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Cooley, J.
The questions which arise in this case are questions of recoupment.
On May 12, 1881, Morehouse brought suit against Baker & Murray on a promissory note for $436.45, dated' March 2, 1881, payable to plaintiff sixty days after date. The defence was, a former suit by these defendants against Morehouse in which, as they claim, the note should have been made use of by way of defence.
It appeal's by the evidence, and by defendant’s offers of evidence — which, for the purposes of a review, must be deemed susceptible of support — that on February 28, 1880, the parties entered into a written contract, a copy of which is given in the margin ; that the note in suit was given by Morehouse for shingles furnished under that contract; that on April 7, 1881, these defendants instituted suit against Morehouse, counting on said agreement and assigning for a breach, “ that the said defendant neglected, omitted and refused to run his said mill in the manufacture of shingles for said plaintiffs a large portion of the time during said year 1880, and that, at other portions of said year, he run said mill upon and worked up a large portion of aforesaid timber into shingles, and neglected and refused’ to comply with his said agreement and the request of said plaintiffs to sell and deliver same to plaintiffs as he had promised and agreed, and contrary to the true tenor and effect of said agreement; that is to say, to manufacture said timber into shingles, and to sell and deliver same to plaintiffs, whereby and by reason whereof the said plaintiffs have lost the sale of a large quantity of shingles, to wit, five million shingles, and the profits and gains thereof which they might and otherwise would have had and realized from the shingles so contracted to them,” etc. That Morehouse pleaded to the merits in said suit, and trial was had October 6, 1881, resulting in a verdict for defendant therein. Other facts appearing in the case are not important now.
The defendants insist that the note in controversy was part of the subject-matter of the former suit, and that for plaintiff to reserve it from that suit and make it the subject of a new action was such a splitting up of causes of action and needless multiplication of suits as has been frequently commented on and condemned by this court. Dutton v. Shaw 35 Mich. 434; Hartford Fire Ins. Co. v. Davenport 37 Mich. 614; Iron Cliffs Co. v. Gingrass 42 Mich. 30. This is the only question in the case.
"When money or money’s worth has been received under circumstances which make it payment, it.is undoubted that-the party claiming the benefit must see that it is applied in the suit brought upon his contract or he will lose it entirely. Hazen v. Reed 30 Mich. 331; Huntoon v. Russell 41 Mich. 316. When the application is once made the sum applied no longer exists as a separate demand or sum, but has disappeared by operating in reduction of the debt; and if the debtor fails to show the payment in a suit brought to recover the debt, and is compelled to pay a second time, he loses through his own folly and negligence. But when the demands of parties are distinct and separate in their nature or origin, it is in general at the option of a party sued whether he will make use of his demands against the plaintiff as counter-claims in that suit — when the case is such as to admit of it — or make them the subject of an independent action. This is so as to demands which are the subject of set-off; though the statute in some cases discourages the withholding of such demands when opportunity for making use of them has arisen, by refusing to give costs in a subsequent independent suit for their recovery. Comp. L. § 5324. And where a demand is such that it is available by way of recoupment, the rule is the same: there is no imperative requirement that it shall be made use of as a counterclaim. Doty v. Wilson 14 Johns. 379; Batterman v. Pierce 3 Hill 171; Dunham v. Bower 77 N. Y. 76; McKinney v. Springer 3 Ind. 59; Ward v. Fellers 3 Mich. 281.
In the first suit between these parties the note now involved could not have been used by way of set-off, for the reason that the suit was for the recovery of unliquidated damages, and the statute does not allow of set-offs in such cases. Comp. L. § 5796. It could therefore only have been used as a counter-claim by way of recoupment. But was it the subject of recoupment? Beeoupment goes in reduction of the plaintiff’s recovery by applying upon such assessment as may be made in his favor any claim the defendant may have to damages arising out of the same contract or transaction, and is favored to avoid a multiplicity of suits. Platt v. Brand 26 Mich. 173. But where the cases are such that the issue upon the counter-claim would be distinct from that on the plaintiff’s demand and rest upon distinct evidence, the reasons for permitting recoupment have little or no force, for “ the nearer the controversy is to being single .and distinct, the more likely is the jury to deal with it with full intelligence and justice.” Chandler v. Childs 42 Mich. 128, 130.
Now.in the first suit the plaintiffs counted upon a refusal •of Morehouse to run his mill and saw shingles for delivery under the contract. As he had not expressly agreed that he would saw any shingles, but only that he would sell and ■deliver to Baker & Murray what shingles he did saw, it is evident that they were endeavoring by the suit to establish .a construction of the contract which Morehouse did not .admit. In effect he denied making any such contract as •they counted upon; that is, while admitting his signature to the instrument upon which they sued, he denied that he thereby promised as by their declaration they claimed he did. If this is a correct view of the first suit, it is apparent that the demand counted on in this suit had nothing to do with the subject-matter involved in the previous litigation. This note was given for shingles sold: the previous litigation did not concern shingles sold or bargained; but it only presented the question whether in a contract to sell shingles-when he had manufactured them the party had also by implication agreed that he would manufacture that he might have the shingles to sell. Morehouse denied that he had so-agreed, and if he succeeded on that issue, there would have been no basis for recoupment. And if he failed on the-main issue and relied upon recoupment, the trial, as is shown above, would have involved two very distinct issues.
But a further objection to the recoupment would have been that Morehouse, if he had set up the note in the first-suit as a counter-claim, would not, as to the nature of the.claim itself, have been within the law of recoupment.. Baker & Murray were demanding damages of him for his-fail me to saw and deliver shingles to them. He claimed of’ them no damages for the non-performance on their part of' that contract; he charged them, so far as we know, with no-fraud or other wrong in respect to it; he imputed to them no failure to perform in exact conformity to their agreement. Then what damages had he which could possibly be-the subject of recoupment ? It is true a note they had given him for shingles remained unpaid — -in fact was not due — when the former suit was instituted; but the giving of the note was pro tcmto performance of the contract, for the contract stipulated for it. Setting up the note would therefore not be claiming damages under the contract, but it would be demanding payment upon commercial paper. That a defendant could not be required to set up such a-demand by way of recoupment, even if it were admissible, is manifest from' the fact that, in the absence of any statutory provision establishing a different rule, recoupment can only go in discharge of the plaintiff’s claim; it cannot establish a demand for which the defendant can take judgment. Ward v. Fellers 3 Mich. 281; Chandler v. Childs 42 Mich. 128. It would be highly unreasonable to require settled and liquidated demands to be made use of by way of recoupment under such a rule. Our statute has changed this, but it has made no change in the general principles of recoupment, and a question of the application of'those principles must be decided here as it would be elsewhere.
These considerations are sufficient to show that the failure of Morehouse to make use of the note by way of defence in the first suit, did not bar him of any right to recover upon it.
The judgment in his favor in this suit must be affirmed with costs.
Campbell and Marston, JJ. concurred.
Articles of agreement made and entered into by and between Baker & Murray of Éig Rapids, Mich., and Amos R. Morehouse of saene place.
Said A. R. Morehouse agrees to sell to said Baker & Murray all the shingles made hy him at his shingle mill out of his own. timber, and his one-iialf made from Seamen’s timber in the township of Colfax during the year 1880. said shingles to be 18 inches in length, to he of standard thickness, and to be first-class, merchantable shingles, in every respect, and to be delivered on board the cars at such times and in such quantities as said Baker & Murray may desire, at Byers station, Mecosta county, Mich., on the G. R. & I. R. R.
Said Baker & Murray agree to buy said shingles of said Morehouse upon the foregoing conditions, to he paid for as follows: For XXX or star shingles, standard thickness, two dollars and twenty-seven and a. half cents ($2.27-J) per thousand, and for clear butts, one dollar and twelve and a half cents ($1.12£) per thousand, in the following manner: All shingles delivered at the railroad track to be counted on the first day of March, 1880, and to be paid for by the said Baker & Murray in then-note at sixty days, at said time, and a like count and settlement made on the first day of each following month, said Morehouse to put all of said shingles under cover as fast as delivered to the railroad track, and also to brand them, when hauled, with Baker & Murray’s brands, or such brands as they may furnish.
Baker & Murray.
A. R. Morehouse..
Feb. 28th, 1880. | [
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Campbell, J.
Nutting recovered judgment on a referee’s report against Burked as endorser of a draft made by a pri'vate banking house in Eaton Rapids on a New York bank, which was dishonored on presentation. Certain dates become material. The draft was dated April 8, 1875,— delivered to plaintiff on April 9th, — forwarded by him April 15th to the treasurer of the Michigan Central Railroad, and thereafter transmitted in ordinary course through, different channels until it was presented for payment in New York on’the 21st and dishonored. It was protested regularly, but defendant on being notified of the dishonor refused to pay because of tbe delay in presenting it. The drawers closed their doors and failed on the 16th of April, and their paper was thrown out in New York on that day. The referee finds that it usually took four or five days for drafts drawn by the Eaton Rapids house to reach New York for presentation. It also appears from his findings in regard to the general course of railroad office transactions that if Nutting had sent it forward without any delay whatever, it would be likely to reach New York on April 15th.
The explanation of the transaction was substantially this: Nutting was railroad agent at Decatur, with no authority to accept anything but money for the tickets sold, and held to account personally for any acceptance of paper or other tljjing in lieu of money. An excursion had been projected from Decatur to San Francisco, by persons living in Decatur, and rates had been obtained from the railroad at $59.05. Applications were made in advance by those proposing to go, and Nutting took deposits and gave back receipts which the depositors could use either to get tickets in case they •chose to go on the excursion, or to withdraw their money if they did not determine to go. These receipts all purported to be for the specified sum “ on deposit ” for passenger ticket between the two places.
On the 9th of April, Burked, who lived in Decatur, ■obtained three of these receipts from Nutting in the names of three persons in Eaton Rapids, and gave him the draft in question which he received instead of money. On the 14th of April these .persons surrendered their receipts, as did other passengers, and took tickets. Some persons drew money instead of tickets. That was the day the excursion .started; and thereupon Nutting made up his ticket account and sent forward the money and this draft to the treasurer of the road the next morning, — this being the usual course in regard to such transactions, — and on non-payment he was ■obliged to make its amount good. The question is whether he was legally bound to send on the draft earlier.
It appears that the Eaton Rapids bankers had no funds in New York after the 13th of April. It is found no drafts were thrown out till the 16th. but it is not found whether any were presented between the 13th and 16th and paid, and it is not found that the draft would have been paid if it had reached New York earlier than the 16th.
The referee found that there had been no unreasonable-delay in forwarding the draft, and that it was not illegal or improper for Nutting to keep it until the receipts were surrendered and tickets taken on the 14th.
Before considering this question it is necessary to refer to some objections taken to the action of the referee. Complaint is made that his findings are not properly separated as to fact and law, and that defendant had no opportunity to settle exceptions. The record does not show how this-last matter in fact was, but, however it may have been, thi$ Court, in considering the report and the exceptions to it-upon writ of error to the circuit court for giving judgment on it, cannot look behind the report and must assume it to-be correct. Action to have it corrected or set aside for questions of regularity must be had in a different way. "We-can only examine the record to see whether the facts found by the referee are such as to render the judgment erroneous.. If the judgment is not necessarily wrong it cannot be reversed.
From the finding it does not appear that any earlier foiv warding of the draft would have found funds in New York to pay it, or would have secured its payment actually or probably. The referee has not so found, and we have no means of knowing what testimony may have existed bearing-on that question.
The question is reduced to the single inquiry whether by retaining this draft from the 9th to the 14th of April the-plaintiff held it at his own risk and discharged the endorser..
It was the referee’s opinion that he held it on deposit until the tickets were taken on the 14th and that he was not bound to forward it before. There is no finding in the case-whether such a length of time would be ordinarily unreasonable to keep such a draft out of circulation. Unless there-is some inflexible rule of law to the contrary, we cannot-overrule his conclusion.
So far as this transaction is concerned it is, except in one particular, the ordinary case of the sale of a bank draft, issued for commercial purposes, and not in payment of a bank debt, and as such commercial draft transferred for value by Burked to Nutting. But the contract out of which •the value rose was not a present and final sale of tickets which Burked or his principals received out and out, so that the draft could be treated as given in absolute payment. On the contrary the payment .was to be no payment until the final determination to accept the tickets, and had they not been accepted there was nothing to be paid at all, and the deposit was to be returned. All of this arrangement was conditional and not within the ordinary course of the ticket agency. The agent throughout acted in regard to money and draft as if he considered the transaction as provisional. There is nothing in the case to indicate that he would have discounted the draft in cash, or that this was expected. The case finds that he took the draft just as he took the money, and the money was not taken to be retained-except after the tickets should be called for. It is not found and it is by no means likely that either Nutting or Burked had any idea that the draft was of doubtful quality, or required any especial attention beyond other similar paper that is used for convenience in commercial affairs.
A distinction is recognized between bills drawn by private persons in particular affairs and bills which are dealt in by bankers in the sale of exchange, and the rule of diligence is much more liberal in regard to the latter, which are very generally used as a species of circulating medium and sold by the holders, and therefore not regarded as designed for immediate presentation in any strict sense. See Story on Bills § 412 and notes. In these cases, as in others, unreasonable delay will no doubt discharge the endorsers, and what is reasonable will be determined by the circumstances. IJpon this there is no dispute. But when an endorser claims to be discharged, it must appear that the holder is in fault. And he is not in default if he has not acted unreasonably. "We are not satisfied that the finding of the referee in this case, in his inferences of fact and law, shows that Nutting was in fault. We cannot say as matter of law that he had not a right to retain the draft for the purpose of ascertaining whether the ticket would be taken. It is to be assumed on this finding that he acted in good faith, and did what he supposed he had a right to do, in keeping the draft as a deposit, as he kept the money as a deposit. The amount did not belong to the railroad company until the tickets were taken, and we do not think we can hold the referee legally erred in treating the paper as held on deposit or in holding the delay not to have been unreasonable.
Error must be distinctly made out as matter of law,, before the finding can be disturbed. We therefore are of opinion that the judgment below should be affirmed with costs.
The other Justices concurred. | [
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] |
Marston, J.
The bill of complaint in this case was filed for the purpose of foreclosing a real estate mortgage, and no question arises concerning the validity of the same.
A preliminary objection is raised that Betsey Miller, the wife of the mortgagor, who was made a party defendant, had not been brought into court, or appeared, and that the cause therefore was not in readiness for a hearing when proofs were taken and the cause heard.
The decree recites that the bill was taken as confessed by the defendant Jeremiah Miller, the mortgagor, and dismissed the bill as to the defendant Betsey Miller, it appearing that she had died before the time of filing the bill of complaint. This disposes of the objection. It is claimed however that the representatives of Betsey Miller should have been made parties. It is not claimed that she had any interest in the mortgaged premises other than that of dower. Such is the presumption from the facts appearing of record in this case, and as that interest was at an end upon her decease there was no necessity for her representatives being brought in.
The real controversy arises from the fact that in 1879 complainant sought to foreclose by advertisement under the statute. The proceedings up to the date and time of the sale were regular. At the time fixed, Franklin Miller, one of the executors, and one of the complainants in this case, appeared with an attorney, and in the sheriff’s office, before that officer proceeded to make the sale, they examined a map showing the location of the mortgaged premises, and as they were to be sold in three separate parcels, a written memorandum was made, and opposite each description was set down the amount the executor would bid therefor rather than to have the premises sold at a less sum. These amounts were for the first description $1000, for the second $500, and for the third $400, and this memorandum was handed the sheriff.
At the sale a number of persons were present, and among them defendants Stevens and William H. Miller, although the bidding was not very spirited. As the premises were offered by the sheriff in parcels, Germain H. Mason, the attorney with the executor, bid $800 for the first description offered, $400 for the second, and $100 for the third, and the sheriff in order announced that each parcel was sold. Ample time appears to have been given for others to bid, but it is not clear that any one bid higher. Thus far there seems to be no controversy as to what was done.
At this stage it is claimed by the complainants, and we find such to have been the facts, that the sheriff was asked to record the bids made upon the memoranda by the executor, or put up the premises at once again, Mason declaring that he would not carry out the bid made by him. This the sheriff declined to do, offered to and did seek counsel from his attorney as to his power to again put up the premises or postpone the sale, and upon being advised that he had the power, concluded to postpone the sale for two weeks, went to the printer’s office, noted and signed an announcement that the sale would be1 thus postponed, and gave it to the printer for publication and it was duly published. A few days afterwards the sheriff notified the printer not to publish the notice, and made out and deposited with the Register of Deeds a deed of the premises to complainants as executors, reciting therein a sale to them at the prices bid by Mason. Mr. Mason when examined as a witness in this case testified that in making the bids he did he was not acting as the attorney of the executors, but this we consider of no special importance in the present case.
On the adjourned day the executor and Mason again appeared but the sheriff refused to offer the premises for sale, and then informed them that he had executed deeds and deposited the same under the previous sale.
The defendants Stevens and William H. Miller in this case insist that the sale so made by the sheriff was valid; that they as subsequent purchasers of the mortgaged premises had the right to redeem by paying the amounts so bid, and that they had tendered such amounts.
The statute contemplates that every opportunity will be afforded to intending purchasers so that the premises may be sold at the best price _ obtainable. For this purpose the statute authorizes a postponement of the sale from time to time, and where a bid. has been made and accepted by the sheriff, if the bidder, while the parties are present, declines to carry out his offer, and especially where some other person present offers to make a higher bid, it would become the clear duty of the sheriff to open the sale and again put up the premises. If the person making the bid was irresponsible or declined to pay the amount of his bid, the law does not contemplate ah enforcement of the sale and an action at law to recover the amount of the bid. The mortgagees should not be placed in any worse position than would a stranger. To open the sale and accept a higher bid, with the consent of the previous bidder, certainly injures no one, while it is for the interests of both the mortgagor and mortgagee.
It is trae that in this case the defendants as subsequent purchasers were interested in having the premises sold at as low a figure as possible in order that they might the more easily redeem, but at the time the bid was made by Mason and accepted by the sheriff, the sale had not become so far final and complete, that they could insist upon its being carried out.
This whole case shows that the sheriff permitted his actions to be influenced, not in the interests of the mortgagees, but of third parties who would be benefited by having the premises sold at a sacrifice. After he had made out and signed a notice of postponement and handed it to the printer for publication, he had then no right to execute and deposit deeds as though a valid sale had been made, and the executors were not bound thereby.
As no valid sale was made under the statute the complainants were entitled to the relief prayed for and the decree must be affirmed with costs.
Cooley and Campbell, JJ. concurred. | [
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] |
Per Curiam.
Plaintiffs reside on either side of defendants’ property on 160th Avenue in Grand Haven, Michigan. The area is zoned residential under the township zoning ordinance. Although this particular zoning district is highly restrictive, certain home occupations such as gardening, handicraft, professional services, transient lodging and hoarding, and incidental sale of produce are permitted, provided no such use shall change the character of the residence.
Defendant Patricia Huckabee is a trained cosmetologist and opened a beauty shop in a room added to her residence. The Grand Haven Township Board of Zoning Appeals determined that the beauty shop was classified as a home occupation and as such was allowed to operate so long as it remained in that classification. Plaintiffs sought injunctive relief from the courts, alleging nuisance and nonconforming use under the township ordinance. The trial court found that there was no evidence of nuisance, but held that the operation of such an establishment violated the ordinance.
The main issue with which we are faced is whether the trial court erred in assuming jurisdiction and in denying defendants’ motion to dismiss.
A thorough review of the record indicates that the board of zoning appeals denied defendants’ request for a variance, holding that a variance ruling was unnecessary since the beauty parlor as presently operated is classified as a home occupation and could continue to operate as long as it remained in that classification. The local ordinance permits the appeal board discretionary powers in granting variances and in the determination of what constitutes a home occupation.
Our review of their decision is limited to a determination of whether the board’s action was arbitrary or an abuse of its discretion; Jaworski v. Manufacturers National Bank of Detroit (1965), 1 Mich App 312; Indian Village Manor Company v. City of Detroit (1967), 5 Mich App 679. This Court finds no allegation or proof that the board acted arbitrarily or in abuse of its discretion. The law in this area is well-settled that the courts will not sit in judgment on matters wholly within the discretion of local zoning boards. Barkey v. Nick (1968), 11 Mich App 381.
When the appeal board made a determination that defendants’ beauty shop constituted a permissible home occupation, this became a binding and final determination. Only where there is provable abuse, caprice or arbitrary action may a court interfere. Such allegations were not raised in the present case. Therefore, the trial court improperly interfered with the discretionary powers of the township’s zoning board of appeals. The acceptance of jurisdiction under these circumstances was unwarranted and was clearly erroneous. In view of this ruling, we do not reach other issues raised on this appeal.
Eeversed and remanded with instructions to grant defendants’ motion to dismiss. Costs to appellants. | [
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Per Curiam.
Defendant appeals from the trial court’s denial of his motion to withdraw his plea and grant a new trial. After three days of a jury trial, and with benefit of counsel, defendant proffered his plea of guilty of murder, which was accepted by the trial court.
Defendant now asserts that because of numerous trial errors, he was coerced to plead guilty. He also asserts that the trial court failed properly to examine him on his plea of guilty, according to GrCR 1963, 785.3(2).
Contrary to defendant’s claim, an examination of the record reveals that the guilty plea was not the product of any coercion, hut was knowingly and voluntarily made. Furthermore, we find no merit to defendant’s claim that the trial court failed properly to examine him. The record as a whole reveals no miscarriage of justice. People v. Winegar (1968), 380 Mich 719.
Affirmed. | [
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Bronson, J.
Defendant, Willie Brown, was tried before a jury in the Recorder’s Court of Detroit and found guilty of murder in the first degree. On appeal defendant raises three issues:
1. Whether it was reversible error for the court to admit a prior statement into evidence to impeach a hostile res gestae witness where the trial court instructed the jury that such prior statement was not to be considered as substantive evidence.
2. Whether the people may examine a detained res gestae witness to determine why he is being detained where the defense on cross-examination has inquired as to whether the witness was being paid and where the witness was then living.
3. Whether the verdict of the jury was against the great weight of the evidence.
I.
Louise Bass was called to the stand by the people and, in response to a number of questions, testified that she “did not remember.” To a number of other questions, the ivitness answered “no.” When Louise Bass was questioned by the assistant prosecutor, the following took place:
“Q. Now I want to show you for the purpose of refreshing your recollection to the conversation, this document which has previously been marked People’s Proposed Exhibit 31. Starting with page 12, read it to yourself. Have you concluded all these pages ?
“A. I didn’t have to. I know I didn’t say that.
“Q. I ask you if you had read from page 12 to its conclusion, p 24?
“A. Do I have to read all of this? I just told him I didn’t say any of that.”
The people proposed calling a witness for the purpose of impeaching Miss Bass.
A disagreement arose as to how much of the alleged previous statement should be admitted. The trial court ruled that the entire statement could be read to the jury.
This presents a difficult question. There are valid arguments on both sides. We find that situations such as the present one require individual attention and accordingly limit our decision here to this specific case.
Our Court, in its well reasoned opinion, in People v. Virgil Brown (1969), 15 Mich App 600, discussed much the same problem as we are faced with today. In that case, Jesse McDaniel, who was originally charged together with the defendant with the crime of armed robbery, testified against the defendant at preliminary examination. McDaniel pleaded guilty and was sentenced prior to defendant’s trial. At defendant’s trial, McDaniel testified that he could remember nothing but his name and the fact that he got a 20- to 30-year sentence (“I can’t recall nothing since I got 20 to 30.”). The Court in People v. Virgil Brown, supra, 602, 603, stated:
“One of the things McDaniel couldn’t remember was his testimony at the preliminary examination, even after he was given the transcript to refresh his recollection. Thereupon, claiming the right to impeach, the prosecution read to McDaniel in the presence of the jury certain of the questions asked him at the examination and his answers. In this way, it was established that McDaniel had testified that he was with defendant on the night in question and that they had robbed the store in question.
“Defense counsel objected to use of the preliminary examination testimony and requested the court to include in its charge to the jury an instruction that ‘the questions put to this witness by the prosecution are not evidence and may not be considered by you in your deliberations.’ Aside from a remark to the prosecutor not to stray beyond legitimate impeachment, the court did not instruct the jury either during trial or in its charge that use of the preliminary examination testimony was only for impeachment purposes and could not be considered as substantive evidence.
“The court’s refusal to so instruct the jury was raised in the motion for new trial. The trial court, in rejecting the contention, held that the prosecutor could impeach its own witness because of the provisions of CL 1948, § 767.40a (Stat Ann 1954 Rev § 28.980 [1]):
“ ‘Witnesses whom the people are obligated by law to call as res gestae witnesses may be impeached the same as though such witnesses had been called by the respondent.’
* ft *
“For the purpose of impeachment, evidence is generally admissible to show previous contradictory or inconsistent statements. Thus, if a person denies having made a previous contradictory statement, the statement itself may be used for impeachment. 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 438. It is not so clear whether a witness who states at trial that he cannot recall certain facts or cannot recall giving a prior inconsistent statement can be similarly impeached. Smith v. People (1852), 2 Mich 416, held that the prior inconsistent statement was admissible for impeachment under such circumstances. The case is relied on by the prosecution and cited with approval by Gillespie in § 438, p 540.”
Where in a ease such as this the prosecutor is obliged to call a res gestae witness and that witness proves hostile, we cannot say that the prosecutor should be barred from proving that she made prior contradictory statements, sworn or unsworn, or to show that she actually made the response in the statement when she specifically testified, “I didn’t say any of that.”
II.
On cross-examination, defense counsel asked the witness:
“Q. (Mr. Murphy): Where do you live?
“A. Well, I don’t know; right now I have been living at 1300 Beaubien.
“Q. How long have you been living there?
“A. Since the 17th of September.
* * #
“Q. You are a detained witness?
“A. Yes, sir.
“Q. And are you receiving compensation for that?
“A. I don’t understand.
“Q. Are you receiving money for every day that you are there?
“A. I’m supposed to.”
In view of the above-quoted testimony, it was not error to permit the people to ask why the witness was being detained. The people had a right to explore the issue raised by defense counsel.
A careful reading of the record convinces us that the verdict of the jury was not against the great weight of the evidence.
Affirmed.
All concurred.
“* * * [W]e will bring in Abel Grace of the prosecutor’s office and ask him if he remembers taking down, stenographically, the questions put to this witness, Louise Bass, and in the presence of the assistant prosecuting attorney, Arthur Koscinski, and that he took it down and recorded it.” | [
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Per Curiam.
Defendant, represented by counsel, pled guilty to the offense of using and displaying an operator’s license issued to another. (MCLA § 257.324 [Stat Ann 1968 Rev § 9.2024]). The trial judge accepted defendant’s plea of guilty to this simple misdemeanor and sentenced defendant to 30 days in the Detroit House of Correction and $150 costs or an additional 15 days in the House of Correction. (MCLA § 257.901 [Stat Ann 1968 Rev § 9.2601]).
Following the filing of defendant’s appellate brief, the people filed a motion to affirm pursuant to GCR 1963, 817.5(3).
Defendant claims that the trial court was under an obligation to conduct an investigation to determine if defendant’s plea was made> freely with full knowledge of the nature of the accusation, and without undue influence. Although a trial judge is clearly under an obligation in accepting a guilty plea to comply with the respective court rule (GCR 1963, 785.3) and statutory provision (MCLA § 768-.35 [Stat Ann 1954 Rev § 28.1058]) in felony cases and circuit court misdemeanors, such responsibility does not extend to simple misdemeanors. A review of the record reinforces our belief that defendant’s argument lacks merit.
It is therefore the holding of this Court that the question sought to be reviewed, on which decision of this cause depends, is so unsubstantial as to need no argument or formal submission.
Motion to affirm is granted. | [
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] |
Per Curiam.
This an an automobile negligence case, arising out of a collision that took place on January 13, 1964, in Grand Haven, Michigan. Plaintiff, driver of a 1961 Ford pickup owned by E. Grabman & Sons, and insured by The Travelers Insurance Company, was traveling in a westerly direction on Lake Avenue, and William David Keltie, defendant, was driving his father’s Ford station wagon, on the same street in an easterly direction. The highway was narrow because of snow having been piled on each side, and there was some snow and ice on the pavement.
Plaintiffs’ complaint contained several allegations of defendant’s claimed negligence causing the collision, vis.: (1) driving at a careless and imprudent rate of speed, greater than was reasonable or proper for the surface, width and condition of the street; (2) driving at such a rate of speed and in such a manner so as to prevent him from bringing his vehicle to a stop within the assured clear distance ahead; (3) failing to drive his vehicle on the right side of the highway; (4) failing to give plaintiff’s vehicle one-half of the main travelled portion of the highway when meeting plaintiff’s vehicle approaching from the opposite direction; (5) violating the common-law rules of the road.
The defendants denied that defendant driver was guilty of any of the claimed acts of negligence and pleaded the affirmative defense of contributory negligence of the' plaintiff driver.
Plaintiff driver testified that he observed defendants’ vehicle approaching from the opposite direction at a high rate of speed, and that thereupon plaintiff proceeded to slow down and stop. Defendant, in an effort to stop, struck the snowbank on his right, veered off from the snowbank and proceeded across the highway striking plaintiffs’ stopped vehicle and pushed it back about four feet. Plaintiff driver further testified that at the time of impact his vehicle was stopped on its own right side of the highway and that there was room for defendant to have passed safely if his vehicle had been under proper control. The officer who investigated the accident testified that there was room for the two vehicles to have passed each other in safety.
The defendant driver testified that his vehicle was stopped at the time of the collision and that although his vehicle may have been partially over the center line, plaintiffs’ vehicle was likewise partially over the center line, and struck defendants’ vehicle. He further testified that there was not enough room for the two vehicles to have passed. Two passengers in the defendants’ vehicle testified and corroborated defendant driver’s testimony as to how the collision occurred. It was brought out upon cross-examination that both of these witnesses’ testimony was inconsistent with prior statements given by them. The trial judge stated in his opinion, “The court was not impressed by the testimony of the two passengers in the defendant vehicle. Their testimony was inconsistent with prior statements.”
The trial court, sitting’ without a jury, found in favor of the plaintiffs in a total amount of $3,362.34.
Defendants have appealed and raise the single issue:
Did the plaintiffs prove their claims by a preponderance of the evidence?
There were two versions of how the collision took place. The trial judge believed the plaintiff driver’s version. A trial judge in a nonjury case may give such weight to the testimony as in his opinion it is entitled to, and his findings will not be reversed unless the evidence clearly preponderates in the opposite direction. Eckerle v. Twenty Grand Corporation (1967), 8 Mich App 1.
There was adequate evidence if believed by the trier of the facts to justify the findings of negligence on the part of defendant driver which proximately caused the collision and damages, and of no contributory negligence on the part of the plaintiff driver.
Affirmed. Costs to plaintiffs. | [
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Quinn, J.
October 29, 1966, during the robbery of a jewelry store, William Finnk, a part owner of the store, was shot and killed. November 12, 1966, after observing defendant run a stop sign, the police gave chase. After running another stop sign, defendant drove into a gas station, hit a gas pump and sheared it off, starting a fire. His car went through the front window of the station, at which time defendant left the vehicle and ran away. The police followed and finally cornered defendant in a private garage. Immediately prior to being apprehended, defendant was observed tossing a gun beneath the car that was parked in the garage. The gun was recovered and ballistic tests later the same day established that it was the gun from which five bullets taken from Finnk’s body had been fired.
Defendant was arrested about 3:15 p.m. on November 12, 1966; he was brought to police headquarters at 3:45 p.m., after which the ballistic tests were made. About 4 p.m. some preliminary questioning of defendant began, and at 5:55 p.m. detective Casey began questioning defendant. The latter questioning resulted in a statement of defendant, taken in long-hand by detective Casey, read by defendant, corrected at his suggestion and signed by defendant at 7:50 p.m. on November 12th.
In this statement, defendant said he bought the gun from a man named Jeff on the night of November 5, 1966. He further stated that on October 29, 1966, after he observed an employee of the store that was robbed enter it with two colored men and later saw the two colored men leave the store, enter an automobile and drive away, he (defendant) entered the store. On entry, defendant said he saw a man’s feet sticking out, safe open and papers strewn about. Defendant said he took two watches that were on the floor and ran away. He stated that he learned from reading the paper two days later a man was killed in the robbery. Defendant was wearing one of the stolen watches at this interrogation and he said the other one was at home. At 8:30 p.m. on November 12th, he executed a consent to search his home.
At 9:40 on November 12th, defendant was taken to Detroit General Hospital for treatment of a cut on his leg which resulted from the accident at the gas station. At 10:15 p.m., he was returned to the ninth floor of police headquarters, and at 10:30 p.m. on the 12th, defendant informed the police he wanted to make a statement. An assistant prosecuting attorney and a stenographer took this statement between 11 p.m. and 11:45 p.m. on November 12th.
On search of defendant’s home on the evening of November 12th, the police recovered three watches and a black onyx ring that were taken from the robbed store. At the request of defendant’s wife, the officer conducting the search brought her back to police headquarters with him.
In the statement taken by the prosecuting attorney, defendant admitted the statement he gave to detective Casey was untrue, it was “garbage”. Defendant stated that he, Clarence and Jeff went to the store to rob it; that he (defendant) drove the get away car, and that he was given some watches, some rings and about $50 by the other two after the robbery. (On search of defendant after his arrest, the police found $50 in his shoe.) Defendant said Jeff was armed with a P-38 arid the other guy had a .38. Defendant further stated that Jeff gave him the .32 revolver the night of October 29, 1966 after the robbery, but that defendant knew nothing of the shooting until October 31, 1966. Thereafter, defendant said he questioned Jeff about the shooting and that Jeff admitted shooting a man in the store after the latter pulled a gun on Jeff.
Defendant was charged with and tried for first-degree murder. CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548). His defense was alibi. The jury convicted him of first-degree murder. He was sentenced and he appeals.
At trial and after a Walker hearing, the two statements given by defendant were admitted in evidence and read to the jury. On appeal,, defendant claims error in the admission of the statement given to the prosecuting attorney because it was involuntary. The basis for the claimed involuntariness is that defendant says he gave the statement so that his pregnant wife could be released by the police to go home.
Whether we apply the “clearly erroneous” standard of People v. Walker (1967), 6 Mich App 600, or examine the entire record and make an independent determination of the issue of voluntariness as. prescribed by People v. Summers (1968), 15 Mich App 346, we reach the same result. Defendant’s statement to the prosecuting attorney was properly admitted in evidence.
Although excerpts from the statement support defendant’s assertion of involuntariness as does some of Ms testimony at the Walker hearing, all were uncorroborated, self-serving statements of defendant. Acceptance or rejection of these statements was dependent upon the credibility accorded defendant. When the manner of defendant’s apprehension, his possession of the gnn used in the killing and his attempt to get rid of it, his admittedly false first statement, the unrefnted testimony that defendant’s wife was not in custody or charged with anything are considered, we find defendant no more credible than did the trial judge.
During the cross-examination of defendant by the prosecuting attorney, the former was asked, “When you were arrested, where did you get that car you were driving?” Defendant replied, “That car? I stoled that car.” Defense counsel objected and requested to discuss the matter in the absence of the jury. The jury was excused and defendant moved for a mistrial. In defendant’s statement to the prosecuting attorney, there were references to the stolen car, but the judge had stricken them before that statement was read to the jury.
On this record, defendant properly argues that this is not an instance of inadvertance but a deliberate attempt by the prosecuting attorney to get before the jury inadmissible testimony, namely: proof of a separate and distinct crime with which defendant had never been charged. The trial judge denied the motion for mistrial, permitted the answer to stand and permitted further cross-examination with respect to the stolen car. Before any further testimony was taken, however, the trial judge instructed the jury that any evidence with respect to other offenses was not pertinent to defendant’s guilt but was only relevant to the jury’s evaluation of defendant’s credibility. Defendant claims this was reversible error.
The question for decision is not the validity of the general rule that evidence which shows or tends to show that the accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, is irrelevant and inadmissible. People v. Lundberg (1961), 364 Mich 596. The question is does every violation of that rule require automatic reversal?
We think not. By statute, CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096), appellate reversal of a jury verdict or the grant of a new trial is restricted to those cases where, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.
By rule, GrCR 1963, 529.1, no error in the admission of evidence is ground for granting a new trial or for setting aside a verdict unless refusal to do so appears to be inconsistent with substantial justice.
We do not say that the foregoing statute and rule are cure-alls for every error of the type here complained of. We do say that each requires an appellate court to review the whole case and in context with that review determine if the error complained of resulted in a miscarriage of justice or if refusal to hold that the error is reversible error is inconsistent with substantial justice.
We have reviewed this record as the statute and rule require, and we are unable to find a miscarriage of justice or any inconsistency with substantial justice if we uphold the trial court. This is not to say that we condone the practice of the prosecuting attorney nor the action of the trial court in sustaining that practice. It is to say that on this record we cannot say the error was reversible.
On direct examination, defendant testified to playing the numbers, shooting craps, patronizing blind pigs and dealing in illicit guns. On cross-examination, before the error here complained of, he admitted he carried concealed weapons. His criminal status and untruthfulness were well established by his own testimony prior to the testimony regarding the stolen car. The evidence of guilt was overwhelming and the only evidence supporting defendant’s alibi was his own testimony.
Finally, defendant claims reversible error because the prosecuting attorney brought out on cross-examination of the defendant that defendant received a dishonorable discharge from the army. We find it unnecessary to determine whether admission of such evidence was error. Assuming arguendo that it was error, it was not reversible error on this record under the statute and rule, supra.
Affirmed.
All concurred.
People v. Walker (On Rehearing, 1965), 374 Mich 331. | [
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] |
Fitzgerald, J.
Defendant, city of Dearborn, appeals as of right an order granting summary disposition in favor of plaintiff, David B. Landry, in this action under the Freedom of Information Act (foia), MCL 15.231 et seq. We reverse and remand.
On June 6, 2001, plaintiff submitted to defendant a request under the foia for copies of all employment applications received by defendant from unsuccessful applicants for the position of police officer from 1998 to the present. Plaintiff also asked for copies of all correspondence sent to applicants informing the applicants that they would not be hired as a police officer. Defendant denied the request on June 29, 2001, on the grounds that the records were exempt from disclosure under MCL lb^SClXsXix) and that the public interest in disclosing the information did not outweigh the public’s interest in nondisclosure of the information.
Plaintiff subsequently commenced this action, claiming that MCL 15.243(l)(s)(ix) did not apply because applications for employment of individuals who were not hired do not constitute personnel records of the police department. In the alternative, plaintiff claimed that the public interest would be served by releasing the information because the city of Dearborn has a substantial Arabic population, but only two of its police officers speak Arabic. Plaintiff alleged that it was in the public’s interest to review defendant’s hiring process to determine how many Arabic candidates applied for jobs and were not hired.
Plaintiff moved for summary disposition under MCE 2.116(C)(10). In response, defendant argued that summary disposition in favor of defendant was appropriate because no public interest would be served by releasing the requested information. Defendant stated that applications for employment do not require applicants to reveal an ability to speak a foreign language and, therefore, review of the applications would not provide plaintiff with the information he believed was in the public’s best interest. Similarly, correspondence sent to applicants who were not hired also did not reveal any foreign language ability. Defendant also argued that the term “personnel” in MCL 15.243(l)(s)(ix) extends to all records related to the recruitment of employees, not just the records of those actually hired.
The trial court granted summary disposition in favor of plaintiff, finding that the applications requested were not personnel records of the police department and did not fall within an exemption. Thus, the court granted plaintiffs motion in part, requiring defendant to produce the requested applications, with any Social Security numbers redacted, within twenty-one days.
The issue presented is whether the employment applications of individuals applying for the position of police officer are exempt from disclosure under the FOIA. The application of exemptions requiring legal determinations is reviewed under a de novo standard. Federal Publications, Inc v City of Lansing, 467 Mich 98, 101; 649 NW2d 383 (2002).
Under the FOIA, public bodies are required to disclose all public records that are not specifically exempt from disclosure under the act. Sclafani v Domestic Violence Escape, 255 Mich App 260, 264; 660 NW2d 97 (2003). MCL 15.243(1) sets forth certain exemptions available to public bodies to protect cer tain types of records from disclosure. Section 243(l)(s)(ix) provides as follows:
(1) A public body may exempt from disclosure of a public record under this act:
* * *
(s) Unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance, public records of a law enforcement agency, the release of which would do any of the following:
* * *
(ix) Disclose personnel records of law enforcement agencies.
Under the above exemption, requested records are exempt from disclosure if two grounds are satisfied. First, the records must qualify under the exemption for personnel records in § 243(l)(s)(ix). Second, the public interest in protecting the records must outweigh the public interest in reviewing the records. The burden is on the public body to prove that a record is exempt under the FOIA, and that a record is exempt under the public-interest balancing test. Federated Publications, supra at 107-109; MCL 15.240(4).
Whether applications for employment qualify for exemption under § 243(1)(s)(ix) depends on how the phrase “personnel records of law enforcement agencies” is interpreted. The term “personnel” with regard to the foia has not been defined in a published opinion in Michigan. Although it has been held that a law enforcement agency’s records of internal investiga tions fall within § 243(1)(s)(ix), see, e.g., Kent Co Deputy Sheriffs Ass’n v Kent Co Sheriff, 463 Mich 353, 365-367; 616 NW2d 677 (2000), and Sutton v City of Oak Park, 251 Mich App 345, 350; 650 NW2d 404 (2002), in those decisions and others applying § 243(l)(s)(ix) the terms “personnel” and “personnel records” have not been defined.
The primary goal of judicial interpretation of statutes is to discern and give effect to the intent of the Legislature. This Court discerns that intent by examining the specific language of a statute. If the language is clear, this Court presumes that the Legislature intended the meaning it has plainly expressed and the statute will be enforced as written. Pohutsky v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002). Unless otherwise defined in the statute, or understood to have a technical or peculiar meaning in the law, every word or phrase of a statute will be given its plain and ordinary meaning. See MCL 8.3a.
Generally, dictionary definitions of the term “personnel” appear to limit that term to actual employees of an organization when the word is used as a noun. In The Random House Webster’s Unabridged Dictionary (2d ed), p 1446, “personnel,” as a noun, is defined as “a body of persons employed in an organization or place of work.” Similarly, Webster’s New Twentieth Century Dictionary, Unabridged (2d ed), p 1339, defines “personnel” as “persons employed in any work, enterprise, service, establishment, etc.” The American Heritage Dictionary of the English Language, p 979, defines the word as “[t]he body of persons employed by or active in an organization, business, or service.”
However, the term “personnel” is not used in the statute as a norm, but rather as an adjective. Thus, the term can be given a broader meaning. The term “personnel” is not used to describe what group of people the records encompass, such as all active employees, but to describe the type of documents protected. Webster’s New Twentieth Century Dictionary, Unabridged (2d ed), p 1339, gives an alternative definition for the term “personnel” when that word is used as an adjective: “of or in charge of personnel.” As an example of the use of that term as an adjective, Webster’s includes the following:
[PJersonnel director: (a) one who is in charge of the personnel of a business establishment; his duty is to supervise the selection, and sometimes training, of the personnel;
The Random House Webster’s Unabridged Dictionary (2d ed), p 1446, defines “personnel department” as follows:
[PJersonnel' department, the department in an organization dealing with matters involving employees, as hiring, training, labor relations, and benefits. Also called human resources department.
The foia is intended to promote the disclosure of information. Consequently, the exemptions to disclosure are narrowly construed. Herald Co v Bay City, 463 Mich 111, 119; 614 NW2d 873 (2000). Despite this rule of construction, the plain and ordinary meaning of the term “personnel records” in § 243(1)(s)(ix) includes all records used by law enforcement agencies in the selection or hiring of employees. The Legislature’s use of the term “personnel” as an adjective encompasses all facets of the employment process, not simply records related to current employees of an agency. Thus, the trial court erred an as a matter of law when it held that the exemption was limited to personnel records of existing employees of law enforcement agencies.
Other exemptions adopted by the Legislature also support construing § 243(l)(s)(ix) as extending to all records of a personnel department. Other exemptions included in § 243(l)(s) prevent the public from obtaining personal information about active police officers that would typically also appear in an officer’s personnel file.
(1) A public body may exempt from disclosure as a public record under this act:
:|: * $
(s) Unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance, public records of a law enforcement agency, the release of which would do any of the following:
* * *
(it) Identify or provide a means of identifying a law enforcement undercover officer or agent or a plain clothes officer as a law enforcement officer or agent.
(Hi) Disclose the personal address or telephone number of law enforcement officers or agents or any special skills that they may have.
(iv) Disclose the name, address, or telephone numbers of family members, relatives, children, or parents of law enforcement officers or agents![ ]
* * *
(mi) Endanger the life or safety of law enforcement officers or agents or their families, relatives, children, parents, or those who furnish information to law enforcement departments or agencies.
(-viii) Identify or provide a means of identifying a person as a law enforcement officer, agent, or informer. . . . [MCL 15.243(1)(5).]
As a rule of construction, “no part of a statute should be treated as mere surplusage or rendered nugatory.” Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 299; 565 NW2d 650 (1997). In other parts of § 243(1)(s), the Legislature had protected from disclosure personal information about active police officers that would subject them to risk, such as their names, addresses, telephone numbers, and family information. Much of this information is found in personnel records. Therefore, we conclude that the Legislature did not intend to limit § 243(1)(s)(ix) to only personnel records of active employees when it clearly has protected much of the same information in other exemptions.
Our conclusion that the requested records qualify as personnel records subject to exemption under § 243(1)(s)(ix) does not automatically render the requested records exempt. Federated Publications, supra at 109. Rather, the records are merely exemptible and are exempt only if the public-interest balancing test is satisfied. Id. at 109-110. Because the trial court held that the records were not exempt under § 243(1)(s)(ix) as personnel records, the trial court did not address the public-interest balancing test. Although the Supreme Court has mandated that a trial court’s ruling on the public-interest balancing test must be given deference and reviewed for clear error, Federated Publications, supra at 106-107, we conclude that it would be a waste of judicial resources to remand this matter to the trial court to first rule on the public-interest balancing test because the facts are generally not in dispute.
The affidavit of Alan Wozniak, defendant’s human resources administrator, provides support for finding that that the release of employment applications of individuals not hired would not be in the public’s best interest. Wozniak averred that many of those applying for jobs with defendant’s police department are currently working for other agencies as police officers. Therefore, disclosure of this information would allow the public to have access to the home addresses and other sensitive information about current police officers, even if they are not now working in Dearborn.
Furthermore, in order to qualify for the position of police officer with defendant, a candidate must have taken the Michigan Commission on Law Enforcement Standards (mcoles) physical agility and written tests, and qualify under the mcoles employment standards or submit verification of certification as a police officer. Applicants for the job typically will have some form of law enforcement training or background, even if not currently employed in that capacity. If applicants for positions with defendant are not working in law enforcement at the time they apply, it is reasonable to believe that many of them will eventually obtain jobs with law enforcement agencies. Therefore, the majority of individuals who apply for positions as police officers with defendant likely will serve as law enforcement officers at some point, mak ing the disclosure of information from their applications a security risk for the majority of applicants. The Legislature clearly intended to protect from disclosure the addresses and other information about the private lives of police officers by adopting the exemptions in § 243(l)(s).
Moreover, as Wozniak points out in his affidavit, releasing the applications would likely have a chilling effect on future applications. Certain individuals, particularly those who have previously worked in law enforcement, may decide not to apply for other positions because of the risk to their own lives or the safety of their families. As a result, defendant may have a smaller pool of candidates to choose from and may be limited in its efforts to recruit more experienced officers. Certainly, the public interest would not be served if defendant’s ability to fill positions in the future from the best possible pool of candidates were frustrated.
Plaintiff’s argument in favor of disclosure of the information does involve the public interest. According to plaintiff, he wants to review the applications to determine if defendant is not hiring as police officers individuals who are fluent in Arabic. This information clearly would be in the public’s interest, particularly for Dearborn residents. However, plaintiff has not shown that this public interest will be satisfied by the release of the applications.
A review of defendant’s application form reveals that it does not request information from applicants about fluency in foreign languages. Nor would releasing any correspondence sent by defendant to rejected applicants lead to furthering this interest. Therefore, although plaintiff may have a valid public interest in mind, he has not demonstrated how that interest will be furthered by the release of the requested information.
Furthermore, redaction of the applications is not appropriate in this case. Even if defendant redacted sensitive information on the applications, because the applications or any correspondence do not contain information about foreign language skills, a redacted application would not provide plaintiff with the information he claims to be seeking in order to further the public interest.
Reversed and remanded for entry of judgment in favor of defendant. Jurisdiction is not retained.
Throughout the lower court proceedings the parties refer to MCL 15.243(l)(t). However, MCL 15.243(1)(t) was redesignated as MCL 15.243(1)(s), by an amendment adopted in 2000. This opinion will therefore cite § 243(1)(s).
Defendant also argued that the release to the public of applications submitted for the position of police officer would have a chilling effect on the number of applicants because many applicants are employed as police officers in other jurisdictions.
The trial court granted a stay of its order in this matter until further order of the trial court.
Section 243(1) was amended by 2002 PA 130 and 2002 PA 437. This opinion refers to the version of the statute that was in effect in 2001 when plaintiff submitted his request for the records.
Both §§ 243(l)(s)(m) and (iv) were amended by 2002 PA 130 to include the phrase, “active or retired” to describe records of the law enforcement officers or agents exempt from disclosure. | [
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Neff, J.
In this search and seizure case, the people appeal by right an order of the trial court suppressing evidence obtained in conjunction with a “knock and talk” visit by the police to defendant’s home. A drug enforcement team entered the backyard of defendant’s home, where one of the officers saw marijuana growing in a lean-to attached to the back of the home. The dispositive issue is whether the knock and talk visit can be used as the premise for a warrantless entry of the backyard area of defendant’s home to justify the seizure of evidence under the plain view exception to the warrant requirement.
We agree with the trial court that extending the concept of the “knock and talk” visit in this case to cover entry of the backyard of defendant’s home violates the constitutional protection against unreasonable search and seizure. US Const, Am IV; Const 1963, art 1, § 11. We affirm the order granting defendant’s motion to suppress the evidence and to quash the information and bindover.
I. FACTS
In May 2001, the Thumb Narcotics Unit of the Michigan State Police conducted a hemp (Help Eliminate Marijuana Plants) helicopter flyover of defendant’s home after the police received an anonymous tip that marijuana was being grown there. The marijuana spotter in the helicopter radioed the ground crew that he observed pots and potting materials in back of the home and saw a man at the back of the property waving at the helicopter. No marijuana plants were seen. The ground crew of four plainclothes officers, and eventually two uniformed officers, descended on defendant’s home, arriving in several vehicles. Sergeant Lawrence Scott arrived first, parked in the driveway of defendant’s home, and immediately proceeded toward an individual he saw in the side yard, who identified himself as a neighbor. Scott told the neighbor to wait there, and Scott proceeded around the east side of the home to the backyard. He saw another individual sitting at the rear of the home. He saw Trooper Schwalm come around the home and contact that individual. At that point, Scott saw the marijuana plants inside a lean-to attached to the back of the home. Defendant was coming out of the woods at the rear of the property. When defendant headed into the lean-to and did not obey Scott’s commands to stop, Scott apprehended and handcuffed him.
In the meantime, other officers had arrived. Scott and another officer then went to the front of the house, which had a carport on the west end, and knocked on the door. Mrs. Galloway, defendant’s wife, answered the door. After a protective sweep of the house, the officers took Mrs. Galloway to a police vehicle for questioning. Mrs. Galloway subsequently signed a consent to search form.
At the time the police went to defendant’s home, they had the anonymous tip and visual observations of potting materials from the flyover. It is admitted that no marijuana plants were observed from the helicopter. It is undisputed that the police did not have probable cause to obtain a search warrant. The police seized 122 marijuana plants from the lean-to. They also seized marijuana cigarette butts and marijuana stems and seeds from the inside of the residence. Defendant was charged with manufacturing twenty or more, but fewer than 200, marijuana plants, second offense, MCL 333.7401(2)(d)(ii), MCL 333.7413(2). The trial court concluded that the search and seizure were illegal and suppressed the evidence.
H. STANDARD OF REVIEW
We review de novo a trial court’s ultimate decision on a motion to suppress. People v Frohriep, 247 Mich App 692, 702; 637 NW2d 562 (2001). However, we review the trial court’s findings of fact for clear error. Id. A finding is clearly erroneous if, after reviewing the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made. Id. This Court must give deference to the trial court’s factual findings, particularly where the credibility of witnesses is involved. MCR 2.613(C); People v Farrow, 461 Mich 202, 209; 600 NW2d 634 (1999). Accordingly, we may not substitute our judgment for that of the trial court and make independent findings. Id. It is the prosecutor’s burden to show that a search and seizure challenged by a defendant were justified by a recognized exception to the warrant requirement. People v Wade, 157 Mich App 481, 485; 403 NW2d 578 (1987).
m. PLAIN VIEW SEIZURE
The people argue that the trial court improperly suppressed evidence of the 122 marijuana plants because the police properly accessed defendant’s property for a knock and talk and discovered the marijuana plants in plain view. Accordingly, the actions of the police were not offensive to search and seizure principles.
In Frohriep, supra at 697, this Court recently addressed for the first time the constitutionality of the “knock and talk” procedure:
Generally, the knock and talk procedure is a law enforcement tactic in which the police, who possess some information that they believe warrants further investigation, but that is insufficient to constitute probable cause for a search warrant, approach the person suspected of engaging in illegal activity at the person’s residence (even knock on the front door), identify themselves as police officers, and request consent to search for the suspected illegality or illicit items.
Whenever the knock and talk procedure is utilized, the ordinary rules that govern police conduct must be applied to the circumstances of the particular case. Id. at 698-699.
In this case, the purported knock and talk led to a seizure based on plain view, not a consent to search as in Frohriep, supra at 701. The plain view exception to the warrant requirement allows a police officer to seize items in plain view if the officer is lawfully in the position to have that view and the evidence is obviously incriminatory. People v Champion, 452 Mich 92, 101; 549 NW2d 849 (1996); People v Wilson, 257 Mich App 337, 361; 668 NW2d 371 (2003). The plain view exception is predicated on police convenience. Champion, supra at 101. “It would be unreasonably inconvenient to require the police, once they have made a valid intrusion and have discovered probable evidence in plain view, to leave, obtain a warrant, and return to resume a process already in progress.” Id. at 102.
If the police intrusion was unlawful in the first place, the plain view exception does not apply. Hor ton v California, 496 US 128, 136; 110 S Ct 2301; 110 L Ed 2d 112 (1990); People v Oliver, 417 Mich 366, 385 n 16; 338 NW2d 167 (1983); People v Raybon, 125 Mich App 295, 300-303; 336 NW2d 782 (1983). The dis-positive consideration in this case is therefore whether the police intrusion into defendant’s backyard was lawful. We conclude that it was not.
Knock and talk, as accepted by this Court in Frohriep, does not implicate constitutional protections against search and seizure because it uses an ordinary citizen contact as a springboard to a consent search. Frohriep, supra at 697-698. Fourth Amendment rights may be waived by a consent to search. Id. at 702.
This case does not fit within the knock and talk framework. Helicopter surveillance and movement by law enforcement officers on the ground directly into the backyard of a private home do not constitute ordinary citizen contact. The knock and talk in this case is more aptly characterized as an investigatory entry of the back area of defendant’s home. Such investigatory entry by lav/ enforcement fails Fourth Amendment safeguards.
Moreover, the alleged knock and talk procedure was not used as a springboard to secure defendant’s permission for a search. Instead, it was used as a springboard to a plain view exception to the warrant requirement. This certainly is not the constitutional framework in which this Court accepted knock and talk in Frohriep. Id. at 697-699. A predicate to the plain view exception is that the police have the right to be in the position to have that view. Horton, supra; Oliver, supra.
Here, a drug enforcement team, consisting of four plainclothes officers and two uniformed officers, descended upon defendant’s home, arriving in succession in several vehicles. Sergeant Scott, who discovered the marijuana, did not wait for the other officers to conduct the purported “knock and talk,” but instead proceeded directly to the back of defendant’s home after his contact with an individual in the side yard of the home. The police report stated that, according to the anonymous tip, the marijuana was in a six-foot by four-foot container right behind defendant’s house. Scott testified that after telling the first individual he encountered to wait there, he proceeded around the house and saw a second individual sitting at the rear of the house, who was approached by Trooper Schwalm when he came around the home. Sergeant Scott saw the marijuana plants inside the lean-to in a large container. At that point, defendant was coming out of the woods at the back of the property. The police did not first approach the front door of home, nor did they proceed along a path that the public could be expected to travel in visiting defendant’s home, People v Houze, 425 Mich 82, 92 n 1; 387 NW2d 807 (1986), or simply approach defendant as he was standing in his yard to ask permission to “look around,” Frohriep, supra at 701. Only after the marijuana was discovered, did the officers go to the door of the home and knock, at which point Mrs. Galloway answered the door.
When a knock and talk is used as a springboard for obtaining something other than consent to a search, the constitutional framework changes. Merely characterizing a law enforcement maneuver as a knock and talk does not warrant judicial bypass of constitutional safeguards against unreasonable searches and seizures. As this Court prophetically observed in Frohriep, id. at 701, “we can envision a situation where the police conduct when executing the knock and talk procedure indicates an unreasonable seizure or results in an unreasonable search . . . .”
By definition, the benefit of the knock and talk tactic carries with it certain costs that presumably keep its use by law enforcement in check:
We note that when utilizing the knock and talk procedure, the police are “merely asking for permission to search a person’s home, recognizing and risking that a refusal would not only alert the suspect that he is being watched but would quite likely leave the police empty handed.” Swingle & Zoellner, “Knock and talk” consent searches: If called by a panther, don’t anther, 55 J Mo B 25 (1999). [Frohriep, supra at 698 n 4.]
These costs to law enforcement do not exist in employing the tactics used in this case. Such intrusions cannot be sanctioned under the guise of knock and talk and “ordinary citizen contact.” Id. at 701.
IV. RESPONSE TO THE DISSENT
The dissent cites Frohriep as authority for concluding that Sergeant Scott’s action was reasonable, relying largely on Scott’s own testimony in its analysis. We would agree if the facts coincided with those in Frohriep and if we could properly ignore the trial court’s assessment of credibility in this case. However, the facts differ greatly from those in Frohriep, and the standard of review precludes crediting Scott’s téstimony to contradict the trial court’s determination.
The facts in Frohriep indicate that (1) the police had information that the defendant may have had controlled substances on his property, (2) the officers went to the defendant’s residence and encountered him in an open area near a pole bam, and (3) the officers obtained his consent to search. Frohriep, supra at 694-695, 701. Frohriep was a benign contact by the police that resulted in a consent to search-facts that properly fit within the realm of “ordinary citizen contact,” id. at 701; dissent, post. The facts of this case are quite different.
The trial court’s opinion states the facts in pertinent part as follows:
On or about May 29, 2001, the Thumb Narcotics Unit assisted by the State Police Aviation Unit was conducting a “fly over” of several residences looking for the existence of illegal substances. On that day, they spotted “pots and potting material” which they could not identify as containing any illegal substance or any substance of any kind. The helicopter occupants also observed an individual on the ground behind the house waving at them. Armed with this very incriminating evidence, the ground crew then came to Defendant’s residence.
The prosecution admits that, at this point, there was no probable cause to obtain a search warrant; that there were no exigent circumstances and that this was not a search incident to an arrest.
As each officer arrived at the scene, not a single one of them went towards the door of the premises. All ran to the southeast comer of the premises, which is the back area of the premises. Upon running to that area, they first encountered a Mr. Wood, whom they ordered not to move and to remain stationary until they came back to him. They next encountered Mr. Galloway “and took him down” because he was not following “my commands.” They also encountered another individual in the back yard area. The first officer on the premises testified that immediately coming to the back yard area, he was able to observe growing marijuana plants inside a lean-to at the back of the premises through a doorway to that lean-to.
The court concluded that the police mission did not constitute a knock and talk, and found as follows:
In the case which is before us, the helicopter made observations of pots and potting material behind the house. Not a single police officer when they came to the premises could see anyone behind the house. Not a single police officer that came to the premises went to the door of the premises to knock and ask if they could have consent to search the premises. Instead, these police officers charged like stormtroopers to the back of the home where the helicopter had observed the pots and potting material. Only by chance did they encounter Mr. Wood and Mr. Galloway in the back yard. This procedure was not a knock and talk procedure under any stretch of the imagination. It was a search and destroy mission aimed directly at searching the back yard area of the property where the helicopter occupants had observed the pots or potting material. Were this Court to find no constitutional violation in this search it would mean that every citizen in Sanilac County with pots and potting material in their back yards who wave at an airplane or helicopter would be subject to this type of warrantless and unwarranted search of their premises.
The dissent credits the prosecutor’s argument, and improperly relies on Scott’s testimony to conclude that, on the basis of objective facts, Scott acted reasonably in proceeding to the “barrier-free” rear of defendant’s premises to identify the property owner for purposes of seeking consent to a search. But this testimony clearly was not credited by the trial court and is contrary to the court’s findings. The dissent’s analysis ignores this Court’s obligation to review the trial court’s factual findings for clear error, giving special deference to the trial court’s findings where the credibility of witnesses is involved. Farrow, supra at 209; Frohriep, supra at 702. This Court may not substitute its judgment for that of the trial court and make independent findings. Farrow, supra at 209; Frohriep, supra at 702.
The evidence supports the trial court’s findings. The record contains photographs of defendant’s homé, showing the driveway where Scott parked, the doors, and the officers’ access to the side and backyard of the home. The trial court had before it the photographs and other exhibits, including a diagram of the property drawn on the board by Scott, as well as the witnesses’ testimony. The trial court could contemporaneously evaluate Scott’s testimony in light of the physical evidence to decide whether to credit his testimony that he was attempting to locate the owner of the property to execute the knock and talk. Contrary to the dissent’s analysis, the court clearly rejected Scott’s testimony. Mrs. Galloway testified that when the officers got out of their vehicles, they were “running” toward her backyard, which she clarified was not “walking,” but was “between a fast walk and a ran.” She saw Scott get out of his vehicle and proceed to the southeast end of the home, which appears to be the opposite end of the house from the driveway and the door leading from the carport to the house. She heard the helicopter overhead.
Although the dissent finds that it was reasonable for the officers to proceed to the back of the house, purportedly for the purpose of seeking consent to search from the person at the back of the property who waved to the helicopter, there was no indication that the person who waved was the property owner. According to Scott’s testimony, the individual was in the woods beyond the house. Even though Scott parked in the driveway, apparently next to the home’s main door, he did not go to the door. He “walked” over to a person coming from the east (near the northeast comer of the home) and, upon learning it was a neighbor, still did not go to the door of the home. Instead, he proceeded south to the rear of the home, which, according to the tipster, was where the marijuana was located. The officers eventually did go to the main door of the home, leading from the carport at the west side of the house, and knocked on the door. Mrs. Galloway answered the door, and they asked her for consent to search. This was only after they observed the marijuana at the back of the house and had apprehended defendant.
Contrary to the dissent’s n 3, post at 652-653, viewing the facts objectively to determine whether the police conduct is within the ambit of a knock and talk does not require disregarding that the police had information that the marijuana plants were right behind the house. This is not a matter of an officer’s motive in undertaking a knock and talk as in Frohriep, supra at 698, or of an officer’s subjective inten tions in an ordinary, probable-cause analysis, Wilson, supra at 355-356.
In Frohriep, supra at 698, cited by the dissent, this Court merely noted that the fact that the motive for the contact in a knock and talk is an attempt to secure consent to search does not alter its nature as an ordinary citizen contact. In Wilson, also cited by the dissent, this Court discussed the irrelevance of an officer’s subjective intentions in regard to a search pursuant to a valid warrant where the search did not exceed the scope of the warrant. Wilson, supra at 357. This does not mean that an officer’s subjective intentions are never relevant. Id. at 355 (factors such as subjective motivations and inviting along another officer from another area of investigation could be evidence that the officers went beyond the scope permitted by the warrant), and id. at 355-356 (inventory search and administrative inspection are exceptions to the rule that an officer’s motive does not invalidate objectively justifiable behavior under the Fourth Amendment). We therefore disagree with the dissent’s view that it is irrelevant whether Scott subjectively anticipated or believed that marijuana would be located in the backyard.
In view of the trial court’s findings and the record as a whole, we reject the dissent’s analysis characterizing Scott’s conduct as an attempt to identify the property owner for purposes of seeking consent to search. To rule otherwise would require improperly substituting our judgment for that of the trial court and making our own independent findings. Farrow, supra at 209; Frohriep, supra at 702.
V. CONSENT TO SEARCH
The prosecution also argues that the trial court improperly suppressed the evidence that was obtained through the consent to search that was granted by Mrs. Galloway. We find no clear error in the trial court’s ruling that Mrs. Galloway’s consent to search was invalid. Frohriep, supra at 702.
A consent to search permits a search and seizure without a warrant when the consent is unequivocal, specific, and freely and intelligently given. Id. The validity of a consent depends on the totality of the circumstances. Id. The court found that Mrs. Galloway’s consent was not unequivocal, specific, and freely and intelligently given, that her liberty was restrained, and that she reasonably would not have felt free to leave. The court noted that she was not allowed to remain in the house or to sit at the picnic table during questioning, and that the police required her to sit in the police car, where she had to remain and could not smoke until the issue of searching the interior of the home was resolved. The court credited Mrs. Galloway’s testimony that she was told that if she did not consent to the search, the whole process would take longer, which would require her sitting in the police car while officers went to get a search warrant.
Having examined the record, we find no clear error in the court’s findings. It was undisputed that the police required Mrs. Galloway to sit in the police car while interviewing her and obtaining her consent to search. Testimony established that the police repeatedly asked Mrs. Galloway to sign the consent to search form before obtaining her signature and told her that they would have to get a warrant if she did not sign the consent. Mrs. Galloway testified that she did not want to sign the consent form and that the police told her it would just take longer if she did not. She stated that she felt she had no choice but to sign the consent. This Court must give deference to the trial court’s factual findings where the credibility of witnesses is involved. MCR 2.613(C); Farrow, supra.
Having found no error in the trial court’s conclusion that the marijuana plants were illegally seized, we need not address the prosecution’s argument that the evidence found inside the residence is admissible under the inevitable discovery rule. Absent the evidence of the marijuana, the trial court properly quashed the information and bindover.
Affirmed.
Fort Hood, P.J., concurred.
These facts are based on testimony and evidence at the suppression hearing.
It is not objectionable for an officer to come upon that part of the property which “has been opened to public common use.” The route which any visitor to a residence would use is not private in the Fourth Amendment sense, and thus if police take the route “for the purpose of making a general inquiry” or for some other legitimate reason, they are “free to keep their eyes open,” and thus it is permissible for them to look into a garage or similar structure from that location. [House, supra at 92 n 1, quoting 1 LaFave, Search & Seizure, § 2.3, p 318.]
Scott could not state whether the person was on defendant’s property because he did not know the exact location of defendant’s property line. | [
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] |
Schuette, J.
Defendant Baraga-Houghton-Keweenaw Child Development Board appeals as of right an order granting in part and denying in part its motion for summary disposition under MCR 2.116(C)(10) and granting summary disposition to plaintiff Office Planning Group, Inc., under MCR 2.116(T)(2). We affirm.
I. facts
This case arose when defendant denied plaintiff access to bids it accepted for the purchase of office furniture. Defendant is a private, non-profit organization that runs federal Head Start programs in the three counties it serves. Plaintiff is a private, for-profit coiporation. In January 2001, defendant solicited bids for various office supplies and furnishings. Plaintiff submitted a bid for office furniture and cubicles on the original January 15 deadline. Defendant changed the deadline to January 29 after other vendors requested an extension, and plaintiff submitted a new bid before the extended deadline.
On January 29, 2001, defendant’s building committee opened the bids at a public meeting. Plaintiff’s representative, John Hamm, testified at the hearing on the motion for summary disposition that defendant’s executive director, Rodney Liimatainen, informed him of the meeting but did not invite him to attend. Liimatainen confirmed none of the vendors that submitted bids attended the meeting. After the board opened the bids, Liimatainen informed Hamm that plaintiff’s bid exceeded the lowest bid by $10,000. Defendant’s board accepted the lowest bid at its meeting on February 14, 2001.
In letters dated February 5 and February 23, 2001, plaintiff and its counsel filed requests with defendant pursuant to the Freedom of Information Act (foia) for copies of all bids for office furniture submitted to defendant. According to Hamm, plaintiff sought to ensure the winning bid contained the same items as plaintiffs bid. In a reply letter, defendant refused the request, stating it was a non-profit corporation and not subject to the FOIA.
Plaintiff filed the instant action and amended its complaint to include claims under the federal Freedom of Information Act, 5 USC 552, and “federal legislation which requires disclosure of information by parties supplying service under the so-called Head Start Program.” Defendant moved for summary disposition pursuant to MCR 2.116(C) (10), claiming no genuine issue existed with regard to any material fact and claiming defendant was not subject to the federal or state FOIA.
The trial court held an initial hearing on the motion and then requested the parties submit supplemental briefs addressing the application of 42 USC 9839, which sets administrative requirements for Head Start agencies. Among other things, the statute requires that agencies “provide for reasonable public access to information, including public hearings at the request of appropriate community groups and reasonable public access to books and records of the agency or other agencies engaged in program activities or operations involving the use of authority or funds for which it is responsible.” 42 USC 9839(a). After receiving the supplemental briefs, the court scheduled an evidentiary hearing to clarify what it viewed as possible factual disputes. During this second hearing, the trial court ruled the federal and Michigan versions of the FOIA did not apply to defendant. Plaintiffs FOIA claims are not at issue in this appeal.
On November 7, 2001, the trial court issued its opinion and order, denying defendant’s motion for summary disposition with regard to the Head Start statute. The trial court concluded 42 USC 9839(a) required defendant to provide copies of the bids to plaintiff. The court held the purchase of office furniture required the use of funds for which defendant was responsible and the bids defendant accepted qualified as “books and records of the agency.” Concerning what constituted reasonable access, the court noted certain types of access would not be reasonable, including a demand outside of working hours or a request that an agency create a record that does not exist. But the court concluded plaintiffs request was within reason:
In the present situation, a denial by the Plaintiff [sic, the defendant] of a written request to review specified, existing and readily accessible written bids is certainly not compliant with a requirement of providing reasonable public access. That would be true regardless of who made the request, but the case is even more compelling when the requesting party has a genuine, identifiable reason for the information sought, as did the Plaintiff.
In summary, Defendant’s denial of Plaintiff’s request to review and obtain copies of the bids in question was in violation of the Federal requirement that Plaintiff [sic, defendant] provide for reasonable public access to information, including reasonable public access to books and records of the agency, involving the use of funds for which the Plaintiff [sic, the defendant] is responsible.
The trial court granted plaintiff summary disposition pursuant to MCR 2.116(I)(2) and ordered defendant to provide “copies of all bids received by Defendant pursuant to its request for bids published in the Daily Mining Gazette and L’Anse Sentinel in accordance with Plaintiffs [sic, Defendant’s] bid request dated January 4, 2001.” The court also found defen-
dant could require plaintiff to pay reasonable copying costs.
Defendant now appeals the trial court’s grant of summary disposition to plaintiff. The trial court denied defendant’s motion to stay the proceedings pending this appeal, but we granted defendant’s motion to stay the proceedings and its motion for immediate consideration of this appeal.
n. STANDARD OF REVIEW
A trial court’s decision on a motion for summary disposition is reviewed de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). Additionally, statutory interpretation presents a question of law that we review de novo. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003).
IE. ANALYSIS
Defendant asserts the trial court erred in concluding 42 USC 9839(a) required defendant to disclose the bids plaintiff requested. We disagree.
The outcome of this case turns on the interpretation of a provision of the federal Head Start Act, 42 USC 9831 et seq. The primary goal of statutory interpretation is to ascertain and give effect to the Legislature’s intent. Heinz v Chicago Rd Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996). If the statute’s plain and ordinary meaning is clear, judicial construction is neither necessary nor permitted. Id. How ever, if reasonable minds could differ regarding the statute’s meaning, judicial construction is appropriate. Rowell v Security Steel Processing Co, 445 Mich 347, 351, 353; 518 NW2d 409 (1994).
Head Start programs “promote school readiness by enhancing the social and cognitive development of low-income children through the provision, to low-income children and their families, of health, educational, nutritional, social, and other services that are determined, based on family needs assessments, to be necessary.” 42 USC 9831. According to regulations promulgated by the Department of Health and Human Services (hhs), a Head Start Agency is “a local public or private non-profit agency designated to operate a Head Start program by the responsible HHS official . . . .” 45 CFR 1301.2 (emphasis added). Defendant concedes it is subject to the Head Start Act because it contracts to provide services for hhs.
The Head Start Act requires agencies to follow certain administrative procedures, including the following:
(a) Employment practices, nonpartisanship, staff accountability, public access to information, etc. Each Head Start agency shall observe standards of organization, management, and administration which will assure, so far as reasonably possible, that all program activities are conducted in a manner consistent with the purposes of this subchapter [42 USC 9831 et seq.] and the objective of providing assistance effectively, efficiently, and free of any taint of partisan political bias or personal or family favoritism. Each such agency shall establish or adopt rules to carry out this section, which shall include rules to assure full staff accountability in matters governed by law, regulations, or agency policy. Each agency shall also provide for reasonable public access to information, including public hearings at the request of appropriate community groups and reasonable public access to books and records of the agency or other agencies engaged in program activities or operations involving the use of authority or funds for which it is responsible. Each such agency shall adopt for itself and other agencies using funds or exercising authority for which it is responsible, rules designed to (1) establish specific standards governing salaries, salary increases, travel and per diem allowances, and other employee benefits; (2) assure that only persons capable of discharging their duties with competence and integrity are employed and that employees are promoted or advanced under impartial procedures calculated to improve agency performance and effectiveness; (3) guard against personal or financial conflicts of interest; and (4) define employee duties in an appropriate manner which will in any case preclude employees from participating, in connection with the performance of their duties, in any form of picketing, protest, or other direct action which is in violation of law. [42 USC 9839(a) (emphasis added).]
The parties dispute the meaning of the emphasized language and whether it requires defendant to grant plaintiffs request to view the bids for office furniture and cubicles.
Defendant first asserts 42 USC 9839(a) does not provide for a private cause of action. We disagree. Whether a statute provides a cause of action presents a question of statutory interpretation that we review de novo. Pitsch v ESE Michigan, Inc, 233 Mich App 578, 586; 593 NW2d 565 (1999), citing Long v Chelsea Community Hosp, 219 Mich App 578, 581-582; 557 NW2d 157 (1996).
This Court summarized the approach used to determine whether a private cause of action exists as follows:
If the common law provides no right to relief, and the right to such relief is instead provided by statute, then plaintiffs have no private cause of action for enforcement of the right unless: (1) the statute expressly creates a private cause of action or (2) a cause of action can be inferred from the fact that the statute provides no adequate means of enforcement of its provisions. Bell v League Life Ins Co, 149 Mich App 481, 482-483; 387 NW2d 154 (1986). It follows that courts must dismiss a private cause of action under a statute creating a new right unless the statute expressly created the private cause of action or the cause of action may be inferred because the statute does not provide adequate means to enforce its provisions. Forster v Delton School Dist, 176 Mich App 582, 585; 440 NW2d 421 (1989). [Long, supra at 583.]
Michigan courts have not addressed whether a private cause of action arises under 42 USC 9839(a). Neither have other state or federal courts. But two federal district courts have addressed whether other provisions of the Head Start Act provide a private cause of action, and each concluded they did not.
In Johnson v Quin Rivers Agency for Community Action, Inc, 128 F Supp 2d 332, 336 (ED Va, 2001), the plaintiff asserted numerous claims of mismanagement of a Head Start program, in violation of federal regulations. The district court, using an approach similar to that described in Long, supra at 583, determined no private cause of action existed and dismissed the claims for failure to state a claim on which relief could be granted. Johnson, supra at 336. The court concluded:
Under the scheme [the Head Start Act], the Secretary of the Department of Health and Human Services is directed to “establish by regulation standards applicable to Head Start agencies, programs, and projects under this sub-chapter,” including “minimum levels of overall accomplishment that a Head Start agency shall achieve.” 42 U.S.C. § 9836a(a)(l) & (2). The Secretary is also directed under this section to monitor the performance of every Head Start program and to take appropriate corrective action when a program fails to meet the performance standards established by the regulations. Specifically, the Act requires a full review of each grantee at least once during each three-year period, review of new grantees after the completion of the first year, follow up reviews and return visits to grantees that fail to meet the standards, and “other reviews as appropriate.” 42 U.S.C. § 9836a(c). If the Secretary determines, on the basis of such a review, that a grantee fails to meet the standards described in § 9836a(a), the Secretary shall, inter alia, institute proceedings to terminate the Head Start grant unless the agency corrects the deficiency. 42 U.S.C. § 9836a(d).
All but three of the regulations cited in plaintiff’s Second Amended Complaint were promulgated pursuant to the Head Start Act. See 45 C.F.R. § 1304.1. There is no provision in the Head Start Act, however, permitting a private citizen to enforce its provisions. Based on the alternative specific remedies mentioned above, Congress’ intent is clear. The remedy for substandard performance by a Head Start program is an enforcement action by the Secretary of the Department of Health and Human Services, not by private litigants. [Id.]
Meanwhile, in Hodder v Schoharie Co Child Dev Council, Inc, 1995 US Dist LEXIS 19049, 1 (ND NY, 1995), former employees of a private, non-profit organization that operated Head Start programs sued the organization for firing them in violation of the Head Start Act and its interpretive regulations. The court applied a four-part test to determine whether Congress intended to provide a private cause of action: “1) whether plaintiffs belong to the class for whose special benefit Congress passed the statute; 2) whether the indicia of legislative intent reveal a congressional purpose to provide a private cause of action; 3) whether implying a private cause of action is consistent with the underlying purposes of the legislative scheme; and 4) whether the plaintiffs cause of action concerns a subject that is traditionally relegated to state law.” Id. at 10-11, citing Merrell Dow Pharmaceuticals, Inc v Thompson, 478 US 804, 810-811; 106 S Ct 3229; 92 L Ed 2d 650 (1986); Cort v Ash, 422 US 66, 78; 95 S Ct 2080; 45 L Ed 2d 26 (1975).
In light of these factors, the Hodder court decided no private cause of action existed. First, the court found the plaintiffs were “far-removed from the class for whose special benefit Congress enacted the Head Start Act,” which benefits disadvantaged children and their families. Hodder, supra at 11. Second, the court found no indication Congress intended to create a private cause of action for employees terminated from Head Start agencies. Id. at 12. Third, the court concluded that inferring a private cause of action would do nothing to further the underlying purposes of the legislative scheme. Id. at 13-14. Finally, the court held actions for breach of an employment contract are traditionally relegated to state law. Id. at 16.
Returning to the case before us, neither 42 USC 9839(a) nor the Head Start Act generally creates an express private cause of action. However, we conclude the statute implies a private cause of action. In Michigan, a private cause of action may be inferred if a statute provides no adequate means of enforcing its provisions. Long, supra at 583. The statute in question, 42 USC 9839(a), requires Head Start agencies to provide reasonable public access to their books and records, but it does not provide any means of enforcing this specific provision. Although the Head Start Act requires agencies to open their books and records to the department secretary or the United States Comptroller General for audit and examination, 42 USC 9842, Congress specifically provided for public access to the books and records, not simply to the audits prepared by these other entities. Therefore, we conclude an implied private cause of action exists. Further, while the statute creates a federal cause of action, we conclude this Court shares concurrent jurisdiction to decide this case because the Head Start Act does not provide for exclusive federal court jurisdiction. See Gulf Offshore Co v Mobil Oil Corp, 453 US 473, 478; 101 S Ct 2870; 69 L Ed 2d 784 (1981), on remand 628 SW2d 171 (Tex App, 1982), cert den 459 US 945 (1982).
Defendant next argues the trial court erred in granting plaintiff summary disposition and concluding the statute required defendant to reveal the bids to plaintiff. We disagree.
A motion for summary disposition under MCR 2.116(C)(10) tests whether a claim has factual support. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). We review the record in the same manner as the trial court to determine whether the moving party was entitled to judgment as a matter of law. Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776 (1998); Michigan Ed Employees Mut Ins Co v Turow, 242 Mich App 112, 114-115; 617 NW2d 725 (2000). Review is limited to the evidence before the trial court when it decided the motion. Peña v Ingham Co Rd Comm, 255 Mich App 299, 310; 660 NW2d 351 (2003).
We could locate no authority, state or federal, on the issue defendant presents. However, our reading of the statute indicates the trial court did not err in concluding the statute required defendant to reveal the bids to plaintiff.
Defendant contends the trial court’s interpretation contradicts the plain meaning of the statute. First, defendant argues the statute applies only to requests from appropriate community groups. The statute states the agency must provide public access to information, “including public hearings at the request of appropriate community groups and reasonable public access to books and records of the agency . ...” 42 USC 9839(a). Defendant contends “appropriate community groups” applies both to requests for public hearings and access to books and records and argues the use of “and” without a comma points to this interpretation. Plaintiff responds that the interjection of “public access” indicates the agency’s books and records are available not only to these groups.
Although the provision is ambiguous in this regard, we find plaintiff’s argument persuasive. The structure of the sentence indicates the agency must provide public hearings when “appropriate community groups” request them, but the agency’s books and records are available for general, albeit reasonable, “public access . . . .” Interpreting the statute to allow only groups to access the information would render the “public access” language nugatory, and we avoid constructions that render any part of a statute surplusage. Hoste v Shanty Creek Mgt, Inc, 459 Mich 561, 574; 592 NW2d 360 (1999).
Defendant next contends it provided plaintiff reasonable access to its records by providing copies of its audits and financial statements. Defendant did not suggest why providing access to the bids would be unreasonable. Presumably, defendant either views the process for producing the documents as too cumbersome to be reasonable or views the content of the documents as falling outside the scope of necessary disclosure. Regarding the first possibility, defendant’s executive director, Liimatainen, testified the bids were in the agency’s records and could be produced on relatively short notice. So defendant seems to concede the production of the documents is not unreasonable from an administrative standpoint.
Concerning the second possibility — that is, the content of the documents — defendant raises various arguments about why it should not have to reveal the information, but primarily argues the trial court’s interpretation is too broad. Defendant notes the federal foia and the state foia include exceptions to their disclosure requirements and that courts have narrowed the scope of these acts even further. Defendant contends the trial court’s inteipretation improperly allows the public to conduct a fishing expedition in the records of private corporations simply because the corporations operate Head Start programs.
Yet, defendant fails to acknowledge that the statute contains limiting language. The statute requires disclosure only of books and records “involving the use of authority or funds for which it [the agency] is responsible.” 42 USC 9839(a). Also, defendant does not consider that the statute’s lack of exemptions and further limiting language may reflect a policy decision by Congress not to limit the disclosure requirements for Head Start agencies. Defendant claims if Congress had wished to subject Head Start programs to FOIAtype disclosure requirements, it could have simply referenced the FOIA in the act. Conversely, Congress could have referenced the foia if it had wished to limit Head Start programs’ disclosure obligations to those contained in the foia.
Defendant also argues the bidders did not have notice that the bids would be disclosed. But the stat ute itself provided that notice. The bidders knew, or should have known, they were submitting bids to a Head Start agency that was bound by the disclosure obligations of 42 USC 9839(a). Moreover, Liimatainen testified that if a member of the public came to his office and asked to see the bids, he would disclose them. Thus, defendant’s declination to reveal the information appears to lie in its objection to the party requesting it, not to any characteristic of the information itself.
Yet defendant’s objection to plaintiff’s motivation for obtaining the information does not provide a proper basis for declining to disclose it. The statute does not state that defendant may choose to whom it wishes to disclose information. Instead, it requires “reasonable public access” to the information. 42 USC 9839(a).
In addition, the statute requires disclosure of “books and records of the agency . . . involving the use of authority or funds for which it is responsible.” 42 USC 9839(a). Defendant has not persuasively asserted the bids do not meet these criteria. The trial court concluded defendant’s purchase of furniture and equipment for its Head Start programs concerns the use of funds for which it is responsible. We agree. The statute requires disclosure of “books and records of the agency . . . .” While the trial court indicated that certain documents, such as personnel files, might not be subject to disclosure, the statute provides no basis for exempting the requested bids from disclosure. Additionally if the bids contained secret trade information, as Liimatainen suggested, defendant could comply with the statute by redacting thé documents to protect confidentiality. Defendant did not demonstrate redaction would be laborious or otherwise make plaintiffs request unreasonable.
Finally, defendant asserts the trial court erred in finding plaintiff had a genuine reason for seeking disclosure of the bids. Defendant contends plaintiff sought disclosure for purely commercial reasons: because it was “shocked” to learn it had not won the bid and wanted to gain information to allow it to improve future bids. We concur in the trial court’s conclusion that plaintiff had a genuine reason for requesting the bids, that is, to ensure the bid process had been properly conducted, that the vendors were on equal footing before the agency, and that the agency properly spent its federal funds. Defendant claims that merely revealing its bid procedure provides accountability and allows the public to monitor the agency’s expenditure of public funds, but we conclude that only by revealing the actual bids may the public know that the bid procedure was properly followed. Further, plaintiff’s reason for requesting the bids is irrelevant. The statute does not limit the disclosure requirement. It requires defendant to provide reasonable public access to its books and records when they are requested for any reason.
Next, defendant asserts public policy counsels against interpreting the statute to require disclosure of the bids. Defendant argues the court’s interpretation effectively transforms a private, non-profit organization into a public entity. Also, defendant contends the decision could have far-reaching effects, subjecting all private organizations that receive federal funds to similar disclosure requirements.
While we do not deny these may be valid concerns, they represent policy considerations for the Legislature, not this Court, to weigh. In interpreting a stat ute, we may not impose a construction based on a different policy decision than the one the Legislature has chosen. Robertson v DaimlerChrysler Corp, 465 Mich 732, 752; 641 NW2d 567 (2002); see also City of Lansing v Lansing Twp, 356 Mich 641, 648; 97 NW2d 804 (1959) (“ ‘The duty of the Court is to interpret the statute as we find it. The wisdom of the provision in question in the form in which it was enacted is a matter of legislative responsibility with which courts may not interfere.’ ”) (citation omitted).
Additionally, defendant’s arguments may be dismissed on other grounds. First, defendant’s argument that the court’s interpretation transformed a private, non-profit organization into a public entity is misplaced. Hhs defines “Head Start Agency” to include private, non-profit organizations designated to operate Head Start programs. 45 CFR 1301.2. The parties do not dispute defendant meets this definition because it has been designated to operate a Head Start program in Baraga, Houghton, and Keweenaw counties. The statute at issue then requires each “Head Start agency” to provide reasonable public access to its books and records in regard to fiscal matters. 42 USC 9839(a). So, Congress and hhs — not the trial court — decided private, non-profit organizations must open their books to the public. The policy decisions have rested where they should, with Congress and administrative agencies.
Defendant also relies on State Defender Union Employees v Legal Aid & Defender Ass’n of Detroit, 230 Mich App 426; 584 NW2d 359 (1998), to support its argument that a private, non-profit organization should not be required to open its books to the public. In that case, this Court ruled a private, non-profit organization that was financed by both private and public funds and provided legal services to indigent persons was not required to disclose its financial reports and data to its employees. Id. at 432-433. The panel concluded, “an otherwise private organization is not ‘funded by or through state or local authority’ merely because public monies paid in exchange for goods provided or services rendered comprise a certain percentage of the organization’s revenue.” Id. But the plaintiffs in that case sought disclosure under the foia. Id. at 427. The trial court in this case ruled defendant was not subject to FOIA disclosure requirements, and that ruling is not at issue on appeal. Therefore, the case is inapposite.
Next, defendant’s argument that the trial court’s . decision could have far-ranging effect is unpersuasive because the statute is limited to Head Start agencies, as defined by 45 CFR 1301.2, 42 USC 9839(a), and our decision is to be narrowly applied to the facts of this case. The statute cannot be applied to other federally funded programs. Defendant also argues the interpretation could lead to disclosure of records pertaining to any third-party entity with which an agency contracts and disclosure by companies providing fleet vehicles for hhs. The duty of third parties to disclose their records is not at issue in this case. But the statute requires disclosure of the records and books “of the agency or other agencies engaged in program activities or operations . . . .” 42 USC 9839(a). Thus, the determination of who will be required to disclose information has properly rested with the policy makers.
Finally, defendant asserts the trial court erred in failing to defer to the hhs’s interpretation of the statute at issue. This Court may defer to administrative agency interpretations of statutes the agency is responsible to administer. Adrian School Dist v Michigan Pub School Employees’ Retirement Sys, 458 Mich 326, 336; 582 NW2d 767 (1998). Generally, we defer to an agency interpretation unless that interpretation is clearly wrong. Faircloth v Family Independence Agency, 232 Mich App 391, 406; 591 NW2d 314 (1998).
Hus wrote two letters regarding this situation, in which it concluded that defendant could comply with the statute simply by providing copies of its procurement procedures and that defendant need not reveal specific information about the bids it received. Absent a more definitive ruling on this matter from the upper echelon of the agency staff or the agency secretary himself, we do not feel bound to follow the agency’s interpretation.
Additionally, we conclude the agency interpretation is not entitled to deference because it is clearly wrong. 42 USC 9839(a) requires that Head Start agencies provide reasonable public access to their books and records dealing with their use of funds. As discussed, the statute does not limit the disclosure requirement to the agency’s procedures without allowing access to the documents that reveal how the agency put those procedures into effect. Hhs did not indicate in its letter why that limit should be imposed.
Affirmed.
The parties agree plaintiff filed its request under Michigan’s Freedom of Information Act, MCL 15.231 et seq.
In an extension of its earlier mix-up, the trial court stated plaintiff could require defendant to pay reasonable copying costs. | [
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] |
Meter, J.
Plaintiffs appeal as of right from an order granting summary disposition in favor of defendants in this mixed contract and tort action involving a suit by plaintiff franchisees to recover damages allegedly arising from defendants’ contractual breaches and corporate mismanagement. We conclude that neither the “continuing wrong” nor the “continuing services” theory of recovery applies to the instant case, and we therefore affirm the trial court’s conclusion that plaintiffs’ lawsuit is barred by the applicable statutes of limitations.
Plaintiffs are franchise owners of Hot ‘n Now restaurants. Their claims against defendant Restaurant Properties, Inc. (rp), arose out of numerous separate agreements between the respective plaintiffs and RP for the establishment and management of Hot ‘n Now restaurants located throughout Michigan and Indiana. Plaintiffs alleged in their complaint that RP committed various misdeeds, such as failing to provide adequate training, delaying site approval for new restaurants, and changing menu items in violation of the franchise agreements. Plaintiffs alleged breach of contract and other legal theories against rp. Plaintiffs also sued defendants Taco Bell Corporation and PepsiCo, Inc., corporate parents of RP, alleging that both companies caused rp to change the original Hot ‘n Now concept to the detriment of plaintiffs and other franchisees. Plaintiffs argued that Taco Bell and PepsiCo essentially turned the Hot ‘n Now restaurants into a “laboratory experiment.” Plaintiffs raised theories of tortious interference and “corporate usurpation” against Taco Bell and PepsiCo.
Rp filed a motion for summary disposition under MCR 2.116(C)(7) (claim barred by statute of limitations), alleging, in part, that plaintiffs’ claims were barred by the applicable statutes of limitations because, according to plaintiffs’ admissions, they were aware of alleged contractual breaches in 1990 but did not file their lawsuit until March 2, 2000. Rp argued that no continuing wrong or continuing services theory of recovery served to extend the periods of limitations. Rp also moved for summary disposition under MCR 2.116(C)(8) (failure to state a claim on which relief can be granted), arguing that various legal theories raised by plaintiffs were -untenable. Taco Bell and PepsiCo also filed a motion for summary disposition under MCR 2.116(C)(8), arguing, among other things, that a parent corporation or an affiliate corporation cannot tortiously interfere with the contract of a subsidiary or affiliate corporation and that the legal theory of corporate usurpation is not recognized under Michigan law.
The trial court dismissed all plaintiffs’ claims. It noted that an action for breach of contract must be brought within six years from the time the claim accrues and that a tort action must be brought within three years of accrual of the claim. The court found that, on the basis of plaintiffs’ admissions, plaintiffs’ claims accrued shortly after PepsiCo or Taco Bell acquired RP in 1990 — more than six years before plaintiffs filed their complaint. The court also found that each plaintiff signed a release as part of its franchise agreement that, if valid, would preclude future litigation against PepsiCo or Taco Bell. The court held that the releases were valid under MCL 566.1, even in the absence of consideration, and found that the releases barred all plaintiffs’ claims.
Additionally, the trial court disagreed with plaintiffs’ argument that the statutory periods of limitations were extended because the franchise agreements required the performance of continuous services. The court found that the continuing wrong or continuing services doctrines had not been extended to cover the applicable causes of action and that extending the doctrines in such a fashion would “[thwart] the intention of the Michigan Legislature as well as [subject] franchisors to similar suits after many years of continuous business dealings with a franchisee.” The court found that, while the alleged breaches of contract and tortious conduct may have been continuous, plaintiffs’ causes of action began accruing in 1990 and, because they did not bring their claims until well after the periods of limitations had expired, the claims were barred by law.
Plaintiffs argue that, because they were subject to a continuing wrong, the trial court erred in dismissing plaintiffs’ claims against RP as untimely.
“We review a trial court’s grant or denial of 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.” DeCaminada v Coopers & Lybrand, LLP, 232 Mich App 492, 496; 591 NW2d 364 (1998). In reviewing a motion under MCR 2.116(C)(7), this Court accepts as true the plaintiffs’ well-pleaded allegations and construes them in the plaintiffs’ favor. Abbott v John E Green Co, 233 Mich App 194, 198; 592 NW2d 96 (1998). This Court considers the pleadings, affidavits, depositions, admissions, and documentary evidence filed or submitted by the parties to determine whether the claim is barred by law. See MCR 2.116(G)(5) and Employers Mut Cas Co v Petroleum Equip, Inc, 190 Mich App 57, 62; 475 NW2d 418 (1991).
Under MCL 600.5807(8), an action to recover damages for breach of contract must be brought within six years of the time the claim first accrues. Under MCL 600.5827,
[e]xcept as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in [MCL 600.5829 to MCL 600.5838 ], and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.
Thus, this Court has generally held that a cause of action for breach of contract accrues when the breach occurs, i.e., when the promisor fails to perform under the contract. See H J Tucker & Assoc, Inc v Allied Chucker & Engineering Co, 234 Mich App 550, 562; 595 NW2d 176 (1999), Cordova Chem Co v Dep’t of Natural Resources, 212 Mich App 144, 153; 536 NW2d 860 (1995), and Vandendries v Gen Motors Corp, 130 Mich App 195, 201; 343 NW2d 4 (1983). Here, plaintiffs admit that RP failed to perform properly under the contract beginning in 1990, more than six years before plaintiffs filed their complaint. They contend, however, that the limitations period was extended by virtue of a continuing wrong.
Under the continuing wrong doctrine, “an alleged timely actionable event will allow consideration of and damages for connected conduct that would be otherwise barred.” Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 510; 398 NW2d 368 (1986). Thus, in certain cases, the doctrine recognizes that “ ‘[w]here a defendant’s wrongful acts are of a continuing nature, the period of limitation will not run until the wrong is abated; therefore, a separate cause of action can accrue each day that defendant’s tortious conduct continues.’ ” Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 81; 592 NW2d 112 (1999), quoting Horvath v Delida, 213 Mich App 620, 626; 540 NW2d 760 (1995). In order to recover under this doctrine, the plaintiff must establish a “continuing wrong” by showing “continual tortious acts, not by continual harmful effects from an original completed act.” Id. at 627 (emphasis in original).
Plaintiffs contend that the continuing wrong theory applies to the instant case because breaches occurred continually during the period that PepsiCo or Taco Bell had control of the Hot ‘n Now concept. However, as noted by the trial court, this doctrine has thus far been given only limited application. Id. The doctrine has historically been applied to cases of trespass. See Defnet v Detroit, 327 Mich 254, 258; 41 NW2d 539 (1950). In Sumner, supra at 510, the Supreme Court extended the doctrine to cases involving civil rights claims, and this Court extended the doctrine to claims of nuisance in Moore v City of Pontiac, 143 Mich App 610, 614; 372 NW2d 627 (1985). Subsequently, this Court refused to extend the doctrine to cases involving products liability actions seeking damages for personal injury, see Asher v Exxon Co, USA, 200 Mich App 635, 639-641; 504 NW2d 728 (1993), and in Traver Lakes Community Maintenance Ass’n v Douglas Co, 224 Mich App 335, 341; 568 NW2d 847 (1997), the Court declined to extend the doctrine to negligence claims.
Plaintiffs contend that the continuing wrong theory has been extended to claims of breach of contract by virtue of H J Tucker, supra at 562-563. We disagree that H J Tucker involved the continuing wrong doctrine. In H J Tucker, the defendant argued that the trial court erred in failing to find that the plaintiff’s entire claim of breach of contract (for nonpayment of commissions) was barred by the statute of limitations. Id. at 562. The Court deemed the damages sought in H J Tucker as analogous to claims for payments under an installment contract. Id. The Court noted that “the commissions earned by plaintiff were separately computed, were to be paid monthly, and were of a periodic nature.” Id. at 563. It further noted that “ ‘every periodic payment made that is alleged to be less than the amount due . . . constitutes a continu ing breach of contract and the limitation period runs from the due date of each payment.’ ” Id., quoting Harris v City of Allen Park, 193 Mich App 103, 107; 483 NW2d 434 (1992). See also MCL 600.5836 (“[t]he claims on an installment contract accrue as each installment falls due”). The Court held that the trial court correctly divided the sales commissions due the plaintiff into two categories. H J Tucker, supra at 563. The plaintiff was not entitled to sue for unpaid commissions that accrued more than six years before the time the plaintiff filed its complaint, but it was entitled to seek reimbursements for commissions that fell within the six-year limitations period. Id.
Plaintiffs contend that H J Tucker is analogous to the instant case and indicates that the continuing wrong doctrine has been extended to situations involving breaches of contract. However, H J Tucker is not a continuing wrong case, despite the Court’s use of the phrase “continuing breach of contract.” See id. Indeed, under the continuing wrong theory, wrongs occurring within the limitations period essentially “save” the earlier wrongs that occurred outside the period. The Sumner Court noted that
once jurisdiction is attained through the continuing violations doctrine, the remedy should be designed to make the plaintiff whole for the entire injury he has suffered. This has been the view of the great majority of the federal courts. See, e.g., Thompson v Sawyer, 219 US App DC 393; 678 F2d 257 (1982); McKenzie v Sawyer, 221 US App DC 288, 298; 684 F2d 62 (1982) [questioned in part on other grounds by Berger v Iron Workers Reinforced Rodmen, Local 201, 335 US App DC 179; 170 F3d 1111 (1999)] (“Once having shown discrimination continuing into the actionable period, . . . the plaintiffs may also recover for portions of the persistent process of illegal discrimination that ante dated the limitations period”); Tarvesian v Carr Div of TRW, Inc, 407 F Supp 336, 339 (D Mass, 1976) (“If plaintiff can prove ... an integrated pattern of discrimination, the defendants become liable for the whole of it”)[.] [Sumner, supra at 542 n 15.]
See also Meek v Michigan Bell Tele Co, 193 Mich App 340, 345; 483 NW2d 407 (1992). In contrast to this theory, the H J Tucker Court made clear that each improper payment at issue in H J Tucker constituted a separate breach that was not tied to earlier breaches falling outside the limitations period. H J Tucker, supra at 562-563. The Court essentially found that there were repeated breaches that gave rise to separate claims of breach of contract, each of which arose, accrued, and became extinguished separately. Id. The plaintiff could recover only for those breaches occurring within the limitations period. Id. at 563. Accordingly, H J Tucker is not pertinent to plaintiffs’ primary argument, i.e., that the continuing wrong theoiy served to extend the period of limitations in the instant case.
Plaintiffs also cite Hanover Ins Co v Eleven & One-Half Mile Drainage Dist, 52 Mich App 658; 218 NW2d 109 (1974), a case involving continuing services, in their attempt to show that the Court has applied a doctrine similar to the continuing wrong doctrine to some contracts. Plaintiffs contend that the instant case is analogous to Hanover and thus falls within a continuing services theory of recovery. In Hanover, the plaintiff, a financial institution, sought to recover for extra costs the contractor incurred as a result of a previously undisclosed problem with the subsurface conditions that appeared during the construction of the defendants’ drainage system. Id. at 660. The defendants raised the statute of limitations to bar recovery on the theory that the breach occurred, and the six-year period of limitations began running, when the contractor discovered the problem with the subsurface conditions. Id. at 661. This Court disagreed and held that the wrong on which the plaintiff’s claim was based was committed when the defendants, over two years later, failed to compensate for the extra costs incurred. Id. at 661-662. The Court relied on previous Michigan case law holding that, if the transaction is an entirety and requires the performance of a continuous service, the action is not barred until six years after the conclusion of the service. Id. at 662, citing Carter v Carter, 36 Mich 207 (1877), Burch v Woodworth, 68 Mich 519; 36 NW 721 (1888), and Wisniewski v Wisniewski’s Estate, 254 Mich 663; 236 NW 899 (1931).
However, plaintiffs in the instant case are not in the same position as the contractor in Hanover, the caregiver in Wisniewski, the log cutter in Burch, or the housekeeper in Carter. Hanover, supra at 660; Wisniewski, supra at 664; Burch, supra at 519; Carter, supra at 207. Those cases involved plaintiffs who provided personal services and who continued performance notwithstanding the failure of the breaching party to compensate them for their services; the courts concluded that the claims did not accrue until after the conclusion of the services and the final refusal of the breaching parties to pay for the services. Hanover, supra at 660-662; Wisniewski, supra at 664; Burch, supra at 522; Carter, supra at 207-208. Here, plaintiffs are seeking recovery for a contractual breach based on the lack of services performed by another. Hanover and the cases cited therein are simply not analogous to the instant case.
Plaintiffs have identified no cases extending the continuing wrong or continuing services theories to a situation in which a party to a contract fails to perform adequately under the contract. Given the clear inapplicability of the continuing services doctrine to the instant case and given the generally limited nature of the continuing wrong doctrine, we decline to extend either doctrine to plaintiffs’ situation.
It is possible that some recovery would be appropriate in the instant case under the reasoning of H J Tucker, supra at 562-563. In a reply brief, plaintiffs state, in one sentence, that “at worst, only Plaintiffs’ claims arising out of breaches which occurred prior to March 1, 1994, would be time barred.” We decline to reach this issue, however, for three reasons. First, plaintiffs have waived the issue by giving it such cursory treatment. See Goolsby v Detroit, 419 Mich 651, 655 n 1; 358 NW2d 856 (1984), Magee v Magee, 218 Mich App 158, 161; 553 NW2d 363 (1996), and Mann v Mann, 190 Mich App 526, 536-537; 476 NW2d 439 (1991). Second, plaintiffs did not argue below for the possibility of such a “bifurcation.” Instead, they maintained that all the claims accrued after the conclusion of the contractual arrangement. “A party may not take a position in the trial court and subsequently seek redress in an appellate court that is based on a position contrary to that taken in the trial court.” Living Alternatives for the Developmentally Disabled, Inc v Dep’t of Mental Health, 207 Mich App 482, 484; 525 NW2d 466 (1994). Finally, because the “bifurcation” claim is first raised in plaintiffs’ reply brief, it is untimely. Reply briefs may contain only rebuttal argument, and raising an issue for the first time in a reply brief is not sufficient to present the issue for appeal. MCR 7.212(G); Check Reporting Services, Inc v Michigan Nat’l Bank-Lansing, 191 Mich App 614, 628; 478 NW2d 893 (1991).
The trial court did not err in concluding that plaintiffs’ claims against RP were barred by the statute of limitations.
In its opinion, the trial court dismissed the claims against Taco Bell and PepsiCo simultaneously with the dismissal of the claims against rp. The court concluded that all plaintiffs’ claims were banned because of, among other things, the applicable statutes of limitations. Evidently recognizing the interrelatedness of plaintiffs’ claims, the court reached this conclusion even though Taco Bell and PepsiCo did not specifically raise a statute of limitations defense in their motion for summary disposition. Although plaintiffs point out this fact on appeal — stating that “[n] either PepsiCo nor Taco Bell raised the statute of limitations as a defense to their claims, although this appears to be the Court’s basis for disposition of these claims”— plaintiffs make no reasoned argument that the court was not empowered to make such a ruling. Accordingly, any argument in this regard has been waived because of inadequate briefing. See Goolsby, supra at 655 n 1.
