ejectment.
If complainant is right in claiming the legal title under the wills of Enoch N. and Mary E. Chambers, it is very apparent that he has no standing in a court of equity. His defence at law in that case would be perfect, and there is-no justification for causing the trouble and expense of two-suits when one would be adequate for all the purposes of justice. The proper tribunal for the trial of titles to land is the common-law court; and the equitable jurisdiction is to be invoked only when the common law is inadequate to give full relief. Bennett v. Nichols 12 Mich. 22; Teft v. Stewart 31 Mich. 367; Mears v. Howarth 34 Mich. 19; Bay City Bridge Co. v. Van Etten 36 Mich. 310. If the suit at law involves but a portion of the controversy; Eaton v. Trowbridge 38 Mich. 454; or if after its determination there may remain an apparent title of record clouding the-legal title (Flint & Pere Mcwquette R. Co. v. Gordon 41 Mich. 420) there may be just occasion for invoking the aid of equity ; but these are exceptional cases, and the circumstances which make them so do not exist here.
In this aspect of the case the facts supposed to constitute an equitable estoppel become of no importance. If complainant has the legal title, it is made no better by acts of defendant which ought in equity to preclude his questioning it. When the legal title alone is in question it needs no support from equities ; it stands impregnable in its own strength and is presumed to embrace all equities. Proof of equities becomes important when the legal title is defective, or when it is proposed'to assail it.
It is suggested, however, that if complainant shall prove to be in error in claiming the strict legal title, the claim of that title should not preclude his setting up and relying upon the equitable estoppel. To this suggestion it is answered that estoppel in pais cannot be admitted to overthrow a title to land. Hayes v. Livingston 34 Mich. 384; Nims v. Sherman 43 Mich. 45; White v. Hapeman id. 267. This is true as a general rule: spoken words cannot be received as a substitute for the formal conveyance which the statute of frauds requires. Cases of doubtful and disputed claims, and cases where the facts are not of record and not readily accessible, may present exceptions. Branf v. Virginia Coal Co. 93 U. S. 326. But one fatal objection to the supposed estoppel is as good as many, and in this case it is enough to say it fails on the evidence. Jones does not pretend to have sought information from any brother or sister of Enoch N. Chambers except the defendant, and as a man of sense he must have known that what one of several supposed heirs might say could bind the interest of nobody but himself. But defendant denies the statements imputed to him; and we have word against word, with quite as much circumstantial support for the denial as for the assertion. The supposed estoppel may therefore be dismissed from consideration. •
It is further suggested that the will, by the direction that the property should all be exchanged for moneys and interest-bearing securities, effected an equitable conversion of the realty into personalty, and fixed upon it for all purposes of succession, distribution and transfer the legal character of personalty, and that it must be dealt with as such in this litigation and not as land. That a conversion was effected is no doubt true. The direction that the exchange should be made was imperative and without condition, and though it was never in fact made, equity must consider that done which the testator lawfully directed. Doughty v. Bull 2 P. Wms. 320; Wheldale v. Partridge 5 Ves. 396; Lane v. Goudge 9 Ves. 225; Thornton v. Hawley 10 Ves. 129;. Kirkman v. Miles 13 Ves. 338; Wand v. Arch 15 Sim. 389; Craig v. Leslie 3 Wheat. 563; Tazewell v. Smith 1 Rand. 313; Bunce v. VanderGrift 8 Paige 37; Kane v. Gott 24 Wend, 641; Bogert v. Hertell 4 Hill 492; Stagg v. Jackson 1 N. Y. 206; Hood v. Hood 85 N. Y 561; Holland v. Cruft 3 Gray 162; Wurts v. Page 19 N. J. Eq. 365; Dodge v. Williams 46 Wis. 70. The direction for conversion was absolute; out and out; irrespective of all contingencies; and therefore sufficient to meet the somewhat particular requirements of the Pennsylvania cases; Bleight v. The Bank 10 Penn. St. 131; Parkinson's Appeal 32 Penn. St. 455; Anewalt's Appeal 42 Penn. St. 414; Jones v. Caldwell 97 Penn. St. 42; and the death of the beneficiaries did not affect the application of the doctrine. Craig v. Leslie 3 Wheat. 579; Marsh v. Wheeler 2 Edw. Ch. 157; Phelps v. Pond 23 N. Y. 69; Evans Appeal 63 Penn. St. 183.