Instead, plaintiffs argue that their claims against Taco Bell and PepsiCo survive a summary disposition challenge because of the continuing wrong theory. We disagree. As noted by the trial court, plaintiffs’ claims against Taco Bell and PepsiCo of tortious interference with a contract and tortious interference with a prospective economic advantage were governed by a three-year period of limitations. See MCL 600.5805(10), and James v Logee, 150 Mich App 35, 37-38; 388 NW2d 294 (1986). Limitations periods in tort actions begin to run at the time all elements, including damages, can be alleged in a proper complaint. MCL 600.5827; Stephens v Dixon, 449 Mich 531, 534-535; 536 NW2d 755 (1995); Travelers Ins Co v Guardian Alarm Co of Michigan, 231 Mich App 473, 479; 586 NW2d 760 (1998). Thus, a claim of tortious interference with a contract or a prospective economic advantage is complete upon a showing of the existence of a valid business relationship or the expectation of such a relationship between the plaintiff and some third party, knowledge of the relationship or expectation of the relationship by the defendant, and an intentional interference causing termination of the relationship or expectation, resulting in damages to the plaintiff. BPS Clinical Laboratories v Blue Cross & Blue Shield of Michigan (On Remand), 217 Mich App 687, 699; 552 NW2d 919 (1996); Winiemko v Valenti, 203 Mich App 411, 416; 513 NW2d 181 (1994).
As noted earlier, under the continuing wrong theory, continuing wrongful acts occurring within a statutoiy limitations period can extend a plaintiffs recoveiy to encompass acts occurring outside the period. See Oakwood Homeowners Ass’n, Inc v Ford Motor Co, 77 Mich App 197, 220 n 7; 258 NW2d 475 (1977). However, as also noted earlier, this doctrine has been given only limited application to trespass, nuisance, and civil rights cases. Horvath, supra at 627; Traver Lakes, supra at 341; Asher, supra at 639-640. Defendants have failed to cite any authority to support an extension of the doctrine to claims of tortious interference.
Moreover, the decision in Lucy v Amoco Oil Co, 582 F Supp 1168 (ED Mich, 1984), provides a persuasive discussion concerning the doctrine in the context of claims of tortious interference. In that case, an action was brought against a franchisor for tortious interference with a prospective business advantage. Id. at 1169. The district court held that the plaintiffs cause of action was time-barred, rejecting the claim that the damages arose from a continuous tort. Id. at 1173-1174. The court, noting that the plaintiff was actually describing a series of discrete events, held that the fact that the defendant may have had an underlying motivation to interfere with plaintiffs business was not enough to preclude operation of the statute of limitations regarding those actions that occurred outside the limitations period. Id. at 1173. The court stated:
Any overt conduct on the part of defendant which gave rise to a cause of action for tortious interference with prospective business advantage that occurred prior to September 27, 1979, is barred by operation of the statute of limitations. The fact that such conduct may have been motivated by policies or prejudices which continued to exist subsequent to that date, which policies may have motivated similar conduct within the statutory peiiod for bringing claims, does not prevent application of the statute to the earlier claims. The pleading of an ongoing conspiracy is not necessary to the statement of a cause of action for tortious interference with prospective business advantage. The tort is complete upon a showing of the existence of a valid business relationship or the expectation of such a relationship between the plaintiff and some third party, knowledge of the relationship or expectation of the relationship by the defendant, and an intentional interference causing termination of the relationship or expectation which results in damages to the plaintiff!.] Meyer v. Hubbell, 117 Mich. App. 699, 324 N.W.2d 139 (1982). The cause of action accrues and the statute of limitations begins to run upon the simultaneous occurrence of each of the elements of the tort.
Consequently, plaintiffs’ allegations that Amoco engaged in conduct within the period of limitations which interfered with Ray Lucy’s prospective business advantage does not serve to permit the cause of action which may have accrued within the period of limitations to “relate back” to conduct which occurred outside of the period of limitations. [Lucy, supra at 1173-1174.]
Given the limited application of the continuing wrong doctrine in our case law and the persuasive reasoning in Lucy, we decline to extend the doctrine to plaintiffs’ claims of tortious interference. Appellate relief is unwarranted. In light of our rulings, we need not address the additional arguments raised by the parties on appeal.
Affirmed.
It appears from the record that either PepsiCo or its subsidiary, Taco Bell, acquired the Hot ‘n Now chain in 1990.
Moreover, “[w]hether a cause of action is barred by the statute of limitations is a question of law that we also review de novo.” McKiney v Clayman, 237 Mich App 198, 201; 602 NW2d 612 (1999).
Certain specialized contracts have different limitations periods, see MCL 600.5807, but these periods are not applicable in the instant case.
These provisions are not applicable here.
Although panels of this Court have held that, “[w]here the continuing-wrongful-acts doctrine applies, the damages recoverable are limited to those occurring within the applicable limitation period and, where appropriate, after the filing of the complaint,” see Horvath, supra at 627; see also Slayton v Michigan Host, Inc, 144 Mich App 535, 556; 376 NW2d 664 (1985), this is not compatible with the Supreme Court’s decision in Sumner. See Sumner, supra at 542 n 15; see also Meek, supra at 345.
As stated in Proctor & Schwartz, Inc v United States Equip Co, 624 F2d 771, 773 n 3 (CA 6, 1980), “Michigan courts have found certain acts, such as trespass and nuisance, were continuing wrongs, but we find no authority for treating a breach of contract in the same manner.”
When one party to a contract materially breaches the contract by failing to perform duties under it, the other party can either consider the contract terminated and sue for total breach, or he can continue his performance and sue for partial breach. See, generally, Schnepf v Thomas L McNamara, Inc, 354 Mich 393, 397; 93 NW2d 230 (1958), Arnone v Chrysler Corp, 6 Mich App 224, 228; 148 NW2d 902 (1967), and 2 Restatement Contracts, 2d (1981), § 236, comment b, p 214. Thus, when one elects to continue performance and a second breach occurs, it should give rise to a separate claim for specific damages arising from the second breach, whether or not the contract is deemed an installment contract. See, e.g., H J Tucker, supra at 576 (Markman, J., concurring).
The trial court’s opinion indicates that all plaintiffs’ claims against rp were barred by the statutes of limitations and were not saved by the continuing wrong or continuing service doctrines. On appeal, plaintiffs focus on the allegations of breach of contract against rp, arguing that these allegations were saved by the doctrines in question. Because of inadequate briefing, plaintiffs have waived any contention that the additional claims against rp should survive. See, generally, Goolsby, supra at 655 n 1 (discussing inadequate briefing). Moreover, because plaintiffs’ claims of corporate usurpation against Taco Bell and PepsiCo are merely derivative of their claims against rp (plaintiffs argue, in this count of the complaint, that Taco Bell and PepsiCo were “alter egos” of rp), the claims of corporate usurpation cannot survive.
Taco Bell and PepsiCo did raise a statute of limitations defense in their list of affirmative defenses.
As noted in footnote 8, supra, the claim of corporate usurpation cannot survive. | [
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Potter, J.
Defendant, convicted of the murder (second degree) of Andrew Kalmar, appeals, claiming the prosecuting attorney erred in making inflammatory remarks to the jury, complaining of the prejudicial attitude of the prosecuting attorney, the court’s failure to give defendant’s requests to charge, error in the charge as given, failure of the trial court to file reasons for denial of a motion for a new trial, and erroneously permitting the prosecuting attorney to reread impeaching statements to the jury.
The deceased, Kalmar, wife and family lived at 8130 Vanderbilt avenue, Detroit. Defendant lived in another part of the same house. Deceased had been an inmate of the veterans’ hospital at Battle Creek a greater part of the time for four years. He became suspicious of defendant’s attentions to his wife. On the night of his death he was in Detroit and went home. He and his wife had some altercation over defendant, who entered the home, of deceased. Defendant became engaged in a quarrel with Kalmar, during which deceased was killed. Defendant and Mrs. Kalmar were arrested and taken to police headquarters. Both defendant and Mrs. Kalmar, while at police headquarters, gave statements as to what occurred on the night of the alleged murder. A daughter, Clara Kalmar, also made a statement. Three errors are relied upon for reversal: First, inflammatory remarks of the prosecuting attorney. Second, error in the refusal of the court to charge, and in the charge of the court. Third, failure of the court to file written findings in denial of defendant’s motion for a new trial.
The first and second questions go to the merits of the trial. The third is a matter of procedure governing the disposition of a motion made after trial and conviction of defendant. The record shows the prosecuting attorney made unwarranted statements to the jury, but these were immediately corrected by the court, who was vigilant in an endeavor to prevent improper prejudice to defendant. We are constrained to hold that though these remarks were unwarranted, they do not constitute reversible error.
The statements of the wife, Mrs. Kalmar, made at police headquarters, were introduced in evidence to refresh her recollection, for impeachment, and as bearing upon her credibility. For these purposes they were admissible. The record shows these statements made at police headquarters were read to the jury. . There was no error in reading them to the jury. The statement of Clara Kalmar was offered for the same purposes, as to her testimony.
Defendant, by his counsel, requested the trial court to charge the jury, in relation to the extrajudicial statements of Anna Kalmar and Clara Kalmar, which had been offered and received in evidence, substantially, that,—
“This testimony cannot be considered by you as tending to prove the offense charged, that it can only be considered for the purpose of impeachment; this testimony is not substantive proof, that it is not original and competent proof of guilt of the accused and you have no right to consider it as testimony corroborative of substantive facts.”
The trial court charged generally upon the question of admissions. Referring to these extrajudicial statements of the witnesses, the trial court, in his charge, said:
“The statements and the testimony, if you will recall, were contradictory. It is for you to determine what the true facts were. These statements were taken of eyewitnesses to the occurrence. Originally, they were admitted for the purpose of impeachment, that is, contradiction of witnesses. As to how much of those statements you will believe or how much of the testimony of any witness, who took the stand, how much of it you will believe, is up to you. You may believe any part of it, none of it, or all of it. That is up to you, and it is up to you to determine which part of any statement you will believe and which part you will not believe. * * * I will make some comment on the testimony later on and instruct you with respect to it.”
Later the court charged:
“It is your duty, members of the jury, to determine what happened from the evidence that you have heard here in this case. You have heard part of it from the witness stand and part of it contradicted in the statements of the witnesses, and you will determine it from all of these things; just what happened on that day at that place and at that time. ’ ’
At the conclusion of the charge, the court said:
‘ ‘ Counsel for the defendant has presented certain requests to charge. Have you gone over them, Mr. Kamman?
“Mr. Kamman: I just glanced at them roughly,, your honor. I think they are covered in your charge already.
“The Court: That is my opinion, too, that they are covered in my general charge. Sol will not read the requests to charge which are covered, in my opinion, in my general charge, and for that reason, they will not be given. Anything further?
“Mr. Kugel: No, your honor.
“The Court: Swear an officer.”
In People v. Elco, 131 Mich. 519, 520, 523, the court upon rehearing divided upon the admissibility of the contradictory statements of a hostile witness, whom the law compelled the people to call, for the purpose of affecting the credibility of the witness. A majority of the court held such testimony was admissible for the purpose indicated.
A similar question was before the cqurt in People v. Miner, 138 Mich. 290. It was indicated that a majority of the court, in People v. Elco, supra, had held where a witness whom the people were bound to produce had made prior statements contradictory to those made upon, the trial, such prior statements could be introduced to impeach her testimony.
In People v. Nichols, 159 Mich. 355, the court said, of similar testimony, it was not competent evidence for the people, and could properly be used by the defendant, only by way of impeachment.
In People v. Ayers, 186 Mich. 366, it was said:
“The question is raised whether the affidavit made by the girl, Mabel, before the warrant issued, and her testimony upon the former trial, could be received as substantive evidence of the guilt of the accused. This question has been before this court, and it has been distinctly ruled that such statements, or testimony, are not admissible as substantive proof for the purpose of convicting the accused, and that they are only competent for purposes of impeachment of the witness.”
In People v. Hill, 236 Mich. 672, objection was made by defendant to the ruling of the trial court which permitted the prosecution to cross-examine witnesses relative to contradictory statements previously made to the prosecuting attorney and to read such statements in evidence. The witnesses were eyewitnesses to the crime and participated in it. They had confessed their part and were serving sentence. It is said:
“It was the duty of the prosecuting attorney to call them as witnesses. He did so. It quickly appeared that they were hostile to the people’s case and throughout their testimony constantly sought to shield the defendant. This gave the prosecuting attorney the right to cross-examine them as to statements they had previously made to him in which each had related the material facts of the crime and involved the defendant as a leading participant. The court permitted this course to be followed, instructing the jury that the testimony was solely for the purpose of impeachment, and could not be considered by them as substantive proof of the defendant’s guilt.”
The court charged:
“The jury will understand that all of this proof— all of this testimony is simply for the purpose of impeachment. It is not proof against this respondent, not substantive proof. It is introduced and received by the court for the purpose of impeachment of hostile witnesses. ’ ’
It was held it was not improper or prejudicial use made of the contradictory statements of the witnesses, and the court did not err in receiving them in evidence.
The only place these extrajudicial statements, introduced for impeachment, were directly referred to, in the charge of the trial court, was when it was said: “Originally, they were admitted for the purpose of impeachment, that is, contradiction of witnesses. ’ ’ The trial court did not say such statements were not substantive evidence of the facts stated therein, or of the guilt of defendant, or that they could be used only for the purpose of impeachment, or to affect the credibility of the witnesses. The trial court’s attention was directly challenged to the limitation on the use of this testimony, by the several requests of defendant. Under all the authorities, defendant was entitled to have the substance of these requests covered. Had they been properly covered, a different result might have been reached. For this error conviction is reversed. New trial granted.
Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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Butzel, J.
Lawrence Pranks, plaintiff, was 10 years and 10 months of age on May 31, 1930, when he suffered the injuries on account of which he seeks to recover damages in the instant suit. At the time of the trial of the case, he was in the sixth grade in school, had missed no grades, and was an intelligent boy for his years. He -testified that he had been warned and was fully cognizant of the dangers of street traffic and the precautions necessary to avoid them. Plaintiff and a slightly older lad, Albert Donovan, were among the several hundred people who attended a “medicine show” at the ball park at Munising, Michigan. About 10:30 p. m., at the conclusion of the performance, Lawrence and his companion left with the crowd and went to the west gateway of the park leading directly onto road US-28. The boys walked in a southerly direction along the easterly edge of the road for a distance of from 50 to 75 feet, when they started to cross to the westerly side of the road in order to reach the entrance to a pathway through the woods and thus take a short cut to their homes.
About the same time, Robert Woodward, accompanied by three passengers, had driven to the ball park in a large sedan car belonging to Woodward’s brother James and driven with his consent. When the car approached the ball park, Robert Woodward discovered that the show was over and that the people were leaving for home. He thereupon drove the ear on US-28, also in a southerly direction. There seems no doubt but that he drove in a careless manner and at an unlawful rate of speed. The road, however, was absolutely unobstructed and the night was clear. There was nothing to obscure plaintiff’s view of approaching vehicles on the road proper. Many cars of others attending the show were lined up on the side of the road near the park, and people were going to or already in their cars, preparing to drive home. The boys had taken but a' few steps towards the middle of the road when Woodward’s car, coming along at a rapid rate, struck Lawrence and inflicted very severe injuries, some of which may be permanent and cause serious consequences in the future.
Suit was brought against James and Robert Woodward, defendants, by Lawrence Franks by his next friend, Peter Franks, as plaintiff. Lawrence recovered a verdict of $3,000, but, on motion duly made, a judgment non obstante veredicto was entered in favor of defendants.
According to Lawrence’s own testimony, he looked up and down the road just before starting to cross, but did not see defendant’s car which was 12 to 20 feet away from him. His companion, who was alongside of him, did see the car and succeeded in getting out of its path. Another witness stated that the boys started to cross the road at a rapid rate when defendant’s car was from 12 to 20 feet away from them and approaching them at a rapid rate. According to Robert Woodward’s testimony, the lights on his car shed their reflection only 50 feet ahead of him. There is also testimony that one of the cars on the side was turned at an angle and had its lights on the road where the boys were crossing. All the physical facts, however, when viewed in the light most favorable to plaintiff, show beyond any question that had Lawrence looked he could and must have seen the approaching car, and in that event with reasonable care he could have avoided the accident. See Zoltovski v. Gzella, 159 Mich. 620 (26 L. R. A. [N. S.] 435, 134 Am. St. Rep. 752); Gibbs v. Dayton, 166 Mich. 263; Knickerbocker v. Railway Co., 167 Mich. 596; Mollica v. Railroad Co., 170 Mich. 96 (L. R. A. 1917F, 118); Henry v. Railroad Co., 189 Mich. 45; Otto v. Railroad Co., 189 Mich. 463; Britton v. Railway Co., 204 Mich. 217; Halzle v. Hargreaves, 233 Mich. 234; Molda v. Clark, 236 Mich. 277; People v. Campbell, 237 Mich. 424; Kneebone v. Lake Superior District Power Co., 248 Mich. 403; Zuidema v. Bekkering, 256 Mich. 327.
Notwithstanding the negligence of the defendants, the trial judge had no other option but to enter a judgment in their favor on account of the contributory negligence of plaintiff. We are constrained to affirm the judgment, with costs.
Clark, C. J., and McDonald, Potter, Sharpe, Fead, and Wiest, JJ., concurred. North, J., did not sit. | [
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McDonald, J.
This bill was filed to secure the cancellation of two oil leases given to the Gordon Oil Company by Noah J. Skinner and Clarinda E. Skinner, his wife, on land belonging to them in the county of Midland, Michigan; to establish the validity of two former leases on the same property given by the Skinners to the plaintiff; to restrain the defendants from interfering with the plaintiff in the development of oil under his leases; and for an accounting as to the oil taken from the premises by the defendants.
The defendants Noah J. Skinner and wife are the owners of a 60-acre tract of land and an 80-acre tract about one mile distant from each other in the township of Greendale in Midland county. On October 2, 1930, they executed two leases to the plaintiff covering both tracts for the purpose of developing the production of oil and other natural products. These leases were hot delivered to the plaintiff but were placed in escrow with the Exchange Savings Bank of Mt. Pleasant. The escrow agreement provided:
“ (1) In the case of the lease on the 60 acres, you will deliver it to the lessee thereof, W. A. Robinson, or to his heirs, administrators, or successors, when well to be drilled as provided therein (see paragraph 11 of the lease) has attained a depth of 500 feet, provided actual work in connection with the drilling of said well has been commenced on or before December 1, 1930. In the event said actual work has not been commenced on or before that date, you will forthwith deliver said lease to the lessors, Noah J. Skinner and Clarinda E. Skinner.
“ (2) In the case of the lease on the 80 acres, you will deliver it to the lessee thereof, W. A. Bobinson, or to his heirs, administrators, or successors, when well to be drilled as provided therein (see paragraph 11 of the lease) has attained a depth of 500 feet, provided actual work in connection with the drilling of said well has been commenced on or before January 15, 1931. In the event said actual work has not been commenced on or before that date, you will forthwith deliver said lease to the lessors, Noah J. Skinner and Clarinda E. Skinner.”
Paragraph 11 of the lease referred to in the escrow agreement provided that, as to the 60-acre tra'ct, ‘ ‘ actual work in connection with the drilling of such well shall be commenced on or before December 1, 1930, and continued thereafter with reasonable dispatch and diligence, ’ ’ etc.
There was a similar provision in regard to the 80-acre tract except that actual work on that tract was to commence on or -before January 15, 1931.
The leases were never delivered to the plaintiff. The defendants claim that he failed to comply with the terms of the escrow agreement and lease; that he did not commence actual work on or before' December 1, 1930; and did not exercise reasonable diligence thereafter in endeavoring to carry out his contract.
Acting on this assumption, on January 26, 1931, the defendants Noah J. Skinner and Clarinda E. Skinner gave the Gordon Oil Company leases on both tracts. Except for a change in the names of the parties, these leases contained the same provisions as the leases to the plaintiff. The Gordon Oil Company began operation under their leases and in time produced a good well. Claiming that he had been wrongfully prevented from carrying on his operations, the plaintiff brought this suit. On the hearing the trial court found that he had not complied with the conditions of the escrow agreements and was not entitled to a delivery of the leases; that he had no leases binding on the Skinners; and that the leases they made with the Gordon Oil Company were valid. From a decree dismissing the bill the plaintiff has brought this appeal.
Our discussion of the case will relate entirely to the lease on the 60-acre tract. No work on the 80 acres was begun on or before the 15th of January, 1931, as required, and therefore plaintiff is not entitled to a delivery of that lease and has no rights therein.
In respect to the other lease two questions are involved: First, did the plaintiff begin actual work in connection with drilling the well on or before December 1, 1930; and second, if he did so, did he thereafter continue the work with reasonable dispatch and diligence ?
The record shows that before December 1, 1930, the plaintiff and those working under his direction had located the site for the well, made a contract for the drilling, hauled the necessary amount of sand and gravel onto the location, dug a slush pit, erected a derrick and rig, and installed some machinery. Was this a sufficient compliance with the lease which provided “that actual work in connection with the drilling of such well shall be commenced on or before December 1, 1930?”
In Terry v. Texas Co. (Tex. Civ. App.), 228 S. W. 1019, the lease required the lessee to “commence to drill a test well for oil within eight months.” The court held, quoting from the syllabus:
“Lessee, by placing timbers for erection of derrick and machinery, including boiler, on the ground where oil well was to be drilled, complied with pro vision requiring him to ‘commence to drill’ well within a certain period; the word ‘commence’ being defined as ‘to perform the first act of.’ ”
In the instant case the lease did not require the plaintiff “to commence to drill” by a certain time as the lease did in Terry v. Texas Co., supra. It required him to do some “actual work in connection with the drilling by December 1, 1930.” Language substantially the same has been construed in other cases where the requirement of the lease was that lessee should “begin operations” in a definite time. For instance, in Cox v. Miller, 206 Mo. App. 576 (227 S. W. 652), a mining lease required the lessee “to begin operations on said land under this lease within 60 days.” It was held that preparing the necessary timbers, prospecting, locating shafts, and placing machinery was a sufficient compliance with the terms of the lease.
In Fleming Oil & Gas Co. v. South Penn Co., 37 W. Va. 645 (17 S. E. 203), the language of the lease was “to commence operations for a test well within one year,” etc. It was held that locating the well, cutting down timbers for constructing a derrick, making a contract with a party for drilling, and ordering machinery is “commencing operations” for a test well, though neither the timber nor machinery was hauled to the location during the time specified because of the condition of the roads.
In Hudspeth v. Producers’ Oil Co., 134 La. 1013 (64 South. 891), the lease required the lessee “to commence operations on the tract by drilling, boring or mining for oil within 24 months,” etc. Within the time specified the lessee cleared 12 acres of land and sawed timber for the construction of the derricks. It was held that this work was a commence ment of operations by. “drilling, boring and mining” within the meaning of the lease.
The theory of these cases is that the work done in preparation for drilling a well is a necessary part of the drilling. So in the instant case, assuming but not holding that the lease required the plaintiff to begin drilling on or before December 1, 1930, he satisfied that requirement of the lease in the preparations he made for drilling. They were a necessary part of the drilling.
Having complied with the provisions of the lease and the escrow agreement in regard to the commencement of actual work in the time specified, did he thereafter continue it with reasonable diligence and dispatch?
The question is, What constitutes reasonable diligence and dispatch?
In Maverick Oil & Gas Co. v. Howell, 193 Ky. 433, 440 (237 S. W. 40, 43), it was said:
“In determining what is a reasonable time, every case must be controlled by the facts proved in that particular case. Where it appears that the holder of a lease is holding it purely for speculative purposes, the time for development after notice must necessarily be shorter than where it is shown that the holder in good faith intends to develop but is temporarily delayed in carrying out his intentions.”
In Prince v. Standard Oil Co. of Louisiana, 147 La. 283 (84 South. 657), the defendant claimed that the question of diligence must be determined by the lessee whose decision if made honestly and in good faith was conclusive. But the court said:
“We think the better rule of interpretation in a case where the object of the operation is to obtain a benefit for both lessor and .lessee is that neither, in the absence of an express stipulation, is the arbiter of the extent of diligence required; both are bound by what would be reasonably expected of operators of ordinary prudence, having regard to the interests of both.”
In Summers on Oil and Gas, § 136, p. 436, the rule as to diligence is stated as follows:
“The general rule is that if the lessee, in drilling wells for the development' of- the demised land, has in good faith and with due regard to the interest of the lessor, as well as his own, taking into consideration all the surrounding conditions and circumstances, acted as an ordinarily prudent person, experienced in the business of production of oil and gas, would have acted, he has not been lacking in the diligence required of him.”
And in Thornton on Oil and Gas (5th Ed.), § 167, p. 294, it is said:
“Whatever, in the circumstances, would be reasonably expected of operators of ordinary prudence, having regard to the interests of both the lessor and lessee, is what is required.”
As to what will constitute an excuse for delay, it has been said:
“Adverse weather conditions and stringency in the money markets have been held valid excuses for delay in development.” Thornton, Oil and Gas (5th Ed.), § 168, p. 295. See, also, Mid-South Oil Co. v. Jaynes, 208 Ky. 483 (271 S. W. 553); Pennagrade Oil & Gas Co. v. Martin, 211 Ky. 162 (277 S. W. 302).
In the latter case it was said-:
1 ‘ The delay was during the world war, and, therefore at a time when it was very 'difficult, if not impossible, to raise money for private enterprise. Notwithstanding this fact, the lessees were constantly engaged in an effort to raise money for such pur poses. These efforts finally culminated in a contract for the sale of the gas to the Louisville Gas & Electric Company, which involved the construction of approximately 30 miles of pipe line before the gas could be marketed. In view of all the circumstances, we are constrained to hold that the delay in marketing did not operate as an abandonment of the lease.”
In that case there was a delay of two years ánd six months. In the instant case there was a delay of approximately eight weeks.
In Ross v. Sheldon (Ky.), 119 S. W. 225, the lessee sought to excuse a charge of lack of diligence on the ground of sickness and stringency in the money market. Of this the court said:
“Whether or not these misfortunes would be sufficient to legally excuse the lessees from a performance of the contract, we express no opinion; but we think they furnish reasons why they were not as diligent as they should have been, and in an action to cancel the contract are entitled to weight. ’ ’
With these principles in mind, we will consider the question of diligence in the instant case. There was a delay of eight weeks due to the difficulty which the plaintiff experienced in financing the operations because of the business depression. But on January 29,1931, he had succeeded in completing his financial arrangements with the S. R. Morgan investment bankers of Chicago. On January 26,1931, Mr. Skinner secretly executed leases of the same property and on the same terms to the defendant Gordon Oil Company. The leases were made to this company when it was under contract with the plaintiff to drill the well for him. The defendant Mason was the company’s agent and conducted all of the negotiations both in securing the drilling contract and the leases from Skinner. During the time that he was secretly negotiating with Mr. Skinner to secure leases for his company, he knew that the plaintiff was succeeding with his arrangements for financial assistance and that he expected Mason’s company to do the drilling according to contract. Without relating them in detail, we think the methods used to secure the leases were unfair and closely resemble fraud, but we do not base decision to cancel them on that ground.
The plaintiff acted in good faith. Of that there is no question. He was not holding the land for speculative purposes. He intended to drill the well and so informed the lessors, who knew that he was working hard to finance the operations. The well was to be drilled in what is known as “wild cat territory.” There was no near-by development. The nearest well was more than a mile away, so there was no danger of injury to the lessor’s oil prospects by drainage from other operations.
In view of these facts, we cannot say that the plaintiff acted without due regard to the lessor’s interest or that there was a lack of reasonable diligence in prosecuting the work. A consideration of all the facts and circumstances appearing in the record shows that the plaintiff has not had a square deal.
The question of an accounting we leave undetermined, because there is no evidence from which a determination could be made.
As it appears that the plaintiff has complied with the terms and provisions of the lease and escrow agreement, he is entitled to the relief prayed for in his bill. The decree of the trial court is reversed, and one will be entered in this court in accordance with this opinion.
The plaintiff is awarded costs.
Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred. | [
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] |
Reid, C. J.
(dissenting in part). The amended bill of complaint was filed in this case March 24, 1950, by the plaintiff, a Michigan corporation, publisher of the Dearborn Independent, a weekly newspaper, and owner of properties assessed for taxes in the city of Dearborn, for a determination that the Dearborn Guide, a publication of some of the defendants, doing business as Guide Newspapers, is not a newspaper qualified for the publication of legal notices under CL 1948, § 691.611 (Stat Ann § 27.801), that the Dear-born Guide is not qualified to be designated as the official city newspaper of Dearborn under section 5.14 of the charter of the city of Dearborn, that plaintiff may be decreed to be the lowest responsible bidder and entitled to be designated as the official newspaper of the city of Dearborn for the 12 months then next ensuing and that the court determine and decree that a resolution adopted by the defendant council on February 21, 1950, being resolution 2-232-50, is void and that it be held for naught, that the court declare to be null and void and in violation of section 5.14 of the city charter of the city of Dearborn any contract on the part of the city with the defendant Guide Newspapers as a publication of the official proceedings of the city, and for other relief.
Section 5.14 of the charter of the city of Dearborn provides as follows:
“At or prior to its second regular meeting in February of each year, the council, after investigating the circulation, rates, quality of printing, deliveries, and responsibility of available newspapers, and after receiving bids, shall designate some newspaper of general circulation which is qualified to publish legal notices under the laws of the State of Michigan, and is printed and published in the city and printed in the English language, as the official newspaper of the city for the next 12 months. All notices, ordinances and other records required by the provisions of this' charter to be published, shall be published in said official newspaper in the manner and form in this charter provided: Provided, however, that the council may order additional publications of any such notice, ordinance or other record in other newspapers published in the city and printed in the English language or in any financial or trade paper, journal or magazine. If at any time, no newspaper has been designated as the official newspaper of the city or in case the newspaper as designated ceases regular publication or is not giving satisfactory service, the council shall order the publication of such notices, proceedings, ordinances or other records, as are required to be published, in some other newspaper printed and published in the city in the English language or, if there be none, then in some other newspaper printed in 'the English language and circulated in the city; provided, however, that the city shall not be without an official newspaper more than 30 days.”
The trial court held in effect that under the above quoted section 5.14 of the city charter, the Guide Newspapers was not disqualified, but was disqualified under CL 1948, § 691.611, above referred to. The common council of the city of Dearborn and the members of the common council of the city of Dearborn took a general appeal. Defendants Lancaster, general partner, and Aaron and Ross, limited partners, doing business as Guide Newspapers, also took a general appeal. The Dearborn Independent, Inc., plaintiff, as cross-appellant, took a general appeal.
The agreed facts are as follows:
Plaintiff, the Dearborn Independent, Inc., is a Michigan corporation, duly authorized and licensed to do business in the State of Michigan, and is the publisher of the Dearborn Independent, a weekly newspaper, of general circulation, published in the English language, and both printed and published at 14510 Michigan, avenue, Dearborn, Michigan, and plaintiff is a taxpayer in said city of Dearborn.
Plaintiff’s publication, the Dearborn Independent, is qualified to publish legal notices under the laws of the State of Michigan; said publication has been admitted by the United States post-office department for transmission as mail matter of the second class; said publication has a bona fide list of paying subscribers; and it is also distributed free each week to a number of residents in the city of Dearborn.
The defendant, city of Dearborn, Wayne county, Michigan, is a municipal corporation, duly organized and existing as a home-rule city under PA 1909, No 279, as amended (CL 1948, § 117.1 et seq. [Stat Ann 1949 Rev § 5.2071 et seq.)). The defendants Joseph M. Ford, Marguerite C. Johnson, George Wm. Bondie, Patrick J. Doyle, Lucille H. McCollough, Edward J. Dombrowski and Martin C. Griffith, are the duly-elected, qualified and acting members of the city council of the city of Dearborn; the defendant Roy C. Lancaster is a general partner, and the defendants, Cy Aaron and William A. Ross, limited partners, in a copartnership doing business under the name and style of Guide Newspapers, the place of business of said copartnership being at 15608 Michigan avenue, Dearborn, Michigan.
The defendants, Roy C. Lancaster, Cy Aaron and William A. Ross, doing business as Guide Newspapers, are the publishers of the Dearborn Guide, a weekly paper, published, circulated and distributed in the city of Dearborn. At 15608 Michigan avenue, Dearborn, Michigan, the' said publishers gather the news, typewrite the news stories and headlines, and out of said typewritten copy prepare the “dummy” paper, that is to say, establish the exact location where each news article, picture or advertisement is to be placed in the newspaper; proofs are checked on the printed copy at 15608 Michigan avenue, Dear- born, Michigan; at 2932-2936 Caniff avenue, Hamtramck,' Michigan, a jobbing contractor sets the type, places the type in forms for the pages in the paper and does the “press run,” that is to say, the mechanical act of printing the paper.
Guide Newspapers commenced the weekly publication, general circulation and distribution of the Dearborn Guide in the city of Dearborn on Octobér 2, 1948; said paper is published in the English language and is published, distributed and circulated from the Dearborn Guide’s place of business at 15608 Michigan avenue, Dearborn, Michigan, and has been so published, distributed and circulated weekly from the said address continuously from October 2, 1948, to the date hereof.
The Dearborn Guide is a weekly paper published for the dissemination of local or telegraphic news and intelligence of a general character. It has been established, published and circulated at regular intervals without interruption for at least 1 year in the city where such publication, notice by publication or official advertising is givén or made.
The Dearborn Guide has a bona fide list of paying subscribers; further, it is distributed free each week to a number of residents of the said city of Dear-born. Said Dearborn Guide has not been admitted by the United States post-office department for transmission as mail matter of the second class.
Defendant city contends that the council resolution letting the contract to the Dearborn Guide, which has a general circulation throughout the city of Dearborn, will enable the said city to save a substantial sum of money annually; plaintiff contends the same is immaterial to the issues herein.
Pursuant to the requirements of section 5.14, as above set forth, bids were duly submitted to the council by plaintiff and others, and it seems that the Dearborn Guide was the lowest bidder, the Dear- born Independent the next lowest bidder and the Dearborn Press, the other bidder, was the highest bidder.
Upon the advice of the corporation counsel that the provision of section 5.14 of the charter requiring that the official newspaper be “printed” in the city of Dearborn was illegal, the defendant council on February 21, 1950, adopted a resolution accepting the bid of the Dearborn Guide, designating it as the official newspaper of the city of Dearborn and authorizing the publication of official proceedings, notices and ordinances therein. The effect of said resolution, adopted February 21, 1950, by its terms has now expired under the 12-month’s charter limitation. However, the importance of the legal issues involved and the effect of a judicial determination on legality of past as well as future publication of legal notices requires a decision in the present case. It goes beyond the mere issues as to the validity of the action taken by the city council, in that it necessarily involves the construction of the State statute and the validity, in general, of the publication of legal notices throughout the State, and under many circumstances.
The broader question is, what constitutes a newspaper which is qualified to publish legal notices under the laws of the State of Michigan? More particularly, must a newspaper, in order to qualify, have been, or still be, admitted by the United States post-office department “for transmission as mail matter of the second class?” The material part of CL 1948, §691.611 (Stat Ann §27.801), which prescribes the legal qualifications for a newspaper permitted to publish legal-notices in this State, is as follows:
“The term ‘newspaper’ as used in any statute of this State relative to the publication of a notice of any kind, shall be construed to refer only to a newspaper published in the English language for the dissemination of local or telegraphic news and intelligence of a general character, or to a newspaper published wholly or chiefly for the dissemination of legal news, and which shall have been admitted by the United States post-office department for transmission as mail matter of the second class and which shall have a bona fide list of paying subscribers or to a newspaper having a free circulation which has been published at regular stated intervals under the same name and in the same location without interruption-for at least 2 years.” (Italics supplied.)
The requirement in said statute, above italicized, of admission by the post-office department as a second-class mail matter would make the validity of the publication óf legal notices depend upon the fu-' ture as well as present regulations of the United States post-office department. In that respect it offends against the Constitution of our State (1908), art 5, § 1, which, among other things, provides:
“The legislative power of the State of Michigan is vested in a senate and house of representatives.”
The act in question unlawfully attempts to delegate to the United States post-office department the determination of the qualifications of a newspaper to publish legal notices. See King v. Concordia Fire Ins. Co. (syllabus 5), 140 Mich 258 (6 Ann Cas 87), as follows:
“The Michigan standard policy law of 1881 (Act No 149), providing for an insurance commission and authorizing it to prescribe a standard form for fire insurance policies, is unconstitutional because attempting to delegate legislative powers in violation of section 1 of article 4 of the Constitution.”
At the time of the decision in the King Case the Constitution of 1850 was in effect, which, however, contained substantially the same delegation of the-legislative power (Const 1850, art 4, § 1) as we have-above quoted from the Constitution of 1908, which latter was in effect when the statute, above quoted (CL 1948, § 691.611), was enacted and also when the said statute was amended in 1933 in the form above quoted. See, also, In re Brewster Street Housing Site, 291 Mich 313, in which, at page 340, the-King Case, supra, is cited as establishing the law in this State upon the subject of unconstitutional delegation of legislative power. See, also, Colony Town Club v. Unemployment Compensation Commission 301 Mich 107, 113.
“The State legislatures cannot delegate their sovereign powers to the Federal government. While a statute is valid which adopts existing statutes, rules,, or regulations of congress by reference, an attempt to make future regulations of congress part of the-State law is generally held to be unconstitutional.” 16 CJS, p 343.
“Since under the doctrine of the separation of the powers of government the lawmaking function is assigned exclusively to the legislature, it is a cardinal principle of representative government that except when authorized by the Constitution— as may be the case in reference to municipal corporations — the legislature cannot delegate the power to make laws to any other authority or body [citing decisions in 30 States]. Any attempt to abdicate-legislative power in any particular field, although valid in form, is unconstitutional and void.” 11 Am Jur, pp 921, 922, § 214.
We note that in both Corpus Juris Secundum and' American Jurisprudence there are recited important limitations and exceptions to the principle, as above-set forth, of nondelegation of legislative power granted by a constitution, but consider this case isy on that subject, controlled by authorities herein cited.
The statute, above quoted (CL 1948, § 691.611), attempts to incorporate into its standards any future changes of postal regulations as to second-class mail matter. The validity of the publication of legal notices must not be made to depend upon such action by the Federal agency.
It is admitted that the actual printing of the Dear-born Guide does not occur in the city of Dearborn. The fact that the “dummy” is prepared and then forwarded to the city of Hamtramck for printing and then the printed matter again brought back to Dearborn for publication is- not a total process that complies with the requirement of section 5.14 of the charter which requires that the newspaper shall be such as “is printed and published in the city.” It can be considered that the printing of the newspaper in the city of Dearborn was a matter of material consequence to the city of Dearborn. It was competent for the city to adopt section 5.14 and we note no valid objection to said section. Sufficient provision seems to have been made in the charter for the case if by'reason of section 5.14 there shall transpire a total want of publications which can qualify with satisfactory service.
With the requirement of admission as second-class mail matter eliminated, the Dearborn Guide could qualify under the statute; but not under the section 5.14 of the charter of the city of Dearborn.
I have read the opinion of my Brother, Mr. Justice North, in which he holds that the provision as to the printing being done within the city should be held to be merely directory, not mandatory, and considers the Dearborn Guide to be qualified, notwithstanding the provisions of the charter. In support of his conclusion, Mr. Justice North cites the case of Bebermeyer v. Board of County Commissioners of Edmunds County, 63 SD 593 (262 NW 175), in which the South Dakota court construes a statute applicable to the various political subdivisions of the State. Such a statute should he construed in such a manner that its application to the various political subdivisions shall work no unnecessary hardship to any of the political subdivisions. The court in the Bebermeyer Case say:
“From the point of view of notice to the public, it is difficult to see where the situation would he in any manner improved if the type were set by hand and the actual printing done on the presses in Eoscoe [the place concerned with the publication] as was formerly the case.”
As we shall hereinafter .see, in passing upon the requirement now under consideration that the printing he done in Dearborn, it is to be conceded that the main purpose of publication is to give notice of the pending or contemplated proceedings to those persons who may be presumed to be interested therein, and Mr. Justice North gives scant consideration to any other purpose of publication than the giving of such notice. But as we shall hereinafter see, that while notice to presumably interested persons is the main purpose, undoubtedly in the instant case voters of the city of Dearborn under its home-rule charter have also the purpose of encouraging printing establishments to be maintained in Dearborn as the place of printing, and have a right so to do.
Mr. Justice North proceeds to quote the case of In re McDonald, 187 Cal 158 (201 P 110), in which case a state-wide statute was being considered, as distinguished from a city ordinance in the instant case applicable only to the one political subdivision and limited to the purposes and needs of that particular community. As to the McDonald Case, see In re Monrovia Evening Post, hereinafter cited. Justice North also cites the case of Bayer v. Hoboken, 44 NJL 131, in which the New Jersey court considered the action of the common council of the city of Hoboken, New Jersey, in awarding a contract to a newspaper, the presswork of which was done in New York city, and adduced as an argument in favor of the decision of the court upholding the action of the common council that it “is on the side of economy in expenditure; a clear case should be presented to lead the court to reverse it.”
The court may properly consider an argument to sustain the action of the common council in construing a statute and look with favor upon an action which can be thought to be economical of public funds and give weight to such argument in favor of the action of the common council but this constitutes no reason why a mere argument of supposed economy can be said to be sufficient reason for the court overturning the city charter provision in question. The arguments pro and con on the subject of economy constitute a legislative question for the voters of Dearborn to determine rather than a judicial question for this Court to determine, especially when the practical deletion of a provision in the city charter is accomplished by the opinion resting, at least in part, upon such argument as to economy, in contrast to which attitude in the opinion of Mr. Justice North, there is the reasoning in the ease of State, ex rel. Vickers, v. Board of County Commissioners of Big Horn County, 77 Mont 316 (250 P 606), cited by Mr. Justice North but the reasoning for which is not set forth in his opinion, in which the Montana court construed a statute of the State which requires the county commissioners of the several counties (p 321),
“ ‘To contract with some newspaper, published at least once a week, and of general circulation, published within the county, and having been published continuously in such county at least one year,' immediately preceding the awarding of such contract, to do and perform all of the printing for which said counties may be chargeable,’ et cetera.”
In passing upon the situation of a newspaper which the Montana court found did not comply with such provision, the court commented on the New Jersey case of Bayer v. Hoboken, supra, and said (p 322):
“There the purpose of the act was to insure notice to the people of the city as to the action of the council, and that purpose was served by the paper considered, regardless of where the mechanical work was done. But even though the case was on all fours .with this case as to purpose, the facts here do not measure up to the findings in that case, as the most the evidence here shows is that the editorial matter and copy for the Searchlight were written in its office at Hardin and the papers were issued from there to its subscribers.”
The Montana court further said (p 324) :
“We have heretofore held that ‘the word “published,” as used in the statute, evidently means printed and published. It refers to a newspaper having its home in the county’ (Stange v. Esval, 67 Mont 301 [215 P 807]), and, whether such declaration was or was not necessary to a decision in that case it correctly interprets the statute and expresses the legislative intent in its passage. To hold otherwise would defeat the purpose of the act by permitting a large concern situated in a city within the State, or even without the State, to control the county printing in any number of counties by establishing offices therein and furnishing such offices with papers for distribution within the counties.”
We are not concerned in this case with the status of newspapers which have certain printed matter called patent insides, as that is not in issue in the instant case, although commented on in the Montana case.
We further note the following cases from 33 Words & Phrases, p 636:
“The word ‘printed,’ as used in a statute requiring notice of foreclosure to be published in a newspaper printed in the county, does not include a newspaper published in the county, as a newspaper may be published in a county and yet not be printed there. Bragdon v. Hatch, 77 Me 433 (1 A 140), citing Blake v. Dennett, 49 Me 102.”
“Newspaper held not qualified to print legal notices, which are required to be published in a ‘newspaper of general circulation’ in particular city, under Pol Code, § 4458, where mechanical work and pririt-_ ing is done elsewhere, since, under section 4460, a’ newspaper of general circulation must be printed and published where it seeks patronage of such notices, and under section 4463, ‘printed’ means mechanical work of production, and ‘published’ means issuance from place where printed. In re Monrovia Evening Post, 199 Cal 263 (248 P 1017).”
We note the following from 5th Decennial Digest, vol 34, p 2207:
“In proceeding for order directing board of trustees of village to designate only newspaper in village . as newspaper in which should be published treasurer’s report, rather than newspaper of neighboring village, no consideration could be given to circulations of newspapers or cost of printing in the newspapers. Village Law, § 89. Roy v. Murphy, 33 NYS2d 991.”
The instant case is distinguishable from the cases cited by Mr. Justice North, on the ground that the cases cited by him appertain to general statutes ap plicable to several political subdivisions of a State, whereas in the instant case we are concerned only with a city charter adopted by the city of Dearborn, a home-rule city, affecting only that one political subdivision.
The mandatory nature of a provision for local printing was assumed and enforced in Dexter v. Cranston, 41 Mich 448.
The opinion in the case of Drabinski v. Auditor General, 296 Mich 463, does not treat as merely directory the requirement of local printing but says, p 469, the requirement was substantially complied with because “the actual printing of this newspaper in that county was only temporarily suspended.”
With the decisions in definite conflict on the mandatory nature of statutory requirements prescribing printing as well as publication of public notices in political subdivisions of the State with differing local situations and needs, there is no decision called to our attention that gives a mere directory effect to a city charter provision requiring printing and publishing in that city of the public notices of city proceedings and matters of municipal nature, other than the case of Roy v. Murphy, supra, in which case the requirement as to printing is in effect deemed mandatory.
The practical effect of Mr. Justice North’s opinion is to wipe out from the charter of the city of Dearborn the word “printed,” by construing it to be directory only. Inherent in the reasoning in the cases cited by Mr. Justice North is the thought that if the legislature of the State had in any one of the cases cited by him considered the plight of a particular political subdivision, they could be considered as having intended that the language of the statute should be liberally construed to favor the apparent needs of the particular municipality involved.
In the instant case, the voters of Dearborn voted on the particular matter of deleting the word “printed” from the city charter and that particular narrow issue (upon a proposed amendment to the city charter) was rejected by a vote of 8,489 yes to 11,835 no. Any suspicion that the voters attached no particular importance to the inclusion of the word “printed” in the charter is entirely negatived by the fact of the election. It is highly improbable that the city of Dearborn would have held a referendum on the subject of retaining or deleting the word “printed” from the charter if the requirement that the newspaper be printed in Dearborn had been considered directory only. The public of Dearborn (the only community affected) have practically construed the provision in dispute and declared it mandatory.
By the express vote by the electorate on the very subject of retention of the word “printed,” the instant case is differentiated from the cases cited by my Brother, Mr. Justice North, and from all other cases to which our attention has been directed after considerable research. Local economy reasons, including encouragement of local printing establishments and city taxes thereon, may be cited for sustaining the requirements of the charter.
There is no claim in this case that the broad powers of a home-rule city are limited in any such way as to require the deletion of the word “printed” in the instant case.
The language of the charter is clear and unambiguous ; both words are used in the charter, “printed and published in the city.” (Italics supplied.)
There is no compelling reason why the word “printed” in the Dearborn city charter in question should be in practical effect eliminated from the charter by judicial construction. A majority of the voters of Dearborn have a right to determine that such notices shall be printed in Dearborn as well as published there.
With the requirements of admission as second-class mail matter eliminated, the Dearborn Guide could qualify under the statute; but not under section 5.14 of the charter of the city of Dearborn.
The decree appealed from is reversed. A decrée should be entered in this Court in accordance with this opinion.
Dethmers, J., concurred in the result reached by Reid, C. J.
North, J.
Chief Justice Reid in effect has written to the conclusion that the statutory provision making it an essential qualification of the newspaper with which a contract has been made as the official publication of the city of Dearborn, that such newspaper shall be one admitted by the postal department as second-class mail is invalid. In that conclusion I concur; but I am not in accord with the conclusion reached by the Chief Justice that under the charter provision of the city of Dearborn it is also requisite that the newspaper to be used as the official medium of publication for the city must be “printed in the city.” Instead, for the reasons and under the authorities hereinafter noted, I am of the opinion that in construing the charter provision as to the “printing” being done within the city it should be held to be merely directory, not mandatory.
It is of first importance in passing upon the issue under consideration to determine what is the purpose sought to be accomplished by this charter provision for publication of legal notices. It seems too clear for argument that certainly in the main the purpose of publication is to get notice of the pending or contemplated proceedings to those persons who may be presumed to be interested therein. That purpose is in no way accomplished by the doing of the mechanical acts which are only incidental to publication. Instead if the publication and circulation of the particular newspaper selected are within the city, the purpose of the charter provision is accomplished regardless of where the mechanical work incident to printing is done. A rather thorough search seems to reveal that the weight of authority so holds. A contrary holding in a case wherein the municipality in which there was only 1 newspaper “printed” and otherwise qualified, would give such newspaper a monopoly and subject a municipality to the necessity of contracting for publication of its legal notices with such newspaper regardless of how disadvantageous to the city might be the terms of -a contract acceptable to the newspaper. Certainly such a condition would be to the disadvantage of the taxpayers.
While the decisions hereinafter noted arose incident to the construction of statutory requisites, the same tests and' holdings would be applicable to a requisite provided by charter, as in the instant case. As indicated above, we conclude from our research that the more persuasive reasoning and the weight of authority are in favor of a liberal construction of a provision as to the notification being “printed” within a specified area, rather than a construction in a narrow or technical sense. The conclusion of' the trial judge was in accord with the foregoing. In his decree he stated:
“That section 5.14 of the city charter which provides for the publication of legal notices in a newspaper which is ‘printed and published in the city means that the purpose of publication is to disseminate to the public of the city the proceedings of its official bodies, and that this purpose is effectuated regardless of the place where the mechanical process of printing the paper is carried on. The Dearborn Guide therefore qualifies under the language above quoted from section 5.14 of the city charter.”
In deciding a case in this field of the law the supreme court of South Dakota said:
“The interpretation and construction of a statute of this sort cannot and should not be disassociated from the purpose and object thereof. If in any given case the whole picture shows that the design of the statute is being effectuated, certain conduct may very well be deemed in that case a sufficient technical compliance with the statutory requirements when otherwise it would not be. * * * Prom the point of view of notice to the public, it is difficult to see where the situation would be in any manner improved if the type were set by hand and the actual printing done on the presses in Roscoe [the place concerned with the publication] as was formerly the case.” Bebermeyer v. Board of County Commissioners of Edmunds County, 63 SD 593 (262 NW 175).
Prior to a subsequent change in the statutory provisions, the supreme court of California in passing upon the qualification of a newspaper under a statute which provided for publication of notices to be in a newspaper of “ ‘general circulation,’ ” and defined that requisite as being a newspaper “ ‘established, printed and published at regular intervals, in the * # * town, where such * * * notice by publication * * * is given or made’ ” stated the following in its opinion:
“In the production of the publication, everything is done at Ontario, save the setting up of the type and making the impressions on the paper. It would he giving too narrow a meaning to the word ‘printed’ to hold that these acts alone were contemplated by its use in the statute. The only reasonable construction that can be given to ‘printed and published’ is that the paper must be produced in the ■community where it is aimed to have it recognized as a legal advertising medium.” In re McDonald, 187 Cal 158 (201 P 110).
Another case in this field of the law arose where the common council of the city of Hoboken, New ■ Jersey, passed a resolution requiring, in accord with .a statutory provision, that publication be “ ‘in a newspaper or newspapers printed .and published in said city.’ ” The actual mechanics of making impressions' on the paper, i.e., the printing, were performed in New York. The New Jersey court said:
“The paper selected by the resolution- sought to be .set aside, is, within the reason and spirit of the law, ‘‘printed and published’ in this (New Jersey) State.” Bayer v. Hoboken, 44 NJL 131.
In this New Jersey case it is also said: “The action of the common council is on the side of economy in expenditure; a clear case should be presented lo lead the court to reverse it.”
Another case somewhat in the same field of the law was before the supreme court of Minnesota. The statutory provision as to the requisites of a lawful medium of publishing a legal notice was that .it shall: “ ‘Be printed from the place from which it purports to be issued.’ ” The particular paper was in fact printed in one building, but its business establishment was located elsewhere. The court held that, notwithstanding the statutory provision •above noted, the proper construction thereof led to the conclusion that “the statute authorizes the press-work to be done elsewhere.” North Central Publishing Co. v. City of St. Paul, 198 Minn 335 (269 NW 835).
Notwithstanding there is some' authority to the contrary, vie are of the opinion that as a matter of giving fair consideration to the purpose sought to he served by the printing of legal notices and in view of the authorities hereinbefore cited, the provision under section 5.14 of the Dearborn charter as to its legal notices being “printed” in the city should be given a liberal construction rather than, in a technical sense, holding it mandatory. Hence, we conclude that even under the provision as embodied -in the city charter, the Dearborn Guide, as held by the trial judge, was qualified as a medium in which to publish legal notices of the city, notwithstanding the mechanical work incident to the printing was not done within the city of Dearborn.
In reaching the foregoing conclusion we are mindful of our decisions in Drabinski v. Auditor General, 296 Mich 463, and Dexter v. Cranston, 41 Mich 448. However it was not essential to decision in either of these cited cases that the opinion therein should have been broad enough to cover the specific issue now under consideration; and a reasonably careful reading of each of the above cases will disclose that the precise question was not specifically passed upon in either of them. Instead, only by implication was it assumed that the newspaper should be printed in the specified territory. We are not in accord with such an assumption. In the Drabinski Case we said:
“We * * * think that we have heretofore recognized that the physical act of the printing of a newspaper may under certain circumstances be performed at some point other than the place of publication without violating the provision of the statute that a notice shall be printed, published and circulated in the county in which the act, of which notice must be given, is to be performed.”
A decree may be entered in this Court in accordance herewith. Costs to defendants.
Boyles, Btttzel, Carr, Bushnell, and Sharpe, JJ., concurred with North, J.
63 McKinney’s NY Consol Laws § 89.; — Reporter.
See State, ex rel. Vickers, v. Board of County Commissioners of Big Horn County, 77 Mont 316 (250 P 606). | [
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Sharpe, J.
As the result of an automobile accident on October 25, 1949, plaintiff Siebren DeHaan recovered judgment in the amount of $18,338.30 and Beatrice DeHaan recovered judgment in the amount of $2,000. Upon failure of defendants Otto Marvin and Donald Marvin to pay the judgments, garnishment proceedings were instituted against the Detroit Automobile Inter-Insurance Exchange as the insurance carrier of Otto Marvin. Disclosure was made denying liability.
The facts necessary to decision are as follows: In March, 1949, defendant Otto Marvin was the .owner of an automobile. He talked with a representative of the insurance exchange about liability insurance on his automobile at which time Otto Marvin paid the agent $5. The policy dated March 16,1949, was issued by the insurance company and delivered by mail to defendant Otto Marvin’s home address. Along with the policy the insurer sent a schedule of deferred payments showing the first payment due on April 16, 1949, the second payment due May 16, 1949, the third payment due June 16, 1949, and the final payment due July 16,1949.
At the time the application for insurance was signed, defendant Otto Marvin was informed that a person does not have a right to buy insurance in the exchange without being a member of the Automobile Club of Michigan. The receipt mailed to defendant Otto Marvin shows $5 paid on his application for membership in the club with a balance of $7 due in 30 days. The payment due on the policy on April 16, 1949, not having been paid, the agent called on Otto Marvin in the latter part of April and informed him that unless the payments were made very shortly the policy of insurance would be cancelled. None of the payments for the policy were ever paid. On October 25, 1949, defendants were involved in an automobile collision. On November 7, 1949, defendant Otto Marvin through an attorney wrote the insurance company and offered to pay the premiums claimed to be due on the policy. This offer was not accepted by the insurance company. On or about April 30, 1949, a cancellation notice was mailed to Otto Marvin with cancellation date stated to be May 10, 1949. Defendant Otto Marvin testified that he never received the notice.
The policy of insurance contains the following:
“Detroit Automobile Inter-Insurance Exchange (An Insurance Exchange Herein Called ‘Exchange’) Does hereby agree with the subscriber (herein called ‘insured’) named in the declarations made a part hereof, in consideration of the premium deposit herein provided and in reliance upon the statements contained in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy: * * *
“Conditions. * * * (6) No action shall lie against the exchange unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy.”
The cases were consolidated for trial and on appeal. At the close of plaintiffs’ proofs, the following occurred:
“Mr. Allaben (Attorney for garnishee defendant) : May it please the court, at this time I wish to make a motion for a directed verdict for no cause of action on the grounds that under the undisputed proof in this case there was no insurance in effect at the time of this accident. No payment had been made at any time for any portion of the insurance premium, and it was therefore .void ab initio; that the proof is undisputed that the $5 Mr. Marvin paid was for the part payment on a membership in the Automobile Club; and that he signed an application for insurance which provided on its face that there was no payment on the policy being made on the premium for the policy, and that it was to be on a deferred 4-payment plan beginning a month from the date of the application, and Mr. Marvin himself has stated speciíicálly on the stand that he made none of those payments; and therefore, no payment whatsoever was made on this insurance policy.”
The trial court reserved decision on the above motion by virtue of authority of the Empson Act and at the close of all testimony the motion was renewed. In granting the motion the trial court stated:
“The court is granting the motion for directed verdict on the ground, first, primarily, Mr. Marvin never paid a dime for insurance. Even though he was warned his policy would be cancelled, and he stated his wife would send in the money, he never paid a dime for insurance. You can’t have your cake and eat it too. If he wanted insurance, he had to pay for it. It is true that he was given credit. The insurance became effective at the time the policy was written and delivered to him upon the instalment payment plan, but to keep the insurance in force, the instalments must be paid under the terms of the policy. That was the consideration for the writing of the insurance, that he would make the payments, which he did not do. The court is granting the motion for directed verdict on the further ground that the law presumes that the notice of cancellation was mailed and received by him based upon the evidence which you have heard, and the only evidence to the contrary is his bald statement, No, he did not receive it. He had everything else. He had saved everything except what had to do with insurance. He brought in the one envelope which he re ceived. his membership in the Triple A Club. He did remember the pink sheet, but he didn’t save that. He didn’t save anything else. A lot of time has been spent in this ease. It seems to me that a lot of time has been unnecessarily spent when the only issue at any time was whether or not he had paid any premiums for this insurance, whether he had bought any insurance, paid any premiums, and also the simple matter of whether notices had been mailed in the-usual way. They were matters that could have been covered in a very short period of time.
“So, under the instructions of the court, the motion for directed verdict will be granted, and the clerk will take your verdict.”
Plaintiffs appeal and urge that when credit for the payment of premium was extended, the insurer waived any claim that the payment of the premium was a condition to liability attaching; and that the agreement to accept the premium payment in instalments and the delivery of the policy extended the policy coverage to' Marvin as of March 16, 1949. Plaintiffs rely upon American Employers’ Liability Insurance Company v. Fordyce, 62 Ark 562 (36 SW 1051, 54 Am St Rep 305), where it is said:
“The delivery of the policy without condition, and without exacting payment of the premium in cash, raised the presumption that a short credit was intended. * * *
“While the insurance company had the right to cancel the policy for the nonpayment of the premium, as per the contract between the parties, it had no power to make this cancellation relate back, and avoid the policy ab initio.”
Garnishee defendant urges that there never was a policy of insurance in force between Otto Marvin and defendant insurance company from the beginning because of a total failure of consideration. Garnishee defendant relies upon Musser v. Ricks, 271 Mich 174, wherein Ricks made application for insurance on February 14,1934. The policy was delivered 2 weeks later with premium payable in instalments of $8.77 as a down payment and the balance in 5 monthly instalments. The first payment was not made as agreed upon and before any payments were made Ricks was involved in an automobile accident on March 5, 1934. After the accident, Ricks surrendered the policy to the insurance company. In reversing a judgment for plaintiff, we said:
“Plaintiff’s right to recover against the garnishee defendant is dependent on the principal defendant’s right to so recover. In this garnishment proceeding-plaintiff cannot prevail unless at the time the writ of garnishment was served defendant Ricks could have successfully prosecuted a suit on his insurance policy. This he could not have done because when he visited the agent’s office on March 8, 1934, he surrendered his policy with the understanding that it was so surrendered for cancellation because of nonpayment of premium. * * *
“Ricks, the insured, has not complained of or sought to revoke or nullify such surrender and cancellation. Whether he did so in consequence of some misunderstanding of his legal rights is not now material. He has never paid or tendered payment of any portion of the premium. Surely under the circumstances he could not rightly claim that his policy was still in force on July 9, 1934, when the writ of garnishment was served. No claim is made that Ricks acted in bad faith or with any fraudulent intent in surrendering his insurance. He simply put himself in the position of an uninsured auto owner.”
In Schaefer v. Peninsular Casualty Insurance Company, 266 Mich 386, the assured failed to pay any part of the premium after delivery of the policy. In reversing a judgment for plaintiff, we said (p 396):
“The insured never paid the premium and never intended to pay. Repeated requests to pay were ignored and, on one occasion, met by a falsehood that, a check had been sent. The policy recited an undertaking, in consideration of the payment of the premium. There was no occasion for defendant to declare the stillborn policy dead.”
In Hauser v. Michigan Mutual Liability Company, 276 Mich 624, we held that a personal accident policy combined with insurance against public liability, property damage, collision, et cetera, when delivered took effect according to its terms and became subject to subsequent conditions. In this case the policy contained an express provision covering defaulted payments. The policy also provided that it became effective upon payment of the first monthly instalment. We there said:
“As the contract provided for credit and instalment payments and expressly declared the effect of a payment after default, it appears plain that such provision must govern the case.”
In the case at bar the policy was delivered with a schedule of 4 deferred payments, showing the first payment due April 16, 1949, and like payments monthly thereafter. The policy contained no provision requiring payment of the premium in cash as a condition precedent to the effectiveness of the policy.. The delivery of the policy without condition and without exacting payment of the premium extended credit to Marvin and put the policy in force. See Behler v. German Mutual Fire Ins. Co., 68 Ind 347.
In American Employers’ Liability Insurance Company v. Fordyce, supra, it is said:
“The issuance and delivery of the policy to the assured for a valuable consideration. agreed upon and expressed therein, and the acceptance of the policy by the assured, put said policy in force.”
In onr opinion the policy went into effect upon the ■delivery to Marvin with its effective date as of March 16, 1949, as the insurance company accepted his promise to pay the premium in instalments as consideration for the risk assumed by the insurance company.
The cases cited by garnishee defendant insurance company are not controlling. In Schaefer v. Peninsular Casualty Insurance Co., supra, we held that the policy never became effective because there never was an intention to pay any part of the premium. In Musser v. Picks, supra, our decision was based upon the fact that the policy had been surrendered before notice of cancellation. In Hauser v. Michigan Mutual Liability Company, supra, there was an express provision covering defaulted payments.
It is also our opinion that the policy was effective until notice of cancellation, as authorized by statute, was complied with. CL 1948, § 522.34 (Stat Ann 1943 Rev § 24.298), reads as follows:
“No policy of casualty insurance, excepting workmen’s compensation, but including all classes of automobile coverage, shall be issued or delivered in this State by any corporation or other insurer authorized to do business, in this State for which a premium or advance assessment is charged, unless there shall be contained within such policy a provision whereby the policy shall be cancelled at any time at the request of the insured, in which case the company shall, upon demand and surrender of the policy, refund the excess of paid premium or assessment above the customary short rates for the expired time, and whereby the policy may be cancelled at any time by the company by giving the insured a 5 days’ written notice of cancellation with or without tender of the excess of paid premium or assessment above the pro rata premium for the expired time, which excess, if not tendered, shall be refunded on demand and the notice of cancellation shall state that the said excess premium (if not tendered) will be refunded on demand, and furthermore that such cancellation shall be without prejudice to any claim originating prior thereto.”
The trial court held that notice of cancellation had been mailed in the proper manner and form and the presumption is that Marvin received such notice. Plaintiffs urge that the trial court was in error in directing a verdict of no cause of action on the ground that there was no evidence to the contrary except the denial of Marvin that he had received the notice.
In Galkin v. Lincoln Mutual Casualty Company, 279 Mich 327, we said:
“The following decisions hold that notice of cancellation, to be effective, must not only be mailed but must be received by the insured: Farnum v. Phoenix Ins. Co., 83 Cal 246 (23 P 869, 17 Am St Rep 233); American Building Maintenance Co. v. Indemnity Ins. Co. of North America, 214 Cal 608 (7 P2d 305); Mullen v. Dorchester Mutual Fire Ins. Co., 121 Mass 171; Protection Life Ins. Co. v. Palmer, 81 Ill 88; Commercial Union Fire Ins. Co. v. King, 108 Ark 130 (156 SW 445); American Fire Ins. Co. v. Brooks, 83 Md 22 (34 A 373).
“ ‘A notice of cancellation does not become effective until it is received, so that where it is mailed the time of its receipt by the insured is the time from which the notice must be computed (citing Citizens Ins. Co. of Missouri v. Henderson Elevator Co., 123 Ky 478 [96 SW 601, 97 SW 810, 124 Am St Rep 371]; Crown Point Iron Co. v. Aetna Ins. Co., 127 NY 608 [28 NE 653, 14 LRA 147])’ 14 RCL, p 1009.
“We are not in accord with appellant’s contention that under the terms of its policy mailing notice of cancellation to the last known address of the insured in and of itself canceled the policy. Instead, because of the statutory requirement hereinabove quoted, cancellation conld not be effected by the insurer until notice thereof was received by the insured.”
There is a presumption that the notice of cancellation was received by Marvin, but like all presumptions it fades away in the light of the testimony of Marvin that he did not receive the notice of cancellation. In such a case, a question of fact is raised that should be determined by the trier of the facts. The trial court was in error in failing to submit this, issue to the jury.
Plaintiffs also urge that the trial court erred in refusing to permit a letter from defendant Otto Marvin’s attorney to defendant insurance company under date of November 7, 1949, containing notice of accident and offer to pay balance due on premium to be considered in its entirety. When this letter was offered in evidence, the court restricted its use to that of serving as a notice of accident. Garnishee defendant objected to the introduction of the letter in evidence on the ground that it did not constitute a valid tender of the premium due.
The policy contains the following:
“Conditions * * * (6)No action shall lie against the exchange unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or written agreement of the insured, the claimant and the exchange.”
We note that at the time the alleged tender was made there was no action pending against the defendant insurer. The offer was not accepted. We are unable to find any reason for rejection of the tender except that the insurance company considered the policy cancelled. In view of the position taken by the insurance company that the policy had been cancelled and its failure to answer tbe letter of November 7, 1949, we conclude that the insurance company in effect rejected the offer to pay the premium. In such case it would have been futile to have attempted to pay the premium in cash. The law does not require a person to do a useless thing. In our ■opinion the actions of the insurance company constitute a waiver of a tender. The trial court was In error in refusing in evidence that part of the letter relating to payment of the balance on the premium.
In view of the fact that the cause is reversed for ■a new trial, we deem it expedient to discuss another issue raised in the cause. ' Plaintiffs urge that the trial court was in error in refusing to allow plaintiffs, upon the trial of the statutory issue of garnishment, to call the defendant Otto Marvin as an adverse witness.
OL 1948, § 617.66 (Stat Ann § 27.915), reads, in part as follows:
“Hereafter in any suit or proceeding in any court ■of law or equity in this State, either party, if he shall call as a witness in his behalf, the opposite party, employee or agent of said opposite party * * * shall have the right to cross-examine such witness the same as if he were called by the opposite party.”
In Hammond v. Hammond, 234 Mich 444, 456, we said:
“The statute * * * permits the calling of the ■opposite party for cross-examination, but its permission should be exercised sparingly and to reach relevant facts difficult or incapable of proof otherwise.”
As was said in Musser v. Ricks, supra, “Plaintiff’s night to recover against the garnishee defendant is dependent on the principal defendant’s right to so re cover.” See, also, Brogdon v. American Automobile-Insurance Co., 290 Mich 130.
In onr opinion plaintiffs’ interests are similar to those of Otto Marvin. Their right to recover is dependent upon the right of Marvin to recover against, the garnishee defendant. It follows that the trial court was not in error in refusing to allow the plaintiffs to call Otto Marvin as an adverse witness.
The judgment is reversed and a new trial granted,, with costs to plaintiffs as against the garnishee defendant.
Reid, C. J., and Boyles, North, Dethmers, Butzel, Carr, and Bushnell, JJ., concurred.
CL 1948, § 691.691 et seq. (Stat Ann and Stat Ann 1949 Cum Supp § 27.1461 et seq.).—Reporter. | [
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Dethmers, J.
This is an action for malpractice. Defendant, an osteopath, treated a cut in the palm of plaintiff’s hand and, as plaintiff claims, failed to suture cut tendons, with the result that plaintiff’s ability to flex the phalanges of his right index finger is impaired. An allopath testified, over defendant’s objection, in answer to a hypothetical question based on plaintiff’s claims as to the facts relating to the manner of treatment given- the injury by defendant, that in his opinion such treatment was not in accord with the standards of practice and, for that reason, could have and probably did cause the untoward result. He also related what, in his opinion, would constitute standard practice. Without his testimony there is nothing in the record to support plaintiff’s claim that the treatment given by defendant amounted to malpractice.
Plaintiff urges in support of the allopath’s qualifications as an expert witness in this case his licensure in 1904 for and his actual practice of medicine until 1909; his years of experience since then as a drug salesman, in which capacity he called upon and talked with many physicians about medical problems but during which time he appears to have had a sporadic but scant medical practice; and finally, his having made an investigation, at the request of plaintiff’s- attorney, of the standards of practice in such cases, which consisted of reading certain books • and papers written by allopaths and of talking with surgeons.
We need not relate all the facts hearing on, nor need we decide, defendant’s claim that the witness did not so much as qualify as an expert witness even in the field of allopathic medicine and surgery. At all events, he made no claim of having had training or experience in the field or practice of osteopathy or direct knowledge of the subject, nor to have learned specifically from any osteopathic sources what constitutes the standard practice of that profession in the-treatment of severed tendons. He professed to-know the standards of practice of allopaths and testified that, at the request of plaintiff’s attorney,, he had had an anonymous telephone conversation with an osteopath who told him that the stándards of the 2 professions were the same and that osteopathic-schools use textbooks written by allopaths. If defendant’s treatment of plaintiff’s injury is thus to be stamped as negligent by the word of another osteopath it must be, for the purposes of this case, by the latter’s sworn testimony given in the case and. not via the hearsay route as here attempted. Defendant’s answer may not fairly be construed to contain an admission, as plaintiff suggests, that the-applicable standards of osteopaths and allopathsare the same.
Under our holding in Bryant v. Biggs, ante, 64, this-day decided, it must be held that the witness was not shown to be competent to testify in this case as to> whether defendant exercised due and proper care, according to the applicable test. This is not a case like Winchester v. Chabut, 321 Mich 114, or LeFaive v. Asselin, 262 Mich 443, involving “no question of skill or judgment, no question of practice beyond the knowledge of laymen” • in which the negligence of the treatment would be self-evident to the merest tyro, thus obviating the necessity for expert opinion evidence. Without it plaintiff cannot prevail. It follows that defendant’s motion for a directed verdict, denied by the trial court, should have been granted and that the judgment for plaintiff, based upon a jury verdict, should be and it is hereby reversed without a new trial. Costs to defendant.
Reid, C. J., and Boyles, North, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred. | [
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Bushnell, J.
On March 7, 1946, defendant Alonzo Gunsell and one Joseph Burgess, who is not a party to this appeal, were, arraigned jointly on an inf or mation charging them with breaking and entering in the nighttime on February 21, 1946, with intent to commit larceny. Both pleaded guilty. On March 'll, 1946, they were jointly arraigned on a supplemental information charging them with being third offenders.
The supplemental information recited the breaking and entering on February 21, 1946, and that Gunsell was a third offender in that on March 3, 1939, he was convicted of perjury in Genesee county, that being a second offense.
The supplemental information does not recite the requisite first offense, and does not say that Gunsell was convicted on the breaking and entering charge.. When Gunsell and Burgess pleaded guilty as third offenders they were not represented by counsel. Gunsell was asked if he ever had been convicted of the crime of perjury, and he answered, “No, sir.” The court then observed: “He has been convicted of burglary twice before.' He was convicted before Judge Elliott in 1938 for burglary.” Assistant Prosecutor Shaheen replied:
“We will have to make a motion to amend the information, Your Honor.
“The Court: Burgess, your former conviction was a second offense of burglary too, wasn’t it?
“A. Yes, sir.
“The Court: (To Mr. Shaheen) He will have to amend the information.
“Mr. Shaheen: I will amend the information as far as Mr. Gunsell is concerned.”
An undated amended supplemental information, which does not contain the perjury charge, is attached to the record. In this supplemental information it is charged that Gunsell and' Burgess did feloniously break into and enter a coal office in the nighttime on February 21, 1946. This is again charged as a third offense. G-unsell is also charged with having been convicted on March 3, 1939, of breaking and entering in the nighttime. This is charged as a second offense. Burgess is charged with the 1946 breaking and entering as a third offense, and he is also charged with a second offense in that he pleaded guilty on April 2, 1938, to breaking and entering on a date, not recited in the information. No first offense is charged in this supplemental information against either defendant.
The recitals in the settled record say this amended supplemental information was filed March 11, 1946.
On March 25, 1946, both men were sentenced by Judge Gadola to imprisonment for not less than 15 nor more than 30 years for breaking and entering in the nighttime as third felony offenders.
There is nothing in the transcript of March 25, 1946, to indicate that the sentence was imposed for the breaking and entering of February 21, 1946. There is in the files the certified copy of the warrant for the removal of prisoner, indicating that Gun-sell’s sentence of 15 to 30 years was for “breaking and entering in the nighttime, third offense.” No date of the offense is recited.
On May 19, 1947, a hearing was had on Gunsell’s motion to withdraw his plea of guilty and vacate the judgment. He was at that hearing represented by counsel who raised questions of (1) denial of aid of counsel at his trial, (2) failure to impose sentence on the prior conviction, and (3) failure of the court to comply with' the statute regarding arraignment, trial and sentence on supplemental information. (CL 1948, § 769.13 [Stat Ann § 28.1085].) This motion was denied and no appeal 'was taken.
A motion for a rehearing was filed on February 16,1949, and denied on April 27,1949. At this hearing the prosecutor’s motion for leave to file a second “amended supplemental information” was also denied.
On November 25, 1949, a second motion for a rehearing was filed. It was denied March 2, 1950.
March 23, 1950, the trial court entered an order rejecting Gunsell’s proposed concise statement of facts, which he says he had filed on March'6, 1950. Gunsell claims that he then filed a “corrected application for leave to appeal,” and that the trial judge on October 12, 1950, signed and certified “a counter-concise statement of facts submitted by the people.” The certificate which the trial judge signed, as shown by the files of this Court, is, however, limited in nature and was signed by him on March 2, 1951.
This Court granted Gunsell leave to appeal on January 9,1951.
The typewritten record on appeal contains certified copies of the transcript of proceedings before J"udge Gadola on March 6, 1946, March 11, 1946, and March 25, 1946. In the last of these there is a statement by the trial judge to Gunsell regarding his criminal record, with mention of a 4-year probation imposed by Judge Black (no date mentioned), indicating a first offense, and another pertaining to a •charge of unlawfully driving away an automobile, •and some intimation that the one then under consideration was a fourth offense and that Gunsell was at the time on parole. None of these matters, however, is included in either the original or amended supplemental information on which Gunsell and Burgess were jointly charged as third offenders.
The transcript of the hearing on May 19, 1947, on Gunsell’s motion to set aside conviction, et cetera, shows the following:
Gunsell’s counsel stated:
“The proceedings I have here from the clerk’s office only show a sentence on the habitual criminal act.
“The Court: That is all that is necessary.
“Mr. McLaughlin: There was no sentence on the breaking and entering charge.
“The Court: That is all that is necessary.”
No explanation is given regarding a certified copy of record of sentence on plea of guilty on the breaking and entering charge, which appears in the settled record. This copy does not mention a third offense. It shows that a sentence of 15 to 30 years was imposed on March 25,1946, with “recommendation that sentence and parole run concurrently.” The statutory maximum sentence for breaking and entering in the nighttime, et cetera, is 15 years. (CL 1948, § 750.110 [Stat Ann § 28.305].)'
Gunsell, who appears here in pro per, states in his brief that on March 11, 1939, he received a sentence of 7-a- to 22-£ years upon his conviction as a second offender.
The certified transcript of the proceedings of March 25, 1946, on the supplemental charge is silent as to his sentence, except it shows, after questioning Gunsell at length regarding prior convictions and his violation of the habitual criminal act, the court said:
“The sentence is in your case, Mr. Gunsell, 15 to 30 years. That is what has to be imposed, so that will be at Jackson prison.”
Then follows a colloquy regarding Burgess and the imposition on him of a like sentence in the same prison. However, immediately thereafter appears this statement:
“The court will make a recommendation that this sentence and their parole run concurrently. That, will be the recommendation of the court. The further recommendation of the court is these 2 individuals be separated, kept in separate institutions, and that none of the 3 he in the same institution and none of the 3 can communicate with one another.”
No explanation is given regarding the third party-concerned.
The unsatisfactory condition of the record and defendant’s appearance here in pro per imposes as great a responsibility on this Court as his presence at his trial without the aid of counsel should have imposed upon the experienced trial judge.
The supplemental information on which Gunsell was charged with being a third offender is fatally defective. The absence of any charge of a first offense or recital of conviction of the third offense will not support a sentence as a third offender in the light of the specific language of the statute. (CL 1948, § 769.13 [Stat Ann § 28.1085].)
The confusing record as settled by the trial judge is not clarified by the people’s brief. Appellant’s statement of facts and questions involved are accepted by the appellee, hut their argument is largely directed to a denial of the claimed error in accepting defendant’s plea of guilty without informing him of his constitutional and statutory rights and without inquiring about his desire for the aid and assistance of counsel and his right to trial by jury.
The trial court was not required to furnish counsel. In re Elliott, 315 Mich 662, and People v. Quicksall, 322 Mich 351.
The people .assume in their brief that the remaining questions raised by the appellant are without merit and that disposal of the main question will settle the appeal.
Those questions have to do with matters herein-before discussed or referred to, save one regarding the claimed violation of Federal constitutional rights by the application of the habitual criminal act. No discussion of the latter is necessary in view of People v. Palm, 245 Mich 396.
Defendant pleaded guilty to the charge of breaking and entering in the nighttime on February 21,, 1946, with intent to commit a larceny. He does not' now deny his guilt.
The transcript indicates that he was sentenced for breaking and entering as a third offender, and the “certified copy of the record on sentence on plea of-guilty” that he.was sentenced for the breaking and entering alone.
If he was sentenced as a third offender, that’ sentence was a nullity because of the faulty and defective nature of the supplemental information. See' CL 1948, §§ 769.11, 769.13 (Stat Ann §§ 28.1083,, 28.1085).
If he was sentenced as a.third offender on a second amended supplemental information, that sentence was also a nullity because founded on an amended information filed after the court had denied the prosecutor’s motion for leave to do so.
Moreover, G-unsell was not informed “of his right to be tried as to the truth thereof according to law.” Nor was he advised as to any of his rights. People v. Brown, 253 Mich 537 (82 ALR 341).
Defendant, not having been subjected to double jeopardy, is not entitled to be discharged from custody; but he is entitled to have his conviction and sentence as a third offender vacated, without prejudice to further proceedings on a proper information. Shoener v. Pennsylvania, 207 US 188 (28 S Ct 110, 52 L ed 163), and United States v. Oppenheimer, 242 US 85 (37 S Ct 68, 61 L ed 161, 3 ALR 516). Compare In re Wall, 330 Mich 430.
The conviction and sentence imposed upon a plea of guilty as a third offender is vacated. The cause is remanded for imposition of a proper corrected" sentence on the plea of guilty of breaking and enter ing, and for further proceedings that may he appropriate thereto not inconsistent with this opinion. No costs.
Reid, C. J., and Boyles, North, Dethmers, Btjtzel, Carr, and Sharpe, JJ., concurred. | [
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Reid, C. J.
This is a divorce suit in which plaintiff charged defendant with desertion. Defendant •denied the desertion hut the trial court found for the plaintiff on that issue and awarded a decree to plaintiff. Plaintiff appeals on grounds of property •settlement only.
Parties hereto were married in September, 1933. Both had been married before. They have one son, born July 29, 1940, whose custody was awarded to ■defendant wife.
During their married life, the parties hereto by their joint efforts acquired a “bar,” so-called, operating under license from the liquor control commission. From proceeds of the bar business they acquired a home and household furniture, and an automobile for each.
The bar, which by agreement of the parties was valued at $20,000, was awarded to the wife.
The trial court found the home, awarded to the husband, to have a gross value of $18,000 and a net value of $12,800 after deduction of the mortgage.
The plaintiff and defendant were awarded their respective automobiles. The husband also was awarded all the household furniture, value undetermined. On offer of defendant wife, the trial court ordered her to pay to her husband the sum of $5,000 cash. As estimated by the trial court, the husband thereby received property of the value of $17,800, while the wife received property of the value of $15,000. Also, the husband was relieved of payment of alimony for support of the wife, and of all support of the minor child.
Plaintiff acquired the bar, the license for which ■stands in his name, in 1942, and thereafter he practically dropped some other “side-line” business ventures for the most of the ensuing years, and worked from about 5 p.m. daily until about 2 a.m. at the bar. He is a member of 6 service, business and social clubs and organizations. He is a licensed real estate broker and builder, but is not active in sucb lines of business, and has no income except from the bar.
The principal contention on this appeal is over the ownership of the bar.
In July, 1942, at the request of her husband, defendant wife started working in the bar and has worked and assisted in the operation of said bar since said date. She has worked 7 days a week in the bar, from 9 a.m. to 6 p.m. Sbe has done all the bookkeeping; kept the social security records; paid all business bills, and done the banking; ordered and picked up the liquor for the bar. On Sundays, Tuesdays and Fridays (or Thursdays), she has worked regularly behind the bar without any help. She has done the cleaning of the bar; washed the Venetian blinds and windows; opened up the place of business in the morning and cleaned the restrooms; and has done “about everything to be done.”
The trial court, in its opinion, found that defendant wife, “in general has managed the entire bar business; that for this she has received only her living expenses.”
A fair reading of the husband’s testimony shows, that he either agrees with, or does not deny, the-above facts as to the wife’s activities in the operation of the bar.
Defendant wife has had no other employment than at the bar for the past 8 years and no other source-of. income.
The trial court did not express in its opinion or decree, an estimate as to the undesirability of defendant mother continuing in a business, to manage which she must spend 9 working hours daily in an employment where her 11-year-old son, of whom she is custodian, may not properly be with her. The moral value of care and attention to be given the son ought to be given primary attention by her. Dur ing the busy eveuiug hours of the bar, the defendant should not be drawn from her home to look after the bar business. Further, defendant requires a home in which to care for the son.
Plaintiff complains of the decree as not for the best interests of the parties concerned by reason of the award of property rights and interests.
We consider that what property, property rights and interests were by the decree awarded to plaintiff should be awarded to the defendant, and what the decree awarded to defendant should be awarded to plaintiff, with this difference, however, that the $5,000 is to be paid by plaintiff husband to defendant wife within 30 days after filing of this opinion and "that the plaintiff husband shall be required to pay $15 per week to defendant as alimony for the support of the son, Donn A. Scott, until he shall attain the age of 17 years or until the further order of the court, and $20 per week as alimony for defendant until she shall remarry, and that plaintiff shall have his automobile, defendant shall have her automobile .and the household furniture. The decree to plaintiff of divorce on the ground of desertion shall stand, and defendant mother shall have custody of the son until the further order of the court.
This Court will enter its decree in accordance with this opinion. The cause is remainded to the trial court for the carrying out and enforcement of the terms of our decree. No costs, appellant not having requested costs.
Boyles, North, Dethmers, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred. | [
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] |
Sharpe, J.
This is an appeal from• an order of the circuit court of Wayne county, in chancery, dismissing a hill of complaint wherein it was alleged that Leo M. Wendell died intestate July 10, 1945; that at the time of his death, he was a resident of and domiciled in Wayne county ; that deceased and his widow jointly owned real estate at Grosse Point© Park, a summer cottage in Canada and a winter-home in Florida; that all 3 homes were adequately furnished; that defendant was appointed administratrix of her husband’s estate and has refused to make an inventory of the furniture and household furnishings in the 3 houses owned with deceased; that, defendant has refused to permit appraisers, duly appointed, to inventory and appraise the household furnishings in the Canadian summer home; that defendant has sold the home and furnishings in Florida and wrongfully, converted the money received from such sale to her own use to defraud creditors; and that there are lawful claims against the estate of deceased in excess of $12,000. The bill of complaint asks that the household furnishings in the Canada and Florida homes at the date of the death of deceased be decreed to be assets of the estate.
Defendant filed a motion to dismiss the hill of complaint for the following reasons:
'“1. The hill of complaint fails to state a cause of action.
“ (a) The bill admits the properties were owned jointly by the defendant and her deceased husband.
“(b) The hill recites the statute to-wit: The absolute and selective rights in personalty, being CL 1948, § 702.93 (Stat Ann 1943 Rev § 27.3178 [163]), wherein the widow is allowed the household furniture of the deceased.
“2. That if a cause of action exists plaintiff has adequate remedy at law.
“3. Property subject matter of this suit is not within the jurisdiction of this court.”
The trial court held that defendant as widow of Leo M. Wendell was entitled to the household furniture in all 3 homes.. Plaintiff appeals and urges that the furniture and furnishings contained in the Florida and Canadian houses, or the proceeds thereof, are assets of the estate of Leo M. Wendell.
The present suit requires a construction of CL 1948, § 702.93 (Stat Ann 1943 Rev § 27.3178 [163]), which reads in part:
“1. The widow, if any, shall be allowed all her articles of apparel and ornaments, and all wearing-apparel and ornaments of the deceased, and the household furniture of the deceased, and' other personal property to be selected by her, not exceeding-in value $200, and' the allowance shall be made as well when the widow elects not to abide by the terms of the will of her husband as when he dies intestate.”
• The Michigan statute on widow’s allowances has undergone several changes since the Revised Statutes of 1838. Since that date, whenever the legislature granted the widow household furniture there was no intent that it should be administered as an asset of the estate. See Bordwell v. Saginaw Circuit Judge, 119 Mich 421. Up to date we have had no occasion to construe the meaning of the words “the household furniture of the deceased.”
In re Breen’s Estate, 94 Kan 474 (146 P 1147, 4 ALR 238), it was said:
“Provisions for setting apart specific property to the widow on the death of her husband have been held to be entitled to a liberal construction for her benefit, and to apply where there is a will as well as in the case of intestacy.”
See, also, Phillips v. Phillips, 151 Ala 527 (44 So 391, 15 Ann Cas 157), and Estate of Bosse, 247 Wis 44 (18 NW2d 335, 158 ALR 311). Many other States have adopted a liberal policy in favor of the widow.
From an examination of the several changes since the Eevised Statutes of 1838, pt 2, title 4, ch 2, § 1 and ch 3, § 4, it is apparent that our legislature has liberalized the benefits to be granted the widow.
In Estate of Bosse, supra, the Wisconsin court had under construction a statute similar to ours. In that case Mr. Bosse and wife lived in an hotel apartment partly furnished by themselves. They also had a summer home, used occasionally by Mr. Bosse. It was there held that the widow was entitled to the furniture in the summer home. The court said:
“The fact that Mrs. Bosse never resided in the summer home or cottage does not change the fact that the articles in question are articles of household furniture. * * * The statute does not make the right of the widow to the household furniture dependent on her use of the property.”
We are not in accord with plaintiff’s views that the statute granting the household furniture to the widow applies only to the home in Crosse Pointe. The statute makes no limitation upon the location of the household furniture. The statute clearly states, “and the household furniture of the deceased.”
In our opinion the widow is entitled to all of the furniture in the 3 homes mentioned in this opinion. The order dismissing plaintiff’s bill of complaint is affirmed, with costs to defendant.
Eeid, C. J., and Boyles, North, Dethmers, Butzel, Carr, and Bushnell, JJ., concurred. | [
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Dethmers, J.
The owner of premises leased them to defendant, a distributor of gasoline and petroleum products. The lease’ provided that the premises were “to be used as a filling- station for the sale of gasoline, oil, automobile supplies and accessories and any and all other merchandise handled in that vicinity by filling stations,” that the rental should be 1 cent per gallon for each gallon of gasoline pumped at the station but with a fixed minimum, and that the lessor might terminate the lessee’s tenancy upon the latter’s default in any respect. Defendant, in turn, subleased the station to plaintiff’s under a written lease -which the latter knew was a duplicate of its lease from the owner except for the additional provision that plaintiffs should handle and sell the products of defendant but none in competition therewith.
Upon taking- possession plaintiffs advertised complete motor repair service and remodeled the station somewhat, at an expense of about $125, to accommodate such work. For the purposes of this case, it may be assumed that for over a year and a half ■defendant made no objections although it knew that plaintiffs were doing a general garage business on the premises. While the garage business increased in volume at the rate of 3.8% per month, gasoline sales fell off until plaintiffs’ profits from the garage business exceeded those from sales of gasoline and oil. After about 20 months defendant complained to plaintiffs about the poor service they were rendering to the gasoline station trade with a consequent falling off of gasoline sales and profits to defendant and advised plaintiffs that the owner of the premises was complaining about the use thereof for garage work to the extent that the gasoline station customers were being neglected although “the lease calls for a gasoline station only.” Defendant informed plaintiffs that their course of action in that' regard was jeopardizing defendant’s lease from the owner. Thereafter, for the reasons mentioned, defendant terminated the lease, served notice to quit upon plaintiffs, brought summary proceedings to recover possession of.the premises and refused to make gasoline and oil deliveries to plaintiffs. The latter brought this suit for damages for breach of the lease in evicting plaintiffs and cutting off their gasoline and oil supply. A jury returned a verdict for plaintiffs, who appeal here from a judgment non obstante veredicto in favor of defendant.
Was the provision in the lease as to use of the premises permissive or restrictive? If restrictive, did plaintiffs’ operation of a garage business thereon constitute a breach or default entitling defendant to terminate the lease? If the answer to the last question be in the affirmative, did defendant waive its rights in that regard and is it estopped to claim a breach and forfeiture ?
Plaintiffs quote from 32 Am Jur, Landlord and Tenant, § 203; 51 CJS, Landlord and Tenant, § 337b; 148 ALR 585; and Pearson v. Sullivan, 209 Mich 306 (9 ALR 438), to the effect that provisions in a lease relating to use generally are to be construed as permissive in character rather than restrictive. It will be noted, however, that the expression of that general rule is made subject to the qualification that use of the premises other than that specified in the lease shall not be injurious to the landlord’s rights and, further, that the expressed intent of the parties is controlling of the permissive or restrictive character of the use provision. In the instant case the provisions of the lease that plaintiffs should handle and sell the products of defendant and that the amount of rent depended on gasoline sales and reference therein to the lease between defendant and the owner under which, as plaintiffs well knew, defendant was entitled to retain none of the rentals and could ex- peet as its only benefit from the leasing arrangements the profits to be made by it, as distributor, on the gasoline and petroleum products sold by plaintiffs, all these combined, without any resort to covenants by implication, to give eloquent expression to the intention of the parties that the premises should be used primarily to promote the sale of defendant’s products, with such incidental uses, perhaps including auto repairing, as would serve to promote and not interfere with that primary purpose. There was a clearly expressed intent to restrict the use to such purposes. So soon as a use not intended to be more than incidental and subsidiary, as disclosed by the provisions of the lease, became in fact the primary one, relegating the intended purpose to a secondary position, a breach and default occurred entitling defendant to terminate. Such construction of the express terms of the lease encounters no barrier in the provisions of CL 1948, § 565.5 (Stat Ann § 26.524) inhibiting covenants by implication in conveyances of real estate, as none is here implied. Real Estate Stores, Inc., v. Harris, 321 Mich 623; Milligan v. Haggerty, 296 Mich 62.
Plaintiffs contend that defendant’s acceptance of rent and failure to make objections to their use of the premises for garage purposes for 20 months worked a waiver of the use provision of the lease. A waiver is the intentional relinquishment of a known right inducing the belief of an intention and purpose to waive it. Couper v. Metropolitan Life Ins. Co., 250 Mich 540; Warren v. Crane, 50 Mich 300; Bailey v. Jones, 243 Mich 159. There were no proofs in the case upon which a jury should have been permitted to speculate or from which the inference could properly have been drawn that defendant agreed or intended to relinquish or waive its rights under the lease to have the station operated for the principal purpose of advancing its gasoline and oil business, even though it made no objection to some garage business, on the premises. Plaintiffs cannot be said to have been induced by defendant to indulge or rely upon the belief that defendant intended a relinquishment or waiver, particularly for the reason that plaintiffs knew from the outset that defendant was bound to that same use restriction in its lease from the owner, which defendant was powerless to waive. Under the circumstances of this case and on the record made, defendant’s failure to object (disputed by defendant) and its acceptance of rent for 20 months, as claimed by plaintiffs, amounted, at most, to nothing more than' a waiver of past breaches. The restriction on use was a continuing one and plaintiffs’ breach in that regard was equally a continuing-breach. Defendant’s claimed waiver of its right to terminate the lease because of the continuing breach of the restriction in the past would constitute no bar to its right to terminate on the grounds of the continuing-breach of the restriction after such'waiver. 32 Am Jur, Landlord and Tenant, §§ 156, 890; 18 Am & Eng Ency of Law (2d ed), 388; 3 Thompson on Real Property (perm ed), § 1476, p 733; Alexander v. Hodges, 41 Mich 691.
Defendant having acted within its rights in terminating the lease, evicting plaintiffs and cutting off their gasoline and oil supply, plaintiffs were not entitled to recover damages on account thereof. Accordingly, the judgment non obstante veredicto. is affirmed, with costs to defendant.
Reid, C. J., and Boyles, North, Carr, Bushnell, and Sharpe, JJ.} concurred. Butzel, J., did not sit. | [
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Carr, J.
This is a suit for injunctive relief. The bill of complaint filed by the plaintiffs in circuit court alleges that they are the owners of lots in College Park Manor subdivision of part of S| of SWi of section 8, town 1 south, range 11 east, Greenfield township, Wayne county. The plat of said subdivision indicates that it is bounded on the north by Outer Drive, on the east by Meyers road, on the south by Sis Mile Road West, now McNichols road, and on the west by Mennier road, now known as Schaefer road. Plaintiffs allege in their pleading that the conveyances of lots in said subdivision contained restrictions requiring that any building on any lot fronting on McNichols road or Schaefer road must be erected not nearer than 10 feet to the “front lot line,” and that no building erected on any lot in the subdivision shall be nearer the side lot line than is permitted by the building code of the city of Detroit.
Plaintiffs’ lots front on Schaefer road. The defendant Sucher Brothers, Inc., has acquired several lots that front on McNichols road, and is purchasing under contract from defendant Sherman lot 50, located at thé intersection of McNichols and Schaefer roads, with a frontage of 23 feet on the former and extending 100 feet along the latter. It began operations on the lots so acquired in the late summer or early fall of 1947 for the erection of a building to be used for stores. The work was continued from time to time, the west wall of said building being located on, or approximately on, the property line on the east side of Schaefer road. The instant suit was started on May 27, 1948, plaintiffs claiming that defendants were violating the restrictive covenants referred to in their bill of complaint.
On the trial of the case in circuit court plaintiffs urged that lot 50 must be regarded as fronting on both McNichols road and Schaefer road, and, therefore, that the corporate defendant could not put any part of its building, or series of buildings, within 10 feet of the latter thoroughfare without being guilty of a violation of the restriction set forth in the deeds. Beliance was placed on the doctrine of reciprocal negative easements, plaintiffs’ theory apparently being that, since the lots that they had purchased in the subdivision, fronting on Schaefer road, were subject to the restriction, forbidding building within 10 feet of the property line on said road, lot 50 was likewise burdened. Apparently some reliance was also placed on the fact that the recorded plat showed a dotted line along Schaefer road indicating that the building line on all lots, including lot 50, was 10 feet east of the property-line.
The trial court rejected the claim of the plaintiffs with reference to the interpretation of the restriction in question as applied to lot 50, holding that said lot fronted on McNichols road -with its side line on Schaefer. The court concluded that the facts in'the case did not justify the application of the doctrine of reciprocal negative easements, and, citing Kime v. Dunitz, 249 Mich 588, that the line on the plat conld not be given the force and effect of a restrictive covenant. A decree was entered denying the relief sought and dismissing the bill of complaint. Plaintiffs have appealed, asserting that the trial judge was in error in his interpretation of the restrictive covenant in question and that relief should have been granted on the theory of a reciprocal negative easement to which lot 50 was subject. By stipulation of the parties the appeal has been dismissed as to defendant Sherman.
The principal question at issue is the meaning of the restriction as set forth in the deeds. As we understand their position, appellants do not now claim that the line on the plat, above referred to, can be given effect as a restrictive covenant. As a general proposition such covenants are construed strictly against grantors and others claiming the right of enforcement. All doubts are resolved in favor of the free use of property. Moore v. Kimball, 291 Mich 455; Wood v. Blancke, 304 Mich 283. Courts of equity will not grant relief in cases of this nature unless the right thereto is clear. Casterton v. Plotkin, 188 Mich 333. Had it been the intention of the original owner and subdivider to treat corner lots in the subdivision as fronting on both of the contiguous streets or highways, it would have been a simple matter to express such intent in clear and unambiguous language. We think that the trial judge was right in concluding that such purpose may not be inferred from the language used. The word “front” as used in the restriction must be given its ordinary significance.
In Tear v. Mosconi, 239 Mich 242, the owner of a corner lot in Ford Park subdivision in Detroit sought to treat it as fronting on each of the intersecting streets, one of which was Parkside avenue. Restric tions of record prohibited the construction of buildings other than single residences on said thoroughfare. Defendant sought to erect a 2-storv brick building on the corner, with 6 stores fronting on Palmer Park boulevard and 2 on Parkside. In upholding the decree of the trial court granting injunctive relief, it was said:
“The front line of the lots on Palmer Park boulevard is on that street. Stores facing or fronting on Palmer Park boulevard would not be on Parkside avenue within the meaning of the word ‘bn’ as used in the restrictions. A builder may not treat the side line of the lot as a front line and by so doing avoid the restrictions. Stores facing or fronting on Palmer Park boulevard may occupy fully Palmer Park boulevard lots, but a store may not be' built ‘on’ Parkside avenue.”
By analogy we think it must be said in the instant case that defendant may not be required to treat the side line of his lot as a front line, resulting in such lot being subjected to a double restriction. No> claim is made that defendant has constructed a building with stores fronting on Schaefer road, or that it has in any way treated lot 50 as “fronting” thereon.
In support of their claim that a corner lot, located' as is lot 50 in the instant case, should be treated as fronting on both contiguous streets, plaintiffs cite City of Des Moines v. Dorr, 31 Iowa 89. The question there at issue had reference to the liability of" the defendant for the cost of building a sidewalk constructed by the plaintiff adjacent to premises which defendant occupied under a lease. By the terms of the contract between lessor and lessee, the latter agreed to keep up the “sidewalks” in front of the property. It was held that under a proper construction of the lease defendant had assumed liability with reference to sidewalks contiguous to-the lot occupied, along each of the intersecting” streets. Emphasis was placed on the fact that the parties in making their agreement had used the term “sidewalks,” clearly indicating that they had more than one in mind.. In view of the facts involved, the decision of the Iowa court may not be regarded, as in point in considering the case at bar. It was, however, referred to in Waters v. Collins, 70 A 984 (NJ Ch), also cited by appellants, as authority for the proposition that a corner lot may be regarded as fronting on each of the intersecting streets. Circumstances may require such holding in certain instances, but under the facts in the case.at bar the claim is not tenable and is at variance with the holding in Tear v. Mosconi, supra.
The doctrine of reciprocal negative easements has been considered by this Court in numerous cases. In Sanborn v. McLean, 233 Mich 227 (60 ALR 1212), it was held (quoting from the syllabus) :
“If the owner of 2 or more lots, so. situated as to bear the relation, sells one with restrictions of benefit to the land retained, the servitude becomes mutual, and, during the period of restraint, the owner of the lot or lots retained may do nothing forbidden to the owner of the lot sold; they being subject to a reciprocal negative easement.”
In that case lots in the subdivision involved, other than those fronting on "Woodward avenue and Hamilton boulevard, were restricted to use for residence purposes. The common owner had not expressly so subjected 2 lots retained by him, and the conveyances under which defendants claimed did not contain the restriction. It was held, however, that they were put on inquiry as to the existence of restrictions, that the lots in the hands of the original owner were subject to restrictions imposed on purchasers of the other lots, including the plaintiffs, and that the lots retained could not be used except for residence purposes.
The propriety of decreeing reciprocal negative easements has been recognized in many cases, when found to be justified by the facts. The applicable principles involved were considered at some length in Denhardt v. De Roo, 295 Mich 223, and in Eveleth v. Best, 322 Mich 637. In the case at bar lot 50 and the lots owned by plaintiffs are not similarly situated. As found by the trial court, lot 50 does not front on Schaefer road but rather on MeNichols road.- It is subject to the restrictive covenant as to construction along the latter highway. To decree it also subject to the easement now claimed by plaintiffs would result in imposing on it a burden in addition to that created by the restrictive covenant as set forth in the deeds, and would, in consequence, create a situation at variance with the expressed intent of the subdivider and common owner. It may be noted in this connection that plaintiffs’ theory, if sustained, would result in subjecting lot 50 to a double restriction, as a consequence of which approximately i of it would be unavailable for building purposes. On the record before us plaintiffs are not entitled to the relief sought.
The conclusions above indicated render it unnecessary to consider other questions discussed by counsel in their briefs and on the oral argument of the case. The decree of the trial court is affirmed, with costs to defendant.
Reid, C. J., and North, Dethmers, Btjtzel, Bushnell, and Sharpe, JJ., concurred with Carr, J.
Boyles, J., concurred in the result. | [
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Carr, J.
Defendant was tried before a jury in the recorder’s court of the city of Detroit and has appealed from the verdict and sentence. The information in the case contained 2 counts. The first ■count, under which defendant was convicted, alleged the offense of obtaining money under false pretenses in violation of CL 1948, § 750.218 (Stat Ann § 28.415). The second count charged the common-law offense of soliciting a bribe, the punishment for which is fixed by CL 1948, § 750.505 (Stat Ann § 28.773). The case was submitted to the jury under a charge permitting the return of a verdict of not guilty as to both offenses or a verdict of guilty as to either. It is defendant’s claim on this appeal that he is entitled to have the verdict and sentence set aside and to be discharged, or, in the alternative, to-a new trial because of errors occurring in the course-of the trial.
In each count of the information the offense charged was alleged, under a videlicet,.to have been committed on or about July 27, 1948. At that time the defendant was a member of the police force of the city of Detroit, with the rank of- inspector, and was in charge of Precinct Station No. 15, referred to in the record as the Connors Station. It was the claim of the people on the trial that one Stanley Ilondzinski was operating a tavern or bar in the city of Detroit under a so-called class C liquor license issued by the Michigan liquor control commission. He desired to sell the business and made an agreement to that-end, subject to obtaining the. approval of the commission for the transfer of the license to the purchaser. The procedure with reference to obtaining such an approval is set forth in the record and is summarized by counsel for defendant in their brief as follows:
“The system used by the liquor control commission in connection with its approval or disapproval of the sale and transfer of bar licenses is briefly as follows: The parties purchasing the license apply to the commission for a transfer of the license. The commission makes a preliminary investigation with its men and after they are satisfied that the transaction is proper and has met certain requirements, they make a request to the Detroit police department for a similar investigation. The deputy director approved for the commission on July 15, 1948. It- is expected that the Detroit police will examine the premises; talle to the new owner; check his or her criminal record; take their fingerprints; express whether in the judgment of the department the new owner is qualified to run the business, et cetera. The requests from the commission are mailed to the deputy superintendent; he then sends it to the precinct in which the bar is located; the precinct inspector has a sergeant make the inspection, take the statement and check the criminal record. The recommendation is then indorsed by the inspector, returned to the deputy superintendent for his indorsement and mailed to the commission. [Final approval rests in the liquor control commissioners themselves.”
It was further the claim of the people that while the application for the approval of the transfer was pending defendant called Hondzinski by telephone, requesting that he come to the Connors • Station. Hondzinski did so and was advised by defendant in substance, as it is claimed, that the papers were ■ ready and that the obtaining of the desired approval to the transfer might be expedited for the sum of $300. Hondzinski, according to his testimony, obtained that amount and turned it over to defendant, who had made reference in his conversation with the witness to “connections” that he claimed to have. [Defendant, testifying in his own behalf, denied the claims of Hondzinski, asserting that he had not received any money from him.'
Both counts in the information were based on the alleged transaction between defendant and Hondzinski. The first count, under which defendant was convicted by the jury, alleged that for the purpose of obtaining the $300 defendant “did designedly and .falsely represent and pretend that he, the said Michael Larco, had the authority to approve or disapprove the transfer of a class C liquor license from the said Stanley Hondzinski, Sr., to one Anna C. Mulawa, and did further represent and pretend, by his words and conduct, that the final decision ¿s to the approval or disapproval of said transfer, rested with him, the said Michael Larco, and did further represent and pretend that by reason of his knowledge and acquaintance with the liquor control commission of the State of Michigan and other unnamed persons that he, the said Michael Larco, could and would effectuate a transfer of said license and that in order for him, the said Michael Larco, to so do, it would be necessary for him to pay the said acquaintances and unnamed persons the sum of $300 and that the said payment by him, the said Michael Larco, was necessary for the obtaining of said transfer.” The second count alleged that defendant was a member of the police department of the city of Detroit and that he solicited Hondzinski to give to him, the defendant, the sum of '$300, the intent and purpose being to influence the action of officers and agents of the Michigan liquor control commission in obtaining a “speedy approval” of the transfer of the liquor license in question.
At the - outset of the trial counsel for defendant moved to .quash the information alleging, among other grounds, that the joinder of counts was improper. It does not appear that the court was asked to compel the people to elect on which count they would proceed or that an order was specifically sought in accordance with the provisions of CL 1948, § 767.75 (Stat Ann § 28.1015) which reads as follows:
“No indictment shall be quashed, set aside or dismissed for any 1 or more of the following defects: (First) That there is a misjoinder of the parties accused; (Second) That there is a misjoinder of the offenses charged in the indictment, or duplicity therein; (Third) That any uncertainty exists therein. If the court be of the opinion that the first and second defects or either of them exist in any indictment, it may sever such indictment into separate indictments or informations or into separate counts as shall be proper. If the court be of the opinion that the third defect exists in any indictment, it may order that the indictment be amended to cure such defect.”
The motion was denied, and defendant now claims that such ruling was erroneous. It is urged that the counts in the information charged wholly different offenses and- that it was prejudicial to the rights of the defendant to try him on both charges under one information. On behalf of the people attention is directed to the fact that both counts were based on the same transaction, and that the parties, dates, and proofs involved, were identical.
With reference to the question at issue, it was said in People v. McKinney, 10 Mich 54, 95:
“As a general rule, in cases' of felony, when it clearly appears, from the indictment or otherwise, that several entirely distinct felonies are intended ■ to be charged and proved, the court will, in its discretion, either quash or compel the prosecutor to elect: and the same course is sometimes taken in misdemeanors where several offenses in no way connected are charged. But there is nothing technical in the rule; and in the exercise of this discretion the court will not be governed simply by the question whether several different offenses in point of' law are charged and intended to be proved; but mainly, as a general rule, by the consideration whether the trial of these several offenses would involve the proof of substantially different transactions, and. thereby tend to confuse the defendant in his defense, or deprive him of any substantial right. And therefore where the several offenses charged, though distinct in point of law, yet spring out of substantially the same transaction, or are so connected in their facts as to make substantially parts of the same transaction, or connected series of facts, the defendant can not be prejudiced in his defense by the joinder, and the. court will neither. quash nor compel an election. Such would seem to he the principle of the general rule to be' deduced from the cases.”
In People v. Warner, 201 Mich 547, the defendant was prosecuted under an information that charged in the first count assault with intent to do great bodily harm less than the crime of murder, and in a second count assault with a dangerous weapon, but without intending to commit the crime of murder and without intending to inflict great bodily harm less than the crime of murder. A motion to require the prosecuting attorney to elect on which count he would proceed was denied. Both counts were based on the same transaction. In holding that denial of the motion was not erroneous the Court quoted from the syllabus in People v. Sweeney, 55 Mich 586, as follows:
“ ‘Election between counts cannot be required on the ground that distinct offenses are charged where they are committed by the same acts at the same time and the same testimony must be relied on for conviction.’ ”
In the recent case of People v. Percin, 330 Mich 94, the information under, which the defendants were convicted charged in the first count an attempt to extort money from certain individuals by threatening to accuse them of a criminal offense. A second count alleged malicious threats, for the purpose of extorting money, to report to the State liquor control commission an alleged unlawful sale of intoxicating liquor by the parties threatened, with consequent liability to the imposition of a fine and suspension of license. Citing and quoting from People v. Lowenstein, 309 Mich 94, 99, it was held that there was no necessity for an election of counts, and that the verdict of guilty returned by the jury could be sustained as a conviction for the offense charged in the first count without reference to whether the second count was sufficient.' The court also cited People v. McKinney, supra. See, also, People v. Summers, 115 Mich 537; People v. Kolowich, 262 Mich 137; People v. Rose, 268 Mich 529; People v. Ormsby, 310 Mich 291.
In the instant case the joinder of the counts is controlled by the rule recognized in the above-cited cases and in others of similar' import. As before stated, the 2 counts were based on the transaction alleged to have occurred between defendant and Hondzinsld in the latter part of. July, 1948. The testimony offered in support of the first count was identical with that introduced in support of the claimed offense of soliciting a bribe, set forth in the second count. The situation presented is well within the statement of the general principle in People v. Aikin, 66 Mich 460, 470 (11 Am St Rep 512), cited by counsel for defendant:
“The true and only just rule as regards the joinder of counts in an information or indictment seems to be, if the different counts are drawn and used with a view to one and the same transaction, so that one of them,- upon the trial, may be found to meet the evidence, the court will not interfere with the proceeding, as such an object is a legitimate one. • It is a proceeding calculated to promote justice, and cannot confuse or prejudice the defense of the accused.”
People v. Keefer, 97 Mich 15; People v. Rohrer, 100 Mich 126; and People v. Lahey, 256 Mich 250, also cited by counsel, are readily distinguishable on the facts. In the case at bar the trial court was not in error in denying the motion for a new trial, nor was defendant prejudiced by the court’s failure to strike one of the counts from the information, or to compel the prosecuting attorney to elect under which count he would proceed.
It is further claimed that the evidence was not sufficient to justify a conviction under the first count ■of the information, and that the trial court was in error in refusing to direct a verdict in defendant’s favor. Some emphasis is placed on the fact, that the people’s case rested principally on the testimony of Hondzinski, and it is urged that such testimony was not of a clear and satisfactory nature. The record ■indicates that the witness was somewhat handicapped hy inability to understand some of the questions asked him, and also by a poor command of the English language. However, the jurors saw and heard the witness and were therefore in position to pass on his credibility. Insofar as the main details of his testimony are concerned, he did not contradict himself or make inconsistent statements. He detailed the alleged transaction between himself and defendant in a fairly clear manner. The jury was within its rights in finding that his testimony was true even though contradicted by that of the defendant. People v. Petrosky, 286 Mich 397.
To support a conviction of obtaining money under false pretenses it was incumbent on the people to ■establish by competent evidence and beyond a reasonable doubt that some one or more of the representations set forth in the information was or were made with reference to an existing fact or facts, that such representation or representations was or. were false and made with knowledge of its or their falsity, with intent to deceive, and that the person sought to be deceived relied thereon to his detriment. Specifically in the instant case the inquiry is if the testimony of Hondzinski fairly justifies the conclusion to which the jury evidently arrived, that defendant, hy words and conduct, represented and pretended that he could and would effectuate a transfer of the license. If Hondzinski’s version of the transaction was correct, it is a matter of fair inference that he was summoned by defendant to come to the latter’s office for some specific purpose. He was there told that the approval of the transfer of the license might be expedited by the payment of $300. Subsequent occurrences indicated that defendant and Hondzinski alike understood this to mean the payment of that amount to defendant. When tendered to him defendant accepted it, charged with notice as to the purpose for which it was paid to him. The suggestion to Hondzinski that the payment of money was-necessary in order to bring about prompt action, which Hondzinski desired, might well have raised in the latter’s mind the apprehension that unless the money was paid to defendant delay would occur.. The act of accepting the payment made pursuant to the prior conversation may be regarded as tantamount to a declaration by defendant that he could and would effectuate the purpose sought to be accomplished by Hondzinski.
It was within the province of the jury to draw permissive inferences from the established facts. On the record before us it may not be said that the proofs offered on behalf of the people were insufficient to sustain a conviction under the first count of the information. There was no material variance between the averments of the information and the proofs introduced by the prosecution. There was testimony tending to establish the essential elements of the offense of which defendant was convicted. Such testimony was sufficient to support the verdict. Whether the same situation would obtain had defendant been convicted under the second count, rather than the first, does not require discussion. People v. Percin, supra. The trial court was not in error in denying the motions for a directed verdict and submitting the case to the jury.
On behalf of defendant, testimony was offered as to reputation for good character in the community in which he had resided. A request to charge on the subject was tendered to the court, but was not given in the exact form submitted. It was, however, covered in the general charge in a clear and satisfactory manner. See People v. Schultz, 316 Mich 106, 123. Defendant does not now complain that the charge as given was erroneous, but insists that it was the duty of the court to give it in the precise form requested. With this contention we are unable to agree. It was within the province of the trial judge to modify the language of the request if he deemed it proper to do so, and since the matter was fully covered in the charge as given defendant may not claim to have been prejudiced. People v. Collins, 303 Mich 34, 53.
The court was also requested to charge the jury in defendant’s behalf as follows:
“When the testimony is directly conflicting and both versions as given to you cannot be true, and there is reasonable doubt as to which story is true, it is your duty to accept that version which is consistent with innocence of the defendant.”
In People v. Crofoot, 254 Mich 167, a request in the same form was submitted, and this Court held that failure to give it constituted reyersible error. It was stated there, however, that nothing equally informative was given. In the ease at bar the trial judge charged the jury fully and carefully with reference to'the presumption of innocence and reasonable doubt. " The jury was also advised as to the tests to be applied in determining the credibility of the witnesses. . We think that the charge as given adequately safeguarded the rights of the defendant. A similar situation was, presented 'in People v. Placido, 310 Mich 404, in which the same request was submitted but not given, although the court, as in the case at bar, fully covered the matter. It was held that the denial of the charge in the requested form did not constitute reversible error. What was there said is applicable here.
During the presentation of the people’s proofs the assistant prosecutor in charge of the case discovered that he had not indorsed on the information, as a witness for the people, the name of the deputy superintendent of police. Claiming that failure to do so was an oversight on his part, that the proposed witness had testified on the preliminary examination, and that he desired to use his testimony on the trial, he moved the court for leave to indorse the name of the witness. To such action counsel for defendant objected rather strenuously. Apparently the objections were based on the claim that, because, the name of the deputy superintendent had not been indorsed when the information was filed, the jurors had not been questioned as to their possible acquaintance with him. Leave to indorse the name was granted, and the jury advised accordingly. Thereafter the assistant prosecutor, apparently concluding that such indorsement might be regarded as erroneous, moved for leave to strike the name. The-trial court seems to have regarded the motion as a recognition of the correctness of the position of counsel for defendant at the time the prior motion was made. Counsel for defendant objected, but did not advise the court that they wanted the witness called in order that they might cross-examine him. The motion for leave to strike the name was granted, the trial court explaining to the jury that such action.put the situation back as it was before the name was indorsed. Defendant now claims error with reference to the orders of the trial court granting the motion to indorse and the subsequent motion to strike. Under the circumstances we do not think that defendant was in any way prejudiced by either order. The deputy superintendent was not a res gestae witness. The indorsement of his name after the trial commenced was opposed on the ground tbat tbe prosecutor was not entitled to sucb privilege. It is a fair assumption tbat sucb objections prompted the making of tbe second motion. In any event, there is no showing as to any possible prejudice on tbe part of tbe defendant. Under this record tbe claim of error is not tenable;
Tbe calendar entries as set forth in tbe record disclose tbat on tbe first day of tbe trial the court ordered that the jury “be sequestered for duration of trial.” On the oral argument of the case before this Court, counsel for defendant stated in substance that at the time tbe order was made tbe trial judge informed tbe jury tbat be was not taking sucb action at tbe request of either the prosecution or the defense, but solely on his own motion. Tbe record contains no statement of tbe reasons prompting the action, which defendant now insists was erroneous and prejudicial to him. Such contention is without merit. No objection to the order was made at tbe time, and we cannot say that the trial judge abused his discretion to. defendant’s prejudice. There is no basis for any assumption or conclusion that any of the members of tbe jury were, displeased with tbe order, or that any inferences unfavorable to defendant were, or could have been, drawn by the jurors.
Prom a careful consideration of the record before us, we are brought to the conclusion tbat defendant was ably represented by counsel on the- trial, that' bis rights were properly safeguarded, and that he bad, in all respects, a fair trial in which no error requiring reversal occurred. The verdict and judgment are affirmed.
Reid, C. J., and Boyles, North, Dethmers, Butzel, Bushnell, and Sharpe, JJ., concurred. | [
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] |
J. P. Swallow, J.
On March 4, 1986, plaintiff brought the instant action to have a foreclosure sale declared invalid. On June 5, 1986, the Washtenaw Circuit Court entered two orders, one dismissing plaintiffs action with prejudice and the other finding that an earlier order was not a final and appealable order. From those orders, plaintiff appeals as of right.
The facts are not in substantial dispute. Defendant Pittsfield Products, Inc., entered into a mortgage agreement with plaintiff Jackson Investment Corporation on May 22, 1984, enabling Jackson to purchase certain property owned by Pittsfield. On September 10, 1985, Pittsfield commenced foreclosure proceedings and published a notice of foreclosure on September 10, 1985. While Jackson has at times asserted that there was a question concerning whether it was actually in default, Jackson has apparently not taken any legal steps to contest the asserted default. In addition to the notice published on September 10, 1985, notices of foreclosure were also published on September 17, 1985, September 24, 1985, and October 1, 1985. Jackson received actual notice of the sale sometime between September 10 and September 17. On October 3, 1985, the property was sold at public auction to defendant Interface Systems, Inc., for $310,000. The interval between the date of the first published notice and the date of the sale was twenty-three days, five days less than the circuit court construed was required by statute. Interface received a sheriffs deed on the date of the sale. Thereafter, Interface began paying insurance premiums, property taxes, and maintenance and utility expenses.
On March 4, 1986, Jackson filed the instant complaint and sought an order to show cause why the foreclosure sale should not be vacated. The complaint was based on the fact that the sale had occurred five days before the four-week publication period had expired. The circuit court construed plaintiff’s motion as a motion for summary disposition and denied it. Thereafter, the court ruled that the sale was defective. However, the court refused to hold that the consequence of the defect was that the sale was void. Rather, the trial court held that the defect rendered the sale voidable. After examining the equities of the case, the court found plaintiff guilty of laches for waiting until five months of the six-month redemption period had passed before bringing suit to invalidate the sale. However, the trial court found some measure of relief was appropriate and ordered that the redemption period be extended by forty-three days.
On appeal, plaintiff raises two issues: (1) whether the trial court erred in holding that the sale was voidable, rather than void; and (2) whether the trial court erred in its application of the doctrine of laches to bar relief.
MCL 600.3208; MSA 27A.3208 provides in part:
Notice that the mortgage will be foreclosed by a sale of the mortgaged premises, or some part of them, shall be given by publishing the same for 4 successive weeks at least once in each week, in a newspaper published in the county where the premises included in the mortgage and intended to be sold, or some part of them, are situated.
Jackson contends that the case law of this state holds that a foreclosure sale which occurs before the expiration of the notice period is void and without effect. In support of this assertion, Jackson cites two cases. One of the two decisions is Bacon v Kennedy, 56 Mich 329; 22 NW 824 (1885). The full text of that opinion reads:
The only question in this case is whether a statutory foreclosure is valid where the sale was made on a notice which, although published twelve times in separate weeks, provided for selling on a day less than twelve weeks from the first publication. The statute does not say that notice shall merely be published twelve times, once a week, but once a week "for twelve successive weeks.” The object of this was manifestly to give that full interval between the first notice and the sale. Such was the basis of the decision in Gantz v Toles, 40 Mich 725 [1879]; and the same principle has been applied in other cases, some of which were referred to on the argument.
As the court below so held, the judgment was correct and must be affirmed.
The Bacon case stands for the proposition that the foreclosure sale may not take place within seven days of the last required weekly published notice, i.e., when publication is required "for twelve successive weeks,” at least twelve full weeks or eighty-four days must pass from the date of the first notice before the sale can take place. In the instant case, the trial court followed the same reasoning when it held that the language of the current statute requiring publication "for four successive weeks at least once in each week” requires that at least twenty-eight days must transpire from the day of the initial notice until the date of sale. The issue of whether the sale may take place within seven days of the last required weekly published notice is distinct from the issue of what effect the defect should have. That issue was not raised in Bacon. Since the issue was not raised, the Court in Bacon did not decide whether the defect rendered the sale void or voidable. Even though the opinion suggests that the sale was not valid, that statement must be read and interpreted in light of the context in which it was decided.
Jackson also relies upon Casey v Goetzen, 240 Mich 41; 214 NW 948 (1927). Casey is factually similar to Bacon and the instant case, involving a situation where the foreclosure sale had taken place before a full week had passed after the last required notice. However, the legal issue involved in Casey is quite different than the issue involved here or in Bacon. The critical issue in Casey is whether res judicata applies to bar the plaintiff from raising the fact that the notice period had been abbreviated. The mortgagee asserted that the failure of the plaintiffs vendee to raise the issue of defective notice at a proceeding the mortgagee had initiated to obtain possession barred the plaintiff in his attempt to set the sale aside. The court held that a vendee could not surrender the rights of his vendor and that the vendee was not required in the former proceeding to assert the defense on the vendor’s behalf. Thus, as in Bacon, the effect of defective notice was not at issue. While the Court stated in its holding that the sale was void, again, that conclusion must be construed in light of the context of the issues that were litigated. A court cannot be expected to draw a distinction as subtle as the one presented here (void vs. voidable) when the effects of such distinctions are not placed before it to decide. As Black’s Law Dictionary (rev 4th ed), p 1745 notes, legal writers and jurists have not at all times used the term "void” in its strictest sense and frequently "void” is used and construed as having the more liberal meaning of "voidable.”
The cases upon which plaintiff relies are not precedent. We hold that a defect in notice renders a foreclosure sale voidable. Our Supreme Court reached a similar result in Fox v Jacobs, 289 Mich 619; 286 NW 854 (1939), holding that the failure of the notice to specify an assignee of the mortgage, as required by statute, did not render the foreclosure sale absolutely void, but only voidable. While it is clear that the defect of which the mortgagee complained in Fox is not of the same nature as the defect presented here, we are convinced that the same result is required here.
MCL 600.3208; MSA 27A.3208 and MCL 600.3212; MSA 27A.3212 set forth the requirements of notice. The failure to properly observe any of these requirements provides a host of poten tial defects which could occur. By holding that a defect renders a foreclosure sale voidable, rather than void, more security is given to the title of real property. Such a holding also allows for an examination of whether any harm was caused by the defect. In situations where it is evident that no harm was suffered, in that the mortgagor would have been in no better position had notice been fully proper and the mortgagor lost no potential opportunity to preserve some or any portion of his interest in the property, we see little merit in the rule of law which Jackson advocates. Such a rule would automatically nullify the sale without regard to or consideration of the intervening interests of other parties. We conclude that the trial court correctly held that the notice defect rendered the sale voidable and not void. Such a result is consistent with that in Kuschinski v Equitable & Central Trust Co, 277 Mich 23; 268 NW 797 (1936), where our Supreme Court held that a foreclosure sale held in violation of a restraining order rendered the sale voidable and not void.
Jackson’s final argument is that the circuit court erred in applying the doctrine of laches to bar its requested relief.
Jackson is a business entity active in real estate transactions and was represented by counsel throughout the foreclosure process. Some time between September 10 and September 17, 1985, Jackson received actual notice that the foreclosure sale would be held on October 3, 1985. No complaint was lodged that the sale could not be held before October 8, 1985, until after the sale had been completed and the property sold to a third party. The instant complaint was not filed until five months of the six-month redemption period had passed. While defendant’s attorney asserts that he did not become aware of the defect until shortly before the instant complaint was filed, the circuit court found that Jackson had "the means, skill and knowledge to protect its interest more vigorously.” To cure the defect (the acceleration of the sale by five days) the circuit court extended the redemption period by forty-three days. At no time during the redemption period has Jackson attempted to redeem the premises. In the meantime, Interface relied on the apparent validity of the sale by taking steps to protect its interest in the subject property by purchasing insurance, paying property taxes and assuming responsibility for maintenance and utility expenses. Under these circumstances, there were sufficient equitable grounds to support the trial court’s refusal to invalidate the sale.
Affirmed.
However, compare Carpenter v Smith, 147 Mich App 560; 383 NW2d 248 (1985), lv den 425 Mich 873 (1986). Since defendants have only raised the issue whether the trial court properly held that a full twenty-eight days of notice was necessary under MCL 600.3208; MSA 27A.3208 in their responsive briefs and have not filed a cross-appeal, the issue is not properly before us. | [
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] |
Beasley, J.
Petitioner, Gregory Kelser, appeals as of right from an order of the Michigan Tax Tribunal granting respondent’s, Michigan Department of Treasury’s, motion for summary disposition pursuant to MCR 2.116(C)(4) on the ground that the Tax Tribunal lacked jurisdiction. Petitioner had sought to appeal a $17,084.48 assessment for income tax deficiencies for the tax years 1981, 1982 and 1983.
On March 11, 1986, respondent issued a "Decision and Order of Determination and a Notice of Final Assessment” to petitioner. A certified mail return receipt signed by petitioner on March 12, 1986, reveals that he received the "Decision and Order of Determination and Notice of Final Assessment” from respondent on March 12, 1986. On April 1, 1986, petitioner’s attorney sent a letter to Thomas M. Hoatlin, Deputy Revenue Commissioner, requesting a redetermination of the tax assessment. On April 29, 1986, petitioner sent a letter to the clerk of the Tax Tribunal requesting an appeal of the assessment. On May 29, 1986, respondent sent petitioner a notice stating that the petition was defective. On June 11, 1986, petitioner refiled his petition with the Tax Tribunal. Respondent moved for and was granted summary disposition on the ground that the Tax Tribunal lacked subject matter jurisdiction due to petitioner’s failure to file his petition timely.
On appeal, petitioner claims that respondent did not properly notify him of his right to appeal the tax assessment. MCL 205.21(2); MSA 7.657(21)(2) requires respondent to include with the final notice of assessment a statement advising the taxpayer of a right to appeal. Petitioner maintains that he never received a statement regarding the right to appeal. The Tax Tribunal found that petitioner did receive a statement advising him of his right to appeal. The factual findings of the Tax Tribunal are final if supported by competent and substantial evidence. Respondent’s uncontroverted affidavits asserting that a notice of assessment was sent to and, according to the postal receipt, received by petitioner, and that the form used at that time contained specific appeal information, constitute competent and substantial evidence to support the Tax Tribunal’s findings.
Petitioner also claims the Tax Tribunal erred in granting respondent’s motion for summary disposition on the ground that he failed to file his petition timely. A person aggrieved by a Department of Treasury tax assessment may appeal to the Tax Tribunal within thirty days of the determination which he seeks to review. Here, respondent issued the assessment March 11, 1986. Accordingly, petitioner had until April 10, 1986, to file an appeal with the tax tribunal. Although petitioner sent a letter to respondent April 1, 1986, seeking a redetermination of the assessment, he did not contact the Tax Tribunal until April 29, 1986. Even then his correspondence failed to meet the technical requirements of a petition. It was not until June 11, 1986 that petitioner actually filed a petition with the Tax Tribunal. While petitioner may have graced the basketball court with many game-saving jump shots, in the tax court his attempt came after the final buzzer.
Affirmed.
On October 27, 1986, the Tax Tribunal issued an order granting respondent’s, Michigan Department of Treasury’s, motion for summary disposition pursuant to MCR 2.116(C)(4). On March 20, 1987, the tribunal issued an order denying petitioner’s motion for reconsideration. On May 18, 1987, the tribunal issued an order denying petitioner’s motion for a rehearing. Petitioner appeals from the final order.
Antisdale v City of Galesburg, 420 Mich 265; 362 NW2d 632 (1984); Const 1963, art 6, § 28.
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ON REMAND
Before: H. Hood, P.J., and J. H. Gillis and R. S. Gribbs, JJ.
Per Curiam.
This case was remanded to us for
us to consider in light of In re People v Burton, 429 Mich 133; 413 NW2d 413 (1987). The facts of the case are set forth in our previous opinion, Wayne Co Prosecutor v Recorder's Court Judge, 151 Mich App 550; 391 NW2d 407 (1986). In that opinion, we entertained the prosecutor’s complaint for superintending control and held that the Recorder’s Court judge committed an error of law when he granted defendant Wilson’s motion for a new trial after two res gestae witnesses had been endorsed during the trial. In Burton, the Supreme Court held that this Court had improperly granted an order of superintending control where we had held that the trial court erred in granting the defendant’s motion for new trial after a prosecution witness had recanted her trial testimony. Burton, supra, p 144. The Supreme Court held that a writ of superintending control is improper when used merely to review a trial court’s exercise of discretion. Id. The Supreme Court emphasized that an order of superintending control is to be used only to determine if the lower court "upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law.” Id., p 139.
We feel an order of superintending control is proper in the instant case. In this case, the basis for our review and disposition is not that the order of the Recorder’s Court constituted an abuse of discretion, but, rather, that the court committed an error of law. Burton allows an order of superintending control to be used in such situations.
The trial court’s order granting a new trial is vacated and Wilson’s conviction is reinstated. | [
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Shepherd, J.
Plaintiffs filed a complaint arising out of a robbery of Dennis Marr (hereinafter plaintiff) by two unidentified persons while plaintiff was in the course of delivering merchandise to defendants’ store. Defendants were granted summary disposition and plaintiff appeals.
On March 27, 1981, at approximately 2:30 p.m., plaintiff was delivering merchandise in the course of his employment to defendant Spot Lite Market located at 5555 Tireman in the City of Detroit. Plaintiff drove a truck with a cargo box accessible not from the truck cab but by doors in the rear of the truck which opened out. The store is set back from the road with parking between the road and the store. In the front of the building were two doors, one for customers on the right and one leading directly into the stockroom on the left.
Plaintiff asked to use the left door to deliver his goods out of concern for his safety, but the store manager did not permit him to use that door. Large poles surrounding the entrance to the right hand door (apparently to prevent customers from taking shopping carts to the parking lot) prevented plaintiff from making his delivery in one load and required him to make three trips. On his third trip to the vehicle he was robbed at gunpoint in the cargo area of the truck by two men.
On July 15, 1986, defendants filed a motion for summary disposition on the ground that plaintiffs had failed to state a claim on which relief could be granted because defendants owed no duty to protect plaintiff from this robbery. MCR 2.116(C)(8). On July 28, 1986, plaintiffs filed an answer to defendants’ motion and also filed their own cross-motion for summary disposition on the ground that, except as to damages, there was no genuine issue of material fact. MCR 2.116(0(10). At the close of oral argument on the cross-motion and at the close of oral argument following plaintiffs’ motion for rehearing, the trial court concluded that defendants owed no duty to plaintiff as a matter of law. In its November 4, 1986, written order the court concluded that "there exists no genuine issue of any material fact as those facts relate to the issue of duty raised and alleged.” We affirm the trial court’s ruling and conclude that summary disposition was proper under either MCR 2.116(C)(8) or (0(10).
A motion for summary disposition for failure to state a claim upon which relief can be granted challenges the legal sufficiency of a plaintiff’s claim and should be considered by an examination of the pleadings alone. Harris v Detroit, 160 Mich App 223, 226; 408 NW2d 82 (1987). Such a motion accepts as true all factual allegations well pled by the plaintiff. McNeal v Henry, 82 Mich App 88, 89; 266 NW2d 469 (1978).
The general rule is that a business invitor owes a duty to its customers to maintain its premises in a reasonably safe condition and to exercise ordinary care and prudence to keep the premises reasonably safe. Dumka v Quaderer, 151 Mich App 68, 73; 390 NW2d 200 (1986), lv den 426 Mich 861 (1986). However, merely identifying the person injured as a business invitee does not mean that a duty is owed in all situations and circumstances. In a negligence action, the question of whether a duty exists is one of law for the court’s resolution. Moning v Aliono, 400 Mich 425, 436-437; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977). Duty is essentially a question of whether the law will impose a legal obligation on one party for the benefit of another. Moning, 437. While foreseeability of the harm is an important consideration in determining whether a duty exists, courts must also assess the competing public policy considerations for and against recognizing the asserted duty in any individual case. Friedman v Dozorc, 412 Mich 1, 22; 312 NW2d 585 (1981); Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988). Where a court determines that no duty exists, summary disposition for failure to state a claim is an appropriate remedy. See, e.g., McNeal, supra.
In Williams, plaintiff, a customer in defendant’s store, was shot during a robbery attempt. The trial court directed a verdict in favor of defendant, holding that defendant had no duty as a matter of law. The Supreme Court ultimately affirmed. The Williams Court reasoned:
In deciding this question, we note that the court and jury perform different functions in a negligence case. Among other things, the court decides the questions of duty and the general standard of care, and the jury determines what constitutes reasonable care under the circumstances. However, in cases in which overriding public policy concerns arise, the court determines what constitutes reasonable care. See Moning v Alfono, 400 Mich 425, 438; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977). Such public policy concerns exist in the present case, and therefore the question whether defendant’s conduct constituted reasonable care is one the court should determine as a matter of law.
We agree with the Court of Appeals that a merchant’s duty of reasonable care does not include providing armed, visible security guards to deter criminal acts of third parties. We decline to extend defendant’s duty that far in light of the degree of control in a merchant’s relationship with invitees, the nature of the harm involved, and the public interest in imposing such a duty. [Williams, 500-501.]
The pertinent facts alleged in plaintiffs’ complaint are that there had been a number of crimes, such as assaults and unarmed and armed robberies, at defendants’ premises and that on March 27, 1981, plaintiff was delivering merchandise in the course of his employment at defendants’ market and was assaulted and robbed by two unidentified persons. Plaintiffs’ allegation of duty is general in nature. Plaintiffs alleged that defendants "owed plaintiff the duty to use ordinary care to have its common areas and premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation; not to lead the invitee into a dangerous trap, but instead to give adequate protection and/or timely notice and warning of latent or concealed perils . . . We hold that the trial court was justified in determining as a matter of law that no duty arose on the part of defendants and consequently that granting summary judgment was appropriate. See McNeal, supra. Plaintiffs’ unspecific factual allegations essentially suggest a per se rule that a business invitor owes a duty to protect business invitees from third-party criminal assaults. This is not the law in Michigan; commercial businesses are not insurers for their invitees. Jones v Williams, 160 Mich App 681; 408 NW2d 426 (1987); Pagano v Mesirow, 147 Mich App 51; 383 NW2d 103 (1985), lv den 424 Mich 895 (1986); McNeal, supra. General allegations of duty to maintain premises in a safe condition, such as plaintiffs have made in this case, are insufficient. The cases where such general allegations are sufficient relate to situations where the building itself was defective and the condition of the building caused the injury. Where a third party caused the injury by committing a criminal act, we believe plaintiffs are required to specifically allege what duty defendant had to prevent the crime. Otherwise we would come dangerously close to imposing strict liability against business invitors for crimes committed by third parties against invitees.
In their cross-motion for summary disposition plaintiffs argued that "it would have been simple to avoid this situation” if: (1) a guard was on the premises; (2) there was a fence around the parking area; (3) the clerk had not refused to allow plaintiff to use the left hand door into the stock room; and (4) defendants did not have poles around the right front door requiring plaintiff to make three trips to the truck. Even if we assume that plaintiff had alleged a duty on the part of defendant as to the above points we would still find summary disposition under MCR 2.116(C)(8) proper and conclude that defendants did not owe plaintiff a duty on these facts.
Michigan appellate courts have previously held that commercial enterprises are under no duty to provide armed and uniformed security guards to deter and intercede in armed robberies. Williams, supra; see also Pagano. We can find no cases which would affirmatively require the placement of security guards in commercial businesses. In fact both the Supreme Court and this Court have recently come to the opposite conclusion. Williams, supra; Jones, 686. Furthermore, we will not require storeowners, as plaintiffs apparently invite us to do, to fence up their store parking lots and provide impregnable passageways for delivery people. Plaintiff would have us create a duty on the part of store-owners to turn their stores into fortresses. Every time a crime occurred on a merchant’s premises a plaintiff would have to do no more than allege a measure that a defendant might have taken and the jury would then be allowed to speculate whether the alleged measure might have inhibited the criminal. Since such allegations can be made in every case we would be imposing strict liability in the guise of negligence.
Given our present holding that defendants owed plaintiff no duty, even assuming as true the facts as plaintiffs have presented them, summary disposition was also proper under MCR 2.116(0(10), no genuine issue of material fact. On appeal defendants virtually concede the facts as set forth by plaintiffs. Plaintiffs have set forth no facts which imply a recognizable duty on defendants’ part. We therefore affirm the trial court’s ruling.
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G. S. Allen, J.
In this matter on leave granted from an August 25, 1986, opinion and order of the Workers’ Compensation Appeal Board, we are asked to determine whether a flat per diem travel stipend, computed on a zone basis and paid pursuant to a union contract, in and of itself determines that an employee injury, occurring while returning en route from work to home, arises "out of and in the course of employment.” The hearing referee and Workers’ Compensation Appeal Board held that it did not. We affirm. The issue raised is of first impression in Michigan.
Plaintiff, born July 10, 1924, is a journeyman sheet metal mechanic with thirty years experience in all phases of sheet metal work. Customarily, he obtained jobs through his union, Local 80 of the Sheet Metal Workers International Association. In the Spring of 1978, Local 80 received a request for more sheet metal workers from another union local, Local 292, since Local 292 did not have sufficient workers to fill a job for defendant, George Koch & Sons Company, at the General Motors Hydramatic Plant at Willow Run in Ypsilanti. Pursuant to this request, plaintiff was employed by defendant at the Willow Run job site.
Under the terms of the collective bargaining agreement between Local 292 and George Koch & Sons Company, plaintiff was paid an hourly wage plus $2.50 per day for travel. Travel was not based on actual distance traveled but was based on zone mileage, calculated using the Detroit City Hall as the starting point. The first thirty miles from the starting point were a free zone, for no mileage was paid. After that, the mileage rate increased by zone, according to the distance from the starting point. The GM Hydramatic Plant fell in the $2.50 per day zone.
Plaintiffs home was in St. Clair Shores and it was from there that he proceeded to the job site through a car pool arrangement. He would drive his own car to a nearby designated spot at Twelve Mile and 1-94 where he would meet with three fellow employees. Each employee took turns driving his own car to the job site and was not paid by the others for gas. This arrangement had been going on since the job commenced some two months previous to the date of the accident.
On June 6, 1978, plaintiff rode to the job site as a passenger in the car pool. After working the scheduled shift, the four employees started back home on 1-94. At a point approximately twenty-three miles from the job site (Livernois and 1-94), the car in which plaintiff was riding was sideswiped, struck the guardrail, rolled over and caught on fire. Plaintiff sustained serious injuries to his left arm, resulting in six major operations and making it impossible for him to resume his job as a skilled sheet metal mechanic.
At the hearing before the referee, plaintiff testified that he was performing no special service to his employer on that date, that he did not receive an hourly rate of pay for travel to and from work and that he was not paid per actual miles traveled. However, ten separate weekly pay checks to plaintiff in amounts ranging from $5 to $17.50, each designated "Travel Pay,” were introduced into evidence. No medical testimony was presented since the parties agreed this would not be offered until the threshold question of whether plaintiff was in the scope of his employment was resolved.
On April 9, 1981, the hearing referee ruled that no benefits were payable:
Plaintiffs injuries did not arise out of, nor occur in the course of his employment. It is significant that the transportation or "travel expense” was a sum based on a zone and paid pursuant to, or as prescribed by a union contract and was thus in the nature of a fixed additional expense to the defendant and not a "travel expense” provided to compensate for an additional or unusual risk of injury. Consequently, the case of Lemanski v Frimberger Co [31 Mich App 285; 187 NW2d 498 (1971)] appears inapplicable to support plaintiffs position and, in addition, the facts herein do not satisfy those requirements to satisfy compensability as prescribed in the case of Stark v L E Meyers Co [58 Mich App 439; 228 NW2d 411 (1973), lv den 394 Mich 814 (1975)].
Plaintiff appealed to the Worker’s Compensation Appeal Board, arguing, inter alia, that in Collier v J A Fredman Inc, 1983 WCABO 790, a flat rate travel allowance of $4.50 per diem based upon the distance between the union hall and the job site was held by the wcab to be grounds for finding that plaintiffs injury on the way home from an assigned seminar arose out of plaintiffs employment. On August 25, 1986, the wcab issued its opinion affirming the finding of the hearing referee.
The wcab opinion states the general rule that injuries sustained by an employee going to or returning from work are noncompensable, but notes the rule has been "riddled with exceptions,” one of which is whether the employer paid for or furnished employee transportation, citing Stark v L E Myers Co, 58 Mich App 439; 228 NW2d 411 (1973), lv den 394 Mich 814 (1975). The wcab then noted that its decision in Collier, supra, was reversed and remanded to the board in an unpublished opinion of the Court of Appeals (Collier v J A Fredman, Inc, Docket No. 74262, dated April 26, 1985); the Collier Court, relying on 1 Larson, Workman’s Compensation, 16.30, pp 4-180 to 4-181 and Stark, supra, concluded that a flat rate travel allowance is not in itself sufficient grounds to find that the employee is within the scope of his employment. Instead, three additional factors, viz: (1) whether the injury occurred during or between working hours; (2) whether the employer derived a "special benefit” from the employee’s activities at the time of the injury; or (3) whether the employment subjected the employee to "excessive exposure to traffic risks,” should be considered before concluding that the employee is or is not within the scope of employment at the time of the injury. The wcab opinion summarized as follows:
Adopting the premise of Collier, supra, that no one factor is in and of itself determinative, we decide from the total record whether the added travel stipend, when considered with these other factors, constituted "a substantial part” of the service performed, per Larsen, supra, so as to create the required nexus.
Plaintiff testified that he was called from another union hall to work for defendant under a similar or identical zone mileage agreement as his own local’s. However, no showing was made that this solicitation from another local, that also allowed payment of zone mileage based on the same radius standards as plaintiffs, provided any special benefit to defendant through inducing plaintiff into its employment. . . .
The evidence did not show that plaintiff’s route to and from defendant’s job site exposed him to any excessive risk not borne by the regular traveller, or that his injury had resulted from such a risk. He was not shown to be on any special mission or engaged in any dual purpose employment through carrying some of his tools with him in the car, per Bush [v Parmenter, Forsythe, Rude & Dethmers, 413 Mich 444, 452; 320 NW2d 858 (1982)]. No suggestion was offered anywhere that his injury occurred during or between working hours. Nor was there any evidence that the car pooling was arranged by one of defendant’s foremen or provided in a company vehicle, as in Torres v Armond Cassil Co, 115 Mich App 690 [321 NW2d 776] (1982), where such evidence was the basis for finding that a sufficient employment nexus existed.
Given the failure of the instant record to clarify whether any of the other factors beyond a flat travel stipend could have provided a sufficient nexus between plaintiffs employment and his injury, we conclude that plaintiff has failed to bear his evidentiary burden of proving that his injury arose out of and in the course of his employment. Aquilina v General Motors Corp, 403 Mich 206 [267 NW2d 923] (1978). Stark, Bush, Collier, supra. [186 WCABO 657, 659-660.]
On appeal plaintiff submits two grounds for reversal: (i) that the wcab relied on an unpublished opinion of the Court of Appeals, as a result of which its decision should be reversed, and (n) because plaintiffs employer paid plaintiff for travel to and from the work place, plaintiff was in the course of his employment at the time of injury.
i
It is undisputed that an unpublished opinion of the Court of Appeals has no precedential value, should not be cited, and that trial courts and administrative tribunals are not "bound” by decisions without precedential value. Stine v Continental Casualty Co, 419 Mich 89, 95; 349 NW2d 127 (1984); Moultrie v DAIIE, 123 Mich App 403; 333 NW2d 298 (1983). However, in the brief submitted on appeal to the wcab, plaintiff argued that the board’s earlier opinion in Collier "is exactly on point with the case at bar, and the same result must be reached.” The board can hardly be faulted for stating in its subsequent opinion that the Court of Appeals had reversed the board and had ordered a four-factor consideration. More importantly, it is clear from the opinion itself that the board did not reach its conclusion solely on the basis of Collier. Instead, it was Larson’s commentary and the four-factor formula in Stark, supra, which the wcab found persuasive enough to "adopt the premise of Collier that no one factor is in and of itself determinative.” Accordingly, we decline to reverse simply because an unpublished opinion was mentioned.
ii
Plaintiff contends that whenever a sum designated travel is paid, whether it be on a per mile basis or a zone basis, and regardless of whether it is measured by actual miles driven or by miles computed from an otherwise designated spot, and regardless of whether it pays the actual costs of travel, an employee injured going to or returning from work is per se in the course of employment at the time of the injury. In such instances, plaintiff argues, it is only necessary to prove the initial factor, whether the employer paid for or furnished employee transportation. In support of this claim plaintiff relies on Lemanski v Frimberger, 31 Mich App 285; 187 NW2d 498 (1971); Torres v Armond Cassil Co, 115 Mich App 690; 321 NW2d 776 (1982), lv den 417 Mich 899 (1983), and decisions of the Supreme Court of Montana.
Plaintiff reads the Michigan cases too broadly. In Lemanski, the plaintiff was paid ten cents per mile for the actual number of miles driven. In Torres, the injured employee did not drive his own car nor was he paid mileage. Instead, he was transported to and from work in an employer-owned truck driven by the employer’s foreman. Neither decision involved a situation where, as here, the sum designated as travel pay was not reimbursement for actual expenses and was not computed on the basis of miles actually driven.
This Court, commencing with Stark v L E Meyers Co, 58 Mich App 439, 443; 228 NW2d 411 (1973), has consistently held:
[T]here is arising through evolution a new rule which compensates where 'there is sufficient nexus between the employment and the injury so that it may be said that the injury "was a circumstance of the employment”. . . .
Considerations relevant to the ultimate determination of whether an injury to an employee while on the way to work is sufficiently employment related to be compensable are:
1. Whether employer paid for or furnished employee transportation. . . .
2. Whether the injury occurred during or between working hours. . . .
3. Whether the employer derived a special benefit from the employee’s activities at the time of the injury. . . .
4. Whether the employment subjected the employee to excessive exposure to traffic risks.
Pappas v Sport Service, Inc, 68 Mich App 423, 426; 243 NW2d 10 (1976), lv den 397 Mich 825 (1976); Torres, supra, pp 694-695; Hicks v General Motors Corp, 66 Mich App 38, 42; 238 NW2d 194 (1975), lv den 396 Mich 838 (1976); Stover v Midwest Tank & Fabrication Co, Inc, 87 Mich App 452, 458-459; 275 NW2d 15 (1978), lv den 406 Mich 926 (1979). Under this analysis, no one factor in and of itself necessarily determines that plaintiff establish all four factors in plaintiff’s favor; it is only necessary that the wcab or reviewing authority look to all four factors before deciding whether the requisite was proven.
Pappas, supra, is illustrative of the described methodology. When first employed, plaintiff, a cook at the Hazel Park race track and living only five minutes from the track, was paid $165 per week plus overtime averaging $25 per week. When the racing season closed, defendant asked plaintiff to work at Northville Downs some twenty-five miles distant. When plaintiff expressed reluctance to make the fifty-mile round trip without some increase in salary, a new salary of $225 per week was negotiated. While no part of the new salary was specifically designated as travel pay, testimony clearly indicated that the increase was at least partially attributable to the increased driving distance. While returning from work late one night plaintiff fell asleep at the wheel and was severely injured. His claim for workers’ compensation was denied by the wcab. On appeal, this Court first rejected Lemanski as controlling because the increase plaintiff received was not paid on a per mileage basis. Employing the four-factor analysis, the Court next concluded that the extra money paid Pappas was basically extra additional compensation necessary to attract Pappas’ services rather than compensation for travel expenses.
Similarly, in the instant case the wcab, after looking at all four factors, concluded that the $2.50 stipend which plaintiff received pursuant to a union contract was more in the nature of added compensation than payment for travel expenses actually incurred, and, therefore, plaintiff was not within the scope of his employment when injured. Determinations of whether employee injuries arise in the course of employment are legal conclusions involving a question of law and, as such, are subject to appellate review. Torres, supra, pp 693-694; Howard v Detroit, 377 Mich 102, 105-106; 139 NW2d 677 (1966). Accordingly, the controlling issue before us is whether the wcab erred in concluding that upon the record before it the $2.50 flat travel stipend was so indirectly connected with the actual travel expense incurred, it was added compensation for the job rather than travel pay, and hence, in the absence of plaintiff’s ability to establish any of the remaining three factors, plaintiff had failed to establish a nexus between his injury and his employment. On this issue we agree with the wcab.
The zone radial mileage formula did not pay plaintiff’s actual travel expenses. In fact, the formula had no relationship to the distance an employee traveled. An employee living near Willow Run would receive the same $2.50 per day as did plaintiff and his fellow passengers who resided in St. Clair Shores. Indeed, the point from which travel distance was computed (the Detroit City Hall) bore no relationship to plaintiff’s home. For travel to be held a part of employment, the reimbursement must involve a substantial payment of the actual travel expense. Larson, supra, Chicot Memorial Hospital v Veazey, 9 Ark App 18; 652 SW2d 631 (1983). The distance between plaintiff’s home and the site of the accident computed along 1-94 was approximately fifteen miles; the distance between the accident site and job site was twenty-three miles. Thus, on the day of the accident plaintiff had traveled sixty-one miles for which he was compensated 4.1 cents per mile. This is hardly a substantial reimbursement and bears so little relationship to actual expense it amounts to additional compensation rather than being a special arrangement for travel expense.
Accordingly, we find no error in the wcab’s conclusion that as to factor 1, an insufficient employment nexus was established. As to the remaining factors, as noted earlier, no showing was made that the zone radius mileage induced plaintiff to take the job or provided plaintiff’s employer any "special benefit”. No testimony was offered that plaintiff was exposed to greater traffic risks than the thousands of other motorists traveling on 1-94.
Except in Montana, other states have denied benefits in situations similar to the instant case. In Peer v Workmen’s Compensation App Bd, 94 Pa Common 540; 503 A2d 1096 (1986), plaintiff was injured while commuting thirty-five miles to work. Under a collective bargaining agreement with his employer, he received a transportation allowance based not on the distance from his residence but upon the distance from the Pittsburgh City Hall to his place of employment. On appeal, plaintiff made the same claim as does plaintiff in the instant case, viz: that the car fare payment in and of itself placed the travel within the scope of employment. Using the Larson four-factor formula, the court rejected the argument saying in relevant part:
Although the Board recognized that the collective bargaining agreement between Employer and Claimant’s union provided for a travel allowance, the Board properly rejected the referee’s legal conclusion that such an agreement, in and of itself, places Claimant’s travels to and from work within the course of his employment. As the record shows, the agreement specified that car fare was to be paid to union members according to a formula which utilized the distance between an employee’s place of employment and the City Hall of Pittsburgh, without consideration as to the actual distance union members would travel from their homes to their place of employment. Although this provision of the agreement provided extra compensation to union members, it neither required Employer to provide transportation, nor did it allow Employer to exercise control over the means of transportation chosen by individual employees. Moreover, the allowance did not further the business of Employer. Accordingly, the Board correctly determined that the agreement did not bring Claimant’s transportation to and from work within the scope of his employment. [94 Pa Common 544-545.]
In Brooks v Industrial Comm of Arizona, 136 Ariz App 146; 664 P2d 690 (1983), plaintiff received $6 per day for travel to the nuclear power project some fifty miles from Phoenix. Payment was made pursuant to a union contract negotiated between the union and the employer in order to attract workers to the distant job site. Plaintiff, injured while going to work, argued that the $6 travel payment took him out of the usual going and coming rule. The court rejected the argument, stating:
Turning to the case at hand, the administrative law judge found that even if the respondent had furnished transportation to its employees, the benefits accruing to Bechtel must be for some particular benefit, such as where the employee is required to work extra hours, or where he is on twenty-four hour call. . . . The record establishes that neither Bechtel nor the unions desired overtime work at the job site. The mere fact that the $6.00 per diem rate was a bargained for benefit to respondents, therefore, does not invoke a recognized exception to the going and coming rule. [136 Ariz 151.]
So too, in Mitchell v Pleasant Hill General Hospital, Inc, 491 So 2d 183 (La App, 1986), a practical nurse was given $8 per day travel allowance to drive the twenty-eight miles between her home and the hospital. On one of her trips home she was involved in an automobile accident. Looking at all the circumstances the court held that the $8 payment was not travel payment but
was in reality a salary supplement. The amount paid was greatly insufficient to cover the actual costs of her transportation. 28 miles each way, or a total of 56 miles per day, at $8.00 per day would amount to 14.28 cents per mile, far less than what would be necessary to cover the costs of gasoline, maintenance, insurance, etc. Additionally, the evidence reflects that some of plaintiffs co-employees receive the same $8.00 per day travel allowance irrespective of the various distances they lived from the place of employment. [441 So 2d 185.]
In summation, we do not hold or imply that all travel allowances which are computed on a zone basis and are paid pursuant to a union contract are in the nature of work remuneration rather than payment for travel. We recognize that there well may be instances when a zone-based formula bears so substantial a relation to the distance traveled and to the actual costs incurred that when considered together with the other factors found in Stark, supra, it could properly justify a finding that the employee was in the scope of his employment at the time of his injury. In the absence of that relationship we hold that zone computed travel allowances paid pursuant to a union contract are not in and of themselves sufficient to find the requisite nexus between employment and injury. As was so aptly stated in Ricciardi v Aniero Concrete Co, Inc, 64 NJ 60; 312 A2d 139 (1973), where the sum paid in travel expense was only forty percent of the total travel involved:
We conclude, after study of all the cases, that the rationale of the exception to the going and coming rule under discussion can be sustained only in those situations where, if the employee travels by car, the employer reimburses him for all or substantially all of the total expense involved. Anything less would border so closely upon the noncompensable area where the arrangement is really part of the work-remuneration rather than provision for transportation as to render the rule impracticable of judicial administration and of but ephemeral foundation in any signiñcant nexus between the journey and the employment. [64 NJ 62-63. Emphasis added.]
Affirmed.
Ellingston v Crick Co, 166 Mont 431; 533 P2d 1100 (1975).
See footnote 1. The Montana Supreme Court, rejecting the rule of the majority of jurisdictions that the sum paid as travel must be "substantial,” held that "[w]hen transportation is thus singled out in the employment contract, [no matter how small or how computed] the travel to and from work is brought with the course of employment.” [166 Mont 434.] | [
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E. M. Thomas, J.
Plaintiff appeals as of right from the trial court’s order denying specific performance of a sales contract against defendants and the trial court’s order denying plaintiff’s motion for a new trial or to alter or amend the judgment. We affirm.
This case presents an anomalous situation in which the seller seeks to rescind a contract for the sale of land based on a defect in the property discovered after the sales agreement was entered into. Garb-Ko and Action Auto, the parent com pany of Lansing-Lewis Services, Inc., entered into a buy-sell agreement on or about February 11, 1985, by which plaintiff was to purchase a gas station and automotive parts store in East Lansing from defendants for $320,000. The buy-sell agreement contained an "as is” clause. The site was to be used for a 7-Eleven store. The property has seven underground storage tanks which hold four thousand to six thousand gallons of gasoline each.
Garb-Ko did not inquire into the environmental condition of the property or the integrity of the gasoline tanks prior to making the offer to purchase. Action Auto subsequently learned that the gasoline storage tanks on the property might be leaking and contaminating the ground and groundwater. Neither party was aware of any contamination on the property at the time the buy-sell agreement was executed. Garb-Ko was informed of the contamination on the property in a letter dated April 5, 1985, and given the option of terminating the agreement or providing Action Auto with full indemnification for all costs and penalties arising out of any gasoline storage leakage and proceeding with the sale. Garb-Ko did not agree to indemnify the sellers for the costs and expenses arising out of the contamination and did not accept the seller’s offer to terminate the agreement. Instead, Garb-Ko requested additional information before making a decision.
Negotiations between the parties were unsuccessful and in July, 1985, Garb-Ko filed suit and obtained a temporary restraining order enjoining the sellers from selling or encumbering the land. At a show cause hearing on August 7, 1985, the court refused to issue a temporary injunction and dissolved the tro. On September 13, 1985, Garb-Ko amended its complaint to seek specific performance of the buy-sell agreement.
In the meantime, Action Auto set out to determine the extent of the contamination problem and hired Horner Creative Metals to test the tanks. Horner confirmed leakage so severe that it was unable to measure the magnitude of the leakage. Action Auto also hired a hydrogeologic consulting firm, EDI Engineering and Science, to study the site’s contamination and to recommend a cleanup solution. Edi confirmed the presence of gasoline constituents in the soil. However, the full extent of the contamination could not be ascertained without further costly testing.
A bench trial was held on December 23, 1985, to determine whether specific performance of the buy-sell agreement should be ordered. The court found that a mutual mistake affecting a basic, material assumption of the contract had occurred and that it would be unreasonable and unjust to enforce the terms of the buy-sell agreement. In an order dated January 24, 1986, the court denied plaintiffs request for specific performance and dismissed plaintiff’s complaint. On March 31, 1986, the court denied plaintiff’s request for a new trial or to alter or amend judgment.
A contract may be rescinded because of a mutual mistake of the parties; however, this equitable remedy is granted only in the sound discretion of the trial court. Lenawee Co Bd of Health v Messerly, 417 Mich 17, 26; 331 NW2d 203 (1982). The determination whether plaintiffs are entitled to rescission involves a bifurcated inquiry: (1) was there a mistaken belief entertained by one or both of the parties to a contract? and (2) if so, what is the legal significance of the mistaken belief? Messerly, supra at 24; Dingeman v Reffitt, 152 Mich App 350, 355; 393 NW2d 632 (1986).
In its opinion and order, the trial court found that the parties had clearly entered into the buy- sell agreement under a serious mistake of fact since, at the time the agreement was signed, neither party was aware of the gasoline leakage. We agree.
A contractual mistake "is a belief not in accord with the facts.” Messerly, supra at 24, citing 1 Restatement Contracts, 2d, § 151, p 383. This mistake must relate to a fact in existence at the time the contract is executed. Messerly, supra at 24. The testimony at trial clearly revealed that there had been a large gasoline leak on the property that could result in contamination of both soil and groundwater. The testimony also indicated that none of the contracting parties were aware of that fact at the time they executed the buy-sell agreement. We defer to the trial court’s finding that both parties were under a mutual mistake of fact as to the environmental condition of the property at the time they entered into the buy-sell agreement.
We also agree with the trial court’s ruling that rescission should be granted in the instant case. In Messerly, supra, our Supreme Court stated that legal or equitable remedies are not mandated in every case in which a mutual mistake has been established; rather, a case-by-case analysis should be done and rescission should be granted only when the mutual mistake is a legally significant mistake. Messerly, supra at 24. 1 Restatement Contracts, 2d, § 152(1), p 385, delineates the legal significance of the mistake:
[W]here a mistake of both parties at the time a contract was made as to a basic assumption on which the contract was made has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party unless he bears the risk of mistake under the rule stated in § 154.
The Messerly Court adopted this Restatement approach and stated that rescission should only be granted "when the mistake relates to a basic assumption of the parties upon which the contract is made, and which materially affects the agreed performances of the parties.” Messerly, supra at 29-30.
Here, the mutual mistake relates to a basic assumption of the parties upon which the contract was made. Additionally, this mistake materially affects the agreed performance of the parties. In any commercial real estate sale, the parties assume and desire that the sale will result in a complete transfer of rights, obligations, and responsibilities. The purchaser does not want the seller involved in, or disrupting, the new business in any way. Likewise, the seller desires to sever all ties with the property and any obligations. Under the common law, a sale of property resulted in such a transfer of rights and obligations. However, environmental-protection statutes have altered the common law and made previous owners of sites liable for environmental contamination. See MCL 299.601 et seq.; MSA 13.32(1) et seq.; 42 USC 9601 et seq. Under these laws, á previous owner may be required to conduct a site investigation and cleanup and would have a continuing liability after contaminated property is sold. It is this continuing responsibility for the land in question which requires us to affirm the trial court’s ruling rescinding the buy-sell agreement and denying plaintiff’s request for specific performance of the agreement.
We are not persuaded by plaintiff that the "as is” clause contained in the buy-sell agreement controls and bars rescission of the contract. Paragraph 11 of the buy-sell agreement states:
purchaser has personally examined this property AND AGREES TO ACCEPT SAME IN ITS PRESENT CONDITION EXCEPT AS MAY BE SPECIFIED HEREIN AND AGREES THAT THERE ARE NO OTHER ADDITIONAL WRITTEN OR ORAL UNDERSTANDINGS.
Under this clause, the risk was clearly allocated to the purchaser. 1 Restatement Contracts, 2d, § 152, p 385 states that when a legally significant mutual mistake has occurred, the contract is voidable by the adversely affected party, unless he bears the risk of the mistake. However, the purchaser is not the adversely affected party; thus, the "as is” clause holds no significance. Here, due to the state and federal environmental-protection statutes which impose continuing liability after the sale of the land on defendant sellers for contamination that occurred while defendants owned the property, it is clear that they are the adversely affected party. The "as is” clause of the buy-sell agreement would not operate to relieve defendant sellers of their liability under these statutes. Had plaintiff agreed to indemnify Action Auto for all costs and penalties arising out of any gasoline storage leakage, rescission possibly would not have been granted. However, since plaintiff did not do so, defendant sellers remain the adversely affected party having incurred the "burden” imposed by law of cleaning up the contamination. The contract is voidable under § 152(1) of the Restatement.
In this case, equity requires that we affirm the trial court’s ruling. Defendants have a continuing obligation and responsibility for the contaminated property. One expert estimated that the cost of cleanup could be anywhere from $100,000 to $1,000,000. In order to contain further cleanup costs and third-party claims arising from use of the contaminated land, defendants need control over the use of the property. Sale to plaintiff would not give them such control.
Indeed, this case is unique since rarely does a purchaser of property, after discovering that the property is contaminated, request that the sale continue and ask the court to order specific performance of the contract. However, due to the continuing nature of the obligation and responsibilities defendants have over the environmental contamination of the property, we conclude that the trial court did not err in ordering rescission of the contract and denying plaintiffs request for specific performance.
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Per Curiam.
Third-party defendants appeals as of right from a judgment granting third-party plaintiffs’ motion for summary disposition under MCR 2.116(0(10), and denying third-party defendants’ motion for summary disposition under the same rule. For purposes of clarity we shall refer to third-party plaintiffs as the Smiths and third-party defendants as Cadillac.
On April 29, 1983, Richard J. Smith purchased a six-month policy of insurance from Cadillac, through its agent, All Drivers Insurance Center, covering a 1966 gmc pickup truck owned by Richard J. Smith. This policy was to expire on October 29, 1983. In September of 1983, Richard J. and Constance S. Smith decided to change their insurance protection from Cadillac to Auto-Owners Insurance Company, and after receiving an insurance binder from Auto-Owners they asked Cadillac, on September 8, 1983, to cancel their policy with Cadillac.
On September 20, 1983, Auto-Owners notified the Smiths that their application for insurance had been rejected and that Auto-Owners coverage would end on October 12, 1983.
On September 29, 1983, Cadillac sent the Smiths a notice of cancellation effective October 11, 1983, for nonpayment of premium.
On October 4, 1983, Cadillac sent the Smiths a notice of reinstatement of the original six-month policy. This notice indicated that the Smiths’ policy, which had been cancelled on August 2, 1983, was reinstated as of August 10, 1983.
On November 1, 1983, three days after the six-month policy expired, Richard Smith, while operating the gmc pickup, struck William L. Slaughter, son of plaintiffs herein.
Cadillac refused to defend the subsequent suit brought by plaintiffs against the Smiths, asserting that the Smiths were not, at the time of the accident, insured by Cadillac. This triggered the third-party complaint against Cadillac.
The first question to be answered is whether the trial judge erred in granting summary disposition to the Smiths on the ground that there was no genuine issue as to any material fact. We find no error.
A motion for summary disposition pursuant to MCR 2.116(C)(10) tests whether there is factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Giving the benefit of any reasonable doubt to the opposing party, the court must determine whether the kind of record which might be developed would leave open an issue upon which reasonable minds might differ. Fulton v Pontiac General Hospital, 160 Mich App 728, 735; 408 NW2d 536 (1987); Pauley v Hall, 124 Mich App 255, 262; 335 NW2d 197 (1983), lv den 418 Mich 870 (1983); MCR 2.116(G)(4). The moving party must identify by supporting affidavits the facts it believes cannot be genuinely disputed. Goldman v Loubella Extendables, 91 Mich App 212, 217; 283 NW2d 695 (1979), lv den 407 Mich 901 (1979). The opposing party must show the existence of a factual dispute by submitting opposing affidavits, testimony, depositions, admissions or other documentary evidence. Fulton, supra at 735.
We are not talking here about cancellation of the insurance policy before its expiration date, but rather about a nonrenewal of the policy upon its expiration at the end of its term.
Michigan has no statute governing the procedures which must be followed by an insurer which elects not to renew its insured’s auto policy.
MCL 500.3204(2); MSA 24.13204(2) provides:
Refusal to renew any policy of automobile liability insurance shall not constitute a cancellation unless the insurer fails to mail, 20 days prior to the termination date of the policy, by first class mail, a notice to the insured that the policy will not be renewed.
It could be argued that the Legislature, by this language, is attempting to impose a notice require ment prior to nonrenewal at the expiration date of the policy. We note, however, that this provision appears in that portion of the statute dealing with cancellation of automobile liability policies (Chapter 32 of the Insurance Code), §3208 of which specifically makes the chapter not applicable to termination of coverage at the end of any policy period. MCL 500.3208; MSA 24.13208.
In the absence of a statute governing nonrenewal, we look to the provisions of the policy itself. Radford v National Indemnity Co, 50 Mich App 698, 701; 213 NW2d 843 (1973).
The policy provides as follows:
Non-Renewal. If the Company elects not to renew this policy, it shall mail to the insured named in item 1 of the declarations at the address shown in this policy, by first class mail, a written notice of non-renewal not less than 20 days prior to the expiration date.
In this case, Cadillac, on September 29, 1983, sent the Smiths a notice of cancellation which included a notice of intent not to renew the insurance policy. Before the notice of cancellation became effective on October 11, Cadillac on October 4 reinstated the policy. Did this reinstatement obligate Cadillac to send another notice of nonrenewal in order to bring the policy to an end on its expiration date? The trial judge thought so, and so do we.
There is no genuine issue here as to any material fact, only as to the consequences of those facts. Cadillac correctly argues that the insurance policy clearly indicates that it was to expire on October 29, 1983. It is also correct in its view that Michigan law does not mandate a notice by an insurer of intent not to renew an insurance contract. It is not correct, however, in its apparent claim that the policy itself did not require Cadillac to notify the Smiths of its intent not to renew the policy. The trial judge reasoned, and we agree, that when Cadillac reinstated the policy after cancelling it (or sending notice of nonrenewal) it became obligated by its own agreement to again send notice of its intent either to cancel or not to renew.
No such notice having been sent, we now reach the question as to the status of the policy after October 29, 1983. Cadillac, while recognizing that failure to give a statutorily mandated notice results in a renewal of the policy, citing Ray v Associated Indemnity Corp, 373 So 2d 166 (La, 1979), and Shore v Coronet Ins Co, 7 Ill App 3d 782; 288 NE2d 887 (1972), argues that the same result does not follow failure to give a policy mandated notice. This distinction escapes us.
Although neither the Michigan courts nor courts elsewhere, so far as we can determine, have addressed this question, it is the policy of this state that persons who suffer loss due to automobile accidents have a source and means of recovery. State Farm Mutual Automobile Ins Co v Kurylowicz, 67 Mich App 568, 574; 242 NW2d 530 (1976).
We note also that provisions of an insurance policy are to be strictly construed against the insurer. Nickerson v Citizens Mutual Ins Co, 393 Mich 324, 330; 224 NW2d 896 (1975); Celina Mutual Ins Co v Citizens Ins Co, 136 Mich App 315, 320-321; 355 NW2d 916 (1984).
If the courts have no trouble finding that failure to observe a notice requirement imposed by the state results in renewal of a policy, it is surely easier to find that a similar requirement self-im posed by Cadillac likewise results in a renewal, and we so hold.
Citing Ray v Associated Indemnity Corp, supra, Cadillac asserts that no notice of nonrenewal was required because it was willing to renew the policy, as evidenced by its issuance of a new policy to the Smiths on November 2, 1983. If there is any merit to this argument, Cadillac’s after-the-fact expression of its intent is insufficient to support it.
Judgment affirmed with costs to third-party plaintiffs-appellees.
See also Zeman v Zack Agency, Inc, 75 App Div 2d 261; 429 NYS2d 444 (1980). | [
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MURRAY, J.
Defendant Stafano Adeesa Davis was convicted by a jury of voluntary manslaughter, MCL 750.321, and possession of a firearm during commission of a felony, MCL 750.227b. He was originally sentenced to 7 to 15 years’ imprisonment for manslaughter, to be served consecutive to the felony-firearm sentence. After these convictions, defendant appealed, and we ultimately affirmed the convictions but remanded the case for reconsideration of the scoring of offense variable (OV) 13, MCL 777.43, and for correction of the presentence investigation report (PSIR). See People v Davis, unpublished opinion per curiam of the Court of Appeals, issued November 29, 2011 (Docket No. 299343), p 1. Pursuant to this Court’s remand order, the trial court determined that OV 13 did not apply, but then scored 15 points for OV 5, MCL 777.35. Defendant was resentenced to 78 months’ to 15 years’ imprisonment for the manslaughter conviction, with 787 days’ credit. Defendant now appeals that judgment of sentence as of right, arguing that the trial court improperly scored OV 5 at resentencing. We affirm.
I. FACTS AND PROCEEDINGS
The underlying facts of this case were summarized by this Court in Davis, unpub op at 2-4, but they need not be recounted here because they are irrelevant to the issue on appeal. For our current purpose, what is important from this Court’s prior decision is that we ultimately remanded the case “for reconsideration of the scoring of OV 13,” which would entail the trial court determining whether “the prosecution has established, by a preponderance of the evidence, that defendant committed a combination of three or more crimes against a person or property as is required under MCL 777.43(l)(d) . . . Id. at 8. We indicated that if OV 13 was properly scored, “the court may deny resentencing. If, however, the court determines that defendant did not commit three such crimes, the court should consider whether to resentence defendant.” Id., citing People v Chesebro, 206 Mich App 468, 474; 522 NW2d 677 (1994), overruled in part on other grounds People v McGraw, 484 Mich 120, 133 n 42 (2009).
At the hearing held on remand, defendant and the prosecution both acknowledged that OV 13 was improperly scored, and the trial court agreed to resentence defendant. In doing so, the trial court requested the probation department to update the PSIR, indicating that it was primarily interested in how defendant had acted while in prison.
Before resentencing, the victim’s biological mother submitted a victim’s impact statement that had not been included with the original PSIR. The statement provided, in part:
My heart aches everyday for my son and the life that was taken away so brutally by [defendant]. My 2 grandsons has [sic] lost their father and my son has lost a brother. Demar will never get to see his boys grow up. The taking of my son’s life sent me through a life changing event. I am more depressed than before, I had a nervous breakdown and I’m taking more medications now. I cry almost every day and I am so lost.
I had a nervous breakdown and my life is no longer happy. I am depressed I am a grandmother & father to my grandsons. I feel the lost [sic] of my child every day. I stay in my house more and I am so afraid for my son that I have left. I never expected for my son to die before me. [Defendant] you took my son[’s] life. You don’t deserve to live either.
Based on this statement the updated sentencing information report (SIR) indicated that an additional 15 points should be scored for OV 5, which scores serious psychological injury to a victim’s family requiring professional treatment. MCL 777.35. Defendant objected to the scoring of OV 5. In doing so, defense counsel conceded that the prosecution was not estopped from filing an amended SIR, but nevertheless argued that as “a matter of fairness” the prosecution should not be able to have another OV scored to merely make up for the erroneously scored OV 13. Defendant also asserted that scoring 15 points for OV 5 was inappropriate because it was based on the alleged effect of his crime on the victim’s birth mother, even though the victim had been adopted at a young age.
The trial court found that defendant’s offense had been “a life-changing event” for the biological mother that caused her to have “[a] nervous breakdown,” which in turn resulted in her becoming “more depressed than before,” which then led her to take “more medications” and left her “cry[ing] almost every day.” The trial court noted:
As an adoptive mother [sic] she may not have been as closely involved in the victim’s life as she would have been had the adoption not occurred, but the point of it is ... from what she says that there was some kind of close and continuing relationship, when she makes reference to the victim’s death impacting her other son. It has impacted her grandsons. And by making that kind of reference to me it is reasonable to assume, [defense counsel], that there was a closer relationship than would have been logically inferred based upon your comments.
The trial court then determined that scoring 15 points for OV 5 was warranted.
In resentencing defendant, the trial court analyzed four factors: (1) punishment, which the trial court found to be inherent in his active prison sentence; (2) protection of society, where the trial court noted defendant’s “history of assaultive conduct and weapons”; (3) rehabilitation, which although the trial court expressed some skepticism that defendant had changed in any meaningful way, it still “accepted] what your lawyer sa[id],” and (4) deterrence to others, where the trial court spoke of its desire to reduce gang violence, but “acknowledge^] that [it] cannot,” eliminate such activity. The trial court weighed these factors and sentenced defendant within the guidelines to a term of 6V2 years’ to 15 years’ imprisonment, noting that “[t]his isn’t much different than. . . the first sentence — but it is a recognition that [defendant has] begun to do some positive things.”
II. ANALYSIS
Defendant’s sole argument — which has two components — is that the trial court erred when scoring OV 5. “The interpretation and application of the legislative sentencing guidelines, MCL 777.1 et seq.[,] involve legal questions that this Court reviews de novo.” McGraw, 484 Mich at 123. “To the extent that a challenge to the trial court’s scoring of a variable involves a question of statutory interpretation, this Court reviews de novo questions of statutory interpretation.” People v Ericksen, 288 Mich App 192, 202; 793 NW2d 120 (2010), citing People v Osantowski, 481 Mich 103, 107; 748 NW2d 799 (2008). “This Court reviews a trial court’s scoring of a sentencing guidelines variable for clear error. A scoring decision is not clearly erroneous if the record contains ‘any evidence in support of the decision.’ ” People v Lockett, 295 Mich App 165, 182; 814 NW2d 295 (2012), quoting People v Hicks, 259 Mich App 518, 522; 675 NW2d 599 (2003) (quotation marks and citations omitted). An error in the calculation of the recommended minimum sentence range that increases the length of the defendant’s sentence constitutes error requiring reversal. People v Francisco, 474 Mich 82, 88-91; 711 NW2d 44 (2006) (a defendant is entitled to resentencing on the basis of a scoring error if the error changes the recommended minimum sentence range under the legislative sentencing guidelines).
As an initial matter, defendant argues that the trial court had no authority to score OV5, as it was outside the scope of the remand from this Court. Although both parties base their arguments in part on federal law, specifically 28 USC 2106 and federal circuit court decisions interpreting it, reliance on this federal law is unnecessary as Michigan law adequately addresses the scope of a remand.
“When a case is remanded by an appellate court, proceedings on remand are limited to the scope of the remand order.” People v Canter, 197 Mich App 550, 567; 496 NW2d 336 (1992), citing People v Blue, 178 Mich App 537, 539; 444 NW2d 226 (1989). “[I]f an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same.” People v Fisher, 449 Mich 441, 444-445; 537 NW2d 577 (1995) (quotation marks and citation omitted). However:
The power of the lower court on remand is to take such action as law and justice may require so long as it is not inconsistent with the judgment of the appellate court. Likewise, the doctrine of the law of the case has no application where a case is remanded without directions to the lower court; in such a case the lower court would enjoy the same power as if it made the ruling itself. [Id. at 446-447, citing Lyon v Ingham Circuit Judge, 37 Mich 377 (1877), and Garwood v Burton, 274 Mich 219, 222; 264 NW 349 (1936) (quotation marks and citation omitted).]
As relevant to this case, once an original sentence is vacated, the case is placed in a presentence posture. People v Rosenberg, 477 Mich 1076 (2007); People v Ezell, 446 Mich 869 (1994). As a result, at resentencing, “every aspect of the sentence is before the judge de novo[.]” People v Williams (After Second Remand), 208 Mich App 60, 65; 526 NW2d 614 (1994). The trial court may consider the contents of the presentence investigation report when calculating the guidelines and the victims may have their statements included in the PSIR. MCL 780.764; MCL 780.765; Morales v Parole Bd, 260 Mich App 29, 45-46; 676 NW2d 221 (2003); People v Williams, 244 Mich App 249, 253-254; 625 NW2d 132 (2001); People v Ratkov (After Remand), 201 Mich App 123, 125; 505 NW2d 886 (1993).
As noted, we previously remanded this case for the trial court to reconsider the scoring of OV 13. We also said that, if “the court determines that defendant did not commit three such crimes, the court should consider whether to resentence defendant.” Davis, unpub op at 8. Thus, this Court’s remand order did not limit the trial court’s ability to only a consideration of whether OV 13 was properly scored, as the court was specifically given discretion to resentence defendant if it found OV 13 to have been improperly scored. Because it did so find, it had full authority to resentence defendant, placing the case in a presentence posture. Rosenberg, 477 Mich 1076. Consequently, the trial court was able to consider and decide other issues at resentencing once it determined that OV 13 had been erroneously scored. See Williams (After Second Remand), 208 Mich App at 65 (every aspect of the sentence was before the judge de novo). This includes consideration of the newly appended victim’s impact statement. See People v Waclawski, 286 Mich App 634, 691-692; 780 NW2d 321 (2009).
We now turn to whether the trial court properly scored OV 5.
“To calculate the appropriate guidelines range, a court must determine the offense category and which offense variables apply, score the offense variables, total the points” and determine the variable levels. People v Wiggins, 289 Mich App 126,129; 795 NW2d232 (2010), citing MCL 777.21(1). “The court must then use the resultant offense variable level and prior record variable level with the applicable sentencing grid to determine the recommended minimum sentence range.” Wiggins, 289 Mich App at 129. “Generally, once the sentencing court calculates the defendant’s guidelines range, it must, absent substantial and compelling reasons, impose a minimum sentence within that range.” People v McCuller, 479 Mich 672, 684-685; 739 NW2d 563 (2007), citing MCL 769.34(2). “A trial court determines the sentencing variables by reference to the record, using the standard of preponderance of the evidence.” Osantowski, 481 Mich at 111.
MCL 777.35(1)(a) provides that OV 5 should be scored at 15 points if “[s]erious psychological injury requiring professional treatment occurred to a victim’s family,” while MCL 777.35(2) indicates that 15 points should be scored “if the serious psychological injury to the victim’s family may require professional treatment. In making this determination, the fact that treatment has not been sought is not conclusive.”
Defendant argues that the victim’s biological mother should not be considered part of the victim’s “family” for purposes of OV 5 where he was adopted as a child. The statute does not define “a member of a victim’s family,” so it is up to the judiciary to determine its meaning. “Any term not defined by the statute ‘should be accorded its plain and ordinary meaning, taking into account the context in which the words are used ....’” People v Crews, 299 Mich App 381, 390; 829 NW2d 898 (2013), quoting People v Lange, 251 Mich App 247, 253; 650 NW2d 691 (2002). “[I]t is permissible for this Court to consult dictionary definitions in order to aid in construing the term ‘in accordance with [its] ordinary and generally accepted meaning[].’ ” Lange, 251 Mich App at 253, quoting People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).
“Family,” is defined in relevant part as “[a] group of persons connected by blood, by affinity, or by law, esp. within two or three generations.” Black’s Law Dictionary (9th ed) (emphasis added). More commonly, “family” is defined, among other ways, to include parents and their children, a person’s spouse and children, or any group of people closely related by blood. Random House Webster’s College Dictionary (2001). Although the biological mother may have given the victim up for adoption, this does not undermine their continued “connection] by blood. .. .” Black’s Law Dictionary (9th ed). And, nothing in the language of the statute limits the term “family” to people with whom one has a legal relationship. This Court will not read language into a statute that is not “within the manifest intent of the Legislature as derived from the words of the statute itself.” People v Davis, 468 Mich 77, 79; 658 NW2d 800 (2003) (quotation marks and citation omitted). If the Legislature intended to narrowly define “family” in the context of OV 5 to include only those people having a blood connection and a legally recognized relationship, it could have done so by adding the word “legal” before the word “family.” Accordingly, we hold that the victim’s biological mother is a “member of the victim’s family” for purposes of OV 5.
Finally, the assessment of 15 points under OV 5 was supported by the record. The trial court found, based upon the content of the victim’s impact statement, that defendant’s acts had caused the victim’s biological mother to have suffered depression and a nervous breakdown that resulted in her receiving more medication than before the crime. This is evidence of “serious psychological injury to the victim’s family [that] may require,” or did require, “professional treatment,” and therefore constituted sufficient evidence in support of scoring 15 points for OV 5. MCL 777.35(2). Therefore, we reject defendant’s argument that “there was no evidence to support the scoring of OV 5.” See Lockett, 295 Mich App at 183.
Affirmed.
M. J. KELLY, P.J., and CAVANAGH, J., concurred with Murray, J.
Because the trial court did not increase defendant’s sentence on remand, but in fact reduced the minimum sentence, there is no issue of vindictiveness raised in this appeal. People v Colon, 250 Mich App 59, 66; 644 NW2d 790 (2002). | [
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PER CURIAM.
Respondent appeals by right the trial court’s order terminating his parental rights to the minor child. Because the trial court correctly determined that proper notice was given as required by the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and that ICWA does not apply to this child-custody proceeding, we affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This case has a rather extensive history in the appellate system. In July 2010, following a termination hearing, the trial court terminated respondent’s parental rights, as well as the rights of the minor child’s mother. On February 17, 2011, this Court issued an opinion per curiam affirming the trial court’s order terminating parental rights. In re Morris, unpublished opinion per curiam of the Court of Appeals, issued February 17, 2011 (Docket Nos. 299470 and 299471).
Acting in propria persona, respondent filed an application for leave to appeal in the Michigan Supreme Court. On April 22, 2011, the Supreme Court vacated the part of this Court’s judgment that resolved respondent’s appeal and remanded the case to this Court for reconsideration of respondent’s appeal in light of petitioner’s confession of error regarding the failure of petitioner and the trial court to comply with the notice requirements of ICWA. In re Morris, 489 Mich 877 (2011).
On May 19, 2011, this Court readopted, but conditionally affirmed, the order terminating respondent’s parental rights and remanded the case to the trial court for proper notice consistent with ICWA and for further proceedings as necessary and consistent with the opinion. In re Morris (On Remand), unpublished opinion per curiam of the Court of Appeals, issued May 19, 2011 (Docket Nos. 299470 and 299471).
On June 22, 2011, the Supreme Court, noting that it had retained jurisdiction in its April 22, 2011, order, issued an order granting respondent’s application for leave to appeal, “limited to the issue whether the Court of Appeals’ ‘conditional affirmance’ remedy is an appropriate method of resolving an ICWA violation.” In re Morris, 489 Mich 957 (2011). On May 4, 2012, the Supreme Court determined that a conditional reversal was more consistent with the text of ICWA than conditional affirmance and more deferential to tribal interests. In re Morris, 491 Mich 81, 121; 815 NW2d 62 (2012). Overruling In re IEM, 233 Mich App 438; 592 NW2d 751 (1999), and its progeny, the Court adopted the conditional-reversal remedy for violations of the ICWA notice requirements. Morris, 491 Mich at 121. The Court reversed this Court’s judgment, conditionally reversed the trial court’s termination of respondent’s parental rights, and remanded the case to the trial court for resolution of the ICWA notice matter. Id. at 122. The Court directed the trial court to ensure that the appropriate tribal entities receive notice of the proceedings in compliance with ICWA. Id. at 123. The Court emphasized that the trial court’s order terminating parental rights would be reinstated if the trial court found that ICWA does not apply because (1) the minor child is not Indian or (2) the properly noticed tribes do not respond within the allotted time. Id.
On June 4, 2012, the trial court referee held a hearing to comply with the Supreme Court’s directives. Petitioner produced and admitted into evidence copies of notices it intended to send to three federally recognized Cherokee Indian tribes (United Keetoowah Band of Cherokee Indians in Oklahoma, Eastern Band of Cherokee Indians, and the Cherokee Nation) and the Department of the Interior’s Bureau of Indian Affairs (BIA) Midwest Regional Office. Emiline Reyst, the adoption caseworker tasked with issuing the notices, advised the court that the notices contained all the genealogical information she had been able to obtain from respondent and the minor child’s mother. The referee continued the hearing for six weeks and directed petitioner to continue to make efforts to comply with ICWA.
On July 16, 2012, the trial court reconvened for a continued hearing on the ICWA conditional reversal. Petitioner produced and admitted into evidence “a thick stack of documents” that included copies of the notices that were sent to the tribes, registered-mail return receipts and other proof of service to show that all the notices were mailed on June 4, 2012, and received by the recipients by June 8, responses received from the tribes, and other correspondence between the caseworker and the tribes.
The records submitted by petitioner reveal that the BIA responded to the notice and indicated that it would take no further action because the appropriate tribe was notified. The United Keetoowah Band of Cherokee Indians in Oklahoma also responded and indicated that it did not intend to intervene in the case because it found no evidence that the child was a descendant of its band. The Eastern Band of Cherokee Indians received the notice but did not initially respond. The Cherokee Nation responded in a June 14, 2012, letter, indicating that the information provided was “not complete” and did not meet the BIA guidelines. It requested further information in order to verify Cherokee heritage, including the middle names of the paternal relatives, birthdays of everyone involved and their relationship to the child, and the maiden names of the women listed. Reyst attempted to obtain the requested information from respondent, but respondent had no further information. On June 22, 2012, Reyst sent an e-mail response to the Cherokee Nation explaining her efforts to obtain the additional information sought and indicating that she was not able to provide it, other than the fact that the minor child’s paternal great-grandfather had no middle name. In her e-mail, Reyst asked the Cherokee Nation to let her know if it needed anything else; she did not receive a response.
At the July 16, 2012, hearing, the referee confirmed with respondent that respondent had no further information to provide. The referee noted that more than 10 days had passed since Reyst’s last communication with the Cherokee Nation and, thus, deemed petitioner to have complied with the notice requirements of ICWA.
Respondent’s attorney indicated that he had just received the Cherokee Nation’s letter that day and, if given more time, could conduct an investigation to see if he could obtain the requested information. Respondent’s counsel argued that more time should be given to protect the respondent’s due-process rights. The referee concluded that proper notice had been given and resulted in “absolutely no indication today, after ample notice and full compliance with the ICWA notice requirements, that [the minor child] is a member or eligible for membership in any Native American tribe to which ICWA would apply.” The trial court agreed with the referee’s recommendation and entered an order on August 9, 2012, reinstating its earlier order terminating respondent’s parental rights.
On August 14, 2012, the trial court held a hearing at which it admitted into evidence a letter from the Eastern Band of Cherokee Indians. The letter states that, given the information provided, the band did not intend to intervene because it did not consider the minor child to be an “Indian child” under ICWA.
II. STANDARD OF REVIEW
This Court reviews de novo questions of law involving the interpretation and application of ICWA. In re JL, 483 Mich 300, 318; 770 NW2d 853 (2009). This Court reviews for clear error a trial court’s factual findings underlying the application of legal issues. Morris, 491 Mich at 97.
III. ANALYSIS
As the Supreme Court previously noted in this matter, “before a state court can determine whether ICWA applies to the proceedings, the court must first make the critical determination whether the child is an ‘Indian child.’ ” Id. at 99-100; see also MCR 3.965(B)(2). “[I]t is well established that only [an] Indian tribe can determine its membership. Therefore, when there are sufficient indications that the child may be an Indian child, the ultimate determination requires that the tribe receive notice of the child custody proceedings, so that the tribe may advise the court of the child’s membership status.” Morris, 491 Mich at 100 (citation omitted). In this case, both respondent and the minor child’s mother informed the trial court at the December 11, 2008, preliminary hearing that they had Cherokee Indian heritage, which the Supreme Court deemed sufficient to trigger the tribal-notice requirement of ICWA. Id. at 109.
The notice provision of ICWA provides:
In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.
If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary[ ] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding. [25 USC 1912(a) (emphasis before colon added).]
In his brief on appeal, respondent claims for the first time that petitioner failed to make diligent efforts to obtain the information about his family that was requested by the Cherokee Nation so that the tribe could determine the minor child’s tribal eligibility or status. Respondent argues that the ancestry information provided by petitioner did not meet the BIA guidelines or the requirements of ICWA. These contentions are unsupported by the law. There is no requirement under ICWA, the BIA’s regulations, or Michigan caselaw that petitioner conduct independent research to obtain a parent’s detailed genealogical information. There is nothing in the guidelines addressing genealogical information that should be included in the notice. The BIA adopted regulations requiring notice to include ancestry information if known. 25 CFR 23.11(a) and (d). Similarly, the Supreme Court in this case noted that a trial court could direct the petitioner “to compose and send notice containing as much information as is reasonably available.... ” Morris, 491 Mich at 124 (emphasis added).
The record reveals that petitioner gathered all the information that was reasonably available by interviewing both respondent and the child’s mother after they were given an opportunity to confer with relatives. Reyst interviewed respondent several times about his ancestry, and respondent confirmed to the court that he had no further information to provide other than what had already been submitted to the tribes. Respondent did not move the trial court for reconsideration to present additional information. And now, on appeal, respondent neither claims to have any additional information to provide to the tribes nor identifies where he can get more information. Because all known information was provided to the tribes and respondent has not shown that any new information is available or would result in a different tribal determination, respondent has not shown error requiring reversal.
Respondent’s argument that petitioner is responsible for locating information that he has been unable to find is unpersuasive. The notice requirement of 25 USC 1912(a) does not require that a detailed family tree be provided. There is nothing in the record to indicate that the minor child is eligible for membership in an Indian tribe, and both petitioner and the trial court satisfied their obligations under ICWA. The burden then shifted to respondent to prove that ICWA nonetheless applied, which he failed to do. See In re TM (After Remand), 245 Mich App 181, 187; 628 NW2d 570 (2001) (“If proper notice is provided and a tribe fails to either respond or intervene in the matter, the burden shifts to the parties (i.e., the parents) to show that the ICWA still applies.”), overruled on other grounds by Morris, 491 Mich 81; see also IEM, 233 Mich App at 449 (“ 'Only after notice has been provided and a tribe has failed to respond or has intervened but is unable to determine the child’s eligibility for membership does the burden shift to the parties to show that the ICWA still applies.’ ”) (citation omitted), overruled on other grounds by Morris, 491 Mich 81. Since respondent could not obtain any additional information regarding his relatives, it would be unreasonable to expect petitioner to find it. Imposing this burden on petitioner would also encourage parents, who can best research their own ancestry, to delay the proceedings by providing limited information. Because it would often take a long time to uncover ancestry details, a requirement that ICWA tribal notices include every detail of a child’s ancestry would undermine ICWA’s 10-day provision, which prevents unreasonable delays. It would also jeopardize concepts of permanency and finality. The trial court did not err by finding that there was compliance with ICWA’s notification requirements.
Respondent also argues that it was not in the child’s best interests to terminate respondent’s parental rights under MCL 712A.19b(5). He claims that because the ICWA notice violation delayed the child’s permanency, that delay was contrary to the child’s best interests. Respondent asserts that ICWA’s remedy provisions permit him to petition for invalidation of court orders entered in violation of ICWA’s notice requirement; thus, he requests that the case be remanded to determine whether the minor child is an Indian child. However, respondent has not established that ICWA’s notice requirement was violated on remand or that ICWA actually applies to the minor child. Moreover, the issue of the minor child’s best interests is not properly before this Court because it is outside the scope of the Supreme Court’s limited remand. This Court already determined that the trial court did not err by finding that termination of respondent’s parental rights was in the child’s best interests, and the Michigan Supreme Court agreed. Thus, there was no error in the trial court’s best-interest determination. A remand to en sure proper notice under ICWA that does not lead to any evidence that ICWA applies does not unravel a best-interest determination.
Finally, respondent argues that his due-process rights were violated when he was unable to obtain an adjournment at the July 16, 2012, hearing in order to obtain additional information. Respondent’s argument lacks merit. Due process is about fundamental fairness. In re Beck, 287 Mich App 400, 401-402; 788 NW2d 697 (2010). Due process in civil cases requires that a party have the chance to know and respond to the evidence. Traxler v Ford Motor Co, 227 Mich App 276, 288; 576 NW2d 398 (1998). Respondent was able to participate in the proceedings and was informed that the Cherokee Nation had requested more information about his family history on June 21, 2012 (the same day the caseworker received the request for information), well in advance of the July 16, 2012, hearing. Respondent has never claimed to have had any new information to provide the tribe, and he does not present any on appeal. Furthermore, Reyst responded to the Cherokee Nation’s request for more information on June 22 and clarified that she had nothing more to provide, at which time the Cherokee Nation took no further action. Notice under ICWA does not require the court or petitioner to demand a response from the tribes notified. Notice to the tribes was properly provided under ICWA, no tribe sought a request for more time to prepare for the proceedings, and respondent was given ample time to investigate, uncover, and provide any family information that he could. Thus, there was no due-process violation.
Affirmed.
Murphy, C.J., and O’Connell and Beckering, JJ., concurred.
Both respondent and the minor child’s mother informed the trial court at the December 11, 2008, preliminary hearing that they had Cherokee Indian heritage, which the Supreme Court deemed sufficient to trigger the tribal-notice requirement of ICWA. Morris, 491 Mich at 109.
The notices contain genealogical information including the minor child’s full name, date and place of birth, and claimed heritage as a Cherokee Indian; respondent’s full name, date and place of birth, address, and claimed heritage as a Cherokee Indian; the mother’s full name, date and place of birth, address, and claimed heritage as a Cherokee Indian; the paternal grandfather’s full name, date and place of birth, date and place of death, and claimed heritage as a Cherokee Indian; the paternal grandmother’s name and date and place of birth, the fact that she is deceased, her place of death, and an acknowledgement that she was not a Native American; the maternal grandfather’s ñdl name, date of birth, city and state of residence, and claimed heritage as a Cherokee Indian; the maternal grandmother’s name, including her maiden name, and an acknowledgment that she is not a Native American; a paternal great-grandfather’s name, place of birth, place of death, and claimed heritage as a Native American; a paternal great-grandmother’s name, place of birth, and place of death and an acknowledgement that she was not a Native American; and a maternal great-grandmother’s name, place of death, and claimed heritage as a Native American.
Respondent and his attorney attended the hearing. The attorney for the minor child’s mother also attended; however, the mother did not. Reyst advised the court that she had sent out 16 letters to as many addresses trying to find the mother and finally connected with her by telephone on May 30, 2012, at which point the mother gave Reyst “everything she knew” about the child’s Indian heritage.
Reyst indicated to the court that she received the Cherokee Nation’s letter on June 21, 2012, and called respondent that day to obtain the requested information. Respondent returned her call the same day and left a message indicating that he could not get the information because he had no one to get it from and had no knowledge of it.
This Court does not have a transcript of the hearing because, apparently, no transcript has been created. Nevertheless, the parties do not contend that the hearing is pertinent to this appeal.
“ ‘Secretary’ is defined as ‘the Secretary of the Interior.’ 25 USC 1903(11). Pursuant to 25 CPR 23.11(b) and (c)(2), when notice to the Secretary of the Interior is required under 25 USC 1912(a) for proceedings in Michigan, it is actually sent to the Minneapolis Area Director, Bureau of Indian Affairs.” Morris, 491 Mich at 103 n 14. | [
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] |
FITZGERALD, P.J.
Defendant, Blue Cross Blue Shield of Michigan (BCBSM), appeals by leave granted the trial court’s order granting the motion of plaintiffs, Michigan Association of Chiropractors (MAC), also known as the Chiropractic Association of Michigan, and Toby A. Mitchell, D.C., for class certification. This case was submitted and argued with Mich Ass’n of Chiropractors v Blue Care Network of Mich, Inc, 300 Mich App 577;_NW2d_ (2013). Defendant here asserts that plaintiffs’ proposed class was improperly certified because the class definition is fundamentally flawed and because plaintiffs have not satisfied the requirements of MCR 3.501(A)(1). For the reasons given hereinafter, we affirm in part, reverse in part, and remand for further proceedings.
I. BACKGROUND
The complaint in this case alleges that MAC is a voluntary trade association representing the interests of approximately 1,400 chiropractic doctors in Michigan. Dr. Mitchell is a licensed chiropractic physician, a member of MAC, and an affiliated provider with BCBSM. BCBSM is a nonprofit health care corporation that insures prepaid health care for members of the general public. Seventy percent of MAC members are members of BCBSM’s chiropractic provider network; in addition, some MAC members were BCBSM providers in the past, but are not currently providers, and some have never been providers.
MAC members who are providers contract with BCBSM to provide chiropractic services under Practitioner Traditional Participation Agreements and PPO TRUST Network Practitioner Affiliation Agreements (TRUST agreements) (together, “the provider agreements”). The terms of the provider agreements are the same for all providers. Additionally, in 1999, MAC’s predecessor organizations and BCBSM entered into a settlement agreement resolving their disputes over the “administration and implementation” of the provider agreements. At issue in this case is the administration and interpretation of the 1999 settlement agreement in conjunction with the provider agreements.
II. THE COMPLAINT AND PROPOSED CLASS
In their amended complaint, plaintiffs alleged that BCBSM breached the provider agreements and the 1999 settlement agreement and violated Michigan law. Plaintiffs claimed that BCBSM has a practice of not paying chiropractic providers for covered chiropractic services, while it pays other nonchiropractic providers for providing the same services. Plaintiffs also alleged that MAC members who are not participating providers have suffered damages because they have been discouraged from becoming BCBSM providers as a result of these policies. The complaint stated three counts. Count I alleged that BCBSM had met often with MAC in a sham attempt to implement “proper reimbursement policies,” and sought
compensatory and exemplary damages for the intentional manner in which Blue Cross and Blue Shield made representations and promises of performance to Plaintiffs, with no intention of following through, to the detriment of Plaintiffs’ patient relationships, and instead simply forestalled implementation of any appropriate changes until Plaintiffs should file this lawsuit.
Count I did not, however, seek declaratory relief. Count II alleged two ways BCBSM breached the 1999 settlement agreement — by unilaterally requiring traction to be linked to a chiropractic adjustment and by ceasing to use the charging CPT code for emergency services — and sought a declaratory judgment that BCBSM breached the 1999 settlement agreement as well as damages, fees, and costs. Count III alleged that BCBSM’s refusal to reimburse practitioners “for physical medicine modalities it recognizes are within the scope of chiropractic” constituted a breach of the TRUST agreements (plaintiffs asserted that the 1999 settlement agreement does not apply to the TRUST agreements) and sought declaratory relief and damages.
Plaintiffs moved to certify a class comprised of “all similarly situated chiropractors who have or had Traditional Services or PPO Product Agreements with Blue Cross, are members of the MAC and have been denied lawful reimbursement.” In support of the motion, plaintiffs offered the affidavit of Kristine Dowell, director of MAC, describing the history of the relationship between MAC and BCBSM, the history of negotiations, and her knowledge of defendant’s practices that have affected chiropractors. Plaintiffs also provided Dr. Toby Mitchell’s affidavit attesting to the harms that he suffered. He averred that despite his provider agreements, BCBSM “continually refuses to reimburse me for services that those agreements require it to reimburse for” and, be cause BCBSM does reimburse other providers, such as osteopaths, for those services, Dr. Mitchell would “often lose patients because they do not wish to pay for their treatment out of pocket....” He stated that he sometimes did not submit invoices that he knew would be rejected, and he identified CPT codes for which reimbursement was not allowed, eliminated over time, or provided on a limited basis. Dr. Mitchell asserted that he lost patients and suffered financial loss as a result of BCBSM’s policies.
Defendant asserted that the 1999 settlement agreement controls which services are reimbursed and that it had not breached that agreement. The provider agreements limit reimbursement to services identified as “covered” in an insured’s certificate, and none of those certificates expands covered chiropractic services to everything a chiropractor is licensed to perform. Regarding class certification, defendant argued that the class definition was too broad, that plaintiffs failed to identify any actual damages that had been incurred as a result of the alleged breaches, that plaintiffs failed to provide a method to identify class members, that the court would have to conduct exhaustive evidentiary hearings to determine whether individual chiropractors should be included in the class, and that Dr. Mitchell was not representative of any class because his claims were time-barred. Notably, defendant did not dispute that class litigation was suitable for the prospective or declaratory aspects of the claims.
The trial court disagreed with defendant and, in a written opinion, held that the requirements of MCR 3.501(A)(1) were satisfied. Thereafter, it certified the class. Defendant sought leave to appeal, which we granted, limited to the issues raised in the application.
III. STANDARD OF REVIEW
Interpretation of MCR 3.501(A) presents a question of law that we review de novo. Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009). The analysis a court must undertake regarding class certification may involve making both factual findings and discretionary decisions. Id. at 495-496. We review the trial court’s factual findings for clear error and the decisions that are within the trial court’s discretion for an abuse of discretion. Id. The burden of establishing that the requirements for a certifiable class are satisfied is on the party seeking to maintain the certification. Tinman v Blue Cross & Blue Shield of Mich, 264 Mich App 546, 562; 692 NW2d 58 (2004); see also Henry, 484 Mich at 509.
IV MCR 3.501(A)(1)
Certification of a class is controlled by court rule. Under MCR 3.501(A)(1), one or more members of a purported class may file suit on behalf of all members only if:
(a) the class is so numerous that joinder of all members is impracticable;
(b) there are questions of law or fact common to the members of the class that predominate over questions affecting only individual members;
(c) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(d) the representative parties will fairly and adequately assert and protect the interests of the class; and
(e) the maintenance of the action as a class action will be superior to other available methods of adjudication in promoting the convenient administration of justice.
These prerequisites are often referred to as numerosity, commonality, typicality, adequacy, and superiority. Henry, 484 Mich at 488. “[T]he action must meet all the requirements in MCR 3.501(A)(1); a case cannot proceed as a class action when it satisfies only some, or even most, of these factors.” A&M Supply Co v Microsoft Corp, 252 Mich App 580, 597; 654 NW2d 572 (2002).
Although the federal “ ‘rigorous analysis’ ” approach does not apply under our state law, “a certifying court may not simply ‘rubber stamp’ a party’s allegations that the class certification prerequisites are met.” Henry, 484 Mich at 502. The court’s decision to certify may be based on the pleadings alone only if the averments therein satisfy the party’s burden of proving that the requirements of MCR 3.501 are met, “such as in cases where the facts necessary to support this finding are uncontested or admitted by the opposing party.” Henry, 484 Mich at 502-503. The court “may not simply accept as true a party’s bare statement that a prerequisite is met” without making an independent determination that basic facts and law are stated adequately to support that prerequisite. Id. at 505. “If the pleadings are not sufficient, the court must look to additional information beyond the pleadings to determine whether class certification is proper.” Id. at 503. The court should analyze asserted facts, claims, defenses, and relevant law, but “should avoid making determinations on the merits of the underlying claims at the class certification stage of the proceedings.” Id. at 488; see also id. at 504.
Precedential caselaw on the subject of certification is thin in Michigan. Henry, the lead case in Michigan on class certification, involved allegations that the defendant, Dow Chemical Company, had negligently released dioxin into the Tittabawassee River. The plaintiffs sought certification of a class of “persons owning real property within the 100-year flood plain of the Tittabawassee River on February 1, 2002,” estimated by the plaintiffs to consist of approximately 2,000 persons. Id. at 491. The trial court held a two-day hearing in which it reviewed numerous scientific studies, affidavits from experts, and state-agency-provided information from both parties. The Michigan Supreme Court concluded that, although the trial court’s analyses of the prerequisites identified in MCR 3.501(A)(1)(a), (b), and (e) were sufficient, the record was insufficient to determine if the trial court had made a valid, independent determination regarding the typicality and adequacy prerequisites of MCR 3.501(A)(1)(c) and (d). Henry, 484 Mich at 506. Accordingly, the case was remanded for clarification of the trial court’s analysis of those two prerequisites. Id. at 509. Thus, although Henry sets out the details of the proper test under the court rule, it provides little guidance in applying the prerequisites.
V CLASS DEFINITION
Defendant first argues that the proposed class is unsuitable for certification because the class definition requires a determination of the merits of each individual claimant’s case. That is, defendant asserts first that the only way to determine who is a class member is to identify chiropractors who are current MAC members, have signed BCBSM participation agreements, and were denied lawful reimbursement by BCBSM and second that this last requirement mandates an individualized factual inquiry, something that is not proper for class certification. Defendant relies on Tinman, 264 Mich App 546, arguing that the class sought here is analogous to the class this Court decertified in that case. The Tinman class was defined as:
“[A]ll persons who, during the period from June 9,1998, through the present, were, are and will be entitled to receive health care benefits from Blue Cross & Blue Shield of Michigan (BCBSM) for emergency health care services, but were, or will be, denied health care benefits for emergency health care services by BCBSM based on the final diagnosis of their medical condition (excluding any officers or directors of BCBSM, and their family members).” [Id. at 552-553.]
The trial court in Tinman had found that the predominant issue was whether BCBSM’s “ ‘systematic practice’ ” of denial on the basis of the final diagnosis of a medical condition violated statutory law and the certificates it issued and that this was a common question of fact and law meeting the requirements of MCR 3.501(A)(1)(b). Tinman, 264 Mich App at 563. This Court disagreed, concluding:
Rather than being subject to generalized proofs, the evidence of the type of emergency health services and medically necessary services provided, the medical conditions involved and whether they occurred suddenly, the signs and symptoms that manifested those medical conditions, and whether payment was denied for services up to the point of stabilization will all vary from claimant to claimant. Thus, it is evident that to determine defendant’s liability, highly individualized inquiries regarding the circumstances relevant to each claim clearly predominate over the more broadly stated common question in this case. [Id. at 564-565.]
Defendant asserts that what plaintiffs seek here is no different from what was sought in Tinman because each request for reimbursement must be for medically necessary services, i.e., the entitlement to reimbursement depends on individual assessments. However, rather than viewing defendant’s conduct as resulting from a series of individual decisions, defendant’s conduct can be viewed as showing that it adhered to specific policies that affected many providers in the same way. The initial inquiry — whether defendant’s conduct was contrary to law or contractual terms — does not require the examination of individual cases.
An examination of each count provides a clearer picture of the issue. In count I, plaintiffs alleged that, after the 1999 settlement agreement was signed, defendant engaged in a course of fraudulent conduct in the “free and open” meetings between MAC and BCBSM at which they discussed “CPT codes that would be payable.” Defendant allegedly agreed with MAC about which codes were within the scope of chiropractic, and “made numerous representations about essentially providing reimbursement for the additional services identified,” but had no intention of actually allowing that level of reimbursement. Instead, it intentionally caused plaintiffs to rely on defendant’s apparent good faith and to forgo legal action for as long as it could delay.
The allegations of count II are similar. In this count, plaintiffs alleged that defendant breached the 1999 settlement agreement by unilaterally implementing policies to the detriment of its chiropractic physicians who provide care pursuant to Traditional Services Agreements. Specifically, contrary to the terms of the settlement agreement, defendant allegedly stopped paying for mechanical traction unless it was performed in con junction with an adjustment, and defendant stopped using CPT code 99058, which took away “the only means for chiropractic physicians to be paid additional office visits for established patients when they presented with an additional condition that required evaluation and management services.”
Count III applies only to providers with whom defendant has TRUST agreements. In this count, plaintiffs alleged that defendant refused to reimburse those providers for all but one of the CPT codes that represent services chiropractors are licensed to perform and that this refusal violated the TRUST agreements.
We conclude that for count II, and for count I if plaintiffs are able to amend their complaint on remand to seek declaratory relief in that count, the proposed class definition does not pose an obstacle to certification for any declaratory relief plaintiffs seek. If defendant had a duty to negotiate in good faith but in fact was merely intentionally causing delay, and if MAC and its members waited for those negotiations to conclude despite an exodus of patients to doctors offering more services that were covered, the legal issues (such as whether defendant had such a duty) and factual matters other than damages (such as when MAC would have taken action) would apply class-wide. Likewise, the question whether defendant unilaterally implemented across-the-board policies that breached the 1999 settlement agreement involves common legal and factual questions. It does not take an assessment of each individual in the class to show that elimination of the only way to get reimbursement for a procedure plaintiffs normally performed would cause injury, either in the form of lost income or in the form of lost patients.
Count III, however, presents a different situation from the first two counts. While the 1999 settlement agreement precludes reimbursement for several of the various services chiropractors can perform, plaintiffs asserted that TRUST providers are not covered by that agreement (and thus are not limited by it) and therefore should get reimbursement for any service they are licensed to provide. Plaintiffs argue that, for example, spinal decompression is within the scope of chiropractic, but defendant refuses to reimburse chiropractors for this service while at the same time reimbursing other practitioners for that service. However, regardless of the scope of the 1999 settlement agreement, both kinds of provider agreements limit reimbursement to “covered services,” and both contracts define “covered services” as meeting three requirements: “(i) identified as payable in Certificate(s), (ii) medically necessary as defined in such Certificates, and (iii) ordered and performed by a PRACTITIONER licensed to order and perform such services.” The third element is the only one of the three that might be established by common proofs. Whether the other two are met (and thus, whether the services for which reimbursement is being sought were, in fact, “covered services”) depends on whether the treatment is “medically necessary” and “identified as payable.” The answer to both of these questions can only be ascertained by examining the certificate held by the individual member who sought treatment. Reference to the statutory definition of chiropractic, MCL 333.16401(l)(e), or any other identification of what is within the scope of chiropractic cannot serve to expand the limits of a certificate.
The present record indicates that there could be hundreds of different certificates, and there is no evidence whether the terms of these are identical, somewhat similar, or completely different. Unlike with counts I and II, there is no overarching legal question to be addressed; whether reimbursement was wrongfully denied hinges on whether “covered services” were provided. Thus, for count III, the proposed class definition is not supported by the record at this point because there is no evidence that count III does not require an examination of each certificate involved in every challenged reimbursement denial. Further discovery could reveal how similar the certificates are and whether the required elements of a certifiable class can be adequately supported. Without more, however, certifying the class with regard to this count was erroneous because of the apparent need for individual proofs, that is, as discussed in part VII of this opinion, for this count, the commonality requirement is not met.