But admit the conversion, and the casé still is not determined in favor of complainant. The equitable conversion fixed upon the land the character of personalty for some purposes but not for all. It was personalty in the hands of the executors of Enoch N. Chambers for all the purposes of his will and of the settlement of his estate, and so far as it was not disposed of by the will, it passed under the statute ($f distributions and not under the statute of descents. But it was never personalty for any purpose of remedy unconnected with the conversion; and in the hands of the person ■or persons who succeeded to it when Mrs. Chambers and the ehild'were dead, it would not be personalty but realty, and real, not personal, actions would be brought to determine the title. The question therefore in the ejectment suit, or in :any other suit involving the title, would not be whether the land had or had not at one time had the quality of personalty impressed upon it, and been transmitted as such under the statute of distributions; but the question would be to whom in any manner it had been transmitted, and who now, when unquestionably it is to be considered and dealt with according to its proper nature as realty, is entitled to the possession, enjoyment and control.
This is a legal question, and its solution depends upon the proper construction of the will of Enoch N. Chambers. The legal controversy cannot be transferred to a court of •equity.
The dismissal of the bill was right and its decree must be ■affirmed with costs.
The other Justices concurred | [
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Campbell, J.
Haley was convicted of the offense of' resisting an officer.' . Complaint was first made before a magistrate, and defendant waived examination and was held to bail to appear at the trial court, which was the Superior Court of Grand Rapids. An information was filed in that court for the statutory offense.
Defendant moved to quash the information because he had not been examined or waived examination on that, charge.
The defect pointed out is that in the complaint before the justice the offense was not charged to have been committed “knowingly and willfully,” as required by § 7675 of the Compiled Laws defining the offense.
We do not think this objection can be sustained. In the' absence of anything to make out the offense named in the statute the complaint would have been for a simple assault and battery, and could only have been tried by the justice. It distinctly charges, however, the unlawful resistance of an officer, in his attempt to keep the peace. No objection was made to its form, and defendant saw fit to treat it as charging an offense not capable of trial before the justice, and elected to waive examination and give bail to tlie higher court. The defect was a formal one which might and probably would have been remedied had the examination taken place. We cannot, therefore, regard it as variant from the information to any such extent as would render the offenses-charged different offenses.
The objection of duplicity has no force whatever. Every forcible resistance to an officer involves an assault, and under our statutes, in case the more serious charge should not be made out, there might still be a conviction of the assault involved in the larger charge. We do not understand that the information was designed to include two counts, although there is some repetition. But if it did 'there is no legal objection to its doing so. The count under the statute 'is unquestionably complete, and will sustain a verdict. Shannon v. People 5 Mich. 71.
An objection was also made to the information as prematurely filed at the same term during which the complaint was made. We do not find anything in the statute to prevent filing an information as soon as it is found convenient. Nad the respondent given bail it might possibly have raised a question as to the time when his sureties were obliged to have him in court to answer. But we do not think the information bad on that account.
There was on the trial more or less evidence concerning defendant’s condition from drink. The court charged in effect that if he was too drunk to be capable of forming the statutory intent he would be free from the statutory guilt, but not otherwise! We do not think any more could have been asked on this head. We also think that while the language used concerning the prisoner’s conviction by the prosecutor to the jury was reprehensible, it cannot be assigned as error without some complaint made at the time and not properly noticed by the court.
There is, however, one error which cannot be disregarded. There was testimony introduced by the defence tending to show that the assault which was the officer’s excuse for arresting defendant without a warrant was not committed in his presence and was over and the defendant removed before he came to the place where the arrest was made j and that he did not make it until he had gained such knowledge as he possesed from inquiries made of third persons.
The doctrine has been repeatedly settled, and has been recognized in this Court, that an officer lias no right to arrest without a warrant for any breach of the peace not committed in his presence. Quinn v. Heisel 40 Mich. 570; Sarah Way's Case 41 Mich. 299. The court below erred in holding differently, and for this error a new trial must bo granted.
The judgment below must be reversed, and the defendant discharged from the State House of Correction and' Reformatory at Ionia, and remanded to the custody of the sheriff of the county of Kent to be let to bail and if not bailed to be held to be dealt with according to law, and a new trial must be granted unless the prosecution is discontinued.