Similarly, to the extent plaintiffs seek compensatory and exemplary damages, the class definition expressly limiting the class to plaintiffs who have suffered compensable damages is problematic. As defendant points out, establishing that a patient left someone’s practice because of BCBSM’s delay requires an individual examination of facts. Likewise, whether a practitioner is entitled to compensatory damages requires an examination of claims submitted and denied, or services provided and not reimbursed by defendant. Like count III, this would require an examination of each patient’s certificate to see if the denied claim was a “covered service” in the first place.
Accordingly, we decline to decertify the class on the basis of the definition of the class. For counts I and II, unlike the problems with the definition used in Tin-man, the problems with the definition used in this case arise more from the remedies sought by each count and by difficulties in satisfying the requirements of MCR 3.501(A)(1), than from the definition itself. Count III, however, requires individual fact-finding for each potential class member, and we conclude that the record does not support the proposed class definition with regard to this count. We hold that plaintiffs’ claims for declaratory relief should be bifurcated from those seeking retrospective compensatory damages and that the class definition is valid for the declaratory relief plaintiffs seek for count II, and for count I if plaintiffs are able to amend their complaint on remand to seek declaratory relief in that count. MCR 3.501(B)(3)(d)(i).
VI. NUMEROSITY
Defendant next argues that the numerosity requirement of MCR 3.501(A)(1)(a) has not been met because there are no proofs in the record regarding how many chiropractic physicians might be in the class. We agree that the trial court erred by holding that plaintiffs satisfied the numerosity requirement after it considered only the evidence of the number of chiropractors holding contracts with defendant. Moreover, plaintiffs provide in their brief no estimate of the size of the class.
In Zine v Chrysler Corp, 236 Mich App 261, 287-288; 600 NW2d 384 (1999), we stated:
There is no particular minimum number of members necessary to meet the numerosity requirement, and the exact number of members need not be known as long as general knowledge and common sense indicate that the class is large. Because the court cannot determine if joinder of the class members would be impracticable unless it knows the approximate number of members, the plaintiff must adequately define the class so potential members can be identified and must present some evidence of the number of class members or otherwise establish by reasonable estimate the number of class members. [Citations omitted; emphasis added.]
In Zine, the plaintiffs sought to certify a proposed class of over 522,600 persons who had purchased defendant’s vehicles and had been misled by information distributed to the purchasers concerning their rights under Michigan law. Id. at 267. The trial court denied the motion to certify the class, and this Court affirmed. The Court noted that none of the plaintiffs had identified a specific number of class members and that the plaintiffs had only “indicated that the class potentially included all 522,658 purchasers of new Chrysler products from February 1, 1990, onward.” Id. at 288.
However, class members must have suffered actual injury to have standing to sue, so plaintiffs must show that there is a sizable number of new car buyers who had seriously defective vehicles and lost their right to recovery under Michigan’s lemon law because they were misled by the documents supplied by Chrysler. Neither [of the plaintiffs] indicated even approximately how many people might come within this group, nor did they indicate a basis for reasonably estimating the size of the group. Therefore, both [plaintiffs] failed to show that the proposed class is so numerous that joinder of all members is impracticable. [Id. at 288-289 (citation omitted).]
The present case is factually analogous. Each class member must meet the class definition’s three features: be a MAC member, be a signatory to a BCBSM provider agreement, and have been wrongfully denied reimbursement. There is no allegation that defendant has wrongfully denied claims of all MAC chiropractors and, like the plaintiffs in Zine, plaintiffs do not “indicateQ even approximately how many people might come within this group ...Id. at 289. Plaintiffs’ motion brief proposed that the number of chiropractic physicians listed in defendant’s provider directory (2,589) was “likely the minimum number of class members,” that is, there might be even more because that number did not include persons who had been, but were no longer, providers. The trial court looked only at that number and accepted it without considering the other two requirements. This was clear error. Plaintiffs’ class definition sets three requirements: the first two alone limit the number to at most 1,400 to 1,500 — the class cannot be any larger than the number of MAC members that have or had provider contracts — and there is no evidence of the number that meet the third limitation, i.e., those who have been wrongfully denied reimbursement.
However, after reviewing the record, we conclude that reversal on the basis of this issue is not required. By limiting plaintiffs’ remedies to declaratory relief, we deemphasize the need to estimate the number of chiropractors suffering actual financial harm. Finally, on remand, the trial court must require plaintiffs to provide an actual estimate of the number of chiropractors that meet the third element of the class definition before plaintiffs may proceed with the damages portion of their suit.
VII. COMMONALITY
Defendant next argues that there is no generalized proof that can establish injury on a class-wide basis. For example, even if the representative plaintiff can show that he timely submitted a “clean claim” for a covered service and that he was denied relief through the contractual dispute-resolution process, that would not show that BCBSM had a policy of doing so or that any other class member was injured in the same way. Again, we conclude that bifurcating the declaratory remedies sought from the damages remedies sought resolves the conflict inherent in the proposed definition.
Under MCR 3.501(A)(1)(b), a prerequisite for a certifiable class action suit is that “there are questions of law or fact common to the members of the class that predominate over questions affecting only individual members[.]” As we have already discussed, the counts involving misrepresentation during negotiations (count I) and unilateral changes in reimbursable codes (count II) involve common questions. This Court in Tinman explored the issue of common questions:
The common question factor is concerned with whether there is a common issue the resolution of which will advance the litigation.... It requires that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, must predominate over those issues that are subject only to individualized proof.
... It is not every common question that will suffice, however; at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality. A plaintiff seeking class-action certification must be able to demonstrate that all members of the class had a common injury that could be demonstrated with generalized proof, rather than evidence unique to each class member.... [T]he question is ... whether the common issues [that] determine liability predominate. [Tinman, 264 Mich App at 563-564 (citations and quotation marks omitted; alterations by Tinman).]
Like the trial court in this case, the trial court in Tinman did not separately address the propriety of certifying each count of the plaintiffs complaint, but determined that, as a whole, the plaintiffs suit merited class-action certification. This Court disagreed, concluding that the issues involved a “highly individualized inquiry ... to determine whether de fendant engaged in a reasonable investigation based on the available information before denying a particular claim.” Id. at 564.
Defendant argues that this case is analogous because whether a provider was wrongfully denied reimbursement depends on individualized inquiries into whether the treatment was medically necessary, whether a timely “clean claim” was submitted, and whether the provider was qualified to render the service. But if the issue is whether defendant has an across-the-board policy of refusing to reimburse chiropractors for covered services for which reimbursement is permitted by the agreements, then individual assessment for each claimant is not necessary at the class-certification stage, and the common issues predominate. Viewed in the broadest way, and taking the allegations of count II at face value, if defendant systematically breaches its provider agreements with chiropractors by refusing to reimburse as required by contract, then any chiropractor with a BCBSM provider agreement potentially has a claim. Individual questions only arise after a breach or misrepresentation has been established, at which point class members would need to prove their damages. Count I is similar where common answers exist regarding defendant’s intent and plaintiffs’ reliance. For both of these counts, as with the numerosity requirement, limiting the suit at this point to declaratory relief only forestalls the need for the individualized proofs that are required in determining monetary damages.
Count III, however, is simply an aggregate of individual breach of contract claims. The claims of class members
must depend upon a common contention .... That common contention, moreover, must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.
“What matters to class certification... is not the raising of common ‘questions’ — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” [Wal-Mart Stores, Inc v Dukes, 564 US_,_; 131 S Ct 2541, 2551; 180 L Ed 2d 374, 389-390 (2011), quoting Nagareda, Class certification in the age of aggregate proof, 84 NY U L R 97, 132 (2009).]
For this count, the answers sought relate to whether defendant breached its contracts by wrongfully denying reimbursement. But in each individual case, defendant’s denial of reimbursement could be due to any number of factors, not the least of which is that coverage of chiropractic services may be limited by a patient’s certificate, or may not be defined by the certificate as “medically necessary” at the frequency that plaintiffs would prefer. Defendant’s stated reasons for denying reimbursement are not identified by plaintiffs, so it is unknown how many claims were refused because they were not timely, because the patient was not a subscriber, because the service was not covered at all, or because the frequency of the service exceeded what was covered. It would not be enough to show that claims for certain codes are routinely denied without some proof that no valid reason for denial exists. Therefore, count III, like the claim in Tinman, requires an individual inquiry for each purported class member. The trial court did not appear to consider the counts individually, and count Ill’s differences from the other counts, and similarity to the claim in Tinman, make it unsuitable for class certification.
VIII. TYPICALITY
Defendant argues that the typicality requirement is not met for the same reasons as the commonality requirement. Commonality and typicality “tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Gen Tel Co of the Southwest v Falcon, 457 US 147, 157 n 13; 102 S Ct 2364; 72 L Ed 2d 740 (1982). However, they are separate elements. Typicality is established when “the claims or defenses of the representative parties are typical of the claims or defenses of the class[.]” MCR 3.501(A)(1)(c). When the allegations merely make a bare statement that the requirement is met, the trial court must independently determine that the plaintiffs can sufficiently support “their allegations that their legal remedial theories were typical of those of the class.” Henry, 484 Mich at 506 n 40.
When taken at face value, Dr. Mitchell’s allegations that he suffered damages because defendant misrepresented its intent in negotiating a further expansion of covered services, that defendant systematically breached the 1999 settlement agreement by unilaterally changing or eliminating reimbursable services, and that defendant refused to reimburse him for covered services are in large part typical of the class. Here too, however, the same problem with count III arises: defendant may be consistently refusing reimbursement for improper reasons, but proof of that requires an examination of individual claims to ascertain the reasons for denial before it can be found that those reasons were merely a smokescreen to hide a pattern of discrimina tory conduct. If Dr. Mitchell regularly fails to timely submit his claims, for example, then his may not be typical of the claims being submitted by the class. Without knowing why Dr. Mitchell’s claims are denied, it is impossible to know whether his claims might be typical of the class. To the extent the trial court’s order failed to recognize the individual inquiry needed for resolution of count III, it erred by certifying the class for the entire complaint.
IX. ADEQUACY
Defendant argues that Dr. Mitchell cannot adequately represent the class because there was no evidence that he ever submitted a timely claim for a medically necessary, covered service that BCBSM then failed to reimburse. As are the other requirements, the adequacy element is sufficiently met for counts I and II, but not for count III. Even if the class definition is legally sound, Dr. Mitchell is not an adequate representative for count III because he failed to establish that he exhausted his contractual remedies.
Generally, “[0]ne may not pursue a cause of action in a class that one could not pursue individually.” Cork v Applebee’s of Mich, Inc, 239 Mich App 311, 319; 608 NW2d 62 (2000). The provider agreements specify a three-step process for resolving reimbursement disputes. The provider must first send defendant a written complaint, and if defendant’s explanation is unsatisfactory, then the parties meet in an informal conference. If defendant’s postconference proposed resolution is unsatisfactory, then the provider has a choice of seeking binding arbitration, review by the Department of Insurance and Financial Services, or judicial review. Here, there is no evidence that any class member has properly pursued, and received an unsatisfactory resolution to, a dispute.
In his affidavit, Mitchell stated:
Despite [the provider agreements], and the 1999 Agreement, Blue Cross continually refuses to reimburse me for services that those agreements require it to reimburse for. In these instances, I am forced to bill my patients directly at a reduced rate. However, because Blue Cross will reimburse other providers, such as osteopaths, for these same services that I provide, I often lose patients because they do not wish to pay for their treatment out of pocket and will simply see a provider that will be covered by their insurance.
Whether the agreements require reimbursement is a legal question, not a fact. Mitchell does not provide facts supporting his conclusion that reimbursement was wrongfully denied, such as a claim denied as being untimely when it was not. Mitchell also identified CPT codes for which BCBSM limits or disallows reimbursement, but did not aver ever having been wrongfully denied reimbursement for those codes, nor did he point to any requirement in his provider agreement that those services be reimbursed or establish that “other providers” are reimbursed if they use those same codes. Finally, he identified services that he was capable of providing, “such as heat therapy and massage,” but there is no evidence that those are covered services for which any health care provider is reimbursed. Thus, even if other potential class members have had claims wrongfully denied, Mitchell’s affidavit does not provide factual support that he has had claims wrongfully denied.
X. CONCLUSION
Plaintiffs did not establish that their claims for compensatory relief satisfy the class requirements set out in MCR 3.501(A)(1). The trial court should have bifurcated the declaratory claims for count II and certified the class for that count. We note that plaintiffs have not at this point sought declaratory relief under count I. If plaintiffs fail to seek to amend their complaint, count I should be decertified in its entirety. If plaintiffs are able to amend their complaint on remand to seek declaratory relief in count I, the trial court should bifurcate the declaratory relief claims and also certify the class for that count. MCR 3.501(B)(3)(d)(i) states that a court may order that “the action be maintained as a class action limited to particular issues or forms of relief....” While this is a discretionary rule, because of the unsuitability of the compensatory relief sought and the failure of plaintiffs to establish commonality, typicality, and adequacy for count III, the trial court abused its discretion by allowing certification of the class for plaintiffs’ entire complaint.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
METER and M. J. Kelly, JJ., concurred with FITZGERALD, P.J.
CPT is an acronym for Current Procedural Terminology, which is the American Medical Association’s “official coding resource for procedural codes, rules and guidelines.”
Chiropractors Ass’n of MI v Blue Cross/Blue Shield of MI, unpublished order of the Court of Appeals, entered February 22, 2012 (Docket No. 304736).
“Certificate” is defined by the provider agreements as
benefit plan descriptions under the sponsorship of BCBSM, or certificates and riders issued by BCBSM, or under its sponsorship, or Member’s coverage documents or benefits provided pursuant to contracts issued by other Blue Cross or Blue Shield (BCBS) Plans, administered through reciprocity of benefit agreements or other Inter-Plan Arrangements such as BlueCard.
Although numerosity was not an issue raised in the statement of questions in defendant’s application, we have authority to consider such issues, and we choose to do so because it is fully briefed and is an integral part of the class-certification requirements. See MCR 7.216(A); United Parcel Serv, Inc v Bureau of Safety & Regulation, 277 Mich App 192, 204; 745 NW2d 125 (2007).
Adequacy was not an issue raised in the statement of questions in defendant’s application. However, we have authority to consider such issues, and we choose to do so because it is fully briefed and is an integral part of the class certification requirements. See MCR 7.216(A); United Parcel Serv, Inc v Bureau of Safety & Regulation, 277 Mich App 192, 204; 745 NW2d 125 (2007). | [
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MURRAY, J.
Defendant appeals as of right his convictions for first-degree premeditated murder, MCL 750.316(l)(a), and possession of a firearm during the commission of a felony, MCL 750.227b(l). Defendant, who was 14 years old at the time he committed these crimes, was sentenced to mandatory life in prison without the possibility of parole for his first-degree murder conviction and two years’ imprisonment for his felony-firearm conviction. We affirm defendant’s convictions but remand for resentencing on his first-degree premeditated murder conviction in accordance with this opinion.
I. FACTS
The material facts of this case were essentially undisputed, and at trial those facts revealed the following course of events. On March 5, 2010, defendant, along with his sister, went to spend the weekend at the home of Jean and Jesse “Papa” Miles, their grandmother and step-grandfather. Defendant often spent weekends at his grandparents’ home. Jean described defendant as a “good grandson,” and testified that she and Jesse had always been involved in defendant’s life. She explained that defendant had a “good” relationship with her and Jesse, and that nothing appeared to be out of the ordinary during this particular weekend.
On March 6, 2010, defendant’s sister returned to their father’s home while defendant remained at his grandparents’ house. Jean saw defendant during the evening and briefly spoke with him when he came downstairs to use the restroom; defendant did not at the time appear angry or upset. At approximately 7:30 p.m. that evening, Jean went to her bedroom to watch television; Jesse was in the living room, where he slept, watching television. Defendant was in an upstairs bedroom.
Jean awoke at approximately 3:00 a.m. the next morning when she heard a “pop.” Upon awakening, she heard defendant’s voice, and thought defendant told her, “I shot Papa.” The next thing she remembered was that she had a gun in her hands; she could not recall whether defendant gave her the gun or whether she picked it up. After discovering what happened, she instructed defendant to call 9-1-1, and paramedics responded to the call but were unable to save Jesse.
Michigan State Police Trooper Brenda Kiefer and Deputy Eugene Casto of the Berrien County Sheriffs Department responded to the scene and arrested defendant. Kiefer initially interviewed defendant at the home; she read defendant his Miranda warnings and defendant agreed to waive his rights and to speak to her without having a parent present. Defendant told Kiefer that late in the evening on March 6 or early in the morning on March 7, he went downstairs to get a handgun that Jesse kept on the hook of a coat rack. Afterwards, defendant went back up to his room and sat in a chair with the gun for approximately two to three hours. While he sat upstairs with the gun, defendant “was contemplating homicide or suicide.” Defendant told Kiefer that he went downstairs and shot Jesse with the handgun while he was sleeping on the couch. Although defendant told Kiefer that he shot Jesse out of “sadness” and “pent up anger,” he was not angry with Jesse or Jean, but instead was angry with his own parents.
Defendant also spoke with Casto on the night of his arrest as defendant sat in Casto’s patrol car.* * Among other things, defendant informed Casto that he neglected to tell Kiefer about two knives he had placed in the living room near the staircase, and that he realized that his “life just turned into Law & Order, but without commercials.” Additionally, in referencing the killing, defendant stated, “[y]ou know I wish I could take it back but now I understand the feeling that people get when they do that. Now I understand how they feel.” Continuing, defendant commented to Casto about the feeling, “when you hit that point of realization for that split second you feel like nothing could ever hurt you. Just for that split second. Once you realize what you’ve done.” Defendant also described to Casto a paper his father, Steven Eliason, had written for a criminology class about various forms of execution.
Shortly thereafter, defendant was brought to a police station for interrogation by Detective Fabian Suarez. With everyone’s permission, Eliason was present during some portions of the interview, but was not in the same room as defendant and Suarez for the entire interview. During the interview, Eliason and defendant acknowledged that they understood the Miranda warnings and defendant agreed to waive his rights. Defendant explained to Suarez that he had not slept much before the shooting, and that he shot Jesse after taking the loaded handgun from the coat rack. He could not explain why he shot Jesse, and indicated that Jesse never harmed him physically or emotionally. However, defendant indicated that he was contemplating either committing suicide or shooting Jesse that night, but decided to kill Jesse because he was not ready to die. And, in a sense admitting to a self-awareness of his actions, defendant stated that at one point he thought to himself, “what am I doing, why do I have to do this, why do I have the gun, I know better than this . .. .”
As to the shooting, defendant was in the living room looking at Jesse for approximately 45 minutes trying to decide what to do before he shot Jesse. Defendant then aimed the gun at Jesse from approximately seven feet away and pulled the trigger, shooting him in the head.* * Defendant had not previously considered hurting Jesse, but “[sjomething snapped” that night because everything he had been thinking of that evening “just buil[t] up to the point that you don’t know what you’re doing.” According to defendant he “blacked out for a couple minutes” before he shot Jesse.
With these essential facts in mind we now turn to defendant’s challenges to his convictions and sentences.
II. ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first argues that he was denied the effective assistance of trial counsel because his trial counsel should have presented an expert witness to rebut testimony offered by the prosecution that he lacked remorse after the shooting. At a Ginther hearing on this matter, Dr. James Henry testified that defendant experienced significant emotional trauma before the shooting and that this caused him to dissociate from reality. As a result, defendant often had trouble expressing his feelings, including remorse. Defendant contends that his trial counsel was ineffective for failing to call an expert witness, such as Dr. Henry, to explain his alleged lack of remorse.
A defendant is denied the effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution if “counsel’s performance fell below an objective standard of reasonableness ... [and] the representation so prejudiced the defendant as to deprive him of a fair trial.” People v Pickens, 446 Mich 298, 309; 521 NW2d 797 (1994). This Court presumes that trial counsel was effective, and in order to show that counsel’s performance fell below an objective standard of reasonableness, a defendant must overcome the strong presumption that his counsel’s conduct constituted reasonable trial strategy. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). “An attorney’s decision whether to retain witnesses, including expert witnesses, is a matter of trial strategy.” People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).
Defendant cannot overcome the presumption that his trial counsel’s decision not to call an expert witness was the product of trial strategy. Rather than calling an expert witness, defendant’s trial counsel attempted to rebut the prosecution’s arguments that defendant lacked remorse by impeaching witnesses who testified that defendant lacked remorse, and highlighting evidence that arguably showed defendant did have remorse. This Court will not second-guess trial counsel’s strategy to rebut the evidence in this manner rather than calling an expert witness. People v Cooper, 236 Mich App 643, 658; 601 NW2d 409 (1999). Just as importantly, we cannot conclude that defendant’s trial counsel performed in an objectively unreasonable manner when the record reveals that he consulted with three mental health experts before trial, none of whom concluded that defendant’s lack of remorse was caused by dissociation with reality. Although these experts evaluated defendant for purposes of raising an insanity defense or for mitigating the killing, they nonetheless concluded that defendant did not suffer from a mental health disorder. We cannot hold that trial counsel was constitutionally ineffective by not seeking out a fourth expert witness when the first three he consulted did not indicate that defendant suffered from an underlying mental health condition that caused him to appear to lack remorse for his actions. The record unequivocally shows that trial counsel thoroughly examined options regarding the use of expert witnesses and what, in the end, would be the best trial strategy. His performance on behalf of defendant was anything but ineffective as defined by the Supreme Court.
However, defendant also argues that his trial counsel was ineffective for failing to object to irrelevant and prejudicial evidence, as well as the prosecutor’s argument that utilized that evidence. Defendant notes that the prosecution introduced evidence — without objection from his counsel — of his conversation with Deputy Casto in which he espoused his views on capital punishment, and told Casto about a criminology paper his father had written that discussed various forms of execution.
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. “Alternatively stated, the general rule is that evidence is admissible if helpful in throwing light upon any material point in issue.” People v Murphy (On Remand), 282 Mich App 571, 580; 766 NW2d 303 (2009) (quotation marks and citation omitted). “A material fact is one that is ‘in issue’ in the sense that it is within the range of litigated matters in controversy.” Id. (quotation marks and citation omitted). Pursuant to MRE 402, “[a]ll relevant evidence is admissible,” unless it is otherwise deemed inadmissible. Here, defendant’s statements to Casto were relevant to a matter in controversy because they tended to show defendant’s state of mind prior to the killing. Given that the statements were made shortly after defendant shot Jesse, they were relevant to prove the issue of premeditation because they demonstrate that defendant considered the consequences of killing before he committed the murder. Those statements also showed that soon after the killing, defendant was able to clearly articulate thoughts, even about matters associated with killing and punishment. Defendant’s trial counsel was not ineffective for failing to raise a meritless objection. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
Defendant also contends that his trial counsel should have moved to exclude his statements to Casto under MRE 403 because the probative value of this evidence was substantially outweighed by the danger of unfair prejudice. An analysis under MRE 403 requires balancing several factors, People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008), which include
the time required to present the evidence and the possibility of delay, whether the evidence is needlessly cumulative, how directly the evidence tends to prove the fact for which it is offered, how essential the fact sought to be proved is to the case, the potential for confusing or misleading the jury, and whether the fact can be proved in another manner without as many harmful collateral effects. [Id.]
The mere fact that evidence is damaging to a defendant does not make the evidence unfairly prejudicial. Murphy (On Remand), 282 Mich App at 582-583.
In consideration of these factors, we conclude that any objection to defendant’s statements about capital punishment under MRE 403 would have been unsuccessful. Although a slight danger existed that the jury might have been misled by comments about capital punishment, the evidence nonetheless tended to show that defendant acted with premeditation and the evidence was not particularly inflammatory. Therefore, trial counsel was not ineffective for failing to raise an objection to the evidence or to the prosecutor’s argument as any such objections would have been meritless. Ericksen, 288 Mich App at 201. Relative to the prosecutor’s reference to Charles Manson, although the prosecutor’s question was irrelevant and his comments during closing arguments improper, defendant’s trial counsel’s performance did not fall below an objective standard of reasonableness by failing to raise an objection. Defendant’s trial counsel, as an experienced attorney, “was certainly aware that there are times when it is better not to object and draw attention to an improper comment.” People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008) (quotation marks and citation omitted). “Furthermore, declining to raise objections, especially during closing arguments, can often be consistent with sound trial strategy.” Id.
Nevertheless, even if trial counsel acted in an objectively unreasonable manner by failing to object to this evidence, defendant would not be entitled to relief because he cannot demonstrate prejudice. Carbin, 463 Mich at 600. Indeed, even if this evidence had been excluded, the prosecution presented overwhelming evidence of defendant’s guilt. The prosecution introduced evidence that defendant admitted to pondering the killing for approximately two to three hours, and that he sat in the living room next to Jesse for approximately 45 minutes as he contemplated what to do. Further, defendant told police officers that he pondered whether to use knives, a gun, or even a pillow. Given the amount of contemplation and planning by defendant, there is overwhelming evidence that he had more than a “sufficient time to . . . take a second look” and that he was guilty of first-degree premeditated murder. People v Jackson, 292 Mich App 583, 588; 808 NW2d 541 (2011) (quotation marks and citation omitted).
B. WAIVER OF DEFENDANT’S FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION
Defendant also challenges the trial court’s failure to suppress his confessions to Kiefer and Suarez because, although he waived his Fifth Amendment rights before giving his confessions, his waivers were neither knowing nor voluntary. Defendant preserved this issue for appeal by challenging the admissibility of his statements in a pretrial motion. Unger, 278 Mich App at 243. “We review de novo a trial court’s determination that a waiver was knowing, intelligent, and voluntary.” People v Gipson, 287 Mich App 261, 264; 787 NW2d 126 (2010). However, we defer to the trial court’s factual findings so long as they are not clearly erroneous. People v Herndon, 246 Mich App 371, 395; 633 NW2d 376 (2001). “[T]he analysis must be bifurcated, i.e., considering (1) whether the waiver was voluntary, and (2) whether the waiver was knowing and intelligent.” People v Tierney, 266 Mich App 687, 707; 703 NW2d 204 (2005). Whether a waiver is knowing and intelligent “requires an inquiry into [a] defendant’s level of understanding, irrespective of police conduct.” Gipson, 287 Mich App at 265. “A defendant does not need to understand the consequences and ramifications of waiving his or her rights. A very basic understanding of those rights is all that is necessary.” Id. Meanwhile, whether the waiver was voluntary depends on the absence of police coercion; the defendant’s waiver must be his or her own “free and deliberate choice,” rather than the product of intimidation. Id. at 264-265.
Initially, we conclude that record evidence supported all of the trial court’s findings, so we use those facts in analyzing the legal issues presented. In doing so, we hold that defendant knowingly and intelligently waived his right against self-incrimination after his Miranda warnings because the totality of the circumstances demonstrates that defendant understood his rights. Kiefer and Suarez testified that defendant appeared intelligent and articulate and that he twice stated he understood the nature of his rights. Although defendant was only 14 years old, the record reveals that he performed well in school. Additionally, the trial court rejected defendant’s testimony at the suppression hearing that he did not understand his rights, finding that defendant was not credible as he was unable to articulate exactly what he did not understand about his rights. We defer to the trial court’s credibility determinations. Gipson, 287 Mich App at 264. Because the trial court found that defendant appeared intelligent and articulate and that he twice indicated he understood his rights, we cannot hold that his waiver was not knowing and intelligent. See People v Abraham, 234 Mich App 640, 649-650; 599 NW2d 736 (1999); People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998).
We likewise reject defendant’s argument that his waivers were involuntary. The voluntariness of a Miranda waiver is evaluated under a totality of the circumstances test, but also includes additional safeguards for juveniles. In re SLL, 246 Mich App 204, 209; 631 NW2d 775 (2001); People v Givans, 227 Mich App 113,121; 575 NW2d 84 (1997). In Givans, 227 Mich App at 121, this Court explained that the trial court must consider extra factors in deciding whether a juvenile’s waiver was voluntary:
(1) whether the requirements of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), have been met and the defendant clearly understands and waives those rights, (2) the degree of police compliance with MCL 764.27; MSA 28.886 and the juvenile court rules, (3) the presence of an adult parent, custodian, or guardian, (4) the juvenile defendant’s personal background, (5) the ac cused’s age, education, and intelligence level, (6) the extent of the defendant’s prior experience with the police, (7) the length of detention before the statement was made, (8) the repeated and prolonged nature of the questioning, and (9) whether the accused was injured, intoxicated, in ill health, physically abused or threatened with abuse, or deprived of food, sleep, or medical attention.
Considering the factors articulated in Givans, and keeping in mind the deference we give to the trial court’s findings of fact, we hold that defendant voluntarily waived his Fifth Amendment rights before he spoke with Kiefer and Suarez. Regarding the first factor, the officers complied with Miranda’s requirements and defendant understood his Miranda rights. As to the third factor, Eliason was present during defendant’s interview with Suarez, and although he was not present during defendant’s interview with Kiefer, that was at defendant’s request.
Likewise, we find nothing in the next three factors— defendant’s background, age, education, intelligence, and the extent of his prior experience with the police — to suggest that defendant’s waiver was involuntary. Kiefer described defendant as “intelligent and articulate,” and Suarez opined that defendant was “probably above average [intelligence] for his age . . . .” Additionally, the record reveals that defendant earned mostly A’s and B’s in school, and that he did not have difficulty understanding the police officers who interviewed him. Further, defendant had some familiarity with the police as a result of prior questioning by police officers on another occasion.
The remaining three factors — the length of the detention, the nature of the questioning, and whether defendant was coerced, threatened, or deprived of food, water, sleep, or medical attention — also support the conclusion that defendant’s waivers were voluntary. Neither the detention nor the questioning in this case was prolonged, as defendant confessed to Kiefer almost immediately after he was arrested. His subsequent confession to Suarez followed approximately two hours later. Moreover, there is no indication in the record, nor does defendant allege, that Kiefer or Suarez coerced or threatened him into making a confession and waiving his rights. Although defendant notes that he had not slept for a considerable amount of time before the interviews, the officers testified that defendant was articulate and that he did not have difficulty answering their questions. Accordingly, in light of each of the factors noted above, we hold that defendant’s waivers were voluntary. See Givans, 227 Mich App at 122; People v Good, 186 Mich App 180, 189; 463 NW2d 213 (1990).
C. CRUEL AND UNUSUAL PUNISHMENT
Defendant’s final argument is that his mandatory sentence of life imprisonment without the possibility of parole is cruel and unusual punishment under US Const, Am VIII and Const 1963, art 1, § 16. At sentencing, the trial court imposed a mandatory sentence of life without the possibility of parole pursuant to MCL 750.316(1), MCL 769.1(l)(g), and MCL 791.234(6)(a). Defendant preserved this issue by raising it at his sentencing hearing. People v Pipes, 475 Mich 267, 277; 715 NW2d 290 (2006). “This Court reviews constitutional questions de novo.” People v Dipiazza, 286 Mich App 137, 144; 778 NW2d 264 (2009).
In Miller v Alabama, 567 US _; 132 S Ct 2455, 2469; 183 L Ed 2d 407 (2012), the United States Supreme Court ruled “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” The Miller Court noted that juveniles and adults are different for purposes of sentencing, and explained that sentencing schemes that mandate life without parole for juveniles convicted of homicide offenses do not take into account a juvenile’s individual characteristics and thus are unconstitutional. Id. at_; 132 S Ct at 2466-2469. The Court added:
[T]he mandatory penalty schemes at issue here prevent the sentencer from taking account of these central considerations. By removing youth from the balance — by subjecting a juvenile to the same life-without-parole sentence applicable to an adult — these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes ... [the] foundational principle [found in Graham v Florida, 560 US 48; 130 S Ct 2011; 176 L Ed 2d 825 (2010), and Roper v Simmons, 543 US 551; 125 S Ct 1183; 161 L Ed 2d 1 (2005)]: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children. [Id. at_; 132 S Ct at 2466.]
In People v Carp, 298 Mich App 472, 526-527; 828 NW2d 685 (2012) this Court explained that the limited holding in Miller was that a juvenile cannot be automatically subjected to a punishment of life imprisonment without the possibility of parole. The holding of Carp, however, was that Miller did not apply retroactively to collateral challenges to sentences. Id. at 522. Here, defendant’s case was pending on direct review at the time Miller was decided; therefore, Miller applies and defendant’s mandatory sentence of life imprisonment without the possibility of parole constitutes cruel and unusual punishment under the Eighth Amendment. Id.
However, contrary to defendant’s assertions, he is not entitled to a remand at which the trial court has unfettered discretion to impose a sentence for any term of years. In fact, he could still receive the same sentence on remand, as the Miller Court did not “foreclose a sentencer’s ability” to sentence a juvenile in a homicide case to life imprisonment without parole, so long as the sentence “take[s] into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at _; 132 S Ct at 2469. In other words, a trial court can still sentence a juvenile who committed a homicide to life in prison without the possibility of parole, so long as that sentence is an individualized one that takes into consideration the factors outlined in Miller. Id. at_; 132 S Ct at 2466-2467, 2471. We recognized as much in Carp, 298 Mich App at 525, where we opined in dicta that the rule from Miller “does not. . . imply that a sentencing court has unfettered discretion when sen- tenting a juvenile. Rather, the focus is on the discretion of the sentencer to determine whether to impose the harshest penalty of life without the possibility of parole on a juvenile convicted of a homicide offense.”
Therefore, the only discretion afforded to the trial court in light of our first-degree murder statutes and Miller is whether to impose a penalty of life imprisonment without the possibility of parole or life imprisonment with the possibility of parole. Carp, 298 Mich App at 527. In deciding whether to impose a life sentence with or without the possibility of parole, the trial court is to be guided by the following nonexclusive list of factors:
(a) the character and record of the individual offender [and] the circumstances of the offense, (b) the chronological age of the minor, (c) the background and mental and emotional development of a youthful defendant, (d) the family and home environment, (e) the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressure may have affected [the juvenile], (f) whether the juvenile might have been charged [with] and convicted of a lesser offense if not for incompetencies associated with youth, and (g) the potential for rehabilitation. [Id. at 532, citing Miller, 567 US at_; 132 S Ct at 2467-2468 (quotation marks and citations omitted).]
As the prosecutor has noted, under MCR 6.425(E)(1), a trial court is already required to hold a sentencing hearing, and so this remedy — rather than the one suggested by defendant — is expressly permitted by court rule and is not an unconstitutional trip by the judiciary into the legislative realm. We therefore vacate defendant’s mandatory sentence of life without the possibility of parole and remand for an individualized sentence within the strictures of Miller.
Our dissenting colleague is of the opinion that (1) under the federal constitution as interpreted in Miller a trial court has complete freedom to resentence a juvenile to any sentence, except those actually provided for by the Legislature, and (2) that a sentence of life with the possibility of parole is cruel or unusual punishment under Const 1963, art 1, § 16. With all due respect, we explain below why we disagree with these propositions.
1. MILLER AND THE SEPARATION OF POWERS
The dissent argues that our application (consistent with the dicta of Carp) of Miller’s holding — i.e., that the appropriate sentencing remedy is to remand for a life sentence, with the trial court exercising discretion as to whether the sentence should be with or without the possibility of parole — is too narrow. Instead, relying on Miller, the dissent would create a rule providing trial courts with the “discretion to fashion a sentence that takes into account an offender’s youth . . . .” Essentially the dissent would give unfettered discretion (except for use of Miller’s criteria) to trial courts when sentencing juveniles lawfully convicted of first-degree premeditated murder. But in coming to this conclusion, the dissent has failed to heed (1) the actual holding of Miller, (2) the context in which Miller’s ruling was made, and (3) the Michigan Legislature’s judgment of the appropriate punishment for first-degree murderers.
There is no disagreement that Miller provides the precedent for addressing whether defendant’s current sentence — one that was mandatorily imposed — is constitutionally valid under the federal constitution. But precedent, of course, has its limitations. As one court has accurately stated:
The essence of the common law doctrine of precedent or stare decisis is that the rule of the case creates a binding legal precept. The doctrine is so central to Anglo-American jurisprudence that it scarcely need be mentioned, let alone discussed at length. A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy. [Allegheny Gen Hosp v NLRB, 608 F2d 965, 969-970 (CA 3, 1979) abrogated on other grounds St Margaret Mem Hosp v NLRB, 991 F2d 1146 (CA 3, 1993) (footnote omitted).]
At the outset of her opinion, Justice Kagan made clear the holding in Miller-. “We .. . hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” Miller, 567 US at_; 132 S Ct at 2460. That holding was necessarily limited by the fact that the Court was reviewing the validity of statutes enacted in Alabama and Arkansas that required the sentence of life without the possibility of parole without a trial court considering any factors unique to the defendant and his crime. Justice Kagan was equally specific when she declared for the Court that it was not invalidating discretionary life-without-parole sentences imposed on juveniles convicted of murder: “Because that holding is sufficient to decide these cases, we do not consider . . . [the] alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger.” Id._; 132 S Ct at 2469. Importantly, the Miller Court did not strike down the statutes in their entirety, but instead merely ruled that their mandatory nature violated the Eighth Amendment when applied to juveniles.
As a result of Miller’s limited holding, the state statutes under which the trial court sentenced defendant to life in prison without the possibility of parole— MCL 750.316(l)(a), MCL 769.1(l)(g), and MCL 791.234(6)(a) — cannot on remand mandate the same sentence. Instead, the trial court is required to consider the factors surrounding defendant’s age when exercising the discretion to determine whether the same sentence should be imposed again. Miller requires nothing more, and certainly did not invalidate the Michigan Legislature’s judgment that a life sentence is the appropriate punishment for a juvenile who is lawfully convicted of first-degree murder.
Contrary to the dissent’s view, the Miller Court’s recitation of factors it considered relevant to youth did not create a new mandatory sentencing guideline in place of sentencing statutes like those at issue here. Rather, because it was addressing whether mandatory life in prison without the possibility of parole was constitutional, the Miller Court recited factors that distinguish juveniles from adults both as evidence of what important factors could not be considered under these mandatory schemes and to provide guidance to lower courts when determining if “a State’s most severe penalties on juvenile offenders” should be imposed:
But the mandatory penalty schemes at issue here prevent the sentencer from taking account of these central considerations. By removing youth from the balance — by subjecting a juvenile to the same life-without-parole sentence applicable to an adult — these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children. [Miller, 567 US at_; 132 S Ct at 2466 (emphasis added).]
See, also, id. at_; 132 S Ct at 2467 (“Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it.”). We reemphasize, then, by repeating that Miller did “not foreclose a sentencer’s ability to make that judgment [life without parole] in homicide cases,” but instead merely required sentencing courts “to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at_; 132 S Ct at 2469 (emphasis added).
The dissent fails to acknowledge this specific holding, and the context within which the Miller Court reached it. Yes, the factors that come into play when sentencing juveniles are important, but Miller only requires those to be considered when the juvenile is convicted of murder and the state’s “most severe penalty” is being considered, i.e., life without the possibility of parole. Just last month the Wyoming Supreme Court, in Bear Cloud v State, 2013 Wy 18, ¶ 44; 294 P3d 36, 47 (Wy, 2013), recognized this same point:
In sum, Miller requires an individualized sentencing hearing for every juvenile convicted of first-degree murder at which the sentencing court must consider the individual, the factors of youth, and the nature of the homicide in determining whether to order a sentence that includes the possibility of parole. Miller does not guarantee the possibility of parole for a convicted juvenile homicide offender, but Miller does mandate that a meaningful review and consideration be afforded by the sentencing court.
The Miller Court was unquestionably not offering these factors so that courts could fashion any sentence for a juvenile, which is made clear by the limited holding and issue before that Court.
But that is what is urged by the dissent, and in doing so it is stretching Miller well beyond the precedent that it established. Perhaps granting trial courts wide discretion in sentencing a juvenile would be good policy (though we certainly offer no opinion on that subject), but as of today Michigan law — in conjunction with Miller — is clear as to what sentences can be imposed upon a juvenile for a first-degree-murder conviction. If a different policy decision is to be made regarding the appropriate sentences for juveniles convicted of murder, it is best “to allow the legislative process to work than to engage in an expansive and unnecessary interpretation of Miller.” State v Riley, 140 Conn App 1,15 n 8; 58 A3d 304 (2013), lv gtd in part 308 Conn 910 (2013). Again, Miller unquestionably did not invalidate state statutes when construed (pursuant to Miller) to allow first-degree murderers to be sentenced to life in prison without parole, and so we must continue to enforce our Legislature’s policy choice in that regard, see Davis v Detroit Financial Review Team, 296 Mich App 568, 628-629; 821 NW2d 896 (2012) (O’CONNELL, J., concurring in part and dissenting in part) (recognizing the inherent limitations on the judiciary under the separation of powers).
2. THE STATE CONSTITUTION
Defendant and the dissent also argue that a sentence of life in prison with or without the possibility of parole runs afoul of our state constitution’s prohibition against “cruel or unusual punishment[.]” Const 1963, art 1, § 16. It is certainly true that this state provision, with the use of “or” rather than the Eighth Amendment’s prohibition containing “and,” has been interpreted more broadly than the federal prohibition. People v Bullock, 440 Mich 15, 30; 485 NW2d 866 (1992). However, because it is unknown what sentence on remand will be imposed upon defendant, and for what reasons, it is best to leave this issue to another day. See People v Oswald (After Remand), 188 Mich App 1, 12-13; 469 NW2d 306 (1991). Nevertheless, because the dissent has gone to great lengths in addressing this issue, we feel compelled to offer a few comments on the subject.
Our dissenting colleague concludes, based primarily on Bullock and People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972), that the Michigan Legislature cannot constitutionally set the punishment of life in prison with or without the possibility of parole for a juvenile convicted of first-degree murder. To reach this result, the dissent employs the vague and subjective proportionality tests set forth in those cases, while failing to note caselaw that tends to preclude the conclusion reached.
For example, it is well settled that “ [legislatively mandated sentences are presumptively proportional and presumptively valid.” People v Brown, 294 Mich App 377, 390; 811 NW2d 531 (2011). Nowhere does the dissent mention these constitutionally important presumptions. Likewise, how can it be that our state constitution prohibits a sentence for a juvenile of life with parole when our Supreme Court has held that life without parole is constitutional for the crimes of felony-murder and conspiracy to commit murder? See People v Hall, 396 Mich 650, 657-658; 242 NW2d 377 (1976) and People v Fernandez, 427 Mich 321, 335; 398 NW2d 311 (1986). One reason why the Hall Court rejected the state constitutional challenge was because defendant had not shown that “Michigan’s punishment for felony murder is widely divergent from any sister jurisdiction.” Hall, 396 Mich at 658. Nowhere does the dissent address this relevant factor. See Bullock, 440 Mich at 33-34 (recognizing under Lorentzen that how other states penalize the conduct must be considered in the proportionality analysis); Brown, 294 Mich App at 390 (how other states penalize similar conduct must be considered in the state constitutional analysis); People v Launsburry, 217 Mich App 358, 363; 551 NW2d 460 (1996) (same). Finally, our Supreme Court in People v Lemons, 454 Mich 234, 258-259; 562 NW2d 447 (1997), rejected an argument that an offender’s young age, by itself, renders a particular sentence disproportionate.
It is apparent that the dissent believes that it is immoral to punish a juvenile for murder with a life sentence, even when given the chance of parole. As explained earlier, the Miller Court failed to invalidate all juvenile life sentences with no chance of parole, and failed to address juvenile life sentences with the opportunity for parole. Moreover, no Michigan Supreme Court case has held such a sentence unconstitutional. Accordingly, the dissent’s argument turns solely on policy and an overly broad reading and application of Miller and Bullock.
Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
O’Connell, J., concurred with Murray, J.
Kiefer’s name appears in the trial transcripts as “Keifer.”
Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Kiefer described defendant as “respectful” during the interview. As to defendant’s demeanor, Kiefer testified that defendant “was very matter of fact and showed no emotion or remorse for what happened. And he had a steady, calm voice when he answered all of my questions.”
The patrol car was equipped with a camera and defendant’s statements to Casto were recorded and played for the jury at trial.
According to Casto, during this conversation defendant “seemed basically kind of calm; [he] was not upset, [and he] didn’t show any signs of remorse to me, didn’t cry at all. [He] [w]as more inquisitive on what was going on than what may happen.”
Defendant told Suarez that he considered using knives rather than the gun because he was not sure whether he wanted the killing to be quiet or loud. Defendant also considered using either a pillow to smother Jesse or washcloths to gag him.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
The warnings required by Miranda do not grant independent rights to defendant. Rather, Miranda warnings are measures taken to provide “practical reinforcement” of a defendant’s Fifth Amendment rights. Michigan v Tucker, 417 US 433,444; 94 S Ct 2357; 41 L Ed 2d 182 (1974).
When rendering its decision on defendant’s motion to suppress, the trial court thoroughly examined all of these factors.
Defendant does not challenge the second Givans factor, compliance with MCL 764.27.
Additionally, we reject defendant’s contention that Eliason exerted pressure on him and coerced him into confessing to Suarez. The record reveals that defendant confessed to Suarez at the outset of the interview; Eliason did not speak with defendant or ask him any questions until after defendant already confessed. Any claim that Eliason forced defendant to confess is disingenuous.
We note that defendant initially argued that he was entitled to a new trial because the trial court violated his right to due process by shackling him at trial. Defendant expressly abandoned this issue after the prosecution presented evidence at a posttrial evidentiary hearing that none of the jurors saw defendant’s shackles.
The Eighth Amendment of the United States Constitution provides the following guarantees: “Excessive bail shall not be required, not excessive fines imposed, nor cruel and unusual punishments inflicted.” US Const, Am VIII.
Defendant proposes that the most palatable remedy consistent with the role of the judiciary is to vacate his first-degree murder conviction and remand for entry of a second-degree murder conviction, which allows for a term-of-years sentence. However, the cases defendant relies upon provide that specific remedy when the conviction was not based on sufficient facts for the higher charged crime. That is not what we are faced with here, as overwhelming facts supported the first-degree-murder conviction. To do as suggested by defendant would require us to ignore the jury findings and the prosecutor’s charging discretion.
Though the limited nature of the Miller holding is abundantly clear, we point out that numerous other state courts have recently made the same observation as we do today. See, e.g., Conley v State, 972 NE2d 864, 879 (Ind, 2012); State v Williams, 108 So3d 1169 (La, 2013); State v Riley, 140 Conn App 1, 13-16; 58 A3d 304 (2013) lv gtd in part 308 Conn 910 (2013).
It is true, as the dissent states, that no statute provides life with parole as a punishment for first-degree murder. However, life in prison without parole is still the legislatively prescribed punishment for this most heinous crime, and can still he the sentence for a juvenile. But, as we have exhaustively discussed, Miller requires discretion when determining whether a juvenile should be sentenced to this most severe penalty. If a juvenile should not receive life without parole, certainly life with parole is the sentence most consistent with the Legislature’s declared punishment.
We note that the Bullock Court’s use of a proportionality analysis for determining whether a sentence constitutes cruel or unusual punishment was eloquently challenged in a dissent written by Justice Riley, see Bullock, 440 Mich at 46-67, and has been more recently called into question on those same grounds. People v Correa, 488 Mich 989, 989-992 (2010) (Markman, J., joined by Young and Corrigan, JJ., concurring). The issues raised by Justice Riley address what is the required test under Const 1963, art 1, § 16. No one questions the principle that the Michigan Constitution trumps an inconsistent statute, or that the judiciary is empowered to declare when such a conflict exists. Marbury v Madison, 5 US (1 Cranch) 137, 177; 2 L Ed 60 (1803).
Miller recognized, however, that 29 jurisdictions (28 states and the federal government) provided life without parole for some juveniles convicted of murder. Miller, 567 US at_; 132 S Ct at 2471.
The proportionality analysis is made at the time the defendant is sentenced, so what the parole board may do some years down the road, or even what rules and regulations are in place when a defendant is later considered for parole, is merely speculative at the time of sentencing.
And, as we emphasized earlier, those policy decisions are constitutionally left to debate within the halls of the Legislature. Curry v Meijer, Inc, 286 Mich App 586, 599; 780 NW2d 603 (2009). | [
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BORRELLO, J.
Defendant appeals as of right his convictions by a jury of second-degree murder, MCL 750.317, possession of a firearm by a felon, MCL 750.224Í, and two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced as a second-offense habitual offender, MCL 769.10, to 25 to 40 years’ imprisonment for the second-degree murder conviction, 5 years to 90 months in prison for the conviction of possession of a firearm by a felon, and 2 years’ imprisonment for each felony-firearm conviction. For the reasons set forth in this opinion, we affirm.
I. FACTS
Defendant’s convictions arise out of the shooting death of Kevin Powell that occurred about December 17, 2010. The shooting occurred at a boarding house in Saginaw that defendant had signed a contract to purchase a few days earlier. Powell, who was a large, heavyset man, was a tenant at the boarding house. Several days before the shooting, the police refused a request from a man named “Juan” for assistance in evicting Powell because “Juan” could not produce a valid eviction notice. A police officer testified that he told “Juan” to call the police if the subject, i.e., Powell, became “assaultive.” The officer testified that “Juan” responded by stating that no call would be necessary because “he takes care of his own.” Defendant testified that his friend had made the call and impersonated defendant.
At trial, evidence showed that defendant and Powell engaged in several verbal altercations in the months and days preceding the shooting. Defendant testified that he initially met Powell in the parking lot of a grocery store where he and Powell argued and Powell allegedly stated, “I’ll go get my gun and I’ll find out who you are.” The verbal altercations continued after defendant purchased the boarding house. Defendant testified that Powell was angry that defendant planned to evict all the residents of the boarding house. According to defendant, Powell refused to vacate the boarding house without a refund of his past rent and he allegedly stated, “we shoot cops over here ... you ain’t s— to me.”
Before the shooting, defendant, Delano Williams, and John O’Valle moved some of defendant’s belongings, including a rifle, into the boarding house. According to defendant, early in the day Powell shouted at him. Defendant refused to have a conversation with Powell until Powell stopped shouting. Powell retreated to his room. Later that day, defendant and Powell had a calm discussion; Powell offered to talk and have an alcoholic drink with defendant in his room provided that defendant purchase the alcohol. Defendant agreed, and left the boarding house to purchase alcohol. There was conflicting testimony regarding the events that followed.
According to Williams, after defendant left the boarding house to buy alcohol, O’Valle and Powell got into an argument. O’Valle became angry and retrieved defendant’s rifle, which had been placed in a back bedroom. As O’Valle carried the rifle down a hallway toward Powell’s room, Powell confronted O’Valle and took the rifle away from him. Powell brought the rifle into his room.
Following the dispute between O’Valle and Powell, according to Williams, he and Powell quarreled over Williams’ missing watch. Williams explained that the incident occurred in Powell’s room and he stated that Powell started to choke him. Williams testified that while Powell was choking him, defendant returned from the store, and that Powell released Williams when he saw defendant approach. Williams stated that defendant went and “got the rifle back” about 10 to 25 minutes after Powell choked him. Specifically, Williams testified that defendant went into Powell’s room, and, following a conversation, Powell handed the rifle back to defendant and told defendant to “control his peoples.”
Williams testified that after defendant retrieved the rifle from Powell, defendant placed it in a back bedroom underneath a mattress. According to Williams, sometime thereafter, while he and O’Valle sat at a table, defendant got the rifle from underneath the mattress, walked to Powell’s room, knocked on the door, asked Powell if he wanted some soup, and then fired the gun. Specifically, Williams explained, “I heard the door go, you know, like somebody touched the knob and gonna pull it open and then just heard a bang.” Williams was unclear about the timing regarding when defendant stowed the rifle under the mattress after Powell gave it back to him and the time when defendant got the rifle back out from under the mattress and shot Powell. At one point, Williams stated that the shooting occurred about an hour after defendant placed the rifle under the mattress. Williams did not clarify why defendant confronted Powell with a rifle other than stating that Powell “went too far when he decided he wanted to touch me” and that Powell was “too big.” He agreed that defendant “got up from the table” unannounced, got the rifle, and went to Powell’s room with it.
Defendant’s testimony differed from Williams’ testimony. Defendant testified that, when he returned to the boarding house from purchasing alcohol, he witnessed Powell laying over O’Valle holding a rifle. Defendant stated that Powell brought the rifle into his room. Defendant went into Powell’s room and conversed and drank alcohol with Powell for approximately 15 minutes then arose to leave the room. Powell handed the rifle to defendant as he left the room.
According to defendant, sometime after he and Powell conversed, while he was eating with O’Valle, he heard a “ruckus in the kitchen” and then saw Powell choking Williams. Defendant explained that he instructed Powell to release Williams and Powell complied. However, defendant testified that Powell stated, “that’s it .. . I’m getting my gun. I’m killin’ all of yous. ... He said he was gonna kill us.” Powell left the area and returned to his room. Defendant testified that, as Powell was going to his room, “I went under the mattress and retrieved the gun and flashes of my dead sister was in the kitchen, and I’m seeing flashes of [Williams] dead in the kitchen, and I’m figuring he’s gonna come kill us all.” Defendant testified that he retrieved the rifle about three minutes after Powell went into his room. Defendant then proceeded to Powell’s room with the rifle. Defendant stated that he asked Powell if he wanted some food and proceeded through the door into Powell’s room. Defendant testified as follows:
I was scared that I was going to catch a bullet, you know, through the door, and then when I went into the bedroom, I was what the hell is wrong with you. And then he saw the gun in my hand. He says I got a gun too, mother f- — . And I says well you better not move.
... And that’s when he moved this hand. He had something in his hand right here. But I figured he had two guns. And he moved this hand. As he moved, I stepped back and I brought the gun up like this. Now the door is in between halfway him and me. And at the same time when I brought it like this, after he moved, the gun just went off. I mean, it don’t just go off, but I don’t remember squeezing the trigger. It just happened so fast. And, I mean, I didn’t aim for him.
Defendant testified that he was scared of “gettin’ killed.” He explained that Powell was holding a “long black thing” that looked like the barrel of a gun when he went in Powell’s room. However, defendant testified that Powell was “bluffing” and must have been holding a hammer that the police later found on his bed. Defendant testified that his rifle fired only once and he stated that he was “shocked that it went off. I actually thought that it was empty.” He explained that he brought what he thought was an unloaded rifle to Powell’s room to try and intimidate Powell and prevent him from “get[ting] his gun and kill[ing] all three of us like he said he was gonna do.” Defendant agreed with the prosecution that his “sworn testimony to this jury was that this was an accident taking place at a time that you were in fear for your life.” Defendant testified that, immediately after the shooting, he concluded that Powell was dead and he, Williams, and O’Valle placed some belongings and the rifle into a wheelbarrow and fled to a home nearby.
The police were called to the boarding house the following day, where they discovered Powell’s body covered with some bedding. The police found a hammer on Powell’s bed and a spent shell casing on the floor near the door next to Powell’s room. Shortly thereafter, the police arrested defendant.
At the close of proofs, defense counsel requested an instruction on self-defense and the defense of others, but the trial court denied defendant’s request and explained:
With regard to the self-defense claim here, what little research we can do on this matter, there’s the idea of accidental self-defense ... you have to have a rational view of the facts to support this.
In this case, the defendant has testified that the gun accidentally went off. It wasn’t his intent to kill the person.
He went there with the weapon because of the position he was in because he was frightened but the gun accidentally went off. So the very nature of discharging a firearm in defense of himself or others would not apply, and the fact that he went to the decedent’s room would negate it anyway. I believe that more importantly his statement that the gun accidentally discharged would ehminate any claim that this discharge was with the intent to defend himself or someone else, so I’m not going to give the instruction.
The trial court instructed the jury on the defense of accident. The jury convicted defendant as set forth above. This appeal ensued.
II. STANDARD OF REVIEW
Defendant contends that the trial court denied him his right to a fair trial when it refused to instruct the jury on self-defense and defense of others.
We review questions of law arising from the provision of jury instructions de novo. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). However, we review a trial court’s determination whether a jury instruction is applicable to the facts of a case for an abuse of discretion. Id. “An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). “The defendant bears the burden of establishing that the asserted instructional error resulted in a miscarriage of justice.” People v Dupree, 486 Mich 693, 702; 788 NW2d 399 (2010). To the extent that we must interpret and apply relevant statutes, issues of statutory construction involve questions of law that we review de novo. People v Ryan, 295 Mich App 388, 400; 819 NW2d 55 (2012).
III. ANALYSIS
A. GOVERNING LAW
“A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her.” People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007). “A defendant asserting an affirma tive defense[ ] must produce some evidence on all elements of the defense before the trial court is required to instruct the jury regarding the affirmative defense.” People v Crawford, 232 Mich App 608, 619; 591 NW2d 669 (1998).
Under the common law, the affirmative defense of self-defense justified the killing of another person if the defendant “ ‘honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.’ ” Dupree, 486 Mich at 707, quoting People v Riddle, 467 Mich 116, 127; 649 NW2d 30 (2002). In general, a defendant does not act in justifiable self-defense when he or she uses excessive force or when the defendant is the initial aggressor. Id.
In 2006, the Legislature enacted the Self-Defense Act (SDA), MCL 780.971 et seq. Effective October 1, 2006, the SDA “codified the circumstances in which a person may use deadly force in self-defense or in defense of another person without having the duty to retreat.” Dupree, 486 Mich at 708. Specifically, the SDA modified the common law’s duty to retreat that was imposed on individuals who were attacked outside their own home or were not subjected to a “sudden, fierce, and violent” attack. People v Conyer, 281 Mich App 526, 530 n 2; 762 NW2d 198 (2008). However, the SDA continues to require that a person have an honest and reasonable belief that there is a danger of death, great bodily harm, or a sexual assault in order to justify the use of deadly force. MCL 780.972(1). The statute provides, in relevant part, as follows:
(1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:
(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.
(b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual. [MCL 780.972(1) (emphasis added).]
At the outset we note that a key provision of the statutory language set forth above is that portion which provides “[a]n individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force.. . .” (Emphasis added.) This language raises the question whether a felon possessing a firearm is precluded from asserting self-defense under the SDA. Indeed, in this case, defendant was a convicted felon and was precluded from possessing a firearm under MCL 750.224f at the time of the shooting. Therefore, when defendant possessed the rifle used in the shooting, he was a felon in possession of a firearm contrary to that statute. Accordingly, we must proceed by determining whether a felon in possession of a firearm is precluded from asserting the affirmative defense of self-defense under the SDA.
There is no published caselaw addressing the interplay between the statute proscribing the possession of a firearm by a felon and the SDA; thus, we must first turn to the plain language of the statutes. MCL 750.224f provides that an individual convicted of a felony may not “possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm,” unless certain conditions are satisfied. See People v Perkins, 473 Mich 626, 630-632; 703 NW2d 448 (2005). The statute includes an exemption applicable to felons who have been pardoned or have had their felonies expunged or set aside. MCL 750.224f(4). However, the statute is silent with respect to affirmative defenses.
With respect to the SDA, as noted, the statute articulates when an individual may use deadly force in self-defense or defense of others with no duty to retreat, MCL 780.972(1), but it too is silent on whether the statute applies to felons possessing firearms. Importantly, however, the SDA provides: “This act does not diminish an individual’s right to use deadly force or force other than deadly force in self-defense or defense of another individual as provided by the common law of this state in existence on October 1, 2006.” MCL 780.974 (emphasis added). Thus, in order to resolve whether a felon in possession of a firearm is precluded from asserting self-defense under the SDA, we must proceed by examining the scope of an individual’s right to assert self-defense at common law.
In Dupree, 486 Mich at 696-697, our Supreme Court addressed whether a convicted felon could assert common-law self-defense to justify his temporary possession of a firearm in violation of the statute prohibiting possession of a firearm by a felon. In that case, the defendant was at a house party with a female companion when he became involved in an altercation with another man, Damond Reeves, on the porch. Id. at 697-698. Testimony showed that the altercation escalated into a physical brawl. Id. at 698. As the two men wrestled on the ground, the defendant saw that Reeves had a gun in the waistband of his pants. Id. The defendant testified that he was afraid for his life because Reeves was larger than him, intoxicated, and armed. Id. at 698-699. The defendant testified that he shot Reeves three times as he struggled with Reeves for the gun. Id. at 699. The defendant then fled the scene with the gun, tossing it out of the window of his companion’s vehicle after she had driven them away from the house. Id.
The prosecution charged the defendant with assault with intent to commit murder, felonious assault, possession of a firearm by a felon, and felony-firearm. Id. at 697-698. At trial, the defendant claimed self-defense and he argued that his temporary possession of the gun was justified because he seized it only to protect himself during the scuffle. Id. at 699. The trial court provided a standard self-defense instruction; however, with respect to the felon-in-possession charge, the court provided a “momentary innocent possession” instruction. Id. at 699-700. The jury acquitted the defendant of all the charges except the felon-in-possession charge and the defendant appealed. Id. at 700.
This Court reversed the defendant’s conviction and remanded for a new trial, finding that common-law self-defense was available for a charge of being a felon in possession of a firearm and that the trial court had erred by failing to instruct the jury accordingly. People v Dupree, 284 Mich App 89, 92,104; 771 NW2d 470 (2009) (opinion by M. J. KELLY, J.). Writing for the majority, Judge M. J. KELLY reasoned that “the Legislature’s enactment of MCL 750.224f must be construed against the background of Anglo-Saxon common law, which includes the defenses of duress and self-defense.” Id. at 103. Judge M. J. KELLY noted the purpose behind the felon-in-possession statute “is to ensure that those persons who are more likely to misuse firearms do not maintain ready possession of them.” Id. at 106. However, Judge M. J. KELLY declined to presume that by enacting the statute, “the Legislature intended to deprive persons — even ex-felons — of the fundamental right to defend against a sudden and potentially deadly attack.” Id. at 104, citing United States v Panter, 688 F2d 268, 271 (CA 5, 1982) (“We do not believe that Congress intended to make exfelons [sic] helpless targets for assassins.”). Judge M. J. KELLY concluded, “[b]ecause there is no indication that the Legislature intended to abrogate or modify the application of traditional common-law affirmative defenses to MCL 750.224f, I conclude that the defenses of duress and self-defense are still applicable to a charge of being a felon-in-possession.” Dupree, 284 Mich App at 104.
Our Supreme Court affirmed this Court’s result, holding that common-law self-defense “is generally available for a felon-in-possession charge if supported by sufficient evidence.” Dupree, 486 Mich at 697 (emphasis added). The Court reasoned that self-defense was “embedded in our criminal jurisprudence,” and presumed that the defense was available for felons possessing firearms “[a]bsent some clear indication that the Legislature abrogated or modified” the availability of the defense. Id. at 705-706. Importantly, though, the defense was available only if it was supported by sufficient evidence — i.e., evidence that the defendant’s “criminal possession of the firearm was justified because defendant honestly and reasonably believed that his life was in imminent danger and that it was necessary for him to exercise force to protect himself.” Id. at 708. The Court concluded that the defendant had introduced evidence to support that he possessed the gun in self-defense. Id. at 708-709.
Dupree clearly establishes that at common law, felons in possession of a firearm were not precluded from asserting self-defense if the defense was supported by sufficient evidence. The Legislature did not alter the availability of self-defense under the SDA for felons possessing firearms. Rather, the SDA explicitly states that the statute “does not diminish an individual’s right to use deadly force or force other than deadly force in self-defense or defense of another individual as provided by the common law of this state in existence on October 1, 2006.” MCL 780.974 (emphasis added). Therefore, we hold that a felon possessing a firearm is not precluded from raising self-defense under the SDA when there is evidence that would allow a jury to conclude that criminal possession of a firearm was justified because the accused had an honest and reasonable belief that the use of deadly force was necessary to prevent imminent death, great bodily harm, or sexual assault to himself or herself or to another. See Dupree, 486 Mich at 708-709; MCL 780.972(1)
B. APPLICATION
Having concluded that a felon possessing a firearm is not precluded from asserting self-defense under the SDA if the defense is supported by evidence, we now turn to whether, in this case, self-defense was supported by the evidence.
After a thorough review of the record, we conclude that there was no evidence that would have allowed a jury to find that defendant’s criminal possession of the rifle was justified by an honest and reasonable belief that it was necessary for him to use deadly force to prevent imminent death or great bodily harm to himself or to another. MCL 780.972(1). Here, unlike in Dupree, defendant was not involved in a physical struggle with an intoxicated and armed individual. Instead, defendant pursued Powell into his room and shot him after Powell had abandoned the physical altercation with Williams and retreated into his room, a place where he had a legal right to be. Specifically, evidence showed that several physical and verbal altercations preceded the shooting. O’Valle confronted Powell with the rifle, Williams accused Powell of taking his watch, and defendant informed Powell that he would soon be evicted. Despite the contentious nature of the relationship between the men, Powell never produced a weapon or placed any of the men in danger of imminent death or great bodily harm. Indeed, when O’Valle threatened Powell with defendant’s rifle, Powell physically took the weapon from him but he did not threaten anyone with it. Instead, Powell returned the rifle to defendant without incident. It was defendant, not Powell, who used the rifle as a deadly weapon.
Additionally, although defendant testified that he feared for his life, there was no evidence that defendant had a reasonable and honest belief that the use of deadly force was necessary to prevent imminent death or great bodily harm. Dupree, 486 Mich at 707. The reasonableness of a person’s belief regarding the necessity of deadly force “depends on what an ordinarily prudent and intelligent person would do on the basis of the perceptions of the actor.” People v Orlewicz, 293 Mich App 96, 102; 809 NW2d 194 (2011). In this case, considering all the facts and circumstances, an ordinarily prudent and intelligent person would not have found it reasonable to pursue Powell to his room, coax him to open the door by offering him food, and then shoot him. According to defendant, Powell and Williams were in a physical altercation a minimum of three minutes before the shooting. During this altercation, Powell did not possess any weapon and he did not pose a deadly threat to either defendant or Williams. In fact, according to defendant, when defendant put his hand on Powell’s shoulder and told him to release Williams, Powell did so and then retreated to his room and closed the door. Although defendant testified that Powell threatened to get his gun and kill all three men, Powell returned to his room and closed the door and did not come back out of the room. Despite defendant’s contrary claims, the use of deadly force was not necessary because threats of future harm do not constitute imminent danger for purposes of self-defense. See, e.g., People v Truong (After Remand), 218 Mich App 325, 337-338; 553 NW2d 692 (1996). Once Powell abandoned the physical altercation and retreated to his room and closed the door, he did not pose an imminent threat to defendant or anyone else in the boarding house in such a manner that the use of deadly force was necessary. Nevertheless, defendant retrieved a rifle from under a mattress in a back bedroom, waited three minutes, went to Powell’s room, offered Powell food, and then immediately shot Powell. Indeed, according to his own testimony, defendant did not think the rifle was loaded when he brought it to Powell’s room. Had defendant possessed a reasonable and honest belief that his life was in danger, he would not have brought what he thought was an unloaded rifle to Powell’s room to confront him. In sum, defendant was the aggressor who initiated the deadly confrontation and he was not entitled to a self-defense instruction.
Moreover, defendant did not advance a self-defense theory at trial. While defendant correctly claims that a criminal defendant can assert inconsistent defenses, People v Lemons, 454 Mich 234, 245; 562 NW2d 447 (1997), all defenses must be supported by evidence. Crawford, 232 Mich App at 619. In this case, a self-defense theory of defense was not supported by any evidence. “A finding that a defendant acted in justifiable self-defense necessarily requires a finding that the defendant acted intentionally, but that the circumstances justified his actions.” People v Heflin, 434 Mich 482, 503; 456 NW2d 10 (1990). At trial, defendant did not maintain that he intentionally shot Powell in self-defense. Rather, defendant maintained that the shooting was an accident. Specifically, defendant testified that he thought the rifle was unloaded when he brought it to Powell’s room and he stated that he was “shocked” that the gun fired. Defendant testified, “I actually thought that it was empty.” Defendant explained that he brought what he thought was an unloaded gun to Powell’s room in an effort to intimidate him. Defendant explained how the gun fired as follows: “I brought the gun up like this. . . . And at the same time . .. the gun just went off. I mean, it don’t just go off, but I don’t remember squeezing the trigger. It just happened so fast.” In addition, defendant testified that he did not aim for Powell, and he agreed with the prosecution that his “sworn testimony to this jury was that this [shooting] was an accident taking place at a time that you were in fear for your life.” (Emphasis added.) Thus, based on defendant’s own testimony, there were only two possible outcomes supported by the evidence: (1) defendant intentionally shot Powell without justification as the prosecution argued or (2) defendant accidentally shot Powell as he claimed during his testimony. Accordingly, the trial court did not abuse its discretion when it instructed the jury consistently with defendant’s accident theory but declined to provide a self-defense instruction. See People v Trammell, 70 Mich App 351, 355; 247 NW2d 311 (1976) (holding that the trial court did not err by refusing to give a self-defense instruction when the defendant argued that his actions were an accident).
IV CONCLUSION
In summary, we conclude that a felon possessing a firearm is not precluded from asserting self-defense under the SDA when there is evidence that would allow a jury to conclude that the criminal possession of the firearm was justified because the accused had an honest and reasonable belief that the use of deadly force was necessary to prevent imminent death, great bodily harm, or sexual assault to himself or herself or to another. In this case, the trial court did not abuse its discretion when it refused to provide a self-defense instruction because there was no evidence that would allow a juror to conclude that defendant’s possession of a firearm was justified on the basis that he had a reasonable and honest belief that the use of deadly force was necessary to prevent imminent death or great bodily harm to himself or to another and because defendant advanced an accident defense at trial.
Affirmed.
Ronayne Krause, P.J., and Riordan, J., concurred with BORRELLO, J.
“An affirmative defense is one that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it.... It does not negate selected elements or facts of the crime.” People v Lemons, 454 Mich 234, 246 n 15; 562 NW2d 447 (1997) (quotation marks and citations omitted).
At common law, a person could also use deadly force in defense of others under similar circumstances. See People v Kurr, 253 Mich App 317, 321; 654 NW2d 651 (2002).
Our Supreme Court did not affirm this Court’s holding that the affirmative defense of duress was available to a felon-in-possession charge because the defense was not properly raised in the trial court. Dupree, 486 Mich at 696-697, 703.
We note that the temporal relationship between the time the accused came into possession of the firearm and the time he or she deployed deadly force is relevant to determining whether the accused had an honest and reasonable belief that possession of a firearm was justified to prevent imminent death, great bodily harm, or sexual assault. For example, in Dupree, 486 Mich at 708-709, a self-defense instruction was warranted when there was evidence that the defendant struggled with an armed individual for possession of the gun and then possessed the gun for a short period thereafter until the threat of danger subsided. Thus, both the amount of time an accused possessed a firearm and the manner in which an accused came into possession of the firearm can be part of a totality-of-the-circumstances inquiry into whether there is evidence that a felon’s possession of a firearm was justified because the felon honestly and reasonably believed that the use of deadly force was necessary to prevent imminent death, great bodily harm, or sexual assault.
It was not alleged, and there was no evidence, that there was any danger of sexual assault; thus, our analysis is limited to whether defendant had a reasonable and honest belief of imminent death or great bodily harm. | [
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HOEKSTRA, J.
The defendant in Docket No. 309303, Melody Tynette Jones, pleaded guilty of attempted welfare fraud over $500, MCL 400.60. She was sentenced to 45 days in jail, and the trial court imposed a $300 fine, $1,000 in court costs, $1,556 in restitution, a $130 crime victims’ rights assessment, and $68 as a minimum state cost under MCL 769.1j. The defendant in Docket No. 310314, Stacey Renee Anderson, pleaded guilty of second-degree murder, MCL 750.317. She was sentenced to 16 to 30 years’ imprisonment, and the trial court imposed a $130 crime victims’ rights assessment and $68 as a minimum state cost. We granted both defendants’ delayed applications for leave to appeal and consolidated the cases. Because we conclude that the imposition of the increased crime victims’ rights assessment under 2010 PA 281 to offenses committed before that law’s effective date is not a violation of the Ex Post Facto Clauses, we affirm.
On appeal, both defendants argue that the imposition of the $130 crime victims’ rights assessment violated the Michigan and federal constitutional prohibitions of ex post facto laws. Unpreserved constitutional issues are reviewed for plain error. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Both the United States Constitution and the Michigan Constitution prohibit ex post facto laws. US Const, art I, § 10; Const 1963, art 1, § 10. Michigan’s prohibition of ex post facto laws is not more expansive than its federal counterpart. People v Callon, 256 Mich App 312, 317; 662 NW2d 501 (2003). “All ex post facto laws share two elements: (1) they attach legal consequences to acts before their effective date, and (2) they work to the disadvantage of the defendant.” Id. at 318. “A statute disadvantages an offender if (1) it makes punishable that which was not, (2) it makes an act a more serious offense, (3) it increases a punishment, or (4) it allows the prosecutor to convict on less evidence.” People v Slocum, 213 Mich App 239, 243; 539 NW2d 572 (1995).
MCL 780.905(1) governs the payment and use of crime victims’ rights assessments and currently provides in relevant part:
The court shall order each person charged with an offense that is a felony, misdemeanor, or ordinance violation that is resolved by conviction, assignment of the defendant to youthful trainee status, a delayed sentence or deferred entry of judgment of guilt, or in another way that is not an acquittal or unconditional dismissal, to pay an assessment as follows:
(a) If the offense is a felony, $130.00.
The crime victims’ rights assessment found in MCL 780.905(1) is specifically authorized by the Michigan Constitution. Const 1963, art 1, § 24(3) (“The legislature may provide for an assessment against convicted defendants to pay for crime victims’ rights.”). At the time both defendants committed their felony offenses, the crime victims’ rights assessment under MCL 780.905, as amended by 2005 PA 315, was $60. 2010 PA 281 amended MCL 780.905, effective December 16, 2010, increasing the crime victims’ rights assessment to $130 when a defendant is convicted of a felony offense. Both defendants argue that the trial court’s application of the $130 crime victims’ rights assessment constituted a retroactive increase in punishment and thus was prohibited by the Ex Post Facto Clauses. However, we addressed the same issue in People v Earl, 297 Mich App 104; 822 NW2d 271 (2012). In Earl, we held that the imposition of the increased assessment under 2010 PA 281 to offenses committed before that law’s effective date “is not a violation of the ex post facto constitutional clauses.” Id. at 114. Earl’s holding is binding under MCR 7.215(C)(2) and (J)(1). Accordingly, the trial courts did not err by imposing the $130 crime victims’ rights assessment on both defendants. See Carines, 460 Mich at 763-764.
While defendants argue that Earl was wrongly decided and urge us to take steps to bring the case before a conflict panel, MCR 7.215(J)(2), we find their arguments entirely unpersuasive. Defendants argue that Earl relied on obiter dictum in People v Matthews, 202 Mich App 175, 177; 508 NW2d 173 (1993). Obiter dictum is an incidental remark or opinion related to but unnecessary to the case. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 437; 751 NW2d 8 (2008). Addressing an alternative argument is, in fact, necessary to the disposition of a case and consequently is not obiter dictum. Id. This is precisely what occurred in the portion of Matthews relied on in Earl: this Court addressed two equal alternative bases for rejecting a particular argument raised by the defendant. Therefore, we reject the contention that Earl relied on obiter dictum.
We find nothing in the plain text of the statute or the act explicitly or implicitly setting forth the Legislature’s intention regarding whether or not to make the assessment a “punishment.” The fact that the assessment is imposed only if a defendant is convicted is not itself dispositive. While it may be perceived as such, it does not act as a punishment in the legal sense because it is tied to being a felon in the abstract, rather than to any specific crime. Put another way, the assessment does not “ ‘ “make[] more burdensome the punishment for a crime,” ’ ” People v Russo, 439 Mich 584, 592; 487 NW2d 698 (1992), quoting Dobbert v Florida, 432 US 282, 292; 97 S Ct 2290; 53 L Ed 2d 344 (1977) (citation omitted), because it simply is not a consequence of any particular crime, but is a consequence of crime itself. Tellingly, the statute provides that a defendant can be charged only one such fee per criminal case, meaning that the more felonies one is convicted of at once, the lower the fee charged is per felony. Thus, it is effectively the opposite of the way in which punishment is expected to operate. We are unpersuaded that Earl was wrongly decided.
Jones in Docket No. 309303 also argues that the trial court erred by imposing $1000 in court costs because the trial court failed to link those court costs to the particular expenses of the case. MCL 769.1k(1) provides:
If a defendant enters a plea of guilty or nolo contendere or if the court determines after a hearing or trial that the defendant is guilty, both of the following apply at the time of the sentencing or at the time entry of judgment of guilt is deferred pursuant to statute or sentencing is delayed pursuant to statute:
(a) The court shall impose the minimum state costs as set forth in [MCL 769. lj],
(b) The court may impose any or all of the following:
(i) Any fine.
(ii) Any cost in addition to the minimum state cost set forth in subdivision (a).
(Hi) The expenses of providing legal assistance to the defendant.
(iv) Any assessment authorized by law.
(a) Reimbursement under [MCL 769. If].
In People v Sanders, 296 Mich App 710, 715; 825 NW2d 87 (2012), we held that “a trial court may impose a generally reasonable amount of court costs under MCL 769.1k(1)(b)(ii) without the necessity of separately calculating the costs involved in the particular case.. . .” This holding is binding under MCR 7.215(C)(2) and (J)(1), and again we decline to express our disagreement with this decision given that we find Jones’s arguments unpersuasive. Jones’s argument that the trial court erred by failing to link the imposed court costs to the particular expenses of the case is meritless. Id.
Alternatively, Jones asks us to remand the case to the trial court for a hearing to establish a factual basis for the $1,000 in court costs to ensure a reasonable rela tionship between the costs imposed and the costs incurred in this case, as ordered by the panel in Sanders, 296 Mich App at 715-716. However, this alternative relief is unnecessary because we have already upheld $1,000 in court costs as having a reasonable relationship to the cost of conducting a felony case in the Berrien Circuit Court, the jurisdiction of defendant’s case. People v Sanders (After Remand), 298 Mich App 105, 108; 825 NW2d 376 (2012).
Affirmed.
RONAYNE KRAUSE, J., concurred with Hoekstra, J. | [
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Bandstra, C.J.
In these consolidated appeals, Scott Stevens (hereafter appellant) appeals by leave granted from an order of the circuit court holding that recall petitions appellant wished to circulate did not satisfy the requirements of MCL 168.952(l)(c). We reverse and remand for further proceedings.
facts
On June 5, 2000, appellant filed a total of twenty-seven recall petitions with the Macomb County Elec tion Commission. These petitions set forth nine allegations against each of three Warren City Council members — George L. Dimas, Charles T. Busse, and Ann E. Klein (hereafter appellees). When the commission met to certify the petitions, however, it approved only one of the nine against each member, rejecting the remaining eight as insufficiently clear.
Other than the names of the council members, the language in the three approved petitions was essentially identical and alleged that
during a Warren City Council meeting on December 21, 1999, [council members George L. Dimas, Charles T. Busse, and Ann E. Klein] voted to raise Warren’s potable water rates by 10.97% to its consumers.
In separate actions, Dimas, followed by Busse and Klein, appealed to the circuit court, arguing that the commission should not have approved the petitions under MCL 168.952 because (1) appellant had failed to state “each reason [for the recall] in a single petition,” and (2) the petitions were not sufficiently clear with respect to the reason for the recall. After consolidating the appeals, the circuit court reversed the commission’s holding, finding that the approved petitions were not sufficiently clear and that, therefore, the first of the questions presented was moot. Appellant subsequently filed delayed applications for leave to appeal, which this Court granted. This Court also consolidated the appeals.
ANALYSIS
Resolution of this appeal entails a matter of statutory construction. This Court reviews such questions de novo.
Recalls of elected officials in Michigan are governed by MCL 168.951 et seq. Subsection 952(1) sets forth the requirements for a recall petition. It reads, in relevant part, as follows:
A petition for the recall of an officer shall meet all of the following requirements:
(c) State clearly each reason for the recall. Each reason for the recall shall be based upon the officer’s conduct during his or her current term of office. The reason for the recall may be typewritten.[ ]
Subsection 952(3) requires the election commission to make a prompt determination “whether each reason for the recall stated in the petition is of sufficient clarity to enable the officer whose recall is sought and the electors to identify the course of conduct that is the basis for the recall.”
The standard of review for clarity of recall petitions has been described as both “lenient,” and “veiy lenient.” “Thus, recall review by the courts should be very,- very limited.” A meticulous and detailed statement of the charges against an officeholder is not required. It is sufficient if an officeholder is apprised of the course of conduct in office that is the basis of the recall drive, so that a defense can be mounted regarding that conduct. “Where the clarity of the reasons stated in the petition is a close question, doubt should be resolved in favor of the individual formulating the petition.”
The vast majority of panels of this Court have found that the reasons stated in the recall petitions before them were sufficiently clear. For example, in Molitor v Miller the panel found the following statements of reason to be acceptable:
“Conducting secret meetings in violation of the open meetings act:
“Failure to follow procedures set forth in the township officers manual: (appointments of committees, boards, etc.)[ ]
The panel in Mastin v Oakland Co Elections Comm similarly found the following language to be sufficiently clear:
“1. Failure to faithfully represent the people of the 8th Senatorial District by voting on March 23, 1983, to report a tax increase bill (HB 4092) out of committee with a recommendation for passage.
“2. Failure to faithfully represent the people of the 8th Senatorial District by voting ‘yes’ on March 24, 1983, to a bill increasing the State income tax (HB 4092).”[ ]
Finally, the panel in Schmidt v Genesee Co Clerk found that, taken as a whole, the following language met the clarity standards required by the statute:
“Ex-hibited spend and tax — tax and spend mentality. At a time when governmental units are cutting back on budget expenditures and laying off people the above elected official presented the 1982 budget which was a increase of $400,000.00 over the 1981 budget (December 7, 1981). — increased the budget again by another additional $185,516.00 on August 2, 1982, which can only result in future higher taxes. —Voted, at a special, not regular meeting, to increase operational taxes by one mill without a vote of the people. —increased sewer and water rates above the recommendation of the County. —Voted to spend $63,000.00 to RE-ASSESS ALL TOWNSHIP properties. —Acted to violate the provisions of the Charter Township Act requiring the budget to be presented for public inspection before adoption. —Allowed Township Funds to be invested in unauthorized account and not available for public inspection. —Failed to follow campaign promise to give open, clean, honest, and efficient government, and at all times be available to serve and to administer the Township efficiently and remain within a budget.”[ ]
In contrast to these cases, the panel in Noel v Oakland Co Clerk was presented with language determined to be insufficiently specific: “Incompetence in administering his/her duties as an elected official and in a manner not conducive to the better interests of the residents of the City of South Lyon.”
Unlike the general language rejected by the Noel panel, the language at issue here is “of sufficient clarity to enable the officer whose recall is sought and the electors to identify the course of conduct that is the basis for the recall.” The petition refers to a specific action, “vot[ing] to raise Warren’s potable water rates,” at a specific event, “a Warren City Council Meeting on December 21, 1999,” with a specified outcome, an increase of “potable water rates by 10.97% to [Warren’s] consumers.” While Warren may have more than one potable water rate, accepting appellees’ argument that the petition language failed because it did not specify which rate was voted on would require just the kind of meticulous and detailed statement that has been previously found unnecessary. Further, only one of Warren’s water rates was at issue at the December 21 council meeting and reference to the vote on that date sufficiently identified the challenged conduct. We thus conclude that the circuit court erred in determining that the recall petition was not “of sufficient clarity” under MCL 168.952(3).
We next turn our attention to the question considered moot by the trial court - whether the statute was violated because appellant failed to state each reason for which recall was sought in a single peti tion. “[T]he primary rule of statutory construction is to determine and effectuate the intent of the Legislature through reasonable construction in consideration of the purpose of the statute and the object sought to be accomplished.” If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted. If judicial interpretation is necessary, the Legislature’s intent must be gathered from the language used, and the language must be given its ordinary meaning. In determining legislative intent, statutory language is given the reasonable construction that best accomplishes the purpose of the statute.
As noted above, MCL 168.952(l)(c) requires that a petition for the recall of an officer “[s]tate clearly each reason for the recall.” Appellees argue that the word “each,” as used in the statute, means that a petitioner must include every reason for the recall on a petition. In doing so, they cite the definition of “each” found in Black’s Law Dictionary, which states that “[t]he word ‘any’ is equivalent to ‘each’ [and] ‘[e]ach’ is synonymous with ‘all’ . . . .”
We do not conclude that this generalized definition of “each” can be applied in the context of the statute at issue here. Instead, we conclude that the word “each” is used in the statute to link the phrase “state clearly” with the phrase “reason for the recall.” In other words, to paraphrase the statute, the requirement is that each reason the petitioner includes on the petition shall be stated clearly. This understanding of “each” is consistent with the overall statutory goal of assuring sufficient clarity regarding the reasons for a recall, as discussed above. In contrast, reading “each” as requiring that “every” reason must be presented does not advance any similar statutory goal.
Had the Legislature intended that petitions contain “each and every” or “all” reasons for recall, that language could have easily been used. Similarly, other sections set clear limits on the filing of recall petitions. For example, MCL 168.951 specifies when during an official’s term a petition may be filed, and MCL 168.969 makes provision for election cost reimbursement in repetitive recall situations. A requirement that all a petitioner’s reasons for recall be included in the petition could have been set forth in one of these sections, had that been the legislative intent.
The election commission properly determined that the three petitions at issue here complied with the statute. We reverse the decision of the circuit court to the contrary and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
Although a party to the action below, the Macomb County Election Commission is not a party to this appeal.
See MCL 168.925(3), hereinafter discussed. Appellant did not appeal the commission’s rejection of the other eight petitions filed against each of the three appellees.
Oxendine v Secretary of State, 237 Mich App 346, 348-349; 602 NW2d 847 (1999).
MCL 168.952(1)(c).
MCL 168.952(3).
Meyers v Patchkowski, 216 Mich App 513, 517; 549 NW2d 602 (1996).
In re Wayne Co Election Comm, 150 Mich App 427, 438; 388 NW2d 707 (1986).
Mastin v Oakland Co Elections Comm, 128 Mich App 789, 793; 341 NW2d 797 (1983).
See Molitor v Miller, 102 Mich App 344, 348; 301 NW2d 532 (1980), quoting Eaton v Baker, 334 Mich 521, 525-526; 55 NW2d 77 (1952).
Molitor, n 9 supra at 350.
Id. at 351.
Molitor, n 9 supra at 350.
Id. at 346.
Mastin, n 8 supra at 800.
Id. at 792.
Schmidt v Genesee Co Clerk, 127 Mich App 694; 339 NW2d 526 (1983).
Id. at 698.
Noel v Oakland Co Clerk, 92 Mich App 181; 284 NW2d 761 (1979).
Id. at 183.
MCL 168.952(3).
Molitor, n 9 supra at 348.
Although we do not ordinarily review questions of law that have not been decided by the lower court, we do so here because this is an issue of public significance “which may recur and yet evade review.” See Highland, Recreation Defense Foundation v Natural Resources Comm, 180 Mich App 324, 327; 446 NW2d 895 (1989). We note that the length of an official’s term is oftentimes shorter than the time it may take for this type of issue to reach this Court. See Meyers, n 6 supra at 518-519.
Gross v General Motors Corp, 448 Mich 147, 158-159; 528 NW2d 707 (1995).
Mino v McCarthy, 209 Mch App 302, 304; 530 NW2d 779 (1995).
Id. at 304-305.
Id. at 305.
Black’s Law Dictionary (6th ed), p 507 (citations omitted). | [
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Talbot, J.
In these consolidated cases, defendant Ralston Purina Company appeals by leave granted from orders of the Worker’s Compensation Appellate Commission (wcac), sitting en banc, affirming the decisions of the magistrate to award benefits to plaintiffs. These cases share one common issue of first impression, to wit, whether the amounts defendant paid to plaintiffs pursuant to a severance agreement should be credited against defendant’s worker’s com pensation liability obligation, if any, pursuant to § 354 of the Worker’s Disability Compensation Act (wdca), MCL 418.354, as part of a “wage continuation plan.”
We hold that the amounts should not be credited against defendant’s worker’s compensation obligation. We affirm the wcac’s decisions in Docket Nos. 227266, 227267, and 227268, and reverse its decision in Docket No. 227269.
i
Defendant manufactures breakfast cereal. Each of the four employees in these cases, Rosita Rangel, Mattie Cope, Delores Haddix, and Carolyn Greenman, worked for defendant in various capacities at its Battle Creek operation. In 1996, defendant sought to downsize the company and reduce the size of its workforce and entered into a bargaining process with the union representing its employees.
The agreement resulting from the bargaining process provided that those individuals volunteering to take part in a severance agreement would receive a lump sum of money. The lump sum would not be based on an individual’s weekly hourly wage, but on the weekly “plant average straight time hourly wage of $19.27 per hour” multiplied by the individual’s number of years of employment, with a maximum individual lump-sum payment of $25,000. Participants would also receive a payment of either $1,000 or $2,000 for the cost of financial planning, job retraining, relocation, or career counseling, although the participants could use the money however they saw fit. In exchange for the lump-sum payment, participants expressly agreed to “separate from the payroll” and “relinquish all recall and future employment rights with the Company.” The severance agreement did not contain the phrase “wage continuation.” The severance agreement stated that “[t]he Company agrees to provide Worker’s Compensation benefits according to law.”
The agreement was offered to employees in July 1996 and February 1997, with various time frames for acceptance based on seniority. Individuals who did not accept the severance agreement would be permanently laid off in March 1997. Each of the four plaintiffs in these cases signed the severance agreement, and, in each of the four cases, defendant subsequently asserted that the amounts it paid to plaintiffs pursuant to the severance agreement should be credited against its worker’s compensation liability obligation pursuant to § 354. We briefly state the facts of the cases at bar, keeping in mind that we are directed by constitutional and statutory provisions to treat the wcac’s findings of fact as conclusive, in the absence of fraud. Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 701; 614 NW2d 607 (2000).
DOCKET NO. 227266
Rangel claimed to have suffered a work-related injury and stopped working for defendant in June 1995, although she returned to work for defendant for one day in June 1996. She signed the severance agreement in August 1996 and applied for worker’s compensation benefits in December 1996. The magistrate held that Rangel had suffered a work-related disability and that benefits should be awarded accordingly.
On appeal, a majority of the wcac agreed, holding that “[o]n this record, the link between plaintiff’s ongoing disability and her wage loss was not supplanted or cut off by her acceptance of the severance agreement.” The wcac found that the average weekly wage chosen was not plaintiff’s average weekly wage based on her years of seniority and that the “plan did not in any way compensate her for her disability.” The wcac observed that defendant, “faced with a need to downsize its unionized plant, took away workers’ jobs at a cost.” The wcac concluded that it was “abundantly clear” that the agreement was not a wage continuation plan within the meaning of § 354 and that defendant’s argument for coordination of the benefits should therefore be rejected.
DOCKET NO. 227267
Cope claimed to have suffered a work-related injury to her back in December 1994. She continued to work until October 1995, when she suffered another alleged work-related injury to her shoulder. She eventually had surgery on her shoulder in June 1996. She was returned to light work in December 1996, but no work was available. In January 1997, she applied for worker’s compensation benefits. She signed the severance agreement in March 1997.
The magistrate found that Cope’s acceptance of the severance buyout did not preclude her receipt of worker’s compensation benefits, again rejecting defendant’s argument that severance pay is subject to coordination under § 354. On appeal, the majority of the wcac affirmed, expressly adopting its reasoning in Rangel.
DOCKET NO. 227268
Haddix was receiving worker’s compensation benefits when she signed the severance agreement in July or August 1996. She subsequently filed a petition alleging that defendant had improperly begun to coordinate her benefits after she severed her employment.
The magistrate found that Haddix’ acceptance of the severance buyout did not permit defendant to coordinate her worker’s compensation benefits. The wcac again adopted its reasoning in Rangel and denied defendant’s request for coordination.
DOCKET NO. 227269
Greenman claimed to have suffered a work-related injury to her back in November 1992. She worked one more month, until December 1992, and had surgery on a herniated lumbar disc in February 1993. In May or June 1993, she returned to work, performing in various positions while under lifting restrictions. She worked until March 1997, when she signed the severance agreement. She applied for worker’s compensation benefits in June 1997.
The magistrate held that Greenman’s entrance into the severance agreement with defendant did not affect an award of benefits to her. As in Rangel, Cope, and Haddix, the magistrate concluded that severance pay is not subject to coordination under § 354 and rejected defendant’s arguments that the payments were coordinative because they constituted a wage continuation plan.
Regarding a specific date of disability, the magistrate opined the following:
It is somewhat speculative to assign a date of disability as of plaintiff’s last day of work because the most proximate cause of plaintiff’s lack of wages was due to a layoff. However, I believe that plaintiff was disabled at this time because she was only able to completely perform her work by relying upon her husband or other workers for help. I believe plaintiff’s testimony that she was treating with Dr. Tehrani for her complaints. It is apparent that plaintiff sought treatment from Dr. Koymen on March 19, 1997 (on a referral from Dr. Tehrani) and aggressively pursued treatment thereafter with Dr. Russo. It is clear that Dr. Russo disabled plaintiff from the type of work that she was performing. Therefore, I find that plaintiff has demonstrated a loss of wages attributable to her work-related disability. This is especially so when seen in the context of her ability to compete with able bodied workers in work suitable to her qualifications and training now that she is not working for defendant. Even in plaintiff’s MESC documents, she has indicated that she would only be able to work in light factory-type jobs because of her back problems.
Defendant appealed to the wcac, and the wcac affirmed the magistrate’s award. The WCAC rejected defendant’s argument that plaintiff’s agreement to sever her employment, not her disability, was responsible for her subsequent unemployment and wage loss:
Since the magistrate’s findings concerning the plaintiff’s work at defendant after her injury are supported by the record, we must reject defendant’s request to terminate plaintiff’s worker’s compensation benefits as of the plant downsizing. The magistrate determined that plaintiff returned to work after her iqjuiy and continued to aggravate her work-related injury through her last date worked. She awarded benefits based on a last-day-worked injury date. Regardless of whether plaintiff’s post-injury employment was reasonable, because it exceeded her restrictions and she deteriorated, plaintiff became disabled from this work. Therefore, the link between injury and wage loss is supported on this record.
Further, the wcac held that because plaintiff was disabled from the postinjury work, the question of a new wage-earning capacity was irrelevant. The wcac held that it also “cannot be said that she was avoiding work” where plaintiff “did not voluntarily quit her job” but had her job “taken from her.”
For the reasoning expressed in Rangel, the wcac held that plaintiff’s benefits were not subject to coordination with her severance payment.
n
As stated above, these cases share one common issue, to wit, whether the amounts defendant paid to plaintiffs pursuant to a severance agreement should be credited against defendant’s worker’s compensation liability obligations, if any, pursuant to § 354 of the wdca as part of a “wage continuation plan.”
This issue concerns the proper interpretation and application of § 354. The interpretation of statutes is a question of law, which this Court reviews de novo, according great weight to the administrative interpretation of the statute unless that interpretation is clearly wrong. Mudel, supra at 697, n 3; Hoste v Shanty Creek Management, Inc, 459 Mich 561, 569; 592 NW2d 360 (1999). We agree with the majority of the WCAC that the amounts should not be credited against defendant’s worker’s compensation obligation.
In general, if an employee undergoes a period of wage loss, it does not follow that the employee should receive multiple wage-loss benefits simultaneously; rather, because an employee can experience only one wage loss, the employee should receive only one wage-loss benefit at any one time. Drouillard v Stroh Brewery Co, 449 Mich 293, 299; 536 NW2d 530 (1995). Hence, the Legislature promulgated MCL 418.354 to coordinate benefits received by an employee from an employer. Id. According to one commentator, the coordination of benefits scheme is basically that “[a]n employer’s worker’s compensation liability is reduced for virtually any other benefits the worker receives to the extent that the employer paid for the benefits.” Welch, Worker’s Compensation in Michigan: Law & Practice, § 18.14.
Section 354 provides that an employer’s obligation to pay worker’s compensation benefits will be reduced either (1) when the employee is receiving payments under a self-insurance plan, a wage continuation plan, or a disability insurance policy provided by the employer or (2) when pension or retirement payments pursuant to a plan or program established or maintained by the employer are also received or being received by the employee. MCL 418.354. Here, defendant argues that its worker’s compensation liability in these four cases should be reduced because the employees received payments under a wage continuation plan. We disagree.
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). Here, the intent of the Legislature in promulgating § 354 was to prohibit an employee’s double recovery for one wage loss. Drouillard, supra. In receiving both worker’s compensation benefits and the lump-sum payment from the severance agreement, plain tiffs in this case are not realizing a double recovery for one wage loss. For at least two reasons, the lump-sum payment does not constitute compensation for their wage loss.
First, the lump-sum payment is simply not a “continuation” of the employees’ wages. Defendant argues that the payments made pursuant to the severance agreement are “wage continuation benefits” under § 354 because they were paid to offset wage loss and were based on a “wage” of the plant’s average hourly payment. Similarly, defendant argues that it is not necessary to designate a specific period to which a lump-sum payment is meant to apply if the lump-sum payment in fact represents payment for weeks worked. However, we find it significant that the payments made under the severance agreement were not based on an individual’s weekly hourly wage or on some projected period in which an individual might find a new position.
Second, although we may agree with defendant that whether the payment is deemed “wage continuation,” “employee buyout,” or “severance” is a semantic issue, we find it significant that the express language of the agreements nonetheless provided that plaintiffs received the lump-sum payment in consideration of giving up certain employment rights. Specifically, participants agreed to “separate from the payroll” and “relinquish all recall and future employment rights with the Company.” Thus, it is possible to properly receive worker’s compensation benefits to compensate for a loss of wages resulting from a disability while simultaneously receiving a lump-sum payment from a severance agreement to compensate for the loss of employment rights.
Therefore, we hold that the wcac did not err in its construction of the phrase “wage continuation plan” in MCL 418.354. The payments defendant made to plaintiffs pursuant to the severance agreement could not be credited against its worker’s compensation liability obligation to plaintiffs. We turn next to a discussion of defendant’s worker’s compensation liability.
in
As in any worker’s compensation case, the mere availability of uncoordinated worker’s compensation benefits does not compel the conclusion that a claimant is entitled to benefits. Plaintiffs were still required to show that they were entitled to worker’s compensation benefits.
There are two relevant inquiries in determining if an employee is entitled to worker’s compensation benefits: first, whether an employee has proved that a disability exists and, second, if the employee proves that a disability exists, whether the employee has proved that the disability resulted in a wage loss (i.e., whether the wage loss is “causally linked” to the work-related iryury). Haske v Transport Leasing, Inc, 455 Mich 628, 642, 664-665; 566 NW2d 896 (1997). Here, only the second inquiry is at issue.
a
In Docket Nos. 227266, 227267, and 227268, we agree with the wcac’s decision to affirm the magistrate’s award of benefits to plaintiffs Rangel, Cope, and Haddix. In all three of these cases, the link between each plaintiff’s ongoing disability and her wage loss was not supplanted or cut off by her acceptance of the severance agreement. Rather, Ran-gel, Cope, and Haddix each suffered a wage loss resulting from her disability before entering into the severance agreement. Therefore, we affirm the wcac’s decisions in Docket Nos. 227266, 227267, and 227268.
B
In contrast, in Docket No. 227269, we hold that Greenman is not entitled to worker’s compensation benefits and therefore reverse the wcac’s decision in that case. In so holding, we do not accept defendant’s argument that payments to Greenman are coordinative because they constitute a wage continuation plan; rather, we conclude that Greenman is not entitled to worker’s compensation benefits because her wage loss was not causally linked to her work-related injury.
In this regard, defendant argues that the critical question is why Greenman is no longer working. Defendant opines that Greenman’s unemployment was caused by economic factors (i.e., the layoff), not by Greenman’s physical condition or any change in restrictions by her doctor. Defendant concludes that Greenman’s disability is therefore not compensable with worker’s compensation benefits because Green-man’s current unemployment resulted from her personal, voluntary choice to sign the severance agreement and remove herself from the workforce.
The WCAC, however, held that because plaintiff became disabled from her postinjury employment, this disability resulted in a wage loss. The wcac found that plaintiff was disabled from her postinjury employment because she was only able to perform her work duties with the aid of her husband and other colleagues at work.
This Court is required to accept the wcac’s findings of fact as conclusive absent fraud. See Mudel, supra. However, even accepting the wcac’s finding that Greenman was able to perform her work duties only with the aid of her husband and other colleagues at work, we posit that this finding reveals merely that Greenman had a potential for wage loss in the event that she quit working because she could not perform the duties on her own.
We find it significant that Greenman never quit working because of her disability, i.e., she never quit working because she could not perform the duties on her own. Consequently, there was no wage loss caused by Greenman’s disability that would entitle her to worker’s compensation benefits. To the extent that Greenman has in fact lost wages since March 1997, that wage loss is attributable to her agreement to “separate from the payroll” and “relinquish all recall and future employment rights with the Company,” a bargain for which she received consideration through her acceptance of the lump-sum severance pay.
Affirmed with regard to Docket Nos. 227266, 227267, and 227268; reversed with regard to Docket No. 227269.
K. F. Kelly, P.J., concurred.
Because we hold that Greenman is not entitled to worker’s compensation benefits, we have not addressed the additional argument defendant presented in Docket No. 227269 that Greenman established a new wage-earning capacity in her postinjury work. | [
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Bandstra, C.J.
These two consolidated appeals involve identical factual situations, which are not in dispute. Electrical transmission equipment owned by Detroit Edison Company was affixed to or suspended from utility poles owned by Detroit Edison. The poles also carried wires owned by Comcast Cablevision Company and Ameritech. Trucks owned and operated by Celadon Trucking Company and TNT Canada, Inc., struck those wires and, as a result, caused damage to Detroit Edison’s property. The lines that were struck were placed less than fifteen feet above the roadway, in violation of MCL 247.186.
Two questions of statutory construction of the no-fault act are presented. First, is Detroit Edison subject to MCL 500.3123(3), which provides that “[property protection insurance benefits are not payable for property damage to utility transmission lines, wires, or cables arising from the failure of a municipality, utility company, or cable television company to comply with” the fifteen-foot requirement? Second, if Detroit Edison is subject to this provision, does the provision prevent payment for damage to property beyond the referenced “transmission lines, wires, or cables,” for example, damage to utility poles and transformers?
These are issues of first impression. We conclude, simply by looking at the words of the statute, that the answer to the first question is yes and the answer to the second question is no. Accordingly, we hold that Detroit Edison may seek property protection insurance benefits from the self-insured truck owners here, but only for damages to equipment other than transmission lines, wires, or cables.
As intimated above, our task here is quite simple. We review questions of statutory construction de novo. Our purpose is to discern and give effect to the legislators’ intent.
We begin by examining the plain language of the statute. It is a fundamental principle of statutory construction that the words used by the Legislature shall be given their comr mon and ordinary meaning, and only where the statutory language is ambiguous may we look outside the statute to ascertain the Legislature’s intent.
In other words, “[i]f the language of a statute is clear and unambiguous, . . . judicial construction is not permitted.” In the absence of ambiguity, “the statute speaks for itself and there is no need for judicial con struction; the proper role of a court is to apply the terms of the statute to the circumstances in a particular case.”
Applying these principles to the present case, resolution of the issues presented can best be accomplished by answering a couple of factual questions. First, did the property damage about which Detroit Edison complains “aris[e] from the failure of a . . . utility company, or cable television company to comply with” the fifteen-foot requirement? There is no factual dispute here; the accidents occurred because Comcast Cablevision and Ameritech, cable television or utility companies, hung their wires too low. Accordingly, subsection 3123(3) applies to this case and limits the property protection insurance benefits that would otherwise be payable to Detroit Edison under the no-fault act. Second, did Detroit Edison suffer damage to any property other than the “transmission lines, wires, or cables” that are subject to the subsection 3123(3) exclusion of coverage? Again, without dispute, the record indicates that damage was suffered to other equipment, including poles and transformers. Accordingly, subsection 3123(3) does not apply to preclude Detroit Edison from recovering benefits for damages to that other property, otherwise payable under the no-fault act.
These conclusions seem inevitable in light of the language of the statute and the clear directives we must follow regarding application of that language to the facts at hand. Nonetheless, both sides of this dispute argue that, for various reasons, we should come to a conclusion that better suits their purposes. We briefly review and reject these arguments.
Detroit Edison argues that subsection 3123(3) should not apply in this case to limit its benefits at all. Detroit Edison argues that this “unfortunate result” is clearly inconsistent with the purpose and policy of the no-fault act because “the intent of the [L]egislature was surely not to penalize innocent utilities who do comply with the statutory minimum height requirements with respect to their lines.” Again, even if our goal is to implement the intent of the Legislature, we do this simply by applying the terms of the statute to the facts at hand when statutory language is unambiguous, as it is here. In other words, we need look no further for the “intent” of the Legislature; if the intent was somehow found to be different than the unambiguous language of the statute, the language would still control.
Further, even if some analysis of legislative intent was permissible here, we are unconvinced by Detroit Edison’s arguments. Detroit Edison relies on a legislative analysis of the bill that ultimately became subsection 1323(3). From that analysis, Detroit Edison emphasizes language stating that “[t]he bill would amend the no-fault insurance law to exclude payment of property protection benefits for damage to utility lines when those lines are not maintained at the legally prescribed 15 feet above the road.” On the basis of this language, Detroit Edison argues that, because it was not responsible for “those lines” that caused the accident here, its rights to seek property protection benefits are not affected by subsection 1323(3).
We recognize that, although legislative bill analyses are not official statements of legislative intent, both our Court and the Supreme Court have considered them to be “of probative value.” While that may be the case in some situations, it is not true in a case, like that presented here, where the statutory language is unambiguous. “Where the statutory text is unambiguous . . . , that ends the matter[;] ‘we do not resort to legislative history to cloud a statutory text that is clear.’ ”
Further, we note that, even if use of legislative history was appropriate here, the legislative history contradicts itself. While Detroit Edison relies on the portion of the bill analysis quoted above, Celadon Trucking points to the portion of that same analysis that states that “[w]hen a motor vehicle strikes utility lines, wires, or cables that are hanging illegally close to the road surface, the vehicle’s owner or operator’s insurance company pays for the damage under the property protection insurance benefits of the insurance policy. Some persons think that this is unfair . . . .” Accordingly, Celadon Trucking argues that “the Legislature intended that the drivers of trucks not be held liable if an accident is caused by a low hanging wire,” without regard to which party was responsible for placement of that wire.
To sum up, Detroit Edison points to language in the bill analysis suggesting that the legislative intent was to penalize parties responsible for hanging wires too low and, accordingly, subsection 1323(3) should be interpreted as providing relief to drivers only for damages to property owned by those guilty parties. Celadon Trucking stresses bill analysis language suggesting that the legislative intent was to protect the motoring public more generally, meaning that drivers should never have to pay for any damages arising out of accidents involving low-hanging wires. Fortunately, we need not resolve this inconsistency in the legislative history; the statute is clear and we must apply it against the argument advanced by Detroit Edison.
On the other hand, we also reject arguments advanced by Celadon Trucking and TNT Canada regarding the extent of the protection afforded them by subsection 3123(3). The statutory language itself protects them only with respect to damages to “transmission lines, wires, or cables.” To conclude that the statute encompasses damages beyond those specifically mentioned would violate the well-recognized canon of statutory construction that “[t]he express mention of one thing in a statute implies the exclusion of other similar things.” In other words, because the statute mentions only “lines, wires, or cables,” it does not apply to other similar Detroit Edison equipment (poles, transformers, and so forth) that was damaged.
To avoid these results, Detroit Edison, Celadon Trucking, and TNT Canada all argue that applying the statute in this fashion produces an absurd, illogical, and unjust result. We need not consider whether it would ever be appropriate to ignore clear statutory language for these reasons, because here we do not conclude that application of the clear language leads to that kind of result. As we understand the statute, it provides some protection to drivers who cause property damage when they strike utility lines that are placed too low above the roadway. That protection is afforded by the statute even against those who were not at fault for placing the lines too low. On the other hand, the protection afforded is not complete. It applies only to certain property that might be damaged, as specified by the statute.
Clearly, Detroit Edison does not like that result; it feels it should be entitled to recover payment for all its property damage, because it was not responsible for the offending lines at issue here. Celadon Trucking and TNT Canada similarly do not like the result; they feel that they should be absolved of responsibility for any property damage, because they hit lines that were placed too low. The statute satisfies neither side and can, thus, probably best be understood as a compromise of competing interests, something that occurs regularly in the legislative arena. As with most compromises, it can be seen as unfairly expansive or unduly restrictive, depending on one’s viewpoint. That certainly does not make the statute absurd, unjust, or illogical. If it did, countless statutory compromises would similarly need to be ignored by the courts. That would itself be an absurd, unjust, and illogical result, and one that is contrary to our constitutional division of powers. We reject the parties’ arguments on this ground.
The summary disposition orders are reversed. These cases are remanded to the lower courts for further proceedings consistent with this opinion. We do not retain jurisdiction.
Plaintiff-appellee Dedicated Systems, Ltd., is a division of TNT Canada, Inc.
MCL 500.3101 et seq. Both TNT Canada and Celadon Trucking are self-insured under the no-fault act.
Procedurally, these questions arise in different contexts. Detroit Edison brought suit against Celadon Trucking, was denied benefits, and appealed that ruling. TNT Canada paid damages to Detroit Edison but then successfully brought an action to secure a court order requiring repayment from Detroit Edison, an order that Detroit Edison also appealed. In both cases the orders entered against Detroit Edison were granted on summary disposition, on the basis of subsection 3123(3).
Haliw v Sterling Heights, 464 Mich 297, 302; 627 NW2d 581 (2001).
Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 159; 615 NW2d 702 (2000).
Id. Justice Scalia has questioned whether the appropriate analysis of a statute is one that seeks to discern the Legislature’s intent rather than one that seeks to discern the reasonable meaning of the language of the statute, without regard to any further analysis of what was intended by those enacting it.
The evidence suggests that, despite frequent statements to the contrary, we do not really look for subjective legislative intent. We look for a sort of “objectified” intent — the intent that a reasonable person would gather from the text of the law .... And the reason we adopt this objectified version is, I think, that it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of the law determined by what the law giver meant, rather than by what the law giver promulgated. [Scalia, A Matter of Interpretation: Federal Courts and the Law (New Jersey: Princeton University Press, 1997), p 17.]
In this case, as noted below, there is nothing to indicate that the Legislature intended anything other than what the meaning of the enacted words say. We note Justice Scalia’s concerns because we similarly question whether the appropriate judicial role should be interpreting the language of enacted statutes rather than trying to sort through the vagaries surrounding the “legislative intent” behind the promulgated language.
Herald Co v Bay City, 463 Mich 111, 117-118; 614 NW2d 873 (2000).
Massey v Mandell, 462 Mich 375, 380; 614 NW2d 70 (2000).
The indefinite article “a,” used in the statute here instead of “the,” has an “indefinite or generalizing effect.” Robinson v Detroit, 462 Mich 439, 461; 613 NW2d 307 (2000), quoting Hagerman v Gencorp Automotive, 457 Mich 720, 753; 579 NW2d 347 (1998) (Taylor, J, dissenting), quoting Random House Webster’s College Dictionary (1991), p 1382. In other words, the statute properly applies when lines placed too low by “any” utility or cable television company cause an accident.
Having concluded that the statute applies here by its terms, we need not consider whether it should apply for a separate reason, because Detroit Edison allegedly controlled the poles on which the offending wires were placed.
See n 6, supra.
See House Legislative Analysis, SB 447, February 27, 1978.
Id.
See Seaton v Wayne Co Prosecutor (On Second Remand), 233 Mich App 313, 321, n 3; 590 NW2d 598 (1998), citing North Ottawa Community Hosp v Kieft, 457 Mich 394, 406, n 12; 578 NW2d 267 (1998), Nemeth v Abonmarche Development, Inc, 457 Mich 16, 27-29; 576 NW2d 641 (1998), People v Grant, 455 Mich 221, 239-241; 565 NW2d 389 (1997), and Travis v Dreis & Krump Mfg Co, 453 Mich 149, 164-166; 551 NW2d 132 (1996) (opinion by Boyle, J.).
We note that the use of legislative histories has been criticized as “always suspicious.” Hagerman, supra at 761, n 1 (Taylor, J., dissenting). Justice Scalia has described the belief that any piece of legislative history somehow indicates the intent of a majority of legislators to be “the greatest surviving legal fiction.” Id., quoting Marposs Corp v City of Troy, 204 Mich App 156, 167-168, n 2; 514 NW2d 202 (1994) (Taylor, P.J., dissenting), majority opinion overruled by super majority panel in Bendix Safety Restraints Group, Allied Signal, Inc v City of Troy, 215 Mich App 289; 544 NW2d 481 (1996), quoting Address by Antonin Scalia before the Attorney General’s Conference on Economic Liberties in Washington, D.C. (June 14, 1986). We question whether the use of legislative histories is appropriate in analyzing any statute, even one which, unlike the statute at issue here, presents some ambiguity. See, generally, Scalia, n 6 supra at pp 29-37, see also In re Complaint of MCTA, 241 Mich App 344, 371-374; 615 NW2d 255 (2000).
Chmielewski v Xermac, Inc, 457 Mich 593, 608; 580 NW2d 817 (1998), quoting Gilday v Mecosta Co, 124 F3d 760, 767 (CA 6, 1997), quoting Ratzlaf v United States, 510 US 135, 147-148; 114 S Ct 655; 126 L Ed 2d 615 (1994).
House Legislative Analysis, SB 447, supra.
MCL 500.3123(3).
In re MCI Telecommunications Complaint, 460 Mich 396, 415; 596 NW2d 164 (1999).
We note that there are precedents suggesting that a literal construction of a statute should not be used if it would produce absurd, illogical, or unjust results. See, e.g., Kent Co Aeronautics Bd v Dep’t of State Police, 239 Mich App 563, 573; 609 NW2d 593 (2000). Other precedents state that such an inteipretation should be avoided “whenever possible.” See, e.g., In re MCTA Complaint, 239 Mich App 686, 692; 609 NW2d 854 (2000). This “whenever possible” caveat might suggest that even an absurd, illogical, or unjust result might be required, if that is clearly mandated by a literal construction of statutory language. | [
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Gage, J.
In this child custody dispute, defendant appeals as of right a trial court order awarding John and Robin Yonkers physical custody of the minor child and granting defendant and the Yonkerses joint legal custody of the minor. The trial court concluded that defendant, the biological mother of the minor, failed to make the showing necessary to overcome the statutory presumption favoring the minor’s continued placement in the established custody of the Yonkerses, who are defendant’s parents and the minor’s maternal grandparents. We reverse and remand.
i
Plaintiff and defendant married on July 1, 1995, and resided in Cass County. On May 2, 1996, defendant gave birth to a daughter, the minor involved in this case. The marriage did not endure, however. By the time plaintiff filed for divorce on April 30, 1997, defendant had left the marital home and moved with the child to the grandparents’ Elkhart, Indiana, home. Defendant’s mother cared for the child while defendant worked full time. Both plaintiff and defendant sought physical custody of the child.
On August 29, 1997, the trial court entered a stipulated order for the child’s temporary custody and support. With respect to custody, the order provided that the parties would share legal custody of the child, but that defendant “shall have temporary physical custody of the minor . . . until they [sic] reach the age of eighteen years, or graduates from high school, whichever occurs last.” Plaintiff would enjoy “reasonable and liberal” parenting time and had to make $60 weekly child support payments.
A divorce judgment, dated November 21, 1997, was entered on December 1, 1997. The judgment incorporated the custody, parenting time, and child support provisions contained in the August 29 order.
On November 26, 1997, pursuant to the parties’ stipulation, the trial court entered an order modifying the divorce judgment. Relevant to this appeal, the November 26 order stated as follows regarding the child’s physical custody:
Physical custody of the minor child shall be with the maternal grandparents, John and robyn [sic] yonkers, who [sic] the minor child, along with the Defendant, have been residing with since the commencement of this action. Mr. and Mrs. Yonkers shall retain physical custody of the minor child until such time as both Defendant and Mr. and Mrs. Yonkers have notified the Cass County Friend of the Court, in writing, that Defendant is prepared to assume the physical custody of the minor child. Upon receipt of said notice by the Cass County Friend of the Court, physical custody of the minor child shall revert back to Defendant and said child will remain with Defendant until she reaches the age of eighteen (18) years or graduates from high school, whichever occurs last, or until further order of this Court.
The November 26 order granted plaintiff and defendant “reasonable and liberal” parenting time. Plaintiff and defendant and their attorneys signed the modification order, but the grandparents did not, and the order did not denote the grandparents as parties to the action. The grandparents never formally moved to intervene in the action.
On February 28, 2000, defendant moved for entry of an order that the grandparents show cause why they had thwarted defendant’s reasonable visitation with the child. The motion asserted that defendant’s mother permitted defendant only supervised visitations. On March 2, 2000, defendant filed a “petition to reinstate original divorce judgment dated 21 Novem ber 1997,” thus attempting to eliminate the November 26, 1997, modification order’s grant of the child’s temporary physical custody to the grandparents. In an affidavit accompanying her petition, defendant stated that she had signed the stipulated order modifying the divorce judgment “[a]t my mother’s insistence ... so that [the child] would be covered under my parents’ insurance policy,” and that “[m]y mother made the arrangements directly with my attorney.” According to defendant’s affidavit, the grandparents never allowed defendant, who had remarried and had another child, an unsupervised visit with the child. Defendant averred that she loved her child and felt prepared to assume the child’s physical custody, but that the grandparents refused to permit the child’s removal from their custody.
On March 10, 2000, the grandparents responded to defendant’s petition. The grandparents asserted that for over two years the child had resided with them in an established custodial environment and that the child’s best interests were served by her current placement. The grandparents’ response also mentioned that defendant had not visited overnight with the child since September 1997 and that “the present husband of the Defendant ... is a known child molester.” The grandparents also accused two sons of plaintiff’s girlfriend of molesting the child while the child visited plaintiff. The grandparents suggested that the trial court order psychological evaluations of plaintiff and defendant and their current significant others, as well as the grandparents themselves; otherwise investigate the current circumstances relevant to the issue of the child’s custody; and restrict plaintiff and defendant to supervised visitations with the child.
On March 23, 2000, pursuant to plaintiff’s and defendant’s stipulation, the trial court ordered the restoration of the child’s physical custody with defendant, that plaintiff and defendant share legal custody of the child, and that plaintiff have liberal, reasonable visitation with the child. On the same day, the trial court entered an “Order reinstating original divorce judgment dated 21 November 1997.”
Shortly thereafter, however, on April 3, 2000, the trial court ordered that the friend of the court perform a custody investigation and make a recommendation, that a hearing regarding custody and visitation be scheduled, and that pending the investigation plaintiff and defendant have only supervised visitation with the child. Pursuant to stipulation by plaintiff, defendant, and the grandparents, the trial court on April 26, 2000, ordered that plaintiff and defendant could visit the child on one day every other weekend, but that the child have no contact with either plaintiff’s girlfriend’s children or defendant’s husband.
At the July 26, 2000, hearing before a referee, defendant testified that during her divorce proceedings from plaintiff she and the child moved in with the grandparents, intending to remain there only until defendant located alternate suitable housing. By approximately August or September 1997, defendant’s relationship with Oscar Tapia, her current husband, had become serious. Defendant obtained employment in Plymouth, Indiana, where Tapia lived, and moved in with Tapia at his parents’ home. Defendant explained that although she had prepared to bring the child to her new. residence for a weekend visitation, the grandparents suggested that the child should remain with them because defendant had just begun her relationship with Tapia and the child should not so soon be placed in another new environment. Defendant agreed to leave the child with the grandparents.
Defendant indicated that she subsequently acceded to the grandparents’ repeated suggestions that she sign the stipulation entered on November 26, 1997, granting the grandparents temporary physical custody of the child, to make the child eligible for the grandfather’s medical insurance coverage. According to defendant, the grandparents and her divorce attorney, whom the grandparents had retained for defendant, prepared the stipulation.
Defendant estimated that within the next two to three months, she had obtained insurance through her employer and informed the grandparents that she felt prepared to assume physical custody of the child. The grandparents informed defendant, however, that they would not permit her to have custody of the child because the grandmother had spoken with Tapia’s former spouse regarding allegations of child sexual abuse against Tapia, and the grandparents viewed Tapia as a child molester. Documentation from an Indiana court reflected that Tapia had been charged with two counts of child molestation and one count of battery involving a child of his former wife. Pursuant to a plea bargain, Tapia had pleaded guilty of battery, and the child molestation charges were dismissed. Tapia denied that he had ever engaged in sexual contact with a child, but admitted that he had spanked his former wife’s unruly daughter, in the former wife’s presence and as the former wife herself had done. Tapia averred that his former wife fabricated the molestation charges during their divorce proceedings and explained that on his counsel’s advice he opted to avoid a trial on the charges because he already owed his attorney approximately $7,000 and had no money with which to go to trial. Tapia opined that to some extent the grandparents’ disapproval of him was race related, but indicated his understanding of the grandparents’ concern owing to the molestation allegations. Other than the court documentation of the charges against him, the record contained no specific evidence of any sexual abuse by Tapia.
Because of their concerns regarding Tapia, the grandparents, contrary to the court order providing for liberal and reasonable parenting time, advised defendant that she could visit the child only in the grandparents’ home and under their supervision. The next court order addressing visitation, filed April 26, 2000, stated that defendant would have visitation from 9:00 A.M. until 7:00 P.M. every other Sunday, but that the child could have no contact with Tapia. Although the April 26 order contained no further restrictions, the grandparents acknowledged that beginning in May 2000 they nonetheless refused to permit defendant to visit the child outside their home because they suspected that defendant had allowed Tapia to have contact with the child and they were informed that a warrant existed for defendant’s arrest and did not want the child in defendant’s presence outside their home because they feared that the child might witness defendant’s arrest. For the same reasons, the grandparents subsequently advised defendant when she arrived for a scheduled 9:00 A.M. visitation to leave and return at approximately 1:00 P.M., after the grandparents and the child would have returned from church.
Although the grandparents criticized defendant’s visitation with the minor as inconsistent, the record does not specifically reflect more than a few missed appointments. Defendant testified that during the first year the child resided with the grandparents she visited the child on at least three occasions each month at the grandparents’ home, that during the second year she visited the child at least two to three times each month, and that during the third year she had missed only three Sunday visits since March 2000. Defendant and the grandparents agreed that one visit did not occur because defendant encountered vehicle problems, another failed to happen because Jaylund, defendant’s son with Tapia, had been hospitalized, and another was missed when defendant took Tapia’s parents on a trip to a Texas church. The fourth time no visit happened had occurred when defendant arrived timely at 9:00 A.M., but the grandfather suggested that defendant leave and return at 1:00 P.M., when the grandparents and the child would have returned home from church.
Defendant proclaimed that, although she had not provided the grandparents money or clothes for the child while the child resided with the grandparents, she loved the child and her parents and wanted to provide the child a home. Tapia and two friends of defendant all characterized defendant as a loving mother. The grandparents denied witnessing defendant engage in any abusive or neglectful treatment of the child, and none of the other witnesses had reason to believe that defendant lacked the ability to provide the child proper care. The grandparents explained, however, that they did not wish to place the child in defendant’s care because of the following concerns: defendant’s irregular visitation; defendant had not maintained a stable lifestyle, as reflected by the facts that defendant moved several times since her divorce and did not maintain steady employment; and defendant’s relationship with Tapia, which the grandparents viewed as their primary source of concern. The grandparents hoped the court would award them permanent physical custody of the child.
A psychotherapist testified concerning her investigation of the parties and recommendation regarding the child’s custody. The therapist interviewed defendant, the child, and the grandparents. The therapist did not, however, speak with Tapia, his former spouse, or the alleged victim. Although the therapist uncovered no indication that defendant ever harmed or threatened to harm the child, she recommended that the child remain in her established custodial environment with the grandparents in light of the charges against Tapia, defendant’s frequent relocations, defendant’s inconsistent visitation, and unspecified “additional concerns that were initiated through an interview with the minor child.”
On August 11, 2000, the referee issued his report and recommendation. The referee initially noted that because defendant challenged the propriety of the child’s custody in her established custodial environment with the grandparents, defendant had the burden of proving by a preponderance of the evidence that a change of custody would serve the child’s best interests. After reviewing the statutory factors, the referee recommended that custody of the child remain with the grandparents and that defendant have the right to reasonable parenting time. The referee noted that he did not believe that Tapia posed a threat to the child.
Pursuant to MCR 3.215(E)(3), defendant filed objections to the referee’s recommendation. Defendant argued that the referee incorrectly, and in violation of her constitutional due process rights, placed on her the burden of proving that she should have custody of her child. Defendant sought a circuit court review hearing de novo, which occurred on October 25, 2000, although no transcript appears in the record. Plaintiff, defendant, and the grandparents stipulated that a transcript of the July 26, 2000, hearing before the referee would constitute the evidentiary record and were permitted to file briefs stating their positions. Plaintiff agreed with defendant that she should have physical custody of their child. In addition to raising their constitutional argument, plaintiff and defendant claimed that absent any indication of defendant’s parental unfitness the referee should have placed significant weight in both their original intent that the child remain with the grandparents temporarily and their desire as the child’s parents that she return to defendant’s custody. Plaintiff and defendant also challenged the grandparents’ standing to claim custody. The grandparents countered that the referee’s recommendation served the child’s best interests.
On December 29, 2000, the trial court issued its opinion. The court agreed with the referee that because an established custodial environment existed with the grandparents, defendant had to prove by a preponderance of evidence that the child’s placement with her was in the child’s best interests. The court further agreed with the referee that the grandparents prevailed with regard to best interests elements a, b, c, and d, and that neither the grandparents nor defendant prevailed with respect to elements e, f, g, i, and k. Unlike the referee, the court opined that element h, the child’s home, school, and community record, favored neither party because the child had not entered school. The court also disagreed with the referee that element j, willingness of the parties to facilitate a continuing relationship with the child, favored defendant, instead finding that no one prevailed because the grandparents justifiably restricted defendant’s visitation with the child when they discovered the child molestation charges against Tapia. While the referee had noted no other relevant factors pursuant to element 1, the court noted several weighing against defendant: defendant’s “sporadic history of visitation . . . indicating] a lack of . . . emotional commitment on the part of the mother”; the grandmother’s hearing testimony that in December 1999 defendant left Tapia and Jaylund reflected some instability in defendant’s marriage; and that defendant “allowed her parents to handle the responsibility of support.” The court concluded that defendant failed to satisfy her burden of proof that the child should be removed from the grandparents’ custody. On January 29, 2001, the court entered an order denying defendant’s motion for change of custody and providing defendant reasonable visitation as long as Tapia had no contact with the child.
II
Defendant first contends that the trial court’s placement on her of the burden of proving that a change of the child’s custody would serve the child’s best inter ests infringed on defendant’s fundamental liberty interest in raising her child. When faced with a legal challenge to a trial court’s decision regarding a child custody dispute, we must determine whether the trial court committed “clear legal error on a major issue.” MCL 722.28. Although the trial court did not address the constitutional issue, we nonetheless consider defendant’s argument because it was raised below and involves a significant constitutional issue for which all necessary facts are before this Court. In re PAP, 247 Mich App 148; 640 NW2d 880 (2001).
A
The trial court required that defendant show that a change in custody would be in the child’s best interests, citing Rummelt v Anderson, 196 Mich App 491; 493 NW2d 434 (1992). In Rummelt, the petitioner sought custody of his daughter, who was being raised by the respondent, a maternal aunt. Id. at 493. This Court affirmed the trial court’s order that the child remain in the maternal aunt’s custody. After finding that the trial court correctly determined that the aunt had provided the child an established custodial environment, id. at 495-496, this Court considered the father’s claim that the trial court erroneously required that he prove that the child’s removal from the established custodial environment served the child’s best interests. This Court observed that prior panels of the Court had reached different results in cases involving noncustodial parents who sought to obtain custody of their children from established custodial environments with third parties. The Court noted that one line of cases decided that the presumption favoring the child’s natural parent, MCL 722.25(1), weighed more heavily than the established custodial environment presumption favoring the third party, MCL 722.27(l)(c), and therefore required that the third party bore the burden of rebutting by clear and convincing evidence the statutory presumption favoring the child’s natural parents. Rummelt, supra at 496. This Court in Rummelt, however, declined to follow this line of cases, instead opting to endorse a different resolution to the apparent tension between subsections 5(1) and 7(1)(c). The Court explained that “[f]or the reasons stated []in” Glover v McRipley, 159 Mich App 130, 144-148; 406 NW2d 246 (1987), “the existence of the two presumptions reduces the burden of persuasion from clear and convincing to a pre ponderan.ee of the evidence, and that the burden of persuasion rests with the parent challenging an established custodial environment in the home of a third party.”
This Court in Glover had reasoned that the clear and convincing evidence standards within subsections 5(1) and 7(l)(c) could not literally apply against each other because “[s]uch a conclusion would only lead trial courts into a logical paradox.” Glover, supra at 146. The Court therefore believed that “it is obvious that each party bears the burden of proof vis-a-vis his own presumption” by a preponderance of the evidence. Id. at 147. The Court opined, however, that the ultimate burden of persuasion rested with the parent challenging an established custodial environment with a third party because “placing the burden of persuasion on the parent... is better calculated to elicit the quality of testimony and evidence required by a trial court in its determination of the best interest of the child,” and because “as indicated by the expert testimony in this and other cases, the importance of residence with a biological parent pales beside the importance of stability and continuity in the life of a child.” Id. at 147. The Court qualified that the trial court remained free to accord the parental relationship more weight if the court found “more than a mere biological relationship.” Id. This Court has continued to apply the Rummelt panel’s solution, premised on the Glover panel’s logic, to cases involving noncustodial natural parents seeking custody from a third party who has provided an established custodial environment. See LaFleche v Ybarra, 242 Mich App 692, 696-698; 619 NW2d 738 (2000).
B
The United States Supreme Court recently decided a visitation dispute between a child’s natural mother and the paternal grandparents that we find significantly diminishes the prevailing line of Michigan cases resolving custody disputes between noncustodial natural parents and third parties who have provided established custodial environments. In Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 L Ed 2d 49 (2000), the petitioners, paternal grandparents, sought to obtain more frequent visitation with the involved child than the respondent, the child’s mother, wished to offer the grandparents. Id. at 60-61 (opinion by O’Connor, J.). The Washington Superior Court that initially entertained the grandparents’ request concluded that, pursuant to the governing Washington statute permitting “ ‘[a]ny person’ to petition a superior court for visitation rights ‘at any time,’ and authoriz[ing] that court to grant such visitation rights whenever ‘visitation may serve the best interest of the child,’ ” id. at 60, the grandparents’ visitation with the child at least one weekend a month served the child’s best interests. Id. at 61-62. When the case progressed to the Washington Supreme Court, that court declared the visitation statute at issue unconstitutional because it permitted the state to infringe the parents’ right to raise their children without any threshold showing of harm and permitted judicial overriding of parental decisions regarding visitation merely on a court’s finding that a different decision better would serve the child’s best interests. Id. at 63.
The United States Supreme Court affirmed the Washington Supreme Court’s reversal of the trial court’s order granting the grandparents visitation that exceeded what the child’s mother had offered. The Supreme Court initially stated that “[i]n light of [its] extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Id. at 66 (opinion by O’Connor, J.). The Court characterized the Washington visitation statute as “breathtakingly broad” in that it gave a parent’s decision regarding appropriate visitation for his child no deference, instead permitting “a court [to] disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interests.” Id. at 67. The Court concluded that the Washington visitation statute, as applied in that case, violated the mother’s fundamental right to make decisions regarding her child’s upbringing, explaining as follows:
First, the [grandparents] did not allege, and no court has found, that [the mother] was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children. As this Court explained in Parham [v J R, 442 US 584; 99 S Ct 2493; 61 L Ed 2d 101 (1979)]:
“[0]ur constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare. [their children] for additional obligations. . . . The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.” 442 US at 602; 99 S Ct 2493 (alteration in original) (internal quotation marks and citations omitted).
Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children. . . .
The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to [the mother’s] determination of her daughters’ best interests. . . .
The judge’s comments suggest that he presumed the grandparents’ request should be granted unless the children would be “impact[ed] adversely.” In effect, the judge placed on [the mother], the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters. . . .
The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child .... In that respect, the court’s presumption failed to provide any protection for [the mother’s] fundamental constitutional right to make decisions concerning the rearing of her own daughters. ... In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination. [Troxel, supra at 68-70 (opinion by O’Connor, J.) (emphasis in original).]
Accordingly, because the trial court announced few findings supporting its decision, presumed that the grandparents’ visitation would serve the child’s best interests, and accorded little weight to the fact that before the suit the mother voluntarily provided the grandparents meaningful visitation with the child, the Supreme Court held that the trial court’s order improperly infringed the mother’s fundamental due process right as a parent to make childrearing decisions. Id. at 72-73.
c
In light of the recent Supreme Court decision emphasizing the fundamental constitutional right of parents to raise their children and make decisions regarding visitation, and necessarily custody, we find the instant trial court’s determination of the child’s custody, premised on Rummelt, supra, constitutionally infirm. Even though the trial court did not view defendant as an abusive or neglectful parent or a threat to the child, the court nonetheless in its analysis failed to accord defendant’s fundamental interest in raising the child any special weight. According to the Rummelt panel’s analysis of the interplay between the natural parent presumption, subsection 5(1), and the established custodial environment factor, subsec tion 7(1)(c), and as the Supreme Court in Troxel found constitutionally offensive, id. at 68-70, the trial court placed on defendant the ultimate burden of persuading the court that the child belonged in the custody of her natural mother. Furthermore, the trial court’s application of the simple preponderance of the evidence standard set forth in Rummelt for reaching a decision regarding the child’s best interests plainly and unconstitutionally invited the court to enforce its own judicial opinion regarding what custody situation best would serve the child’s interests, irrespective of the natural mother’s wishes. The Supreme Court in Troxel explicitly found unacceptable such enabling of a court, in a case involving “nothing more than a simple disagreement between the . . . Court and [the parent] concerning [t]he[] children’s best interests,” to “make childrearing decisions simply because [the] state judge believes a ‘better’ decision could be made.” Troxel, supra at 72, 73.
“[I]f a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.” Troxel, supra at 70. We reject the Rummelt solution in this case because that Court’s analysis of the interplay between subsections 5(1) and 7(1)(c) accords the fit parent’s custody determination absolutely no deference whatsoever. To the contrary, the Rummelt solution unconstitutionally places on the natural parent the ultimate burden of persuasion that an award of custody to the parent would serve the child’s best interests. Rummelt, LaFleche, and Glover, the case on which the Rummelt Court premised its analysis, did not acknowledge or address any constitutional implications when applying both subsection 5(1) and 7(1)(c). Because Rum- melt did not consider the United States Supreme Court’s recent reminder of the importance of the fundamental parental liberty interest, we note that we are not bound to follow Rummelt. MCR 7.215(1)(1).
We therefore conclude that in this case involving a fit natural mother seeking a change of her child’s custody from an established custodial environment with third persons, the trial court’s application of the test set forth in Rummelt, for resolving cases involving tension between the natural parent and established custodial environment presumptions, constituted clear legal error because it violated defendant’s fundamental liberty interest in raising her children. Troxel, supra at 72-73. In light of the fact that the evidence presented at the hearing did not weigh strongly against an award of custody to defendant, the trial court’s unconstitutional application of an incorrect burden of proof cannot be considered harmless. Consequently, we must remand this case for the trial court’s reconsideration. The trial court on remand must give defendant’s fundamental liberty interest in childrearing appropriate consideration and should consider up-to-date information. Fletcher v Fletcher, 447 Mich 871, 889 (Brickley, J.), 900 (Griffin, J.); 526 NW2d 889 (1994).
D
Because we must reverse the trial court’s unconstitutional custody determination, we also must provide some guidance for the court on remand when attempting to reapply subsections 5(1) and 7(l)(c). We note that several panels of this Court, although not speaking in constitutional terms, addressed the concurrent application of subsections 5(1) and 7(l)(c) in a manner that we find more properly deferential to the fundamental nature of the parent’s interest in childrearing when determining whether to grant the natural parent custody, thus changing the child’s established custodial environment with a third party.
This Court has struggled with the interaction between these two presumptions on many occasions, most recently in Glover v McRipley, 159 Mich App 130; 406 NW2d 246 (1987). But see also Deel v Deel [113 Mich App 556; 317 NW2d 685 (1982)]; Stevens v Stevens, 86 Mich App 258; 273 NW2d 490 (1978); Siwik v Siwik, 89 Mich App 603; 280 NW2d 610 (1979); Bohr v Bohr, 60 Mich App 354; 230 NW2d 430 (1975). Having examined these cases, we agree with the Deel panel’s recognition that the two presumptions are not to be considered equally.
“[T]he language used in the statutes suggests] that the presumptions are not, in fact, of equal weight. While the established custodial environment is to be favored unless there is clear and convincing evidence that a change is in the best interests of the child, it is presumed that the best interests of the child are served by granting custody to the natural parent.” [Deel, supra, p 561.]
We also agree with the following language cited favorably in both Deel and Bahr, supra:
“[The presumption that the best interests of the child would be served by granting custody to the natural parent] remains a presumption of the strongest order and it must be seriously considered and heavily weighted in favor of the parent. Nevertheless, if the ‘clear and convincing’ evidence establishes that the best interest of the child is served by awarding custody to the third party, the presumption is rebutted.” [Deel, supra, pp 561-562.]
* * *
While it is true that in any child custody dispute the overriding concern is for the best interests of the child, it is also presumed that the best interests of a child are served by placing custody with the natural parent, unless otherwise shown by clear and convincing evidence. MCL 722.25 .... We agree that a showing that a parent is unfit is not required to overcome this presumption. Stevens v Stevens, supra, and Bahr v Bahr, supra. Nonetheless, we construe the “clear and convincing evidence” standard to be a substantive standard rather than just an evidentiary standard. . . . Consequently, in order to overcome the natural parent presumption, the trial judge was required to find that, when all of the factors in MCL 722.23. . . were collectively considered, defendant [the third party providing an established custodial environment] clearly and convincingly established that the best interests of the children required maintaining custody with defendant. It is not sufficient that defendant may have established by clear and convincing evidence that a marginal, though distinct, benefit would be gained if the children were maintained with him. [Henrikson v Gable, 162 Mich App 248, 252-253; 412 NW2d 702 (1987) (emphasis added).]
See also Deel, supra at 562 (explaining that “[Recognition of both presumptions does not . . . remove the third party’s burden to show that custody in his or her favor is in the child’s best interests”); Stevens, supra at 267 (“The presumption in favor of the natural parent is rebutted if clear and convincing evidence establishes that the best interests of the child are served by awarding custody to the third party.”); Bahr, supra at 359 (recognizing that the Child Custody Act required that the natural parent presumption “must be seriously considered and heavily weighted in favor of the parent,” but that the presumption is rebutted “if the ‘clear and convincing evidence’ establishes that the best interest of the child is served by awarding custody to the third party”).
We agree with the foregoing analysis of the appropriate interplay between subsections 5(1) and 7(l)(c). In enacting the Child Custody Act, the Legislature plainly recognized the fundamental constitutional nature of a parent’s interest in childrearing when it enacted the presumption that in all custody disputes involving natural parents and third persons, absent clear and convincing evidence to the contrary, parental custody served the child’s best interests. Subsection 5(1). The Legislature also clearly recognized the importance of an established custodial environment to the development of children. Subsection 7(l)(c). We do not believe, however, that the Legislature intended that in every custody dispute between a noncustodial natural parent and a third-person custodian, the third-person custodian could eliminate the fundamental constitutional presumption favoring custody with the natural parent, and thus arrive on equal footing with the parent with respect to their claim of custody to the parent’s child, merely by showing that the child had an established custodial environment in the third person’s custody. This interpretation, employed in Rummelt, fails to take into proper account the parents’ fundamental due process liberty interest in childrearing.
The Legislature has decreed that in any custodial dispute the child’s best interests, described within MCL 722.23, must prevail. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001). In every custody dispute involving the natural parent of a child and a third-person custodian, the strong presumption exists, however, that parental custody serves the child’s best interests. We hold that, to properly recognize the fundamental constitutional nature of the parental liberty interest while at the same time maintaining the statutory focus on the decisive nature of an involved child’s best interests, custody of a child should be awarded to a third-party custodian instead of the child’s natural parent only when the third person proves that all relevant factors, including the existence of an established custodial environment and all legislatively mandated best interest concerns within § 3, taken together clearly and convincingly demonstrate that the child’s best interests require placement with the third person. Only when such a clear and convincing showing is made should a trial court infringe the parent’s fundamental constitutional rights by awarding custody of the parent’s child to a third person. We reiterate the Supreme Court’s warning that “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made,” Troxel, supra at 72-73, and remind trial courts considering competing custody claims of a noncustodial natural parent and a third-person custodian that it is not sufficient that the third person may have established by clear and convincing evidence that a marginal, though distinct, benefit would be gained if the children were maintained with him. Henrikson, supra at 253.
m
Defendant also argues that the grandparents lacked standing to participate in a custody dispute over the minor. Whether a party has legal standing to assert a claim constitutes a question of law that we review de novo. Terry v Affum, 233 Mich App 498, 501; 592 NW2d 791 (1999) (hereinafter Terry I), aff’d in part and vacated in part on other grounds 460 Mich 856 (1999).
We initially note that defendant correctly cites Bowie v Arder, 441 Mich 23, 48-49; 490 NW2d 568 (1992), for the proposition that a third party, including a grandparent, generally “cannot create a custody dispute by simply filing a complaint in circuit court alleging that giving legal custody to the third party is in the best interests of the child.” Defendant also correctly states that a third party does not attain a legal right to a child’s custody merely on the basis of the fact that the child has resided with the third party. Bowie, supra at 45; Sirovey v Campbell, 223 Mich App 59, 69; 565 NW2d 857 (1997).
As defendant seems to acknowledge, however, the instant case is distinguishable from the consolidated cases the Supreme Court addressed in Bowie, supra. While Bowie involved a grandparent who initiated an original custody proceeding against the minor’s father, Bowie, supra at 28-29, and an attempted voluntary transfer of legal custody from a child’s parents to third parties outside the context of a custody dispute, id. at 29-30, 55, the instant custody dispute stemmed from a circuit court order during a divorce proceeding. Our Supreme Court specifically has recognized that while generally no authority permits “a nonparent to create a child custody ‘dispute’ by simply filing a complaint in the circuit court alleging that giving custody to the third party is in the ‘best interests of the child,’ ” Ruppel v Lesner, 421 Mich 559, 566; 364 NW2d 665 (1984), “custody may be awarded to grandparents or other third parties according to the best interests of the child in an appropriate case (typically involving divorce).” Id. at 565. The Supreme Court in Bowie later explained that a circuit court award of custody to a third party during a divorce proceeding “is based not on the third party’s legal right to custody of the child, but on the court’s determination of the child’s best interests.” Bowie, supra at 49, n 22.
The circuit court had jurisdiction of the custody dispute between defendant and the grandparents pursuant to MCL 722.27(1), which explains that “[i]f a child custody dispute . . . has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court,” the circuit court may take various specific actions affecting the child’s custody. Subsection 7(1) contains the threshold requirement that an existing custody dispute is properly before the circuit court. Terry v Affum (On Remand), 237 Mich App 522, 533; 603 NW2d 788 (1999) (Terry II). “The term ‘child custody dispute’ is generally used broadly throughout the Child Custody Act ‘to mean any action or situation involving the placement of a child.’ ” Sirovey, supra at 68, quoting Frame v Nehls, 452 Mich 171, 179; 550 NW2d 739 (1996). Defendant’s March 2000 petition to change the child’s custody from the grandparents clearly created an “action or situation involving the placement of a child.” Sirovey, supra at 68. Once obtained pursuant to divorce proceedings, circuit court jurisdiction over child custody issues continues until the child turns eighteen years of age. MCL 552.17a(1).
The grandparents’ standing is not at issue in this case, however, because the grandparents at no time during the instant litigation ever filed a pleading requesting permanent custody of the child or otherwise sought to originate a custody proceeding. Terry II, supra at 533. To the extent that the grandparents obtained custody of the child during the divorce proceedings, the trial court properly granted the grandparents custody pursuant to the parties’ stipulated order modifying the judgment of divorce. “[UJnder § 17(1) of the divorce act, the circuit court may enter postjudgment custody orders only ‘on the petition of either of the parents.’ MCL 552.17(1) .... In making such order, the circuit court has jurisdiction under § 17a(1) of the divorce act to award custody to a third person.” Sirovey, supra at 77. “Viewing plaintiff’s and defendant’s custody stipulation as analogous to a postjudgment petition to modify custody, the court . . . had jurisdiction under the divorce act to award custody of [the child] to [the grandparents] if it then determined such award to be in [the child]’s best interests.” Id. at 83.
Accordingly, while the grandparents had no substantive right to custody of the minor, Bowie, supra, we find that as proper third-party custodians under the modified judgment of divorce the grandparents properly responded to defendant’s request to change custody, on behalf of the child in their custody, that the child’s best interests would be served by continuing to reside in the established custodial environment with the grandparents. An observation of this Court in Terry II, supra, relates to a similar situation that illustrates this point. In Terry I, a natural father obtained a court order establishing his paternity and sole legal and physical custody of his child, while also reflecting the father’s and the deceased mother’s family’s stipulation that the mother’s family would have parenting time with the child. Terry I, supra at 499-500. The father shortly thereafter moved to amend the court order to terminate the mother’s family’s right to parenting time, but the trial court denied the motion and revised the mother’s family’s parenting time schedule. Id. at 500-501. This Court in Terry I found that the mother’s family lacked standing to initiate a proceeding seeking parenting time pursuant to MCL 722.26c. Terry I, supra at 502. On remand from the Supreme Court, this Court in Terry II considered whether pursuant to MCL 722.27(1)(b) parenting time with the mother’s family was appropriate on the basis that it would serve the children’s best interests. Terry II, supra at 525-526, n 2. This Court found that “while without standing to initiate a proceeding seeking parenting time, by virtue of [the father’s] various actions [the mother’s family members] are parties to a child custody dispute properly before the circuit court.” Terry II, supra at 534 (emphasis added). The Court concluded that as long as visitation with the mother’s family served the children’s best interests, the mother’s family would be entitled to visitation incidental to the child custody dispute. Id. at 533-537.
Consequently, we reject defendant’s standing argument. We further note that because we do not detect within the trial court record, nor within defendant’s brief on appeal, any specific argument that the grandparents could not participate in the action because they never filed a motion to intervene in the proceedings, we need not consider this issue. Tucker v Clare Bros Ltd, 196 Mich App 513, 517; 493 NW2d 918 (1992).
iv
Lastly, defendant asserts that the trial court improperly failed to weigh in its analysis of the custody situation the fact that she, plaintiff, and the grandparents all contemplated that the grandparents would maintain custody of the child only temporarily until defendant found a new home and job. This Court many times has recognized the “good public policy to encourage parents to transfer custody of their children to others temporarily when they are in difficulty by returning custody when they have solved their difficulty.” Straub v Straub, 209 Mich App 77, 81; 530 NW2d 125 (1995). Our review of the trial court’s opinion reflects that the court did indeed consider the voluntary and temporary initial nature of defendant’s placement of the child in the grandparents’ custody. To the extent that defendant suggests that the trial court should have granted her custody solely on the basis that the child’s placement with the grandparents was intended to be a temporary arrangement, we do not agree. See Straub, supra (applying this public policy as a factor that “here tips an otherwise equal scale” in the mother’s favor).
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
The order also divided the parties’ property, granting plaintiff the exclusive right to reside in the marital home and permitting defendant to “remove all of her and the minor child’s belongings from the marital home."
With respect to property, the divorce judgment likewise incorporated the provision of the August 29 order granting plaintiff the exclusive right to inhabit the marital home. The judgment also ordered that, except for several specific awards of personal property, “each party is to receive the property in their own possession.”
While it appears that the court erred to the extent that it “blindly accepted] the stipulation of the parents” without “independently determin[ing] what is in the best interests of the child,” Phillips v Jordan, 241 Mich App 17, 21; 614 NW2d 183 (2000), the parties do not argue that the court’s action constituted error requiring reversal.
The modification order further stated “that the parties, including JOHN AND ROBIN YONKERS, must promptly notify the Cass County Friend of the Court in writing, when their address changes.”
At the July 2000 custody hearing, the grandmother testified that in February 2000 she took the child to the hospital after she had visited plaintiffs home. Those who examined the child found that her vagina appeared red. Apparently an investigation into the charges was ongoing at the time of the custody hearing, and the child was participating in counseling.
It appears that the court properly rethought its entry of the March 23 order, concluding that it needed to determine itself whether a custody modification served the child’s best interests. Phillips, supra.
As a further condition of plaintiff’s visits with the minor, plaintiffs mother had to supervise them.
Defendant explained that the warrant for her arrest stemmed from an unpaid vehicle loan that she and plaintiff had taken to purchase a vehicle, which plaintiff received pursuant to the judgment of divorce. Defendant testified that she was arrested because of the warrant, but that the charges subsequently were dismissed.
Although the testimony varied concerning the extent to which the grandparents permitted defendant to visit with the child outside the grandparents’ home, undisputed testimony reflected that on at least one occasion defendant was permitted to take the child to a shopping mall.
Defendant’s and the grandparents’ testimony also diverged with respect to the frequency with which defendant requested custody of the child. Defendant alleged that she inquired monthly whether the grandparents would return the child to defendant’s custody.
In applying the statutory factors to determine the child’s best interests, MCL 722.23, the referee found that stronger love and emotional ties existed between the grandparents and the child than between defendant and the child, subsection a; because defendant “has made some bad decisions in her life and still shows a level of immaturity” the grandparents prevailed with respect to capacity to provide the child love and guidance, subsection b; the grandparents showed greater capacity to provide for the child’s basic needs because defendant had only part-time employment, subsection c; the child had resided in a stable and satisfactory environment with the grandparents for most of her life, subsection d. The referee found that defendant prevailed regarding willingness and ability to facilitate and encourage a close and continuing relationship, subsection j, because while the grandparents’ concerns regarding Tapia “to a certain extent were justified . . . there is no reason why there should not be parenting time . .. with [defendant] under normal situations.” The referee found that the remaining statutory factors either did not apply or that neither party prevailed with regard to these factors. The referee concluded that defendant “has failed to meet the burden of persuasion that a change in custody would be in the best interests of the child.”
The referee denied defendant’s subsequent motion to permit visitation in Tapia’s presence.
The statutory parental presumption states as follows:
If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence. [MCL 722.25(1).]
The relevant statutory language concerning an established custodial environment states as follows:
(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
* ** *
(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age .... The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. [MCL 722.27(l)(e).]
Four justices joined the lead opinion in Troxel, while two more justices concurred. Concurring Justice Souter agreed that a parent possessed a fundamental right to raise his children, but opined that “because the state statute authorizes any person at any time to request (and a judge to award) visitation rights, subject only to the State’s particular best-interests standard, the statute sweeps too broadly and is unconstitutional on its face,” and “there is no need to decide whether harm is required or to consider the precise scope of the parent’s right or its necessary protections.” Id. at 76, 77. Justice Thomas also concurred, agreeing “with the plurality that this Court’s recognition of a fundamental right of parents to direct the upbringing of their children resolves this case.” Id. at 80. Justice Thomas expressed his opinion that strict scrutiny review applied to the state’s interference with this fundamental right, and that in this case the state “lacks even a legitimate governmental interest — to say nothing of a compelling one — in second-guessing a fit parent’s decision regarding visitation with third parties.” Id.
While this Court has long recognized a parent’s fundamental constitutional liberty interest in childrearing, Terry v Affum, 233 Mich App 498, 504; 592 NW2d 791 (1999), aff'd in part and vacated in part on other grounds 460 Mich 856 (1999); In re LaFlure, 48 Mich App 377, 385; 210 NW2d 482 (1973), the constitutional issue was not addressed in Rummelt, supra. We note that our Supreme Court recently has directed a trial court to reconsider Rummelt in light of Troxel.
In lieu of granting leave to appeal, the June 24, 1999 order of the Macomb Circuit Court is vacated, and the case is remanded to the Macomb Circuit Court for a hearing by the circuit judge on the defendant’s petition for custody of her child. ... In deciding whether to grant the petition, the circuit court is to address the interplay of the presumptions stated in MCL 722.27(1)(c) . . . and MCL 722.25(1) . . . and whether the construction supplied in LaFleche v Ybarra, 242 Mich App 692 (2000), Rummelt v Anderson, 196 Mich App 491, 496 (1992), and Straub v Straub, 209 Mich App 77, 79-80 (1995), gives to fit parents the degree of deference required by the U.S. Constitution. See Troxel v Granville, 530 US 57 (2000). [Zulkowski v Zulkowski, 463 Mich 933 (2000) (emphasis in original).]
The existence of an established custodial environment should be considered, subsection 7(1)(c), but should not itself eliminate the third person’s burden to overcome the parental presumption by clear and convincing evidence. We note, however, that when a child custody dispute involves the child’s fit natural parents, who possess equal constitutional liberty interests in raising their children, and agencies, or third persons, the simple best interests of the child analysis applies, subsection 5(1), and the party seeking a change in the child’s custody from an established custodial environment must demonstrate clearly and convincingly that the change will serve the child’s best interests. Subsection 7(1)(c).
We note for clarification that the provisions of the Child Custody Act clearly are not themselves facially unconstitutional, Council of Organizations & Others for Ed About Parochiaid, Inc v Governor, 455 Mich 557, 568; 566 NW2d 208 (1997), but that the trial court’s application of subsections 5(1) and 7(1)(c) violated defendant’s constitutional rights.
Certain limited standing exceptions, inapplicable in this case, do exist within the Child Custody Act. See subsection 6b, MCL 722.26b, involving guardianships, and 6c(1), MCL 722.26c(1), describing limited circumstances under which third persons may bring a custody action. Section 7b, MCL 722.27b, also inapplicable here, authorizes grandparents to seek orders for grandparenting time under certain circumstances.
The Child Custody Act defines a “third person” as “any individual other than a parent.” MCL 722.22(g).
See also Terry II, supra at 529-533, describing the following similarities between that third-person case and Deel, supra, Siwik, supra, Stevens, supra, and Bahr, supra:
Notwithstanding the fact that custody did not ultimately remain with the third parties in all these cases, at some stage of the proceedings in each case the circuit court determined that at least for that time awarding custody to third parties was in the children’s best interests. Though the four decisions are not equally clear concerning how the third parties became involved, two common threads can be gleaned. Critically, none of the third parties had initiated the action that resulted in the circuit court’s award of custody to them. This fact comports with what is clearly the threshold requirement of MCL 722.27(1) . . . that an existing custody dispute is properly before the circuit court. The second element common to the four examined cases is the fact that the circuit court’s decisions regarding the award of custody were made after hearings to determine the child’s best interests. [Terry II, supra at 533 (emphasis in original).]
We note that the trial court correctly observed that a finding of an established custodial environment does not depend on the manner in which such an environment became established. See Hayes v Hayes, 209 Mich App 385, 388; 532 NW2d 190 (1995) (“In determining whether an established custodial environment exists, it makes no difference whether the environment was created by a court order, without a court order, in violation of a court order, or by a court order that was subsequently reversed.”); Treutle v Treutle, 197 Mich App 690, 693; 495 NW2d 836 (1992) (“In determining whether a custodial environment exists, the court’s con cem is not with the reasons behind the custodial environment, but with the existence of such an environment.”). | [
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Grant, J.
(after stating the facts). There is no evidence to show any liability on the part of the defendant the Lake Shore & Michigan Southern Railway Company. It had provided a station room and platform for those who had occasion to depart from and to enter its trains at Ferry avenue. In doing this it had done its full duty. Sturgis v. Railway Co., 72 Mich. 619 (40 N. W. 914); Michigan Cent. R. Co. v. Coleman, 28 Mich. 452. The rear car stopped just opposite this platform. It extended no invitation to plaintiff or any one else to walk along the other track, or to use it as a platform for plaintiff or other passengers who desired to take its train. If it was necessary to walk to the front of the train instead of taking the rear car (there is no evidence to show such necessity), there was ample space between the two tracks, level and smooth, which the plaintiff might have taken.' At the point where he was struck, the distance between the two tracks was 20 feet.' Neither is there any evidence to show such a well-known custom on the part of. passengers to walk down the other track so as to enter the smoking car, — the forward car of the train, — a distance of about 200 feet, as would bind the defendants.
Switch engines were liable to come in and go out over these tracks at any time. They were not limited to one track coming in and to the other going out. All they were required to do by rule 14 was to keep entirely clear of all time-card trains, and run cautiously between the points mentioned in the rule, as they might expect to find . the main line occupied. Plaintiff is chargeable with notice that in this busy place these engines were liable to occupy . the tracks at any time. He entered upon this track sup posing, as a matter of course, that the headlight he saw was the headlight of the engine of the train which would take the Lake Shore track. Evidently, had he looked when upon the track on which he was injured, or within 10 feet of it, he would have observed that the engine was upon the track. Furthermore, the switch lights were not turned for the train to go upon the Lake Shore. Upon this point he testified:
“I did not observe whether the switches, which were within a few feet of me, were set so the train could get on the Lake Shore. I was off duty. I did not bother my head about it. That was left for the night man to look after.”
Two engines were, in fact, coming on defendants’ tracks. He did not look at any time after he had reached a distance of 20 feet from the inbound track.. He testified that, when within 20 feet, he could look about a half mile down the track. He further testified:
“I was about 20 feet from the office when I looked to the south and saw the headlight. I had gone about 20 feet towards the tracks when I looked to the south and saw the headlight. I saw them coming that way, and I turned myself and went up the track. At no point after that did I look to the south to see if any train was coming.”
That he knew of the extent of the switching appears from his own testimony as follows:
“On account of all this switching and moving of trains, engines may be passing there at any moment. They were liable to be switching up there at any time. In the winter time, especially, it is a busy place.”
He further testified:
“I walked up the incoming main line because there was snow shoveled away on the side of the track more than anything else, and to keep out of the snow.”
Plaintiff relied solely upon the fact that the semaphore was dropped, and shut his eyes to all other evidences of the facts surrounding him, and of which he might readily have availed himself, showing that no train was coming upon the Lake Shore track, but that a train was coming on the track over which he was walking. What right had he to assume that the engineer and fireman would look out for him any more than that he would look out for himself ? Evidently the engineer and fireman were not at the moment looking. If this was negligence on the part of the engineer and fireman, was it not equally negligence for him to pay no attention to his surroundings ? What right had he to rely upon the performance of duty by his fellow-servants, — if he was at that time in the employ of the company,— while he himself was neglecting to perform his own duty ? Had they been looking, they would have had a right to suppose that he would step off the track in time to avoid injury. He does not testify that he did not hear the trains. On the contrary it is quite evident that he did hear them, and knew that one at least was coming behind him. It is difficult to conceive of a case of greater contributory negligence. Plaintiff went deliberately from a place of safety into a place of danger. Kansas City, etc., R. Co. v. Cook, 13 C. C. A. 364 (66 Fed. 115, 28 L. R. A. 181); Wabash R. Co. v. Skiles, 64 Ohio St. 458 (60 N. E. 576); Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250, 53 L. R. A. 271); Michigan Cent. R. Co. v. Campau, 35 Mich. 468; Bresnahan v. Railroad Co., 49 Mich. 410 (13 N. W. 797); 3 Elliott, R. R. § 1250.
The judgment is affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Hooker, C. J.
The plaintiff was a passenger upon defendant’s railway train, and was injured through an accident to the train, it having been derailed. The theory of her counsel is that the train left the track by reason of the spreading of the rails. The defendant’s counsel assert that the accident was caused by the removal of a rail with -design to throw the train from the track. The cause went to the jury, and a verdict was rendered in favor of the plaintiff, and the defendant has taken a writ of error. The principal questions are: (1) Should the court have directed a verdict for the defendant ? • (2) If not, should we have granted’ defendant’s motion for a new trial ?
There is no testimony in this record tending to show that these rails spread, beyond the fact that the train was derailed, the testimony of witnesses who counted the number of ties which they called rotten to the hundred ties upon the roadway in the vicinity, and of others that some rotten ties were burning on fires kindled immediately after the accident.' There was overwhelming evidence that the ties in use were sufficiently good to make a first-class track, and to hold the spikes; that ties do not become unfit for use immediately they begin to rot; and that in -all railroads, after they have been constructed for a few years, there must be a percentage of ties in decaying condition, from those slightly affected with rot to those which are about to reach the stage where they should be, and are in practice, removed. There was strong and convincing evidence that the rail had been intentionally removed by taking out the bolts and lifting it out of, and over, the projecting U bolts, which remained standing at the joint of the rail; that the outer spikes had been driven down flush with the ties by the flangs of the wheels as they passed over them immediately after leaving the rails at the point where the rail was removed; that the bolts and fish-plates at the point where the solid track ended were uninjured, the threads on the bolts and nuts, which lay near by, being perfect. It was shown by clear and undisputed evidence that immediately after the accident, at the point where it occurred, there were found some tools adapted to the removal of nuts and bolts, the drawing of spikes, and the lifting of the rail. These tools belonged to another railroad company near by, and had been placed in its tool-house, a mile or so'distant, a few hours before the accident, and were found missing the next morning by its men having the tool-house in charge. The house had apparently been broken open during the night. Two suspicious characters were seen, soon after the accident, hastening from the vicinity of the accident towards Toledo, who did not answer when accosted by farmers living near by. There was, at the most, a bare scintilla, if there was anything rising to the dignity, of evidence, that the track was imperfect, or that the rails spread at that point. There was not in the plaintiff’s proofs enough of substance to make a prima facie case, when standing alone and uncontradicted. See Conely v. McDonald, 40 Mich. 156; Wierengo v. Insurance Co., 98 Mich. 621 (57 N. W. 833).
But if it should be held that it was not error to submit the case to the jury, their verdict was so palpably unjust and at variance with the great preponderance of evidence that the court should not have denied a motion for a new trial.
The judgment is reversed, and a new trial ordered.
Moore and Grant, JJ., concurred with Hooker, O. J. Montgomery, J., concurred in the result. Long, J., did not sit. | [
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Montgomery, J.
The plaintiff, who is an attorney at law residing at Sault Ste. Marie, brings this action of libel against the Mining Journal Company, Limited, publisher of a newspaper at Marquette, based upon two alleged libels, both relating to the same matter. For the purposes of the questions involved, it is unnecessary to set forth these libels at length, and we refrain from doing so. Suffice it to say that we have no doubt that the publication set up in the second count was calculated to bring the plaintiff into disrepute in his character as an attorney, and to hold him up to the ridicule and contempt of his neighbors, and was libelous per se, within our former holdings.
On the trial no attempt was made to justify the publication. On the contrary, the evidence introduced shows that on receipt of a request for a retraction, which came to the editor of the Mining Journal at Marquette by mail, and reached him on Saturday or Sunday, he wrote to Mr. Couch, acknowledging the receipt of his demand for retraction, and stating that he would be in Sault Ste. Marie on the following Thursday; that he in fact did visit Sault Ste. Marie on the following Thursday for the purpose of investigating • as to the truth of the statements contained in the libelous article, fully satisfied himself that the article was libelous and did an injustice to Mr. Couch, the plaintiff, and returned to Marquette and published the following retraction :
“Not Warranted by the Facts.
“The editor of the Mining Journal was at Sault Ste. Marie Thursday to make an investigation into the matter of the publication recently made in this paper connecting John A. Couch and Deputy Sheriff W. F. Lipsett, in a discreditable manner, with an alleged attempt to beat a Minneapolis traveling man named Rickert out of a sum of money. The story was given this paper by Rickert. As it was related by him, an attempt was made to use a justice’s court there in an improper manner to force him to give up $50, which was demanded by the justice who issued a warrant for his arrest, by a hackman with whom he had a dispute over the latter’s charge for service rendered, and beat him out of the money, and that both Mr. Couch and the deputy sheriff played a prominent part in the scheme.
“His investigation into the matter has convinced the editor of the'Mining Journal that Mr. Couch was in no manner concerned in the affair. His office is in the same building with that of the justice who issued the warrant, and across a ball from the justice’s room, and he was an onlooker at some of the proceedings. The deputy sheriff, who is a warm friend of Couch’s, thought he saw a chance to throw a little business in his friend’s way, and rather too zealously sought to persuade Rickert to retain Mr. Couch as his attorney. This evidently caused Rickert to believe that both Couch and Lipsett were leagued with the others against, him and led him to make the. misleading statement to this paper which it published.
“The Mining Journal now desires to say that, having convinced itself of the falsity of the statement attributing unworthy motives to Mr. Couch and Mr. Lipsett in con nection with this case, through the investigation made as stated, it now fully acquits both of any part in the alleged attempt to beat Rickert out of money. Lipsett acted rather foolishly, in the case, but that is the worst that can be said of him. Both he and Mr. Couch stand well at Sault Ste. Marie, and publishing the statement given it by Rickert, charging them with improper conduct in connection with the trouble he brought on himself at Sault Ste. Marie through his wrangle with the hack driver, the Mining Journal did both a wrong, which it cheerfully repairs by publication of this statement.”
The principal question that the jury had to deal with on the trial, therefore, was the question of damages. The publication of the libel was admitted, a retraction had been made, and it would follow that the plaintiff was entitled to all actual damages; and whether he was entitled to punitory damages would depend upon whether the publication was malicious, and whether the publication of the retraction was made within a reasonable time after demand, and was full and complete.
It is objected that on the trial plaintiff was permitted to testify as to damages occasioned by reason of loss of business. The declaration averred that the plaintiff “suffered the loss in his profession of the confidence of his neighbors, friends, clients, and acquaintances, and had otherwise been greatly injured, to wit,” etc., “to the damage of plaintiff ten thousand dollars.” We think this was sufficient to apprise the defendant of a claim for damages for loss to business, and that testimony that his business fell off in consequence of the publication was admissible. See Weiss v. Whittemore, 28 Mich. 374; Smedley v. Soule, 125 Mich. 192 (84 N. W. 63); Evans v. Harries, 38 Eng. Law & Eq. 347; Bergmann v. Jones, 94 N. Y. 51.
Plaintiff was permitted to testify, against objection, to the effect that this publication had upon his wife. This ' testimony was limited, by instruction, to the injury to the plaintiff’s feelings by reason of the effect of the libel upon his wife. We think this testimony should not have been admitted. It was not specially set out in the declaration, and that is a sufficient reason for exoluding it in the present case. See Hatt v. Evening News Ass’n, 94 Mich. 119 (54 N. W. 766). We express no opinion as to whether this testimony would be competent under finy circumstances.
The defendant contends that the court also erred in refusing to instruct the jury that no exemplary or punitive damages could be recovered. This contention is based upon 3 Comp. Laws, § 10425, which reads:
“No exemplary or punitive damages shall be recovered unless the plaintiff shall, before bringing suit, give notice, by mail or otherwise, to the defendant, to publish a retraction of the libel, and allow the defendant a reasonable time in which to publish such retraction, and make such amends as are reasonable and possible under the circumstances of the case; and proof of the publication or correction shall be admissible in evidence, under the general issue, on the question of the good faith of the defendant, and in mitigation and reduction of exemplary or .punitive damages: Provided, that the retraction shall be published in the same type and in the same editions of the paper as the original libel, and, so far as practicable, in the same position.”
The charge of the circuit judge upon this subject was as follows:
“ On the part of the defense it is claimed that there was not a reasonable time given to investigate and publish the retraction before the suit was brought, and that is a question of fact for you to determine. It is for you to say whether or not, after the article of February 15th was published, and before suit was brought, the defendant was given a reasonable time in which to investigate and publish a retraction, and make such amends as were reasonable and possible under the circumstances. And it is a question of fact for you whether or not the publication (that is, the retraction, as it is called) was a full and complete retraction, such as made amends as fully as possible.”
It is contended that this charge was erroneous in two respects: First, it is said that what was a reasonable time is a question of law; and, second, that the court should have construed the retraction, and determined whether or not it was full and complete.
It is not the rule that what is a reasonable time is always a question of law. Where any question of motive is involved, it is a mixed question of law and fact. See Gridley v. Tobacco Co., 71 Mich. 528 (39 N. W. 754); Michigan State Ins. Co. v. Lewis, 30 Mich. 41. As was said in Druse v. Wheeler, 26 Mich. 189:
“The question of reasonable time may sometimes be peculiarly a proper one for the jury. But when the court can clearly see, from the nature of the case, that the time exceeds any possible term required by convenience or necessity, it should so determine, and so instruct the jury.”
But upon the other ground we think this instruction was erroneous. It would be difficult to imagine a more complete and absolute retraction than that given in the article quoted above. It was in writing, and was for the court to construe. It should not be left for the jury to find that it did not amount to a full retraction.
For the errors pointed out, the judgment will be reversed, and a new trial ordered.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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] |
Hooker, C. J.
George W. Ferris and the complainant were husband and wife. On January 2, 1893, they joined in. a land contract under seal, whereby they agreed with Frank E. Snow, trustee, to sell to Mm, for the sum of $21,500, certain premises then owned by said George W. Ferris, said Snow, trustee, undertaking to pay therefor in the manner and at the times specified in the contract. Ferris subsequently died, and after payment of interest to her for some time, in which defendants Snow, Woodruff, and Jackson participated, each paying one-third, this bill was filed to foreclose the land contract, by the complainant, acting in the capacity of administratrix of her husband’s' «state. The complainant claims that the three defendants associated together and purchased said land through and in the name of Snow, and the main controversy in the case is whether this is so, thereby making them jointly and severally liable for an anticipated deficiency. That the defendants had equal interests in the premises is beyond dispute, and that they combined to procure them through Snow, in whose name, for reasons and purposes «f their own, not disclosed, they chose to have the contract made, is equally certain. This they had a right to do, ■and unless Ferris had a right to understand that the contract was made on their behalf, and unless he had a right to look to them for its performance, they assumed no obligation as to him, either legal or equitable, through the act of Snow. Upon the hearing in the circuit court, a decree was made that each of the defendants should be primarily liable for a third of the deficiency, and that Snow should be liable for all. All parties have appealed, except Snow, against whom the bill was taken as confessed.
Upon a former hearing (124 Mich. 559, 83 N. W. 374), on demurrer, it was held that the bill as there framed did not allege a cause for relief, because it showed that the contract was under seal, and defendants Woodruff and Jackson were not named in it, and it contained no allegation of facts constituting a ratification of the contract by them. The cause was remanded, with leave to amend, and the bill has been since amended by the insertion of allegations supposed to charge a ratification by them of Snow’s contract.
Aside from the question whether a contract under seal can be ratified by acts in pais or by one who is not mentioned in it, a ratification implies an undertaking by which it was attempted to bind the principal, to be ratified. The1 theory of ratification is that the principal adopts the action of his agent. No consent by C. to step into the place of A. , who has assumed to make a contract with' B. on his own behalf, would establish privity of contract between B. and C., unless based upon a new consideration. It is. different when A. assumes to contract with B. on behalf of C. In such case the contract is not changed in terms, but is vitalized by a ratification of the unauthorized act of the agent. Ratification cannot be in part, but must be of the-whole contract. Story, Ag. § 250. The writing in this case is, upon its face, plainly one between Ferris and Snow, and no one else, and one which Snow could not make for Jackson and Woodruff, for want of written authority. Moreover, the evidence is clear that Snow did not represent to Ferris that he was making this contract on behalf of any one but himself. The only evidence upon the subject tending to show the contrary is that Woodruff took an interest in the title to be obtained, and said, in substance, that, “We don’t want it with a defective title to the 20 acres,” and, when Snow was asked why the contract, “did not mention Mr. Jackson and Mr. Woodruff,” the witness says that Snow answered, “Because Mr. Ferris and Mr. Snow had been friends for a number of years, and Mr. Snow explained that it would be simpler to transact the business with one than with several.” It does not appear when or where this talk occurred. If it was after the contract was made, as the language would indicate, it was too late to affect it; if before, it evinced Snow’s indisposition to assert that he was making a contract on behalf of Jackson and Woodruff, although Fei’ris knew that the three were to own the land; and, manifestly, unless that is what the parties, Ferris and Snow, understood that he was attempting, there was no contract which these men could ratify.
Let it he conceded that Ferris knew of the intention of Snow, Woodruff, and Jackson to procure title to this land through Snow. He also knew that they did not choose to make a contract with him in their own names, hut did want one made between him and Snow. He consented to this. There was no fraud about it, and his own attorney drew the contract. Then, not only does the writing fail to show that the contract was intended to bind Jackson and Woodruff, but the testimony shows conclusively an intention that it should not, and an absence of any assumption by Snow to make a contract which should.
But it may be said that Jackson and Woodruff have admitted that they were bound by this contract, by the correspondence, and interviews and payments, since Ferris’ death. We think this is not so. They did recognize that they were jointly interested in the land, and after Ferris’ death each consented to pay one-third of the amount remaining due, — perhaps recognized an obligation to do so, moral or legal, or both. But we fail to find any testimony that indicates that either Jackson or Wood-ruff assented, or intended to assent, to the claim that he was personally bound to Ferris, by that contract, to pay the full purchase price of the land, or that it was intended to bind him in any way. Ferris did not suppose he was contracting with Woodruff and Jackson. He knew he was not. Hence there was no such contract for them to ratify. In 1 Am. & Eng. Enc. Law (2d Ed.), p. 1188, it is said:
“A ratification by a principal of the acts of an agent can only be effectual between the parties when the act was done by the agent on account of the principal, not on his own account, or on account of some third person. Where one buys in his oivn name, for himself, another cannot adopt the transaction.”
Many cases are cited in support of the text, among them Hurley v. Watson, 68 Mich. 581 (36 N. W. 726). It is a significant fact that in most, if not all, of the cases of ratification, the person contracting has had reason to believe that the agent was assuming to act for another. In Mechem, Ag. § 124, the learned author indicates that “the act to be ratified must have been done by one claiming to represent the person ratifying;” and again, in section 127, he says: “The act ratified must also have been done by the assumed agent as agent.” In Mitchell v. Fire Ass’n, 48 Minn. 284 (51 N. W. 608), it is said, “A ratification is only effectual when the act is done by a person professedly acting as the agent of the party sought to be charged,”- — citing Ewell’s Evans, Ag. p. 55; Story, Ag. § 251a. The latter authority states the rule thus:
‘! One other consideration is important to be borne in mind. It is that a ratification can only be effectual between the parties when the act is done by the agent avowedly for or on account of the principal. * * * This would seem to be an obvious deduction from the very nature of a ratification, which presupposes the act to be done for another,” etc.
See Wilson v. Tumman, 6 Man. & G. 236.
In Hamlin v. Sears, 82 N. Y. 331, it is said, “The doctrine properly applies only to cases where one has-assumed to act as agent for another.” Fry, Spec. Perf. § 510; Workman v. Wright, 33 Ohio St. 405 (31 Am. Rep. 546); Dempsey v. Chambers, 154 Mass. 330 (28 N. E. 279, 13 L. R. A. 219, 26 Am. St. Rep. 249).
•It follows that the decree must be reversed, and bill dismissed, with costs of both courts to defendants.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Montgomery, J.
In September, 1897, the complainant entered into a contract with the Arc Welding Company and the Welded-Barrel Company, by the terms of which said companies agreed to employ the complainant for a period of three years as general superintendent. In Jan uary, 1898, the complainant was discharged. He brought an action against the defendant company for his damages, and recovered a judgment on April 21, 1900, in the sum of $5,000. The defendant appealed to the Supreme Court, where the judgment, on January 29, 1901, was affirmed. Schaub v. Welded-Barrel Co., 125 Mich. 591 (84 N. W. 1095). An execution taken out on this judgment having been, returned wholly unsatisfied, the original bill in this cause, containing the ordinary averments and prayer for relief of a judgment creditor’s bill, was filed. Upon the bill a receiver was appointed, and the defendant company was ordered to turn over its assets to the receiver, under the direction of a circuit court commissioner.
After the appointment of the receiver, complainant amended his bill, making Charles L. Coffin and Cyrus E. Lothrop parties defendant, as stockholders in the defendant company. Warren L. Beckwith, who also subscribed to the capital stock of the company, was not made a party defendant, for the reason that he was a nonresident of the State, and not within the jurisdiction of the court. The '.amended bill sets up that the defendant company was organized to take over the business of a certain other corporation, known as the Welded-Steel Barrel Company; that in fact the arrangement by which they were to take over the business of this corporation fell through; and that no assets were in fact paid in to the defendant company, although the defendants Coffin and Lothrop, together with Beckwith, subscribed capital stock. The bill prays, in addition to the prayer contained in the original bill, that said Coffin and Lothrop may be directed to pay over to the receiver theretofore appointed in the case, or to such receiver as thereafter might be appointed by the court, the amounts due from them, and each of them, on account of their unpaid subscriptions to said capital stock, in amounts sufficient to meet the claims of complainant and such other creditors as might be entitled to join with the complainant.
The defendant the Welded-Barrel Company has entered no appearance in the case. The defendants Coffin and Lothrop entered separate demurrers as follows:
“1. That the complainant is not entitled to maintain a bill of complaint against this defendant to recover a subscription to the capital stock of said Welded-Barrel Company, even if such subscription were in fact made.
“2. That said bill of complaint is exhibited against this defendant and other persons therein named as defendants thereto for distinct matters and causes, in several whereof, as appears by said bill of complaint, this defendant is not in any manner interested or concerned, and that said bill of complaint is altogether multifarious.”
These demurrers were overruled by the court below, and Coffin and Lothrop appeal.
It is urged in support of the demurrer that, whether the complainant had the right to join the two defendants, Coffin and Lothrop, in the original bill, or not, it was not competent to bring them in by amendment to the bill after the receiver had been appointed; that 'the proper proceeding would be for .the receiver himself to institute the proceeding against these defendants in the interests of all the creditors. It might be sufficient to say that, under Chancery Rule No. 9 a, these defendants are not in position to raise this question. This rule now requires that the demurrer shall state the special reasons, in matters of substance, in a general demurrer, as well as matters of form in a special demurrer. This rule practically renders obsolete the practice of assigning causes of demurrer ore tenus. The objection to this bill, as set out in the demurrer, was not as to the order of proceeding, but was to the effect that the complainant could not, in any case, maintain such a bill against the defendants.
But on the merits we think the learned circuit judge reached the correct conclusion. Under our statute (3 Comp. Laws, §§ 9760, 9769, 9773), it is proper to join stockholders in a proceeding of this nature. See Hulbert v. Detroit Cycle Co., 107 Mich. 81 (64 N. W. 950); Peninsular Sav. Bank v. Black Flag Stove-Polish Co., 105 Mich. 535 (63 N. W. 514).
-We also think it was proper to bring in these defendants by amendment to the original bill. In the case of Young v. Iron Co., 65 Mich. 111 (31 N. W. 814), it was directed by the court that additional holders of stock, who had not paid their subscriptions, should be made parties defendant to the suit.
The order overruling the demurrers will be affirmed, with costs of this court to complainant, and the cause remanded for further proceedings.-
Hooker, C. J., .Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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] |
Grant,. J.
(after stating the facts). The principles of law applicable to this case are not in dispute, — in fact, are virtually conceded. They are: (1) A retainer of one member of a firm of attorneys is a retainer of the firm, in the absence of an agreement to the contrary; (2) a party may personally contract with one member of the firm for his legal services, and where such contract is proved it will be sustained. The same authorities that establish the first rule also recognize the second. Mechem, Partn. § 195; Smith v. Brittenham, 109 Ill. 540; Harris v. Pearce, 5 Ill. App. 622; Williams v. More, 63 Cal. 50. It follows that a personal contract with one member of the firm forbids the other member from employment against the client of his partner. The law would not permit the members of the firm to be employed on opposite sides of the same suit. When attorneys in partnership permit one member of their firm to make personal contracts for his services, it is upon the implied condition that the other members cannot be employed against their partner’s client. They may assist him, but they cannot oppose him. The other members of the firm cannot recover for services rendered in such case to their partner’s personal client, unless there is an express agreement to do so. The presumption is that such partner has made satisfactory arrangements with his partners, either for a division of his compensation, or that he has given them some other valuable consideration for services which they have agreed he may thus render. The agreement between Mr. Cahill and Mr. Ostrander illustrates what is usual in such cases. All the earnings of the two, whether for services rendered as partners or as individuals, were equally divided between them.
The main contention is one of fact, counsel for defendant insisting that Mr. Ostrander’s employment was, as a matter of fact, the employment of the firm, and was so understood by all parties. If Mr. Cahill had been a member of the firm when plaintiff was employed, this contention would undoubtedly be true. But he was not, and this, in our judgment, changes entirely the aspect of the case. The contract of employment was made with plaintiff alone, and when Mr. Cahill was not only not connected with the plaintiff, but had no interest whatever in the firm. Did the relation between the plaintiff and the defendant change when Mr. Ostrander took Mr. Cahill in as a partner ? If so, then the firm, and not plaintiff alone, were the counsel for the defendant from the 1st of January, 1891. Mr. Ostrander could not change his relation to the defendant without its consent; neither could the defendant change such relation without his consent. A mutual agreement to change the relation was essential. What Mr. Cahill said to the directors when the resolution was passed employing Mr. Ostrander for one year could not operate to change the relation unless both parties knew and assented to it. If the directors had desired to have the firm appear as their general counsel, it could just as well have been done by inserting the firm name, instead of continuing the relation which had theretofore existed with Mr. Ostrander. What the reasons for not doing so were do not appear, and are immaterial. The fact is it did deal with him as its general counsel, advertised him as such, communicated with him as such, and finally discharged him as such, employing and paying him for a little over a month after the partnership was dissolved. To the case made by plaintiff’s evidence defendant replies by evidence that Mr. Cahill informed the directors that they would receive the benefit of his services as well as those of Mr. Ostrander, and by the fact that they did consult him on various occasions, and that the firm name was used when suits at law were begun. A fact was involved. It is true there was but little dispute in the testimony upon which the finding of fact must rest, and whether legally it shows a separate employment of plaintiff, instead of the firm, we need not determine. The court left the question of fact to the jury, and they have settled it. We think there was evidence to sustain their conclusion. A. B., an attorney, has a contract with a railroad corporation to perform its legal services, and also has a general practice. He takes in a partner. Is his contract with the railroad company at ag,end ? Is the contract with the railroad company changed to a contract with the firm ? It seems to us that these questions must be answered in the negative, in the absence of some agreement or understanding to'the contrary. How the new firm divides up the income from their practice concerns no one but themselves. It would be very natural for the attorney to say to the railroad corporation, “In my absence my partner will give you any legal advice, or conduct any suits you desire him to do in the firm name. ” But this fact would not change the personal relations between the company and the attorney. That is precisely this case. Mr. Cahill, when Mr. Ostrander was city attorney, would undoubtedly have given the city any advice in the absence or sickness of Mr. Ostrander. Mr. Ostrander, when employed, might have said to the city, “You can have the benefit of Mr. Cahill’s advice and services as well as mine;” but this would not make Mr. Cahill one of the city attorneys, although it had frequently taken his advice, and-the firm had appeared in suits on behalf of the city.
The court instructed the jury as follows:
“I charge you that if, as a matter of fact, the plaintiff, personally, was employed by the defendant, as is claimed by the plaintiff, for annual periods, and at a stated annual salary or sum, from the 1st day of June, 1890, to and including the 1st day of June, 1898, and if, beginning the 1st- day of June, 1898, he entered upon the performance of his duties of general counsel for the defendant, and performed the required services until on or about the 18th of August, and was then discharged by the defendant, the defendant thereafter continuing to use his name upon its letterheads and literature as general counsel, and to publish him to the world as such, during the remainder of the year, then the plaintiff is entitled to recover in this case the sum of $864.”
Error is assigned upon that part of the above instruction referring to the use of plaintiff’s name as general counsel upon the letterheads and literature of the defendant after his discharge. Plaintiff’s name was not printed on any new letterheads or literature after his discharge, bub his name was not erased from those whereon it had been previously printed. It is true that the use of his name in this manner after his discharge did not tend to prove the personal contract. Its use before that time was legitimate for that purpose. It was of no consequence that his name was not erased'from the literature they had on hand and which they afterwards used. Able counsel tried the case, and it is fair to assume that the matter was fully explained by them to the jury. A jury of intelli •gence could hardly be misled or prejudiced by the fact that defendant used letterheads, etc., which it had on hand, without erasing the name of Mr. Ostrander, after he had been discharged. We think this error not of sufficient importance to justify a reversal of the case.
The judgment is affirmed.
Hooker, C. J., and Moore, J., concurred. Long and Montgomery, JJ., did not sit. | [
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Per Curiam.
This suit was brought to recover taxes paid under protest. The sole question is, Are abstract books, used in furnishing abstracts of title to land, subject to assessment for taxation ? The court held that they were not, and directed a verdict for plaintiff. The holding is correct. The case is ruled against the defendant by Perry v. City of Big Rapids, 67 Mich. 146 (34 N. W. 530, 11 Am. St. Rep. 570).
It was held in Dart v. Woodhouse (decided in 1879), 40 Mich. 399 (29 Am. Rep. 544), that abstract books were not subject to levy and sale upon execution. In 1899 the legislature passed an act making these books liable to seizure and sale upon execution in like manner as other personal property. Act No. 197, Pub. Acts 1899.
It is to be presumed that the legislature was cognizant of both of the above decisions. They chose to enact a law making such property subject to levy and sale upon execution, but have not yet chosen to make it subject to taxation. Making it subject to levy upon execution does not render it subject to taxation; so making it subject to taxation would not render it subject to sale upon execution.
Judgment is affirmed.
Long, J., did not sit. | [
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Grant, J.
(after stating the facts). Several errors are assigned. We need to discuss only one. The defense was that the transaction between plaintiff and her husband was fraudulent, and there was good evidence to sustain it. Plaintiff claimed that she had received money from her father’s estate at various times, which she loaned to her husband. She was unable to tell how much. She kept no records, and could give no dates or amounts. The administrator, who was her brother-in-law, testified to the items paid. Defendant offered to show statements made by plaintiff’s husband to R. G. Dun & Co., and to the salesman of the Wisconsin corporation, of his assets and liabilities. This was excluded by the court for the reason that no proof was offered to show that she knew about them.
It was essential to show fraud on the part of the plaintiff’s husband, the purchaser of the goods. Representations made by him at the time the goods were purchased, if shown to be false, were evidence of fraud upon his part. The evidence was competent. The relations of the plaintiff and her husband, the clandestine removal of the goods with her consent, her knowledge of his indebtedness and the manner of conducting his business, of his financial condition, and other circumstances, were competent evidence for the consideration of a jury in determining the good faith of the transaction. Testimony tending to show any fraud upon his part or upon hers was competent. Naturally,.in such cases, the first purpose of the defendant is to show the fraud on the part of the debtor. If, at the conclusion of the evidence, there is nothing to indicate any fraud, the court will direct a verdict; and if there is nothing to indicate that plaintiff had knowledge of any representations made by the debtor to his creditor, he will so instruct the jury. But in these cases of fraud wide latitude should be permitted in admitting evidence, and inferences are generally for the jury to draw.
Judgment reversed, and new trial ordered.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Grant, J.
This case is brought to this court by certiorari to review proceedings taken by the drain commissioner of Saginaw county to clean out, widen, and deepen a part of a public drain. The sole claim of plaintiff in certiorari is that the petition is fatally defective, and conferred no jurisdiction.
The order based upon the petition was made February 18, 1901, while the application for writ of certiorari was not made until April 30th. The statute provides that notice of the certiorari shall be served on the commissioner within 10 days after his determination, and that, if no certiorari has been brought within the time prescribed, its legality shall thereafter not be questioned in any suit at law or in equity. Plaintiff claims the right to a common-law certiorari, and that it is not limited by the statute. It is within the power of the legislature'^ limit the time within which writs of certiorari may be issued. The statutes afford abundant instances of this kind. See 1 Comp. Laws, §§ 936, 1047, 2764. The legislature has not taken away the right to review the proceedings by certiorari, but only has limited the time within which parties must proceed. The purpose of the statute is' to' obtain speedy determination of suits begun to test the validity of the proceedings, and to avoid “the law’s delays,” and the incurring of further expense until the validity of the proceeding is beyond controversy. The township was duly served with notice of the proceedings and of soliciting bids, and its proper officer was present when contracts were let. The township did not move seasonably. Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130), where, in an opinion written by my Brother Montgomery, it was shown under what circumstances the common-law certiorari may be open, viz., where the statutory remedy is not possible of application. Such a case was Loree v. Smith, 100 Mich. 252 (58 N. W. 1015), where no order was actually made which would set the time running.
The judgment is affirmed.
Hooker, O. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Hooker, C. J.
This was an action brought to collect on an assessment made by order of the court by a receiver against a member of an insolvent mutual benefit society. The learned circuit judge directed a verdict for the defendant, and the plaintiff has brought error. All of the testimony introduced upon the trial is incorporated in the bill of exceptions, and the only question raised is whether it was sufficient to make a prima facie case. No testimony was introduced on the part of the defendant.
The substance of the testimony was as follows: The plaintiff testified that he was appointed and acted as receiver for the company, and in obedience to an order of the circuit court in chancery he made the assessment in question, which he introduced in evidence. A paper purporting to be a certified copy of the order of the circuit court in chancery was also introduced. There was no evidence showing that the court ever acquired jurisdiction of the defendant or the company, nor were the pleadings introduced by which the character of the suit in which the order purports to have been made can be determined. There was no evidence offered, aside from that contained in the order, that the defendant was a member of the company, or that any notice of the assessment had ever been served upon him. Under these circumstances the court could not have done otherwise than direct a verdict for the defendant. Kenyon v. Baker, 16 Mich. 373 (97 Am. Dec. 158); Goodrich v. Burdick, 26 Mich. 40; People v. Mersereau, 74 Mich. 687 (42 N. W. 153).
The judgment is affirmed.
Moore and Grant, JJ., concurred. Long and Montgomery, jj., did not sit. | [
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] |
Moore, J.
This suit was commenced in 1897. It was tried in 1899 by a jury. The court directed a verdict in favor of Thomas Wrinn, The jury found a verdict in favor of the other defendants. The case is brought here by writ of error.
A reference to the plat will aid in understanding the situation. The plaintiff is the owner of the E. -J of the S. E. ¿ of section 26. Mr. Hyde has a 40 acres directly south of this, and separated from it by a highway. Mr. Brandon owns the W. £ of the N. E. £ of section 35. It is plaintiff’s claim that, by means of ditches, Mr. Brandon and Mr. Hyde collected water upon their lands, and also from the highway, and projected it upon his land, so that his land was flooded and his crops destroyed. This is denied by defendants. They say that, in the course of nature, the water would pass from their lands over plaintiff’s land, and that the injury was caused, not by their act, but-by an unusually wet season.
The declaration, after setting out what was done by defendants, avers:
“And, by means of the construction of the said culverts and ditches aforesaid, the said land of plaintiff became submerged during the season for cultivation, and has been rendered unfit for cultivation and worthless; and, to wit, during the year 1895 and 1896, solely by means of said wrongful acts of defendants in collecting and delivering such large and increased quantities of water on plaintiff’s said lands, about 30 acres of crops of said plaintiff were totally destroyed, and said plaintiff was wholly unable to go upon said land to remove or care for said crops, consisting of potatoes, corn, wheat, and grass, by which said plaintiff lost the whole thereof, .of the value of $500.
“And the plaintiff alleges that because of the bringing of such large and increased quantities of water upon his land, and flooding the same, and remaining thereon, his land has become sour and unfit for cultivation, and said plaintiff has wholly lost the use of the same, or a large portion thereof, and the same has been greatly depreciated in value, to his great damage, in the sum of $1,000.
“And the plaintiff alleges that the continuance of said wrong, and the flowing of water from said artificial drains, constructed by said defendants on their lands as aforesaid, through said culvert, and unto the lands of said plaintiff, will entirely destroy said land for cultivation and use, and render it wholly worthless and valueless to said plaintiff, and permanently destroy the same, to the damage of said plaintiff of $2,000.”
It is alleged the judge erred in excluding the testimony of plaintiff that his land was flooded and crops destroyed as badly in 1897 and 1898 as in 1896, as tending to show permanent and continued injury from the continuing conditions, and to rebut the claim of defendants that the cause was excessive rainfall in 1896. It was claimed by defendants that the injury was caused, not by their act, but by the excessive rainfall of 1896.. We think it was competent to show, by way of rebuttal, that in the seasons of 1897 and 1898, when there was not an excessive rainfall, the same condition was produced on the land of plaintiff.
Portions of the charge require examination. The jury were told, among other things:
“I do not understand that the upper proprietor is forbidden to dig surface drains upon his lands. I understand that it is his right to construct such drains as he in good faith believes to be necessary in the interest of good husbandry, so long as he does not drain a larger area upon the land below than naturally flowed there, and so long as he does not construct drains sufficiently large to accumulate the water in unreasonably large quantities, and cast them in a body on the land below, to the injury of the land. And if he does no more than that, I understand he is not liable. * * *
“Now, in determining whether these ditches upon the line between Brandon and Hyde and on Hyde’s land were constructed there in good faith, and with no purpose of concentrating the water in large and unreasonable quantities and casting it upon Breen’s land, you have a right to take into consideration the lay of the land, the fall that appears to be from the south to the north in that locality, the size of the ditches, the amount of water they would carry off, the current that was in those ditches, so far as the testimony shows it, and take all the surrounding facts and circumstances into consideration, and from that determine whether, in the construction of these ditches, they were made larger than was reasonable or proper in the interest of good husbandry, taking the whole surrounding facts into consideration. If you find that they were not, and that they did not drain a larger area upon the plaintiff’s land than naturally flowed there, and they did not concentrate the water in unusual or large bodies and cast it upon the land of plaintiff, to his injury, then the defendants cannot be held liable for the construction of these ditches, even though the water may have run down these ditches instead of over the surface of the land.”
We think these portions of the charge are contrary to the decisions of this court as found in Boyd v. Conklin, 54 Mich. 583 (20 N. W. 595, 52 Am. Rep. 831); Yerex v. Eineder, 86 Mich. 24 (48 N. W. 875, 24 Am. St. Rep. 113); Osten v. Jerome, 93 Mich. 196 (53 N. W. 7); Leidlein v. Meyer, 95 Mich. 586 (55 N. W. 367). The cases in 86 Mich. 24 (48 N. W. 875, 24 Am. St. Rep. 113), and 93 Mich. 196 (53 N. W. 7), contain so full a discussion of this feature of the case that we do not deem it necessary to repeat the discussion here.
The judge also said:
“ When the public authorities constructed that highway between Breen and Hyde, they had a right to construct it so that it would be passable, and it was their duty to do so; and if, under the circumstances, it became necessary to turnpike that road at that point, and put ditches on the side, to keep it dry and passable, they had a right to do it. It was the duty of the township authorities, when they constructed that road, if the water flowed from one side to the other, — no matter which way, — to put in culverts there to,accommodate that flow; and, had they not done so, the township would be responsible for any damage that might be occasioned by the highway damming back the water.
“If, in your opinion, when this highway was constructed between Breen, and Hyde, it was raised no higher above the surface, and the ditches were dug no larger or deeper, than was necessary to properly construct the road, and that the culverts were no larger than were necessary for the water that might flow there, even by storms, — because they must construct them large enough to accommodate any water that comes there, — then I say to you that the construction of that road cannot be used as a means of giving Breen any advantage over the proprietors above him. Neither can it give him any right to damage from them, if that fact were standing alone. On the other hand, if Brandon and Hyde were responsible for the manner in which that road was constructed, and it was turnpiked higher than there was any necessity for, and the ditches on the sides were dug deeper and larger than the needs of the locality, and that the purpose and object of that was to concentrate the water in large quantities there, to the detriment and injury of Breen below, they would be responsible for any injury that follows.”
This statement of the law is not in harmony with Cubit v. O’Dett, 51 Mich. 347 (16 N. W. 679), where it was said:
‘ ‘ Highway authorities have no more right than private persons to cut drains the necessary result of which will be to flood the lands of individuals. This was shown in Ashley v. City of Port Huron, 35 Mich. 296 (20 Am. Rep. 622 [note], 24 Am. Rep. 552), where many authorities are referred to. The highway overseer, no doubt, has a discretion in deciding how and where he will expend highway labor; but it is a discretion limited by the rights of individuals, and when he invades those rights he becomes liable. Tearney v. Smith, 86 Ill. 391. And when he is liable for a lawless act, all his assistants are liable with him for the consequent injury. Story, Ag. §§ 311, 312; Brown v. Howard, 14 Johns. 119; Coventry v. Barton, 17 Johns. 142 (8 Am. Dec. 376); Fiedler v. Maxwell, 2 Blatchf. 552 (Fed. Cas. No. 4,760); Tracy v. Swartwout, 10 Pet. 80; Smith v. Colby, 67 Me. 169. This rule sometimes, when the agent has acted in good faith and without knowledge of the want of legal authority, may seem to operate oppressively; but it is a necessary and very just rule notwithstanding, and full protection of the citizen in his legal rights would be impossible without it. Absence of bad faith can never excuse a trespass, though the existence of bad faith may sometimes aggravate it. Every one must be sure of his legal right when he invades the possession of another.”
It is said the court erred in admitting testimony as to the amount of ditching required to remove this water through the Kennedy drain, because it assumed a right in defendants to artificially ditch all their waters onto and through him, and his duty to care for them and ditch them on his lower neighbors without their consent. Under the principle that every man is bound to make the injury he suffers as light as possible, we think this testimony was admissible as affecting the question of damages. See Cubit v. O’Dett, supra.
It is insisted that, as there is no testimony to connect Mr. Hyde with this trespass, the case should be affirmed as to him. In view of his testimony that he put the cul verts in the highway in 1894, and that he dug the first ditch on his land in 1894 for the purpose of collecting the surface water, and this ditch was connected with the highway ditch, we do not think it can be said there is no testimony connecting Mr. Hyde with the injury, if there was one.
For the reasons stated, the judgment is reversed as to defendants Hyde and Brandon, and a new trial ordered.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
The relief prayed for in the bill was granted. The defendants have brought the case here by appeal. The opinion of the trial court states the questions involved so clearly that we insert it here.
“On the 7th day of April, 1899, James W. Fales, J. D. Leland, John H. Brown, William E. Macklem, A. W. McVittie, and Frederick D. Bolison entered into a contract wherein said parties agreed to organize a joint-stock company. The rights, duties, and obligations of the parties are set forth in the contract. On the same day, or the day following, the articles of incorporation were executed and signed pursuant to said contract. The organization was for the purpose of manufacturing and selling the Common-Sense harrow and other agricultural implements. The Common-Sense harrow was made under patent issued to the said John H. Brown. This bill was filed by William E. Macklem and said John H. Brown to compel specific performance of the contract, praying, among other things, that the stock of said company be issued to the owners thereof, as provided in said contract, and that said Fales and McVittie pay into the treasury of the company certain moneys, as per the terms of said contract, which were as follows:
“ ‘Said Fales and McVittie have agreed, and do hereby severally agree, to pay into the treasury of said corporation, as the needs of its business shall require, each the sum of §6,250 in cash.’
“The testimony shows that the business of the company was carried-on for some time, and that the company became and is at the present time indebted to certain individuals, aggregating about $9,000. Fales was elected general manager of the company. His son, himself, and Mc-Vittie were directors of the company. The proof shows that they refused and neglected to deliver the stock certificates of the company to-the owners thereof, and Fales and McVittie have declined to pay in money according to the terms of the contract, beyond the sum of $1,500 each, which has been paid by them into the treasury of the company.
“It is claimed by the defendants Fales and McVittie that the contract is void; they having been induced to enter into the same by false and fraudulent representations on the part of Brown, Rolison, and Macklem. Previous to the contract and organization of the company, the right to manufacture said harrow and the patent for the States of Ohio, New York, Pennsylvania, Virginia, West Virginia, Delaware, New Jersey, and Maryland was owned by Macklem, Brown, Rolison, and J. D. Leland. Their contribution to the capital stock of the company was the right to manufacture said harrows in said territory; and Fales and McVittie, according to contract, agreed to put in the money as against this right. Fales and McVittie claim that false representations were made to them by said Brown and Rolison as to the price which Rolison and Macklem had paid for the territory. But it is conceded finally that' Macklem used no deception in this regard, but that False was fully advised as to what he had paid before the company was organized, which does not appear to be the fact as to the interest which was claimed to have been purchased by Rolison. However this may be, I don’t think Fales and McVittie were induced to go into the company by the price which it is claimed Rolison had paid, as no' intimate relations appear to have been shown between Fales, McVittie, and Rolison; nor is there anything to show that they relied upon his judgment as to the value of the territory.
“It is further claimed, as a reason for setting aside this-contract, that Brown represented that the harrow could be sold and placed upon the market for 25 cents a section. The evidence shows there was talk concerning this subject at the time, and previous to the signing of the contract. There can be no doubt that the question was discussed, and it seems to be the opinion now, as expressed upon the stand, of Mr. Fales, that Mr. Brown could sell the harrows at that price. But if the contract is set aside by reason of any misrepresentations as to the selling price, or because there was an agreement to sell it at that price, it must be — First, because it was a fraudulent representation upon the part of Brown, upon which Fales and Mc-Vittie relied; or, second, that it was a part pf the contract to sell at that price, which has not been fulfilled. In the former case, I hold it was a representation as to what could be done in the future, and therefore could not be made the basis for setting aside the contract on the ground that it was a fraudulent representation. On the other hand, if it was a contract or agreement to do the work at that, price on the part of Brown or any other person, if it was intended to be a part of the contract in question, it should have been embodied therein. If not a part of the ■contract in question, then the only liability would be upon a separate and distinct contract to perform, and the remedy would not reach to the annulling of the contract in ■question in this suit. It is not clear to the court that the harrow cannot be sold for the price mentioned; and, further, the court is of the opinion that it was not considered, at the time of the making of the contract, that the provision was to be any part of the same, or that Fales and McVittie intended to make an undertaking to that effect upon the part of Brown or any one else a sine qua non of their entering into the contract or organizing the ■company. Hence I conclude that the contract should stand, and is enforceable. From which it follows that Fales and McVittie should pay into the company the balance unpaid, as provided by the contract, which, according to the evidence, would be $4,750 each. I think that the evidence shows that the needs of the company require that the whole amount should be paid in immediately.
“On the 7th day of November, 1899, the Detroit Harrow & Manufacturing Company, by A. McVittie, president, executed to James W. Fales, trustee, a chattel mortgage upon all the tangible property of the company, to secure the debts of the company, and to secure the payment to said McVittie of $1,500, and to said J. W. Fales of $4,000. This mortgage was determined upon at what is claimed to be a meeting of the board of directors, at which said Fales and McVittie were the moving parties, and without having been demanded by the creditors of the company. Such mortgage, as before stated, covers all tangible assets of the company, and really is a conveyance of all its property. Good faith upon the part of the directors demanded that the stockholders should have been notified; and the law requires that the directors, at least, should have been notified, and also should have been notified of the purpose of the meeting. It does not appear to me that ■such was the case, however. The conditions of this mortgage are as follows:
“ ‘That if the said Detroit Harrow & Manufacturing Company ■shall pay or cause to be paid to the said several parties tp whom it is indebted as aforesaid the amount, with interest, of said indebtedness, and also all costs and expenses as hereinafter provided then this obligation is to be void; otherwise to remain in full force and effect. But if default shall be made in the payment of said debts or demands, or any thereof, or the interest fail, or any portion thereof, as the same shall become due, then the party of the second'part is authorized to take possession of and manage the said business of the said first party, complete and carry out its contracts, and sell said property, or any portion thereof, in such manner as he shall deem best for the parties interested in said trust, either at public or private sale, in bulk or in parcels, in the ordinary course of business or otherwise, at such times and ón such terms as may, in his discretion, be advisable, and for the best interests of the said creditors and of the party of the first part; and he is hereby authorized to collect all its book accounts and bills receivable, and to that end to use the ordinary means, including the use of the first party’s name, but at his own expense as trustee, and, after all reasonable efforts have been exhausted to collect such accounts, to sell, after five days’ notice to said first party, the same, or such portion thereof as may remain uncollected. And said trustee is hereby authorized, at anytime when he shall deem himself, for said indebtedness, or any portion thereof, insecure, or if said party of the first part shall sell or assign or dispose of, or shall remove or attempt to remove, the whole or any portion of said property from the city of Detroit, without the written consent of the said party of the second part, except in the usual course of trade, then from this time to enter upon said premises, or-any place or places where said mortgaged propeuty or any part thereof may be, and take possession thereof, and sell and dispose of the same, or so much thereof as may be necessary to pay the expenses incurred in and about the taking of possession of said property, and in the care thereof, and in and about the foreclosure of this mortgage, the costs and charges, taxes and insurance, hereinafter mentioned, and the claims and indebtedness hereinbeforementioned, and each and all thereof, and the interest thereon.’
“ Then it provides that he may pay taxes, insurance, and attorney’s fees, and a reasonable compensation to-himself for his services as trustee, etc.
“It will be seen by this instrument that the entire business was taken from the hands of the company, and placed in the hands of Fales, or might be, at his will and pleasure. It is proposed to secure Fales, and provide for the payment to him of $4,000, which the court holds he was not entitled to; and to said McVittie the sum of $1,500, which he was not entitled to. The terms of the mortgage are as severe as would be expected between antagonistic and hostile parties, and the management of the business, the disposition of the property, is all placed in the hands of one who, to say the least, was not, at the time of the giving of the mortgage, displaying any great amount of zeal in the interests of all the stockholders. I do not think the mortgage ought to be sustained. In my judgment, the courts ought not to look with favor upon transactions of this kind. It really amounts to the gratuitous mortgage given by parties to secure themselves, without notice to the stockholders or to all the parties interested. The mortgage, therefore, will be set aside and held for naught.
“When the money is paid into the company by Fales and McVittie pursuant to the terms of the contract, the company will not be insolvent. Hence the court does not feel at liberty to provide for a receiver at this time, but the future destiny and management of the company should be left to the stockholders and board of directors, who, it is assumed, will act in good faith for the best interests of the company.
“Some question might be raised as to the rights of the creditors. It doesn’t appear from the evidence that the creditors, outside of Fales and McVittie, ever requested the mortgage or ever accepted it, or in fact, at this time or at any other time, have relied upon it as security for their claims; but they are fully protected, or will be upon the payment by Fales and McVittie of the amount mentioned, which will make the corporation solvent and place it in a position to pay the debts, to which, in the opinion of the court, that money ought to be dedicated first of all.
“ I can see no legal reason for not delivering the- certificates of stock to Macklem. They should be so delivered.
“A decree may therefore be entered providing (1) that the certificates of stocks be delivered to Macklem and others, if there are any others to whom they belong; (3) that the contract is valid and binding, and Fales and- Mc-Vittie should pay into the treasury of the company the balance as mentioned above; (3) that the chattel mortgage purporting to have been given by the company to Fales as trustee be set aside.”
The legal proposition discussed by counsel for defendants is stated by them as follows:
“ Undoubtedly equity has jurisdiction, where a person has been induced by fraudulent representations to enter into a partnership, to rescind the contract at his instance, and put an end to it ab initio.” Oteri v. Scalzo. 145 U. S. 588 (12 Sup. Ct. 895).
It is insisted that Mr. Fales and Mr. McVittie were induced to enter into this contract by means of fraudulent representations, and especially by the statement that the harrow could be sold at the expense for selling of 25 cents a section. It is said this was not an expression of an opinion simply, but was made in bad faith, by one possessing superior knowledge, and with the intention to deceive, and, this being so, defendants could refuse to go on with the contract; citing French v. Ryan, 104 Mich. 630 (62 N. W. 1016). In this connection it is a somewhat significant fact that, in the written contract which was entered into by the parties, no suggestion is made as to what the expense would be for selling the harrows.
The record is very long. A great deal of testimony was taken. The circuit judge was of the opinion no fraud was shown which would justify setting aside the contract. We agree with him in that conclusion. See Gordon v. Butler, 105 U. S. 553, 556; Pike v. Fay, 101 Mass. 134; Dawe v. Morris, 4 L. R. A. 158, and note (s. c., 149 Mass. 188, 21 N. E. 313, 14 Am. St. Rep. 404); “Matters of Opinion,” Cooley, Torts, p. 483; French v. Ryan, 104 Mich. 625, 630 (62 N. W. 1016). The important question is one of fact. It would profit no one to set out the testimony here, or to attempt to analyze it. We shall content ourselves with saying we agree with the conclusions reached by the circuit judge.
The decree is affirmed, with costs.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Montgomery, J.
This case originated in the probate court of Marquette county. On an appeal to the circuit court, and on a trial by a jury, a verdict in the sum of $5,721.49 was entered against the estate. The case is brought here for review on error. The claim presented was for money had and received by deceased on October 9, 1882, and for interest thereon to the time of hearing. Briefly stated, the claimant gave testimony showing the following state of facts: McLeod, the deceased, held the legal title in 1882 to a mining property known as the “Ells-worth Mine,” in Marquette county. Before McLeod became the purchaser of this property, Shouldice, the claimant, had investigated the property, and examined the surface indications. After McLeod became the purchaser, claimant continued to be interested in the property; but whether as an owner or as an emplbyé appears not to be susceptible of direct proof, because of the death of McLeod, and of the incompetence of Shouldice to testify as to that question. It appears, however, that on the 22d of September, 1882, Shouldice made an agreement with one Isaac A. Pool, of which the following is a copy:
“ I hereby agree to sell to Isaac A. Pool, or whoever he may designate and name, one-fourth interest, being five thousand shares, in the Ellsworth mine, and all leasehold rights in and to the south half of the southeast quarter of section nineteen, town forty-seven, range thirty, being in Marquette county, State of Michigan, for and upon the payment of three thousand dollars.
[Signed] “H. Shouldice.”
It also appears that on the 25th of September, 1882, this agreement was underwritten by McLeod as follows: “I will transfer that amount of stock to H. Shouldice.” A similar agreement was made for an additional 100 shares of stock, and was likewise underwritten by McLeod with an agreement to transfer the stock to Shouldice. It appears that subsequently, on the 5th of October, an assignment was made by McLeod, to parties named by Pool, of undivided interests in the mine. Three different assignments were made, one of which recited, “This in fulfillment of our agreement made by Henry Shouldice to Isaac A. Pool September 22, 1882;” and the other two assignments contain a clause reading, “ This in fulfillment of an agreement made by Henry Shouldice to Isaac A. Pool September 22, 1882.”