Cooley and Marston, JJ. concurred. | [
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Cooley, J.
Action for negligently causing the death of the plaintiff’s intestate.
The declaration avers that on the second day of January,. 1878, the decedent was in the employ of defendant as a switchman, upon and about the switch locomotive number 241 owned and operated by defendant; that it was his duty as such switchman at the time aforesaid by the nature and terms of his employment to attend and be with said switch-engine in the handling of cars of ordinary freight and to perform the ordinary duties of an ordinary switchman in the defendant’s service ; that it was not contemplated in his-employment that nitro-glycerine was an ordinary or proper freight, such as would be loaded into the cars of defendant to be handled by said switch-engine while he was employed) thereon, but that the handling of the same was extra-hazardous employment as to him and beyond and out of the line of his employment as such switchman; that on the day aforesaid there was a large lot of nitro-glycerine stored at a point on the line of defendant’s road between Ishpeming and Negaunee, and decedent was ordered by defendant to go with said switch-engine and take a car to the place where the same was stored, to be loaded with the same, and to haul the same away when loaded; that such order was wrongful on the part of defendant and contrary to the employment of decedent; that nitro-glycerine is exceedingly explosive and dangerous; that the de,cedent had no experience with or knowledge of its dangerous qualities, and defendant wholly neglected and failed to inform him of its dangerous nature- and qualities, or to warn or caution him as to any measure for his safety; that decedent obeyed said order, and proceeded with said switch-engine to the place where said nitroglycerine was stored, and while there, and in the exercise of proper care, was killed by its explosion.
The negligence here charged against the defendant is seen to consist in sending him into the vicinity of a dangerous explosive without informing him of the danger and giving, proper caution.
A second count sets out facts to show that the nitro-glycerine was improperly put up in ordinary tin cans wholly unprotected, and for that reason was specially liable to explosion in handling, and exposed those coming near it to-more than the ordinary dangers. The allegation of negligence is substantially the same in the two counts.
The facts brought out on the trial were the following :• Foley, at the time of the accident, was twenty-one years of' age, and had been in the employ of defendant for two years. He had lived in the neighborhood for many years. It was a mining district, and nitro-glycerine was constantly made use of for mining purposes; the Lake Shore Nitro-G-lycerine Company supplying 60,000 to 70,000 pounds a year. On January 1, 1878, that company .contracted with the Marquette, Houghton & Ontonagon Railroad Company to trans port 4800 pounds of nitro-glycerine from Negaunec to Champion, a point on tho last-named road, and for convenience it was brought to a point on defendant’s road less than a mile from Negaunec, where the Marquette, Houghton & Ontonagon Railroad Company proposed to receive it. For this purpose an agent applied to defendant to switch the empty car of the Marquette, Houghton & Ontonagon road to the point where the nitro-glycerine was stored, and then to switch the loaded car back to Negpmoo. It ivas upon this service that the decedent was sent. Tho defendant had nothing to do with the transportation of the nitroglycerine except to switch the car as above for the Marquette, Houghton & Ontonagon Company, and it had nothing whatever to do with the loading of the car, which was done by tho servants of the Lake Shore Nitro-Grlycorine Company. Tho evidence tended to show that no accident from the handling of nitro-glycerine had ever before occurred among the mines in that part of the State; that it was not dangerous when properly put up and properly handled; that the fact of its being used for blasting in the mines was generally understood in the community; that decedent had .at one time had its qualities explained to him by a person ■engaged in its manufacture, and that when ho was directed to switch tho car ho understood for what purpose it was being sent to the place of loading. The accident occurred while the nitro-glycerine was being loaded.
Tho circuit judge instructed the jury that the facts put in evidence had no tendency to show negligence in the defendant; and they accordingly returned a verdict in defendant’s favor.
If the nitro-glycerine was improperly put up in packages as the plaintiff claims, and for that reason its handling was extra-hazardous, there was no evidence that knowledge of the fact was brought home to defendant. The officers and agents of defendant had a right to assume that the Nitro-Grlycorine Company was in tho exercise of due care, and that its merchandise was in proper and safe packages. If it bad been, the evidence is conclusive that danger could only have come from improper handling. •
The question then seems to be this: Whether defendant, in complying with a proper request from another railroad company to run for it a short distance one of its cars, to be loaded with an article which was safe when properly handled, but exceedingly dangerous when carelessly handled, was bound to assume that negligence on the part of those handling it would occui', and bound to take measures for the protection of its servants on that assumption. And if this question shall be answered in the affirm.ative, the further question will be presented : What measures of protection could the defendant take short of absolute .refusal to move the car at all? The switchman knew what was to be loaded and had a general knowledge of its ■qualities; but more particular and specific information to him on that subject would have been entirely without ■value. He was not to handle the nitro-glycerine, and he .could exercise no control over the action of those who were. ■Caution from him on the subject would not be likely to receive attention from the men whose business it was, and who handled it constantly. The only caution to decedent which could have been of the least service would be the •caution to keep away altogether. If he was entitled to this, it necessarily follows that defendant should have refused .altogether to move the car over its track. But it was not -claimed on the argument that this could have been properly ¡and even lawfully done. Public Acts 1873, p. 506, § 10.
It was proved on the part of the plaintiff that when the ■order for switching the car was given, decadent was notified that the car must be kept out of the way of the passenger train which would be due after a time, and that if it was mot loaded in due season it must be side-tracked. This, it is said, may have tended to cause haste and consequent carelessness in the loading. There is not the slightest evidence that it did so, and the time before the passenger train woulij .be due was shown to be ample. The order was probably ¡needless, but it was an order of caution, not of negligence : and the officer who gave it is to be commended, not blamed'
Further discussion of this case is needless. There was-not the slightest evidence tending to fix upon the defendant, its officers or agents, any neglect of duty or any want of due care.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
This is an injunction bill. The complainant was widow of James J. Campan, and has had assigned to her as her dower the westerly half of the brick building known as Masonic Hall on Jefferson avenue in the city of Detroit. ' The defendant by purchase has become owner of the easterly half of the same building, and also of the westerly half subject to complainant’s life estate.
Masonic'Hall was erected by the Masonic order in the year 1851 on ground -of which a thirty years’ lease was taken, and on terms which affixed the building to the inlier itance. The structure is about thirty-eight feet front by eighty feet in depth. The basement is divided into two equal parts by a permanent wall extending from front to rear. The first floor is divided into two stores by a permanent and substantial brick,wall built above the basement-division wall. A narrow stairway built within the east store on its easterly side leads from the street to the second floor. The second floor is divided by a permanent brick wall into two equal parts. The easterly half has an area in - the center, with a small room in front and a small room in the rear. The westerly half is divided by a cross-partition into two large rooms, into which doors open from the area in the easterly part. Should these doors be closed up, the separation between the easterly and westerly halves of the building on the second floor would be complete. A stairway of the same width and on a line with the stairway just mentioned leads from the second floor to the third. The third and fourth stories of the building were constructed for occupation by Masonic bodies, and are divided into lodge-rooms, waiting-rooms, etc. The rooms on the second floor were designed for rent as offices.
The lease under which the building was constructed expired May 1, 1881, and complainant and defendant came into possession of the westerly and easterly halves respectively. Complainant’s access to the upper stories of the building was by the stairway through the easterly store and the area over it. The part of the town in which the building is situated has of late been given up almost exclusively to wholesale business, and offices are not in as good demand as formerly. As now constructed, the third and fourth stories of the building have ceased to be in demand also.
The stairway taken out of the easterly store seriously diminishes the size, renders it somewhat inconvenient in form and of less value to rent. Defendant proposes to remove it; to close up the opening between the east and west halves of the building in the second story; to carry up the wall now dividing the lower stories to divide'the third and fourth stoiie3 also, so that the two halves of the build ing will be wholly separated, and then to make for the easterly store the customary inside stairways to be used for that store alone. Complainant by this bill seeks to enjoin the tearing out of the existing stairway, claiming that she has therein an easement appurtenant to her life estate. In the Superior Court this claim was sustained and a perpetual injunction awarded.
The evidence shows beyond question, as we think, that the best interests of the parties concerned require the proposed changes to be made. The building has ceased to be in demand for the purposes for which it was erected, or for any other purposes which would not be better accommodated by interior changes. The principal demand in that-part of the city is for stores, arid one half of the building would be likely to b¿ desired by any one proposing to put merchandise into it. A common stairway of the kind now in existence would be more detriment to one party than advantage to the other, and the desire to remove it is therefore perfectly reasonable if the law will suffer it to be done.