Pool testifies that, when negotiating or after closing with Shouldice, he learned that the leasehold was in Mr. McLeod; that it stood in his name; and the witness proceeds to state:
“That is why McLeod wrote on the bottom of those two that he would transfer the stock; that I should have it from Henry Shouldice. And when I had effected the sales, instead of receiving the title to the whole 5,000 shares for myself, I went to McLeod and got a transfer to my customers direct from him, so that they could have no question about the title being correct.”
The witness testified that, when he got the check, he carried it to Negaunee, and saw Mr. Shouldice, ' and handed him the check, and they went together to Mr. McLeod, and passed the check over to Mr. McLeod. Later on, a company was organized, and shares of stock issued, of which 6,350 were issued to McLeod, 6,650 to Shouldice, and the remainder to parties to whom sales had been made. The witness also testified that his recollection was that Mr. Shouldice stated that the money which he (Pool) agreed to pay for the interest purchased by him would carry the thing along until there was iron enough on top of the ground to .sell; that the parties would not have to put in any more money. Shouldice disputed this last statement.
The circuit judge was of the opinion that the inferences to be drawn from the state of facts shown were to be drawn by the jury, and submitted the question to the jury as to whose money it was that was paid over by Mr. Pool by the check made in the name of McLeod, and handed to Shouldice, and by him passed to McLeod. He instructed the jury to take all the circumstances surrounding the matter into consideration, — the fact that Mr. Shouldice had made this agreement with Mr. Pool, assented to by Mr. McLeod; that McLeod followed up the arrangement by making a formal transfer of the interest in fulfillment of that agreement; the circumstances testified to by Mr. Pool; why he made the check payable to McLeod instead of Shouldice; and the fact that the money was paid over by Shouldice to McLeod, — and determine whether there was a preponderance of evidence in favor of the plaintiff’s claim that this money belonged to him. It is contended by the defendant that no such inference as the jury drew is open, upon the state of facts shown. But we incline to the opinion that this question was properly treated as a question of fact by the circuit judge.
Complaint is also made of the instruction of the circuit judge as follows:
“ I have said to you that it is undisputed that the title to this lease was in Mr. McLeod. That is a circumstance for you to consider. It is not a controlling circumstance, however, in the case, necessarily; for we know that very frequently titles are taken to mining property by one.person, and held by him in trust for the others.”
We think the jury could not have been misled by this instruction. The case is very different than it would be had the present record been barren of any testimony showing that titles were thus taken. But it would appear from this record that other parties were interested in this mine besides McLeod, and yet the title to the whole was vested in him. Under these circumstances, we think the jury could not have been misled by the statement of the circuit judge.
The case was a very close one on its facts, and it will be apparent at a glance that the slightest contravention of the rules of evidence, by permitting testimony from the claimant which was incompetent, might have turned the scale. We are constrained to hold that the rule, in one respect, was not observed in this record. Mr. Shouldice was a witness on his own behalf, and was asked in regard to the statements alleged to have been made to Mr. Pool that the money which he expected to receive upon the sale would carry the thing along until the iron was on top of the ground, etc., and testified as follows: v
“ Q. Was it intended to use it in the development of this property ?
“A. No, sir. It was my own individual money, and it was not intended for any such purpose. It was intended—
“Mr. Clark: I move to strike out the evidence as incompetent.
“A. To buy off Mr. Atkinson; that is what it was intended for.
“The Court: I should say that that wouldn’t necessarily be, or probably be, within the knowledge of the deceased.
“Mr. Clark: Note an exception.”
We think this testimony should have been stricken out. The witness testified to a fact that must have been equally within the knowledge "of the deceased, namely, that the money to be realized on this sale was his (the claimant’s ) individual money. This was the meat of the question to be determined by the jury. We think it quite possible that this testimony, coming in the form that it did, es eaped the attention, of the circuit judge. Indeed, it is contended by claimant’s counsel that the motion to strike out only related to the last part of the answer; but we do not so read the record. In fact, defendant’s counsel interposed the objection before the answer was fully completed.
The estate also interposed the defense of the statute of limitations, and counsel for the estate urge that this defense was fully made out. We are convinced, however, that, upon the record, it was a question for the jury, under proper instructions, which were given.
For the error pointed out, the judgment will be reversed, and a new trial ordered.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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T. M. Burns, J.
Prom his conviction of the felony of breaking and entering with the intent to commit a larceny, MCLA § 750.110 (Stat Ann 1971 Cum Supp § 28.305), and sentence of 2-1/2 to 10 years in prison, defendant brings this appeal as of right.
On November 11, 1969, the Perfection Bedding Company in Kalamazoo was broken into. The people’s first witness, the owner, testified that the building was closed and locked at the end of the business day; but when he returned the following morning, he found an upstairs window broken and papers, which had been on and inside a desk, strewn about the floor. Nothing was found missing.
Mr. Larry Williams, after admitting a rather extensive criminal record, testified that he, defendant, and two others went to a furniture place on the night of November 11, 1969. Williams indicated that he thought the building was empty and they decided to explore it and that Williams, defendant, and one other climbed up on the roof, broke a window, and entered the building.
Williams, who was not charged with a crime arising out of this incident, then testified that one of the others had previously suggested that they go get some money and defendant had suggested the east side of town. Williams stated that while in the building, he saw defendant walking around the desk and going through the drawers.
The people then called the officer in charge of the ease to establish that Williams had not been threatened with the possibility that criminal charges would be brought against him arising out of this incident if he didn’t testify at trial. The people also called one of the alleged accomplices, who refused to testify because it might incriminate him.
Both the prosecution and defense then rested. Defendant moved for a directed verdict which was denied. The court charged the jury on breaking and entering with intent to commit larceny, but refused to charge the lesser included offense of illegal entry.
Defendant contends that the trial court should have granted the directed verdict. It is the defendant’s position that there was insufficient evidence as to the element of intent to support a verdict of guilty of breaking and entering with the intent to commit larceny.
“It has long been the law in the State of Michigan that criminal intent is a question of fact to be inferred from all the facts and circumstances disclosed by the testimony. People v. Griffin (1889), 77 Mich 585.” People v. Gollman (1966), 3 Mich App 463, 466.
Larry Williams testified that they were out to get some money and that he saw defendant inside the building ransacking a desk. The owner testified that papers which had been inside the desk were strewn about the floor. In our opinion the above testimony, if believed by the jury, is sufficient to establish the element of intent.
Defendant contends, however, that the testimony of Williams could not be believed because much of his testimony was in response to leading questions asked by the prosecutor.
Our review of the record reveals that there were some leading questions asked by the prosecutor. However, it is our opinion that they were not prejudicial to the defendant. It appears that Larry Williams was at best an unresponsive witness. The prosecutor even remarked while questioning Williams that he felt Williams might even be a hostile witness. It also appears that Williams had a difficult time remembering the incident. Therefore, any leading questions permitted by the trial court, within its discretion, were entirely proper. Since the testimony was not tainted by the leading questions and we have already held that it was sufficient, if believed, to establish the element of intent, we find that the trial court was correct in refusing to grant a directed verdict.
Defendant also contends that it was error for the trial court to refuse to instruct the jury on the crime of breaking and entering without permission.
Larry Williams testified at one point that they thought the building was vacant and that they just wanted to explore it and at another point stated that they wanted to g’et some money.
Since the finding of intent to commit a larceny was largely based upon Williams’ testimony and since his testimony was inconsistent in regard to that intent, the court should have charged the jury as to the lesser included offense of breaking and entering without permission, MCLA § 750.115 (Stat Ann 1962 Rev § 28.310).
It is error to fail to instruct on a legally possible included offense if supported by competent testimony.
“ ‘A party is entitled to have specific charges upon the law applicable to each of the various hypotheses or combinations of facts which the jury, from the evidence, might legitimately find, and which have not been covered by other instructions.’ People v. Parsons (syllabus), 105 Mich 177.” People v. Hoefle (1936), 276 Mich 428, 431.
In our opinion the jury might have legitimately found from the evidence that the defendant had only committed the crime of breaking and entering without permission. It was, therefore, error not to charge the jury as to that crime as requested by the defendant. There must be a new trial.
Reversed and remanded.
All concurred.
See McCormick, Law of Evidence, § 6, pp 10,11. | [
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] |
Per Curiam.
Banner Lumber Company delivered lumber to defendant building companies in 1959. Banner failed to press its claim against these companies upon being informed in May, 1960 that both Alger Homes, Inc., and Lauren Construction Co. had ceased doing business and had no assets. Upon being informed in January, 1970 by this Court’s opinion in Taines v Munson, 19 Mich App 29 (1969), that a one-half interest in a valuable property had been conveyed to Shapiro & Munson, Inc., by Michael Z. Taines, owner of Alger Homes, Inc., and Lauren Construction, on December 21, 1959, for far less than the real value of the property, plaintiff filed a complaint against these defendants for the value of the lumber and for exemplary damages, claiming that the conveyance to Shapiro & Munson, Inc., was a fraud upon creditors. See Taines v Munson, supra, for the factual background in that case.
Defendants filed motions for accelerated judgments for the reason that plaintiff’s cause of action was barred by the statute of limitations, MCLA 600.5813; MSA 27A.5813. Plaintiff answered, arguing that its cause of action was preserved by MCLA 600.5855; MSA 27A.5855 because of defendants’ alleged fraudulent concealment of the 1959 conveyance. Oakland County Circuit Judge Robert L. Templin granted accelerated judgments of dismissal as to all defendants on October 7,1970, and June 30, 1971. Plaintiff has appealed and defendants Alger Homes, Inc., Lauren Construction Company, and Michael Z. Taines have filed the motion to affirm.
In its brief on appeal Banner Lumber Company argues that under the above cited statutes, specifically MCLA 600.5855; MSA 27A.5855, that it had two years following its discovery of defendants’ allegedly fraudulent conveyance within which to start suit on its cause of action as a creditor of Alger Homes, Inc., and Lauren Construction.
The statute relied upon has no application to the facts of this case. Here, taking the facts in a light most favorable to plaintiff, it was not the cause of action but the assets of defendant corporations which were concealed. “The language of the statute makes it apparent that the running of the statute was tolled only if defendants fraudulently concealed from plaintiffs the knowledge that they had a cause of action against him. * * * If there is a known cause of action there can be no fraudulent concealment which will interfere with the operation of the statute, # * * . It is enough that he knows that a cause of action exists in his favor, and when he has this knowledge, it is his own fault if he does not avail himself of those means which the law provides for prosecuting or preserving his claim.” Weast v Duffie, 272 Mich 534, 539 (1935).
The motion to affirm is granted. | [
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Fitzgerald, J.
Defendant was convicted, following a jury trial, of carrying a concealed weapon.
Shortly after 10 p.m. on March 12, 1970, Miss Sandy Thayer called the Bay City police from her second story apartment to report that she heard a strange tapping and glass breaking, presumably in the State License Bureau below. Nearby police officers were given this information, by radio and responded.
Trial testimony indicates the officers observed only one person, the defendant, in the entire area. He was near the entrance to the nearby Breen’s sporting goods store and started to walk towards them with his hands in his pockets. One of the officers called defendant over and asked him if he had heard any glass breaking. The answer was no. At about this time, the other officer, after checking the license bureau door and others in the vicinity, discovered the door to Breen’s had been broken. Defendant was placed under arrest for attempted breaking and entering, advised of his rights and frisked for weapons. An 18-inch-knife-sharpening steel was found concealed in defendant’s clothing. When asked why he was carrying the steel, he answered it was for protection.
Following a preliminary examination, defendant was bound over for- trial on a concealed weapons charge. The jury trial resulted in conviction. Defendant appeals.
On appeal, four issues are raised:
1. Was the police search, leading to the discovery of the steeL on defendant’s person, conducted pursuant to a lawful arrest?'
2. Were defendant’s statements made voluntarily in accordance with the Miranda doctrine?
3. Were defendant’s statements to the police the morning after the arrest inadmissible under the Hamilton rule?
4. Did the steel constitute a dangerous weapon?
Defendant’s arrest was made on more than mere suspicion. People v. Griffin (1971), 33 Mich App 474. The police, in this case, were informed that there was glass breakage beneath or near Sandy Thayer’s apartment. Defendant was the only person on the street, was observed coming from Breen’s store, and was asked if he heard glass breaking. After his negative response, the police discovered the plate glass door to Breen’s had been smashed, leaving a large hole with broken glass both inside and outside of the store.
The facts available to the officers at the moment of arrest would warrant a man of reasonable caution to suspect that a felony had been committed and that defendant was involved in its commission. People v. Harper (1962), 365 Mich 494, 501; People v. Panknin (1966), 4 Mich App 19; People v. Williams #2 (1970), 23 Mich App 711; People v. Pantoja (1970), 28 Mich App 681; People v. Surles (1970), 29 Mich App 132, 136.
The arrest was lawful and the arresting officer could properly search defendant’s person. People v. Gonzales (1959), 356 Mich 247; People v. James Brown (1970), 28 Mich App 421. The seizure of the sharpening steel and its admission as trial evidence was not error. People v. Herrera (1969), 19 Mich App 216; People v. Nelson (1970), 29 Mich App 251.
Defendant claims inadmissible testimony on the part of Detective Schramm based on People v. Hamilton (1960), 359 Mich 410. The record is devoid of any showing of delay in presenting defendant to a magistrate for the purpose of obtaining a confession. There is no showing of prolonged interrogation or unnecessary delay. In addition, no objection to Detective Schramm’s testimony was offered at trial. We find no Miranda problem.
Defendant’s statement that he was carrying the steel for protection and other statements were entered into the trial proper without objection. After the people rested, defendant submitted a motion petitioning the court to instruct the jury to disregard defendant’s statements.
The court did not err in refusing to give the requested instruction. The rule controlling the decision on this question is clearly stated in People v. Dawson (1971), 32 Mich App 336, 338, where the Court held:
“The defendant contends that it was error for the trial court to refuse to strike testimony of two of the prosecution’s witnesses. The defendant did not object at the time this testimony was offered. His counsel cross-examined these witnesses. In general an objection must be made at the time the grounds for the objection become known. Wigmore on Evidence (3d ed), § 18. Since the objection was not timely we do not believe that the trial court abused its discretion in refusing to strike the testimony. See People v. Maloy (1919), 204 Mich 524.”
Whether the object carried is offensive and dangerous, and the subjective reasons for possible use and concealment, are questions for the jury. People v. Ragland (1968), 14 Mich App 425, 426; People v. Knapp (1971), 34 Mich App 325.
The jury, from the evidence, was justified in determining that the sharpening steel carried by defendant was a concealed weapon.
Affirmed.
All concurred.
MCLA § 750.227 (Stat Ann 1962 Rev § 28.424).
Miranda v Arizona (1966), 384 US 436 (86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d974).
People v Hamilton (1960), 359 Mich 410. | [
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R. B. Burns, J.
Plaintiff is next friend and guardian of Beverly Howard, a five-year-old girl. Beverly was injured in an automobile accident and taken to Parkvue Medical Center for treatment. Dr. Park testified that he examined Beverly for internal injuries, treated her for superficial wounds, and referred her to Dr. Lawand for the application of a cast. Dr. Park also testified that Dr. Lawand was a surgeon with more expertise in the treatment of fractures.
Six weeks later Beverly and her mother returned to the medical center to have the cast removed. Dr. Lawand removed the cast with a vibrating wheel. A vibrating wheel, according to Dr. Park, does not turn, but removes easts by vibration. Dr. Park further testified that a person’s finger would not be cut even if placed directly on the wheel.
Dr. Lawand started to remove the cast and after a few seconds Beverly began to scream. Mrs. Howard told the doctor to stop; the child was being hurt. He continued to remove the cast, insisting Beverly was only frightened.
When the cast was finally removed, severe, deep cuts were visible, which were bleeding. Dr. Lawand put ointment on the cuts and told Mrs. Howard to bring the child back to the center if she needed' further treatment. The Howards brought Beverly back to the center and Dr. Park continued to treat the cuts.
Plaintiff’s original suit was brought against Dr. Lawand and Dr. Park, doing business as Parkvue Medical Center.
Parkvue Medical Center is owned by Dr. Charles Park and employs 27 people. Approximately 33 doctors are associated directly with the center utilizing its services; six of the doctors maintained offices in the center. In many cases the doctors’ patients are billed by the center. In return for the use of the center’s facilities and services, doctors like Dr. Lawand pay the center 50% of their charges. Dr. Lawand, who had an office with his wife, a pediatrician in Wayne, Michigan, was called upon by the center for services in surgery.
Plaintiff, in his original complaint, joined Dr. Park, doing business as Parkvue Medical Center, as the employer of Dr. Lawand. At the close of the proofs, he moved to amend his pleadings to conform to such proofs, and to hold defendant liable under one of two theories; that of agency or of joint enterprise. The trial judge allowed the amendment and held defendant liable under the theory of respondeat superior, that Dr. Lawand was defendant’s agent and, therefore, the defendant was liable.
Defendant, on appeal, claims that trial court erred in holding that plaintiff had met the burden of proof as to malpractice against Dr. Lawand and that defendant was liable for the acts of Dr. Lawand.
The test in determining the distinction between an independent contractor or an agent is the right of control. Kaniewski v Warner, 12 Mich App 355 (1968). However, even though Dr. Lawand is in fact an independent contractor it is still possible that Dr. Park may incur liability for the negligence of Dr. Lawand based on the theory of “ostensible agency” (agency by estoppel). This doctrine is well recognized in Michigan.
“Not only may a principal be estopped in some circumstances from disputing the scope of the authority of one who admittedly is his agent, but it is also established that, in a proper case, one person may be estopped from denying that another is his agent. Thus, an agency by estoppel is established where it is shown that the principal held the agent out as being authorized, and a third person, relying thereon, acted in good faith upon such representation. # * #
“Whether or not a person has so held out another as to be estopped to deny that the latter is an agent depends on whether, # # * the acts and conduct of the alleged principal were such as reasonably to lead the third person to believe that an agency in fact existed, * * * .
“Reliance on the apparent agency is essential to the creation of an agency by estoppel, and so it is held that such an agency does not arise if the third person had notice of the alleged agent’s lack of capacity.” 1 Callaghan’s Michigan Civil Jurisprudence, Agency, § 27, pp 171-173.
The above theory has been relied upon in a number of cases holding a hospital liable for negligence of a doctor who in fact was found not to be an agent of said institution.
“Where a hospital can be found to have ‘held out’ to the prospective patient or his relatives that medical treatment is to be administered by a doctor employed therein, liability for its physician’s negligence may be imposed on the hospital under the doctrine of respondeat superior, even though, for other purposes and other contexts, the physician would be regarded as an independent contractor in relation to the hospital.” 69 ALR2d 305, 321.
In Stanhope v Los Angeles College of Chiropractic, 54 Cal App 2d 141, 146; 128 P2d 705, 708 (1942), the Court said:
“ ‘An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.’ § 2300, Civ Code. In this connection it is urged by appellant that ‘before a recovery can be had against a principal for the alleged acts of an ostensible agent, three things must be proved,' to wit:’ (quoting from Hill v Citizens Nat Tr & Sav Bank, 9 Cal 2d 172, 176, 69 P2d 853, 855): ‘[First] The person dealing with the agent must do so with belief in the agent’s authority and this belief must be a reasonable one; [second] such belief must be generated by some act or neglect of the principal sought to be charged; [third] and the third person in relying on the agent’s apparent authority must not he guilty of negligence. 1 Cal Jur 739; Weintraub v Weingart, 98 Cal App 690, 277 P 752.’
“An examination of the evidence hereinbefore referred to which was produced on the issue of agency convinces us that respondent has met the requirements enumerated in the Hill case. So far as the record reveals appellant did nothing to put respondent on notice that the X-ray laboratory was not an integral part of appellant institution, and it cannot seriously be contended that respondent, when he was being carried from room to room suffering excruciating pain, should have inquired whether the individual doctors who examined him were employees of the college or were independent contractors. Agency is always a question of fact for the jury. The evidence produced on this issue is sufficient to support the jury’s implied finding that Dr. Joyant was the ostensible agent of appellant college.”
Turning to the situation in the ease presently before this Court, we find that it was through Dr. Park’s facility and by his own personal referral that Dr. Lawand happened to treat the child in the first place. The treatment took place entirely at the hospital where Dr. Lawand conducted himself as a member of. said clinic. The November 7th visit was billed through Parkvue Medical Center stationery with Dr. Lawand’s name on it. There is nothing in the record to indicate that plaintiff should have been on notice that Dr. Lawand was not an employee of defendant hospital and, in light of the emergency situation, it can not be seriously contended that Mrs. Howard was obligated to inquire whether each person who attended her daughter was an employee or an independent contractor. The trial court did not err in finding that Parkvue Medical Center was liable for the negligence of Dr. Lawand.
In a malpractice suit the plaintiff must sustain the burden of proof and must submit testimony to the effect that the attending physician did acts that were contrary to the practice in that or similar communities. Mitz v Stern, 27 Mich App 459, (1970).
The defendant himself testified that a person could place his finger on a vibrating wheel and it would not be cut. Beverly was cut when Dr. Lawand used the wheel to remove her cast. This was sufficient for the trial judge to find Dr. Lawand guilty of malpractice.
Affirmed. Costs to plaintiff.
All concurred.
Before trial Dr. Lawand was dropped as a defendant on the basis of a covenant not to sue.
Brown v Moore, 247 F2d 711 (CA3 1957), cert den 355 US 882; 78 S Ct 148; 2 L Ed 2d 112 (1957); Seneris v Baas, 45 Cal 2d 811; 291 P2d 915 (1955). | [
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] |
Quinn, P. J.
A statement of some underlying facts at the outset of this opinion may clarify what is involved in this litigation, its disposition by the trial court, and our disposition on appeal.
Arthur V. Hughes and Patricia M. Hughes were married March 7,1940, when Arthur V. Hughes was a civil service employee of the United States earning about $19 per week. The parties were divorced August 31, 1964. During the 24 years of marriage, the parties had three children: a son born in August 1943, a daughter born June 25,1947, and a son born February 19, 1954. During this same period, Arthur V. Hughes advanced from a civil service employee to vice-president of a corporation, earning approximately $30,000 per year.
Provisions of the divorce judgment pertinent to present decision are:
1. Arthur V. Hughes to make support payments of $150 per month for the youngest child until it attained 18 years of age or until the further order of the court, and to pay all reasonable medical, dental, and hospital expenses incurred on behalf of this child.
2. Arthur V. Hughes to pay alimony of $600 per month to Patricia M. Hughes until the further order of the court, the same to abate if Patricia M. Hughes remarried.
3. Arthur V. Hughes to maintain insurance on his life in the amount of $22,500 payable to Patricia M. Hughes as beneficiary. In the event of Arthur V. Hughes died while obligated to pay alimony, Patricia M. Hughes was to receive the insurance immediately in a lump sum in lieu óf 37-1/2 months alimony.
4. Marital home and all appurtenances, furniture and personal property therein to Patricia M. Hughes, as well as an automobile, all bank accounts, stocks and bonds, in her name, possession or control.
5. Arthur V. Hughes received an automobile, his bank accounts, stocks, and bonds.
6. Created a trust of Arthur V. Hughes’ share in the profit-sharing trust of his employer and $32,500 of insurance on his life until February 17, 1975, when the youngest child attained a majority, for the benefit of the children. Ordered Arthur Y. Hughes not to change, amend, alter, or revoke his will of May 7, 1963, and a codicil thereto of May 11, 1964, both of which were made a part of the judgment. The codicil, executed during the pendency of and in contemplation of the divorce, left Patricia M. Hughes nothing.
Arthur V. Hughes married Ina R. Hughes January 25, 1969, and he died May 2, 1969. This action was filed by his executor for interpretation and modification of the divorce judgment. His widow was permitted to intervene as a party plaintiff.
The trial court found:
1. Unless the decree provides otherwise, alimony is payable after death as a matter of law.
2. The decree in issue does not so provide and the intent thereof was that alimony continue after death.
3. Factually, change in circumstances merits modification.
On these findings, the trial court ordered:
1. Alimony payments abate as of Arthur V. Hughes’ death, and in lieu thereof, defendant receives a lump sum equal to the entire value of his probatable estate, not to exceed $70,000; this in addition to the $22,500, in full settlement of all alimony claims. Impressed the assets of the estate with a lien to secure payment.
2. Terminated child support payments at the death of Arthur Y. Hughes.
The trial court found that payment of alimony continues after death unless the decree provides otherwise, this decree did not so provide, and the parties to the divorce intended that alimony payments were to continue after death. On appeal, the parties thoroughly briefed the question of whether alimony payments abate on the death of the payor. We do not discuss this issue because we find it is not pertinent to decision.
Our de novo review convinces us that the parties to the divorce intended that in the event of Arthur Y. Hughes’ death, Patricia M. Hughes was to receive 37-1/2 months further alimony, or $22,500, and that was it as far as alimony is concerned. The whole structure of the judgment, the trust therein created, and the incorporation of the will and codicil demon strate this intent. While in so many words the judgment does not say alimony abates at death, the only inference to be drawn from the scheme devised by the parties is that Arthur Y. Hughes would pay $600 per month alimony so long as he lived, unless the court amended this provision, but if he died, a further payment in a lump sum equal to 37-1/2 months at $600 ended the obligation.
Reversed and remanded for entry of an order requiring payment to defendant of $22,500. Further relief is not within our jurisdiction. No costs are allowed.
All concurred. | [
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Montgomery, J.
This case originated before a circuit court commissioner, and is a summary proceeding instituted to recover possession of land. • The case found its way into the circuit court, and, on a trial before the court and a jury, a verdict was directed for the defendant, and the complainant brings error.
The evidence on the trial tended to show that the complainant leased these premises to one Jacob Berlin; the lease containing a covenant by the lessee not to assign or transfer the lease, or sublet the premises, or any part thereof, without the written assent of the lessor. The lease also provided that, if default should be made in any of the covenants therein contained, it should be lawful for the first party to re-enter into and repossess the premises, and the said party of the second part, and each and every other occupant-, to remove and put out. The evidence tended to show that Berlin assigned his lease to defendant, Hartz, without the consent or approval of the complainant, and this proceeding was thereupon instituted.
It was stated in Randall v. Chubb, 46 Mich. 311 (9 N. W. 429, 41 Am. Rep. 165), that an unauthorized assignment of a lease, and attempt to give the assignee possession, works a forfeiture of the lease, and that the lessor may take immediate steps to recover the premises. This case was followed in Lewis v. Sheldon, 103 Mich. 102 (61 N. W. 269). These cases were cases where the lease was found to be personal, because of the character of the tenancy. But where the lessee covenants that he will not assign, and the lease further provides that a breach of such covenant shall work a forfeiture, it is even clearer that the complainant may repossess himself of the premises. We think that, if the case as asserted by complainant was sustained, the tenant was holding contrary to the provisions of the lease, and that the case falls within the provisions of 3 Comp. Laws, § 11164.
But the case was determined below upon the ground that this was a proceeding under the forcible entry and detainer act, and that as it did not appear that the defendant entered, by force, or continued in possession of the premises by force, complainant was not entitled to maintain the action. The pleadings in the case consisted of the complaint and summons, which complied with 3 Comp. Laws, §§ 11165, 11166. It appears that the complainant, in his opening statement to the jury and in his argument to the court, claimed that the complaint was made and this proceeding brought for forcible detainer, under the statute relating to forcible entries and detainers, being chapter 286, 2 How. Stat. This chapter is headed,, “Proceedings to Recover the Possession of Land in Certain Cases,” followed by a subtitle, “Of Forcible Entries and Detainers,” and after section 11 another subtitle, “ Summary Proceedings to Recover the Possession of Land in Other Cases.” For some reason the title, “ Forcible Entry and Detainer,” is carried forward at the top of the page throughout the entire chapter relating to summary proceedings, — an error which is corrected in 3 Comp. Laws 1897. The question is whether anything that appears in the record ought to be held to estop the complainant from now arguing that a forcible detainer was not essential to the maintenance of the case. We think not. It is not a case where the complainant has shifted his proofs, nor where the pleadings were hot sufficient to apprise the defendant of the case he is called upon to meet. When the complainant rested his case, the defendant took the initiative, and moved for a directed verdict. The most that can be said is that the complainant did not make his right clear to the court. The defendant ought not to complain that his own motion was granted because the argument of the complainant did not meet the contention which he (defendant) erroneously made.
The judgment will be set aside, and a new trial ordered.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Holbrook, J.
The defendant in a circuit court jury trial was convicted on July 1, 1970, of the offense of robbery armed contrary to the provisions of MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28-.797). On July 28,1970, he was sentenced to serve a term of not less than 20 nor more than 30 years in prison. Defendant has taken this appeal as of right.
The complaint in this case alleged that “Thomas Gillespie and John Doe did then and there assault one Dale Liikala with a dangerous weapon, to-wit: A pistol, and did take, steal and carry away United States currency in excess of $1 in the presence of and against the will of the said Dale Liikala, said money belonging to Jerry Jurasek, * * * .” The warrant was issued by the district court for the arrest of Thomas Gillespie and John Doe. Thereafter a confidential informer advised one of the police detectives that one Jefferson “June Bug” Hairston was the John Doe mentioned in the complaint and warrant. On December 19, 1969, defendant was arrested and arraigned, and demanded a preliminary examination. At the preliminary examination the defendant was bound over to the circuit court for trial. On January 9, 1970, an information was filed in the circuit court charging the defendant with the offense of robbery armed. On arraignment he stood mute and the court entered a plea of not guilty on his behalf. As stated, after a trial by jury he was convicted.
Defendant raises 3 issues which we consider in proper order.
I.
Did the trial court err in allowing an in-court identification of the defendant where he had been subjected to a pretrial lineup without the benefit of defense counsel?
Defendant claims that the in-conrt identifications by witnesses Dale Liikala and Arlene Williams were tainted because they were preceded by a claimed illegal lineup at a time when defendant did not have counsel present. United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149). In Gilbert v. California (1967), 388 US 263, 272 (87 S Ct 1951, 1956; 18 L Ed 2d 1178, 1186), the Court stated in part as follows:
“The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error. United States v. Wade [supra] # * * . However, as in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial had an independent source. Gilbert is therefore entitled only to a vacation of his conviction pending the holding of such proceedings as the California Supreme Court may deem appropriate to afford the State the opportunity to establish that the in-court identifications had an independent source, or that their introduction in evidence was in any event harmless error.”
Although there is evidence that the defendant consented to appear in the pretrial lineup without counsel being present, we deem it unnecessary to determine if defendant effectively waived this constitutional right.
On direct examination of the witnesses no mention was made of the pretrial lineup identification of the defendant. This testimony was brought out by defendant’s counsel upon cross-examination and, of course, no objections were made. After this testimony was admitted, defense counsel made the following motion out of the presence of the jury:
“Your Honor, on the basis of the testimony of Officer Kostka, it is apparent that the arrest of the defendant was made purely upon the basis of the information received from a confidential informant. And Officer Kostka indicated that when a police car went out and picked up Mr. Hairston that he was under arrest. At that point he was brought back to the police station under arrest, put in a lineup and was identified by certain persons who have confirmed their identification today.
“Now we would move, your Honor, that the charge be dismissed against Mr. Hairston on the ground that at the very inception of this matter he was improperly arrested. That you cannot arrest a person based upon information received from a confidential informant and that the entire proceedings thereafter were therefore improper, and that the identifications which have come up in court today, being predicated upon those initial identifications are also tainted thereby so on that ground, your Honor, we would move that the charge be dismissed against Mr. Hairston.”
After the prosecuting attorney stated his reasons for opposing this motion, the defendant’s counsel said:
“So, it is our position, your Honor, that Officer Kostka, although he did have knowledge, reasonable cause to believe that a felony had been committed, I don’t believe that information from a confidential informant is sufficient upon which to say that there is reasonable cause to believe that Mr. Hairston committed the act. So, I believe that on the basis of Officer Kostka’s statements that there was an improper arrest, that the lineup was improper, that the identifications were improper and, therefore, the whole foundation for these identications [sic] in your court today is tainted basically. That’s our position, your Honor.”
After the trial court ruled: (1) that the arrest was not illegal; (2) that the motion was not timely made; and (3) that witness Williams could make an independent in-court identification of the defendant, the prosecuting attorney persuaded the trial court to conduct a “separate hearing” to determine if witness Liikala could also make an “in-court identification” of the defendant as one of the robbers. This motion did not raise a Wade claim hut rather asserted that the arrest was illegal and therefore the entire proceedings were improper.
This Court in the case of People v. Childers (1969), 20 Mich App 639, 646, ruled that the procedure to be followed in raising Wade claims and preserving them for review on appeal is:
“(1) Where the factual circumstances constituting the illegal confrontation are known to the defendant in advance of trial, the defendant is responsible for communicating them to his lawyer and his lawyer, in turn, is responsible for making a motion to suppress in advance of trial.
“(2) Where the factual circumstances constituting the illegal confrontation are unknown to the defendant in advance of trial, or where other ‘special circumstances’ make a pretrial motion impossible, the motion to suppress may he made during trial.
“(3) In either event, once the claim of illegal confrontation is raised, an evidentiary hearing must be held to determine the merits of the claim, and this hearing must he held outside the presence of the jury.”
Our Court in People v. Hutton (1970), 21 Mich App 312, 327, 328, set forth three rules which the Court would follow in considering appellate challenges to such in-court identifications:
“If it appears from the record by clear and convincing evidence that the in-court identification was not tainted by tbe prior identification or if the evidence shows beyond a reasonable doubt that admission of that identification was harmless, and there is otherwise no error, the conviction will be affirmed. See People v. Love (1969), 18 Mich App 228; People v. Wilson (1969), 20 Mich App 410; People v. Childers, supra; People v. Bratton (1969), 20 Mich App 523; People v. Nugent (1969), 21 Mich App 58; People v. Martin, supra [(1969), 273 Cal App 724 (78 Cal Rptr 552)]. If it can be determined from the record that the in-court identification was tainted and that it does not appear harmless beyond a reasonable doubt, the conviction will be reversed. See People v. Menchaca (1968), 264 Cal App 2d 642 (70 Cal Rptr 843); People v. Colabella (1969), 31 App Div 2d 827 (298 NYS2d 40); People v. Hill (1969), 32 App Div 2d 966 (303 NYS2d 14); Mason v. United States (1969), 134 App DC 280 (414 F2d 1176). If the record does not permit an informed judgment that the in-court identification had an independent source, or was harmless beyond a reasonable doubt, the case will be remanded for an evidentiary hearing. See United States v. Wade, supra; People v. Ballott (1967), 20 NY2d 600 (286 NYS2d 1). In each of the above postures, the reviewing court in reaching its conclusion will independently scrutinize the record, giving customary weight to the findings of the trial court. See People v. Nugent, supra.’’
The trial court properly ruled that when considering the testimony of witness Williams, that her in-court identification of defendant had a sufficient independent source.
At the separate hearing held outside the presence of the jury to determine if witness Liikala could also make an in-court identification from a sufficient independent source, Mr. Liikala testified on direct examination as follows :
“Q. Mr. Liikala, on the date of the robbery did you see the face of one of those two robbers who went behind the pharmacy counter?
“A. Yes, I did.
“Q. And did you get a good look at that face?
“A. Yes, I did.
“Q. And are you perfectly satisfied that you had a good enough look at that face to be able to identify it?
“A. Yes, I did. Yes, I am.
“Q. You have seen that face in a lineup, haven’t you?
“A. Yes, I have.
“Q. If you just disregard that lineup entirely, put it completely out of your mind, would you still and are you still able to identify the face you saw out there at the robbery based upon what you saw at the robbery?
“A. Yes, I am.
“Q. Now just based on your observations of that face at the robbery do you see that face and that man in the courtroom today?
“A. Yes, I do.
“Q. Where is he?
“A. He is sitting in the — on the far left at the end of this table right here in the tan shirt.
“Mr. Chapman (assista/nt prosecutor): The record reflects, your Honor, that the witness has indicated the respondent Jefferson Hairston.
“The Court: It may so indicate.
“Mr. Chapman: And I would request the court— we will wait, perhaps counsel has a question.
“Mr. Forrest (defense counsel): I have no further questions.
“Mr. Chapman: And I would request the court, then, to make a finding on the record that the record that the witness Liikala also has an adequate basis for identifying this witness in court independent of the lineup.
“The Court: The court will.”
We conclude that the trial court properly ruled on the admissibility of the testimony of witness Liikala concerning the in-court identification of the defendant.
We point out that defendant failed to make a motion to suppress the testimony before trial and also failed to raise any Wade objections to the testimony during trial. It is evident that defendant knew he had been in a pretrial lineup and that he did not have counsel present. We rule that defendant has not preserved his right to appeal on this ground, People v. Childers, supra, and further that under the facts in this case no reversible error occurred because the people have established by clear and convincing evidence that the in-court identifications were based upon observations of the defendant other than the pretrial lineup identifications. People v. Childers, supra; People v. Hutton, supra.
II.
Did the trial court err in ruling that the prosecutor exercised due diligence in attempting to produce at trial a res gestae witness who was indorsed on the information?
The rule of law as to production of res gestae witnesses indorsed on the information is stated in the case of People v. Zabijak (1938), 285 Mich 164, 171, 172 as follows:
“Due diligence must be shown by the prosecutor to produce witnesses whose names are indorsed on the information, and where they are material witnesses, it is the duty of the prosecutor to have sub poenas issued, and use other means at hand to have the witnesses present at the trial. People v. VanVorce (1927), 240 Mich 75.”
Also see, People v. Moore (1943), 306 Mich 29; People v. Kern (1967), 6 Mich App 406.
The Supreme Court of the United States ruled in the case of Barber v. Page (1968), 390 US 719, 724, 725 (88 S Ct 1318, 1322, 20 L Ed 2d 255, 260) that “a witness is not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.”
This Court in the case of People v. Boyles (1968), 11 Mich App 417, 422, 423, ruled that:
“The sufficiency of the showing of the prosecution’s effort to establish the unavailability of a witness is a question for the trial judge and will not be disturbed in the absence of a showing of an abuse of discretion.
*•». 4f? TP *?P
TP *?P
“Further, under the standard of the Dusterwinkle Case, supra, [(1966), 3 Mich App 150] the defendant has the burden of showing an abuse of discretion by the trial judge.”
In the instant case, the prosecuting attorney, after the jury was excused for a few minutes, offered “to call any of the remaining witnesses indorsed on the information.” The defendant’s counsel requested that indorsed witnesses Michael McGaughy, Alexander Garner, and Detective Kostka be called to the stand. The prosecuting attorney then informed the trial court that Alexander Garner was not available to testify. The trial court then indicated that the prosecutor would have to show that “due diligence” was exercised in attempting to produce witness Garner for trial. A separate hearing — out of the presence of the jury — was then held in order for the trial court to determine whether or not “due diligence” was, in fact, exercised.
For the purpose of showing such “due diligence”, the prosecuting attorney called Flint City Police Detective Michael Kostka to the stand. Detective Kostka, who was the officer in charge of the case, testified as follows:
“Q. Are you aware that one of the witnesses indorsed on the information in this case is a person by the name of Alexander Garner?
“A. I am.
“Q. Did you in connection with the preparing of this case for trial, did you receive from the prosecutor’s office a subpoena directing Alexander Garner to appear at the trial of this cause ?
“A. I did.
“Q. And did you serve that subpoena upon Alexander Garner?
“A. Yes, sir, I did.
“Q. Have you seen Alexander Garner appear in this courtroom in response to that subpoena?
“A. No, I had not.
“Q. Now since last Friday when the court directed you to make inquiry as to the whereabouts of this witness and to attempt to attain him if possible, have you done anything in that regard?
“A. I have.
“Q. What have you done?
“A. On Friday, the 26th of June, Saturday, the 27th, Monday, the 29th, and again this morning, I checked at all the Flint hospitals to see if Mr. Garner was a patient at either of the hospitals and he was not. I checked at the city and the county jail each of these days, Friday, Saturday, Monday and this morning, and he is not an inmate. I checked with the Flint Retail Credit Bureau on the 29th, that was Saturday, and they advised me that Mr. Garner is an employee of Bnick Number 70. I called Buick Plant Protection and they informed me that Mr. Garner was laid off for model change. I went to his residence at 804 East Fifth Avenue each of these days, Friday, Saturday and this morning. I had a cruiser go there to check for Mr. Garner. I left a card on his door. I checked with his neighbors at 809 East Fifth Avenue; that’s Mr. Perkins and his wife, Easterlee Arrington, A-r-r-i-n-g-t-o-n, and they advised me that they were watching Mr. Garner’s house and collecting the newspapers and the mail from his porch because Mr. Garner had left with his family on June 18 for approximately a three-week vacation in Jackson and Newton, Mississippi.
“Q. And did any of these visits by you or by the police cruiser to the Garner residence either lead to finding Mr. Garner there or anyone who had any knowledge, other than the one you have already described about believing him to be out of state?
“A. There is another apartment in front of that building and I talked to two or three young men there that advised me that the Garners were out of state in Mississippi, they believed, but that I should check with the Arringtons across the street and that’s where I got that information.
“Q. But beyond that you found no — well, you have at no time found Mr. Garner ?
“A. No, sir, I have not.”
On cross-examination, the defendant’s counsel asked Detective Kostka only one question: “What day was he [Mr. Garner] originally served?” After Detective Kostka answered this question, the defendant’s counsel said: “I have no further questions”. The prosecutor then moved that “the people be excused from producing Alexander Garner”. The trial court then asked defendant’s counsel if he wished “to argue the issue” and he replied, “No, your Honor”. The trial court then ruled that “the court will excuse the prosecution from calling Alexander Garner on the basis of the showing made”.
The defendant did not request an adjournment to await the return of the res gestae witness nor did he object to proceeding without the witness. Defendant also failed to indicate that witness Garner could offer relevant or significant testimony if he were present to testify. It appears to us that it would have been futile to attempt to locate the witness in the State of Mississippi. All the officer had to go on was the information that his family was supposed to be on a three-week vacation trip including a visit to Newton or Jackson, Mississippi.
We conclude that the trial court properly excused the prosecution from producing witness Alexander Garner.
III.
Did the trial court err in denying the defendant’s motion to dismiss the case on the ground that the defendant had been illegally arrested?
The defendant asserts that a person cannot be legally arrested solely upon the basis of information received from a confidential informant. On cross-examination by defense counsel, Detective Kostka testified as follows:
“Q. Now what did he say that led you to Mr. Hairston?
“A. I didn’t say.
“Q. The arrest, I mean, Mr. Hairston. Why was he arrested?
“A. A confidential informer advised me that Jefferson ‘June Bug’ Hairston was the number 2 man in the armed robbery of Ray’s Pharmacy.
“Q. And then what did you do?
“A. I advised the patrol officers to attempt to locate Jefferson Hairston for one as a suspect in the robbery. I went to his home on Leith Street and attempted to contact him there and finally, on Thursday, December 18, Jefferson Hairston called the Detective Bureau, the Flint Police Department, and talked to a different detective and asked if he’d been out inquiring about him, Gillespie — Hairston, and the detective said, no, that he wasn’t, but he would ask if anyone else was. And he asked and I replied that I was looking for him in connection with this robbery.
“Mr. Hairston stated over the telephone that he was home. I sent two officers out to his house and they picked him up at his home and brought him to the police station where I interviewed him and set up the lineup.
“Q. Now was he regarded as being under arrest at this point?
“A. Yes.
“Q. He was?
“A. (Nodding).
“Q. Did you have a warrant?
“A. No.”
In 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), Arrests, § 225, p 254, it is stated:
“That a defendant’s arrest was without a warrant or was illegal, cannot be considered at the trial, where it was followed by a complaint and warrant on which the defendant was held for trial, or, where the respondent was regularly bound over to the circuit court for trial. Even though an arrest is irregular, the respondent is not thereby given the right to say that he shall not be tried at all.” (Emphasis supplied.)
See also, People v. Nawrocki (1967), 6 Mich App 46; People v. Miller (1926), 235 Mich 340; and People v. Payment (1896), 109 Mich 553.
The trial court did not commit reversible error in this regard.
Affirmed.
All concurred.
“Q. Well, the fact that you were terrified at the time, isn’t this quite possible, that this affected your judgment in identification?
“A. No, because I had nightmares three nights later. I said I’d never forget his face, either one of them. I saw their face everywhere I went.” | [
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] |
T. M. Burns, J.
On November 4, 1966, the Merchants & Miners Bank of Calumet made a loan to Oliver Simonson, the decedent, of $5,331.12. After the loan had been approved, the bank’s cashier asked the decedent if he wished to purchase creditor life insurance. The decedent replied in the affirmative. The cashier then explained the extent of coverage available to the decedent. Finally, the cashier entered the decedent’s age in the appropriate blank in a writing entitled “Election and Agreement” and presented that writing to the decedent for his signature. The final paragraph of the document, located immediately above the signature blank, stated:
“For the purpose of securing such insurance I declare that I am in sound health and my attained age is 54 years.”
No other information as to the decedent’s state of health was requested either on the application or by the cashier. The decedent signed the application. The cashier witnessed that signature, noted on the application that it was accepted, and issued to the decedent the required certificate.
In 1958 the decedent had suffered a stroke. As a result of that stroke, the decedent’s left arm was totally paralyzed. The decedent also wore a brace on his left leg, walked with a noticeable limp, and used a cane constantly. He had never been able to resume employment after the stroke.
At the time of his death, the decedent owed the bank $5,124.96. Pursuant to the group policy, the bank made a claim on defendant for 80% of the balance. Defendant refused to pay on the ground that the decedent’s representation of “sound health” was a material misrepresentation which nullified the policy ab initio. As a consequence of the refusal to pay, the balance of the loan became a burden on the estate of the decedent. The administrator then instituted this action to compel payment by defendant to the bank.
At trial the cashier admitted knowing about the decedent’s stroke and the effects thereof. However, the decedent also suffered from diabetes and hypertension and this fact, contended defendant, was a misrepresentation by the decedent as to the state of his health and, therefore, the policy was void ab initio.
Plaintiff claimed (a) that the decedent did not materially misrepresent his health, and (b) in the alternative, had decedent misrepresented the state of his health, since the bank’s cashier was aware of the decedent’s stroke and its effects, defendant was estopped from using that misrepresentation to void the policy.
In rebuttal defendant argued (a) that the decedent had materially misrepresented the state of his health, and (b) objected to the trial court’s admission of evidence on the issue of estoppel since that issue had not been raised in plaintiff’s pleadings or mentioned at the pretrial conference or in opening argument.
At the conclusion of their proofs, counsel for the defendant moved for a directed verdict. They claimed that because plaintiff had invoked the doctor-patient privilege and thereby prevented “full disclosure and proof of the nature of the medical impairment” suffered by the decedent, the decedent’s misrepresentation must be presumed to be material. The motion was taken under advisement pending a jury verdict. After the jury verdict in plaintiff’s favor, the motion was denied.
On this appeal defendant first reasserts its objection to the admission of evidence on the question of estoppel since that issue was not raised in plaintiffs pleadings.
We concur with the trial judge that plaintiffs pleadings were adequate to allow presentation of evidence on the issue of estoppel.
A complaint need not anticipate defendant’s response thereto. The purpose of the complaint is to give notice of the nature of the claim sufficient to permit the opposite party to take a responsive position. The exploratory processes of discovery, pretrial conference, and summary judgment, combined with liberal amendments to pleadings, are designed to carry the burden of framing the particular issues to be tried. GrCR 1963, 111.1; 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 180.
Plaintiff’s failure to plead estoppel in his reply to defendant’s answer did not preclude presentation of evidence on that issue. If a pleading sets forth a claim to which a responsive pleading is not required, any defense to that claim may be asserted at trial. GCR 1963, 111.3. A reply to an answer is required only when expressly demanded by the defendant in his answer. GCR 1963, 110.1. Since defendant’s answer did not demand a reply, a responsive pleading by plaintiff was not required. Therefore, any response to defendant’s affirmative defense could be asserted at trial.
Nor do we believe that the failure of plaintiff’s counsel to mention the issue of estoppel at the pretrial conference or in their opening remarks at trial so surprised counsel for defendant as to prejudice their client’s contest of the case. Cf. Committee Note to GCR 1963, 118.3, 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 409. In preparation for trial, counsel for defendant should have become aware of the fact that the cashier who sold the policy had observed the decedent’s obvious physical impairments. With that information, counsel for defendant should have anticipated plaintiff’s claim that defendant was estopped to plead misrepresentation. We therefore find no error in the trial court’s ruling that plaintiff could present evidence on his claim of estoppel.
Defendant next contends that because plaintiff invoked the doctor-patient privilege, defendant was prevented from proving the exact nature of the decedent’s medical impairments and, therefore, the decedent’s misrepresentation as to the state of his health was, as a matter of law, a material misrepresentation, voiding the policy ab initio.
MCLA §500.2218(4) (Stat Ann 1971 Cum Supp § 24.12218[4]), provides in part:
“If in any action to rescind any contract or to recover thereon, any misrepresentation is proved by the insurer, and the insured or any other person having or claiming a right under the contract, shall prevent full disclosure and proof of the nature of the medical impairment, the misrepresentation shall be presumed to have been material.”
The decedent’s personal physician was called as a witness and testified that the decedent had consulted him some 30 times over the years 1963 through 1967. However because of plaintiff’s invocation of the doctor-client privilege, the doctor was not allowed to testify to the nature of the decedent’s ailments which had caused him to seek the doctor’s aid so frequently. It is the defendant’s position that it was thus prevented from proving “the nature of the medical impairment” suffered by the decedent. Therefore, contends defendant, since the above statute creates a presumption that any misrepresentation is a material one, the policy is void ab initio.
However, in order to take advantage of the presumption created by the above statute, defendant must first prove there was a misrepresentation. Certainly, the decedent could not have thought that he was concealing the fact that he had suffered a stroke when he signed the application. The effects of the stroke simply could not be hidden.
Whether or not decedent thought he was concealing his diabetes and hypertension we cannot tell. However, it is our opinion that given the decedent’s obvious unsound condition, the insurer should have sought additional information about the decedent’s health. Many people can have diabetes and even hypertension and still be considered to be in “sound health”. Obviously, however, a man who has suffered a severe stroke will be much more affected by these conditions than the average person otherwise healthy.
Had the decedent actively concealed his conditions by stating on a form or in some other manner that he did not suffer from them, then we would be inclined to hold that the conditions were misrepresented by the decedent. However, we are not dealing here with a specific itemization of various ill nesses and medical tests performed on the deceased; rather, we are only dealing with a general “sound health” provision.
To allow the defendant to accept premiums from a man who is suffering from obvious physical impairments and then refuse to pay because it turns out that the man also has diabetes would, in our opinion, amount to a miscarriage of justice. It also seems perfectly reasonable to us for a man like the deceased who, in spite of his condition, is being solicited to buy insurance, to presume that a little diabetes added to his condition would not affect his being considered to be in “sound health”.
The phrase “good health” has been interpreted as follows:
“ ‘Good health’ as the term is used in an insurance policy means that insured is free from disease that would seriously affect the general soundness of the system, and that he has not been attended by a physician for a serious ailment.” Prudential Insurance Company v. Ashe (1934), 266 Mich 667, 670.
It is obvious to us that the decedent was not in “sound health” due to his stroke alone. Therefore, it is our opinion, that when he signed the application which proclaimed him to be in sound health there could be no misrepresentation about it. Accordingly, we find no error in the trial court’s refusal to direct a verdict in defendant’s favor for the reason that they had been misrepresented.
Affirmed.
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] |
J. H. Gillis, J.
Defendant was convicted in a jury trial of assault with intent to do great bodily harm less than murder, MCLA 750.84; MSA 28.279, and was sentenced to a term of from six to ten years in prison. He appeals his conviction and sentence.
Complainant testified to the following: On October 1, 1968, he was engaged in his daily employment of driving a milk truck. At approximately 11:30 a.m. a man approached his truck and asked for orange juice. The stranger then produced a gun and demanded money whereupon complainant drew his own pistol. The stranger dropped his gun and quickly departed. The complainant picked up the gun and put it in his milk truck. At trial he identified exhibit # 1 as the semi-automatic which the holdup man dropped. Some 15 minutes later another stranger, identified as the defendant, approached the complainant’s truck and asked for orange juice. The complainant waved his gun at the defendant and advised him not to bother him. A little later when complainant returned to his truck from a milk delivery he heard a male voice say, “I’m going to kill you”. A shot then hit the door of the truck. As complainant started to turn he saw defendant with a gun (people’s exhibit # 3a, which was admitted into evidence). Complainant was then shot twice and the defendant fled the scene.
At the trial the prosecution sought to introduce people’s proposed exhibit # 4 (a bullet purportedly removed by a surgeon from the body of complainant) into evidence. Defendant challenged the admissibility of this exhibit on the ground that a continuous untainted chain of possession from the surgeon to the scientific laboratory had not been adequately traced by the prosecution. The court, initially taking the objection under advisement, eventually refused to admit the bullet into evidence (referring to the absence of an airtight chain of possession) though it indicated that defendant and plaintiff were free to argue the connection or lack of connection of people’s proposed exhibit # 4 to exhibit # 3a (the gun). The defendant subsequently made a motion for a mistrial on the ground that exhibit # 4 had been shown to the jury and that a number of witnesses had testified with respect to it. In denying the motion the court stated that while it believed the connection between the bullet and the gun was not close enough to warrant its admission into evidence, it felt that it was appropriate for the jury to treat the question of whether or not the gun fired the bullet as a fact question.
The court subsequently gave the following instruction to the jury:
“Now you are entitled to use the evidence concerning the bullet notwithstanding’ the fact that the court did not receive it into evidence provided you are satisfied the chain of evidence is clear and unbroken. The court excluded exhibit 4 and did so because the court felt it was important for you to decide whether that bullet comes to you in an unbroken chain. If you decide the evidence was handled in such a way as you were not convinced beyond a reasonable doubt, there is no break in the chain, then you should not consider the bullet in your considerations at all. On the other hand, the court tells you you may decide that the evidence was well protected * * * you have to make that determination. I only charge you this as a matter of law, however, that in dealing with circumstantial evidence you must be satisfied beyond a reasonable doubt there are no broken links in the chain. If you are not satisfied beyond a reasonable doubt there are no broken links in the chain, then you should not consider any circumstantial evidence with regard to the bullet as it is alleged to be connected with people’s exhibit number 3.”
The first issue the defendant raises on appeal is whether the trial court committed reversible error in instructing the jury that they could consider testimony relating to people’s proposed exhibit # 4 after the court refused to admit the proposed exhibit into evidence. The action of the trial court to the extent it could be viewed as submitting the question of the admissibility of exhibit # 4 to the jury was error. The authorities are in agreement that admissibility is a determination to be made by the judge. Wigmore states:
“The admissibility of a given piece of evidence is for the judge to determine. This general principle is not disputed; * # * It follows that, so far as the admissibility in law depends on some incidental question of fact * * # this also is for the judge to determine, before he admits the evidence to the jury.” 9 Wigmore, Evidence (3d ed), § 2550, p 501.
However, an important distinction must not be lost sight of when dealing with the issue of authentication. McCormick, in his The Law of Evidence (1954 ed), § 194, p 407, in discussing the function of the judge and jury with regard to the authentication of writing states:
“It must be noticed, however, that authenticity is not to be classed as one of those preliminary questions of fact conditioning admissibility under technical evidentiary rules of competency or privilege. As to these latter, the trial judge will permit the adversary to .introduce controverting proof on the preliminary issue in support of his objection, and the judge will decide this issue, without submission to the jury, as a basis for his ruling on admissibility. On the other hand, the authenticity of a writing or statement is not a question of the application of a technical rule of evidence. It goes to genuineness and relevance, as the jury can readily understand, and if a prima facie showing is made, the writing or statement comes in, with no opportunity then for evidence in denial. If evidence disputing genuineness is later given, the issue is for the jury.” (Emphasis supplied.)
This standard, as stated with reference to writings, is also applicable with regard to demonstrative evidence, i.e., the bullet in the present case. The following language from CJS substantiates this conclusion :
“To warrant the admission in evidence of an instrument or weapon as the one with which the crime was committed, a prima facie showing of identity and connection with the crime is necessary and sufficient; clear, certain and positive proof, or positive identification, is generally not required. Objections to the lack of positive identification, or to the sufficiency of the evidence identifying the article in question or connecting it with accused or with the crime, such as the objection that a considerable length of time elapsed after the crime before the weapon or instrument was found, or that in the interval third persons may have had access thereto, or that it was tampered with, go to the weight, or probative force of the evidence rather than to the admissibility of the article.” 22A CJS, Criminal Law, § 712, pp 961-963.
Our Court in People v. Burrell, 21 Mich App 451 (1970), in dealing with the applicable standard quoted as follows from 22A CJS, Criminal Law, § 709, pp 949-951:
“To justify their admission, a proper foundation must he laid, and such articles must be identified as the articles they are purported to be, and shown to be connected with the crime or with accused; however, such identification is not required to be positive, absolute, certain, or wholly unqualified, and where there is some evidence for this purpose, objections to its sufficiency go to the weight rather than to the admissibility of the articles in question.”
Applying the above standard to the testimony in the present case relating to the chain of possession of people’s proposed exhibit # 4, it is clear there was a prima facie showing of the authenticity of said exhibit. The surgeon positively identified it (from the mark he had placed upon its flat surface) as the bullet he had removed from the complainant. Detective Buslepp likewise identified the exhibit as the spent bullet he had received from the surgeon and testified that it was his handwriting and signature on the evidence tag. Detective Pallen stated that, judging from the police identification tag number, the proposed exhibit was to the best of his knowledge the same evidence he obtained from his partner and had delivered to the police scientific bureau. Two officers at the bureau identified the exhibit as the one they had received. The above line of identification is prima facie sufficient to admit the bullet into evidence. Although there is ambiguity as to which detective delivered the bullet to the scientific bureau and testimony suggesting an opportunity for tampering, these considerations only affect its probative value and would not preclude its admission into evidence. Therefore, although the trial court erred in submitting the question of admissibility to the jury, the error in no way prejudiced the defendant since the trial judge should have admitted the exhibit due to the prima facie showing of authenticity.
Defendant’s contention that the court committed reversible error in permitting two expert prosecution witnesses to opine that exhibit # 4 was fired from exhibit # 3a is without merit. An adequate factual basis for such testimony appears in the record. Moreover, defendant did not object at the time these opinions were elicited.
Affirmed.
All concurred.
Among said testimony were the statements by two experts who opined that the bullet which was marked people’s proposed exhibit # 4 was fired from the gun which had been marked and admitted into evidence as people’s exhibit # 3a.
“However, a witness’ statement that an article is, or that he believes that it is, the same article as the one involved in the occurrence in question has been held to constitute sufficient identification * ** * .” 32 CJS, Evidence, § 607, pp 764-765. See also Burris v. American Chicle Co., 120 F2d 218 (CA2, 1941). | [
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Quinn, J.
Is a person indicted by a grand jury convened pursuant to MCLA 767.7 et seq.; MSA 28.947 et seq. entitled to a preliminary examination? The trial court said yes. This Court says no and reverses.
A grand jury convened pursuant to the above statutes indicted defendant May 27, 1971. His motion for preliminary examination was granted June 16, 1971, over the objection of the people. On leave granted, the people appeal.
Defendant contends that the language of MCLA 766.1; MSA 28.919 is clear and unambiguous, requires no interpretation, and provides for the right to a preliminary examination “in all. criminal causes”. This contention is not sustainable.
Michigan operates under a dual system of information or indictment, MCLA 767.1; MSA 28.941. The statute defendant relies on is the first section of chapter 6 of the code of criminal procedure and that chapter is entitled “Examination of Offenders”. A casual review of the succeeding sections of that chapter establishes that the examination in all criminal causes referred to in MCLA 766.1 is restricted to criminal causes commenced by complaint and warrant for offenses not cognizable by the magistrate to whom the complaint is made.
Examination is had to determine whether a crime has been committed and whether there is probable cause for charging the defendant therewith. If the magistrate determines that an offense not cognizable by a magistrate has been committed and there is probable cause for charging defendant therewith, defendant is bound over to circuit court or any court having jurisdiction, MCLA 766.13; MSA 28.931.
It is at this point in criminal proceedings commenced by complaint and warrant that a person is charged with an offense by the filing of an information. The charge is not made until the prosecution has convinced a magistrate that á crime has been committed and there is probable cause for charging defendant therewith, unless the latter waives this requirement.
The only other statutory provisions that speak to the necessity of preliminary examinations are MCLA 767.4; MSA 28.944 and MCLA 767.42; MSA 28.982. The former relates to one-man grand jury proceedings; the latter to the necessity for a preliminary examination, unless waived, as a condition precedent to the filing of an information. Neither is pertinent to the issue before us.
Similarly, under grand jury procedure, before a person is charged with a crime by indictment, a majority of the grand jury must be convinced that a crime has been committed and that there is probable cause for charging defendant therewith. A rehash of the evidence, that convinced a majority of the grand jury, before a magistrate at a preliminary examination would serve no legitimate purpose, and it would be entirely superfluous as far as establishing a basis for charging a person with a crime. The purpose of the preliminary examination and presentment before a grand jury is similar, see Yaner v. People, 34 Mich 286 (1876).
While we have not been cited to any Michigan authority on the precise question before us, nor has independent research disclosed such authority, we find the foregoing analysis and comparison of criminal proceedings commenced by complaint and warrant with similar proceedings commenced under grand jury statutes reasonable and a sound basis for denying an indictee a preliminary examination. Illinois and Ohio have reached a similar result, see People v. Gonzales, 125 Ill App 2d 225; 260 NE2d 234 (1970), and State ex rel. Haynes v. Powers, 20 Ohio St 2d 46; 254 NE 2d 19 (1969).
Additionally, a preliminary examination subsequent to indictment would be in violation of MCLA 767.19g; MSA 28.959(7), which makes unavailable to an indictee prior to trial the testimony of any witness before the grand jury. See People v. DeSaussure, 33 Mich App 241 (1971).
We acknowledge the validity of defendant’s argument that an indictee who is denied a preliminary examination may lose some of the benefits and advantages that are possible to obtain in the adversary context of a preliminary examination. However, the legislature has provided two methods of proceeding in criminal prosecutions, namely: complaint and warrant and presentment to a grand jury. The former requires a preliminary examination; the latter does not. Either may be used.
It is conceivable that an indictee might be able to demonstrate denial of due process or fair trial if forced to trial without a preliminary examination. If such a situation arises, the trial court is able to protect those rights by an appropriate order before trial. Otherwise, defendant’s rights can be protected under the provisions of MOLA 767.19g.
Reversed and remanded for further proceedings.
All concurred.
There are actually three, one-man grand jury, but the latter is not involved in the case before us. | [
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Per Curiam.
After a jury trial in the Circuit Court of Genesee County, the defendant was convicted of carrying a concealed weapon in violation of MCLA § 750.227 (Stat Ann 1962 Eev § 28.424).
The defendant makes two assignments of error, the first of which is that the trial judge committed reversible error in allowing the testimony of Mrs. Mary Dawson to go to the jury.
On October 8,1969, the defendant was arrested by an officer of the Flint Police Department. While searching the defendant, the officer found three .38-caliber bullets. The officer then made a search of the automobile and found a .38-caliber revolver. In the automobile at this time were two passengers, Mr. Hollis Scott and Mrs. Mary Dawson.
During the trial, Mr. Scott was called by the prosecution and testified that on the evening of the defendant’s arrest, he had not seen the defendant in possession of the pistol. Mrs. Dawson was then called, but her testimony was to the effect that she had seen the defendant with the pistol. The defense then objected that the state was trying to impeach the testimony of its own witness, to wit: Hollis Scott.
The evidence elicited from Mrs. Dawson was not impeachment evidence, but was merely contradictory testimony of a material fact, and as such was properly admissible. People v. Lee (1943), 307 Mich 743. Even assuming it was impeachment testimony, the prosecution was fully entitled to introduce such testimony according to MCLA § 767.40a (Stat Ann 1954 Rev § 28.980 [1]) which provides:
“Witnesses whom the people are obliged by law to call as res gestae witnesses may be impeached the same as though such witnesses had been called by the respondent.”
The defendant also feels that the testimony of Mrs. Dawson should have been excluded on the grounds that upon cross-examination the witness became confused and either could not or would not give positive answers to defense counsel’s questions. The witness also could not positively identify the pistol found by the police officer as the same one she had seen the defendant with earlier in the evening. This, though, she did not have to do, as there was other testimony offered from which this inference could properly be drawn.
The second assignment of error by the defendant is that the state did not produce sufficient evidence upon which a verdict could be based, and that the trial court should have granted the defense motion for a directed verdict. After careful review of the record, we conclude that there is enough credible evidence which if believed would justify reasonable men to conclude that all the elements of the crime were established beyond a reasonable doubt. People v. Belcher (1971), 29 Mich App 341.
Affirmed. | [
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Bronson, J.
Plaintiff, Hj aimer Orquist, brought this action against Montgomery Ward, a foreign corporation, to recover damages for personal injuries arising from what is known as a slip-and-fall case.
Plaintiff, a 69-year-old man, went to the Montgomery Ward Department Store in Houghton, Michigan, on January 30, 1969, to look for wall paneling. The paneling was located in the basement which wa¿ accessible from a stairway within the building from the first floor. Since it was cold and snowing, plaintiff wore heavy cloths and boots, i.e., rubber arctics. As he attempted to use the stairway to reach the basement, he slipped on the third step, which he said was “kind of damp”, and fell to the bottom of the stairs. Plaintiff sustained bruises to his knee and right shoulder and a complete separation of all the muscles attached to his kneecap. The resulting medical expenses approximated $1,000.
The accident was allegedly caused by defendant’s failure to properly construct and maintain the stairs and handrail. Plaintiff alleged that defendant permitted water to accumulate on the stairs which became hazardous because the metal grip treads were smooth and worn. He further alleged that the handrail was too low to be safe and useful.
After both parties had completed their proofs, they submitted written jury instructions which were reviewed and compared by the judge and attorneys in chambers. At that time plaintiff orally requested a charge to the effect that the standard of care for the industry as represented by the standards in evidence could be considered by the jury in arriving at their decision. The judge denied this request, finding it would confuse the jury on the question of negligence. The judge charged the jury as follows :
“I further instruct you that the building code referred to in the testimony of the witnesses was not adopted by the Village of Houghton at the time this incident took place; that the standards set forth in the code do not apply to the defendant at the time of this incident. Therefore, any testimony concerning such standards should not be considered by you in reaching your decision.”
Plaintiff objected to this instruction. The jury returned a verdict of no cause of action. Plaintiff appeals of right.
Plaintiff first argues that the trial court erred in refusing to instruct the jury that in deciding whether defendant negligently cared for and maintained the stairway it could consider a standard of care for the industry as some evidence of the reasonableness of defendant’s conduct. During the trial, plaintiff, over objection, introduced evidence regarding standards used by architects and engineers in building construction. The only testimony on this point showed that the standard height for handrails was 32 to 33 inches while defendant’s handrail was only 21 inches high.
The general rule governing a trial judge’s duty regarding jury instructions is:
“A certain latitude must be afforded the trial court in the area of jury instructions. The judge need not instruct the jury on theories which lack an evidentiary foundation. It is for these reasons that we find no error in failing to instruct the jury that the sudden emergency doctrine would apply to plaintiff’s decedent.” Ruotsala v. Holzhauer (1970), 24 Mich App 571, 575.
A nonbinding construction standard is not a theory of the case requiring an instruction. It is merely evidence for the jury’s consideration.
As evidence, the architects’ and engineers’ standard was of questionable relevance. Plaintiff argued that defendant breached its duty of maintaining reasonably safe premises for business invitees. The standard in question deals with construction and has little relevancy to maintenance. The standard might have been relevant if plaintiff had offered evidence to prove that the low handrail was the proximate cause of his injury. The record is barren of such evidence.
In his instructions the trial judge charged the jury as follows as to the defendant’s duty to business invitees :
“Now the occupier is not an insurer of the safety of the invitees and his duty is only to exercise reasonable care for their protection. But the obligation of reasonable care is a full one, applicable in all respects, and extending to everything that threatens the invitee with an unreasonable risk or harm. The occupier must not only use care not to injure the visitor by negligent activities and warn him of latent dangers of which the occupier knows, but he must also inspect the premises to discover possible dangerous conditions of which he does not know and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangements or use. The obligation extends to the original construction of the premises where it results in the dangerous condition.” (Emphasis supplied.)
These instructions correctly state the law. Nezworski v. Mazanec (1942), 301 Mich 43; Rockwell v. Hillcrest Country Club, Inc. (1970), 25 Mich App 276; Honorl v. J. L. Hudson Company (1968), 10 Mich App 623. Torma v. Montgomery Ward & Company (1953), 336 Mich 468, and Mills v. A. B. Dick Company (1970), 26 Mich App 164, cited by plaintiff, are not to the contrary. Torma dealt with the duty to maintain an entrance in reasonably safe condition and left that determination to the jury. Mills dealt with a storekeeper’s duty to install handrails. The instruction given here made the jury aware of defendant’s duty to prevent a hazardous condition via original construction without prejudice. It could consider the standard in question according to whatever weight it was entitled. Further, as the judge said in denying the request, it avoided confusion on the negligence issue.
Plaintiff next argues that the trial judge erred in precluding from jury consideration the building code published by the Building Officials & Code Administrators International, Inc. (BOCA). During the trial, plaintiff attempted to introduce this code into evidence as evidence of negligence and of ordinary practice and general custom. Kawbawgam Hotel Company v. Michigan Gas & Electric Company (1964), 372 Mich 507. The trial judge refused this admission for failure to lay a proper foundation.
The trial judge has discretion in determining the materiality and relevancy of evidence. Thompson v. Peters (1970), 26 Mich App 590, 598. In addition to having the same relevancy problems as the architects’ and engineers’ standard which was in evidence, the BOCA Code did not apply to defendant since the Village of Houghton had not adopted it at the time of the accident. In fact, the only municipality in which the code was shown to have been adopted was the Village of Hancock. This is not sufficient to prove ordinary practice and general custom. The trial judge did not abuse his discretion in denying admission to this code.
The effect of the objected to instruction was to preclude consideration of facts not in the record. In addition, it helped to remove the confusion surrounding the two standards of care created by the admission of one but not the other. We cannot say that the instruction was erroneous.
Affirmed.
All concurred. | [
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Per Curiam.
Plaintiff, Macomb Concrete Corporation, filed suit in Macomb County Circuit Court in 1966 alleging breach of contract naming as defendants Philip Kaplan, Herman Kaplan and Leroy Helfman, all “individually and d/b/a Wexford Development Company”. The individual defendants and Wexford Corporation jointly filed a motion for change of venue, and in addition, moved that the designation of the defendants as individuals and d/b/a Wexford Development Company be changed to Wexford Corporation, a Michigan corporation, as the sole defendant. After a hearing on the motion, venue was transferred to Oakland County Circuit Court. In the order transferring the case to Oakland County Circuit Court, it was provided that the Wexford Corporation be added as a party defendant.
On November 6, 1967, plaintiff’s action was dismissed for lack of progress by the court, pursuant to GCR 1963, 501.3 and 504.2, and the Oakland County Circuit Court rules.
Plaintiff now seeks to initiate an action against defendant based upon the same controversy alleging that there had been no service of process upon defendant and therefore the court had no jurisdiction over defendant in the initial action. Thus, while a dismissal for lack of progress is a final judgment, plaintiff contends that it is not res judicata against defendant who was never within the jurisdiction of the court.
Plaintiff states the relevant rule: “Only those who are named as defendants and brought in by due process, or who appear and submit to the jurisdic tion, are to be regarded as parties to a cause”. 1 Callaghan’s Michigan Pleading and Practice (2d ed), § 15.30, p 407.
A review of the authorities indicates that defendant made a general appearance in the initial action, thereby submitting itself to the jurisdiction of the court:
“It may be said, generally, that any appearance in a judicial proceeding, not specifically designated as a ‘special’ appearance, is deemed to be a ‘general’ appearance, a submission to the court’s jurisdiction if it has power to act at all with respect to such an alleged controversy or claim, and a waiver of jurisdictional irregularities.” 1 Callaghan’s Michigan Pleading and Practice (2d ed), § 18.02, p 576.
One of the effects of submitting to the court’s jurisdiction by making a general appearance is that a party waives any objection to service of process. Najdowski v. Ransford (1929), 248 Mich 465.
It is clear that defendant, by coming before the court with the request to be added as a party defendant, properly submitted to the jurisdiction of the court, waiving objection to service of process.
The contention of plaintiff that the dismissal is not res judicata finds substance not in the argument of lack of jurisdiction, but rather in recent decisions of this Court and the Supreme Court.
Judge Levin’s dissent in Green v. Wayne Soap Company (1971), 33 Mich App 74, vigorously urges that “housecleaning” dismissals such as we have before us do not operate as an adjudication upon the merits, and, accordingly, a reinstitution of suit is not barred by res judicata. Though a dissent in Green in this Court, the view found support in the Supreme Court in Green v. Wayne Soap Company (1971), 385 Mich 785, wherein the Court of Appeals decision in the case was peremptorily reversed by a unanimous bench.
Accordingly, we reverse the trial court’s grant of accelerated judgment for defendant in the instant case and remand for further proceedings.
Costs to abide outcome. | [
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Memorandum Opinion. Defendant was convicted of the crime of taking indecent liberties with a female child, and appeals. A motion to affirm has been filed by the people.
Upon an examination of the briefs and record it is manifest that the question sought to be reviewed is so unsubstantial as to need no argument or formal submission.
Motion to affirm granted. | [
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Targonski, J.
This case involves the uninsured motorist provisions of an automobile insurance policy as they relate to an accident involving a phantom vehicle. At about 9:45 in the evening of September 2, 1967, defendant Thomas Lee Jenks was driving north on M-65 with defendants Terry Jenks and Irene Carter as his passengers.
An unidentified automobile began to pass defendants’ automobile, whereupon an automobile driven by one Robert Fabera came along, proceeding south on M-65. Confronted with the phantom vehicle head-on; Robert Fabera swung to his left directly into the path of defendants’ automobile. The phantom vehicle had no physical contact with either the Fabera or the Jenks automobile.
At the time of the accident the Jenks automobile was insured by plaintiff and the policy included an uninsured motorist clause requiring physical contact as a condition precedent to recovery for injuries caused by a phantom vehicle. Having been informed by plaintiff that nothing would be paid under the uninsured motorist provision of the policy due to the absence of physical contact, defendants demanded arbitration before the American Arbitration Association as provided in the policy.
At this point, plaintiff commenced the instant case, seeking declaratory relief and an injunction preventing arbitration. Upon plaintiff’s motion for summary judgment, the trial court granted an injunction prohibiting arbitration of the claim. Defendants thereupon brought this appeal as of right, asserting that the physical contact requirement of the policy was void as against public policy and in contravention of statute.
The pertinent parts of the insurance contract involved between the parties are:
“Section Four — Protection Against Damages Caused by an Uninsured Motorist
“The Company will pay all sums which the Assured, or his legal representative, shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile, because of:
“Coverage F — Bodily injury; and sustained by the Assured, caused by accident and arising out of the ownership, maintenance, or use of an uninsured automobile.
“Persons Insured Under This Section Four:
* # #
“2. ‘Uninsured Automobile’ means: * * *
“(c) a ‘hit-and-run automobile’ as defined;
# # #
“3. ‘Hit-and-run Automobile’ means an automobile which caused bodily injury to an Assured arising out of physical contact of such automobile with the Assured or with an automobile which the Assured is occupying at the time of accident, or if Coverage G is included under this Section, damage to property owned by or in the care, custody and control of the Assured at the time of accident arising out of such physical contact, provided:
“(a) there cannot be ascertained the identity of either the operator or the owner of such ‘hit-and-run’ automobile ;***.”
Defendants, relying on Woods v. Progressive Mutual Insurance Co., 15 Mich App 335 (1968), conclude that the uninsured motorist protection in an automobile insurance policy may not be more restrictive than the provisions concerning uninsured motorist coverage in both the insurance code and the Motor Vehicle Accident Claims Act taken together. They then proceed to demonstrate that on the date of the accident involved here, the Motor Vehicle Accident Claims Act had no requirement of “physical contact” as a condition precedent to recovery, whereas the automobile insurance policy issued by plaintiff did have such a requirement. This, they conclude, constitutes a prima facie showing that plaintiffs policy had coverage narrower than that of the Motor Vehicle Accident Claims Act. We disagree with this analysis.
In the Woods case, we held that there the insurance code, MCLA 500.3010; MSA 24.13010, does not define the term “uninsured motor vehicle”, we will look to the Motor Vehicle Accident Claims Act, MCLA 257.1112; MSA 9.2812, which is in pari materia with the insurance code, for a definition. But even though the two acts relate to the same subject (uninsured motorist coverage) and can, therefore, be construed with reference to each other, the insurance code is not in all respects governed thereby. The insurance code pertains to statutorily required protection that must be included in policies of private insurance companies writing uninsured motorist coverage in the state, while the Motor Vehicle Accident Claims Act applies to the establishment, maintenance, and administration of a motor vehicle accident claims fund set up and managed by the state.
The insurance code provides:
“No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in limits for bodily injury or death set forth in section 504 of Act No. 300 of the Public Acts of 1949, as amended, being section 257-.504 of the Compiled Laws of 1948, under provisions approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles, including owners or operators insured by any insolvent insurer, because of bodily injury, sickness or disease, including death, resulting therefrom, unless the named insured rejects such coverage in writing as provided herein.” MCLA 500.3010; MSA 24.13010.
MCLA 257.504(d); MSA 9.2204(d) referred to in the above statute, is a section of the financial responsibility act and provides in pertinent part:
“Every such policy # * * is subject to a limit, exclusive of interest and costs, of not less than $10,000.00 because of bodily injury to or death of 1 person in any one accident, and, subject to said limit for 1 person, to a limit of not less than $20,000.00 because of bodily injury to or death of 2 or more persons in any one accident.”
The Motor Vehicle Accident Claims Act provided at the time of the collision involved here:
“Where the death of or personal injury to any person is occasioned in this state by a motor vehicle but the identity of the motor vehicle and of the driver and owner thereof cannot be established, any person who would have a cause of action against the owner or driver in respect to the death or personal injury may bring an action against the secretary, either alone or as a codefendant with others alleged to be responsible for the death or personal injury.” MCLA 257.1112; MSA 9.2812.
The above-quoted insurance code section is clear as to its requirements. The code directs that the coverage be made available for the protection of persons covered by the primary policy, “who are legally entitled to recover damages from owners or operators of uninsured motor vehicles”. This language obviously contemplates that there is proof of the identity of the owner or operator of the uninsured motor vehicle, for otherwise it could not be ascertained that the said vehicle was uninsured. Collins v. New Orleans Public Service, Inc., 234 So 2d 270 (La App, 1970); Amidzick v. Charter Oak Fire Insurance Co., 44 Wis 2d 45; 170 NW2d 813 (1969); Progressive Mutual Insurance Co. v. Brown, 229 So 2d 645 (Fla App, 1969). Normally, when the vehicle is a hit-and-run automobile, such identity cannot be ascertained. Thus, when plaintiff issued the automobile policy to defendants providing for uninsured motorist coverage in hit-and-run cases, even though restricted to instances in which there was physical contact between the vehicles involved, plaintiff really provided in its policy an uninsured motorist coverage greater than that required by the insurance code, MCLA 500.3010; MSA 24.13010, rather than less coverage.
Thus, we find no conflict between the policy provisions and the insurance code, nor are there any ambiguities requiring interpretation in light of the Motor Vehicle Accident Claims Act, MCLA 257-.1112; MSA 9.2812. The requirements set forth by the insurance code are explicit and unequivocal, and plaintiff has provided the required coverage, plus more. To the extent that the hit-and-run provisions go beyond the insurance code they are to the advantage of defendant. And since those provisions are neither required nor prohibited by the insurance code, the parties to the insurance contract were free to limit or restrict them in any manner they saw fit.
This conclusion fully comports with the language found in Blakeslee v. Farm Bureau Mutual Insur ance Co., 32 Mich App 115 (1971), in which the Court says:
“The statute [MCLA 500.3010; MSA 24.13010] directs in mandatory terms that every policy of insurance provide the requisite uninsured motorist protection unless it is rejected in writing by the insured. The insurer is, therefore, no longer free, as he had been prior to the statute, to insert language. restricting the coverage to less than the statute requires.”
It is interesting to note that the Michigan Legislature, contrary to the public policy argument made by defendants, later saw fit to qualify the requirements in regard to the claims fund managed by the state. On July 1, 1968, the Motor Vehicle Accident Claims Act was amended to require “physical contact” as a requisite to recovery from the claims fund in a hit-and-run, unidentified driver or owner, accident. See MCLA 257.1112; MSA 9.2812, as amended by 1968 PA 223, § 1, eff July 1.
Affirmed.
All concurred.
MCLA 257.1112; MSA 9.2812, prior to being amended by 1968 PA 223, § 1, eff July 1. | [
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Bronson, J.
Plaintiffs brought this action to enjoin defendant property owners from barricading a portion of an alleged public road in the Village of Bellaire, Antrim County, Michigan.
Defendants the Edward Pankops own property, purchased in portions in 1959 and 1966 from one Otto Holtz? which is located east of the railroad tracks and adjacent to the Intermediate River on the east. The property lies south of, and adjacent to, the north 1/8 line, section 19, which is an extension of the center line of Fourth Street, running east and west, in the Village of Bellaire. North of, and adjacent to, the north 1/8 line is the property of the Harvey Ferstles, also defendants herein, which was purchased in 1961. In the area immediately east of the railroad tracks and south of the 1/8 line, excluding the Pankop property, is the Holtz Green Acres Subdivision. The 1/8 line is the center of the disputed strip. The strip is 33 feet wide on either side of the 1/8 line. It runs from the river west to approximately the eastern edge of Green Acres Road, a road running off of Fourth Street, through the Green Acres Subdivision, in a north-south direction. The disputed strip, from the river, is approximately 175 feet long. The Ferstles allegedly own the 33 feet north of the 1/8 line and the Pankops allegedly own the 33 feet south of the line.
In 1894, on the application of eight freeholders, the then Commissioner of Highways of Forest Home Township in Antrim County agreed to lay out a highway described in the township record book which was purportedly the road in question. It appears that no action was ever taken by the township board or by the county road commission.
The next action regarding the disputed strip seems to have occurred on March 26,1940, when the Antrim County Board of Road Commissioners resolved in part as follows:
“Be it further resolved that the Board of County Road Commissioners of the County of Antrim, Michigan does hereby certify that the roads, streets and highways shown in yellow color on the said attached maps, No 1 to 29, inclusive, were as of July 1, 1939 county roads taken over as such by the Board of County Road Commissioners of the County of An-trim, Michigan, prior to September 17, 1931.”
The road in question purportedly was among those shown in yellow on the map accompanying the certification resolution.
Witnesses for the plaintiffs testified as to a lack of knowledge as to whether work had been performed on the disputed strip; that a “public access” sign had been placed on the road near the strip within the past few years; and that a privately-owned bridge had, at one time, connected the disputed strip with the east bank of the river and had years ago been used for hauling timber, and for swimming and diving. There was further testimony that boats were kept at the end of the road and that some large trees in the right of way had constituted a turnaround for autos using the road. A foreman of the county road commission testified as to doing some work in the disputed area. Another employee only remembered doing snow removal.
Some of defendants’ witnesses testified to the absence of a road down to the river and to the absence of work in the area by public authorities. Other witnesses, scuba divers, testified that the only evidence of any bridge in the area was about a quarter mile south of that in question. This is in conformity with a 1910 county plat book which shows that such a bridge existed. The Pankops’ predecessor in title testified that he had retained title of the strip in question until 1966 because of his desire to plat the Green Acres Subdivision and that when he submitted the plat it was held up because the road in question was shown as a public rather than a private road. He further testified that he submitted a deed to this property to the village which was refused for the same reason.
The trial judge found for the defendants. The basis of his opinion was that the strip in question had never been a public road. The correctness of that decision is the only question for this Court on appeal.
Plaintiffs argue that the trial court erred in holding that the road in question was abandoned by public authorities and that it is not necessary that the disputed strip be maintained as other county roads to remain public, citing Neal v. Gilmore (1905), 141 Mich 519; Crosby v. City of Greenville (1914), 183 Mich 452; In re Vacation of Cara Avenue (1957), 350 Mich 283.
Defendants counter this by arguing that the lower court decision was based on title never resting in plaintiffs rather than on abandonment. Missaukee Lakes Land Company v. Missaukee County Road Commission (1952), 333 Mich 372.
Whether the disputed strip was ever a public road which could be abandoned is the critical question in this case. The trial judge, in his supplemental opinion, ruled that:
“This court merely declined to confirm the road to bé a public road. In fact, this court simply held that the plaintiffs had not proven it to be a public road, and this court must again so find and so rule.”
The basis of the lower court decision clearly was that the road was never public. This is a question for the trier of fact. Alton v. Meeuwenberg (1896), 108 Mich 629.
For a road to become public there must be either a highway by user or a dedication by the landowner and an acceptance on behalf of the public. Alton v. Meeuwenberg, supra. To constitute a highway by user there must be open and notorious use for ten years by the public generally such that its public use is exclusive and prohibits a use in a manner inconsistent with a highway. Mere use by the public, however, does not alter the character of a private road. Missaukee Lakes Land Company, supra. That use must be so open and notorious that it puts the landowner on notice of the public’s rights in the land. There is no evidence of such use here.
The other method of creating a highway is by dedication and acceptance. In DeFlyer v. Oceana County Road Commissioners (1965), 374 Mich 397, the Michigan Supreme Court held that a landowner’s request to a highway commissioner to create a highway was a sufficient showing of intent to constitute a common-law dedication. Thus, in the instant case, the 1894 application of eight freeholders did constitute a common-law dedication. Whether or not there was an acceptance by public authorities, however, was a question for the trier of fact, Neal v. Gilmore, supra. In the instant case there appears to be ample evidence to support the trial judge’s determination that there was no acceptance and that the disputed strip was never a public way.
In Missaukee Lakes Land Company, supra, pp 376-378, the Court considered many of the factors present in the instant case and made the following findings which are particularly applicable here:
“No particular importance can be attached to the action of the county road commission in certifying the roads in question to the State highway commissioner * * * . If the Dyer lake road was a private road of the plaintiff, its character could not have been changed to a public highway by said action of the county road commission.
# # #
“(2) Considerable importance was attached in the trial court to a petition in 1947 or 1948 addressed to the county road commission and the township boards of Caldwell and Lake townships, indicating it was signed by 9 property owners (including directors of the plaintiff) and asking that 3 designated roads on plaintiff’s property (including the Dyer lake road) be closed. No proceedings were had on the petition and it was never acted upon by the township boards or the county road commission. The reason for such inaction does not appear in the record. Defendants claim that it now estops the plaintiff from claiming these roads are private roads. Regardless of the probative value of the petition, it does not operate as an estoppel of the plaintiff’s claim that the roads are private, or to change their character to public roads.
# # #
“(3) The roads in question had been used by the public. The county road commission and the State conservation commission occasionally did repair and maintenance work on the roads in question — mostly other than the Dyer lake road. No doubt these are elements to consider in determining whether the roads (and particularly the Dyer lake road) were private or public highways.
* * *
“Plaintiff established at least a prima facie case to claim private ownership by proving title and possession. There are no public records to the contrary. * # * The defendants called witnesses to show that they had used the roads and trails for various purposes without objection by plaintiff. The testimony also shows that the plaintiff took means to exclude the public. * * * The use made by the public under these circumstances does not change the character of private roads to public highways.
“ ‘A mere permissive use of a private road by the general public, however long continued, will not make it a public highway.’ ” (Emphasis supplied.)
This Court will not disturb findings of the trial court unless clearly erroneous. Grand Rapids Asphalt Paving Company v. City of Wyoming (1971), 29 Mich App 474.
Affirmed.
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Per Curiam.
Defendant was tried and found guilty by a jury in Recorder’s Court in the City of Detroit of a charge of armed robbery (MCLA § 750.-529 [Stat Ann 1971 Cum Supp § 28.797]). The defendant presents three arguments on appeal, of which we consider only one.
The prosecution’s evidence that the crime charged had been committed was not contradicted by any testimony. The defendant based his defense on alibi. The defendant argues that the following portion of the judge’s charge to the jury constitutes reversible error:
“Now, the people have in their proofs shown to you the first element of the offense, which they are bound to establish. They have shown with their evidence that there was an assault. They have also shown by their evidence that there was a larceny; that is a forceful and unlawful taking of the money. They have also shown that a dangerous weapon was used in the robbery; that is a rifle of some description or another. There has also been testimony, which they have shown to you, that two persons participated in the robbery.”
While the court may comment on the evidence (MCLA § 768.29 [Stat Ann 1954 Rev §28.1052]), “[s]uch authority permits comment that evidence supporting a fact is undisputed, if this is the fact, but it does not permit stating as a fact that which the undisputed evidence tends to prove. People v. Pratt (1930), 251 Mich 243.” People v. Wojnicz (1968), 12 Mich App 423, 425 .
Reversed and remanded. | [
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Memorandum Opinion. Defendant was charged with assaulting a police officer. MCLA 750.479(a); MSA 28.747(1). He was convicted of assault and battery. MCLA 750.81; MSA 28.276.
After the jury retired for deliberation the trial judge informed the jury that it would be possible for them to find the defendant guilty on the lesser offense of assault and battery, and added:
“I am certain that this is an included offense in this charge. I am not trying to tell you what to do at all. This is something I should have told you to start with and had it been called to my attention I would have. Perhaps that will help you. Mr. Jacobs, these instructions I gave were with your attorney’s understanding and he okayed it. I called him on the phone earlier this evening.” (Emphasis supplied.)
An examination of the record and briefs does not substantiate the defendant’s claim that the trial judge coerced the jury by giving the additional charge.
Affirmed. | [
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Per Curiam.
Defendant was charged with willfully and without authority taking possession of and driving away a motor vehicle belonging to another, MCLA 750.413; MSA 28.645. He was tried by a jury, found guilty of the offense, and sentenced to a term of 4-1/2 to 5 years in prison. Defendant brings this appeal as of right.
Defendant first contends that during an attempt by the prosecutor to impeach his credibility, he was improperly questioned about a prior arrest which did not result in a conviction. This Court has recently held that a defendant may only be questioned, for credibility purposes, about crimes of which the defendant has been convicted. See People v Brocato, 17 Mich App 277 (1969).
Defendant was asked about a crime of which he had not been convicted; he was asked whether he was convicted of attempting to obtain merchandise by false pretenses. It appears that this was inadvertently done due to an incorrect “rap sheet” which had been provided for the prosecution by the state police. The prosecutor immediately stopped question ing the defendant about prior convictions as soon as defendant stated that he had already related all of his previous convictions. The defendant had admitted prior arrests and convictions for larceny in a building and possession of stolen property and to having been involved in a “raid”. We are convinced from our examination of the record that the defendant was not prejudiced by the prosecutor’s inadvertent error; and therefore, since there was no objection on the part of the defendant, we will not review the question further.
The defendant also contends that the trial court improperly instructed the jury on the element of intent. The trial court instructed the jury as follows:
“Now what are the elements necessary for the people to prove? Well, the statute says: any person who shall willfully and without authority take possession of and drive away a motor vehicle belonging to another; so the first element is that the party being charged must take possession of an automobile belonging to another; that is the first element, possession of an automobile belonging to another.
“The second is that he drove it away or took it away from the place where it was located.
“Three, that he did it willfully and wantonly and without the authority of the owner. Those are the three elements.
“One, he took possession of it; two, he took it and drove it away from the possession of the owner; three, that he did it willfully and wantonly without the authority of the owner. Those are the three elements.
“Now, willfully and wantonly means with intent. Now, what do we mean by intent? Well, intent is something purely subjective in one’s mind. You people may leave here and you intend to do something, go home or go shopping or something, and we can’t determine what is in your mind. But if a few of you leave here and go into Wurzburg’s or Herpolsheimer’s, we know that you intend to do some shopping or go in there for some purpose because your acts carry out your intent. In other words, a person’s intent is governed by his overt acts. If I left here this noon and any of you followed me and you wondered where I was going and you couldn’t read my mind, but if you saw me go into the Pantlind Hotel and have lunch, then you knew that I intended to go to the Pantlind to have lunch because the overt act that I performed carried out my intention. That is how simple intent is. You govern intent by the overt outside act of the party; that is the only way you can do it .
“So there are three elements: one, possession; two, driving or taking it away; three, that he did it willfully and without the authority of the owner.”
In People v Limon, 4 Mich App 440, 442 (19C6), the Court stated:
“The elements of the crime are: (1) possession must be taken, (2) there must be driving or taking away, (3) done willfully, and (4) without authority.”
The above instruction clearly covers all of the elements of the crime charged. Defendant, however, in excepting to the instructions stated that an instruction like the following should also have been given:
“Intent can be determined by the overt acts of the surrounding and relevant established facts in the case. Established factors, not only the actions of the defendant in this case. They could consider the type of automobile; the fact that he was back from Jackson for such a short period of time, all the established facts in the case are overt acts.”
The trial court was under no duty to give examples, i.e., type of automobile, etc., to the jury concerning what overt acts should be considered by them in determining whether the defendant had pos sessed the requisite intent. The trial court’s duty is to charge the jury as to the facts they must find to justify conviction. People v Bowen, 10 Mich App 1, 18-19 (1968). This duty the trial court carried out.
For the first time on appeal, defendant submits that the following would have been a more appropriate instruction:
“If the circumstances and surroundings of the case shown by the evidence establish the fact that there was no intention to do what was done # * * or leave in your mind a reasonable doubt of such intent, then your duty is to acquit the respondent of the offense charged in the information.” People v Resh, 107 Mich 251, 254 (1895).
However, the court, in the instant case, after charging the jury on the elements of the crime went on to state:
“On the other hand, if you find that he failed, the prosecution has failed to prove any one of these three elements by evidence beyond a reasonable doubt, then it would be equally your duty to find the defendant not guilty.”
It is our opinion that the court’s instructions, when looked upon as a whole, adequately and fairly gave the law applicable to the case. We therefore find defendant’s allegation of error concerning them to be without merit.
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] |
Levin, P. J.
The State Highway Commission commenced this action to condemn a 330-square-foot triangular parcel of land which is part of a larger plot improved with a gasoline service station. The land is owned by the respondent Tremarco Corporation. The small triangular parcel was sought for the construction of Interstate Highway 1-96.
Tremarco’s response to the commission’s petition denies the allegation that the taking was only of the small parcel sought to be condemned and affirmatively alleges that the entire plot “together with all easements appurtenant thereto” was also being taken.
On December 31, 1969, Tremarco moved for an order setting aside both an earlier declaration of taking filed by the commission and an order entered by the circuit court requiring Tremarco to surrender possession of the small parcel. Tremarco contended that the act under which the commission was proceeding, PA 1966, No 295, was unconstitutional, and, if it was constitutional, that the commission Had failed to comply with the act because it had failed to describe and acknowledge and to make a good-faith offer for the taking of easements of access, light, air, and view which would inexorably result from construction of the contemplated highway and the resulting destruction of the value of the entire plot.
Thereafter the commission decided to terminate its efforts to acquire the small parcel and with the consent of both parties an order dated February 27, 1970 was entered setting aside both the declaration of taking and the order for surrender of possession, and it was further directed that title be revested in Tremarco. Thus, Tremarco obtained by this order precisely the relief prayed for in its motion.
On March 2, 1970 the commission filed in this action a notice of discontinuance purporting to dismiss the action. The notice of discontinuance was filed without seeking the concurrence of counsel for Tremarco or leave of court.
Tremarco moved to strike the notice of discontinuance, and later moved for leave to file an amended response and counterclaim wherein it álleged that its property is located at the intersection of Schoolcraft and Telegraph Eoads, that the commission intends to construct a limited access road depressed below grade level on Schoolcraft and an elevated road over the intersection in the Telegraph Road right-of-way and that it intends to continue with the construction of that project; and that the commission is required under Const 1963, art 10, § 2 to condemn the easements of access, light, air, and view which are appurtenant to the property and to pay just compensation to Tremarco for the destruction in the value and for the taking of such interests in property before they are taken.
Orders were entered by the circuit judge in July 1970 denying the motions. On appeal Tremarco contends that the judge erred in allowing the commission unilaterally to discontinue this action after Tremarco had filed a responsive pleading. Tremarco relies on GCR 1963, 504.1, concerning voluntary dismissal, which provides that after an adverse party has filed an answer or certain motions an action shall not be dismissed at the instance of a plaintiff except upon a stipulation of dismissal signed by all the parties or “by order of court on such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the court shall not order the action dismissed over the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.”
Additionally, Tremarco contends that the judge abused his discretion in denying its motion for leave to file an amended response and counterclaim expanding on its allegation that appurtenant easements of access, light, air, and view had been or would be constructively taken. Finally, Tremarco contends that the judge erred in concluding that Tremarco’s exclusive remedy for a constructive taking is to file an action in the Court of Claims.
The commission responds that it may unilaterally discontinue this action under the authority of § 30 of PA 1966, No 295, and the Michigan Supreme Court’s decision in the case of In re Board of Education of City of Detroit (1928), 242 Mich 658.
Section 30 of the 1966 act provides: “The petitioner shall not have power to discontinue the proceedings under this act after the vesting of title to the property taken”. Comparable language in another condemnation act: “The petitioning corporation or state agency shall not have power to discontinue the proceedings under this act after the confirmation of the verdict of the jury”, was construed in Board of Education to mean that the condemning authority has the right to discontinue a condemnation proceeding before confirmation of the verdict. The Supreme Court reasoned (at p 660):
“That statute, in providing that discontinuance may not be made after confirmation of the verdict is a clear recognition of the right to discontinue before confirmation of the verdict. The limitation in the statute relates to the time for the exercise of a right, and, until the limitation becomes operative by reason of the designated event, the right remains. This enables public agencies to safeguard the public interest by way of not being bound to accept property at a cost not warranted by public need.” (Emphasis by the Court.)
While the State Highway Commission has the right under § 30 of the 1966 act, as the comparable language was construed in Board of Education, to discontinue the taking and the proceeding commenced to affectuate it, it does not necessarily enjoy the right unilaterally to discontinue the action. And as long as the action is pending, then, despite the discontinuance of the condemnation proceeding, Tremarco’s pleadings are yet amendable.
We agree with the circuit judge that the question of whether Rule 504.1, limiting a plaintiff’s right to dismiss an action, or § 30, concerning discontinuance of condemnation proceedings, is controlling is subsidiary to a more fundamental question. And that is whether Tremarco’s exclusive remedy for its substantive claim is to file an action in the Court of Claims.
If, as Tremarco contends, it has a substantive claim against the State Highway Commission and that claim has been asserted in this action and the circuit court is empowered to adjudicate that claim, then the discontinuance of the commission’s efforts to condemn the small triangular parcel ought not to affect the pendency of Tremarco’s claim against the commission.
Tremarco contends that the construction of the highway constitutes a taking of its property, including appurtenant easements, within the meaning of Const 1963, art 10, § 2, which provides: “Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record”. It contends that it is, therefore, entitled to have just compensation made or secured for such taking, sometimes denominated a “constructive taking” or an “inverse condemnation”, before the taking occurs. It contends further that the remedy in the Court of Claims recognized for such a taking in Hill v. State Highway Commission (1969), 382 Mich 398, and Thom v. State Highway Commissioner (1965), 376 Mich 608, does not adequately enforce its constitutional right to have just compensation “first made or secured” because, it argues iu its brief, tbe “remedy in the Court of Claims is available only after a cause of action has accrued, i.e., the property is taken”.
The commission does not directly controvert Tremarco’s contention. Indeed, its argument is somewhat consistent with Tremarco’s. The commission takes the position that if and when the highway is substantially completed there may or may not be some damages to Tremarco’s property and such damages may or may not be compensable and, if they are, Tremarco will then have “at some time in the future a claim that [the commission’s] actions in constructing the proposed highway improvement resulted in a ‘constructive taking’ under the doctrine” of the Thom and Hill cases, and that such a claim must be asserted, if at all, in the Court of Claims because, under the statute creating that court, its jurisdiction “over claims and demands against the state or any of its departments, commissions, boards, institutions, arms or agencies, shall be exclusive”.
It, thus, appears that the commission is not willing to concede that Tremarco presently has a remedy in the Court of Claims. It would appear, rather, that the commission contends that Tremarco’s right to maintain a proceeding in the Court of Claims must await the actual “occurrence” of the constructive taking,* we quote from the conclusion of the commission’s brief: “[Tremarco] cannot now recover for some anticipated damages or an anticipated constructive taking before said damages or constructive taking occur”. (Emphasis by the commission.)
While in Hill the Supreme Court ruled that a property owner who contends that his property was constructively taken based on the establishment and construction of an expressway has a remedy by an action in the Court of Claims so that a determination may be made by that court whether a taking has occurred and, if so, the damage, it did not address itself to the contentions advanced by Tremarco in this action that the property owner in such a case is entitled under the Michigan Constitution to have just compensation for a constructive taking made or secured before the actual construction is completed (at least where, as here, the highway to be constructed is laid out and the construction is under way), and that he is entitled to assert that claim in the circuit court because he does not have a remedy or an adequate remedy in the Court of Claims.
Neither of the parties has directed our attention to any authority on the question of whether there is a constitutional right to have compensation made or secured before a constructive taking “occurs” and, if so, whether the Court of Claims has jurisdiction to entertain an action to determine just compensation in such a case. Under the circumstances, and since the factual background has not been developed, we think the correct disposition of this case is to remand it to the circuit court for development of the facts, and for a determination, after briefing by the parties, focused on these questions: (a) whether Tremarco is entitled to be compensated for the alleged constructive taking or inverse condemnation and (b) if the answer is in the affirmative, whether it is entitled to have the compensation made or secured before such taking “occurs”, and (c) if both answers are in the affirmative, whether the Court of Claims has jurisdiction to entertain such an action and, if so, whether its jurisdiction is exclusive of the jursdiction of the circuit court.
As previously indicated, if the circuit court is empowered to adjudicate Tremarco’s claim, then the State Highway Commission could not unilaterally discontinue this action without the consent of Tremarco or an order of the court and, accordingly, the action is still pending and Tremarco ought to he allowed to amend its response and counterclaim. See GCR 1963,118.1.
Remanded for further proceedings consistent with this opinion. Costs to abide the event. We do not retain jurisdiction.
All concurred.
MCLA § 213.390 (Stat Ann 1971 Cum Supp § 8.261 [30]).
SOL 1915, § 370 (MOLA §213.38 [Stat Ann 1958 Kev §8.28]).
RJA § 6419 (MCLA § 600.6419 [Stat Ann 1962 Rev § 27A.6419]). | [
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] |
Per Curiam.
Defendant was convicted by a jury of a charge of assault with intent to commit murder. MCLA § 750.83 (Stat Ann 1962 Rev § 28.278).
The facts are not in dispute. Officer Schantz pulled his scout car alongside a red Fiat, following a report that it had been driven in an erratic manner. Defendant was asleep in the front seat. There was a strong intoxicating beverage odor, and defendant had apparently been drinking quite heavily. Defendant was awakened and asked to identify himself and the vehicle. Some papers were handed to Schantz which failed to identify the defendant and were handed back. Defendant was arrested and told to get out of the car. He didn’t say anything, sat still, and looked straight ahead. Officer Schantz started to go into the car after him. Defendant then shot the officer four times.
Defendant testified that he started drinking early in the morning. He remembered falling asleep at the side of the road and a man in blue trousers attempting to awaken him and telling him to get out of the car. He recalled a headache and a burning feeling in his eyes, a glimpse of a man lying on the ground, and a thought he should get help.
It is the claim of the defendant that he was innocent of the crime of assault with intent to commit murder because he was intoxicated and incapable of formulating the necessary specific intent to do the criminal act.
Defendant raises two issues on appeal:
1. Did the trial court err in ruling that the prosecution had exercised due diligence m its attempt to produce a res gestae witness?
2. Was the trial court’s failure to cure an objected-to portion of the charge to the jury, dealing with defendant’s inability to form a present intent, reversible error?
Indorsed witness Bandall Price saw a shooting and identified the defendant as the person driving the red Fiat automobile as it left the scene. He was not produced at the trial, and his nonappearance was excused by the court.
It is incumbent upon the prosecutor to produce res gestae witnesses, but nonproduction can be excused on a finding of due diligence. The finding of due diligence required is within the discretion of the trial court, and is subject to reversal on appeal only for clear abuse. People v. Costea (1969), 19 Mich App 166; People v. Tubbs (1970), 22 Mich App 549; People v. Alexander (1970), 26 Mich App 321.
Police were unable to subpoena Price at his last address because he was in the Air Force. Contacts were made with the witness’s wife and parents without success. The prosecutor stated that the last check “was a few days ago” when the witness’s mother said he was en route to assignment; she believed to Lackland Air Force Base, but she had no way to contact him.
The instant record indicates that the prosecutor made a continuing effort to locate witness Price. Failure to produce was properly excused.
Defendant next contends that the following jury instruction was erroneous:
“Also, if the defendant knew from his past experience, or from information he received while sane and sober, that intoxication would likely put him in a state or condition where he did not know what he was doing or why he was doing it, he would in such a case be responsible for such extraordinary derangement produced by overindulgence in intoxicating liquors, and would be held to have intended the results or consequences that followed such indulgence in intoxicating liquors voluntarily consumed by him.”