It is to be observed of complainant’s dower that nothing was set off to her but the westerly half of the building. The stairway, or any common use of the stairway, was not in terms assigned, and if she has any right to make use of it, the right must spring from the fact that the stairway was the way of access to the upper stories of her half of the building when the dower was set off. She must claim the use as an easement, either as appurtenant to her freehold because in use with it when her right accrued, and by implication included in the assignment; or as a way of necessity.
It certainly cannot be claimed that the existing stairway is a way of necessity. It is scarcely a way of convenience; for one going up in the westerly store for the occupation of the rooms above it would be at least equally convenient and probably more so. It is not likely that complainant could rent her store to the best advantage to a tenant wanting the upper stories without providing or permitting them to provide some more direct access to the upper rooms from the first floor. Necessity for the use of the stairway cannot therefore support the bill.
If the assignment of the dower carried with it the use of the stairway as an appurtenance, it must be upon the ground that a reasonable construction of the assignment, operating as a conveyance, would have that effect. And if complainant has an easement in the stairway, she has a freehold in it, and any improvement by defendant must be subject to its preservation. And if the easement would be appurtenant to a life estate, it would be equally appurtenant to the fee, if the fee in the west store were conveyed.
Suppose then that the west store had been conveyed without mention of the existing stairway; would it be a reasonable construction of the grant that because the stairway was then in use as a means of access to the upper stories, a perpetual easement in it passed to the grantee, which would preclude the grantor removing it, or making changes or improvements in his store which would interfere therewith ? We think not.
The building, as already stated, was constructed by a tenant, for a use that has ceased. Changes have not only become necessary, but they may well be assumed' to have been within the contemplation of the landlord when the building was erected. We discover nothing in the case which indicates that the stairway was intended to be permanent after the use of the upper stories of both stores should cease to be by one and the same tenant. Distinct occupations would.require distinct methods of access; and this state of things must have been contemplated as probable at some time. If so, the stairway as then constructed must have been understood as subject to change. Its temporary use in connection with the west store would no more give permanent rights than the temporary use of a way of access to the rear of that store across the rear of the east half of the lot, if such a use had existed. Permanent easements cannot be established on such slight foundations.
It is urged on behalf of complainant that it would be unreasonable to require the tenant for life to build the new staircase in order to have access to the upper stories of her building, and that the expense ought to fall upon the owner of the inheritance. We think not. The general rule is that the tenant for life must make the property available to his profit at his own expense. In this case there is no hardship in that rule. Complainant’s estate is variously estimated in the case at from $1000 to $10,000, and the cost of the necessary stairways cannot be very great. We do not think she has a right to burden defendant’s possession in the way proposed, to save to herself this cost.
The decree must be reversed and the bill dismissed with costs.
Graves, C. J. and Campbell, J. concurred. | [
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] |
Graves, O. J.
The defendant, acting as a constable, levied an execution against the plaintiff’s father on a flock ■of sheep found on the plaintiff’s premises. The plaintiff Maimed that the sheep were his property, and the defendant went no further at the time than the making of the levy. The sheep were left in the plaintiff’s possession. In the course of about a week the defendant called on the plaintiff and proposed to take possession; but offered to abstain therefrom and let the sheep remain with the plaintiff in case he would become receiptor and agree that they should be on the farm at the time of sale. The plaintiff gave the receipt and the sheep remained thereafter in his actual possession .and without any change of custody. Early in the forenoon of the day of sale, but before the arrival of the time for selling and before the appearance of defendant to commence proceedings, and whilst the plaintiff was still so in actual possession, this suit in replevin was commenced. The defendant' still held the receipt and had taken no step to .alter the possession.
On the trial the defendant requested the jury to be instructed that a® the undisputed evidence showed that the ■defendant was not in possession and was not detaining the property at the time the writ was issued, they should find for the defendant. This was refused, and the circuit judge ■charged that although the fact was that the actual possession was all the time wholly in the plaintiff, yet if they found that there was an understanding between the parties, that the possession, contrary to the fact, should be considered in the defendant for the purpose of replevin and that the plaintiff relied upon such understanding in bringing the action, then the defendant was estopped from contending that he was not in possession and was not at liberty to say he did not detain the property.