Intoxication is a defense to a crime which requires specific intent. In People v. Walker (1878), 38 Mich 156, 158, the Court stated:
“While it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist.”
In People v. Guillett (1955), 342 Mich 1, 6, the Supreme Court observed:
“It is important in this decision to emphasize that intoxication may only negative the existence of specific intent. Examination of the cases reveals that where the rule was applied, it was done so in cases where the crime charged also involved a specific intent.”
The people do not argue that defendant was not charged with a specific intent crime. It is clear that assault with intent to commit murder is a crime which does require specific intent. The people do argue, however, that the trial court’s instruction is in keeping with the following language of the Supreme Court in Roberts v. People (1870), 19 Mich 401, 422:
“And if, from his past experience or information, he had, while sane and before drinking, on that day, good reason to believe that, owing to a dormant tendency to insanity, intoxication would be likely to produce an extraordinary degree of mental derangement beyond the effects likely to be produced upon persons clear of any such tendency, he must be held to have intended this extraordinary derangement as well as the intoxication and other results produced by it.”
However, in Roberts, defendant had raised the issue of insanity. The above language merely disposes of that defense in light of defendant’s knowledge that he was prone to such insanity when he consumed alcohol. As Judge Levin stated in People v. Kelley (1970), 21 Mich App 612, 625:
“The Roberts opinion states only that intoxication may not be relied upon to establish a defense other than intoxication when the actor knows before he begins to drink that drinking may cause a condition which would create a factual basis for that defense. This did not create an exception to the intoxication defense itself.”
In the instant case, insanity was not raised as a defense. The trial court’s instruction was, therefore, error since it attempts to create an exception to the intoxication defense which does not exist under the facts of this case.
Reversed and remanded. | [
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Per Curiam.
Defendant was convicted in a non-jury trial of second-degree murder* and sentenced to 25 to 30 years. He appeals from the entry of that sentence.
The defendant entered the Broker’s Tip Bar on May 2, 1969, at about 9:30 p.m. and began giving the barmaid a rough time. She refused to serve him and then called the owner. The owner arrived and asked the defendant to leave the premises. Upon refusal, the said owner then seized a police billy club to aid in escorting the defendant from the bar. At this point, the defendant turned and shot the owner twice, killing him, and wounding a customer at the bar with another shot.
Defendant complains that at the trial a res gestae witness indorsed on the information was not called by the prosecutor. However, no objection was made at the trial. The police officers and prosecutor indicated to the court their efforts to locate the missing witness. Upon a showing of due diligence, the prosecutor will be excused from producing an indorsed res gestae witness. People v. Alexander, 26 Mich App 321 (1970). The issue was not raised at the trial court and will not be heard for the first time on appeal. People v. Tiner, 17 Mich App 18 (1969).
Defendant also complains that the trial court erred in foreclosing cross-examination of the wounded customer as to his pending negligence action against the defendant and the deceased bar owner. The permissible scope of cross-examination is a matter of discretion with the trial judge. People v. Hill, 27 Mich App 322 (1970). No abuse was demonstrated here.
Defendant lastly complains that the trial court prejudiced the defendant’s rights by interfering with the examination of witnesses and unreasonably restricting the examination by defense counsel. It is within the discretion of the trial court as to the control of all relevant matters of the trial proceedings. People v. Green, 34 Mich App 149 (1971). The record discloses no prejudice to the defendant.
Affirmed.
MCLA 750.317; MSA 28.549. | [
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] |
J. H. Gillis, J.
This is an appeal of right from a divorce judgment granted to the plaintiff wife and the division of property made pursuant thereto. Intervenor appellee, City Bank and Trust Company, did not become a party to this litigation until almost two years after the case was filed. The bank moved to intervene because it was the holder of approximately $391,000 of defaulted notes which ran from the parties and the corporation owned and controlled by the plaintiff wife and defendant husband.
The plaintiff has raised five objections to the opinion and decree of divorce entered below. Bach of these objections is grounded on alleged abuses of discretion by the trial court. The first two issues pertain to the division of property. The third and fourth objections pertain to the lack of an alimony and attorney fee award to the plaintiff wife. The fifth objection was to the chancellor’s actions in assigning title to plaintiff’s stock to the defendant husband and thereafter dismissing plaintiff’s claims against the intervenor arising out of the ownership of the stock.
Although this Court hears a divorce case de novo on the record, it will not substitute its judgment for that of the trial judge absent a showing of abuse of discretion. Heckelman v Heckelman, 3 Mich App 159 (1966); Hildebrandt v Hildebrandt, 223 Mich 352 (1923). Such abuse is not supported by the record in this case.
In Kurtz v Kurtz, 34 Mich App 34 (1971), this Court had ample opportunity to observe the myriad of problems that can arise in a divorce suit where the parties each owned stock in a close-knit family corporation after a judgment of divorce has been granted to the parties.
Here the chancellor quite properly awarded all of the stock to the husband and compensated the wife by a substantial cash award, payable over a period of years. The record in the instant case discloses expert testimony presented by the plaintiff wife and defendant husband as to the valuation of the stock in question. The court’s assessment of value of the corporation was much higher than that of the defendant husband’s expert and much lower than that of the plaintiff wife’s expert.
_ In Young v Young, 354 Mich 254, 257 (1958), Justice Voelker, writing for the Court in a case similar to the instant one, stated:
“There is no mathematical formula in Michigan for the settlement of this vexing problem; rather it is wisely left to the broad discretion of the learned chancellor who has the benefit — and often dubious pleasure — of having the feuding parties wrangle in his presence. See, generally, Johnson v Johnson, 346 Mich 418 (1956). With his closer view of the entire situation he is ordinarily in a better position to make an equitable division than we.”
The record in this case establishes that the parties were married in 1940 when both parties were 25 years old. At the time of the marriage the plaintiff was a secretary and the defendant husband was in the building construction business. His net worth was from $15,000 to $20,000 at the time of the marriage. The plaintiff worked for approximately three years until the birth of their first child. Her earnings were turned over to the husband to pay notes on the business equipment and her insurance policies were cashed in and the proceeds used to start the business. After the birth of the child, the plaintiff returned to her employment on a part-time basis. She continued to help her husband in the business working as a bookkeeper and on occasion drove a truck. The business prospered and the defendant husband commenced an association with another woman. The plaintiff does not, of course, contest the granting of the divorce but her objections are principally to the division of assets and to the lack of an award of alimony and attorney fees.
We reiterate that in our de novo review of this record we agree with the division of the property and agree that the trial court did not abuse its discretion in failing to award alimony to the plaintiff wife. The property she received was substantial as was that awarded to the defendant. He, however, was required to assume a large indebtedness.
Allowance of attorney fees to the wife in a suit for divorce rests in the discretion of the trial court. Wood v Wood, 288 Mich 14 (1939). From our de novo review, we find no abuse of discretion on the part of the trial court in this regard.
Affirmed. No costs.
All concurred. | [
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Quinn, P. J.
Tried by a jury on a four count information charging kidnapping, rape, assault with intent to murder and unlawfully driving away an automobile, defendant was convicted on all counts. He was sentenced and he appeals.
Defendant has filed a comprehensive brief of over 100 pages in which he details 15 alleged errors as a basis for appellate relief. Some of these alleged errors are errors that require reversal; some, standing alone, are not reversible errors, but they should be avoided at retrial; some are not errors.
We see no purpose to be served by a detailed statement of the facts. Where necessary for an understanding of a particular issue, pertinent facts will be stated in the discussion of that issue. The following constitute reversible errors.
1. Over objection, the prosecution was permitted to adduce testimony relating to defendant’s sanity before the sanity defense was supported by any testimony on the part of the defendant. Until there is some testimonial support for defendant’s claim of insanity, he is presumed sane. Conceivably, he may never offer such testimonial support even though he has given notice of the defense of insanity. Proper procedure requires the prosecution to withhold evidence of sanity until defendant has placed in issue the question of his sanity by offering supporting testimony, People v Williams, 218 Mich 697 (1922). This procedure will also eliminate any future contention that evidence relating to sanity before the issue is raised by defendant is really an attack on his character before his character is an issue.
2. Defendant gave notice that at trial he would rely on the defense of insanity. During the people’s case, a prosecution witness was permitted to testify, over objection, to several incidents of sexual relations with defendant. The prosecution contended that the testimony was admissible as background testimony on the issue of sanity, and the trial court so ruled. The prosecution made no showing of the relevance of this evidence to the issue of sanity, and the prosecution bore the burden of demonstrating its relevance, People v Shaw, 9 Mich App 558 (1968). The admission of this testimony was reversible error.
3. In rebuttal of defendant’s expert on .the question of defendant’s sanity, the prosecution called Dr. Shafii. As a consulting psychiatrist at Boys’ Training School, Dr. Shafii had made a psychiatric evaluation of defendant in March of 1969. On the basis of privileged communication, the doctor declined to testify until ordered to do so by the trial judge. Defendant never waived the privilege but the trial judge ruled that he had by calling a doctor to testify for the defense. Kelly v Allegan Circuit Judge, 382 Mich 425 (1969), held that only in actions for personal injuries or malpractice does a waiver thus occur. The privilege here involved applies to psychiatrist-patient, People v Wasker, 353 Mich 447 (1958). Existing law compels us to find the admission of Dr. Shafii’s testimony was reversible error.
Additionally, defendant objected to Dr. Shafii’s testimony as it related to defendant’s record as a juvenile offender. The doctor was permitted to testify on this subject contrary, to MOLA 712A.23 ; MSA 27.3178(598.23), and this was reversible error.
4. The prosecution attempted to impeach defense-witness Dr. Kafi by means of his prior medical report. Defendant objected to this procedure unless the entire report was placed in evidence. The trial court permitted the prosecution to proceed without placing the entire report in evidence. This was reversible error, People v Dellabonda, 265 Mich 486, 508 (1933).
We note the following errors to be avoided on retrial :
1. The record establishes a sufficient foundation for opinion testimony as to defendant’s sanity by witnesses Clerk and Plummer, People v Cole, 382 Mich 695 (1969). They should have been permitted to so testify.
2. The record does not establish a sufficient foundation for opinion testimony as to defendant’s sanity by witness Durrand. He should not have been permitted to so testify, Cole, supra.
3. The claim that no proper foundation was laid before witnesses Easterling and Shannon testified to the condition of defendant’s sanity is supported by the record. Unless a foundation pursuant to Cole, supra, is laid on retrial, they should not be allowed to testify as to his sanity.
The claimed errors which are not errors are as follows:
1. It was not error to refuse to give defendant’s requested instruction on presumption of continuing insanity. The sanity issue presented related only to defendant’s mental state at the time of the offense.
2. It was not error to refuse to give defendant’s requested definition of “efficient cause”. The term is not a complicated one and is susceptible of ordinary comprehension. However, on retrial the giving of the definition if again requested might eliminate further appeal.
3. None of defendant’s rights were violated by requiring him to see a court-appointed psychiatrist, People v Early, 25 Mich App 363 (1970).
4. The requested instruction on the “Durham” definition of legal insanity was not in accord with Michigan law, People v Hampton, 23 Mich App 190 (1970).
5. The trial court’s instructions did not violate Cole, supra. It is true that the jury was instructed not to consider possible penalty in determining guilt. However, in the second succeeding paragraph of the instructions, the trial court advised the jury, “Now let me say further, that in the event that you do find the defendant not guilty by reason of insanity, you are entitled to know his ultimate disposition and in that respect let me read to you a section of the statute which reads in part as follows.” The trial court then read the applicable statute.
6. Defendant’s objection to the testimony of psychiatrist Sendi and psychologist Sokolov because defendant was without counsel at their examinations of him was not well founded. No request for counsel at these examinations was made by defendant. People v Early, supra.
Reversed and remanded for new trial.
All concurred.
MCLA 750.349; MSA 28.581, MCLA 750.520; MSA 28.788, MCLA 750.83; MSA 28.278, and MCLA 750.413; MSA 28.645.
Durham y United States, 94 US App DO 228.; 214 F2d 862; 45 ALR2d 1430 (1954)—Reporter. | [
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O’Hara, J.
This case involves the interpretation of the following language in a deed:
“The grantee agrees that if she ever desires to sell the aforementioned property, the grantors herein are to have the right and option to buy the same for $9,000.”
The grantee died testate. Her will was admitted to probate. It made six specific bequests of some articles of wearing apparel, a ring, a sum of Masses for her deceased husband, and $250 for each of her grandchildren and great-grandchildren. Then followed the usual residual disposition of the “remainder of my property of whatever kind not other wise disposed of by this will” to the deceased’s two daughters.
It is obvious that the realty here involved was not “otherwise disposed of by this will”. It was included in the assets of the estate. A license to sell was authorized for $15,000. The grantors brought suit to restrain the sale and to enforce their claimed right to purchase the property for $9,000.
The trial court held the option binding on the defendant executor and granted summary judgment to plaintiff-appellees in the nature of an order requiring sale to grantors for $9,000.
To discuss this question in detail, citing the limitless encyclopedic authority both ways, and making a well-documented choice is tempting. We resist the temptation.
The language in the deed means just what it says, nothing more, nothing less. “If the grantee * # # ever desires to sell the * * * property, the grantors * * * have a right to buy the same for $9,000.”
If she had desired to sell, she would have exercised her option to do so. Then the grantors could have exercised their option to buy it back at the specified price. She did not, so the grantors could not.
If the grantors had meant to bind her personal representative, her successors in title, or assigns (assuming they could), they should have said so. We decline to rewrite the language of the option. We make no distinction between “personal representative” and “successor” or “assigns”. In logic, we could not do so. We hold the option to repurchase terminated on the death of the grantee because it required her personal volitional act in her lifetime. We cite with approval, as did the Supreme Court in Old Mission Peninsula School District, fn 1 supra, p 551, the general rule:
“There is a strong tendency to construe an option or pre-emption to he limited to the lives of the parties, unless there is clear evidence of a contrary intent.”
There was no clear evidence of contrary intent.
The summary judgment entered in the circuit court is vacated. The cause is remanded with instructions to enter summary judgment for defendant-appellant, who may tax costs.
All concurred.
See Mr. Justice Edwards’ language in Old Mission Peninsula School District v. French, 362 Mich 546, 549 (1961). | [
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Per Curiam.
This is an appeal from a summary judgment for plaintiff; the case was tried on an agreed statement of facts. It involves the status of 16 of defendant’s former employees under a profit-sharing trust agreement. The employees involved were employed hy defendant for a portion of 1968; the question is whether or not they are entitled to benefits under the trust agreement for the year 1968. The trial court ruled that they were so entitled; defendant appeals.
The trial court ruled that the agreement did not require plaintiff to seek a determination of his status from the “advisory hoard” established by the agreement and therefore defendant’s argument that plaintiff failed to exhaust his administrative remedies was without merit. We agree that that argument is without merit, hut for a different reason. The trust agreement did provide that the advisory committee would determine “all doubtful cases of eligibility to participate in this Plan and Trust”. However, defendant had refused participation under the trust to plaintiff for the year in question. The advisory board was defendant’s creature and seeking a deter- <. mination from that board would have been futile. Plaintiff was therefore not required to seek such a ruling before commencing legal proceedings. Welfare Employees Union v. Civil Service Commission (1970), 28 Mich App 343.
The remaining arguments in this case revolve around the trial court’s reading of the contract and interpretation thereof. We agree with his rulings, and affirm them, but add an additional basis. The best that can be said of defendant’s arguments is that they make out a case for the ambiguity of the contract. In such circumstances the ambiguity will be construed against the drafter.
Affirmed.
The Trust Agreement, Article VI, paragraph 1 provides:
“The Board of Directors of Livernois Engineering Co. shall appoint a committee of not less than three to be known as the ‘Advisory Committee’ (hereinafter sometimes referred to as the ‘Committee’) who shall serve at the pleasure of the board of said company. Vacancies in the Committee arising by resignation, death, removal or otherwise, shall be filled by the board.” | [
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Van Valkenburg, J.
This litigation arose out of an accident involving three automobiles and one truck, the occurrence of which took place early on December 23, 1964, while the parties were travelling west on Edsel Ford Expressway near Cass Avenue in the City of Detroit, Michigan.
Suit was brought by the plaintiffs against the two named defendants, but before the case was submit ted to the jury, Miss Bennett made a settlement in the amount of $10,000 and was released completely of further liability. The jury returned a verdict of no cause of action as to both parties. Therefore, this appeal involves only the plaintiffs and the defendant Interstate Trucking Corporation.
Four different issues are raised for our consideration.
I. Did the trial court commit reversible error in permitting plaintiff to be cross-examined with regard to other litigation instituted by plaintiff¶
In the instant case plaintiff claimed loss of wages due to injuries sustained in the accident. In the cross-examination of plaintiff by counsel for defendant truck company, it was brought out that plaintiff had been discharged by his employer, General Motors, shortly prior to the accident, and that plaintiff had commenced suit against General Motors Corporation and his union local for lost wages for what plaintiff alleged to be a wrongful discharge. Plaintiff objected to such testimony on the ground of relevancy. The trial court permitted the questioning regarding the other litigation, since it tended to impeach plaintiff’s alleged claim of lost wages due to the accident.
On appeal plaintiffs admit that the evidence of the other litigations involving similar claims may be brought out on cross-examination for impeachment purposes. See Schwartz v Triff, 2 Mich App 379 (1966); Hanik v Wilczynski, 33 Mich App 268 (1971). Plaintiffs, however, assert that since the parties involved in these other suits might well have some connection with the jurors, plaintiffs were thereby prejudiced. There is no merit to this claim. Not only did plaintiffs not move for a mistrial below, but also, their claim on appeal fails to rise above mere speculation and is unsupported by any authority. It is axiomatic that appellate review requires presentation of arguments and authority rather than conclusory speculation. Absent such citation of authority and presentation of compelling arguments, this Court will not review the issue. Consumers Power Company v Reich, 31 Mich App 138 (1971); Grove v Story Oldsmobile, Inc, 31 Mich App 613 (1971).
II. Bid the trial court commit reversible error by admitting into evidence medical records regarding plaintiff’s health?
The medical records in question were records which were kept by plaintiff’s employer in.the regular course of business. Plaintiffs assert that they should not have been admitted into evidence because they were hearsay. This issue is without merit. It was established that the records were kept in the ordinary course of business by the employer; therefore, the records were clearly admissible under the business exception to the hearsay rule. MCLA 600.2146; MSA 27A.2146; Jackson v Gregory, 32 Mich App 301 (1971). We might also point out that each of the offered records were signed by the plaintiff Peter Cacavas.
III. Bid the trial court commit reversible error by charging the jury as to contributory negligence, but failing to charge as to subsequent negligence9
Contributory negligence was pled in the answers of the defendants and set forth in their pretrial statements. The testimony, while controverted, would support a finding of contributory negligence. It was, therefore, proper to charge the jury as to contributory negligence.
While plaintiffs’ counsel did mention in passing the possibility of subsequent negligence on the part of the defendant truck company, he did not request a charge as to the doctrine of subsequent negligence, nor did he object with any specificity to the omission of such a charge. Since G-CB 1963, 516.2 requires that an objection be set forth with some degree of specificity before alleged errors in the giving of instructions will be heard on review, we hold that the error alleged herein was not properly preserved for appellate review. See Linendoll v Te Paske, 327 Mich 129, 136, 137 (1950); Kotila v McGinty, 28 Mich App 396 (1970).
IV. Did reversible error result from the inquiry by defense counsel as to the nature and extent of plaintiffs’ hospital and automobile insurance coverage?
Plaintiffs assert that reversible error resulted from allowing defense counsel to bring out that plaintiff husband was covered under plaintiff wife’s Blue Cross insurance policy, and that plaintiff husband received certain sums under the medical coverage of his automobile insurance policy. While plaintiffs’ counsel repeatedly objected to the testimony regarding the wife’s Blue Cross policy, no objection was made to the testimony regarding the medical coverage under the automobile policy; in fact counsel for plaintiffs took advantage of the opportunity and questioned the representative of the automobile underwriter concerning the reports on the nature of the injury.
To put the situation confronting defense counsel at the time he brought out these matters in a proper perspective, it is necessary to mention the nature of the evidence which plaintiff had previously brought out. Plaintiff, on direct examination, testified that when he was discharged from his job shortly prior to the accident he lost his Blue Cross coverage. Further, plaintiffs’ doctor testified that plaintiff was not hospitalized because “he didn’t have any insurance or any money”. Defense counsel was thus confronted with the situation whereby the jury was led to believe that plaintiffs were poverty stricken and bereft of any means to secure hospitalization. To the end of rebutting that inference raised by plaintiffs, defense counsel brought out that plaintiff husband had his wife’s Blue Cross coverage available to him and that he had received compensation under the medical coverage of the automobile policy.
By statute, reference to available insurance coverage is not to be made by any party. MCLA 500-.3030; MSA 24.13030. It has been repeatedly held that it is reversible error to intentionally interject the subject of insurance if the sole purpose is to inflame the passions of the jury so as to increase the size of the verdict. See Felice v Weinman, 372 Mich 278 (1964); Benmark v Steffen, 374 Mich 155 (1965); Cartier v Young, 31 Mich App 151 (1971). On the other hand, it is not reversible error if the subject is only incidentally brought into the trial, is only casually mentioned, or is used in good faith for purposes other than to inflame the passions of the jury. Morris v Montgomery, 229 Mich 509 (1924); Sutzer v Allen, 236 Mich 1 (1926); White v Makela, 304 Mich 425 (1943); Watroba v Detroit, 334 Mich 182 (1952); Broitman v Kohn, 16 Mich App 400 (1969).
Clearly, in the instant case, the purpose was not to inflame the passions of the jury; but rather, the purpose was to quench the passions improperly inflamed by plaintiffs’ attempt to paint a picture of abject destitution. While we deplore the fact that the question of insurance was ever allowed to be brought before the jury, whatever prejudice was raised was clearly initiated by plaintiffs’ original opening of the subject. Since plaintiffs opened the subject, they are now estopped from claiming error. See Broitman v Kohn, supra.
Affirmed. Costs to the appellee.
All concurred. | [
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Bronson, J.
On or about January 19,1968, plaintiff, while performing her normal duties at John’s Tavern, where she was employed as manager and waitress, felt a soreness in her arm. Several days later she saw Dr. Schimnoski, who prescribed medication. Plaintiff was admitted to the hospital February 5,1968. She gave a history showing no known injury or strain, but did remember lifting a beer keg on the day she felt the soreness. Such lifting was in the normal course of her duties. Her history also indicated that she had been unconscious for eight hours following a fall in 1966, and had undergone surgery on two occasions. On plaintiff’s discharge from the hospital, Dr. Schimnoski diagnosed her problem as a shoulder-hand syndrome and commented that her job was related to her symptom.
Subsequent evaluations failed to establish a physical cause for plaintiff’s disability. A Dr. Kingsley, however, felt that there was “marked emotional overlay” and recommended a psychiatric examination. Plaintiff was then examined by a Mayo Clinic psychiatrist, Dr. Moore. His evaluation, related in a letter from Dr. A. B. Hagedorn of the Mayo Clinic, was that plaintiff was suffering a “conversion reaction”. Dr. Moore also suggested that plaintiff return to work and that all legal matters pending be settled. The Workmen’s Compensation Referee found for plaintiff. The Workmen’s Compensation Appeal Board reversed. The majority found:
“Based upon the inability of a number of attending physicians to diagnose the nature and cause of plaintiff’s symptomatology and in agreement with Dr. Moore’s diagnosis it is our opinion that Mrs. Lamb’s pain which has persisted unabated since January 19, 1968, had its origin in a pre-existing emotional distress which manifested itself in her present symptomatology. We find no evidence in the file of this case which would allow us to deter mine that Mrs. Lamb’s emotional distress either had its origin or was aggravated in any manner by her work at John’s Tavern. We therefore find that any disability that Mrs. Lamb may presently suffer is not causally related to her work. We therefore, reverse the referee’s decision.”
This Court must affirm if there is any evidence in the record to support findings made by the Workmen’s Compensation Appeal Board. Lemanski v. Frimberger Co. (1971), 31 Mich App 285; Litwin v. Difco Laboratories, Inc. (1970), 28 Mich App 132; Clark v. Apex Foundry, Inc. (1967), 7 Mich App 684. In exercising our appellate function, however, we must have more than conclusionary statements to review. We must know how the board reached its conclusions. This Court has stated that “the appeal board should indicate the testimony adopted, the standard followed and the reasoning it used in reaching its conclusion”. McClary v. Wagoner (1969), 16 Mich App 326, 328.
The appeal board majority opinion is based on conclusions without reasons. It accepts Dr. Moore’s diagnosis without explanation and then concludes that there is “no evidence in the file of this case which would allow us to determine that Mrs. Lamb’s emotional distress either had its origin or was aggravated in any manner by her work at John’s Tavern”. (Emphasis added.) The record indicates that such evidence does exist. Dr. Schimnoski thought the plaintiff’s soreness was work related; plaintiff to the same effect; and Dr. Moore’s evaluation indicates the problem could be related to plaintiff’s work and to this litigation. If the board had chosen to accept this evidence, it could have found that the emotional distress was work related. While it is not our function to weigh evidence before the appeal board, we believe the board should attempt to explain its decisions based on all the evidence before it. See 3 Larson, The Law of Workmen’s Compensation (1971), § 80.20, p 264.
It seems to us that the standard used by the majority to determine whether plaintiff’s injury is compensable is unclear. The majority seems to assume that a finding of conversion reaction necessarily precludes a finding that plaintiff’s pain is work related. This is not necessarily so. Redfern v. Sparks-Withington Co. (1958), 353 Mich 286. An injury is compensable when it is “the unexpected result attending the operation or performance of a usual or necessary act or event”. Sheppard v. Michigan National Bank (1957), 348 Mich 577, 580. This includes injury to the body and/or nervous system which produces a disabling neurosis. Such injury is compensable even when a plaintiff is predisposed towards it if the injury aggravates a pre-existing condition to the disability or precipitates disability. Redfern v. Sparks-Withington Co., supra, at 299.
In returning this case to the Workmen’s Compensation Appeal Board, we are not unmindful of our proper function as an appellate court. But in any appeal from an administrative board to our Court where conclusions are stated without reason, we should never hesitate to remand.
The order of the appeal board is vacated and the cause remanded for reconsideration consistent with this opinion.
Targonski, J., concurred. | [
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Lesinski, C. J.
Defendant Henry Gardner’s motion to dismiss the information charging him with first-degree mnrder, MCLA 750.316; MSA 28.548, was denied by the trial court. This Court stayed proceedings in the court below on this charge, and granted defendant leave to appeal the trial court’s denial of his motion.
Defendant was first tried by a jury on this charge along with two other men. At that trial, presided over by Detroit Recorder’s Court Judge Elvin Davenport, defense counsel informed the jury that defendant had been on parole when the killing occurred. Defendant’s parole officer, William Richardson, was called as a defense witness at that trial. The parole officer testified that defendant “was making good progress, no arrests and no contacts with the authorities”. He stated that defendant had come to him and told him of defendant’s part in the activities surrounding the killing. Further, defendant asked Mr. Richardson to contact the two police officers in charge of the case so that defendant could explain his version of the incident to them.
The trial court concluded this first proceeding by declaring a mistrial, when the jury was unable to reach a verdict after five days of deliberation. Subsequent to that trial, the two codefendants pled guilty to reduced charges. Defendant proceeded to trial a second time alone.
During the tenth day of defendant’s second jury trial, also presided over by Judge Davenport, the prosecution called the arresting officer to testify. The following testimony was elicited from him hy the prosecutor on direct examination:
“Mr. Gibbs: Did you have occasion in the month of January of 1969 to arrest Henry Gardner?
* * #
“Police Officer: Yes, I did.
“Mr. Gibbs: And that took place where, that arrest?
“Police Officer: At the fourth precinct station, Port and Green.
“Mr. Gibbs: That arrest was made by surrender of the witness?
“Police Officer: Yes, it was.
“Mr. Gibbs: He came into the precinct?
“Police Officer: Yes, he did.”
The arresting officer was then cross-examined by defense counsel:
“Mr. Cifelli: And your first contact with Mr. Gardner was at the police station?
“Police Officer: Yes, sir.
“Mr. Cifelli: There at the police station, was this in the office?
“Police Officer: Yes sir, it was.
“Mr. Cifelli: He identified himself as Henry Gardner?
“Police Officer: Yes sir, he did.
“Mr. Cifelli: Did he inform you that he had knowledge that the Detroit Police Department was looking for him?
“Police Officer: Yes sir, he did.
“Mr. Cifelli: I have no further questions.”
The prosecutor then asked the first question of redirect examination:
“Mr. Gibbs: Was he in custody of a probation officer at that time?
“Police Officer: He was accompanied by Parole Officer Richardson.
“The Court: Excuse the jury.”
Immediately subsequent to that, the trial judge, on his own motion, declared a mistrial.
Defendant urges that to retry him for first degree murder, in light of the trial court’s sua sponte declaration of a mistrial at the second proceeding, would be to place him twice in jeopardy for the same offense in violation of the Double Jeopardy Clause of the United States and Michigan Constitutions, US Const, Am Y ; Michigan Const 1963, art 1, § 15. Thus, this Court is confronted again with the difficult question of under what circumstances may a defendant be retried, after a trial judge has declared a mistrial on his own motion.
I
The United States Supreme Court has often discussed the rationale behind the Double Jeopardy Clause. Any examination of the constitutional right cannot be divorced from the considerations which led to its conception.
The Supreme Court stated in Green v United States, 355 US 184, 187-188; 78 S Ct 221, 223; 2 L Ed 2d 199, 204 (1957), that:
“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
Mr. Justice Harlan, writing for the Court in United States v Jorn, 400 US 470, 479; 91 S Ct 547, 554; 27 L Ed 2d 543, 553 (1971), the Supreme Court’s latest pronouncement on double jeopardy, explained the provision in this manner:
“The Fifth Amendment’s prohibition against placing a defendant ‘twice in jeopardy’ represents a constitutional policy of finality for the defendant’s benefit in Federal criminal proceedings. A power in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial. And society’s awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws.”
This strong policy has led both the United States Supreme Court and Michigan Courts to declare that a defendant is placed in jeopardy once the jury is impaneled and sworn. Jorn, supra, 400 US at 479; 91 S Ct at 554; 27 L Ed 2d at 553; People v Tillard, 318 Mich 619 (1947); People v Henley, 26 Mich App 15 (1970). Once a defendant has been placed in jeopardy, he has a right to have his guilt weighed finally by that tribunal. If the jury is discharged without legal justification or defendant’s consent before his guilt or innocence has been determined, the discharge “is equivalent to an acquittal and bars retrial”. Henley, supra, at 27. See, also, People v Schepps, 231 Mich 260 (1925).
This is not to say that any declaration by the trial court of a mistrial without defendant’s consent bars all retrial, however. There are well-recognized exceptions to this rule. The classic statement on this subject, recently employed once again by the United States Supreme Court in Jorn, supra, was authored by Mr. Justice Story in United States v Perez, 22 US (9 Wheat) 579; 6 L Ed 165 (1824). The Peres holding allowed a defendant in a capital case to be retried after the trial court, sua sponte, declared a mistrial because the jury was unable to reach a verdict. The Court there stated:
“We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject, and it is impossible to define all the circumstances, which would - render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the secur ity which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the of the judges, under their oaths of office.” 22 US (9 Wheat) at 580; 6 L Ed at 165. (Emphasis supplied.)
The United States Supreme Court has applied the Peres standard since its formulation as the standard for determining whether the Double Jeopardy Clause bars retrial, after the trial judge’s declaration of a mistrial without the defendant’s consent. Jorn, supra, 400 US at 480, 481; 91 S Ct at 555; 27 L Ed at 554. Michigan courts have also utilized the Peres standard. See In re Earle, 316 Mich 295 (1946); People v Schepps, supra; People v Sharp, 163 Mich 79 (1910); In re Ascher, 130 Mich 540 (1902); People v Henley, supra; People v Anglin, 6 Mich App 666 (1967).
Thus, there are circumstances in which, because of manifest necessity, it is proper for the trial judge to declare a mistrial. Examples of situations where such a manifest necessity has been found to exist include cases where the jury is unable to agree; where the tactical situation of an army in the field dictates the dismissal of a court-martial ; where the trial judge discovers that one or more jurors might be biased; and where a juror, or defendant becomes ill during trial, making Ms continued presence impossiMe. In these circumstances, “a defendant’s valued right to have his trial completed by a particular tribunal must * * * be subordinated to the public’s interest in fair trials designed to end in just judgments”. Wade v Hunter, 336 US 684, 689; 69 S Ct 834, 837; 93 L Ed 974, 978 (1949).
The exceptions to the applicability of the Double Jeopardy Clause had been narrowly interpreted until the case of Gori v United States, 367 US 364; 81 S Ct 1523; 6 L Ed 2d 901 (1961). Mr. Justice Douglas, dissenting in the Gori opinion, suggested that previous exceptions had been limited to “breakdown [s] in judicial machinery”. Gori, supra, 367 US at 372; 81 S Ct at 1528; 6 L Ed 2d at 907 (Douglas, J., dissenting). In Gori, the Court affirmed defendant’s conviction on retrial, although the trial judge had declared a mistrial in a prior proceeding on his own motion, apparently because he believed the prosecutor intended to inform the jury of other crimes committed by the accused. The Court noted that the mistrial had been declared for defendant’s benefit. It stated: “Suffice that we are unwilling, where it clearly appears that a mistrial has been granted in the sole interest of the defendant, to hold that its necessary consequence is to bar all retrial”. 367 US at 369; 81 S Ct at 1527; 6 L Ed 2d at 905.
If the Gori holding remained intact, we would feel constrained to adopt its rationale in the instant case. In Henley, supra, a panel of this Court on which this writer participated followed the result which it felt was dictated by Gori After defendant’s lawyer in Henley withdrew from the case after an apparent disagreement over fees with defendant, the trial judge declared a mistrial, in order that new counsel could be obtained for defendant. The dismissal followed what the Court termed “repeated efforts on the part of defendant Henley to avoid trial on the merits”, Henley, supra, at 25, undertaken with “an apparent intent on defendant’s part to frustrate the judicial process”. Henley, at 33.
The Gori opinion is not the last statement by the United States Supreme Court, however. United States v Jorn, supra, handed down on January 25, 1971, discusses this complex problem and criticizes the Gori rationale. In Jorn, defendant had been charged with willfully assisting in the preparation of fraudulent income tax returns. Because the trial court felt that five of the prosecution witnesses, all taxpayers whom defendant allegedly aided in preparing false returns, had not been adequately warned of their rights against self-incrimination, it declared a mistrial on its own motion so that the witnesses could consult with attorneys before testifying. In an opinion written by Mr. Justice Harlan, the Court held that defendant could not be retried on the basis of the Double Jeopardy Clause.
Referring to the “benefit” rule, the Jorn Court stated:
“Further, we thing that a limitation on the abuse-of-discretion principle based on an appellate court’s assessment of which side benefited from the mistrial ruling does not adequately satisfy the policies underpinning the double jeopardy provision. Reprosecution after a mistrial has unnecessarily been de dared by the trial court obviously subjects the defendant to the same personal strain and insecurity regardless of the motivation underlying the trial judge’s action.” 400 US at 483; 91 S Ct at 556; 27 L Ed 2d at 555.
In addition, the Court rejected the prosecution’s contention “that double jeopardy policies are confined to prevention of prosecutorial or judicial overreaching”. 400 US at 484; 91 S Ct at 556-557; 27 L Ed 2d at 556.
The Court stated that, in the absence of a motion by the defendant for a mistrial which would usually eliminate the bar to retrial,
“The Peres doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” 400 US at 485; 91 S Ct at 557; 27 L Ed 2d at 557.
The Jorn Court emphasized repeatedly defendant’s interest in the determination of whether the trial should be aborted in the face of a situation which might merit the declaration of a mistrial. Although the trial judge must still balance the interests of defendant and the prosecution,
“Yet, in the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” 400 US at 486; 91 S Ct at 558; 27 L Ed 2d at 557.
In light of the Jorn decision, then, we are no longer constrained to follow Gori. It is not enough that a mistrial in the instant ease was declared for the benefit of defendant. We must, instead, look at the circumstances of the case to determine whether the trial judge correctly determined, in a “scrupulous exercise of judicial discretion”, that a manifest necessity prevented the ends of public justice from being served by a continuation of the proceeding.
II
Immediately after the trial judge excused the jury in this case, he made the following statement:
“The Court: This is what comes of nit-picking. He has said he was in the company of a parole officer. Now, the jury will know he is on parole. How am I going to clean that up? I don’t know why you waste time on it anyway. I really don’t. He said that he was in the company of a parole officer. He wasn’t going to show that he came in voluntarily. What difference did it make 1 .1 don’t know how I can correct this.
“Mr. Gibbs [assistant prosecuting attorney]: Your Honor, isn’t it possible, that—
“The Court: I am going to conduct an examination now.”
An examination of the jury revealed that at least one juror could accurately relate the questioned testimony. Without inviting comment from either counsel, the judge then stated:
“The Court: All right, a mistrial is declared and you are excused from further service in this case. This is error that cannot be cured. Now you know he is on parole. * * *
“All right. You will return to the jurors’ assembly room for further assignment.
“All right. That is all.”
A careful study of the law in Michigan reveals that the trial judge was correct in recognizing that a potentially serious problem had arisen.
The general rule in this state is that evidence of defendant’s former convictions or offenses is inadmissible, when defendant does not take the stand in his own behalf, unless the “evidence is material and relevant to the issue being tried”. People v Fleish, 321 Mich 443, 461 (1948). See, also, People v Greenway, 365 Mich 547 (1962). There is no contention in this case that evidence of defendant’s past offenses was relevant to the issue being tried.
Defendant and the prosecution, in their briefs on appeal, devote much argument to whether the prosecutor’s question and the arresting officer’s answer at trial do, in fact, constitute a sufficient basis for the declaration of a mistrial. Defendant cites Fleish, supra, for the proposition that such testimony could have been rendered harmless by a corrective instruction. In the Fleish case, a witness had responded, “Well, he just told me his experience at Alcatraz”, in reply to a general question from the prosecutor, and defendant moved for a mistrial. The trial court denied defendant’s motion, issuing instead a corrective instruction. The Michigan Supreme Court upheld the denial of the mistrial motion, noting that there was no indication that the prosecutor deliberately injected the improper testimony into the case. The Court stated:
“Inadvertent irregularities of this character are bound to occur in the course of prolonged, hotly-contested trials, and when, as in the instant case, the objectionable testimony is purged from tbe record by the trial court, the irregularity should not be held to constitute reversible error in the absence of a persuasive showing of prejudice.” Fleish at 463.
In Greenway, supra, in response to the question “Where did you meet William Greenway (defendant)?” the witness answered, “In the Arkansas prison”. The trial court’s denial of defendant’s motion for a mistrial was held to be reversible error. The Court stated that the answer by the witness, “which the prosecution clearly anticipated or hoped for, was calculated to prejudice the minds of the jurors against the defendant”. Greenway, at 551. In the case of People v Camel, 11 Mich App 219 (1968), we followed Greenway in holding that the trial court should have granted defendant’s motion for a mistrial after a witness said defendant had “stated that he had got out of Jackson prison”. Camel, supra, at 221. The Court ruled that “the objectionable response by this witness could have been anticipated”. Camel at 222.
A review of recent decisions in this Court concerning this problem reveals two classes of cases. One line of authority holds that the trial court erred in denying defendant’s motion for a mistrial. People v Sullivan, 32 Mich App 181 (1971); People v Matthews, 17 Mich App 48 (1969). Other decisions have ruled that there was no need to grant a mistrial, when the trial judge gave corrective instructions. People v Solis, 32 Mich App 191 (1971); People v Gibson, 25 Mich App 622 (1970); People v Oscar Lee Smith, 22 Mich App 133 (1970).
In Solis, supra, it was not necessary to grant a mistrial when a witness referred to defendant’s “prior trouble and probation” in an unresponsive answer to the prosecutor’s question. The Court noted that no emphasis was placed on the testimony by the prosecutor. In upholding the trial court’s failure to grant a mistrial in Gibson, supra, this Court noted:
“After reviewing the record, we are satisfied that the witness’s remark was not anticipated or pressed for by the prosecutor. Under such circumstances, a new trial need not result where, as here, the trial court applies the proper corrective.” 25 Mich App 623.
We do not find it necessary to determine whether the trial judge should have granted a mistrial or cured the error with an instruction, had defendant moved here for a mistrial. It is significant that defendant, unlike defendants in Camel, Fleish, Greenway, Sullivan, Matthews, Solis, and Gibson, supra, did not move for a mistrial.
This analysis of the propriety of the trial court’s action in declaring a mistrial in the instant case leads us to one definite conclusion: if the defendant, because of trial strategy, had determined to let the error pass without objection, he would not have found this Court receptive to any claimed error on appeal. By declaring a mistrial, then, the judge was not aborting a proceeding which, if it had led to defendant’s conviction, would have necessarily resulted in reversal on appeal.
Ill
It is apparent from the preceding discussion that Judge Davenport declared his mistrial out of a concern for a fair trial for defendant. However, that factor is no longer determinative of a double jeopardy question after Jorn, supra.
It is also apparent that Judge Davenport’s decision to declare a mistrial could not be judged as incorrect, if defendant had moved for a mistrial, because of the state of the law in this area.
The prosecution in this case, already in its tenth day of trial, was not prejudiced by the offensive matter that precipitated the mistrial. At the prior trial which also ended in a mistrial, defendant had volunteered the information that he was on parole. He sought to establish his recent conduct and the fact that he came to the police voluntarily through testimony of his parole officer. We have no way of knowing if defendant would have voluntarily done' so again. However, even if defendant was not going to make use of the parole officer’s testimony at this trial and was entitled to move for a mistrial and have that motion granted, he may have been satisfied with the composition of the jury or his chances for acquittal in the trial which was in its tenth day. He may have felt such considerations outweighed the prejudicial effects of the prosecutor’s remarks, and preferred a curative instruction rather than the declaration of a mistrial. On the other hand, defendant may have indicated his approval of a mistrial declaration, which approval would, in most situations, “remove any barrier to reprosecution”. Jorn, supra, 400 US at 485; 91 S Ct at 557; 27 L Ed 2d at 557.
We believe that a trial court’s declaration, sua sponte, of a mistrial cannot be grounded on “a scrupulous exercise of judicial discretion” where under the circumstances of this case it fails to consult defendant before summarily aborting the proceedings. In cases involving breakdowns in the judicial machinery, the trial judge is particularly well-suited to make a determination without consulting the parties. Such is not the case here, though. As the United States Supreme Court stated in Jorn:
“The defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might he thought to warrant a declaration of mistrial.” 400 US at 485; 91 S Ct at 557; 27 L Ed 2d at 556.
The result which we reach here does not remove all discretion from the trial court to declare a mistrial on its own motion in cases other than those involving breakdowns in judicial machinery. Rather, it only seeks to insure that defendant will have an opportunity to inform the court of factors which are germane to his interests in the trial’s continuation. The applicability of a statement by the California Supreme Court in Curry v Superior Court of the City and County of San Francisco, 2 Cal 3d 707, 717; 87 Cal Rptr 361, 367; 470 P2d 345, 351 (1970), is particularly relevant to the facts of this case.
“A defendant may choose not to move for or consent to a mistrial for many reasons. * # *
“Indeed, even when a palpably prejudicial error has been committed a defendant may have valid personal reasons to prefer going ahead with the trial rather than beginning the entire process anew, such as a desire to minimize the embarrassment, expense, and anxiety * * * . These considerations are peculiarly within the knowledge of the defendant, not the judge, and the latter must avoid depriving the defendant of his constitutionally protected freedom of choice in the name of a paternalistic concern for his welfare.”
See, also, State v Connors, 59 Wash 2d 879; 371 P2d 541, 545 (1962).
The trial court’s failure to consult defendant before declaring a mistrial on its own motion necessities reversal in this case.
The trial court’s denial of defendant’s motion to dismiss the first-degree murder information is reversed and defendant is discharged.
Reversed and defendant is ordered discharged.
All concurred.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution was held applicable to the states in Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969).
Justice Harlan’s opinion for the Court was signed by Chief Justice Burger, Mr. Justice Douglas, and Mr. Justice Marshall. Mr. Justice Black and Mr. Justice Brennan did not join in the opinion of the Court because they took an even more extreme position, believing that the Court had no jurisdiction to hear the appeal of the case brought by the government. (See part I of the majority opinion.) It was noted that “in view of a decision by a majority of the Court to reach the merits, they join the judgment of the Court”. United States v Jorn, 400 US 470, 488; 91 S Ct 547, 558; 27 L Ed 2d 543, 558 (1971). The dissent, signed by Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Blackmun, was based almost entirely on Gori v United States, 367 US 364; 81 S Ct 1523; 6 L Ed 2d 901 (1961).
In addition to United States v Perez, 22 US (9 Wheat) 579; 6 L Ed 165 (1824), on this issue, see Logan v United States, 144 US 263; 12 S Ct 617; 36 L Ed 429 (1892); Dreyer v Illinois, 187 US 71; 23 S Ct 28; 47 L Ed 79 (1902); Moss v Glenn, 189 US 506; 23 S Ct 851; 47 L Ed 921 (1903); and Keerl v Montana, 213 US 135; 29 S Ct 469; 53 L Ed 734 (1909). The latter three eases are based on Fourteenth Amendment due process standards, since the Double Jeopardy Clause had not yet been applied directly to the states, but are still instructive on this point.
Wade v Hunter, 336 US 684; 69 S Ct 834; 93 L Ed 974 (1949).
Simmons v United States, 142 US 148; 12 S Ct 171; 35 L Ed 968 (1891); Thompson v United States, 155 US 271; 15 S Ct 73; 39 L Ed 146 (1894).
United States v Potash, 118 F2d 54 (CA2, 1941), cert den 313 US 584; 61 S Ct 1103; 85 L Ed 1540 (illness of juror); and Loux v United States, 389 F2d 911 (CA9, 1968); United States v Stein, 140 F Supp 761 (SD NY, 1956) (illness of defendant). It is not clear whether the illness of a prosecutor would likewise he termed a “manifest necessity”. See United States v Watson (D NY), 3 Ben 1, F Cas No 16651, cited with approval in Downum v United States, 372 US 734; 83 S Ct 1033; 10 L Ed 2d 100 (1963).
On the other hand, panels of this Court in People v Carlton Brown, 23 Mich App 528 (1970), and People v Iaconis, 29 Mich App 443 (1971), appear to have disregarded the Gori test.
For a discussion of when it is proper to cure an error with corrective instruction instead of by the declaration of a mistrial, see People v Wolke, 10 Mich App 582 (1968); and People v Booker T Smith, 21 Mich App 99 (1970). The United States Supreme Court addressed the problem in Bruton v United States, 391 US 123: 88 S Ct 1620; 20 L Ed 2d 476 (1968).
Defendant, in People v Oscar Lee Smith, 22 Mich App 133 (1970), requested a curative instruction. Defendant, in this case, failed to adopt this course, either. | [
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Per Curiam.
In this action for intentional infliction of emotional distress, the trial court, sitting as finder of fact, found in favor of plaintiff and awarded him damages of $11,615. The trial court also issued a permanent injunction forbidding defendant from contacting or harassing plaintiff and requiring defendant to apply for a lateral transfer at the parties’ place of employment. Defendant now appeals as of right, and we affirm.
Plaintiff Thomas Haverbush is an orthopedic surgeon who since 1974 has conducted about sixty percent of his practice at Gratiot Community Hospital in Alma, Michigan. Defendant Helen Powelson is a registered nurse who has worked at the same hospital for eighteen years. The parties became acquainted in 1988, when Haverbush treated Powelson’s son and Powelson spoke to Haverbush about where her son might obtain a scholarship. Shortly after this, Powelson started giving gifts, such as cookies and wreaths, to Haverbush. However, Haverbush never asked Powelson out on a date and never expressed any romantic interest toward her, and, in fact, Haverbush declined her invitation to go out for coffee.
In August 1989, Powelson learned that Haverbush was dating Cathy Hampton, who also worked at the hospital. Powelson mentioned to one of her supervisors that she had a relationship with Haverbush, and the supervisor told her that she was dwelling too much on Haverbush and that it was interfering with her work. In the spring of 1990, Powelson wrote a letter to Haverbush, in which she told him to “f— off,” because his behavior was misleading in that he was sometimes overly friendly at work. Powelson sent Haverbush another letter in June 1990, telling him that she dearly loved him. Powelson complained to her union representative that the situation was not good with herself, Haverbush, and Haverbush’s girlfriend all working at the same hospital. In August, 1990, Powelson and her attorney met with Haverbush, and Haverbush made clear that he wanted no further contact or communications from Powelson.
According to Powelson, shortly after this meeting, she began receiving nuisance hang-up telephone calls that she believed were instituted by Haverbush. She therefore began writing a new series of letters to Haverbush. She also began placing her lingerie on his vehicle and outside his home. In the spring of 1991, she left a G-string and a garter belt attached to two garden rakes at his home; she left other lingerie at other times. She then wrote a letter to Haverbush complaining about Hampton driving by Powelson’s apartment: “I wonder how smart she would have thought she was if an ax went through her windshield. She might think twice about chasing people with her car.” Powelson also complained to Haverbush that Hampton was staring at her, stating, “one of these times I may just pull her hair off.” About three months later, Powelson claimed that Hampton tried to run her down with a car. Powelson then left an ax on Haverbush’s car windshield. One week later, she left a hatchet on his car. Powelson admitted at trial that, when questioned by police about these incidents, she denied involvement, but that she had, in fact, left both the ax and the hatchet on Haverbush’s cars and that she intended him to connect the ax with the reference she had made in her letter to Haverbush about Hampton.
Phyllis Fox, a nurse at the hospital, testified that in the spring of 1991 Powelson told her about a meeting she had with Haverbush and someone from the hospital’s administration and that the meeting upset her. Fox testified that on several occasions during this conversation, Powelson said “someone should ice” Haverbush, and “who knows what goes bang in the night.”
Powelson also admitted sending a letter to Hampton’s parents (whom she did not know) stating that Haverbush was a compulsive liar, that she was sure someday he would get “his balls rearranged,” and that he went “around” with many women and girls. She admitted sending a letter to Haverbush’s daughter, stating that Haverbush was a chronic compulsive liar, that he put Powelson down, and that he must have done the same thing to the daughter’s mother. Powelson concluded the letter by stating, “tell him in whatever language he understands to take a flying leap, fall off the face of the earth, take a hike, take a leap or just drop dead.”
Between April 5 and May 4, 1992, Powelson sent Haverbush six letters, knowing that he was engaged to marry Hampton. In her April 16, 1992, letter, she complained that Haverbush continued to make hangup telephone calls to her, yet she also stated: “I love you dearly, and sexually you turn me on. I’m sure I would give you the most pleasurable experience in your life, but you can’t do it over the phone.” On April 25, 1992, she wrote Haverbush giving him notice that she was going to move into his residence and stating that she was prepared to go public with the information she had, starting with his colleagues. On April 30, 1992, she wrote stating that she had just about everything packed. On May 3, 1992, she wrote stating that this was his last chance to change his mind and to leave her a key. On May 4, 1992, she wrote stating that she had no alternative other than to carry out her promise to make public his activities against her.
Because of the placement of the ax and the hatchet on his vehicles, the comments made to Fox, and the letters received in April and May, 1992, Haverbush feared for his safety and met with a police officer to ask what he could do to prevent being shot. He filed suit against Powelson, and a temporary restraining order was issued on June 8, 1992. He also hired two off-duty police officers to provide security to his home and the church when he got married in June, 1992.
After a full trial, the court, sitting as finder of fact, found in favor of Haverbush with respect to his claim of intentional infliction of emotional distress. The court issued an injunction and awarded him $11,615 in damages. Powelson raises several issues on appeal.
i
Powelson first asserts that the trial court erred in finding liability for intentional infliction of emotional distress because Haverbush did not prove all the elements of the tort. The tort of intentional infliction of emotional distress has four elements: (1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. Roberts v Auto-Owners Ins Co, 422 Mich 594, 602; 374 NW2d 905 (1985); Johnson v Wayne Co, 213 Mich App 143, 161; 540 NW2d 66 (1995). Liability for such a claim has been found only where the conduct complained of has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. Id. at 161.
Powelson claims that her conduct was not “extreme and outrageous.” We disagree; a rational trier of fact could find that Powelsoris conduct was so outrageous in character and so extreme in degree that it went beyond all bounds of common decency in a civilized society. She engaged in an escalating series of acts over a two-year period in which she: (1) sent a barrage of letters to Haverbush, to his daughter, and to his future in-laws, in which she called him a compulsive liar, threatened his fiancee with physical harm, and threatened to tell his colleagues that he had harassed Powelson; (2) left lingerie on Haverbush’s vehicles and at his residence several times; (3) left an ax and a hatchet on his vehicles, after having asked him how his fiancee would like to have an ax through her windshield; (4) told a coworker several times that someone should “ice” Haverbush; and (5) wrote several letters threatening to move in with him even though he was engaged and would soon be married. This conduct could appropriately be determined sufficiently extreme and outra geous to justify recovery for intentional infliction of emotional distress.
Powelson next argues that Haverbush failed to prove that he in fact suffered “severe emotional distress.” 1 Restatement Torts, 2d, § 46, Comment j, p 77, states that emotional distress “includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea..” However: the comment continues:
The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and duration of the distress are factors to be considered in determining its severity. Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant’s conduct is in itself important evidence that the distress has existed. [Id. at 77-78.]
See also Dickerson v Nichols, 161 Mich App 103, 107; 409 NW2d 741 (1987). In McCahill v Commercial Union Ins Co, 179 Mich App 761, 771; 446 NW2d 579 (1989), we stated that seeking medical treatment is not a condition precedent to satisfying the element of severe emotional distress.
Here, Haverbush presented no evidence that he had sought medical treatment, although he testified that Powelson’s actions caused him emotional distress, that her actions affected the way he did his work, and that he had to take precautions about being in his office after dark. On the facts of this case, severe emotional distress was established by Haverbush’s testimony (1) that Powelson’s letter accused him of harassment, (2) that he was especially fearful after Powelson left the ax and the hatchet on his vehicles, (3) that Powelson’s letters caused him great concern that she was going to interfere with his wedding, (4) that he was worried about his reputation because of what Powelson said about him to others, (5) that he was concerned with his patients’ safety, and (6) that Powelson’s actions affected the way he did his work.
n
Powelson next asserts that the trial court erred in denying her motion for a directed verdict and later motion for a judgment notwithstanding the verdict (jnov). We find no error.
Powelson argues that although the trial court mentioned the need to prove “outrageous” conduct, it failed to properly state that this element of the tort is actually “extreme and outrageous conduct.” However, in granting judgment for Haverbush, the trial court stated that plaintiff had proved the type of conduct that would cause a reasonable person upon seeing or hearing of that conduct to shout, “outrageous, unbelievable!” In light of the evidence of Powelson’s conduct previously set forth, we find no merit to defendant’s argument.
Powelson also argues that the trial court erroneously denied her motions, because the court incorrectly applied a “reasonableness” standard, rather than one of intent or recklessness. See Roberts v Auto-Owners Ins Co, supra at 602 (second element). This argument is without merit. The trial court specifically stated that the conduct had to be “made for the purpose of” inflicting emotional distress (which is consistent with intent) or that “any reasonable person would know that emotional distress would result.” Saying that “any reasonable person would know emo tionai distress would result” is similar to saying that the conduct is reckless. The trial court did not err in concluding that any reasonable person in Powelson’s position would know that emotional distress would result from her actions; on the facts of this case, this is sufficient to show recklessness.
Finally, the court did not err in concluding that there was sufficient evidence of severe emotional distress to deny the motions. As stated previously, Powelson’s pattern of escalating conduct would cause reasonable persons to fear for their own safety and to be distraught and emotionally harmed. The trial court therefore properly denied Powelson’s motions for a directed verdict and a jnov.
m
Powelson next argues that the trial court erred in granting an injunction. According to Powelson, Haverbush had an adequate remedy at law (in the form of the peace bond statute and the stalking law) and had not suffered irreparable injury. According to Peninsula Sanitation, Inc v Manistique, 208 Mich App 34, 43; 526 NW2d 607 (1994), there are three prerequisites to obtaining injunctive relief:
(1) justice must require that the court grant the injunction, (2) there must be no adequate remedy at law, and (3) there must be a real and imminent danger of irreparable injury.
The existence of criminal or economic penalties is not an adequate remedy at law if it requires a party to return to the courts repeatedly. Id. In light of the overwhelming evidence of Powelson’s actions over nearly three years to harass and inflict distress and fear in Haverbush, the trial court did not err in concluding that Haverbush had no adequate remedy because the remedies proposed by Powelson here would require him to return to the police or the courts repeatedly.
Powelson also argues that the injunction was improperly granted because there was no threat of imminent harm, all incidents having ceased when the lawsuit was filed. This overlooks the fact that a temporary restraining order was signed by the court on June 8, 1992, one month after the suit was filed. The fact that Powelson previously had failed to cease her inappropriate contacts with Haverbush when requested both by him and by his attorney also supports the conclusion that an injunction was an appropriate remedy.
iv
In its judgment and order, the trial court ordered Powelson to apply for a lateral transfer within the hospital to an alternative position of equal or equivalent duties, compensation, and benefits, so as to avoid to the greatest extent possible any contact between the parties and between Powelson and Haverbush’s patients. Powelson argues that the trial court’s order requiring her to apply for a transfer to a different position is ineffectual, is fraught with enforcement problems, fails to prevent the type of harm allegedly suffered, and impairs her occupation and livelihood.
At trial, it was established that ninety percent of Haverbush’s patients are on floor 2F of the hospital. Plaintiff said that he had brought the lawsuit to the hospital’s attention because he thought that it was possible that Powelson might try to harm one of his patients in an effort to retaliate. After the lawsuit was filed, Powelson was temporarily transferred away from 2F, but she returned there sometime later.
It is not clear why Powelson believes that being ordered to seek a lateral transfer will be ineffectual. If such a transfer takes place, it will minimize contact between Powelson and Haverbush and Haverbush’s patients. This is precisely the effect sought by the court. Defendant also claims that this portion of the order fails to prevent the type of harm allegedly suffered. However, the injunction is intended to minimize contact between Haverbush and Powelson, which was one of the harms suffered. It is intended to protect Haverbush’s patients, a concern which was justified in light of Powelson’s bizarre behavior. Defendant’s concern about enforcement problems is also ill-founded; all the injunction requires her to do is to apply. If a lateral position is not available or does not exist, she will have complied with the order merely by applying. Finally, Powelson’s claim that this portion of the injunction impairs her occupation has no support in the record. In fact, because she was previously transferred away from floor 2F, there is no reason to believe that she cannot be a nurse on other floors of the hospital. Given plaintiff’s testimony and Powelson’s inappropriate and obsessive behavior, the court was justified in ordering Powelson to apply for a lateral transfer.
v
Powelson finally argues that the trial court erred in awarding damages in the amount of Haverbush’s attorneys’ fees plus ten percent (a total of $11,615). We disagree.
Haverbush testified that Powelson’s action had cost him money, mainly in attorney fees. He testified that (to that point in the trial) his attorneys fees were about $7,500. He also paid Powelson’s attorney to attend a meeting. He had hired two deputies to provide security for his wedding at the church and at his home. He also testified that, with respect to damages, he was only looking for a symbolic amount and that it was not his intention to inflict serious financial harm upon Powelson, who is a single mother.
After finding that an intentional infliction of emotional distress claim had been established, the trial court noted that there is no accurate way to place a dollar figure on what plaintiff’s monetary damages had been. The court thus held that it would award Haverbush his actual attorney fees plus ten percent. His counsel subsequently submitted a bill of costs, to which Powelson’s counsel objected. The court reduced slightly the amount claimed and entered an order awarding $11,615.
Powelson argues that the court did nothing more than award Haverbush his attorney fees, contrary to the general rule that each party has to bear its own attorney fees. We disagree. Given the testimony about Powelson’s escalating outrageous actions, the trial court would have been justified in awarding more than $11,615 in damages for emotional distress. However, because Haverbush testified that he was not seeking to inflict serious financial harm on Powelson, the court decided to award him an amount equal to his attorney fees plus ten percent. No factfinder can value pain and suffering (or here, mental distress damages) with mathematical certainty. Precopio v Detroit, 415 Mich 457, 470-471; 330 NW2d 802 (1982). However, courts frequently look to comparable awards in similar cases to evaluate whether a particular award exceeds the range demonstrated by the evidence. Id. at 471-473. In Dickerson, supra at 104, this Court affirmed an award of $16,500 in an action for intentional infliction of emotional distress that was similar to this case (long-term harassment, parties worked at the same place, false accusations). The trial court’s damage award was not clearly erroneous.
VI
We deny Haverbush’s request for sanctions on appeal pursuant to MCR 7.216(C). Although we find no merit to the issues raised on appeal, the matter was not so lacking in merit as to be vexatious.
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Mackenzie, J.
Following a sales and use tax audit for the period of December 1, 1981, to June 30, 1983, respondent Department of Treasury assessed against the University of Michigan sales tax in the amount of $62,829.46 inclusive of interest, and use tax in the amount of $17,030.91 inclusive of interest. The university paid the assessments under protest and petitioner the University of Michigan Board of Regents sought review and a refund in the Court of Claims. The court granted summary disposition for the university pursuant to MCR 2.116(C)(10) and ordered a refund of the sales tax assessment and a partial refund of the use tax assessment. The Department of Treasury appeals as of right from the grant of summary disposition for the university, and the university cross appeals as of right with regard to the portion of the use tax assessment upheld by the Court of Claims. Ferris State University, Michigan State University, Eastern Michigan University, Saginaw Valley State University, Central Michigan University, Grand Valley State University, Oakland University, Northern Michigan University, Western Michigan University, and Wayne State University have filed an amici curiae brief aligned with the University of Michigan’s position. We affirm in part and reverse in part.
THE SALES TAX ASSESSMENT
The General Sales Tax Act, MCL 205.51 et seq.-, MSA 7.521 et seq., imposes on “all persons engaged in the business of making sales at retail” a tax “for the privilege of engaging in that business.” MCL 205.52(1); MSA 7.522(1). “Sale at retail” means “a transaction by which the ownership of tangible personal property is transferred for consideration, if the transfer is made in the ordinary course of the transferor’s business and is made to the transferee for consumption or use, or for any purpose other than for resale.” MCL 205.51(l)(b); MSA 7.521(l)(b).
As relevant to this appeal, the sales tax assessment against the university covered (1) photocopies costing five cents each made by students or others at photocopier machines placed at the university’s libraries, student dormitories, and student union, (2) replacement diplomas ordered by graduates, costing $5 each, (3) meals provided to participants in the Executive Development Program, a three- to four-week residential nondegree-granting program offered through the university’s Graduate School of Business Administration that teaches business theory and techniques to corporate executives, and (4) meals provided to participants in five of sixteen summer sports camps for students ages eight to eighteen. The Court of Claims ruled that the department’s assessment regarding each of these items was unlawful. This ruling forms the basis of the department’s appeal.
We find no error in the Court of Claims’ determination that photocopies made by students were not subject to sales tax. Fundamentally, the sales tax is a tax upon sellers for the privilege of engaging in the business of making retail sales of tangible personal property. Terco, Inc v Dep’t of Treasury, 127 Mich App 220, 225-226; 339 NW2d 17 (1983). “Business” is defined in the sales tax act as “an activity engaged in by a person or caused to be engaged in by that person with the object of gain, benefit, or advantage, either direct or indirect.” MCL 205.51(l)(j); MSA 7.521(l)(j). The university was not in the business of selling photocopies as a retail enterprise with a profit-making objective; the five-cent charge closely approximated the actual cost of one photocopy. Rather, the university provided an academic library, and the convenience of and charge for photocopies were an incidental part of library operations.
The Wisconsin Court of Appeals addressed an analogous situation in Frisch, Dudek & Slattery, Ltd v Dep’t of Revenue, 133 Wis App 2d 444; 396 NW2d 355 (1986). In Frisch, the Wisconsin Department of Revenue determined that a law firm should be required to pay a sales tax for photocopies billed to its clients. The court disagreed. Although the firm separately invoiced the photocopies when it billed its clients, the Frisch court concluded that any “sale” of photocopies was not in the nature of a retailer’s “mercantile transaction,” but, instead, was incidental to the legal services provided. Because the law firm was not a retailer of photocopies, the court held that no sales tax could be imposed on its client photocopying charges. Id. at 447-449.
Just as the photocopies in Frisch were not supplied as part of a mercantile transaction, the photocopies in this case were not sold at retail to generate a profit. Rather, students’ use of the photocopier machines was incidental to the library’s circulation services and the university’s educational mission. The photocopies produced by students were therefore not subject to sales tax.
We also find no error in the Court of Claims’ determination that replacement diplomas were not subject to sales tax. The court concluded that the university, by offering replacement diplomas for $5, was offering a customized service to which the tangible paper was merely incidental. This conclusion is consistent with DAIIE v Dep’t of Treasury, 138 Mich App 696; 361 NW2d 373 (1984), where this Court held that the sale of a customized computer software program was not subject to the sales tax because the purchaser was paying for the service of having a personalized program produced. “ ‘The focus of the instant transaction is on the personalized service of the software vendors, an intangibles transaction.’ ” Id. at 699, quoting Maccabees Mutual Life Ins Co v Dep’t of Treasury, 122 Mich App 660, 666; 332 NW2d 561 (1983). Similarly, in this case, the purchaser of a replacement diploma was paying for the services of the university’s office of the registrar in reviewing its records and then producing a document containing highly personalized information, including the name of the graduate, the degree obtained, and the date of graduation. The Court of Claims correctly found the department’s sales tax assessment on replacement diplomas to be invalid.
We next turn to the department’s contention that the Court of Claims erred in its determination that the meals provided to Executive Development Program participants and to summer sports camp participants were not subject to sales tax. Under subsection 4a(c) of the sales tax act, MCL 205.54a(c); MSA 7.525(c), sales of food to “bona fide enrolled students” by nonprofit educational institutions such as the university are exempt from sales tax. The department contends that persons attending the two programs were not bona fide enrolled students and, therefore, their meals were taxable. We disagree.
With regard to the Executive Development Program, the department argues that students enrolled in the program are not “bona fide” because they are enrolled in a continuing education program rather than a degree-granting program. While we are aware that the department has made this distinction in the past, we also recognize that its interpretation is not binding on this Court and that the plain language of the statute controls. See Ludington Service Corp v Acting Comm’r of Ins, 444 Mich 481, 505; 511 NW2d 661 (1994).
Black’s Law Dictionary (6th ed, 1990) defines “bona fide” as “[i]n or with good faith; honestly, openly, and sincerely; without deceit or fraud . . . [t]ruly; actually; without simulation and pretense.” Random House Webster’s College Dictionary (1995) defines “bona fide” as “made, done, etc., in good faith; without deception or fraud . .. authentic; genuine; real.” Given these definitions, the qualification of “enrolled students” by the phrase “bona fide” appears to be intended to prevent the application of the exemption to persons who are merely names on the rolls and who do not actually function as students, such as persons visiting classes.
We agree with the Court of Claims that there was nothing less than bona fide about the students enrolled in the Executive Development Program. During their enrollment, they engaged in the same scholastic activities as students in degree-granting programs with the same broad objectives of improving skills and furthering knowledge. As the Court of Claims stated, “to assess a tax on no other basis than a distinction between certificate [-granting programs such as the Executive Development Program] and degree-granting programs may well be arbitrary.” We agree with the court that because the Executive Development Program participants attended classes, received instruction, and performed other actions normally associated with being a student, they were “bona fide enrolled students,” and the meals sold to them by the university were exempt from sales tax.
We also agree with the Court of Claims that the meals sold to summer sports camp participants were exempt from sales tax. Again, the issue is whether the sports camp participants were “bona fide enrolled students” for purposes of MCL 205.54a(c); MSA 7.525(c). In this regard, we note that the Commissioner of Revenue has previously ruled that high school students attending a summer camp offered by a college athletic department are “bona fide enrolled students” because they are “bona fide high school students.” 1974 Letter Rulings, LR 74-2 (February 15, 1974). We find this reasoning persuasive. Although, as the department points out, some students attending the sports camps in this case were enrolled in elementary or middle school instead of high school, there is no principled reason why the same logic should not apply. Because the students at the summer sports camps were bona fide elementary or secondary school students, the meals sold to them by the university were exempt from sales tax. We find no error in the Court of Claims’ determination that the department’s sales tax assessment was invalid.
THE USE TAX ASSESSMENT
The Michigan use tax is an excise tax imposed for the “ ‘privilege of using, storing, or consuming tangible personal property in this state.’ ” Combustion Engineering, Inc v Dep’t of Treasury, 216 Mich App 465, 468; 549 NW2d 364 (1996), quoting MCL 205.93(1); MSA 7.555(3)(1). The Use Tax Act, MCL 205.91 et seq.; MSA 7.555(1) et seq., applies to, among other items, the rental of hotel rooms and similar accommodations. Section 3a, MCL 205.93a; MSA 7.555(3a), imposes a tax on the “use or consumption” of
* * *
(b) Rooms or lodging furnished by hotelkeepers, motel operators, and other persons furnishing accommodations that are available to the public on the basis of a commercial and business enterprise, irrespective of whether or not membership is required for use of the accommodations, except rooms and lodging rented for a continuous period of more than 1 month. [Emphasis added.]
As relevant to the university’s cross appeal, the department assessed the use tax on Executive Development Program participants’ student housing and on guest rooms and cots used by overnight visitors at Martha Cook Residence Hall. The Court of Claims upheld the assessment. We conclude that the court erred in ruling that these accommodations were subject to the use tax.
In ruling that student housing for Executive Development Program enrollees was subject to the use tax, the Court of Claims determined that admission in the program was akin to membership in an exclusive club, and that the housing was “available to the public .. . irrespective of whether membership is required.” We agree with the university, however, that the word “membership” is not commonly used to connote the status of an enrolled student at a college. Unless specially defined, words in a statute are accorded their plain and ordinary meaning, MCL 8.3a; MSA 2.212(1), and tax laws will not be extended in scope by implication or by a forced construction. Michigan Bell Telephone Co v Dep’t of Treasury, 445 Mich 470, 477; 518 NW2d 808 (1994). To state that “membership” is synonymous with admission to and enrollment in a university program requires the meaning of membership to be extended beyond its everyday usage, and we decline to apply such a forced construction.
The Executive Development Program accommodations were not open to the general public; only admitted students could use them. Nor were they available “on the basis of a commercial and business enterprise.” “Business” is defined in subsection 2(h) of the Use Tax Act, MCL 205.92(h); MSA 7.555(2)(h), as an activity engaged in “with the object of gain, benefit, or advantage, either direct or indirect.” Providing housing for the program’s students was not done with the object of gain, but to facilitate the educational purpose of the program through on-site residency. Accordingly, the lodging was not subject to the use tax.
Similarly, the use of the overnight guest rooms and cots at Martha Cook Residence Hall was not taxable under MCL 205.93a; MSA 7.555(3a). This dormitory is for women only, and its facilities were available only to the residents and their approved guests. The accommodations, therefore, were not available to the general public. Moreover, the rooms and cots were not provided as a business enterprise, but, instead, were supplied as an adjunct to the students’ non-taxed dormitory rooms in order to provide residents with approved overnight dormitory space for their guests. The fees charged covered the cost of maintenance and providing fresh linens and were not assessed with the objective of making a profit. Therefore, like the Executive Development Program housing, the accommodations at Martha Cook Hall were not subject to the use tax.
Affirmed in part and reversed in part. | [
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Per Curiam.
We consider this case on remand from our Supreme Court for reconsideration in light of New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins Co, 514 US _; 115 S Ct 1671; 131 L Ed 2d 695 (1995). 449 Mich 860 (1995). We affirm in part and reverse in part.
In BPS Clinical Laboratories v Blue Cross & Blue Shield of Michigan, 206 Mich App 570; 522 NW2d 902 (1994), we considered plaintiffs’ claims that defendant wrongfully denied them the opportunity to participate in its new health care program in violation of state law. We held that plaintiffs’ claims were preempted by the federal Employee Retirement Income Security Act (erisa), 29 USC 1001 et seq. After the publication of our case, the United States Supreme Court decided New York Blue Cross, supra. In light of New York Blue Cross, we repudiate our prior decision and hold that the erisa does not preempt plaintiffs’ claims under state law.
i
This case involves defendant’s Premier Prudent Laboratory Use Program (Premier Plus), which defendant administers for General Motors Corporation under an “administrative services only” contract. This contract requires General Motors to pay defendant a fee for administering the program and reimburse defendant for all covered health care charges paid by defendant on behalf of program enrollees. Defendant does not function as an insurer for program enrollees.
Under Premier Plus, defendant created a panel of six provider laboratories that agreed to discount the rate for laboratory services. Physicians who referred laboratory services to the provider laboratories would receive a $3 blood-handling fee from defendant. Physicians who referred specimens to nonpanel laboratories would not receive the fee. While the panel of provider laboratories would receive the full discounted rate from defendant, nonpanel laboratories would only receive fifty percent of the maximum payment scheduled.
Plaintiffs are health care providers excluded from full reimbursement under Premier Plus. Plaintiffs filed two different suits, claiming several violations of state law. First, plaintiffs alleged that Premier Plus violated the Michigan Nonprofit Health Care Corporation Reform Act (Act 350). MCL 550.1101 et seq.) MSA 24.660(101) et seq. Second, plaintiffs argued for mandamus relief ordering defendant to comply with the Prudent Purchaser Act (ppa), MCL 550.51 et seq.) MSA 24.650(51) et seq. Third, plaintiffs claimed that the plan constituted a breach of contract. Fourth, plaintiffs maintained that the creation of Premier Plus resulted in a tortious interference with a business relationship. Fifth, plaintiffs alleged that Premier Plus violated § 2 of the Michigan Antitrust Reform Act. MCL 445.772; MSA 28.70(2). Defendant maintained that plaintiffs’ claims were preempted by the erisa.
Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). The trial court granted defendant’s motion for summary disposition of all of plaintiffs’ claims except for the alleged violation of the ppa. In BPS Labs v Blue Cross, supra, we affirmed in part and reversed in part, holding that the erisa preempted plaintiffs’ state claims.
n
Section 514(a) of the erisa provides that the erisa “shall supersede any and all State laws insofar as they . . . relate to any employee benefit plan.” 29 USC 1144(a). In New York Blue Cross, supra, the United States Supreme Court stated that the term “relate to” was so vague as to be meaningless. The Supreme Court held that the basic thrust of the ERISA’s preemption clause was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans. State laws that force an ERISA plan administrator to modify a benefit plan in order to comply with the laws of a specific state would violate the erisa. Id. at 131 L Ed 2d 706.
The ppa does not preclude the nationally uniform administration of employee benefit plans. The ppa was enacted to address the problem of rising health care costs in Michigan. The drafters of this legislation determined that few incentives existed in the health care marketplace to contain costs. In an attempt to encourage insurance companies and nonprofit health care corporations to contain costs, the ppa permits these organizations to enter into prudent purchaser agreements with a limited number of health care providers selected on the basis of cost of services and quality of care. These organizations could then encourage or require consumers to utilize the selected health care providers. House Legislative Analysis Section, HB 4798-4801, 5067-5069 (January 12, 1984).
The PPA permits certain organizations to voluntarily enter into prudent purchaser agreements with health care providers to control health care costs. MCL 550.53(1); MSA 24.650(53)(1). Because the ppa does not mandate that any party enter into a prudent purchaser agreement, we hold that the Prudent Purchaser Act, MCL 550.51 et seq.; MSA 24.650(51) et seq., is not preempted by the ERISA. When a state passes a law that requires all employee benefit plans to pay pregnancy-related benefits to employees, then a benefit provider must alter the plan to comply with a specific state law. Shaw v Delta Air Lines, Inc, 463 US 85, 97; 103 S Ct 2890; 77 L Ed 2d 490 (1983). Similarly, when a state mandates that an employee benefit plan provide minimum mental health coverage, then a plan administrator must modify the plan or violate state law. Metropolitan Life Ins Co v Massachusetts, 471 US 724, 740; 105 S Ct 2380; 85 L Ed 2d 728 (1985). In those cases, the ERISA preemption permitted the nationally uniform administration of employee benefit plans. However, we fail to see how a statute that applies only to those who choose to fall within its purview could preclude the nationally uniform administration of employee benefit plans. Unlike Shaw and Metropolitan Life, the ppa did not mandate any change in health care coverage or the administration of benefits. The act only imposed certain requirements once defendant chose to form prudent pur chaser agreements. Because we find that the ppa does not preclude the nationally uniform administration of employee benefit plans, we hold that plaintiffs’ claims pursuant to the ppa are not preempted by the erisa.
We also hold that the erisa does not preempt plaintiffs’ claims under Act 350. MCL 550.1101 et seq.) MSA 24.660(101) el seq. Plaintiffs alleged that defendant violated Act 350 by (1) failing to submit a revised certificate to the Insurance Commissioner for rate approval of Premier Plus, (2) failing to submit a list defining the provider class plans to the Insurance Commissioner, and (3) using money to induce referring physicians to work with panel laboratories. Defendant argued that the erisa preempted the procedural requirements of Act 350 because the imposition of these requirements would preclude the nationally uniform administration of employee benefit plans.
Act 350 is the enabling legislation for defendant. The primary purpose of the original act was to promote a wider distribution of medical care to those people who otherwise did not have the financial resources to obtain health care services. The secondary purpose was to protect the public from fraud by placing the health care corporations charged with administering the plans under the regulatory authority of the Insurance Commissioner. Act 350 modified the earlier enabling legislation so that the Insurance Commissioner would possess the power to require specific cost-containment procedures. Defendant participated in the development of the legislation. Blue Cross & Blue Shield of Michigan v Governor, 422 Mich 1, 14-17; 367 NW2d 1 (1985). Act 350 provides that a health care corporation shall offer health care benefits to all residents of the state who apply for such benefits. MCL 550.1202(l)(d); MSA 24.660(202) (l)(d), MCL 550.1401(1); MSA 24.660(401)(1).
Requiring defendant to comply with the requirements of its enabling legislation does not preclude the nationally uniform administration of benefit plans. Defendant asks this Court to cast off the procedural requirements of its enabling legislation because they add a burden to its administration of health care plans but to retain its exemptions from state tax and corporation law. Taking defendant’s argument to its logical conclusion, the state would lose any ability to regulate defendant at all. As the Supreme Court stated in New York Blue Cross, supra:
While Congress’s extension of pre-emption to ail “state laws relating to benefit plans” was meant to. sweep more broadly than “state laws dealing with the subject matters covered by erisa[,] reporting, disclosure, fiduciary responsibility, and the like,” nothing in the language of the Act or the context of its passage indicates that Congress chose to displace general health care regulation, which historically has been a matter of local concern. [Id. at 131 L Ed 2d 709 (citation omitted).]
The fact that the ERISA does not address the relationship of a benefit plan with health care providers supports our conclusion. Because we do not agree that Congress intended to preempt state law where no federal regulation exists to replace it, we find that none of plaintiffs’ claims are preempted by the ERISA. Int’l Resources, Inc v New York Life Ins Co, 950 F2d 294, 298 (CA 6, 1991). The erisa was enacted to protect the pension funds of employees and benefi ciaries. The stated policy of the erisa is “to protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries.” 29 USC 1001(b). While participants, fiduciaries, beneficiaries, or government entities are entitled to file a civil action under the erisa, health care providers under contract with a plan administrator have no standing to file a civil action. 29 USC 1132.
As the Court of Appeals for the Eleventh Circuit stated in Lordmann Enterprises, Inc v Equicor, Inc, 32 F3d 1529, 1533 (CA 11, 1994):
Preemption in a third-party health care provider case would defeat rather than promote this goal. The “commercial realities” of the health care industry require that health care providers be able to rely on insurers’ representations as to coverage. ... If ERISA preempts their potential causes of action for misrepresentation, health care providers can no longer rely as freely and must either deny care or raise fees to protect themselves against the risk of noncoverage. In that event, the employees whom Congress sought to protect would find medical treatment more difficult to obtain.
m
Having determined that the erisa does not preempt plaintiffs’ claims, we now address the trial court’s disposition of the case. The trial court granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(8) and (10) of all of plaintiffs’ claims except for the claimed violation of the ppa. MCL 550.51 et seq.) MSA 24.650(51) et seq. The trial court determined that defendant had violated the PPA. We review de novo a trial court’s grant or denial of a motion for summary disposition. Thomas v State Bd of Law Examiners, 210 Mich App 279, 280; 533 NW2d 3 (1995).
First, we find that the trial court did not err in granting defendant’s motion for summary disposition of plaintiffs’ claim of a violation of Act 350. The trial court correctly held that Act 350 does not grant a health care provider the right to sue a health care corporation directly. Only the Attorney General and the Insurance Commissioner are entitled to enforce the act directly against a health care corporation. MCL 550.1619(2), (3); MSA 24.660(619)(2),(3). Additionally, a person seeking to compel compliance with, or enforcement of, the act has a right to bring an action in the Ingham Circuit Court to compel the commissioner to enforce the act. MCL 550.1619(3); MSA 24.660(619)(3). The only private right of action directly against a health care corporation authorized by the act is an action by a subscriber against a health care corporation for damages. MCL 550.1402(11); MSA 24.660(402)(11). Because this statute only explicitly allows a private right of action by a subscriber, we conclude that no other private rights of action directly against a health care corporation are authorized. See Williams v Coleman, 194 Mich App 606, 613; 488 NW2d 464 (1992). The relief sought by plaintiffs regarding the enforcement of Act 350 is available through the procedure set forth in MCL 550.1619(3); MSA 24.660(619)(3). Plaintiffs may commence an action in the Ingham Circuit Court to compel the Insurance Commissioner to enforce the act.
Next, we find that the trial court properly dismissed plaintiffs’ claim of tortious interference with a business relationship. The elements of tortious interference with a business relationship are the existence of a valid business relationship or expectancy, knowledge of the relationship or expectancy on the part of the defendant, an intentional interference by the defendant inducing or causing a breach or termination of the relationship or expectancy, and resultant damage to the plaintiff. Lakeshore Community Hosp v Perry, 212 Mich App 396, 401; 538 NW2d 24 (1995). To establish that a lawful act was done with malice and without justification, the plaintiff must demonstrate, with specificity, affirmative acts by the defendant that corroborate the improper motive of the interference. Feldman v Green, 138 Mich App 360, 369; 360 NW2d 881 (1984). Where the defendant’s actions were motivated by legitimate business reasons, its actions would not constitute improper motive or interference. Michigan Podiatric Medical Ass’n v Nat’l Foot Care Program, Inc, 175 Mich App 723, 736; 438 NW2d 349 (1989). Because we agree with the trial court that defendant established Premier Plus for a legitimate business purpose, plaintiffs’ claim of tortious interference with a business relationship was without merit.
Third, we affirm the trial court’s grant of defendant’s motion for summary disposition of plaintiffs’ claim of antitrust violations. The Antitrust Reform Act prohibits a contract, combination, or conspiracy between two or more persons in restraint of, or to monopolize, trade or commerce. MCL 445.772; MSA 28.70(2). However, this act does not apply if a health care corporation engages in the challenged transaction to reduce the cost of health care and the transaction is approved by the commissioner. MCL 445.774(6); MSA 28.70(4)(6). Although the Insurance Commissioner did not approve the plan at the time that this suit was filed, the commissioner did not reject the plan either. Because defendant did create Premier Plus with the intent of reducing the cost of health care and the plan was permitted by the Insurance Commissioner, the trial court did not err in dismissing plaintiffs’ antitrust claim.
Furthermore, we find that the trial court could have dismissed plaintiffs’ antitrust claim under another statutory exclusion. Subsection 4(4) of the Antitrust Reform Act, MCL 445.774(4); MSA 28.70(4)(4), states:
This act shall not apply to a transaction or conduct specifically authorized under the laws of this state or the United States, or specifically authorized under laws, rules, regulations, or orders administered, promulgated, or issued by a regulatory agency, board, or officer acting under statutory authority of this state or the United States.
Because defendant was authorized to enter into prudent purchaser agreements by state law, MCL 550.51 et seq.-, MSA 24.650(51) et seq., Premier Plus did not violate the Antitrust Reform Act.
Fourth, plaintiffs maintain that the trial court erred in granting summary disposition of their breach of contract claim. A trial court may grant summary disposition of a breach of contract claim only if the terms of the contract are not subject to two or more reasonable interpretations. SSC Associates Limited Partnership v General Retirement System of the City of Detroit, 192 Mich App 360, 363; 480 NW2d 275 (1991).
We find that the terms of the contract are subject to two or more reasonable interpretations. Plaintiffs allege that defendant breached its physician participation agreements when Premier Plus enacted a $3 blood-processing fee payable to physicians who use panel laboratories but not payable to those physicians who use nonpanel laboratories. Previously, physicians performing their own blood processing and those that used any laboratory for blood processing were entitled to the $3 fee. Defendant argues that the physician participation agreements state only that health care providers will be reimbursed for covered services. According to defendant, Premier Plus merely changes the types of services that are covered. Plaintiffs maintain that, rather than changing the covered services, Premier Plus modified the reimbursement schedule in the physician participation agreement. The trial court agreed with defendant, stating that Premier Plus changed the covered services and not the reimbursement schedule.
Although we acknowledge that this is a possible interpretation of the contract, we find that the terms of the physician’s contract could be subject to another reasonable interpretation. Defendant’s physician participation agreement states that “for each covered service performed, bcbsm will pay the lesser of billed charges or the published maximum screen as set forth in bcbsm’s Maximum Payment Schedule.” The description of Premier Plus issued by Blue Cross states, under “Types of Services Covered,” that “[t]he range of laboratory services eligible for reimbursement from bcbsm will be the same under this program as they are under the existing laboratory benefit package.” Rather than eliminate payments to non-selected laboratories from coverage, Premier Plus uses financial incentives to encourage physicians to use the selected laboratories. Therefore, the determination that physicians would not receive the $3 blood-processing fee could be construed as a modification of the reimbursement schedule rather than a change in covered services. Because more than one reasonable interpretation of the physician participation contract exists, we find that the trial court erred in granting defendant’s motion for summary disposition of the claim of breach of the physician participation contract.
Fifth, the trial court determined that plaintiffs had a private cause of action under the Prudent Purchaser Act. MCL 550.51 et seq.; MSA 24.650(51) el seq. Unlike Act 350, which states that the Attorney General or the Insurance Commissioner may file suit to enforce the act, and that any person may bring an action in the Ingham Circuit Court to compel the commissioner to enforce the act, the ppa does not expressly authorize any enforcement action. The trial court determined that the absence of any enforcement provision indicated that a private party could sue in equity to enforce the provisions of the ppa. We hold that the trial court erred in determining that plaintiffs could maintain an action directly against the health care corporation to enforce the provisions of the ppa.
Statutes that share a common purpose are in pari materia and must be read together as one law. Jennings v Southwood, 446 Mich 125, 137; 521 NW2d 230 (1994). Act 350 contains the authorization for defendant to enter into prudent purchaser agreements. MCL 550.1502a; MSA 24.660(502a). The PPA also states that an organization that provides or administers health care benefits or coverage under a prudent purchaser agreement shall remain subject to all of the provisions of its enabling act. MCL 550.58; MSA 24.650(58). Because each statute has language incorporating the other statute, we read these statutes in pari materia. Applying the restrictions on enforcement in Act 350 to the PPA, only the Attorney General and the Insurance Commissioner are entitled to enforce the PPA by a direct action against a health care corporation. Therefore, we hold that the trial court erred in determining that plaintiffs had a private right of action directly against the health care corporation under the PPA. The relief plaintiffs sought and obtained from the Wayne Circuit Court - a ruling that the PPA applied and an order enjoining implementation of the plan pending compliance with the PPA - is available through the procedure set forth in MCL 550.1619(3); MSA 24.660(619)(3). Plaintiffs are still free to file an action in the Ingham Circuit Court to compel the commissioner to enforce the act.
IV
In summary, we hold that plaintiffs’ claims are not preempted by the erisa. We affirm the trial court’s grant of summary disposition dismissing plaintiffs’ Act 350 claim, their claim of tortious interference with a business relationship, and their claim of a vio lation of the Michigan Antitrust Reform Act. MCL 445.772; MSA 28.70(2). We reverse the grant of summary disposition of plaintiffs’ breach of contract claim because more than one reasonable interpretation of the physician participation contract could exist. We also reverse the trial court’s grant of mandamus ordering defendant to comply with the ppa because the ppa does not authorize a private right of action directly against a health care corporation. MCL 550.51 et seq.-, MSA 24.650(51) et seq.
Affirmed in part and reversed in part. We remand for proceedings consistent with this opinion. We do not retain jurisdiction.
The plan’s self-insured status has no effect on our analysis. Travelers Ins Co v Pataki, 63 F3d 89, 93 (CA 2, 1995).
The Insurance Commissioner approved the plan on March 19, 1992.
Although there is no explicit claim on this basis in the initial complaint, plaintiffs now allege that defendant breached its laboratory participation agreements to reimburse for covered services when it determined that Premier Plus authorized full reimbursement for panel laboratories while only authorizing fifty percent reimbursement for the use of a nonpanel laboratory. Unlike the physician participation agreements, this contract provides that defendant can change the reimbursement policies as it wishes as long as it provides sixty days’ written notice to the provider laboratories.
While Judge White expressed a contrary view in her earlier opinion in this case, BPS Labs v Blue Cross, supra at 590, she is now convinced that the actions to compel compliance with the ppa should have been brought in the Ingham Circuit Court and should have been pleaded as actions to compel the Insurance Commissioner to enforce the act. | [
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C. C. Schmucker, J.
Following a conditional plea of guilty of first-degree home invasion, MCL 750.110a(2); MSA 28.305a(2), defendant was placed on youthful trainee status and ordered to serve a two-year term of probation. Three weeks later, defendant filed a “motion to terminate probation and for other relief.” The trial court entered an order discharging defendant from youthful trainee status, dismissing the case, and sealing the file. The prosecutor appeals as of right. We affirm in part, reverse in part, and remand the case to the circuit court.
On November 2, 1994, defendant entered a friend’s home by pressing a code that allowed her entry into the garage and subsequent entry into the home. Once inside, defendant went upstairs to a closet, noticed a purse containing money, and took the money. Defendant placed the money in her pocket. When she turned around, the owner of the house was behind her. When confronted, defendant returned the money to the owner.
Defendant pleaded guilty of the offense of first-degree home invasion on December 1, 1994. On January 19, 1995, the trial court assigned defendant to youthful trainee status under the Youthful Trainee Act (yta), MCL 762.11 et seq.\ MSA 28.853(11) et seq., and placed her on two years’ probation. Defendant was also ordered to perform either fifty hours of community service or spend thirty days in jail. On February 16, 1995, defendant filed an emergency motion and supporting affidavit requesting release from youthful trainee status and dismissal of the case because members of the media had obtained information regarding the charges pending against her, the dates she offered a guilty plea, and her youthful trainee status, all of which threatened her ability to participate in skating competitions.
Following a closed hearing relative to the motion, the trial court ruled that compliance with the YTA mandated the closed hearing. In granting defendant’s motion for discharge from probation, the trial court stated:
This is an exceptional case for a couple of reasons. One, purposes of the statute has [sic] been supported already. Somebody has leaked it. And that’s in violation of the statute. So the purpose of the statute was to protect young people so that the public would not be aware of their behavior. And it’s also an exceptional case because while the statute says there shouldn’t be any civil ramifications or loss of rights or privileges, I’m not so sure that the U.S. Figure Skating Association would feel compelled to overlook this case that we have here. And if they were to disqualify Nicole illegal [sic], it would take her longer than probably the three weeks to be able to qualify and get the disqualification removed and harm would have been done.
I’m also mindful of the fact that she wouldn’t have plead [sic] to Y.T.A. had she known these things would have occurred. In view of the fact, I understand the victim’s attitude is they don’t want to see adverse things occur to her, I’m satisfied that because of the position she’s in her skating career and from what you’ve said today and the fact that you were even crying when you were saying it, that you are remorseful. And a criminal proceeding has had a proper impact on you. You should understand that you would never get another chance for Y.T.A., and I think you now know and learned your lesson that people are going to be out there to shoot you down, if they can.
The prosecutor argues that the trial court abused its discretion in closing the hearing regarding defendant’s motion. The trial court opined that closure of the proceedings was mandated by § 14(3) of the YTA, MCL 762.14(3); MSA 28.853(14)(3), see now MCL 762.14(4); MSA 28.853(14)(4), which provided, in pertinent part:
Unless the court enters a judgment of conviction against the individual for the criminal offense under section 12 of this chapter, all proceedings regarding the disposition of the criminal charge and the individual’s assignment as youthful trainee shall be closed to public inspection.
The question whether the phrase “all proceedings” encompasses hearings held regarding the criminal charge is an issue of first impression. On appeal, we review questions of law regarding statutory interpretation de novo. In re Lafayette Towers, 200 Mich App 269, 272-273; 503 NW2d 740 (1993). In interpreting the YTA, our goal is to ascertain and give effect to the Legislature’s intent. Id. Statutory language should also be construed reasonably, keeping in mind the purpose of the act. In re Estes Estate, 207 Mich App 194, 209; 523 NW2d 863 (1994).
The YTA offers a mechanism by which youths charged with committing certain crimes between their seventeenth and twenty-first birthdays may be excused from having a criminal record. People v Dolgorukov, 191 Mich App 38, 39; 477 NW2d 118 (1991). It allows probation of a youth who “pleads guilty to a charge of a criminal offense, other than a felony for which the maximum punishment is life imprisonment, a major controlled substance offense, or a traffic offense, committed on or after the individual’s seventeenth birthday but before his or her twenty-first birthday.” MCL 762.11; MSA 28.853(11). Once compliance is achieved, a youthful trainee will not be deemed convicted of a crime and proceedings regarding the disposition of the criminal charge will be closed to public inspection. The yta is a remedial statute and should be construed liberally for the advancement of the remedy. People v Gow, 203 Mich App 94, 96; 512 NW2d 34 (1993).
The yta does not define the word “proceedings.” When a statute does not define a term, we will construe the term according to its common and approved usage. Jennings v Southwood, 446 Mich 125, 139; 521 NW2d 230 (1994). Resort to dictionary definitions is appropriate to construe the common and approved usage of undefined statutory terms. Id. at 139-140. The terms “proceeding” and “proceedings” have been defined as
a particular action, or course or manner of action ... a series of activities or events ... a record of the business discussed at a meeting of an academic society or other formal group . . . legal action, esp. as carried on in a court of law. [Random House Webster’s College Dictionary (1992).]
Black’s Law Dictionary, Sixth Edition, has defined “proceeding” as follows:
In a general sense, the form and manner of conducting juridical business before a court or judicial officer. Regular and orderly progress in form of law; including all possible steps in an action from its commencement to the execution of the judgment.
Thus, the term “proceeding” apparently encompasses all matters brought before a court in a specific judicial action. When a hearing is conducted after the grant of youthful trainee status, closure of the hearing would be necessary to enforce the confidentiality provision of the act. Thus, it appears that the Legislature envisaged the term “all proceedings” as meaning all matters brought before a court in an action in which youthful trainee status has been granted.
Here, defendant filed a motion to terminate her probation because members of the media had obtained information regarding the pending charges against her in violation of the purpose of the yta. Had the hearing been held in open court, the public would have had access to information regarding the criminal charge, which is the very harm the yta seeks to prevent. Closure of the hearing was consistent with the remedial nature of the yta. Consequently, we conclude that the trial court did not err in closing the hearing on the motion.
The prosecutor also contends that the trial court abused its discretion in discharging defendant from youthful trainee status and dismissing the case before defendant served the probationary term absent proof that defendant was rehabilitated. We agree. There is no provision in the yta that expressly prohibits modification of the probationary term or early dismissal of the charges. However, because defendant was placed on probation, an examination of the law regarding probation is warranted.
Under the Code of Criminal Procedure, a court may fix and determine the period and conditions of probation pursuant to MCL 771.2(2); MSA 28.1132(2), which states in pertinent part:
The court shall by order, to be filed or entered in the cause as the court may direct by general rule or in each case, fix and determine the period and conditions of probation. The order, whether it is filed or entered, shall be considered as part of the record in the cause and shall be at all times alterable and amendable, both in form and in substance, in the court’s discretion[ ]
Given this provision, and the absence of any prohibition in the yta against modification of the terms of probation, we find that the trial court has discretion to amend the term of probation. See, e.g., People v Ford, 95 Mich App 608, 612; 291 NW2d 140 (1980).
The fact that defendant’s YTA status was discovered by the press was not a sufficient reason to discharge the defendant from probation after twenty-eight days. The trial court abused its discretion in terminating probation and YTA status after twenty-eight days.
Between sentencing and discharge, the only event that allegedly occurred was that the media learned of defendant’s status. Although this would perhaps be sufficient for setting aside defendant’s plea, the disclosure to the media could have come from anyone, including defendant, her friends, or her family. The fact that the media has knowledge of defendant’s status is entirely unrelated to defendant’s rehabilitation and is not a sufficient reason to discharge defendant from probation, even if defendant is a celebrity. The files and proceedings would be sealed regardless of whether defendant remained on probation.
Although the trial court was concerned that defendant’s youthful trainee status would affect her ability to compete as a figure skater, any such action by a skating organization would clearly violate the act, which provides:
An assignment of an individual to the status of youthful trainee as provided in this chapter is not a conviction for a crime, and the individual assigned to the status of youthful trainee shall not suffer a civil disability or loss of right or privilege following his or her release from that status because of his or her assignment as a youthful trainee. [MCL 762.14(2); MSA 28.853(14)(2). ]
The terms and length of probation are within a trial court’s discretion. MCL 771.2(2); MSA 28.1132(2). However, defendant’s discharge from youthful trainee status after four weeks was unrelated to her rehabilitation, and discharging defendant was an abuse of discretion.
We affirm the decision of the trial court to close the hearing of defendant’s motion, reverse the decision of the trial court to terminate defendant’s term of probation and to discharge her from youthful trainee status, and remand this matter for a continuation of defendant’s probation.
Corrigan, J., concurred.
The Attorney General has opined, under a former version of the statute that contains substantially similar language, that “all proceedings relative to the disposition of the criminal charge” would include, “but not necessarily [be] limited to, the following items in a criminal prosecution: the arrest and fingerprint records, the complaint, the warrant, police reports and other documents and transcripts generated as the result of an arrest and prosecution of a particular youthful trainee. ” OAG 1977-1978, No 5373, p 656 (October 5, 1978) (emphasis added).
Text of section effective until October 1, 1995.
As amended by 1993 PA 293, effective January 1, 1994. The statute has been further amended since the time defendant was placed on youthful trainee status. 1994 PA 286, effective October 1, 1995. | [
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Per Curiam.
Plaintiff appeals as of right from the trial court’s judgment of no cause of action in favor of defendant, which also authorized defendant to subtract $1,723 from other benefits that might be due and owing to plaintiff, reflecting the overpayment of work-loss benefits that defendant made to plaintiff’s decedent. We affirm.
The unique issue presented in this case is whether the decedent’s social security disability benefits may be deducted both from the disability benefits that he received through his employer’s self-funded disability plan that is controlled by the Employee Retirement Income Security Act (ERISA), 29 USC 1001 et seq., and from the no-fault insurance benefits that he received from defendant, pursuant to MCL 500.3109(1); MSA 24.13109(1). Given that an ERISA plan’s setoff provision must be enforced according to its plain meaning, Auto Club Ins Ass’n v Frederick & Herrud, Inc (After Remand), 443 Mich 358, 387, 389-390; 505 NW2d 820 (1993), and that § 3109(1) of the no-fault act clearly requires the setoff of social security benefits even for noncoordinated no-fault policies, Profit v Citizens Ins Co of America, 444 Mich 281, 288; 506 NW2d 514 (1993), we believe that defendant is also entitled as a matter of law to offset each social security payment that plaintiff’s decedent received. Thus, the trial court did not commit legal error in interpreting and applying § 3109(1) to the facts of this case. See Ireland v Smith, 214 Mich App 235, 243; 542 NW2d 344 (1995).
According to plaintiff, a conflict exists between the ERISA disability plan offered by the employer of plaintiff’s decedent and defendant’s no-fault policy because both the plan administrator and defendant claim that they are entitled to offset or reduce their benefit payments by the amount of the social security benefits paid to plaintiff’s decedent. Plaintiff believes that this arrangement is patently inequitable. Plaintiff relies on Frederick & Herrud, supra, for the proposition that defendant’s policy must “give way” so the ERISA disability plan can be enforced. We believe that plaintiff’s reliance is misplaced. In Frederick & Herrud, supra at 387, 389-390, the Michigan Supreme Court held that if both an erisa plan and a no-fault policy contain coordination of benefits provisions, the erisa plan’s coordination policy must be enforced and the no-fault insurer is liable as the primary insurer despite the fact that § 3109(1) allows no-fault carriers to sell coordinated benefits policies:
Although the Michigan [no-fault] statute purports to regulate insurance and not erisa plans, we conclude that it has a direct effect on the administration of the [erisa] plans in these cases because it would virtually write a primacy of coverage clause into the plans. This is the type of state regulation that would lead to administrative burdens that the historical progression of federal cases recounted earlier forbids. [Id. at 387.]
We do not interpret Frederick & Herrud as plaintiff does to mean that because erisa preempts state laws regarding self-funded employee-benefit plans, it also preempts any state law that deals with any other payment of any other disability or work-loss benefits. Indeed, our Supreme Court expressly rejected this idea. See id. at 381, 385. Rather, Frederick & Herrud, supra, and Profit, supra, make clear the path that we must follow in this case, and we cannot ignore the setoff language of § 3109(1) merely because plaintiff’s decedent also received other disability benefits under an erisa plan that contained similar setoff language.
Plaintiff argues that permitting defendant to offset social security benefits against no-fault work-loss benefits is patently unfair and constitutes an inequitable penalty in light of the controlling ERISA plan, which also required a setoff of social security benefits. Plaintiff further asserts that because the decedent paid a higher premium for a noncoordinated benefits no-fault policy, the decedent was entitled to receive more benefits, not less. Plaintiff cites no statutory or case law authority for this proposition, however, and we find no support for it. Our review of plaintiffs no-fault policy reveals that the policy’s set-off language applies whether the policy is coordinated or noncoordinated. Moreover, nothing in the language of § 3109(1) or the legislative history evidences a legislative intent to suspend the no-fault act’s mandatory setoff provisions under any circumstances.
We recognize that plaintiff’s decedent was receiving more benefits before he applied for social security benefits than after he began receiving them and became subject to the respective setoffs, i.e., he received no-fault work-loss benefits plus employer-provided disability benefits as opposed to no-fault benefits plus employer benefits less two times the amount of each social security payment. See Grau v DAIIE, 148 Mich App 82, 89-90; 383 NW2d 616 (1985). This fact alone does not permit us to ignore the intent of the Legislature as expressed in § 3109(1). Any inequity that exists must be remedied by the Legislature. See DeMeglio v Auto Club Ins Ass’n, 449 Mich 33, 47-48; 534 NW2d 665 (1995); Grau, supra at 89.
Accordingly, upon review de novo of the record, we find that the trial court did not err in determining, as a matter of law, that defendant was entitled to deduct from the work-loss benefits it paid to plaintiffs decedent the amount of social security disability payments that the decedent received before his death. Because plaintiff does not challenge the amount of the overpayment that the trial court authorized the defendant to offset against other benefits due and owing, we do not address that issue.
Affirmed.
Under Article n, § 6(h) of the Supplemental Agreement Covering Life and Disability Benefits Programs between General Motors Corporation, the employer of plaintiff’s decedent, and the United Automobile Workers, “[sjickness and Accident Benefits otherwise payable for any period of disability shall be reduced by the weekly equivalent of any Disability Insurance Benefits or Old-Age Insurance Benefits (Primary Insurance Amount only) to which the employe[e] is entitled for the same period under the Federal Social Security Act or any future legislation providing similar ben efits, except old-age benefits reduced because of the age at which received.”
Section 3109(1), provides: “Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.” Personal protection insurance benefits include benefits for medical expenses and work loss. MCL 500.3107; MSA 24.13107.
Congress’ first move in its effort to prevent regulation that would frustrate the purposes behind the erisa was the enactment of the preemption clause. . .. Nonetheless, Congress removed from the reach of state regulation pension or health and welfare benefits plans established under the erisa pursuant to the deemer clause, although it did, not specifically for-hid any state regulation of insurance, banking, or securities law. [Id. at 385 (emphasis added).]
When confronted by his employer’s erisa plan regarding the setoff and overpayment, plaintiff’s decedent repaid the plan over $4,000.
hi Grau, supra at 90, this Court recognized that permitting the setoff of social security benefits against both the plaintiff’s no-fault benefits and her employee disability benefits did not amount to a “double setoff”; rather, it merely precluded double recovery from no-fault insurance and social security disability benefits as well as double recovery from the bargained-for employee disability plan and social security disability benefits. | [
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McDonald, P. J.
Plaintiffs appeal as of right from a November 3, 1994, order requiring plaintiffs to pay defendant $175 a year as plaintiffs’ share of the main tenance cost for a road used jointly by the parties. We affirm.