It is needless to discuss the soundness of this proposition in point of law, and see whether it could be reconciled with the principle which governs replevin and which obliges the plaintiff to establish a substantial detention of the property as the very groundwork of the action; because no evidence was given fairly tending to show that there was any such-supposed understanding, and the receipt itself and the surrounding circumstances were decisively opposed to it. The case was ruled by Hickey v. Hinsdale 12 Mich. 99, and Bacon v. Davis 30 Mich. 157, and the defendant’s request should have been given.
The other questions referred to do not become material.
The judgment must be reversed with costs and a new trial granted.
Campbell and Cooley, JJ. concurred. | [
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Marston, J.
This cause was commenced and tried in justice’s court where the plaintiff recovered a judgment. On certiorari to the circuit the judgment of the justice was reversed. The case comes here on writ of error.
"We have examined the errors alleged in the affidavit for the writ of certiorari. The objections made to the admission of certain testimony were not well taken. In order to reverse the judgment of a justice rendered upon the merits, for the rejection or admission of evidence, it should appear clearly that the party against whom the judgment was rendered was injured by the ruling.
The evidence offered and admitted on the part of the plaintiff tended to prove a valid binding agreement; the delivery of railroad ties at a place agreed upon and marking them as the defendant had directed. This was denied by the defendant. If the plaintiff’s testimony and that of his witnesses was true, there was a delivery, and thus the case was taken out of the operation of the statute of frauds, and whether true or not was a question for the justice.
The judgment of the circuit court must be reversed and that of the justice affirmed with costs.
The other Justices concurred. | [
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] |
Marston, J.
The bill in this case was filed against the .defendants as executors of and trustees under the last will and testament of Edmund A. Brush, and also against them/ in their own right for an accounting and to compel them to-pay over a certain sum of money claimed by the complainant.
In October, 1863, Francis Eccard, now deceased, the husband of complainant, leased from Edmund A. and Alfred E. Brush a certain lot in the city of Detroit, for the term of four years at an annual rental of fifty dollars, with the right in the lessors at the end of the term to purchase the buildings and improvements thereon at a valuation not to exceed eight thousand dollars, and if they did not purchase, then the-lease was to be renewed upon a new rental to be agreed upon, with a like agreement at the expiration of the renewed term and so on.
After the decease of Francis Eccard, there being rent due- and in arrears upon this, and also upon another lease between the same parties, the complainant, as sole devisee of Francis Eccard, by an indorsement in writing on the lease, surrendered to the surviving lessor, Edmund A. Brush, all interest under the lease in consideration of a discharge from the-performance of any of the covenants thereof by Mrs. Eccard.-
At this time the property had a valuable warehouse-thereon, of perhaps the value of twenty-five hundred dollars, which had been erected by Francis Eccard, and the premises had been sub-let to third parties at an annual rental of six hundred dollars and upon which lease certain rents were due and unpaid.
The claim now made is that the surrender was made as a security merely, and .that the rents and profits under the sub-lease should be accounted for and paid over.
The executors of the estate of Edmund A. Brush in 1877’ caused the warehouse erected on the lot by Francis Eccard to be appraised, and from the appraised value deducted certain rents and paid Mrs. Eccard the balance, but denying at the same time that Mrs. Eccard had any legal or equitable-claim therefor.
This case being against the executors of the estate of Edmund A. Brush, deceased, Mrs. Eccard could not testify •as to matters equally within the knowledge of Edmund A. Brush; her testimony, therefore, cannot be considered.
With this left out, the complainant utterly fails to prove such a clear and distinct agreement as is required in order to afford- equitable relief. Van Wert v. Chidester 31 Mich. 208. Indeed, even if we should consider complainant’s tes. timony, there would still remain such doubt that the relief prayed for could not be granted. Neither was there anything so unconscionable or inequitable in the settlement made with Edmund A. Brnsh in November, 1874, and the ■surrender made in accordance therewith, that should cause a court of equity to look with suspicion upon that transaction. Nor can the appraisement and payment made by the executors in 1877 assist in creating a liability in this case. They but recognized a moral obligation, and courts should not be inclined to discourage such transactions by treating them as the recognition of a right which could be enforced by judicial proceedings. The complainant, it would seem, fully understood what was then done, and accepted what was paid as a full and complete settlement of'all claims, and she should not now be permitted to repudiate such settlement.
The decree must be affirmed with costs.
The other Justices concurred. | [
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