Following a trial to determine the parties’ respective rights to certain property, the trial court found plaintiffs had obtained a prescriptive easement for the use of a road running over defendant’s property. The road is plaintiffs’ only means of ingress and egress to their property. Neither party contests the court’s findings with regard to the easement. However, upon defendant’s request, and following a hearing regarding the cost of maintenance of the road, the trial court ordered plaintiffs to pay a share of the road’s maintenance in proportion to their use. Plaintiffs contest this ruling.
An easement is a right to use the land of another for a specific purpose. Mumaugh v Diamond Lake Cable, 183 Mich App 597; 456 NW2d 425 (1990). The trial court found plaintiffs had acquired a prescriptive easement to use the road across defendant’s property to get to and from the land owned by plaintiffs. Plaintiffs have the right to use the road on defendant’s land, therefore, plaintiffs are the dominant owners. 3 Powell, Real Property, § 34.01(1), p 34 — 3. Defendant owns the land upon which the easement was granted; therefore, defendant is the servient owner. Id.
The question to be decided is whether the servient owner has a right to require the dominant owner to pay a proportionate share of the maintenance of the road used by both parties. The only Michigan case cited by plaintiffs is inapplicable to the facts in this case. In Mumrow v Riddle, 67 Mich App 693; 242 NW2d 489 (1976), the dominant owner wanted to make improvements on an easement. In deciding Mumrow, this Court established a balancing test between the necessity to improve the easement for the dominant owner’s use, and the burden placed upon the servient owner by the improvement, to determine if a dominant owner should be allowed to make improvements to an easement. Id. at 700. In the instant case, it is the servient owner who made the improvement on the easement, and the issue is who should pay for the maintenance, not whether the improvement should be allowed.
Although this issue seems to be one of first impression in this state, other jurisdictions considering the issue have generally found the rule to be consistent with 25 Am Jur 2d, Easements and licences, § 85, p 492 (1966):
(W)here a private road is used in common by the owner of land across which such road runs and by a person who has an easement of way over it, the burden of reasonable repairs must be distributed between them in proportion as nearly as possible to their relative use of the road.
See Marvin E Nieberg Real Estate Co v Taylor-Morley-Simon, Inc, 867 SW2d 618 (Mo App, 1993).
“(W)here the easement owner is not the sole user of a private right-of-way, but uses it in common with the servient tenants, then the costs of repair and maintenance should be distributed among all users in proportions that closely approximate the usage of the parties.” [Id. at 623, quoting Lindhorst v Wright, 616 P2d 450, 454-455 (Okla App, 1980).]
Additionally the court in Hvidston v Eastridge, 591 NE2d 566, 574 (Ind App, 1992), stated:
The owner of an easement must generally bear the entire cost of maintaining it, absent an express agreement to the contrary. Larabee v Booth (1984), Ind App, 463 NE2d 487, 492. “When the dominant tenant and the servient tenant both use an easement, however, the court may apportion the cost of repairs between them accordingly.” Id.
We agree with this position and adopt the rule that the maintenance costs of an easement used jointly by both the dominant and servient owners are to be paid in proportion to each party’s use. A review of the record before us reveals no clear error in the court’s determination of plaintiffs’ proportionate share. The court did not err in ordering plaintiffs to pay their proportionate share of the road’s maintenance costs.
Affirmed. No costs to either party. | [
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O’Connell, P.J.
In this no-fault insurance action, defendant insurer appeals as of right the order of the circuit court granting summary disposition on the issue of liability in favor of plaintiffs. Defendant also appeals the final judgment, and plaintiffs cross appeal this order as well, with both parties challenging the amount of damages awarded. We affirm the order granting summary disposition in favor of plaintiffs and the awards of damages and attorney fees, but vacate the final judgment and remand for a determination of statutory and penalty interest.
In winter, 1994, plaintiff Joyce Shanafelt (hereinafter plaintiff) and her husband* dined at a Muskegon restaurant. After finishing their meal and leaving the restaurant, plaintiff’s husband told plaintiff to wait on the sidewalk while he retrieved their truck from the parking lot. Plaintiff’s husband walked to the truck, drove it to the curb, put the vehicle in park, and then left the truck to assist his wife. Plaintiff, however, did not wait for her husband’s assistance. She placed her hand on the vehicle door, opened the door, and took a small step toward the truck. Unfortunately, the ground was icy, and plaintiff slipped and fell, severely injuring her leg.
Plaintiff had first-party insurance policies with two insurance companies. First, plaintiff had a coordinated health insurance policy with an insurer who is not a party to this action. Second, plaintiff had an uncoordinated no-fault automobile insurance policy with defendant.
Plaintiff promptly notified defendant of the incident, seeking no-fault benefits. Michigan’s no-fault automobile insurance act provides that “an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle . . . .” MCL 500.3105(1); MSA 24.13105(1). While injuries stemming from the use of a parked vehicle are generally excluded from coverage, MCL 500.3106(1); MSA 24.13106(1), coverage is nonetheless provided where “the injury was sustained by a person while occupying, entering into, alighting from the [parked] vehicle.” MCL 500.3106(l)(c); MSA 24.13106(1)(c). Plaintiff alleged that the injury was covered under the no-fault policy issued by defendant because the injury had occurred while she was “entering into” a parked vehicle within the meaning of MCL 500.3106(l)(c); MSA 24.13106(l)(c).
Defendant denied plaintiff’s claim. Defendant notified plaintiff that the mere presence of a motor vehicle did not constitute its “use” for purposes of the no-fault act. Because plaintiff’s injuries resulted neither from a motor vehicle accident nor from the vehicle itself, defendant denied coverage.
The health insurer paid plaintiff’s claim for medical expenses pursuant to the coordinated insurance contract in force at the time. Because the health insurer is not a party to this action, the record does not con tain the details of the expenses that were covered. The evidence presented below suggested that this insurer paid all of plaintiffs medical expenses.
Plaintiff brought suit against defendant insurer, alleging breach of contract and seeking declaratory relief. Following cross motions for summary disposition, the circuit court granted summary disposition pursuant to MCR 2.116(C)(10) in favor of plaintiff, concluding that there was no genuine issue of material fact that plaintiff was in the process of entering the vehicle when she was injured. The court also stated plaintiff was entitled to recover from defendant despite the fact that plaintiffs expenses had already been paid by the health insurer, which is to say, the court condoned plaintiffs double recovery in the present case. The court also ordered defendant to pay plaintiffs attorney fees pursuant to a provision of the no-fault act allowing the award of attorney fees where an insurer unreasonably has refused to pay a claim. However, the court declined to award statutory or penalty interest to plaintiff.
Defendant now appeals, arguing that plaintiff was not “entering into” a vehicle at the time she was injured; that, accordingly, defendant’s denial of the claim was not unreasonable and that the court’s award of attorney fees was unwarranted; that, regardless of this Court’s resolution of the “entering into” question, Supreme Court precedent precludes double recoveries in situations such as the present one; and, if the preceding arguments fail, that the amount of damages awarded was incorrect. Plaintiff cross appeals, contending that she was entitled to both statutory and penalty interest.
i
Defendant first contends that the circuit court erred in granting summary disposition in favor of plaintiff. The parties agree regarding all germane factual matters; the only question is whether the undisputed facts establish that plaintiff was “entering into” her vehicle at the time the incident underlying this litigation occurred. We find that the evidence supports the circuit court’s conclusion that plaintiff was “entering into” her vehicle, and, accordingly, we affirm the court’s grant of summary disposition with respect to the issue of liability.
The no-fault act provides that “an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.” MCL 500.3105(1); MSA 24.13105(1). “Injuries that arise out of the use of a parked motor vehicle generally are not covered under the no-fault act. MCL 500.3106(1); MSA 24.13106(1).” Yost v League General Ins Co, 213 Mich App 183, 184; 539 NW2d 568 (1995). However, several exceptions exist to this “parked vehicle exclusion.” Id. Significantly, one may recover for injuries despite the fact that the vehicle involved was parked where the injury is sustained while “entering into” the vehicle. MCL 500.3106(l)(c); MSA 24.13106(l)(c). As set forth in Gooden v Transamerica Ins Corp of America, 166 Mich App 793, 797; 420 NW2d 877 (1988), “in order to recover for an injury in cases such as this, a claimant must show that an exception to the parked vehicle exclusion applies and the injury arose out of the use of a motor vehicle as a motor vehicle.”
In the present case, the parties do not dispute that the vehicle was parked within the relatively broad definition afforded that term under the no-fault act. See, e.g., MacDonald v Michigan Mutual Ins Co, 155 Mich App 650, 655; 400 NW2d 305 (1986). Thus, because recovery under the no-fault act for injuries involving parked vehicles is, in general, precluded, MCL 500.3106(1); MSA 24.13106(1), plaintiff had the burden of demonstrating that the unrefuted evidence established both that one of the exceptions to the parked vehicle exclusion applied and that the injury arose out of the use of a motor vehicle as a motor vehicle. Gooden, supra. Our review of the record indicates that plaintiff successfully carried her burden.
First, the evidence establishes that plaintiffs injuries fall within the “entering into” a vehicle exception to the parked vehicle exclusion of the no-fault act. One of the exceptions to the parked vehicle exclusion allows recovery where an injury “was sustained by a person while . . . entering into . . . the vehicle.” MCL 500.3106(l)(c); MSA 24.13106(l)(c). In Hunt v Citizens Ins Co, 183 Mich App 660, 663; 455 NW2d 384 (1990), the plaintiff had his car keys in one hand and his other hand on the car door when he was struck by a vehicle. This Court concluded that the plaintiff was entering into the car when the accident occurred. Here, plaintiff placed her hand on the door handle, opened the door, took a small step, and then fell. We discern no material distinction between the present case and Hunt-, if anything, the present plaintiff had progressed further in “entering into” the vehicle than had the plaintiff in Hunt, a fact that strengthens plaintiff’s position. Further, our review of the decisions of other jurisdictions support our conclusion that the present plaintiff was “entering into” her vehicle. See anno: What constitutes “entering” or “alighting from” vehicle within meaning of insurance policy, or statute mandating insurance coverage, 59 ALR4th 150, 166-167, § 6a. Therefore, we agree with the circuit court that no genuine dispute exists concerning whether plaintiff was “entering into” her vehicle at the time she sustained injury.
Second, we conclude that, as a matter of law, plaintiff’s injury arose out of the use of a motor vehicle as a motor vehicle, a requirement sometimes referred to as the causative or causal nexus requirement. See, e.g., Ansara v State Farm Ins Co, 207 Mich App 320, 322; 523 NW2d 899 (1994). As stated by our Supreme Court in Thornton v Allstate Ins Co, 425 Mich 643, 659; 391 NW2d 320 (1986): “The involvement of the car in the injury should be ‘directly related to its character as a motor vehicle’ [to satisfy the causal nexus requirement]. Miller v Auto-Owners Ins Co, [411 Mich 633, 640; 309 NW2d 544 (1981)].” As explained more thoroughly in Miller, pp 639-640 (emphasis altered):
Injuries involving parked vehicles do not normally involve the vehicle as a motor vehicle. Injuries involving parked vehicles typically involve the vehicle in much the same way as any other stationary object (such as a tree, sign post or boulder) would be involved. There is nothing about a parked vehicle as a motor vehicle that would bear on the accident.
The stated exceptions to the parking exclusion clarify and reinforce this construction of the exclusion. Each exception pertains to injuries related to the character of the parked vehicle as a motor vehicle — characteristics which make it unlike other stationary roadside objects that can be involved in vehicle accidents.
Thus, because the involvement of the car must be “directly related to its character as a motor vehicle,” Thornton, supra, quoting Miller, supra, and because the “entering into” exception to the parked vehicle exclusion “pertains to . . . the character of the parked vehicle as a motor vehicle,” Miller, supra, as a matter of law, the “entering into” exception satisfies the causative or “arising out of” requirement. Therefore, plaintiff has demonstrated that her injuries arose out of the use of a motor vehicle as a motor vehicle.
In summary, the undisputed facts demonstrate that plaintiff was “entering into” the parked vehicle at the time she sustained injury. Statements of our Supreme Court make clear that where one is injured “entering into” a parked vehicle, those injuries are deemed to be directly related to the vehicle’s character as a motor vehicle. Therefore, there being no genuine issue of material fact, we conclude that the circuit court acted properly in granting plaintiff’s motion for summary disposition pursuant to MCR 2.116(C)(10).
n
Defendant next argues that the circuit court erred in awarding plaintiff attorney fees. We disagree, and affirm the award of attorney fees.
A circuit court’s decision to award attorney fees is, in general, discretionaiy. Wojas v Rosati, 182 Mich App 477, 480; 452 NW2d 864 (1990). A court abuses that discretion “ ‘only when the result so violates fact and logic that it constitutes perversity of will, defiance of judgment or the exercise of passion or bias.’ ” Model Laundries & Dry Cleaners v Amoco Corp, 216 Mich App 1, 4; 548 NW2d 242 (1996), quoting Wojas, supra, p 480. In short, an abuse of discretion may properly be found only where the court acts in a most injudicious fashion. Model Laundries, supra, p 5, n 3.
In a no-fault action, a prevailing plaintiff is entitled to attorney fees where the defendant insurer unreasonably refused to pay a claim. The general rule is that a party may not recover attorney fees as an element of costs or damages unless a statute, court rule, or judicial exception specifically allows such a remedy. Popma v Auto Club Ins Ass’n, 446 Mich 460, 474; 521 NW2d 831 (1994). The no-fault act contains such a provision allowing the award of attorney fees:
An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment. [MCL 500.3148(1); MSA 24.13148(1).]
As explained in McCarthy v Auto Club Ins Ass’n, 208 Mich App 97, 105; 527 NW2d 524 (1994), when considering whether attorney fees are warranted under the no-fault act, the inquiry is not whether coverage is ultimately determined to exist, but whether the insurer’s initial refusal to pay was reasonable. Further, this Court has also explained that a delay is not unreasonable if it is based on a legitimate question of statutory construction, constitutional law, or factual uncertainty. Liddell v DAIIE, 102 Mich App 636, 650; 302 NW2d 260 (1981).
Here, we find no abuse of discretion. Defendant has raised no question of constitutional law, and the parties agree to the pertinent facts, meaning defendant must demonstrate a “legitimate question of statutory construction.” Id. As explained in section I, given Michigan precedent, one could not seriously contend that the undisputed facts did not constitute “entering into” a vehicle as that term is used in MCL 500.3106(l)(c); MSA 24.13106(l)(c), which is the only justification defendant gave plaintiff for denying the claim. Additionally, our Supreme Court has made clear that any injuries one sustains when “entering into” a vehicle as a matter of law “arise from” the use of that vehicle as a motor vehicle. Thornton, supra, p 659; Miller, supra, pp 640-641. Because of the relative clarity of the governing precedent, we agree with the circuit court that defendant’s denial of plaintiff’s claim was unreasonable. While it is conceivable that one could disagree with the court’s finding that defendant’s denial was unreasonable, “one could not seriously contend that the court’s actions were so violative of fact and logic as to constitute perversity of will or defiance of judgment.” Model Laundries, supra, p 5. Therefore, finding no abuse of discretion, we affirm the award of attorney fees.
m
Defendant also presents a two-tiered argument pertaining to the fact that plaintiff’s medical expenses were paid by her health insurer. First, defendant contends that plaintiff never incurred expenses because her medical bills were paid directly by her health insurer and, accordingly, that she may not seek reimbursement for expenses that she did not incur. Sec ond, defendant argues that even should this Court determine that plaintiff incurred expenses, she may not be compensated by both her health insurer and defendant because, defendant asserts, such a double recovery is prohibited by our Supreme Court’s decision in Smith v Physicians Health Plan, Inc, 444 Mich 743; 514 NW2d 150 (1994). We find defendant’s first argument to be meritless and defendant’s second argument to be interesting, but ultimately unconvincing.
First, plaintiff “incurred” expenses and these expenses are, therefore, compensable under the no-fault automobile insurance policy issued by defendant. As relevant to the present appeal, MCL 500.3107(1); MSA 24.13107(1) provides as follows:
[PJersonal protection insurance benefits are payable for the following:
(a) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.
The Courts have determined that an expense is not an “allowable expense” within the meaning of MCL 500.3107(l)(a); MSA 24.13107(l)(a), unless (1) the charge for the expense is reasonable, (2) the expense is reasonably necessary for the insured’s care, and (3) the expense is incurred. Nasser v Auto Club Ins Ass’n, 435 Mich 33, 50; 457 NW2d 637 (1990). Defendant does not challenge the first two elements set forth in Nasser, but contends only that because plaintiff’s health insurer rather than plaintiff herself paid her medical expenses, plaintiff did not incur expenses.
Defendant’s position is untenable. The word “incurred” is not defined in the no-fault act, so we accord the word its plain and ordinary meaning within the context of the statute. In re PSC’s Determination Regarding Coin-Operated Telephones, 204 Mich App 350, 353; 514 NW2d 775 (1994). A dictionary may be used when determining the meaning of a word. Popma v Auto Club Ins Ass’n, 446 Mich 460, 470; 521 NW2d 831 (1994). The primary definition of the word “incur” is “to become liable for.” Random House Webster’s College Dictionary (1995). Obviously, plaintiff became liable for her medical expenses when she accepted medical treatment. The fact that plaintiff had contracted with a health insurance company to compensate her for her medical expenses, or to pay directly the health care provider on her behalf, does not alter the fact that she was obligated to pay those expenses. Therefore, one may not reasonably maintain that plaintiff did not incur expenses. Thus, defendant has presented no argument suggesting that plaintiff’s expenses were not allowable expenses as that term is used in MCL 500.3107(l)(a); MSA 24.13107(l)(a).
The second tier of defendant’s argument is thornier. Defendant argues that pursuant to Smith, supra, plaintiff may not be twice compensated where she was covered by an uncoordinated no-fault automobile insurance policy and a coordinated health insurance policy. Defendant avers that Smith stands for the proposition that where an insured is covered by one coordinated insurance policy and one uncoordinated policy, the insured is entitled to only a single recovery, as opposed to a double recovery. Because in the present case, plaintiff’s medical expenses were paid pursuant to her coordinated health insurance policy, plaintiff may not, defendant submits, recover her expenses again from defendant pursuant to her uncoordinated no-fault automobile insurance policy, which would be a double recovery, a result, it is argued, precluded by Smith.
While we agree that the Supreme Court’s decision in Smith, supra, p 757, reflects a recognition of the Legislature’s marked inclination to “discourage duplicate coverage,” we find the reasoning of Smith to be inapplicable under the facts of the present case. Therefore, because defendant has advanced only Smith as a justification for denying plaintiff a double recovery, a decision that we find inapplicable, we hold that defendant has presented no defensible rationale for denying plaintiff coverage under her uncoordinated no-fault automobile insurance policy.
The legally significant facts of Smith are very similar to those occurring in the present case. In Smith, the plaintiff was injured in an automobile accident. The plaintiff enjoyed insurance coverage identical to that existing in the instant case-an uncoordinated no-fault automobile insurance policy and a coordinated health insurance policy. The coordination of benefits provision of the health insurance contract provided that should the insured be covered under two or more insurance plans, “the coverage under those Plans will be coordinated so that up to, but no more than, 100% of any Eligible Expenses will be paid for, or provided by, all such Plans combined.” Id., pp 747-748, n 3.
Following the accident, the plaintiff received medical treatment, and the plaintiffs no-fault automobile insurer reimbursed the plaintiffs health care provider pursuant to the terms of its uncoordinated policy. The plaintiffs health care insurer, however, who had issued the coordinated policy to plaintiff, denied the claim. The plaintiff brought suit against the health care insurer, seeking the value of the medical expenses incurred.
The Supreme Court ruled that the plaintiff was not entitled to recover under the coordinated health insurance policy where she had already recovered under the uncoordinated no-fault automobile insurance policy. At issue was whether the coordination of benefits clause in the health insurance contract could be enforced. Because to enforce the clause would deny the plaintiff recovery against the health insurer, the plaintiff sought a “nullification,” id., p 754, of the clause. The plaintiff contended that because an increased premium had been paid to the no-fault insurer for an uncoordinated policy, enforcement of the coordination of benefits clause in the policy issued by the health insurer would deprive the plaintiff of the benefits contracted for.
The Court reasoned that because no-fault automobile insurance was statutorily created, it would have to be determined whether the Legislature, in creating the coordination provision of the no-fault act, intended “to prevent enforcement of the coordination clause in the health care policy.” Id., p 758. The Court concluded that nothing in the no-fault act explicitly prevented enforcement of the coordination provision and that “strong policy reasons” discouraging duplicate coverage supported a conclusion that the no-fault act could not reasonably be construed to undermine enforcement of the coordination provision. Id., pp 757-758. Thus, because the Legislature had evinced no intent to prevent enforcement of coordination provisions in the context of no-fault automobile insurance, the case was “a matter of simple contract interpretation.” Id., p 758. Because the plaintiffs coordinated health insurance contract provided that the health insurer would be liable to ensure that the eligible expenses were paid in full, which they had been, the plaintiff could not bring suit against the health insurer where that insurer had abided by the terms of its insurance contract with the plaintiff.
Thus, despite a lengthy digression emphasizing the deleterious effects of allowing double recovery, the Smith decision ultimately and expressly rested upon contract interpretation. Because the plaintiff had agreed to the coordination provision in the coordinated health insurance contract, which, to reiterate, provided that no more than one hundred percent of the plaintiffs eligible expenses would be paid by the plans, she had no right to seek recovery from her health insurer where one hundred percent of her expenses had already been paid by another insurer. In other words, Smith does not stand for the broad proposition that where an insured is covered by one coordinated policy and by one uncoordinated policy, the insured is not entitled to double recovery. Rather, Smith stands for the narrower proposition that the no-fault act provides no justification for ignoring a coordination of benefits provision contained in a coordinated health insurance contract. Smith is a defense of one’s right to contract freely, not a decision detracting from that right.
Turning, then, to the present case, one salient fact immediately becomes apparent: the instant plaintiff has brought suit against the insurer providing uncoordinated coverage, in contrast to Smith where the plaintiff brought suit against the insurer providing coordinated coverage. As made clear above, the Smith decision turned on specific policy language, namely, language contained in a coordination of benefits provision stating that one hundred percent of the insured’s expenses would be compensated by all the insurers. Here, defendant, issuer of an uncoordinated policy, has no corresponding policy language on which to rely. The insurance policy issued by defendant, being uncoordinated, simply contains no language limiting plaintiff’s right of recovery in the context of multiple insurance policies.
Thus, defendant’s reliance on Smith is misplaced. Where plaintiff has an uncoordinated no-fault insurance contract with defendant that provides no limitation on plaintiff’s right to recover from defendant in the context of duplicate insurance coverage, Smith does not afford defendant the right to refuse payment to plaintiff where plaintiff’s injuries fall within the coverage of her policy with defendant. Therefore, the circuit court did not err in granting summary disposition in favor of plaintiff.
That being said, two additional points bear mention. First, because defendant’s “double recovery” argument is predicated entirely on Smith, our holding is, necessarily, limited to an exegesis of that opinion. We have concluded that Smith does not prevent plaintiff from recovering from defendant under the facts of the instant case. If any legitimate reason exists for denying plaintiff recovery from defendant under the terms of the uncoordinated no-fault automobile insurance contract in force between the two, defendant has not directed the Court’s attention to it.
Second, because the insurer issuing the coordinated health insurance policy to plaintiff is not a party to this action, we do not address what is to become of plaintiff’s recovery from defendant, specifically, whether the health insurer has any right to the proceeds of plaintiff’s suit against defendant.
IV
Finally, defendant brings some type of argument contesting the damages awarded to plaintiff following her successful motion for summary disposition. We are not certain whether defendant alleges an error of law on the part of the circuit court or an error of fact. Because defendant refers this Court to no authority, we deem defendant to have abandoned any legal component to its argument. See Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Should defendant be bringing an allegation of factual error, our review of the record indicates that the circuit court’s calculation of damages is supported by the record evidence. Therefore, defendant has presented no persuasive justification for altering the amount of the damages award.
v
We briefly address plaintiff’s arguments on cross appeal, both of which we determine to be meritorious. First, plaintiff is correct that MCL 600.6013; MSA 27A.6013 mandates that statutory interest be awarded “from the date of filing the complaint... to the date of satisfaction of the judgment.” Old Orchard by the Bay Associates v Hamilton Mutual Ins Co, 434 Mich 244, 258; 454 NW2d 73 (1990). Defendant contends that, because plaintiff’s recovery was not delayed as a result of the health insurer having paid her medical expenses, to award statutory interest would be a windfall to plaintiff. Defendant confuses the two contracts in issue. Plaintiff entered into an insurance contract with defendant, and defendant did not abide by the terms of this contract. Thus, plaintiff was wrongfully denied her recovery under the no-fault contract, the type of situation MCL 600.6013; MSA 27A.6013 was meant to address. Whether plaintiff recovered under a second, distinct contract with another legal entity is immaterial. Therefore, the circuit court erred in refusing to award plaintiff statutory interest.
Second, plaintiff is also correct that MCL 500.3142; MSA 24.13142 provides that a prevailing plaintiff in a no-fault action is entitled to penalty interest where personal protection insurance benefits are not paid within thirty days of reasonable proof of the fact and amount of loss. Johnston v DAIIE, 124 Mich App 212, 216; 333 NW2d 517 (1983). Defendant here presents the same argument that it presented against the award of statutory interest, and it again fails. We conclude that the circuit court erred in refusing to award plaintiff penalty interest. Additionally, we would note that a plaintiff may recover both statutory and penalty interest. Wood v DAIIE, 413 Mich 573, 589; 321 NW2d 653 (1982).
Affirmed, but the final judgment is vacated, and this matter is remanded for a determination of the statutory and penalty interest due plaintiff.
Plaintiff Joyce Shanafelt’s husband, Orville Shanafelt, is also a plaintiff in this action. However, because Orville’s claims are derivative of Joyce’s claims, to facilitate discussion we refer herein only to Joyce as plaintiff.
Plaintiff Orville Shanafelt has improperly supplemented the record on appeal with an affidavit averring that the Shanafelts paid approximately $1400 in medical expenses themselves. We have not considered this affidavit. Isagholian v Transamerica Ins Corp, 208 Mich App 9, 18; 527 NW2d 13 (1994).
The plaintiff was covered by more than one uncoordinated no-fault automobile insurance policy. Smith, supra, p 747. Any differences between the policies were, apparently, not material for purposes of the Court’s analysis. Id. For ease of discussion, we address the multiple uncoordinated no-fault automobile insurance policies in Smith as if they were one policy. | [
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Bandstra, J.
Robert D. and Betty A. Reenders were granted leave to appeal* a decision of the circuit court that affirmed a decision of the Grand Haven Township Zoning Board of Appeals granting a variance to D. Brewster Parker for the purpose of improving and expanding a building. We remand to the zoning board.
The Reenders own property adjacent to property owned by Parker. Parker’s lot and home were established before the now-applicable zoning ordinance was enacted. Under the terms of that ordinance, Parker’s lot and building are undersized and the building is placed too close to the Reenders’ property to satisfy setback requirements. After a building permit was denied, Parker requested a variance to construct an addition to the building, a summer home, which would allow it to be used year round and make it handicap accessible. The addition would further encroach on the setback from the Reenders’ property. On Friday, February 18, 1994, a notice appeared in the Grand Haven Tribune and a notice was also posted on the Parker property regarding a zoning board meeting to consider the variance the following Tuesday, February 22. On Saturday, February 19, the zoning board mailed notices of the monthly meeting to adjacent property owners; because mail was not delivered on Presidents’ Day, Monday, February 21, the Reenders and presumably other addressees did not receive this notice until the day of the hearing. However, the Reenders admit that on Saturday, February 19, they spoke with a member of the zoning board regarding the variance and the meeting. Although the Reenders attended the meeting with their attorney to argue against the variance, it was granted to Parker, and the Reenders appeal that decision.
The Reenders first contend that the notice regarding the zoning board meeting at which the variance was granted was inadequate. We disagree. With regard to statutorily required notice, the circuit court correctly determined that § 23 of the Township Rural Zoning Act, MCL 125.293; MSA 5.2963(23), did not guarantee the Reenders any right to notice. The Reenders were not “parties” to the zoning board proceedings because they had not been “aggrieved” by the initial ruling of the building inspector denying a construction permit to Parker, the decision under review at the zoning board hearing. See MCL 125.290; MSA 5.2963(20).
With respect to rule-required notice, the parties acknowledge that the Grand Haven Township Zoning Ordinance confers authority on the zoning board to adopt rules governing its procedures and that the zoning board has established a rule requiring notice published in a newspaper and notice by posting on property that might be affected by action at a zoning board hearing, at least two days before the hearing. Although the parties agree that the zoning board complied with the rule in this case, the Reenders contend that the rule-required notice procedure failed to satisfy constitutional due process guarantees. However, because the Reenders concede that they actually received notice three days before the hearing, we do not conclude that the Reenders were denied due process in this case. See Lanphear v Antwerp Twp, 50 Mich App 641, 650; 214 NW2d 66 (1973) (“While publication might under some circumstances not be sufficient for due process purposes, since here publication was coupled with notice to plaintiffs’ attorney, this Court deems it constitutionally adequate.”).
The Reenders next contend that granting the variance was an “abuse of discretion” because it contradicts the general policy under state law and the township’s ordinance against the extension of nonconforming uses. However, the applicable statute explicitly allows the “extension ... of nonconforming uses upon reasonable terms set forth in the zoning ordinance.” MCL 125.286(2); MSA 5.2963(16)(2). While it is true that “[t]he policy of the law is against the extension or enlargement of nonconforming uses,” this means that “zoning regulations should be strictly construed with respect to expansion.” Norton Shores v Carr, 81 Mich App 715, 720; 265 NW2d 802 (1978). In other words, as long as the zoning board followed ordinance regulations regarding the extension of the nonconforming use, strictly construed, the variance was appropriately granted to Parker.
The variance was granted under § 2304 of the ordinance, which provides:
Except as otherwise provided, to authorize a variance from the strict applications of the provisions of this Ordinance, the Township Board of Zoning Appeals shall apply the following standards and make an affirmative finding as to each of the matters set forth in each of such standards:
1. That there are exceptional or extraordinary circumstances or conditions applying to the property that do not apply generally to other properties in the same zoning classification.
2. That such variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district and in the vicinity, provided that possible increased financial return shall not of itself, be deemed sufficient to warrant a variance.
3. That authorization of such variance will not be of substantial detriment to adjacent property, and will not materially impair the intent and purpose of this Ordinance or the public health, safety and general welfare of the community.
4. That the condition or situation of the specific piece of property or the intended use of said property for which the variance is sought, is not of so general or recurrent a nature as to make reasonably practical the formulation of a general regulation for such condition or situation, a part of this Ordinance.
The board determined that each of the four criteria was satisfied in its decision to grant the variance to Parker.
The decision of a zoning board should be affirmed by the courts unless it is (1) contrary to law, (2) based on improper procedure, (3) not supported by competent, material, and substantial evidence on the record, or (4) an abuse of discretion. Const 1963, art 6, § 28; MCL 125.293a; MSA 5.2963(23a); Johnson v Robinson Twp, 420 Mich 115, 124; 359 NW2d 526 (1984). Regarding “improper procedure,” the Reenders’ arguments alleging notice deficiencies have already been discussed. The Reenders further contend that the zoning board decision was not supported by competent, material, and substantial evidence on the record.
Meaningful judicial review of whether there was competent, material, and substantial evidence on the record to support a zoning board decision requires “a knowledge of the facts justifying the board’s . . . conclusion.” Tireman-Joy-Chicago Improvement Ass’n v Chernick, 361 Mich 211, 219; 105 NW2d 57 (1960). Accordingly, “the board of zoning appeals must state the grounds upon which it justifies the granting of a variance.” Id. It is insufficient for the zoning board to merely repeat the conclusionary language of the zoning' ordinance without specifying the factual findings underlying the determination that the requirements of the ordinance were satisfied in the case at hand. Badanek v Schroskey, 21 Mich App 582, 584-585; 175 NW2d 784 (1970).
Applying these principles, we conclude that the circuit court erred in determining that there was sufficient factual evidence in the record to support the zoning board’s decision. The ordinance requires “an affirmative finding as to each of the matters set forth in each of [the] standards.” Although an affirmative vote was taken with regard to each standard, we do not find that there is sufficient record evidence or indication of the reasoning employed to support the board’s determination with respect to standards 2, 3, and 4.
Regarding the second standard, the board noted only: “Currently not usable as it stands, undersized for R-l zoning district.” The board’s determination that the existing building was “[c]urrently not usable” is nonsensical in the face of uncontradicted agreement by all parties that the building is currently used as a summer residence, as it has been for decades. Further, we find it difficult to determine why the board noted that something was “undersized” (either the lot or the existing structure) under standard 2. Perhaps the board was referring to the small size of the building and determining that the ability to have and enjoy a larger structure constituted a “substantial property right similar to that possessed by other properties” as required by the standard. Assuming that was the board’s strained reasoning, we find it difficult to conclude that it was based on “competent” evidence. There was no testimony from surrounding landowners, other than Robert Reenders, and the record reveals no evidence regarding whether Parker’s “undersized” building was unique or, instead, “similar to . . . other properties” in the zoning district, in which case standard 2 would not be satisfied.
With respect to the third standard of § 2304, the board noted only that neighboring homes’ views of the lake would not be obstructed. The record indicates, however, that Robert Reenders also argued that the addition to Parker’s building would further encroach into the required setback from his property, create a hardship on the septic system, and result in a parking problem. The record suggests that the board failed to consider these issues and thus failed to “make an affirmative finding . . . [t]hat authorization of such variance will not be of substantial detriment to adjacent property” with respect to these matters.
The board made no statement whatsoever to justify its decision that standard 4 of § 2304 was satisfied. Nothing in the record suggests whether the Parker situation was “of so general or recurrent a nature” that it required a more general response.
We are mindful of the deference that must be afforded to the zoning board’s decision. Gordon v Bloomfield Hills, 207 Mich App 231, 232; 523 NW2d 806 (1994). However, we cannot affirm a decision where the record is as devoid of factual or logical support as is the case here.
Having found the record insufficient to support the zoning board’s decision, we are urged by the Reenders to reverse that decision. However, we do not conclude that the zoning board necessarily rendered the wrong decision or a decision that was unauthorized by law. We conclude only that the record developed by the zoning board is inadequate to allow us to determine whether the board’s decision was supported by competent, material, and substantial evidence, as required by MCL 125.293a(l)(c); MSA 5.2963(23a)(l)(c). Accordingly, consistent with MCL 125.293a(2); MSA 5.2963(23a)(2), we remand this matter to the zoning board for further proceedings and a fuller explanation of the facts and reasoning by which the standards of § 2304 are or are not satisfied.
We remand and retain jurisdiction. The zoning board should complete further proceedings consistent with this opinion within ninety days.
We do not consider Parker’s argument regarding the Reenders’ standing to appeal the decision of the zoning board because it was not included in the order granting leave to appeal and it was first raised in Parker’s brief on appeal.
To support their due process argument, the Reenders point to precedents from other states, Slagle v Meriden Zoning Bd of Appeals, 144 Conn 690; 137 A2d 542 (1957), and Rousseau v Bldg Inspector of Framingham, 349 Mass 31; 206 NE2d 399 (1965). However, both of these precedents determined whether notice had been provided as required by an applicable statute or ordinance, not as required by the constitution’s due process guarantee.
The minutes of the zoning board meeting do not indicate why this zoning ordinance provision was applied to this case instead of other provisions that also seem applicable. For example, there is no indication why § 1904 of the ordinance, having to do with “yard regulations ... on lots of peculiar shape [or] topography” was not more specifically applicable than was § 2304’s more general provision regarding variances. Perhaps the board considered § 2304 to be more “stringent” than § 1904 and thus the governing provision under § 1800 of the ordinance. Assuming the zoning board had authority to review the request for the variance under either § 2304 or § 1904, it would be helpful to a court in its statutory review of a variance decision if there was some indication in the record why the board considered the variance request under the ordinance provision that it did.
We also note that the circuit court based its analysis, in part, on whether there were “practical difficulties” that would justify granting a variance. The zoning board might have been able to vary or modify the ordinance in the face of “practical difficulties or unnecessary hardship” and thus grant the requested variance, MCL 125.293; MSA 5.2963(23), and, in this “nonuse” context, practical difficulties would have been sufficient to take that approach. Heritage Hill Ass’n, Inc v Grand Rapids, 48 Mich App 765, 769; 211 NW2d 77 (1973). However, “practical difficulties” are not the standard by which variances are granted under § 2304, the ordinance provision the zoning board relied upon in this case.
We determined earlier that the board complied with all public notice requirements. However, the board’s decision to grant a variance under § 2304 requires it to compare the subject property with other properties in the area with respect to each of the four standards. To assure that decisions under § 2304 are based on the required competent, material, and substantial evidence, the board would probably be well-advised to establish procedures to assure fuller public participation in hearings where variances under § 2304 are considered.
This assumes the board will continue to consider the variance request under § 2304 rather than some other ordinance or statutory provision by which it might be allowed. See, e.g., MCL 125.293; MSA 5.2963(23); Grand Haven Township Zoning Ordinance, § 1904. | [
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Sharpe, J.
This is an appeal from a claim filed in the probate court to recover damages incident to the death of Earl McLain who was fatally injured by an automobile driven by Sherman Miller.
The material facts are not in dispute. On November 1, 1938, Sherman Miller was delivering mail on Kinsey street, just outside of the city limits of Muskegon. The street runs north and south and is unpaved, but has a cinder driveway down the center of the street. The McLain residence is located on the west side of the street; adjoining the McLain lot on the south is the Johnson property. On the east side of the street and directly opposite the McLain residence is the Jones residence. In front of each residence and along the border of the street is located a mail box which, under requirements of the post office department, is so located that the mail carrier can drive up to the box and make delivery without getting out of his car. About 1 o’clock on the day in question, Sherman Miller, a substitute mail carrier, was delivering mail on this street. He deposited some mail in the Jones’ mail box. At this time two small children were hanging onto the right rear bumper of Miller’s car. Miller then drove diagonally-across the street to the Johnson’s mail box, a distance of about 42 feet. The children continued to hang onto the bumper. Miller put mail into the Johnson’s mail box by lowering the window in his car. About this time, Mrs. Johnson opened her front door and called to the children to get away from the car. After depositing the Johnson mail, Miller slowly backed his car diagonally toward the northeast. The children continued to hang onto the bumper and ran backwards until the car had gone about one car’s length, then they ran towards the McLain house. As the car was backing up, Mrs. Johnson went from her house to get her mail, a distance of about 36 feet, and as she reached the mail box she heard a noise or groan. She saw the McLain child for the first time; he was between the two front wheels of the Miller car. The boy was under the car, near the left front wheel, and was crawling out. At this time, the car was not in motion and was about one and a half car-lengths from the Johnson mail box. It was standing with the right front wheel about in the center of the road with most of the car on the east side of the road. The boy was taken to the hospital and died within a short time.
Subsequent to the time of the accident, Sherman Miller died and an administrator of his estate was appointed by the probate court of Muskegon county. On December 14, 1939, Grant McLain, as administrator of the estate of Earl McLain, filed a claim for damages arising out of the death of Earl McLain against the estate of Sherman Miller. This claim was based upon the negligence of Miller in the operation of his car at the time and place in question. Prom an allowance in favor of the Earl McLain estate in the probate court the cause was appealed to the circuit court. At the close of plaintiff’s ease, defendant made a motion for a directed verdict upon the grounds that plaintiff had failed to establish defendant’s negligence and that there was no proof of damages. The trial court granted defendant’s motion and directed a verdict of no cause of action. A motion for a new trial was filed by plaintiff and on hearing of the motion, the same was denied by the court.
In directing the verdict the trial court stated as follows:
“In this case the duty is upon the plaintiff, not only to prove that there was an accident and the boy injured, the duty, the burden is upon the plaintiff to prove that the defendant was guilty of negligence. Not only that, the duty is upon the plaintiff to prove that the negligence of the defendant was the proximate cause of the boy’s injuries. * * *
“There,is no evidence placing this boy that was injured in a position where the driver should see him. ’ ’
Plaintiff appeals and contends that the driver of the car was negligent in backing his automobile without sounding the horn and without making reasonable observations to discover if there were any children at the rear or near his automobile at the time he was about to back up.
In Jenkins v. Bentley, 277 Mich. 81, 84, we said:
“We concur in the language of the court in Taulborg v. Andresen, 119 Neb. 273, 280 (228 N. W. 528, 67 A. L. R. 642):
“ ‘The law does not forbid the backing of an automobile upon the streets or highways, and to do so does not constitute negligence, but the driver of an automobile must exercise ordinary care in backing his machine, so as not to injure others by the operation, and his duty requires that he adopt sufficient means to ascertain whether others are in the vicinity who may be injured. * * * And he must not only look backward when he commences his operation, but he must continue to look backward in order that he may not collide with or injure those lawfully using such street or highway (citing authorities).’ ”
See, also, Guscinski v. Kenzie, 282 Mich. 204; annotations in 67 A. L. R. 647 and 118 A. L. R. 242; 3-4 Huddy, Cyclopedia Automobile Law (9th Ed.), p. 218, § 133; 2 Blashfield, Cyclopedia of Automobile Law & Practice (Perm. Ed.), p. 272, § 1101 et seq.
The sole question in this case may be stated as follows: Was there any competent evidence of the negligence of Sherman Miller that should have been submitted to a jury?
In the case at bar, there was no testimony as to what, if any, observations Miller made to the rear of his car by looking out of the window or otherwise, nor is there any testimony that Miller knew that children were hanging on the right rear bumper of the car. There is no evidence as to where the injured child was just prior to the accident. The record does show that there were neither cars nor children, except the three children heretofore mentioned, in the street.
The general rule regarding signaling is stated in 2 Blashfield, Cyclopedia of Automobile Law & Practice (Perm. Ed.), p. 277, § 1103, as follows:
“Inasmuch as the duty of care imposed on persons backing automobiles into, or upon public streets includes a duty of signaling independently of or additionally or alternatively to the duty of maintaining a lookout, the general rule is that failure to give warning prior to backing an automobile is at least evidence of negligence.”
See Kinsler v. Simpson, 257 Mich. 7, 9.
In Wallis v. Cox, 286 Mich. 76, we said:
“Whether it is actionable negligence to back a car without a signal to other users of the street depends upon whether there are other users to be warned.”
The issue is thus narrowed down to an inquiry of whether the facts and circumstances in this case put Miller upon notice that children were or might be in the street. The place was a highway in a somewhat residential location. There were no cars in the street and no evidence that Miller knew of any children in the vicinity of his car. There is, however, the testimony,of Mrs. Johnson who warned two of the children to get away from the car. In onr opinion, the warning of Mrs. Johnson to the two children was not sufficient notice to Miller that children were in the vicinity of the car. Mrs. Johnson was in a position where she could see the two children at the rear of the car; Miller was not in such a position. There is no evidence that Miller or the children heard Mrs. Johnson’s warning and it is established that even Mrs. Johnson did not see the injured child until after the car had ceased to back.
The rules to be applied in this class of cases are well stated in Poundstone v. Niles Creamery, 293 Mich. 455, 459, where we said:
“In reviewing the case, we consider the testimony in the light most favorable to plaintiff, the party against whom it is claimed the judgment should not have been entered. Pomeroy v. Dykema, 256 Mich, 100; Warwick v. Blackney, 272 Mich. 231. Proof of an accident and resulting injury is not alone sufficient to establish defendant’s responsibility, but the fact that an accident happened may be considered along with proof of the other circumstances to determine whether negligence existed. Manley v. Potts, 286 Mich. 671, and cases there cited. See, also, Elsey v. J. L. Hudson Co., 189 Mich. 135 (L. R. A. 1916B, 1284). Negligence may be proved by circumstantial evidence. Wilkins v. Bradford, 247 Mich. 157. There must be substantial evidence which forms a reasonable basis for the inference of negligence. Frye v. City of Detroit, 256 Mich. 466. There must be more than a mere possibility that unreasonable conduct of the defendant caused the injury. We cannot permit the jury to guess, al though legitimate inferences may he drawn from established facts. Heppenstall Steel Co. v. Railway Co., 242 Mich. 464.”
In the case at bar, there is proof of an accident, but there is a lack of proof that Miller saw any of the three children. Nor were there circumstances that should have warned him of children playing near the car.
In Michigan Aero Club v. Shelley, 283 Mich. 401, we said:
“Presumptions are frequently misapplied. They are merely prima facie precepts. * * * They are inferences from the existence or nonexistence of facts. * * * They disappear if, and when, evidence is introduced from which facts may be found, * * * and cannot be weighed against evidence. * * * Negligence is not presumed but must be proved. * * * The mere happening of an accident raises no presumption of negligence.* * *
“If plaintiff, due to lack of proof, does not make out his case, the court should so hold. * * * A mere claim cannot stand in the place of evidence and operate as proof. * * * Things not made to appear must be taken as not existing. * * * Plaintiff’s case must be established by the evidence. The court may not guess in default of evidence.”
The failure of plaintiff to establish negligence upon the part of Miller precludes recovery; and the judgment of the trial court is affirmed, with costs to defendant.
Chandler, C. J., and Boyles, North, Starr, Butzel, and Bushnell JJ., concurred. Wiest, J., did not sit. | [
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] |
Starr, J.
On June 9, 1939, Moon Brothers, Incorporated, a Michigan corporation, filed hill of complaint seeking permanently to restrain defendants, Walter K. Moon and John C. Moon, from using the names “Moon Brothers,” “Moon Brothers Furniture,” “Moon Brothers Upholstering,” and “Moon Bedding Company.” Plaintiff did not ask money damages hut only injunctive relief against defendants ’ use of such names. However, from the record and statement of questions involved, it appears there is no dispute as to the name “Moon Bedding Company.” We understand there is no blood relation between the persons named “Moon” connected with plaintiff company and the defendants.
Plaintiff alleged, in part, as follows:
“Tour plaintiff shows that almost daily since the fall of 1938 your plaintiff has been put to considerably trouble, annoyance, expense, uncertainty, and confusion on account of the similarity of the several names used by the defendants with that of plaintiff, which had arisen in a variety of different ways, to-wit:
“ (a) Defendants had men soliciting for furniture and upholstering business, who either purposely or through mistake or inadvertence, stated they were from Moon Brothers.
“(b) One George Finzer, an employee of defendants, applied for a loan with the Morris Industrial Bank stating he worked for Moon Brothers, and said bank called plaintiff, causing much confusion and trouble.
“(c) Plaintiff has received countless letters for defendants and especially correspondence from Jorgensen & Alexander, attorneys, in Detroit Bank Building.
‘ ‘ (d) Plaintiff has received calls from department of internal revenue regarding defendants’ income tax.
“(e) In March, 1939, a Mrs. Clift called stating she did not want to do business with them after a canvasser of defendants had called on her representing he was from Moon Brothers.
“(f) Plaintiffs have received calls about a shooting escapade which a partner of Moon Brothers was involved in, which turned out to be defendants’ affair.
“(g) Plaintiffs have received many other calls, too numerous to mention, regarding various affairs of business of defendants, and have been advised that defendants sent out letters with the heading of ‘Moon Brothers.’ ”
Defendants filed answer generally denying plaintiff’s charges of unfair business competition and plaintiff’s right to the relief sought.
In March, 1919, Walter Moon, Carl Moon, Lloyd Moon, and Mrs. Grace Leonard, brothers and sister, organized a corporation under the name of Moon Music Company. When such company began handling electrical appliances in 1920, the name was changed to Moon Brothers, Incorporated, the plaintiff in this case. Plaintiff’s business, apparently quite successful, was conducted principally within the area of the city of Detroit. Plaintiff’s president, Walter Moon, testified:
“Our principal business is electrical appliances, gas ranges, radios, refrigerators, stoves, washing machines and ironing machines, and similar articles. At one time we handled pianos and organs, but we do not handle them at this time. We have also handled sewing machines and victrolas. * * *
“We don’t do any upholstering business, nor do we manufacture any furniture. We have never handled any heavy pieces of furniture, only end tables, cigar stands, and things of that character; I would say occasional pieces probably would be — small items of occasional pieces. * * * We primarily used them for sale promotion on electrical appliances; we do not stock up in any furniture. We have never carried heavy pieces of furniture; we do carry bedding, bed mattresses, springs, at our Grand River store; we put them in in January, 1940, since this suit was started, but we had never had any prior to 1939. We have never had any living room furniture, dining room furniture, or rugs, except small throw rugs. These were used for the same purpose we used the end tables, cigar stands, and so forth. We have never bought used furniture for sale, but we have traded in and sold a considerable quantity of it. * * *
“Q. And do you deal in only new merchandise?
“A. No, we handle secondhand, particularly those items that we trade in. We rebuild and resell. Our volume, a very considerable amount of it, is in the second hand line, because we have trade-in merchandise like an automobile dealer. * * *
“We do not have any canvassers out at the present time and haven’t had since 1927, we have never had many, our business has been based on advertising. ’ ’
At the time of trial plaintiff had three stores in Detroit, located at 6321 Gratiot, 13540 Gratiot, and at 4161 Oakman boulevard at Grand River. It had carried on rather extensive newspaper, radio, and circular advertising, generally using the name “Moon Brothers,” without including the word, “Incorporated,” or “Inc.,” as a part of its name.
Defendants, Walter K. Moon and John C. Moon, brothers, had conducted a business under the assumed name of “West Side Sales,” but in May, 1939, changed such name by filing with the county clerk two certificates of assumed names, as follows: “Moon Brothers Furniture, 4519 Grand River avenue,” and “Moon Brothers Upholstering, 4525 Grand River avenue.” On cross-examination John C. Moon testified as follows in regard to changing their name:
“Q. Mr. Moon, why did you change your name from the West Side Sales Company to Moon Brothers Furniture?
“A. Well, there is two or three reasons. One was confusion with another furniture store called the West Side Furniture on Michigan avenue, and the main reason was West Side Sales didn’t stand for anything. It could be furniture, threshing machines or rubber goods. It didn’t signify or stand for anything.
“Q. And didn’t you realize there would be confusion in regard to Moon Brothers ?
“A. I didn’t think there would, because it is a different type of business. They are in the appliance business. We are in the furniture business.
“Q. You are in the appliance business too, aren’t you, Mr. Moon?
“A. No, sir, I would not call it so. Appliance business is definitely electrical appliances.
“Q. If you sell appliances, aren’t you in the appliance business?
“A. I would not call it that. We are in the furniture business.
“Q. If I come in to your store and wanted to buy a washing machine, do you mean you would refuse to sell it to me?
“A. Not if I had a used washer you could use. I would sell it to you.
“Q. Isn’t that true of electrical appliances?
“A. Anything we have, any used stuff, yes.
# # *
“Q. You testified that the West Side Sales was a growing business all the time?
“A. Yes, sir.
“Q. And still you went ahead and changed your name?
“A. Irrespective of what the name was, we got a certain amount of business anyhow from steady clients, steady customers. * # *
“Q. And you were in business as the West Side Sales, you and your brother from 1932 to 1938, is that right?
“A. Till the spring of 1939. It was called West Side Sales until we changed it in May, 1939.
“We changed the name to brothers, because we are brothers. West Side Sales was used when my brother and Mr. O’Connell started the auction rooms. The name did not mean much. It was ourselves who made the increase in business.
“Q. Yes, but weren’t yourselves operating under that name?
“A. Yes, but they knew our name was Moon. They didn’t think of West Side Sales. They knew our name was Moon.
“Q. You built it up under West Side Sales so that you had an increase in business every year, is that not right?
“A. I don’t think that was due to the name. It was due to our own efforts and our own name.”
Defendants did a general furniture business in new and used furniture, manufactured upholstered furniture, did furniture repairing and upholstering, handled repossessed furniture for finance companies and shopworn and trade-in furniture from other stores. Defendant John C. Moon testified they handled secondhand electrical appliances, but did not sell new electrical appliances; that, when customers requested new appliances, they sent them across the street to Raimi Brothers’ store and received “some” commissions from such sales. However, there is evidence that defendants carried new gas stoves. Defendant John C. Moon further testified that they did little advertising and obtained their business through salesmen and door-to-door solicitation.
Witnesses for plaintiff testified, in substance, regarding defendants’ use of tbe words “Moon Brothers,” as a part of its business names: That defendants’ employees represented themselves as employees of “Moon Brothers” in soliciting upholstering business; that plaintiff received many telephone calls that were intended for defendants; that plaintiff received letters addressed to Moon Brothers which were intended for defendants; that plaintiff received payments which were intended for defendants; that plaintiff received one freight shipment intended for defendants. One witness testified he read defendants’ newspaper advertisement for carpet, signed “Moon Bros. Furn., 4519 Grand Biver,” and that he went to plaintiff’s store, but, when testifying, admitted carelessness in reading the advertisement. Another witness testified that a man called at his home, said that he was from Moon Brothers, and obtained an order for upholstering, the witness believing he was dealing with plaintiff. Another witness testified that a man telephoned her about an estimate for upholstering furniture, stating, “This is Moon Brothers,” but did not say Moon Brothers Furniture nor Moon Brothers Upholstering. Another witness testified she recommended plaintiff for upholstering furniture, because a solicitor called on her regarding upholstering furniture and said that he was from Moon Brothers.
The record indicates that, in at least one instance, a person called plaintiff’s store, inquired regarding upholstering furniture, and that plaintiff’s representative informed her that they would call for the furniture that afternoon, although such representative admitted upon cross-examination that they never intended to, and did not, call for such furniture ; that in some instances telephone calls received by plaintiff, but intended for defendants, were not referred to defendants; that in at least two instances plaintiff received letters intended for defendants which it did not forward, but retained as evidence in this case. One of defendants testified that he received calls intended for plaintiff and referred such calls by giving the caller plaintiff’s telephone number.
It appears that signs in front of defendants’ stores had been changed so as to indicate Moon Bros. Furniture and Moon Bros. Upholstering. The evidence indicates that there was no similarity in the appearance of plaintiff’s stores and defendants’ stores. In that connection plaintiff’s collection and credit manager testified:
“Q. What was the general appearance of the store [defendants’]?
“A. I would say it was, oh, probably a poor type of secondhand furniture store. * * *
“Q. And you say it was a poor secondhand store ?
“A. Had that appearance. It had that appearance on the inside, yes.
“Q. And Moon Brothers, Incorporated, hasn’t the appearance of a poor secondhand store, has it?
“A. No.
“Q. There is no comparison, is there?
“A. Not as to the set-up, either on the outside or the inside.
“Q. And there is no comparison of the merchandise handled by the two concerns, is there?
“A. No. * * *
“Q. And all the electrical appliances that you saw in Moon Brothers Upholstering were secondhand, weren’t they?
“A. Apparently they were. They were secondhand.
“Q. And Moon Brothers, Incorporated, sell primarily new merchandise?
“A. Yes, sir. * * *
“Q. And there is no comparison of the two companies in the merchandise they handle, is _ there?
_ “A. I would say not, with the exception of the secondhand appliances and stoves.”
Plaintiff’s principal business was in new electrical and gas appliances. Defendants’ principal business was upholstering and secondhand furniture. The only direct competition of consequence appears to have been between new electrical and gas appliances handled by plaintiff and secondhand electrical and gas appliances handled by defendant.
At the conclusion of the trial the court stated, in part, in his opinion:
“It appears in this case that the plaintiff has not, in building up his business, as far as advertising is concerned, as far as the value, if it is value, and it unquestionably has a great value, has not used its corporate name. And the value that the plaintiff has built up is a value of the name ‘Moon Brothers,’ not,‘Moon Brothers, Incorporated.’ * * *
“So far as the claim and allegation in the bill of complaint being unfair trade, or unfair competition, the proofs do not establish to this court, that there are many elements of unfairness on the part of the defendant. I don’t think that the plaintiff corporation has acquired the exclusive right to use, in the conduct of its business, as against anyone else, the name ‘Moon Brothers.’ There is no showing in this case that the defendants’ actual using as a part of its trade name, ‘Moon Brothers,’ was for the purpose of deceiving the public as to who were the actual parties in interest in defendants’ business. That it has led to some confusion so far as the public is concerned, there is no doubt, but that such confusion, so far as knowing which concern the patron or proposed purchaser desired to get in contact with, there was no misrepresentation in the manner in which the defendant used the name which it certi fied to the county clerk for use under the statute, mainly [namely ?], ‘ Moon Brothers Furniture. ’ There could be no confusion occasioned by that separate name printed in the telephone book. It is printed very clearly and a separate telephone number given. Just above it, as it appears from Exhibit 14, the plaintiff’s name, not, as I recall it, its corporate name, Moon Brothers, Incorporated. If there was confusion arising from that, it would occur to me that was as much due to the fact that in that particular matter the plaintiff did not use its proper name, as that the defendant did not use its proper name.
“As I said, there is no doubt but what there has been some confusion due to the use of those two names, ‘Moon Brothers, Incorporated,’ and, ‘Moon Brothers Furniture Company.’ There is, I think, very little doubt that to a small extent plaintiff corporation did some little business similar to what a large part of the defendants’ business is, but I think that is rather trifling, the extent to which there was overlapping in the kind of business done by the two concerns. I think that the testimony does not establish that there has been any substantial damage or injury to the plaintiff in the matter of competition, getting business, which anyone intended for the plaintiff. * *' *
“I don’t think that the proofs and pleadings and the actual circumstances in which the respective parties find themselves at the present time would warrant all the relief that the plaintiff prays for. I don’t think the defendant should be enjoined permanently from using the name ‘Moon Brothers,’ if used as a part of its trade name. As I recall, there is no testimony that the defendants had used Moon Brothers alone, but they have used, ‘Moon Brothers Furniture,’ and if they use that name together— ‘Moon Brothers Furniture’—as they did file their certificates for authority to do, I think there will be very little confusion and I think the plaintiff will not sustain any damage.
“The exhibits, some of them, show the name of the defendants on the defendants’ store, one or more of them in a form which I think is not justifiable, and it is not in the form of their certificates for transacting business. I think the defendant should change those advertisements or signs to indicate the name of their business, ‘Moon Brothers Furniture,’ in one line, and in the same size type, so that no one looking at it will get the impression that the concern doing business there is Moon Brothers, Incorporated, or Moon Brothers, because, as plaintiff contends very reasonably,- that combination, ‘ Moon Brothers,’ has been of large value, is of large value, and cost the plaintiff a lot of money. I think the extent of the relief to be granted in this case is in substance that the defendant be ordered, wherever any advertising or signs, or other publications of its trade name are used, that they use the three words contained therein in one line, and all the same size type, and that the defendant do not use the term, ‘Moon Brothers,’ separately. Counsel may prepare and submit a proposed decree to that effect.”
The decree entered in pursuance of such opinion, May 17, 1940, provided, in part, as follows:
“It is hereby ordered, adjudged and decreed that the defendants herein, wherever in any advertising, or signs or other publications of their trade name, they use the three words contained therein, Moon Bros. Upholstering, or Moon Bros. Furniture, in one line, and of the same size type.
“It is further ordered, adjudged and decreed that the said defendants and their agents be restrained and enjoined from using the term ‘Moon’ Bros.’ separately.”
Plaintiff concedes defendants’ right to use their family name, “Mopn,” as a part of their business names. Defendants had the right to nse the words, “furniture” and “upholstering,” as a part of their business names and also the right to compete for business with plaintiff. The only question is as to defendants’ right to use the word “Brothers” or the abbreviation “Bros.” in connection with the name “Moon.”
As there is no statutory prohibition against defendants ’ doing business under the names they have assumed, the question before us must be determined under the rules of unfair business competition. Peninsular Stove Co. v. Augst, 288 Mich. 465. As said in Good Housekeeping Shop v. Smitter, 254 Mich. 592, 596: “Each case is determined upon its own facts and relief is based upon the principles of common business integrity.” In Peninsular Stove Co. v. Augst, supra, p. 470, this court held:
“The rule as to unfair competition as recognized by our court is well stated in Schwannecke v. Genesee Coal & Ice Co., 262 Mich. 624, where we said:
“ ‘ “Unfair competition ordinarily consists in the simulation by one person, for the purpose of deceiving the public, of the name, symbols, or devices employed by a business rival, or the substitution of the goods or wares of one person for those of another, thus falsely inducing the purchase of his wares and thereby obtaining for himself the benefits properly belonging to his competitor. The rule is generally recognized that no one shall by imitation or unfair device induce the public to believe that the goods he offers for sale are the goods of another, and thereby appropriate to himself the value of the reputation which the other has acquired for his own product or merchandise. ” 26 R. C. L. p. 875. ’ ’ ’
See, also, Schwannecke v. Genesee Coal & Ice Co., supra; Clipper Belt Lacer Co. v. Detroit Belt Lacer Co., 223 Mich. 399; Young & Chaffee Furniture Co. v. Chaffee Brothers Furniture Co., 204 Mich. 293; Williams v. Farrand, 88 Mich. 473 (14 L. R. A. 161).
The rules of law applicable to the situation presented in the present case were expressed by Mr. Justice Fellows in Young & Chaffee Furniture Co. v. Chaffee Brothers Furniture Co., supra, pp. 298, 302-304, as follows:
“But generally speaking one has the right to use his own name; he may not use it in such a way as to lead the public to the belief that they are dealing with another, or that his wares are the wares of another; he may not by any artifice so use his name as to deceive the public into the belief that his establishment is the establishment of another, thereby bringing to himself profit not properly appertaining to himself and his business, and thus inflicting damage on his competitor. It was said by Justice Devens, speaking for the court in Russia Cement Co. v. LePage, 147 Mass. 206 (17 N. E. 304, 9 Am. St. Rep. 685):
“ ‘ A person cannot make a trade-mark of his own name, and thus debar another having the same name from using it in his business, if he does so honestly, and without any intention to appropriate wrongfully the good will of a business already established by others of the name. Every one has the absolute right to use his own name honestly in his own business for the purpose of advertising it, even though he may thereby incidentally interfere with and injure the business of another having the same name. In such case the inconvenience or loss to which those having a common right to it are subjected is damnum absque injuria. But although he may thus use his name, he cannot resort to any artifice or do any act calculated to mislead the public as to the identity of the business, firm or establishment, or of _ the article produced by them, and thus produce injury to the other beyond that which results from the similarity of name.’ * * *
“We are not impressed from an examination of all the testimony, including the exhibits, that outside of some petty annoyances, such as telephone calls and an occasional small payment of money to plaintiff, which belonged to defendant, that there has been any considerable amount of confusion, or that plaintiff has suffered annoyance consequential in any amount when the amount of their business is considered. Plaintiff’s managers seem to have prepared for this lawsuit by filing such evidence of confusion as they were able to collect over some period. Their exhibits show that in several instances letters asking extension of time from persons owing defendant company came to plaintiff; around a dozen orders for goods specially advertised by defendant were received by plaintiff. In only one instance do these exhibits show dealing with defendant company under the mistaken belief that the party was dealing with plaintiff. * * *
“We are satisfied that the confusion shown is inconsequential in amount, and that it is not due to any artifice on the part of the defendants or any of them. Plaintiff’s proofs have not established a cause for equitable relief. It is not necessary for us to consider the question raised by plaintiff that while one may use his own name in a business he may not confer that name upon a corporation, as we are satisfied that defendants have not so used their family name in the name of this corporation as to lead the person of ordinary intelligence to believe he was dealing with plaintiff company, nor that defendants have exceeded the boundaries of fair competition.”
A comparison of plaintiff’s name, “Moon Brothers, Incorporated,” with defendants’ assumed names, “Moon Brothers Furniture” and “Moon Brothers Upholstering,” persuades us that a person of ordinary intelligence would not assume that they were one and the same company. There might be some confusion by the careless or indifferent reader, but, as said in Young & Chaffee Furniture Co. v. Chaffee Brothers Furniture Co., supra, p. 297:
“A court of equity should not issue its stringent writ of injunction upon such bare possibilities.”
In Central Mutual Auto Insurance Co. v. Central Mutual Insurance Company of Chicago, 275 Mich. 554, 560, this court said:
“There may be some confusion resulting from the similarity of the names of plaintiff and defendant, but the confusion of which the court takes cognizance must be something more than that resulting from carelessness or ignorance on the part of the uninformed. The strong arm of a court may not, in equity and good conscience, be invoked on account of anything over which defendant -has no control. ’ ’
The record does not disclose sufficient evidence of unfair business competition to justify our enjoining defendants from using the words, “Moon Brothers” or “Moon Bros.,” as a part of their assumed business names, nor sufficient evidence to justify our enjoining defendants from dealing in electrical appliances.
The decree of the trial court enjoins defendants from using the words, “Moon Bros.,” separately and provides, in substance, that defendant shall use the three words, “Moon Bros. Furniture,” or “Moon Bros. Upholstering,” in one line, and of the same size type.
We- are satisfied that the testimony presented warranted the finding and decree of the trial court.
The decree is accordingly affirmed, with costs to' defendants.
Chandler, C. J., and Boyles, North, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred.
See 2 Comp. Laws 1929, § 9825 et seq., as amended by Acts Nos. 272, 274, Pub. Acts 1931 (Comp. Laws Supp. 1935, § 9825 et seq., Stat. Ann. § 19.821 et seq.).—Reporter. | [
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Butzel, J.
Plaintiff brought suit against defendant to recover for injuries sustained through the negligence of the latter’s son-in-law while driving the automobile of defendant with his implied consent. The accident occurred on December 8, 1939, at approximately 6:10 p.m. just outside the city limits of the city of Kalamazoo on US-12A, also known as East Michigan avenue. The highway curves and does not run in a straight direction but it does run approximately east and west in the immediate vicinity of the place where the accident occurred. Defendant’s driver was proceeding in a westerly direction. The paved portion of the road was divided into four lanes of a width of 10 feet each. The southerly two were used for easterly traffic and the northerly two for that going west. We shall refer to the most northerly lane as the outer lane and the adjoining one abutting the center line as the inner lane. There is no claim that defendant did not remain on the northerly half of the highway, but it is claimed that, while going at the rate of from 50 to 55 miles an hour, he steered his car from the inner to the outer lane where plaintiff was walking, while crossing the road. Plaintiff, 68 years of age, at the time of the accident was a night watchman at the Kalamazoo Paper Company, where he had been employed for 32 years and whose plant was on the south side of the road. He had been in the habit of crossing the highway very frequently both in daytime and at night. He knew the traffic conditions. On the evening of the accident, he started to cross the highway in order to go to a restaurant located on the north side. The weather was clear and the pavement dry. Plaintiff claims that upon entering the pavement from the south side of the road, he looked in both directions and saw no approaching traffic; that when he reached the center of the road, he again looked and saw nothing; that from that time on he kept looking to the right but saw no approaching car. Notwithstanding this, however, he was struck by the right side of defendant’s car while it was speeding in a westerly direction and while turning in from the inner lane to the outer lane. The only damage to the car was to the door, handle. Plaintiff’s injuries were so serious that they necessitated two skull operations and long hospitalization.
It was shown that defendant’s car had a dirty windshield obscuring proper vision and that the car was driven at an unlawful rate of speed under the circumstances. Defendant disclaims liability, particularly on the ground that plaintiff was guilty of contributory negligence. No question is raised as to the size of the $6,000 verdict.
Defendant calls attention to numerous cases involving accidents occurring either in the day or nighttime, and in which we have held plaintiff ordinarily may not recover if he steps into the path of an oncoming car coming in a straight direction. Under ordinary conditions, it is the rule that the pedestrian must look and keep on looking, see what it is plain to see, and thus avoid being struck by a car coming in a straight line towards him. Haley v. Grosse Ile Rapid Transit Co., 290 Mich. 373; Sloan v. Ambrose, 300 Mich. 188. No general rule can be stated, however, that will govern all factual situations. It is true that defendant produced a witness to show that a person standing in the center of the highway at a point nearest the place where the ac cident occurred was able to see an object three feet above the pavement, the same height as the lights of a car, from a distance of 480 feet, and of 470 feet from the point where plaintiff was struck. If these were the only facts in the case, the judge undoubtedly would have directed a verdict for defendant. However, plaintiff introduced testimony to show that the road is not a straight one, and plaintiff’s vision was obscured because the highway to his right was up a 5-foot grade for 300 feet together with a curve to the north where the highway again sloped down on a curve of 5 feet for 300 feet, so that the light of an approaching car at night reflected upwards and to the rear of plaintiff, whose vision might also have been obscured by a battery of lights from a paper mill a short distance to the east. Plaintiff did state that he could differentiate between automobile lights and those of the paper mill. However, it was shown that plaintiff’s mental alertness and his memory were affected by the accident. It was further shown that the testimony that 470 feet was the clear distance that one could see to the east was based upon looking cross-lots, about in line with the mailbox north of the road, rather than down a straight road, and upon observations made in daylight, rather than after dark, when the accident occurred. Westbrook, a witness for plaintiff, testified that he was driving in the same direction as defendant’s driver, that he was also driving west on the outer lane of the road and proceeding at the rate of 40 miles an hour, that when he was within 300 feet from the point where the accident occurred, defendant’s driver passed him on the inner lane and then steered back into the outer lane where plaintiff had reached a point about 7% feet from the northerly shoulder of the road, that defendant’s driver quickly veered his car to the left after he saw him but too late for he struck plaintiff with the side of the car. As plaintiff was walking toward the north, the car struck him in the back. Defendant stated that plaintiff when struck was in the middle of the outer lane which would be only 5 feet from the northerly edge.
The testimony on behalf of defendant indicated that the crest of the 5-foot grade of pavement was from 300 to 350 feet east of the point of impact and from such distance on the pavement curved to the north.
The further question arises whether, if plaintiff had looked and seen what it is claimed he should have seen, would he not have been justified in continuing across the road under the circumstances? Did his alleged negligence contribute to the accident? The Westbrook car was 300 feet away at the time defendant’s car passed. It must have taken some time and distance for defendant’s car to pass the Westbrook car. The query arises whether under the conditions a pedestrian is guilty of contributory negligence when he does not walk into the straight pathway of a car, but the car, instead of going in a straight direction, slants off and goes into the pathway of the pedestrian who has almost crossed the road. Assuming that plaintiff should have seen or did see the Westbrook car when it was 300 feet away, and had also seen defendant’s car passing to the left and south of the Westbrook car, we do not believe that reasonable minds would all agree that plaintiff was negligent in believing that he had ample time in which to reach the northern edge of the road. Although defendant’s driver would ordinarily have the right to pass another car going in the same direction by going to its left and then returning to the lane nearest the right curb, would not a pedestrian, under the circumstances of this case, have been justified in believing that the driver of defendant’s car would observe such pedestrian, wbo bad almost reached the right curb, and wait until after passing such pedestrian before returning to the right lane? Not all reasonable minds would agree that plaintiff’s failure to see was a contributing cause of the accident. Close questions are presented upon which reasonable minds may differ. Therefore, it was properly submitted to the jury.
Judgment affirmed, with costs to plaintiff.
Chandler, C. J., and Boyles, North, Starr, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit. | [
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Boyles, J.
This is an appeal from an award of compensation by tbe department of labor and industry for an alleged occupational disease claimed to have been contracted by plaintiff while an employee of the appellant. Three questions are raised for our determination which may be stated briefly as follows: (1) Does Act No. 10, part 7, §6, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 8485-6, Stat. Arm. 1941 Cum. Supp. § 17.225), which provides for appointment of a medical commission, and making its report final, violate the Fourteenth Amendment-of the Federal Constitution and Constitution of Michigan, art. 2, § 16 (1908) ? (2) Was the disease that is relied upon by plaintiff contracted within the time limitation provided by part 7, § 5, of said act (Comp. Laws Supp. 1940, § 8485 — 5, Stat. Ann. 1941 Cum. Supp. § 17.224) ? (3) Did said disease disable plaintiff from work within the meaning of said act?
Plaintiff had been employed by the Reo Motor Car Company, and by Reo Motors, Inc., its successor in the business, for 15 to 18 years, except for occasional layoffs during the depression and another layoff in 1939. His last employment began June 19, 1939, at which time he'was employed as a sweeper, cleaning the floors in some of defendant’s buildings. His work was quite steady from June 19, 1939, until July, 1940. The work in cleaning floors required him to remove dust and grease, acids, paint, oils, any accumulation on the floors. Shortly after cleaning a room in No. 8 building in June, 1940, plaintiff claims his affliction was noticed, later diagnosed as a dermatitis. He continued to work a month or six weeks, was laid off July 5th, at which time his arms, face and neck, and legs were raw and sore to the extent that fellow workmen complained against working with him. Plaintiff claims his affliction was dermatitis venenata, so-called contact dermatitis, due to cleaning the floors, in contact with dust, dirt, grease, paint, oils and other filth. Defendant offered considerable testimony to show this condition was dne to a toxic recurrent exfoliated dermatitis, not covered by the occupational disease amendment. Plaintiff had first suffered from a skin condition in 1935 while working for Reo Motors, Inc., testified that he was better in the winter and all right in the summer if he wasn’t working in the dirt, and that he had another onset when he got to working in the grease and filth cleaning floors. The deputy commissioner who conducted the hearing found plaintiff suffering from dermatitis venenata, an occupational disease, and allowed compensation, which was affirmed by the department on appeal.
(1) Defendant claims that part 7, § 6, of the act violates both Federal and State Constitutions, in that defendant is thereby deprived of its day in court, an opportunity to cross-examine the medical commission, and to' establish the fact that claimant is not suffering from an occupational disease. Section 6 requires the department, or a member of the commission, when there is a dispute, to appoint a medical commission of three physicians to examine an employee alleged to be suffering from an occupational disease and to report. It provides that the report of said medical commission shall be final and conclusive as to the condition of said employee.
This court is definitely committed to the rule of-law .that an employer, by accepting the benefits of the workmen’s compensation act, is estopped from challenging the validity of the act or any amendment thereto. In American Life Insurance Co. v. Balmer, 238 Mich. 580, 585, 586, this court said:
“But a complete answer to plaintiff’s assault on the validity of the act lies in the fact that plaintiff has accepted its provisions and has had the benefit of them. By accepting its benefits it is estopped to deny its validity. People, ex rel. Ostapow, v. Fidelity & Casualty Co., 222 Mich. 296, and authorities there cited. In the recent case of Booth Fisheries Co. v. Industrial Commission, 271 U. S. 208 (46 Sup. Ct. 491, 70 L. Ed. 908), it was said by Chief Justice Taft, speaking for the court:
“ ‘It is argued that the employer in a suit for compensation under the act is entitled under the Fourteenth Amendment to his day in court, and that he does not secure it unless he may submit to a court the question of the preponderance of the evidence on the issues raised.
“ (A complete answer to this claim is found in the elective or voluntary character of the Wisconsin compensation act. * * * If the employer elects not to accept the provisions of the compensation act, he is not bound to respond in a proceeding before the industrial commission under the act, but may await a suit for damages for injuries or wrongful. death by the person claiming recovery therefor, and make his. defense at law before a court in which the issues of fact and law are to be tried by jury. In view of such an opportunity for choice, the employer who elects to accept the law may not complain that, in the plan for assessing the employer’s compensation for injury sustained, there is no particular form of judicial review. This is clearly settled by the decision of this court in Hawkins v. Bleakly, 243 U. S. 210, 216 (37 Sup. Ct. 255, 61 L. Ed. 678, Ann. Cas. 1917D, 637). #
# “ ‘More than this, the employer in this case having elected to accept the provisions of the law, and such benefits and 'immunities as it gives, may not escape its burdens by asserting that it is unconstitutional. The election is a waiver and estops such complaint. Daniels v. Tearney, 102 U. S. 415 (26 L. Ed. 187); Grand Rapids & I. R. Co. v. Osborn, 193 U. S. 17 (24 Sup. Ct. 310, 48 L. Ed. 598).’ ”
In Cooley v. Boice Brothers, 245 Mich. 325, the defendant employers, who had elected to come under the workmen’s compensation act and had never with drawn therefrom, questioned the constitutionality of Act No. 162, Pub. Acts 1927, amending the act and providing for double compensation to minors injured while illegally employed. The precise claim was that defendants had never elected to accept the 1927 amendment and, therefore, were not estopped from challenging its constitutionality. The defendants claimed that the amendment in question did not go into effect until the time for the employers to give notice of withdrawal had elapsed, wherefore the defendants had no opportunity to withdraw when the accident occurred, and this court held they were bound by the act and could not question the validity of the amendment. Mr. Justice McDonald, writing the opinion, concurred in by the court, said (pp. 330, 331):
“In conceding that they are bound by the 1927 amendment, the defendants must also concede that they elected to be governed by its provisions. In no other way could it bind them. There is nothing compulsory about the workmen’s compensation law. If an employer becomes subject to its provisions, it is because he has so elected. The State offers it to him. He may come in or stay out as he chooses. If he accepts it, he does so because of the benefits he will receive by escaping large damages in common-law actions by injured employees. And when he elects to come under the law to receive these, benefits, he will not be allowed to question its validity. There is nothing dangerous about such a rule. It is both reasonable and just.
“The defendants elected to become subject to this law. That section of the statute which provides for the filing of their election contemplates that there may be changes in its provisions. It provides that when an employer has filed his election and the board has approved it, he shall become subject to the ‘provisions of the act and all acts amendatory thereof.’ So that by filing their election, these employers agreed, impliedly at least, to be governed by the provisions of any amendment that might be made to the act as it then existed.”
In Thomas v. Morton Salt Co., 253 Mich. 613, we held that a minor employee is under the same estoppel as the employer to deny constitutionality. On rehearing (Thomas v. Morton Salt Co., 258 Mich. 231), we held the estoppel of a minor employee to deny constitutionality of the act need not be formally pleaded, and the question was properly raised by this court on review in order to avoid conflict with another decision.
See, also, Jesiek v. Banfield, 286 Mich. 440.
It is argued that since the State, and each county, city, township, incorporated village and school district are brought within the provisions of the act without an opportunity for voluntary election (2 Comp. Laws 1929, § 8411 [Stat. Ann. 1941 Cum. Supp. §17.145]), and, therefore, might raise questions of constitutionality, the absurd result would follow of having a section constitutional as to some employers and unconstitutional as to others. This conclusion is not sound nor is it .applicable to the case at bar. If the question of constitutionality was available to this defendant in the case at bar, it would be considered. The issue now decided is whether this defendant is estopped from raising the question of constitutionality of the so-called occupational disease amendment, and we adhere to our former decisions on that question.
In the ease at bar, the medical commission reported that plaintiff was suffering from dermatitis venenata, an occupational disease. Defendant claims that under the provisions of the act, it should have been allowed to offer testimony contradicting the finding of the medical commission. Such testimony was, in fact, offered by defendant at the hearing before the deputy commissioner through the testimony of several physicians called by defendant. The deputy ruled that any testimony would not be accepted that was contrary to the findings of the medical commission. However, the testimony was taken, the deputy ruling that it must be segregated and not used in the findings of the case. The testimony is in the record before us. It relates, in part at least, to the condition of plaintiff at various times both previous and subsequent to the date of the examination by the medical commission. The deputy was in error in ruling that such testimony could not be received and considered. In Smith v. Wilson Foundry & Machine Co., 296 Mich. 484, 489, 490, we said:
“The particular part of the section under consideration reads as follows:
í e i report, when signed by at least two of the members of said commission, shall be final and con'clusive as to the condition of said employee with respect to the alleged disease or diseases.’
“Under the provisions of the cited act the department of labor and industry or any member thereof has the power and it is its duty to appoint a qualified medical commission which shall examine the injured employee. Under section 6 of part 7 of the above law, the report of the medical commission ‘shall be final and conclusive as to the condition of said employee with respect to the alleged disease or diseases.’
“It appears from the above section of the act that the medical commission is limited and may determine only the condition of the injured employee on the date that he appears before it for examination. Its report is final only as to the date of the examination, but the liability of the employer is to be determined as of the date of the disablement of the employee. Ruffertshafer v. Robert Gage Coal Co., 291 Mich. 254.• * *
“Under section 7 of part 7 of the above act the date of disablement is a fact to be determined by the department. If the medical commission determines that the injured employee is suffering from an occupational disease, the department of labor and industry must make a determination as to the date of such disablement and may refer the matter to a deputy labor commissioner for such purpose..
“Under the theory advanced by defendant company, an injured employee cannot have a determination of the period of his disability if the medical commission subsequently finds that he is not suffering from an occupational disease.
“We are not in accord with such a theory. It deprives an injured employee of his rights defined in section 7 of part 7 of the act and in our holding in Ruffertshafer v. Robert Gage Goal Co., supra.”.
The defendant has been allowed its day in court on this issue, in the case at bar. It appears from the opinion and findings of the department on review of the findings of the deputy that the so-called “segregated” testimony was considered by the department on review. In the findings of the department the testimony offered by the defendant from a group of five physicians is discussed and considered at length. There is testimony to support the department’s finding that defendant’s physicians were unable to diagnose with any degree of certainty the cause of plaintiff’s condition, whereas, on the contrary, the report of the medical commission states positively that the plaintiff was at that time, when the examination was made, suffering from dermatitis venenata.
(2) The department might reasonably conclude that plaintiff’s condition was brought on when he resumed work in June, 1939, by reason of continuous contact with dirt, grease, oils, and other irritating substances in his work of sweeping the floors. This is within the range of plaintiff’s own testimony as well as that of one or more physicians. The department necessarily found that plaintiff contracted dermatitis venenata due to the nature of his employment and during his employment within the limitation of timei prescribed by section 5 of part 7 of the act (Comp. Laws Supp. 1940, § 8485-5, Stat. Ann. 1941 Cum. Supp. § 17.224). There was competent testimony to support the finding and it will not be disturbed by this court. Brozozowski v. Swedish Crucible Steel Co., 298 Mich. 146.
(3) Defendant lastly claims that the plaintiff’s disease did not disable him from work, therefore, he is not entitled to compensation under section 2 of part 7 of the act (Comp. Laws Supp. 1940, § 8485-2, Stat. Ann. 1941' Cum. Supp. §17.221). We are bound by'the conclusion that plaintiff was suffering from dermatitis venenata. When questioned as to his condition just prior to the time he was laid off, the plaintiff testified:
“It was awful. My legs was all raw, my clothes even stuck to them, and the hide came off when I would try to take my clothes off, and my arms and face and neck was all sore.”
Section 1 of the occupational disease amendment (Act No. 61, Pub. Acts 1937 [Comp. Laws Supp. 1940, § 8485-1, Stat. Ann. 1941 Cum. Supp. §17.220]), provides:
“(a) The word ‘disability’ means the state of being disabled from earning full wages at the work at which the employee was last employed;
“(b) The word ‘disablement’ means the event of becoming so disabled as defined in sub-paragraph (a).”
Section 3 of part 7 of the act (Comp. Laws Supp. 1940, § 8485-3, Stat. Ann. 1941 Cum. Supp. § 17,222) provides:
“If an employee is disabled or dies and his disability or death is caused by one of the diseases mentioned in the schedule contained in section two of this part and the disease is due to the nature of the employment in which such employee was engaged and was contracted therein, he or his dependents shall be entitled to compensation for his death or for Ms disablement.”
There is ample testimony to support the finding of the department that dermatitis venenata disabled plaintiff from earning full wages at the work at which he was last employed. It is quite probable that the immediate reason for plaintiff’s discharge was because other employees complained about working with him on account of his obvious condition. He should not be penalized for -attempting to continue work when his condition was such that he might well have claimed he was physically unable. His power to earn a living was just as effectively cut off by the disease as if he had admitted he was completely unable to continue work. The act speaks of disability in the terms of being able to earn wages. Under the circumstances of this case, there is evidence in the record to support the finding of disability within the meaning of the act.
The award is affirmed, with costs to appellee.
Chandler, C. J., and North, Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred.
See 2 Comp. Laws 1929, § 8413, subsection 2 (Stat. Ann. § 17.147).—Reporter.
The powers and duties of the industrial aceident board, here referred to, have been transferred to the department of labor and industry and the board abolished. See 2 Comp. Laws 1929, § 8312 (Stat. Ann. §17.3). — Reporter. | [
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Sharpe, J.
Plaintiff, a member of the State Bar of Michigan, filed a petition for a declaration of rights pursuant to the provisions of Act No. 36, Pub. Acts 1929 (3 Comp. Laws 1929, §§ 13903-13909 [Stat. Ann. §§ 27.501-27.507]), the purpose being to secure a declaration of rights under the civil service amendment to the State Constitution, Mich. Const. (1908), art. 6, § 22, and to ascertain whether plaintiff’s State employment was protected by its provisions.
The facts are not in dispute. Prior to January 1, 1941, plaintiff was employed as an assistant attorney general under Attorney General Thomas Read. At the election held November 5, 1940, the electors of the State of Michigan approved the Constitutional amendment, supra; and at the same election, elected Herbert J. Rushton attorney general for the term beginning January 1, 1941. On December 29, 1940, plaintiff was informed that beginning January 1, 1941, his service as an assistant attorney general would cease and after said notice another assistant attorney general was assigned to the position formerly occupied by plaintiff. The cause came on for hearing on petition and affidavits filed by plaintiff and motion to dismiss. On July 1, 1941, the trial court dismissed plaintiff’s petition.
Plaintiff appeals and contends that the above amendment became effective December 6, 1940; that his term of office did not expire with that of Attorney General Read, namely, on December 31,1940 ; that the letter of Attorney General Rushton to plaintiff did not terminate his employment with the State of Michigan; that plaintiff was blanketed in as a State employee from the effective date of the civil service amendment until replaced by persons passing competitive examinations whom the commission certified as qualified; that the above amendment abrogated the power of the attorney general to dismiss plaintiff; and that the office or employment of assistants attorney general is within the protection of the civil service amendment.
The civil service amendment provides: “This amendment shall take effect on the first day of January following the approval thereof.” It is urged by appellant that the above language is a nullity as it conflicts with article 17, § 2, of the Michigan Constitution which provides in part: “Every amendment shall take effect thirty days after the election at which it is approved; ’ ’ and that by reason of article 17, § 2, supra, the civil service amendment became effective 30 days after November 5, 1940, or on December 5, 1940.
It is urged by tbe attorney general that tbe 30-day clause of tbe State Constitution does not prevent tbe electors from deferring, beyond that interlude, tbe operation of an amendment to tbe Constitution.
Tbe trial court made the following observation upon this question:
‘ ‘ Tbe civil service amendment neither altered nor abrogated tbe clause in question. Tbe clause still stands applicable to all amendments where an effective date is not mentioned. If it were proposed to make tbe effective date of future amendments 60 days instead of 30, or if it were intended to strike out tbe clause entirely, then [article 17] § 3 regarding publication would apply.”
In State, ex rel. McNamara, v. Campbell, 94 Ohio St. 403 (115 N. E. 29), it appeared that tbe general assembly bad proposed and tbe electors bad approved a constitutional amendment granting to women tbe right to appointment as members of certain boards, but in its resolution submitting tbe amendment to tbe voters, it bad deferred tbe effective date for some time after tbe election. This intent was not expressed in tbe amendment itself, and for that reason was deemed ineffectual to postpone its operation. Tbe court said (pp. 411, 412):
“Tbe Constitution is positive in its terms and provides that tbe amendment shall become a part of tbe Constitution when a majority of tbe electors voting on tbe same shall adopt it. Tbe time when an amendment is to become effective can be submitted to tbe electors, as in tbe case of tbe amendments of 1912 wherein it was expressly provided when they should go into effect. * * * There is nothing in tbe Constitution of- this State postponing tbe operation of an amendment and it cannot be postponed unless tbe proposition to postpone is submitted to tbe electors and is adopted by a majority of those voting thereon. ’ ’
In Broadwater v. Kendig, 80 Mont. 515, 522 (261 Pac. 264), it is said:
“A statute to take effect in futuro is a law in praesenti. An act has a potential existence upon its passage despite the fact that its effective day is postponed. ‘That a statute or constitutional provision may have a potential existence, hut which will not go into actual operation until a future time, is familiar law.’ ”
It seems clear that the purpose of the 30-day clause, Mich. Const. (1908), art. 17, § 2, is to enable the public to become acquainted with the provisions of an amendment after it has been approved. There is nothing in the Constitution which prohibits the postponement of the effective date of the operation of the amendment. Article 5 of the Constitution of the United States provides that amendments shall become “valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States,” yet the 18th amendment to the Federal Constitution prohibited the manufacture or sale of intoxicating liquors “after one year from the ratification of this article.” In our opinion the electors in voting upon the civil service amendment intended that its effective date should be January 1, 1941, and there being nothing in our Constitution prohibiting such postponement, we hold that the will of the electors, so expressed, must govern.
It is to be noted that the Michigan Constitution, article 17, § 3, requires all proposed amendments to be published in full “with any existing provisions of the Constitution which would be altered or abrogated thereby.” In the case at bar there were no provisions qf the Constitution published when the civil service amendment was voted upon. The civil service amendment does not alter or abrogate any specific provision of the Constitution and hence there was none to be published.
In School District of City of Pontiac v. City of Pontiac, 262 Mich. 388, 344, We said:
“In determining what constitutes compliance with the constitutional requirement as to publication, a matter of prime importance is the purpose that prompted the people of the State of Michigan to include such a provision in the Constitution. All will agree that this was a means adopted by which it was believed the elector would be definitely advised as to the purpose of the proposed amendment and what provision of the constitutional law it modified or supplanted. Being so advised, the elector could intelligently determine whether his vote would be for adoption or rejection. But the ordinary elector, not being a constitutional lawyer, would be confused rather than helped by a publication of all the other constitutional provisions which were or might be directly or only remotely, and possibly only contingently, affected by the proposed amendment. We think the requirement in substance is this: That in case a proposed constitutional provision amends or replaces (‘alters or abrogates’) a specific provision of the Constitution, that such provision should be published along with the proposed amendment; that other provisions which are still operative, though possibly they may need thereafter to be construed in conjunction with the amending provision, need not necessarily be published.”
Appellant next urges that his term of office or State employment as assistant attorney general did not terminate with that of Attorney General Read. It is agreed that 1 Comp. Laws 1929, § 183, as amended by Act No. 248, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 183, Stat. Ann. 1941 Cum. Supp. § 3.188), providing that the attorney general might appoint such assistants attorney general as he deemed necessary, who should hold office “at the pleasure of the attorney general” continued in full force and effect until the civil service amendment became effective. It is urged by the attorney general that appellant’s employment terminated when, on December 31, 1940, the appointing officer’s term expired.
This problem is not new to the courts of our State. In Lamoreaux v. Attorney General, 89 Mich. 146, 149, it was said:
“Bishop’s authority to hold the office of sheriff expired at midnight of December 31, 1890, by constitutional limitation, and all his deputies and the undersheriff went out of office with him.”
See, also, Smith v. Wagner, 234 Mich. 428; Abt v. Wilcox, 264 Mich. 183.
In Lockwood v. Stoll, 264 Mich. 598, plaintiffs were employees in the office of register of deeds of Wayne county. They sought to hold over when a new register of deeds was elected, qualified, and assumed the duties of the office. We there said:
“The appointment or employment of plaintiffs by Otto Stoll [the former register of deeds] did not extend beyond his term. Their right to their positions expired simultaneously with the expiration of his term.”
In the case at bar, appellant was appointed an assistant attorney general and continued to serve in that capacity “at the pleasure of the attorney general” appointing him. Prior to January 1, 1941, appellant was notified that beginning on the above date he would not be reappointed by the incoming attorney general. Such notice was sufficient to apprise appellant that after December 31, 1940, he would not serve as an assistant attorney general under Attorney General Rushton. Under the authori ties above cited, appellant’s period of State employment ceased with that of Attorney General Bead and he acquired no status in the State civil service since the amendment did not become effective until January 1, 1941. Our opinion thus far disposes of the claims of appellant and the decree of the trial court is affirmed in so far as it affects appellant.
It is urged by all interested parties that the applicability of the amendment to assistants attorney general should be decided by our court; and there being no objection to such a determination, we may pass upon the merits of the controversy. In deciding this question, we do so only because the question has been argued, briefed, and is of public importance. It is the claim of the attorney general that assistants attorney general were never intended to be included in the civil service of the State because the relationship in question is highly confidential. The appellant and the civil service commission contend that such office or employment is within the scope of the civil service amendment.
The first paragraph of the amendment reads as follows:
“The State civil service shall consist of all positions in the State service except those filled by popular election, heads of departments, members of boards and commissions, employees of courts of record, of the legislature, of the higher educational institutions recognized by the State Constitution, all persons in the military and naval forces of the State, and not to exceed two other exempt positions for each elected administrative officer, and each department, board and commission.”
Assistants attorney general are not expressly excepted from the application of the amendment. It is a general principle of statutory construction that it is impossible to change positive constitutional and statutory provisions by way of implication.
In People v. McHugh, 286 Mich. 336, in commenting upon a law enacted by the legislature, we said:
“Whether the comments ’on the statute made in that case (People v. Doe, alias Meyer, 264 Mich. 475) were justified or. not, the legislature enacted this section of the statutes. It- is plain and unambiguous, there is no room for judicial construction, and this court has no right to alter its terms. If it should he changed, such change is a matter of legislation.”
In State Compensation Ins. Fund v. Riley, 9 Cal. (2d) 126 (69 Pac. [2d] 985, 111 A. L. R. 1503), that court held:
“The Supreme Court is without power to create exceptions by implication in addition to those enumerated in constitutional provision that State civil service shall include every State officer and employee, with fourteen exceptions (Const, art. 24, § 4a, adopted in 1934).” (syllabus) (69 Pac. [2d] 985.)
The attorney general relies upon cases from New York and Ohio in support of his theory. In an examination of the New York cases, we find they are based upon a constitutional provision which reads as follows:
“Appointments * # * in the civil service of the State * # * shall he made according to merit and fitness to he ascertained, so far as practicable, by examinations, which so far as practicable, shall be competitive,” Const. N. Y. (1939), art. 5, §6.
The State of Ohio has a similar constitutional provision (Const, of Ohio, art. 15, § 10, adopted in 1912). See State, ex rel. Ryan, v. Kerr, 126 Ohio St. 26 (183 N. E. 535). It is to he noted that the civil service amendment to the Michigan Consti tution contains no such provision as is found in the New York or Ohio Constitutions. Consequently, the authorities from these States are not controlling or helpful in construing the amendment to the Michigan Constitution.
It is our opinion that assistants attorney general not being expressly exempted from the applicátion of the amendment, they cannot be exempted by implication. It must follow that they occupy a position in the classified service of the State civil,service under the third paragraph of the amendment.
Other questions have been raised, but because of the importance of the case, we have decided the questions of public importance and the questions raised by plaintiff in his petition for a declaration of rights.
The decree of the trial court dismissing plaintiff’s petition is affirmed, but without costs' as the construction of a constitutional amendment is involved.
Boyles, North, Starr, Butzel, and Bushnell, JJ., concurred with Sharpe, J. | [
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Sharpe, J.
Defendant was tried, convicted and sentenced for the crime of resisting an officer. The cause was tried without the aid of a jury. Dewight Mitter, DeWayne Bradley, and respondent were charged with resisting a police officer in the city of Lansing on July 30, 1941. Mitter pleaded guilty prior to the trial of respondent.
At the trial of respondent, evidence was introduced showing that a gasoline station in the city of Lansing had been broken into three days previous to July 30,1941. A city detective went to the house where Mitter was staying for the purpose of arresting him for the crime of breaking and entering into the gasoline station. The detective was not in uni form; he was in his shirt sleeves, wore no vest, and was hareheaded. He had a gilt-covered detective badge pinned on his suspenders about four or five inches below his shoulder. On the evening in question, Chesbro met Mitter and Bradley at a restaurant. They drove to the place where Mitter was staying. Mitter left the car and went up on the porch where he found the detective and engaged in conversation with him. Shortly thereafter, Mitter and the detective entered into a struggle which continued until they were near the sidewalk. At this point, Mitter was down on Ms back and the detective astride of him. Mitter then called for help and defendant entered the fray and attacked the detective.
It is the claim of the people that just after defendant entered the fray, the detective said to Chesbro and Bradley, “I am a police officer and this man is under arrest and you fellows better stay out of this; ’ ’ that both Chesbro and Bradley continued to push and pull the detective after the above command had been given two or three times; and that the street light was sufficiently bright so that the defendant could see the detective’s official badge.
It is urged by the defendant that at no time during the fight did he believe or have reason to believe that the man with whom Mitter was fighting was a police officer.
The trial court found defendant guilty. In our opinion the finding of guilt was supported by the evidence. The trial court in denying a motion for a new trial stated: “At the conclusion of the proofs there was no reasonable doubt in my mind as to respondent’s guilt, and verdict was rendered accordingly.” An examination of the record discloses that there is a conflict in the testimony. In People v. Blanchard, 136 Mich. 146, we held that this court, on appeal in a criminal case, will not weigh conflicting evidence. There is evidence in this case from which the trier of facts could find defendant guilty beyond a reasonable doubt of the crime charged. In People v. Eger, 299 Mich. 49, we said: “The trial court saw and heard the witnesses and was best able to judge the credibility to be accorded their testimony. ’ ’
In the case at bar, the credibility of the various witnesses and the weight to be given their testimony was for the.determination of the trier of facts. We find no reason to disturb his findings; and we are convinced that the guilt of defendant was established beyond a reasonable doubt.
It is next urged that the trial judge was disqualified in that he took and accepted the plea of guilty of Mitter, one of those jointly charged with resisting an officer; that in doing so, it is presumed the trial judge performed the duties imposed upon him by 3 Comp. Laws 1929, § 17328 (Stat. Ann. § 28.1058), which requires that the trial judge shall examine carefully into the facts of the case; and that from such examination, he had a preconceived idea as to defendant’s part in the affair.
In denying a motion for a new trial, the trial court stated:
“In the instant case the motion does not aver prejudice or bias in fact, nor allege facts from which any conclusion as to the existence thereof may properly be deduced. No claim is made that prejudice or bias was evinced in any form. Actually there was none. If the court had entertained the slightest opinion as to the guilt of Chesbro when his case was brought on for trial, other arrangements would have been made for such trial.”
In Crowley, Milner & Co. v. Macomb Circuit Judge, 239 Mich. 605, we said:
“The rule disqualifying a judge, whether statutory or common law, is predicated upon public policy, and, if prejudice or bias is the reason alleged, there must be prejudice or bias in fact. Such prejudice or bias can never be based solely upon a decision in the due course of judicial proceedings.”
The record in this case sustains the findings of the trial judge, and the judgment is affirmed.
Chandler, C. J., and Boyles, North, Starr, Butzel, and Bushnell, JJ., concurred. Wiest, J., did not sit. | [
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] |
Bushnell, J.
Plaintiff, Arthur Rucker, suffered a leg injury when he was struck by a pot full of slag, which dropped on the floor, while he was in the employ of defendant, Michigan Smelting & Refining Company. He was given first aid at defendant’s plant and then sent to the office of Dr. Francis B. McMillan, located in the David "Whitney Building, downtown Detroit. Doctor McMillan examined Rucker’s leg, obtained X-rays which showed no bone injury, treated the leg with infrared rays, and applied an elastic bandage. Rucker complained of the pain in his leg, so Doctor McMillan sent Rucker home in a taxicab at the expense of defendant Maryland Casualty Company, for whom he was acting.
On the way home the taxicab was involved in a collision, after which Rucker, was taken to. the Receiving hospital in an unconscious condition, where he remained for three or four days. Upon his return home, he was attended by Doctor Preston, who found that his left eye was swollen and edematous. Doctor Preston sent Rucker to the St. Aubin General Hospital where he remained from J'une 21st to August 2d.
As a result Of the second accident Rucker lost the sight of his left eye. He brought proceedings for compensation which resulted in an award of $18 a week for 100 weeks for the specific loss of the eye. This award was affirmed on review by the department, which held as follows:
“The principal question before us for determination, however, is whether or not the plaintiff is entitled to compensation for the specific loss of his left eye which was sustained as a result of the second accident in the taxicab. If so, it will be unnecessary to determine the nature and extent of the plaintiff’s disability, inasmuch as compensation for such disability could not begin until after the payment of 100 weeks for the specific loss of the said eye. * * *
“This is not an ordinary case of an employee leaving his work and sustaining an injury while on his way home and while the employer has no interest in his activities. In this case the defendant had an interest in the manner and means by which the plaintiff reached his home as a part of its care of his injuries. His injuries were so severe that he was given crutches to use in walking and if he had been allowed to go home on a street car or a bus, there was a substantial risk that the injuries might become aggravated and the defendant’s physician felt it advisable that he be taken home in a taxicab at the expense of the defendant. Because of the defendant’s statutory obligation of medical care this was to the distinct interest of the defendant. It follows that at the time of the taxicab accident, which resulted in the loss of the plaintiff’s left eye, the plaintiff was traveling in a method designated by the defendant as a part of its care of his injuries. In our opinion the injury which the plaintiff received, arising ont of and in the course of such statutory-care, is compensable and the plaintiff is entitled to compensation for 100 weeks for the specific loss of his left eye.”
Aggravation of the leg injury is argued but that question was not passed upon by the department, and we will determine only the legal question of whether the accident which occasioned the loss of vision in Rucker’s left eye arose out of and in the course of his employment. See 2 Comp. Laws 1929, § 8417 (Stat. Ann. § 17.151).
We recently held in Appleford v. Kimmel, 297 Mich. 8, 12, citing Pearce v. Michigan Home and Training School, 231 Mich. 536, that the injury arises out of the employment—
“When there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed, and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of’ the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected but after the event it must appear to iaave had its origin in a risk connected with the employment, and to have flowed from- that source as a rational consequence.”
In the Appleford Case we also said (p. 14):
“No hard and fast rule can be laid down to cover all such situations. While it is generally held that injuries to an employee, incurred while going to and leaving the place of employment, are not compensable, exceptions arise because of the circumstances of the particular case.” See authorities there cited.
The court said in Simpson v. Lee & Cady, 294 Mich. 460:
“The compensation law is to be construed liberally to provide indemnity for accidents peculiarly incidental to employment, but it ivas not intended to be health, accident and old age insurance and spread general protection over risks common to all and not arising out of and in the course of employment.”
It is argued that Rucker was still under the control of his employer while traveling from Doctor McMillan’s office to his home under the doctor’s instructions. Although Doctor McMillan, because of his connection with the employer and the insurance company, might be regarded as their agent, the taxicab company, which is not a party to this action, is an independent contractor for whose torts neither Rucker’s employer nor its insurer would normally be liable.
There is no causal connection between the leg injury received at the plant and the eye injury received in the taxicab collision. The chain of causation was broken and the eye injury came “from a hazard to which the workman would have been equally exposed apart from the employment,” Appleford v. Kimmel, supra, p. 12.
Decision in the instant case is controlled by Thier v. Widdifield, 210 Mich. 355, where an employee was killed by a stroke of lightning during the course of his employment. This court held in that case, as we must hold here, that the accident was not one “arising out of” the employment. It is not enough to say that the eye injury could not have resulted if Rucker had not been engaged in the employment or had not been in the taxicab at the particular moment. It must be shown that what he was doing at the time was not only in the course of his employment but that he was exposed by the nature of the employment to this particular danger.
The award of the department is vacated and the cause is remanded for further proceedings not inconsistent herewith relative to claim for compensation for other injuries. No costs will be allowed.
Chandler, C. J., and Boyles, North, Starr, Butzel, and Sharpe, JJ., concurred. Wiest, J., did not sit.
See 2 Comp. Laws 1929, §8426 (Stat. Ann. §17.160).— Reporter. | [
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Wiest, J.
For the expressed consideration of $1, plaintiff purchased the equity of redemption in real estate which had been seized under a judgment execution against his grantor and sold at public sale to defendant. No redemption was made but, after the period of redemption had expired, this bill was filed to set aside the sheriff’s deed to defendant, permit payment of the judgment and costs, and decree plaintiff owner of the premises. From a decree to such effect- defendant appeals.
The judgment on which the execution issued was for $500, and with «the costs in all amounted to $552.90. The judgment creditor bid that amount and became the purchaser. The property was sold subject to a large mortgage.
Plaintiff invokes the power of the court of equity to set aside a sale under execution if the price at which the property is struck off to the judgment creditor shocks the conscience of the court. There is no evidence of any wrong-doing on defendant’s part. The plaintiff had free exercise of every right he possessed. Plaintiff cannot be heard to urge that the levy on the real estate was bad by reason of the claimed fact that the judgment debtor had personal property open to levy. 3 Comp. Laws 1929, §14547 (Stat. Ann. §27.1512). Plaintiff is not the judgment debtor and he cannot invoke the statute which is personal to the judgment debtor. Besides, the showing of personal property is unsatisfactory.
Counsel for plaintiff, in his brief, states:
“The plaintiff and appellee agrees that mere inadequacy of price alone as a rule is not sufficient to set aside a sale. But, when such gross inadequacy is accompanied with any other circumstances showing fraud, irregularities or unfairness the sale may be set aside. Greenberg v. Kaplan, 277 Mich. 1.”
We do not find fraud, irregularities or unfairness calling for relief.
The property involved was at one time a manufacturing plant and, at the time of the execution sale, was subject to a mortgage to the Reconstruction Finance Corporation in the original amount of $50,000, and alsq a second mortgage, the amount of which we cannot determine from the record.
Plaintiff made no ease for equitable relief.
The decree in the circuit court is reversed and one will be entered in this court dismissing tbe bill, with costs to defendant.
Chandler, C. J., and Boyles, North, Starr, Butzel, and Sharpe, JJ., concurred. Bushnell, J., did not sit. | [
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